TMI Blog1954 (2) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... a Government servant or servants. The appellant was a minister in the State of Orissa. He was nominated as a candidate for the Orissa Legislative Assembly and was later declared to have been elected. One of his rivals was the 1st respondent who filed an election petition challenging the election on a number of grounds, among them, the following. The appellant had filed about two dozen nomination papers. In five of them the proposer was a Government servant and in four the seconder. The 1st respondent stated that this was the first step in a scheme to get the assistance of Government officers in furtherance of the appellant's election and to use and utilse them for the purposes of the election. There were also other allegations wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he former provides that- Any person whose name is registered in the electoral roll of the constituency and who is not subject to any disqualification mentioned in section 16 of the Representation of the People Act, 1950 (XLIII of 1950) may subscribe as proposer or seconder as man nomination papers. as there are vacancies to be filled... According to the latter- The obtaining or procuring or abetting...... by a candidate or his agent or, by any other person with the 'connivance of a candidate or his agent, any assistance for the furtherance of the prospects of the candidate's election from any person serving under the Government of India or the Government of any State other than the giving of vote by such person shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... candidate's nomination. Now, does section 123 (8) contain express provision to the contrary or can such provision be inferred by necessary implication? It is usual, when one section of an Act takes away what another confers, to use a non obstante clause and say that notwithstanding anything contained in section so and so, this or that will happen , otherwise, if both sections are clear, there is a head-on clash. It is the duty of courts to avoid that and, whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise. What exactly does section 123 (8) forbid? It is the obtaining or procuring etc., of any assistance......... other than the giving of vote by such person. Therefore, it is per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r assistance for the furtherance of the candidate's prospects in other ways than by vote, then section 123(8) is attracted, for in that case, the plan, and its fulfillment, must be viewed as a connected whole and the acts of proposing or seconding which are innocent in themselves cannot be separated from the rest. Our conclusion on the preliminary issue may also be supported on another ground. The major corrupt practice referred to in clause (8) of section 123 consists in obtaining or procuring or abetting or attempt to obtain or procure by a candidate or his agent etc., any assistance for the furtherance of the prospects of the candidate's election from any person serving under the Government of India or the Government of any St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the Election Commission with directions to it to reconstitute the tribunal which tried this case and to direct the tribunal to give its findings on all the issues raised and to make a fresh order. Our power to make such an order was not questioned but it was said that when the legislature states that the orders of a tribunal under an Act like the one here shall be conclusive and final (section 105), then we should not interfere. It is sufficient to say that the powers conferred on us by article 136 of the Constitution and on the High Courts under article 226 cannot be taken away or whittled down by the legislature. So long as these powers remain, our discretion and that of the High Courts is unfettered. We wish to record our disa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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