REGISTERED. No. D.L.—33001/99
PUBLISHED BY AUTHORITY
No. 24]
NEW DELHI, SATURDAY, AUGUST 11, 2001/SRAVANA 20, 1923
Separate Paging is given to this Part in order that it may be filed
as a separate compilation
PART II—Section 3—Sub-section (iii)
Orders and Notifications Issued by Central Authorities (other than the Administrations of Union Territories)
ELECTION COMMISSION OF INDIA
New Delhi, the 24th July, 2001
O.N. 98.—In pursuance of clause (b) of Sub-
section (2) of Section 116 C of the Representation
of the People Act, 1951 (43 of 1951), the Election
Commission of India hereby publishes the judgment
of the Supreme Court of India dated 19th July,
2001 in Civil Appeal No. 3538 of 2000 arising from
the order dated 10-5-2000 of the High Court of
Bihar in Election Petition No. 5 of 1998.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3538 OF 2000
Shibu Soren
Appellant
Vs.
Daynand Sahay & Ors.
Respondents
JUDGMENT
DR. A.S. ANAND C. J. I.
2348 GI/2001—1
(271)
272
THE GAZETTE OF INDIA : AUGUST 11, 2001/SRAVANA 20, 1923 -"[PAM II—SEC. 3(TH)3
Pursuant to a Notification issued by the Election
Commission for filling up seven seats of Rajya Sabha,
nine persons, including the appellant and seven res-
pondents filed their nomination papers, which on
scrutiny were found to be valid.
On the last date
for withdrawal of nominations one candidate with-
drew, thus leaving eight candidates to contest the
election for seven seats.
Polling took place on 18th
June, 1998 and after counting of votes, result was
declared on the same date. Appellant secured the
highest number of votes (43.74) and alongwith res-
pondents 2 to 7 was declared elected.
Respondent
No. 1 was defeated.
Respondent No. 1 herein,
thereupon filed an Election Petition under Section 80
and 81 of the Representation of the Peoples Act, 1951
(hereinafter referred to as the R.P. Act), calling in
question election of the appellant on the ground that
at the time of filling his nomination papers, the appel-
lant was holding "an office of profit" under the State
Government as Chairman of the Interim Jharkhand
Area Autonomous Council (for short 'JAAC'), set
up under the Jharkhand Area Autonomous Council
Act, 1994 (hereinafter the JAAC Act) and was thus
disqualified to contest election to Rajya Sabha.
Respondent No. 1, not only sought setting aside of
the election of appellant but also a declaration to
have been duly elected.
Instead as a member of
the Rajya Sabba.
Election petition was resisted by
the appellant and it was asserted that office of Chair-
man of the Interim JAAC was not an 'office of profit'
or even an 'office' under the State Government and
further that the election petition was barred
from
raising the challenge, for not having raised that
objection at the time of
scrutiny of nomination
papers before the returning officer.
It was vehe-
mently maintained that tho returned candidate had
not been earning any 'profit' and was drawing only
honorarium and allowances to meet his 'out of pocket
expenses' and the office he was holding could not be
ireand as nn 'office of profit' under the State Govern-
ment and, therefore, his ejection was not liable to be
set aside.
According to an additional plea raised by
tho appellant, his disqualification, if any stood re-
moved by Section 3 of the Parliament (Prevention of
Disqualification) Act, 1959 since he enjoyed the status
of a Miair,ter while functioning as Chairman of the
Interim Council.
On 10th May, 2000, a learned designated Judge
of the Patna High Court, allowed the election peti-
tion and set aside election of the appellant. It was
held that the office of Chairman of Interim JAAC
was an 'office of profit' under the State Government
because the payment of honorarium at Rs. 1,750/-
pcr month to the Chairman could not be construed
a i compensatory allowance.
It was also held that
the Chairman of the Interim JAAC held his office
under the State Government and, therefore, disquali-
fication stipulated by Article 102(l)(a) of the Consti-
tution of India was clearly attracted to the appellant's
election.
It was further held that the said disquali-
fication was not saved by the Parliament "Prevention
of Disqualification Act, 1959" on the pleas raised in
the additional written statement which inter alia in-
cluded the plea that as Chairman of Interim Council,
the appellant enjoyed the 'status' and other privileges
of a Minister within the State and hence his disquali-
fication stood removed by Section 3 of Prevention of
Disqualification Act, 1959. Consequently, the elec-
tion of the appellant was declared void and respondent
No. 1 was declared duly elected to Rajya Sabha.
This appoal is directed against that judgement of
the Patna High Court datod 19th May, 2000.
Article 102(l)(a) of the Constitution of India
deals with disqualifications for 'being chosen as'
and 'for being a member of either House of Parlia*
ment' and inter alia provides:
(1) A person shall be disqualified for being
chosen as, and for being, a member of either House
of Parliament.
(A) if he holds any office of profit under the
Government of India or the Government of
any State, other than a office declared by
Parliament by law not to disqualify its holder;
A perusal of the above provision shows that three
elements which are sine qua non for attracting the
above provision are that the person concerned must
hold an office (1) under the Government of India or
any State: (2) the office should be an 'office of profit'
and (3) the office should be other than an office dec-
lared by Parliament by law
not
to disqualify its
holder.
Article
102(1 )(a)
(supra)
corresponds
to Article 191(1 )(a) of the Constitution of India
which lays down similar disqualifications for being
chosen as or for being a member of the Legislative
Council or Assembly of a State.
Both Articles
I02(l)(a) and Article
(9I(l)(a)
were incorporated with a view to eliminate or in any
event reduce- the risk of conflict between duty and
interest amongst members of the Legislature so as to
ensure that the concerned legislator does not come
under an obligation of the Executive , on account of
receiving pecuniary gain or profit from it, which may
render him amenable to influence of the Executive,
while discharging his obligations as a
legislator.
It is in the context of Article 102(1 )(a) (supra) that
we have to examine the meaningful question whether
the appellant in the present case held 'an office of profit'
under the State Government at the relevant time—
the date of scrutiny of nomination papers and whether
that office has not been declared by the Parliament
by law not to disqualify its holder.
To examine this meaningful question let us first
take a panoramic view of the case law on the subject,
273
In Ravabba Subanna vs. G.S. Kaggecrappa,
A.I.R. 1954 S.C. 653, the issue involved was whether
a person holding the position of Chairman of Gubbi
Taluk Development Committee, could be said to be
holding an 'office of profit' under the Government.
