Judgment

VENKATARAMA AYYAR, J. : This is an appeal against the order of the Election Tribunal, Himachal Pradesh, dismissing Election Petition No. 14 of 1952. On 12-10-1951, five candidates (respondents 1 to 5 herein) were duly nominated for election to the Legislative Assembly of the State of Himachal Pradesh for the Rohru Constituency in Mahasu District. The polling took place on 23-11-1951, and on 30-11-1951 the first respondent was declared elected, he having secured the largest number of votes. The result was published in the official Gazette on 20-12-1951.

On 14-2-1951 one of the unsuccessful candidates, Gyan Singh (fifth respondent herein) filed Election petition No. 14 of 1952 challenging the validity of the election of the first respondent. On 4-8-1952 he applied to withdraw from the petition, and that was permitted by an order of the Tribunal dated 20-9-1952. The appellant, who is one of the electors in the Rohru Constituency, then applied to be brought on record as the petitioner, and that was ordered on 21-11-1952. The petition was then heard on the merits.

2. Though a number of charges were pressed at the trial, only two of them are material for the purpose of the present appeal : (1) that Sri Padam Dev was interested in contracts for the supply of Ayurvedic medicines to the Government and was therefore disqualified for being chosen to the Assembly under S. 7 (d) of Act No. 43 of 1951*; and (2) that he had procured the assistance of Government servants for the furtherance of his election prospects, and had thereby contravened S. 123(8) of the Act. The facts giving rise to this contention were that one Daulatram had subscribed in the nomination paper of Sri Padam Dev as proposer and one Motiram as seconder, both of them being Government servants employed in the post office, and that one Sital Singh, and extra-departmental agent, was appointed by Sri Padam Dev as one of his polling agents at a booth at Arhal.

* Representation of the People Act (43 of 1951) - Ed.

*The Government of Part C States Act (49 of 1951) - Ed.

3. By its judgment dated 25-9-1953 the Election Tribunal held firstly that S. 7(d) of Act No. 43 of 1951 had not been made applicable to elections in Part C States, and that further there was no proof that on 12-10-1951, the date of nomination there were contracts subsisting between Sri Padam Dev and the Government.

With reference to the charge under S. 123(8), the Tribunal held by a majority that the section did not prohibit Government servants from merely proposing or seconding nomination papers, and that it had not been proved that Daulatram and Motiram did anything beyond that. As regards Sital Singh, while two of the members took the view that S. 123(8) did not prohibit the appointment of a Government servant as polling agent, the third member was of a different opinion. But all of them concurred in holding that this point was not open to the petitioner, as it had not been specifically raised in the petition. In the result, the petition was dismissed. It is against this judgment that the present appeal has been brought by special leave.

4. The first question that arises for determination is whether Sri Padam Dev was disqualified for being chosen to the Legislative Assembly by reason of his having held at the material dates contracts for the supply of Ayurvedic medicines to the Himachal Pradesh State Government. The answer to it must depend on the interpretation of the relevant provisions of Act No. 49 of 1951$. which governs elections to the Legislative Assemblies in Part C States. Section 17 which deals with disqualifications runs as follows :

"A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly of a State, if he is for the time being disqualified for being chosen as, and for being, a member of either House of Parliament under any of the provisions of Art. 102."

Article 102 of the Constitution which becomes incorporated in the section by reference is as fol