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TMI Blog1993 (5) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... ons to the Barb Parliamentary and Pali Assembly Constituencies schedule to be held on 16-11-1991. The writ application was admitted for hearing on 11-11-1991, but no interim order was passed having regard to the fact that the election was to be held on 16th November, 1991, and this Court did not wish to dislocate the arrangements made for holding the election. However, this Court Observed in the interim order that it will be open to the respondents to reconsider the matter and to make alternative arrangement, if so advised. The respondents were directed to file their counter-affidavit within three weeks, and it was directed that the writ application be placed for final disposal on 16th December, 1991. No counter-affidavit has been filed, and for whatever reasons, the writ application could not be disposed of on 16th .December, 1991. 2.. Thereafter, the District Election Officer-cum-District Magistrate, Patna, issued similar letters of appointment which were communicated to the Assistant General Manager of the State Bank of India appointing several employees of the State Bank of India as Presiding Officers and Polling Officers in connection with the Parliamentary election to be h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Election Commission, Regional Commissioner to assist the Election Commission in the performance of the functions conferred on the Commission by Clause (i). Clause (6) of Article 324 provides as follows : The President, or the Governor of a State, shall, when so requested by the Election Commission; make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1). 5. Article 327 of the Constitution empowers the Parliament from time to time by law to make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the Houses or either House of the Legislature of a State, including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. Similarly, power has been vested' in the Legislature of a State to make provision with respect to elections to the Legislature, in so far as provision in that behalf is not made by the Parliament. 6. In exercise of power vested in the Parliament under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s whose services may be placed at the disposal of the Election Commission must be persons who are either employees Of the Central Government or of the State Government. It can neither be contended, nor was it contended, before us, that the services of employees of the State Bank of India are required to be made available to the Election Commission under Article 324(6) of the Constitution. It was contended on the other hand that the services of the employees of the State Bank of India have been requisitioned under Section 159 read with Section 26 of the Act of 1951. The respondents contend that the State Bank of India is a 'local authority' within the meaning of Section 159 and, therefore, the District Election Officer was within his rights in appointing employees of the Bank as Presiding Officer/Polling Officers in connection with the election. The petitioners, however, contend that the expression 'local authority' has a well accepted connotation in law, and by no stretch of imagination can it be contended that the State Bank of India is a 'local authority', within the meaning of Section 159 of the Act of 1951. The words 'local or other authorities' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnmental duties and functions. It is not entrusted by the Government with the control or management of a local fund. 8. Faced with this situation and the well-settled position in law, the learned Advocate General contended that the State Bank of India is not a 'local authority' in the sense the expression is ordinarily understood in law, or in the sense the expression has been defined under the General Clauses Act. He submitted that for the purpose of Section 159 a 'local authority' must be understood to mean any authority operating within a local limit. The sub mission must be rejected. There is nothing in the context nor is there any compelling reason which may persuade us to give to the expression 'local authority' a meaning different than what has been assigned to it under the General Clauses Act, and interpreted by several decisions of the Supreme Court of India and High Courts. In any event, it cannot even be said that the State Bank of India operates within a local jurisdiction, because by the very nature of its functions it operates throughout the territory of India and also has branches in foreign countries. It is, therefore, futile to contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Section 26. The submission overlooks the constitutional as well as the legislative scheme incorporated in the Act of 1951. Under Clause (6) of Article 324, the President or the Governor of a State, as the case may be, on a request made by Election Commission, is obliged to make available to the Commission employees of the Central or the State Government to enable the Commission to discharge functions conferred on it by Clause (1) of Article 324. The framers of the Constitution considered it necessary to incorporate such a provision in the Constitution itself, because in its absence, it may have been impossible for the Election Commission to discharge its functions without the aid of the Central Government or State Government employees. But for Clause (6) of Article 324, the Election Commission could not requisition the services of such Government employees. Likewise, while enacting the Act of 1951, the Parliament in its wisdom incorporated Section 