During the elections held for Town Municipal
Councillorship of Gubbi in the State of Mysore an
objection was raised at the time of scrutiny of nomi-
nation papers to the nomination of the appellant,
in that case, on the ground that he was holding an
office of profit under the Government (Chairman
of Gubbi Taluk Development Committee) and was
therefore disqualified for being chosen as a Councillor
under Section 14 of the Mysore Town Municipalities
Act, 1951. The objection was overruled and nomi-
nation paper of the appellant was accepted.
After
voting, the appellant was declared elected. The
respondent filed an Election Petition before the
appropriate forum. The Learned Designated authority
dismissed the Election Petition holding that
the
appellant who was drawing a fee of Rs. 6/- per sitting
could not be said to be holding an 'office of prpfit'
under the Government as contemplated by Section
14 of the Act. The High Court of Mysore, accepted
the appeal filed by the respondent and set aside
election of the appellant. Allowing the appeal of the
appellant this Court held that a fee of Rs. 6/- which
the Chairman was entitled to draw for each sitting of
the Committee was neither meant to be payment by
way of remuneration nor could it amount to 'profit';
and that the fee was paid to the Chairman to enable
him to meet "out of pocket expenses which he
has to incur for attending the meetings of the com-
mittee". This Court, accordingly, held the appellant
could not be said to be "holding any office of profit"
under the Government at the material time.
In Maulana Abdul Shakur vs. Rikhab Chand and
another; (1958) SCR 387 a Constitution Bench of this
Court considered the case of a Manager of a School
run by a Committee of Management formed under the
provisions of the Dargah Khwaja Saheb Act, 1955.
The concerned candidate had been appointed by the
Administrator of the Dargah and was being paid a
salary of Rs. 100/- per month. The Government of
India under sections 5 and 9 of the DKS Act, 1955
had
the
power
to
appoint
as
well
as
remove
Members
of
the
Committee
of
Management and power to appoint an Adminis-
trator in consultation
with
the
Committee.
It was found on facts, by the court, that the concerned
candidate was neither appointed by the Government
of India nor was he removable by it. It was also
found that his salary was not fixed or paid by the
Government but that the same was paid out of the
funds of the pargah endowment. In the light of these
facts, the Bench opined that though the appellant
was holding his appointment under a statutory body
appointed by the Government, he could not be
held to be holder of an office of profit under the
Government of India within the meaning of Article
102 (IXa) of the Constitution of India. The Bench
accordingly set aside the judgement of the High Court
which had held the election of the concerned candidate
to be bad on the ground that the concerned candidate
was holding an office of profit under the Government
at the relevant time. This Court observed:
"On the other hand on March 1, 1956, he was
holding his appointment under a Committee
which is a statutory body and such appointment
cannot be called an appointment by or under the
control of the Government of India nor is his
salary paid out of the revenues of the Government
but out of the funds of Durgah Endowment,
In the circumstances the majority of the Tribunal
has erred in holding that the appellant held an
office of profit under the Government and the
opinion of the Chairman to the contrary lays
down the correct position."
In Kanta Kathuria vs. Manak Chand Surana,
(1970) 2 SCR 835, a Constitution Bench of this Court
considered the case of an Advocate, who held an
office of Special Government Pleader under the
Government of Rajasthan to conduct arbitration cases
between the Government and Modern Construction
Company. Her remuneration had been fixed at
at Rs. 150/- per day for each date of hearing, Rs. 75/-
per day for days of travel and dates on which the
case was adjourned as well as for days spent on pre-
paration of the case. She held that office for over
two years. She contested assembly elections in 1967
and was declared elected to the Rajasthan Legislative
Assembly. On her election being challenged, the
High Court held that she was disqualified on the
ground of holding an office of profit under the State
Government, During the pendency of her appeal
in the Supreme Court, the Governor of Rajasthan by
an Ordinance removed the particular 'disqualification'
retrospectively. The Ordinance was replaced by an
Act by the Legislature. Dealing with the
issue
whether the office held by the appellant in that case
could be said to be an office of profit under the State
Government of Rajasthan and the effect of the Act
of the state legislature removing that disqualification.
Sikri, J. speaking for the majority of the Bench
opined:
"it seems to us that the High Court erred in
holding that the appellant held an office. There
is no doubt that if her engagement as Special
Government Pleader amounted to appointment
'
to an office; it would be an office of profit under
the State Government of Rajasthan. The word
'office' has various meanings and we have to see
which is the appropriate meaning to be ascribed
274
THE GAZETTE OF INDIA : AUGUST 11. 20M/$RAVA«A-2Gi 192* LPiUtT II«-SBe 3<iti>>]
to this word in the context. It seems to us that the
words 'its holder' occurring in Act l£l(l)(a),
indicate that there must be an office which exists
independently of the holder of the office. Further,
the very fact that the Legislature of the State has
been authorised by Art. 191 to declare an office
of profit not to disqualify its holder, contemplates
existence of an office apart from its holder. In
other words, the Legislature of a State is empo-
wered to declare that an office of profit of a parti-
cular description or name would not disqualify
its holder and not that a particular holder
of an office of profit would not be disqualified."
and finally held that the appellant was not disquali-
fied to contest the election under Article 191(l)(a)
of the Constitution.
Dealing with the question of removal of disquali-
fication retrospectively by the Rajasthan Legislative
Assembly, the majority also opined that the State
Legislature was competent to declare a certain office as
not to disqualify its holder to contest election to the
State Legislature. Bench repelled the argument that
the impugned Act, i.e., Removal of Disqualification
Act as' enacted by the State Legislature amounted to
amending or altering the Representation of People
Act, 1951. Consequently the appeal
of
Kanta
Kathuria was allowed and judgement of the High
Court Was set aside and election petition of the
respondent was dismissed.
The minority speaking through
Hidayatullah,
C.J., however, held that Ms. Kathuria was holding
an "office of profit" under the State but agreed with
the majority that her disqualification stood removed
by retrospective operation of the Removal of Dis-
qualification Act, which the State Legislature was
'competent to enact'.
In Shivamurthy Swami
vs.
