Sita Ram vs Sub Divisional Magistrate and others

R.S. Narula, J.—In the election to the office of Sarpanch of the Gram Panchayat, Malikpur, tehsil Sonepat, district Rohtak, held on December 27, 1963, out of the five contestants including the petitioner and respondent No. 2, the former was declared elected. At the instance of Nand Lal respondent No. 2 the election was set aside by the order of respondent No. 1 (hereinafter referred to as the Election Tribunal), dated May 15, 1967 (Annexure ''A'') as being void and fresh election was ordered. The solitary ground on which Nand Lal''s election petition succeeded was that the petitioner had committed corrupt practice defined in section 13-U(7) of the Punjab Gram Panchayat Act, 1952, as amended by Act 26 of 1962 (hereinafter called the Act), inasmuch as the petitioner had obtained the assistance of Tara Chand a teacher in the Government Primary School, Bhigan and Om Parkash Tyagi, a Clerk in the Government''s Cooperative Department, for the furtherance of the prospects of his election by appointing the aforesaid two persons as his polling agents, a capacity in which they had so acted. In the order of the Election Tribunal it was held that Tara Chand was a Government employee and he had acted as polling agent for the petitioner and that similarly there was sufficient evidence to show that Om Parkash Tyagi who had admitted himself to be a Government servant had also acted as polling agent of the petitioner. The order of the Election Tribunal is sought to be quashed in this case by a writ in the nature of certiorari on the ground that a candidate does not commit any corrupt practice by merely appointing a Government servant as his polling agent.

The writ petition was filed on June 1, 1967, during the summer vacation. On june 2, 1967, Mahajan V.J., stayed the operation of the impugned order pending hearing of the writ petition by the Motion Bench. The stay order was continued in force by the Motion Bench consisting of Shamsher Bahadur and P.C. Pandit JJ. at the time of its admission on July 28, 1967.

As stated above, the principal contention of Mr. Rajinder Sachar, the Learned Counsel for the petitioner, is that in the absence of a finding of actual canvassing having been done by the Government servants in question, the Election Tribunal had no jurisdiction to allow the election petition on the finding of fact recorded by him. Nand Lal respondent No. 2 alone has contested this petition and has filed a written statement, dated September 25, 19b7.

Clause (7) of section 13-U of the Act reads as follows :

The following shall be deemed to be corrupt practices for the purposes of this Chapter :

(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent, or by any other person with the consent of a candidate or his agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate''s election, from any person in the service of the Government, the Government of India or the Government of any other State or a local authority.

Before a statutory explanation was added to the relevant clause in section 123 of the Representation of the People Act to the effect that a person shall be deemed to assist in the furtherance of the prospects of a candidates election, if he acts as a polling agent, the question whether the mere appointing of a Government servant as a polling agent in itself amounted to a corrupt practice was answered by the Supreme Court in the nagative in Satya Dev Bushanri v. Padam Dev and others 10 E.L.R 103. Their Lordships found in that case that the finding of fact was that beyond acting as a polling agent, the Government servent concerned did nothing else, and that there was no finding about the returned candidate having availed himself of the presence of the Government servant at the polling booth for any purpose to further his own election prospects beyond his having acted as a polling agent. On those findings it was held that clause (8) of section 123 of the Representation of the people Act had not teen contravened.

In Moji v. Suraj Mal 1966 CL.J. (P&H) 148, it was held by me that in the absence of a statutory provision like the one contained in the above said explanation to the relevant clause in section 123 of the Representation of the People Act, it appeared to be impossible to construe the mere employment of a Government servant as a counting agent as constituting a corrupt practice within the meaning of section 13-U (7) of the Act. The question of a polling agent did not arise in that case and was not, therefore, specifically decided.

In a subsequent case, however, that is in Mehanga Singh v. Nar Singh 1667 Cur. L. J. (P&h) 6, it was held by me that the mere appointment of a Government servant as a polling agent did not fall within the purview of clause (7) of section 13-U of the Act and it could not by itself form the basis of an order for setting aside the election of a returned candidate.

Following the law laid down in the above said cases, I have no hesitation in allowing this writ petition and quashing the impugned order of the Election Tribunal, dated May 15, 1967 (Annexure ''A''), as error of law is apparent on its face in as much as the learned Tribunal has considered the mere acting of the Government servants as polling agents without doing anything more to constitute corrupt practice within the meaning of section 13-U (7) of the Act. Respondent No. 2 shall pay the costs of the petitioner which are assessed at Rs. 100/-.