159 obliging any 'local authority' in a State to make available to any Returning Officer such staff as may be necessary for the performance of duties in connection with an election. This was subject to the condition that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Returning Officer must be an officer of the Government or of a local authority. Obviously, those sections refer to officers whose services can be requisitioned under Article 324(6) of the Constitution and Section 159 of the Act of 1951 It may be that the Election Commission or the Regional Commissioner, as the case may be, may request for the requisitioning of services of persons in the employment of Government or local authority, who may not be officers of the Government or the local authority. The services of other employees who are not officers may also be requisitioned. Sections 21 and 22 only prescribe that a person appointed as Returning Officer or Assistant Returning Officer must be an officer of the Government or local authority, and not a person who is not an officer. So understood a conjoint reading of Sections 21, 22 and 26 of the Act of 1951 must lead to the necessary inference that the officers to be appointed under Part IV of the Act of 1951 must be officers whose services can be requisitioned by the Election Commission or by the Regional Commissioner. It would be impermissible to read into Section 26, by implication, a power in favour of the District Election Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1951 as to how the District Election Officer shall exercise his power to requisition the services of those who are neither Government employees not employees of local authorities. Apart from the absence of any procedure for requisitioning their services, there is nothing in the Act to provide any guidance as to how and in respect of whom such power may be exercised. There is complete absence of any provision regulating the exercise of such power. There is no provision in the Act which provides for the con sequences that may follow if such a person who has been appointed a Presiding Officer or Polling Officer under Section 26, refuses to perform that duty. A private citizen, for instance, cannot be punished for the breach of an order in the absence of a law prescribing the punishment. The absence of such provisions, therefore, necessarily lead to the inference that Section 26 was not intended to be given such a wide application so as to be wider in its scope than Article 324(6) of the Constitution, and Section 159 of the Act of 1951. In any event, if Section 26 is understood to confer on the District Election Officer such wide and unbridled powers without any guidance, the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd care should be taken to see that normal functioning of the Banks are not interrupted etc. Relying upon the decision of the Supreme Court in Mohinder Singh Gill v. The Chief Election Commissioner [1978] 2 SCR 272, he submitted that the power conferred on the Election Commission under Article 324 of the Constitution is DO doubt subject to the laws made by the Parliament under Section 327 of the Constitution, but urged that if directions/instructions issued by the Election Commission are not inconsistent with any law made by Parliament, the same must be upheld, His further submission was that these instructions were only supplemental in nature, and were not inconsistent with any provision of the Act of 1950 or the Act of 1951, The Election Commission was entrusted with the task of holding fair elections and, therefore, many unforeseen situations may arise for which there may be no express provision in the Act of 1950 or the Act of 1951. Obviously, in such cases the Election Commission must issue necessary directions/instructions consistent with the provisions of the Constitution, and the laws made under Article 327 of the Constitution of India, If, therefore, the Commission had tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no scope for inferring such a duty on the basis of Article 51A of the Constitution of India. The law envisages that the State and Central Government employees and the employees of local authorities on request being made by the competent authority can be deputed and detained for election duty. It necessarily follows that in the absence of any other provision authorising requisititioning of services of others, such as Bank employees, they cannot be asked to perform election duty. Equally futile is the reliance placed upon clause (2) of Article 23 of the Constitution, which authorises the State to impose compulsory service for public purposes. The power to impose compulsory service for public purposes is vested in the State and not in the District Election Officer. The State in the context must mean either the President of India or the Governor of a State. Such a compulsory service may also be imposed by law passed by the Legislature. In the absence of a law or an order passed by the President of India or the Governor of a State, the District Election Officer cannot impose compulsory service for public purposes even assuming that the compulsion to render election duty is in the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... People Act, 1950 and Representation of the People Act, 1951. The said two acts cover the entire field of legislation relating to Elections. 23. Section 13A of 1950 Act provides for the designation or nomination of the Chief Electoral Officers, by the Election Commissioner, ; whereas Section 13AA provides for designation or nomination of a District Election Officer, who is to be an officer of Government. The District Magistrate, Patna admittedly has been nominated as the District Election Officers. 