Agadi
Sanganna
Andanappa, 1971 (3) SCC 870, the question under
consideration of this Court was whether a Member of
Koppal Taluk Development Board as well aj a
member of the District Development Council could
be said to be holding an 'office of profit' under the
Government. After analysing the fact situation
besides relevant provisions including provisions of
Article 102(l)(a) of the Constitution and various
precedents of this Court, the Bench opined;
"
Therefore before the provisions of that
Article
can
be
attracted,
it
must
be
established that he
was
holding
an office
under the Union or the State Government
and that
that office
was
an
office
of
profit and thereafter we must see whether the
disqualification relating to that office has been
removed by any Parliamentary legislation. In
other words, the offloe in question must have been
held under a Government and to that sbmd pay,
salary, emoluments or allowance is attached. The
word 'profit' connotes the idea of pecuniary gain.
If there is really a gain, its quantum1 or amount
would not be material; but the amount of money
receivable by a person in connection with the
office he holds may be material in deciding whether
The office really carri es any profit...,".
(Emphasis supplied)
The Bench noticed that the concerned person
Sangappa, became an ex-offlcio member of these
bodies by virtue of his being elected as a member
of the Mysore Legislative Council and therefore
"it could not be said that he was holding those offices
under the Government." The Court further opined
that the allowances paid to the members of the Koppal
Taluk Development Board and District Development
Council were intended to'meet thtir out of pooket
expenses and were in the nature of compensatory
allowances and not "profits". The Court summa-
rised the tests which may be applied to determine
whether an "office" is art office of profit undefr the
State Government thus:
(1) whether the Government makes the appoint-
ment;
(2) whether the Government haS the right to
remove or dismiss the holder;
(3) whether the Government pays the remunera-
tion;
(4) what are the functions of the holder; and
(5) Does the Government exercise any cbntrol
over the performance of those functions'?"
In Karbhari Bhimaji Rohamare vs, Shankar Rao
Gcnuji Kolhe & Ors., (1975) 1 SCC 252, election of
Respondeat No. 1, who was a member of Wage Board
for Sugar Industry constituted by the Government of
Maharashtra under Bombay Industrial Relations Act,
1946, was called in question on various grounds.
In the Supreme Court, however, only ground pressed
was to the effect that the election of first Respondent
in that case was liable to be set aside on the ground
that he was holding 'an office of profit' under the
State Government as 'a member of the Wage Board".
After noticing various provisions of the relevant
statutes, it was held that first Respondent did hold
an 'office under the Government', but that it was not
'an office of profit'.
Reference was made to the notification consti-
tuting the Wage Board as well as to the resolution
appended thereto, which provided that non-official
members of the Wage Board would be paid hono-
rarium at the rate of Rs. 25/- per day for attending
meeting Of the Wage Board and that they would also
be allowed to draw Travelling Allowance and Daily
275
Allowance at the rate prescribed under the Bombay
Civil Service Rules. This Court opinod that mere
drawal of Daily Allowance and Travelling Allowance
could not make membership of the Board, an 'office
of profit' as the drawal of those allowances would
fall within the definition of the expression "Com-
pensatory Allowance". The controversy, however
centred around the question
whether honorarium
payable to the members of the Wage Board could
render that offico as an 'office of profit'.
After
referring to dictionary meaning of the word "hono-
rarium ' and its interpretation in some other judge-
ments, this Court agreed with the learned Judge of the
High Court, who had refused to set aside the election
of the first Respondent, that "the payment of hono-
rarium to the first Respondent, apart from Daily
Allowance and Travelling Allowance, for attending
the meetings of the Board did not amount to the first
Respondent 'making any pecuniary gain thereby'."
It was opined that merely because part of the payment
made to the first Resopndent was called 'honorarium'
it did not lead to a conclusion that it was not meant to
meet daily expenses, and was meant to be 'a source
of profit'. In the words of the Court
" . . . . Merdy because part of the payment made
to the first respondent is called honorarium and
part of the payment daily allowance, we cannot
come to the conclusion that the daily allowance is
sufficient
to meet his daily expenses and the
honorarium is a source of profit. A member of
the Wage Board cannot expect to stay in Taj
Hotel and have a few drinks and claim the expen-
diture incurred, which may come perhaps to Rs.
150 to Rs, 200 a day, for his personal expenses.
In such a case it may well be held to give him at
pecuniary gain. On the other hand he is not
expected to live like a sanyasi and stay in a
dharmshala and depend upon the hospitality of
his friends and relatives or force himself upon
them. Nobody with a knowledge of the expendi-
ture likely to be incurred by a person staying at a
plaoe away from his home could fail to realise
how correct the assessment of the learned Judge
is. We are satisfied that the payments made to
the first respondent cannot be a source of profit
unless he stays with some friends or relatives or
stays in a dharmshala
"
The Court further opined:
"The question has to be Ibokcd at in a realistic
way ...The law regarding the question whether
a person holds an office of profit should be inter-
preted reasonably having regard to the circum-
stances of the oase and the times with which one is
ooncerned, as also the
class of person whose
ca&" tfft are dealing Mtlx and not divorced from
reality. The first rdspo'nddnf did not hold an
office of profit"
(Emphasis ours)
This Court, thus, held that the first respondent in
that case did not hold 'an office of profit' and as such
did not incur any disqualification for being a member
of the legislature.
A two Judge Bench of this Court in Surya Kant
Roy vs. Imamul Hai Khan (1975) 3 SCR 909 dealt
with the case of Chairman of a Board constituted under
the Bihar and Orissa Mining Settlement Act, 1920.
Ho was appointed as Chairman by tho State Govern-
ment from amongst the Members of the Board.
The High Court had held that the returned candidate
in that case, namely the Chairman of the Board,
did not suffer from a disqualification envisaged by
Article 102 of the Constitution. Agreeing with the
High Court, the Court, opined that merely because
returned candidate had been appointed as Chairman
of the Board by the Government from amongst the
Members of the Board, it could not make him a
person holding an office under the Stata Government.
The Court also
held the fact that Government
provided grants to the Board, did not mean that "all
the funds of the Board were Government funds or
Government properties". The Court noticed the
tests' laid down in Shivarhurthy Swami's case (supra)
and observed that the Jovernment did not pay the
remuneration nor did the holder of the office per-
form his functions for the Government arid, therefore,
he could not bo Said to hold an office under the State
Government. The question whether the office was
an 'office of profit', however, left open for want of
material on tho record. The Bench opined:
"The office held by the respondent is held
under a local authority. The holding of an office
of profit in it does not bring about disqualifica-
tion even if that local authority be under the
control of the Government. The more control
of Government over the authority having the
£ower to appoint,
dismiss,
or control
the
working of the officer employed by such authority
doet not disqualify that officer from being a can-
didate for election as a member of the Legislature.
Therefore, the control exercised by the Govern-
ment over the Board in this case does not make
the Board an organ of the Government nor does
it make the respondent a person holding an office
under tho Government It is, therefore, un-
necessary to go into the question whether the
office held by the respondent was an office of
profit, though We may indicate that on the evi-
dence available in this case who have come to
the conclusion that it is not an office 6f profit'
(Emphasis ours)
276
THE GAZETTE OF INDIA : AUGUST 11, 2001/SRAVANA 20, 1923
[PAUT IJt—SEC. 3(iii)]
In Madhukar G.E. Pankakar Vs. Jaswant Chobbi-
das Rajani & Ors. (1977) 1 SCC ,70, the name of the
appellant was included in the list of doctors under the
Employees State Insurance Scheme. He resigned
from his job under BSIS before the date of poll to
the Municipal Election, but after the date of filing
of nomination papers. In challenging his election,
the defeated candidate urged that as a doctor under
the ESI Corporation, the appellant was holding 'an
office of profit'. After a detailed analysis of various
judgments and statutory provisions this Court held
that appellant suffered no such disqualification.
The Court elaborately dealt with the issue of
disqualification on the ground of holding 'an office
of profit' under the State/Central Government and
opined :
"Back to the issue of 'office of profit'. If
the position of an insurance medical officer is
an 'office' it actually yields profit or at least pro-
bably may. In this very case the appellant was
making sizeable income by way of capitation fee
from the medical services, rendered to insured
employees. The crucial question then is whether
this species of medical officers are holding 'office'
and that 'under government'. There is a hap-
hazard heap of case-law about these expressions
but they strike different notes and our job is to
orchestrate them in the setting of the statute.
After all, all law is a means to an end. What is
the legislative end here in disqulifying
holders
of 'offices of profit under government'? Ob-
viously, to avoid a conflict between duty and
interest, to cut out the misuse of official position
to advance private benefit and to avert the likeli-
hood of influencing government to promote per-
sonal advantage. So this is the mischief to be
suppressed. At the same <jne we have to bear
in mind that our Constitution mandates the State
to undertake multiform public welfare and socio-
economic activities involving tehnical persons,
welfare workers, and lay people on a massive
scale so that participatory government may prove
a progressive reality. In such an expanding
situation, can we keep out from elective posts at
various levels many doctors, lawyers, engineers
and scientists, not to speak of an army of other
non-officials who are wanted in various fields.
not as full-time Government servants but as part
time participants in people's projects Sponsored
by Government? For instanoe, if a National
Legal Services Authority funded largely by the
State comes into being, a large segment of the
legal profession may be employed part time in the
ennobling occuptation of legal aid to the poor.
Doctors, lawyers, engineers, scientists and other
oxperts may have to be invited into local bodies,
legislatures and like political and administrative
organs based on election if these vital limbs of re-
presentative government are not to be the mono-
poly of populist politicians or lay members but
sprinkled with technicians in an age which belongs
to technology. So, an interpretation of 'office
of profit' to cast the net so wide that all our citi-
zens with specialities and know how are inhabited
from entering elected organs of public adminis-
tration and offering semi-voluntary services in
par^-official, statutory or like projects run or
directed by Government or corporations control-
led by the State may be detrimental to demooracy
itself. Even athletes may hesitate to come
into
Sports Councils if some fee for services is paid
and that proves their funeral if elected to a pan-
chayat. A balanced view, even if it involves
judicious irreverence' to vintage precedents, is
the wiser desideratum".
In Biharilal Dobray Vs. Roshan Lai Dobray,
(1934) 1 SCC 5i51, the Court orlce again retierated
that a person, who is elected to a legislature should be
free to carry out his duties fearlessly 'without being
subjected to any kind of governmental pressure' and
that Article 19jl(l)(a) is intended to eliminate the
possibility of a conflict between duty and interest with
a view to maintain purity of the legislature and that
relevant provision has to be interpreted in a realistic
manner only so to achieve that objective.
Ashok Kumar Bhattacharyya Vs. Ajoy Biswas,
(1985) 2 SCR 50, was a case concerning an employee
of the Agartala Municipality holding the post of an
Assistant Accountant which carried a pay scale of
Rs. 80-180 per month. At the relevant time that
employee was drawing a monthly salary of Rs, 200,
The Bench opined :
"For determination of the question whether
a person holds an office of profit under the Go-
vernment each case must be measured an judged
in the light of the relevant provisions of the Act.
To make in all cases employees of local authori-
ties subject to the control of Government and to
treat them as holders of office of profit under the
Government would be to obiliterate the specific
differentiation made under Article 58(2) and Article
102(l)(a) of the Constitution and to extent the
disqualification under Article 58(2) to one under
Article 102(l)(a) to an extent no warren ted by the
language of the Article".
The Bench approved the decision of the High
Court holding that the returned candidate in that
case did not bold an 'office of profit' under the Go-
vernment of Tripura on the date of the filing of his
nomination papers.
In SatrucherlaChandrasekhar Raju Vs. Vyricher'a
Pradeep Kumar DeV. (1992) Supp. 1 SCR 408, The
appellant had been appointed es a Single Teacher in
277
a primary school by the Project Officer of the Inte-
grated Tribal Development Agency (TTDA). The
High Court held that the appellant was holding an
'office of profit' and had, thus incurred a disqualifica-
tion envisaged by Article 191 (l)(a) of the Consti-
tution. Setting aside the order of the High Court,
and allowing the appeal it was hold by this Court ;
"What emerges from the above discussion is that
the Government has some control over the ITDA
' which is set up as a project, since it provides funds
and sanctions the posts : the District Collector is
appointed as Project Officer and some officers
are ex-officio members of the ITDA which carries
out the object of providing the compulsory edu-
cation in tribal areas. But the ITDA is a regis-
tered Society having its
own
constitution.