24. Sections 2(1)(bb) and 2(1)(cc) of 1951 Act provide that the meaning of Chief Electoral Officer and the District Election Officer would be an officer appointed under Sections 13A and 13AA of the 1950 Act. 25. Part IV of 1950 Act provides for the administrative machinery for the conduct of election 26. It is now well known that although the headings of Sections may not be used for the purpose of interpretation of a provision, the language whereof is clear and unambiguous but the same, may have to be taken into consideration where two interpretations are possible. The heading prefixed to a Section can be referred to in construing of an Act. [See Bhinka v. Charan Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Statute or not at all. 34. A statute as is well known has to be given a contextual meaning. If ordinary or liberal meaning given to Statute renders the same unconstitutional, the same may be avoided. 35. A Statute is presumed to be constitutional . However, in order to save the constitutionality of the Statute in a given situation it may have to be read down. But invalid statute cannot be made valid by resorting to the rules of 'reading down'. Reference in this connection may be made to Delhi Transport Corporation v. D.T.C. Mazdaor Congress 1991 SC 101 it has been held as follows : In interpreting the provisions of an Act, it is not permissible where the plain language of the provision gives a clear and unambiguous meaning that it can be interpreted by reading down and presuming certain expressions in order to save it from constitutional invalidity. 36. The aforementioned principles of law have to be borne in mind in order to consider the submissions of the learned Advocate General to the effect that Section 26 of the Act empowers a District Polling Officer to requisition the services of 'any person'. If such a meaning is given, the same wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson cannot be requisitioned except by the President or Governor of the State. 41. Further the 1951 Act, takes within its umbrage all matters relating to requisition of services whether of human beings or of properties both movable and immovable. Section 159 of the 1951 Act only authorises the Regional Commissioner to requisition the services of the employees of the local authority. It is, therefore, clear that only the President of India, Governor of a State or the Regional Commissioner are entitled to requisition the services of persons. Such a power has not been conferred upon the District Election Officers. 42. In this situation, there is no escape from the conclusion that the District Election Officer can only appoint a person as Presiding Officer or as Polling Officer whose services have been requisitioned either by the Election Commission or by the Regional Commissioner. If any other meaning is given to the provisions of the 1951 Act. the same would lead to an anamolous situation which may render Section 6 constitutionally vulnerable. 43. Reed Dickerson in his book The Interpretation and Application of Statutes (1975), at page 95 has said : On the necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49. It is well known, as was observed by Lord Halsbury in Qulnn v. leathem (1900) 1 All ELR (Reprint) page 1 at p. 6, that a 'decision is an authority for what it decides and not logically can be deduced therefrom'.. 50. It is also well known that a judgment of the Supreme Court has to be read in a reasonable manner find like any other documents in its entirety. In Central Coalfields Ltd. v. State of Bihar 1993 BLJR 617 a Division Bench of this Court (of which I was a member) observed as follows : It is also well known that judgment of a court is not to be read as a statute. In General Electric Co., v. Renusagar Power Co. [1987] 3 SCR 858, it was held : As often enough pointed by us, words and expressions used in a judgment are not to be construed in the same manner as statutes or as word and expressions defined in statutes. We do not have any doubt that when the words, 'adjudication of the merits of the controversy in the suit' were used by this Court in State of U. P. v. Janki Saran Kailash Chandra the words were not used to take in every adjudication which brought to an end the proceeding before the court in whatever manner but were meant to ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the Judge who decided the case is a necessary stop towards ascertaining the ratio, but the process by no means ends there, subsequent interpretation is at least as significant, sometimes more so. 'It is not sufficient' said Jessel M. R. That the case should have been decided on a principle if that principle is not itself a right principle, or one not applicable to the case ; and it is for a subsequent Judge to say whether or not it is a right principle, and, if not, he may himself lay down the true principle. 51. In Mohindsr Singh Gill's case (supra), the Supreme Court merely held that Election Commission had the power to issue instructions in relation to a matter which is not covered either under the Constitution of India or the parliamentary legislation enacted in terms of Article 327 thereof. 52. As noticed hereinbefore, the matter relating to requisitioning of the services of any person has been laid down both under the Constitution as also under 1951 Act. Thus the entire field of requisitioning the services of persons stands covered which cannot, therefore, be supplemented by issuing any executive instructions by the Election Commission. 53. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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