Though the Project Officer is the District Collec-
tor, he acts as a different entity. The power to
appoint or to remove teachers is not with the Go-
vernment but with the Project Officer. The Go-
vernment may have control over the appointing
authority but has no direct control over the tea-
chers. The small post that appellant holds in
ITDA is only that of a Teacher who is directly
under the control of the Project Officer. In
such a situtation the question of any conflict
between his duties and interests as an elected
member docs not arise since, it cannot be said that
he, as a teacher, can be subjected to any kind of
pressure by the Government which has neither
the power to appoint him nor to remove hJm
from service. Taking a practical view of the
substance of these factors into consideration, we
are of the view that the appellant cannot be held
to be holding an office of profit under the Go-
vernment
"
(Emphasis supplied)
From a resume of precedents notioed above we
find that in order to attract disqualification contained
in Article 102(l)(a), a person must not only be holding
"an office" but that office must be "an office of profit"
and should be "under the Government" and sould
be an office other than an office declared by the com-
petent legislature by law, not to disqualify its holder.
The first question which comes to the fore, therefore
is as to when can a person be said to be 'holding an
office of profit' under the Government.
The expression "office of profit" has not been
defined either in the Constitution or in the Represen-
tation of People Act. In common parlance, the
expression 'profit' connotes an idea of some pecuniary
gain. If there is really some gain, its label—'hono-
rarium'—'remuneration'—'salary' is not material—it
is the substance and not the form which matters and
even the quantum or amount of "pecuniary gain" is
not relevant what needs to be found out is whether
the amount of money receivable by the concerned
person in connection with the office he holds, gives to
him some "pecuniary gain", other than as 'compen-
sation' to defray his out of pocket expenses, which
may have the possibility to bring that person under
the influence of the executive, which is conferring
that benefit on him.
With a view to determine whether the concerned
office is an "office of profit", the Court must, how-
aver, take a roalistic view. Taking a broad or genera1
view, ignoring essential details'is not desirable nor is
it permissible to take a narrow view by which tech-
nicality may overtake reality. It is a rule of inter-
pretation of statutes that the statutory provision* are
so construed as to avoid absurdity and to further
rather than defeat or frustrate the object of the
enactment
Courts, therefore, while construing a
statute avoid strict construction by construing the
entire Act. [See with advantage Ashok Kumar
Bhattacharyya vs. Ajoy Biswas and Ors., 1985 (2)
SCR 50; Tinsukhia Electric Supply Co. Ltd. vs.
State of Assam and Ors., 1989 (3) SCC709and Com-
missioner of Income Tax, Bangalore vs. J. H. Gotla,
Yadagiri, 1985 (4) SCC 343]
While interpreting statutory provisions, courts
have to be mindful of the consequences of dis-
qualifying a candidate for being chosen as, and for
being, a member of the legislature on the ground of
his holding an office of profit under the State or the
Central Government, at the relevant time. The
Court has to bear in mind that what is at stake ,s t n e
right to contest an election and to be a member of
the legislature, indeed a very important right in arjy
democratic set up. "A practical view not pedantic
basket of tests" must,, therefore, guide the Courts
to arrive at an appropriate conclusion. A ban on
candidature must have a substantial and reasonable
nexus to the object sought to be achieved, nameJy
elimination of or in any event reduction of possibility
of misuse of the position which the concerned legis-
lator holds or had held at the relevant time. The
principle for debarring holders of office of profit
under the Government from being a Member of
Parliament is that such person cannot exercise his
functions independently of the executive of which
he becomes a part by receiving "pecuniary gain".
Under Article 102(1 )f a), of course, the Parliament
has the jurisdiction to declare an 'office' as not to
disqualify its holder to be a Member of Parliament
and likewise under Article 191(l)(a) the State Legis-
lature has the jurisdiction to declare an 'office' as not
to disqualify its holder to be a member of the State
Legislatures. Moreover, apart from the offico being
an "office of profit", it must also be an office tintfe*
the State or Central Government.
2tt
T«E GAZETTE OF M H A tJUJ&JKr 11, .J2MVJSRAVAHA 20, 1923 [FA*T JWSsc. 3LCutl3
Whop-pap* fierson be said to b* holding ,an office
of profit "under the Government" came up for con-
sideration by this Court in Satrucharla Chandra-
sekhar Raju vs. Vyricherla Pradeep Kumar Dev and
another, 1992 (4) SGC 404, and after examining a
catena of authorities, it was opined i
"On ft careful examination of the ratio laid
down in the above'-mentioned cases some of the
tests oi principles that emerge for determining
whether a person holds an office of profit under
the Government, may be summarised thus :
(1) The power of the Government to appoint a
person in office or to revoke his appointment
at its discretion. The mere control of the
Government over the authority having the
power to appoint, dismiss, or control the
working of the officer employed by such
authority does not disqualify that officer
from being a candidate for election as a
member of the Legislature.
(2) The payment from out of the Government
revenues are important factors in determining
whether a person is holding an office of profit
of not of the Government
Though pay-
ment from a source other than the Govern-
ment revenue is not always a decisive factor.
(3) The incorporation of a body corporate and
entrusting the functions to it by the Govern-
ment may suggest that the statute intended it
to be a statutory Corporation independent of
the Government. But it is not conclusive
on (he question whether it is really so inde-
pendent Sometimes, the form may be that
of a body corporate independent of the
Government but in substance, it may just be
the alter ogo of the Government itself.
(4) The true test -of determination of the said
question depends upon the degree of control
the Government has over it, the extent of
control exercised by very other bodies or
committees! and its composition, the degree
of its dependence on the Government for its
financial needs and the functional aspect
namely, whether the body is discharging any
important Governmental function or just
some function which is merely optional from
tha point of view of the Government "
(Emphasis onrs)
Thus, for dotermioation of the core question, each
case has to be judged in the light of the relevant
provisions of 'he statute and its own peculiar facts,
keeping in view the object of enacting Article lQ2(l)(a)
and 19H1)(4), namely that there should not be any
conflict between dutiqs and interns of an elected
membei to ensure tjmt Vfre concei;td legislature docs
not contain persons who receive benefits from the
executive and may on that account be under its
obligation and thus amenable to its influence while
discharging their legislative functions.
With the view to find out whether in the instant
case, the appellant suffered
any disqualification
as prescribed by Article
102(1 )(a)(supra), it is
desirable to first notice some of the
relevant
provisions of Jharkhand Area Autonomous Council
Act, 1994 (hereinafter JAAC Act, 1994) and the
provisions
under
which
the
Appejlent
was
appointed as 'Chairman' of the 'Interim Council'
of JAAC.
On the basis of certain discussions held on
28th April, 1993, a
tripartite
agreement
was
drawn up on 26-9-1994. It was
agreed that
JAAC should be set up to speed up the process
of plenary development of the area to fulfil the
aspiration of the people of Chhota Nagpur and
Santhal Pargana area.
So far as the constitution of
an
Interim
Council is concerned, clause (xix) of the Agree-
ment provided :
"Till the aforesaid arrangements come into
effect, State Government
may appoint
a
provisional
general
council
comprising
50
per cent from MPs, MLAs, MLCs and
50
per cent from amongst the Jharkhand Move-
ment leaders. The State Government may also
appoint an Executive Committee drawn from
among
these
members.
Such
Provisiona
Council/Committee shall have life of not more
than
six months."
The Chief Minister of Bihar,
one of the
signatories to the tripartite agreement, confirmed
in the said agreement that the State Government
would "expedite and complete" various formali-
ties to bring into existence JAAC and with that
end in view "introduce and seek approval of the
Bihar Legislative Assembly" to the revised Bill
to deal with JAAC.
An Act to
establish
JAAC was thereafter
enacted to provide for "plenary development of
Tribal Area of Chhota
Nagpur and
Santhal
Pargana" view a view to fulfil ambitions of the
people of the area. The JAAC Act, 1994 was to
pome into force with effect from the date as the
State Government may by notification
in the
Official Gazette appoint. This Act incorporated the
substratum of clause Cwx)pf ttie tripartite agreement
(supra) also. We may, at this stage, take note
219
of some, of the - relevant provisions of the Act.
These ase :
"Definitions.—In
this Act,
unless
there
is
anything repugnant in the subject or context:
(a) "Governor" means the Governor of the
State of Bihar;
(b) "The
State
Government"
means
the
Government of Bihar;
(c) "Area" means the area specified in Sub-
section (2) of Section 1;
(d) "Council" means
the Jharkhand Area
Autonomous Council;
(e) "Member" means the members of the
Jharkhand Area Autonomous Council;
(f) "The executive Council" means the executive
Council constituted under Section 20 of
the Act;
(g)
(h) "Act" means the Jharkhand
Area Auto-
nomous Council Act, 1994;
(i) "Rules" means the rule made by the State
Government under this Act;
(j) "Regulations" means the regulation made
by the council under this Act;
(k) "By law" means the by law made by the
Council under this Act;
"
"Section 3. The Constitution of Council.—
(I) The State Government
shall establish an
Autonomous Council for the area of the Council
which shall consist of not more than 162 directly
elected members and not more than 18 nominated
members.
(2) The Council shall be a
body
corporate
which shall have a perpetual succession and a
common seal and right to acquire, hold and
dispose off
movable and
immovable
property
within and without the limits of the Council
Area and it may sue and be sued by the aforesaid
name."
"Section 6. Disqualifications for the member-
ship.—(1) a person shall be disqualified for being
chosen and for being a member of the Council if—
(a) he holds any office
of profit under
the
Government of India, any State Government,
a local body and corporation, Board or
Authority,
Co-operative
Society,
a
company established under the Company
Act, 1956 (Central
Act 1 of 1956) in
which more than 25 per cent has been
contributed in the share capital by any
Government or Governments, other than
an office declared by the Legislature of the
State by law not to disqualify its holder ;
2348 GI/2001—2.
(2) Jf he is or has been elected as a member of
Parliament or a member of
Legislature or the
Chairman of the District Board or the Pramukh of
the Panchayat Samiti or the Mayor of Municipal
Corporation of the Chairman of the Municipality
and is elected as a member of Council and has not
submitted resignation from the membership of the
Parliament or Legislature or from the post held in
the District Board or panchayat Samiti or Corpo-
ration or Municipality within 21 days, he shall
cease to be the member of the Council."
"U. Duration of the Council.—The Council, if
not dissolved earlier under Section 12 shall continue
for five years from the date appointed
for its first
meeting, and no longer and on the expiration of
the said period of the Council shall stand dissolved."
"12. Dissolution
of
the
Council.—(1) The
Governor, after providing a reasonable oppor-
tunity of being heard, may, in his discretion,
dissolve the Council, if he is satisfied that the
Council is unable to perform its functions or is
functioning in such a manner that it may not be
able to achieve its objectives:
(2) On dissolution of the Council, under Sub-
section (1) the new Council shall be constituted
within six months from such dissolution.
Provided that the said period may be extended
for six months by the Governor if circumstances
exists from which he is satisfied
that it is
impracticable to hold election within the
said
period.
(3) In case of dissolution, the Governor shall
appoint an officer not below the rank of Additional
Secretary to the Government of India to exercise
all the powers and to perform all the
duties
of the Council."
"13. Nomination
of
the members
to
the
Council.—(1) The members shall be nominated
to the Council in the following manner :—
(a) Maximum a members of the Legislative
Assembly representing
their
Legislative
Assembly Constituencies of the Area shall
be nominated by the Speaker,
Bihar
Legislative Assembly;
(b) Maximum two members of the Parliament
representing their Lok Sabha Constituen-
cies wholly or mostly of the Area shall be
nominated by the State Government;
(c) Maximum 3 person; having experience of
Public works, urban works, rural develop-
ment on social welfare works and who are
inhabitants ofthe Area, shall be nominated
by the State Government.
280
THE GAZETTE OF INDIA : AUGUST 11, 2001/SRAVANA 20, 1923
[PART II—Sue. 3(iii)]
(2) The nomination of the members under clause j
(a) and (b) of Sub-section (1) shall bo for two years
or till the duration of the Council, whichever is ear-
lier :
Providod that on cessation of membership of
Legislative Assembly or Lok Sabha before expiry
of the period of nomination his membership of the
Council shall automatically c;ase with effect from
the date of cessation as member of Legislative Assem-
bly or Lok Sabha as the case may be.
(3) The nomination of mombors under Clause
(c) of Sub-section 0) may be upto the duration of
the Council :
Provided that they shall not have the right to
vote.
(4) The members of the Council may be re-norm-
natod."
"15. The Chairman of the Council. (1) The
Council shall have a Chairman who shall be a member
of the Scheduled Tribes.
(2) Tho Chairman shall be elcctod by the elected
members of the Council from amongst them.
(3) The State Government may nominate any
elected member as Presiding Officer for the election
of tho Chairman who may determine the procedure
for election."
"17. Vacancy, resignation and removal from
the office of Chairman.—The member holding the
office of the Chairman of the Council.
(a) if ceases to be an elected member of the
Council, he shall vacate his office;
(b) may tender his resignation in writing under
his hand addressed to the VioChairman at
any time; and
(c) may be removed from his office by a reso-
lution passed by the majority of the elocted
meiribe;s of the Council at that time:
Frovjded that no resolution of the purpose of
clause (c) shnll be proposed until a prior notice of
at le^st fourteen days intending to move the proposed
resolution is given,"
"23. Constitution of interim Council and Interim
Executive Council.—
(1) The State Government before constitution
of the Council under Section 3, may constitute an
Interim Council.
(2) The State Government shall nominate 50 per
cent members of the Interim Council out of its total
membership from the members of the Lok Sabha
and the Legislative Assembly representing the consti-
tuency which lies wholly or mostly in the Area and
from the members of tho Rajya Sabha and Legis-
lative Council, who arc the inhabitants of the Area
and the remaining 50 per cont members shall be
nominated from amongst the persons who are in-
habitants of the Area and have interest in its deve-
lopment.
(3) The State Government shall nominate the
Chairman and the Vice-Chairman of the Interim
Council:
Provided that the member of the Schedule Tribes
can only be nominated as the Chairman.
(4) The State Government shall constitute an
Interim Executive Council from amongst the mem-
bers of the Interim Council.
(5) The Chairman and the Vice-Chairman of the
Interim Council shall be Ex-Officio Chief Executive
Councillor and Vice-Chief Executive Councillor,
(6) The duration of the Interim Council and the
Interim Executive Council shall be for 6 (revised
to 18) months or till the constitution of the Council
undor Section 3 whichever is earlier.
(7) The Chairman and the Vice-Chairman of
the Interim Council and the members of the Interim
Executive Council shall hold their office during the
pleasure of the State Government."
"26. Honorarium and Allowances to the Chair-
man, Vice-Chairman and Members.—(1) Honora-
rium worth Rs. 1,750, Rs. 1,250 and Rs. 1,000 per
month shall be payable to the Chairman, Vice-
Chairman and the Members of tho Executive Council
respectively.
(2) Save as under clause (1), honomrirum of Rs.
750 per month shall be payable to the remaining
mombers.
(3) The Chairman, the Vice-Chairman and the
members of the Executive Committee shall be paid
daily allowance at the rate of Rs. 150 per day for
the period spent outside the headquarters for the
work of Council and other members shall be paid
daily allowance at the rate of Rs. 125 per day for
taking part in the moetings of the Council.
(4) On a tour undertaken by tho Chairman the
Vice-Chairman and the.Members of the Executive
Council for the works of the Council and by tho
members of the Council to attend the mooting of the
Council, a first class or Air-conditioned 2 tier railway
fare which has actually been paid, shall be payable:
Provided that on journey by air undertaken for
the works of the Council by the Chairman and the
Vice-Chairman, the fare actually paid, shall be pay-
able."
281
"29. Powers and Function of the Council.—(1)
The Council shall have the following powers and
functions relating to the development of the Area;—
(a) to prepare long-term and short-terms plans
for all-round development of the Area;
(b) to consider the preparation and execution
of projects relating to development of the
Area;
(c) to formulate the projects relating to the Area;
(d) to co-ordinate, superviso and review the
projects of the Area;
(e) to suggest measuros for acoelerated dovolop-
ment of the Area;
(2) The Council may ply passenger bus services
in the Area.
(3) Subject to the general guidelines of the State
Government, the Council shall have the following
riowers and functions on the subjects specified in
Schedule 3;—
(a) to fix priority and prepare plans for develop-
ment programmes;
(b) to formulate projects;
(c) to sanction projects;
(d) to get projects exocuted;
(e) to sanction Central Plans relating the Area
and to got it executed;
(f) to review, supervise, co-ordinate and monitor
the projects."
"30. Supervisory powers and functions of the
Council.—(1) The Council shall have such super-
visory powers and functions with respect to non-
devolopmental and regulatory subjects specified in
schedule 3 as may be prescribed, for public purposes,
by the State Government in consultation with the
Council.
(2) The Council in its area, may supervise Munici-
pal Corporations, Municipalities, Notified Area
Committees, District Boards, Panchayat Samities
and Gram Panchayats."
"34. Financial powers of the Council.—
(6) The Council may utilize the fund for pay-
ment of pay and allowances of the Chairman, Vice-
Chairman, Members of the Council, Officers and
Staff of the Council Office and on Office expenditure
and the development programmes of the area
including grant to the District boards for different
development plans."
"36. The powers and functions of Interim Coun-
cil and Intorim Executive Council. Unless the con-
text otherwise requires or is not relevant or specially
otherwise provided; the provisions relating to the
Council and the Executive Council, shall be deemed
to apply to the Interim Council and Interim Execu-
tive Council as the case may be."
"42. Direction by the State Government. The
Council in the discharge of its functions, shall be
guided by such direction on policy matters as may
be given to it from time to time by the State
Government."
Learned counsel for the parties appearing before
us did not dispute that the appellant by virtue of
his nomination as Chairman of interim JAA Council
by the State Government held 'an office', which
existed independently of its holder. However, they
were seriously at variance as to whether the office
hold by the appellant could be said to bo "an office of
profit" as also whether it could be said that the office
of Chairman of Intorim Council is "an office under
the State Government". We shall separately consi-
der the issue whether the concerned office had been
declared by the competent legislature as not to
disqualify its holder.
The question whether a person holds an office of
profit, as already noticed, is required to bo interpreted
in a realistic manner having regard to the facts and
circumstances of each case and relevant statutory
provisions. While 'a strict and narrow construction'
may not be adopted which may have the effect of
'shutting off many prominent and other eligible
persons to contest the elections' but at the same time
'in dealing with a statutory provision which imposes
a disqualification on a citizen it would be unreason-
able to take merely a broad and general view and
ignore the essential points'. The approach which
appeals to us to interpret the expression 'office of
profit', is that it should be interpreted with the fla-
vour of reality bearing in mind the object for enact-
ment of Article l02(l)(a) namely to eliminate or in
• any event to reduce the risk of conflict between the
duty and interest amongst members of the legislature
by ensuring that the legislature does not have persons
who receive benefits from the Executive and may thus
be amenable to its influence.
Now to some factual matrix in the present case.
The appeallent was admittedly holding an office
of Chairman of the Interim JAA Council when he
filed his nomination paper for election to Rajya
Sabha. He belonged to the Scheduled Tribes and
had been nominated as Chairman of the Interim JAA
Counoil, by the State Government. He held his
office 'at the pkasure' of the State Government.
Appellant has also admitted in his statement in the
High Court that as Chairman of the Interim Council
he was receiving:
(1) An honorarium of Rs, 1750 per month;
282
THE GAZETTE OF INDIA : AUGUST 11. 2001/SRAVANA 20, 1923
[PART II—SEC. 3 (HI)]
(2) Daily allowance at the rato of Rs. 150 per
day for the period spent outside the head-
quarter bosides travelling expenses as pres-
cribed ;
(3) Daily allowance at tho "rate of Rs. 120 per
day for attending meetings of the Intorim
Council;
(4) Furnished rent free accommodation (quarters);
and
(5) A car with Driver.
That receipt of daily allowance at the rate of
Rs. 150 per day for the period spent outside his head-
quarters and Rs. 120 per day for attending meetings
of the Interim JAA Council by the appellant, is in its
very nature only compensatory allowance. Intended
to meet out of pocket expenses, was not disputed
by learned counsel for the parties either in the High
Court or even before us and in our opinion rightly so.
The serious controversy, however, revolves around
tho nature of payment of Rs. 1,750 per month as
"honorarium" to the appellant as also whether the
'office' hold by the Chairman of the Interim JAA
Council was an "office under the State Govern-
ment".
Does the receipt of "honorarium" at the rate of
Rs. 1,750 per month by the appellant, bosides other
allowances and porquisitos, amount to causing any
"pecuniary gains" tc the appellant?
Mr. Rao, learned senior counsel appearing for
tho appellant is right in hi& submission that payment
of 'honorarium' may not by itself imply payment
of any pay, salary, remuneration or emolumenis to
the appellant. Indeed, "honorarium" is a concept
different than salary or remuneration and its payment
cannot constitute an "oflffice of profit" unless there
ig some 'pecuniary gain' for 'ho recipient. However,
for what follows we are unable to agree with hi;n that
the payment of honorarium., in the established facts
and circumstances of the case, did not amount to
giviag 'pecuniary gains' or 'profiti' to the appellant.
The word 'profit' for the purpose of Article 102
(l)(a) or Article 191 "connotes an idea of pecuniary
gain", though neither the lable under which it is
paid nor the quantum of the amount may always be
material to determine the issue. In ths instant case,
the appellant on his own admission wa.; to receive
Rs, 150/- per day as allowance for porformiag work
of the interim Council outside the headquarters and
Rs. 120/- per day for the days of sitting of the Council,
These amounts, in our opinion, were intended to
meet out of pocket expenses of the appellant and
were in the nature of compensatory allowances and
were not a source of profit. Payment of Rs. 1,750/-
pcr month as honorarium was in addition
to
the aforesaid
allowances. In Karbhari
Bhimaji
Rohamaro's case (supra) his Court opinod that a
person reciving an honorarium of Rs. 25/- per day
besides travelling and daily allowances could not bo
said to be making any pecuniary gain nor could it
become a 'source of profit' for 'he concerned person,
unless he s^ays "with soma friends or relatives or
stays in a dhararashala
" Indord, those obser-
vations were made taking a realistic view of the matter
based on the fact situation in that case. In the
present case, besides the receipt of daily allowances
and as admitted by him, also been provided with
rent free accommodation besides honorarium the
appellant had a car with a driver at State expense.
Keeping in view these facilities, the payment of an
additional amount of Rs. 1,750/- per month as an
honorarium was, under the circumstancts, clearly
in the nature of giving some pecuniary gain to the
appellant and was not intended to empensate the
appellant for his out of pocket expenses. In various
precedents relied upon by learned counsel for the
pa:ties before us and referred to by us in an earlier
part of this judgement, the element of providing
rent free accommodation and a chauffeur driven
car at the State expense in addition to "honorarium"
and other allowances to the concerned person was
not involved. These are relevant factors. The grant
of honorarium of Rs. 1750/- per month besides other
perquisites, granted by the State Government to its
own nominee, in addition to the payment of daily
allowances, to meet out of pocket expenses, does
bring in an element of granting 'profits* to the
appellant. He certainly can be said to have made
pecuniary gain out of the payment of honoraiiura
of Rs. 1,750/- per month. It is not possible to construe
the payment of Rs. 1,750/- per month, to be payment
in the nature of "compensatory allowance". While
construing the true nature of "honorarium", the grant
of other perquisites cannot be overlooked or ignored.
The 'honorarium' receivable by the appellant at
the rate of Rs. 1,750/- per month, besides other
'allowances' and 'perquisites' was surely not in the
nature of gratuitous payment, voluntary donation or
compensation to meet any out of pocket expanses.
It was in the nature of 'remuneration' and was a
source of 'pecuniary gain'. The receipt of hono-
rarium at the rate of Rs. 1,750/- per month, besides
daily allowances, rent free accommodation and a
chauffeur driven car at the State expense, to the
appellant was a benefit capable of bringing about a
conflict between the duty and interest of the appellant
as a member of Parliament—the precise vice to which
Article 102(l)(a) is attracted.
We are, therefore, in the established facts and
circumstances of the case, in agreement with tho High
Court that the appellant, a§ Chairman of the Interim
283
JAA Council was in receipt of pecuniary gain in the
form of honorarium and ho thus, held an "office
of profit". This now takes us to the next question.
Did the appellant hold this 'office of profit' as
Chairman of interim JAA Council "under the State"?
The term 'interim Council' has not boon defined
under the JAAC Act though provision for its consti-
tution, based on clause (xix) of the Tripartite Agree-
ment has been made in Section 23 of the Act. The
JAAC Act essentially deals with setting up of a
regular council its composition, jurisdiction and status
etc. so as to replace Chotta Nagpur and Santhal
Pargana Development Authority, with a view to
ensure accelerated plenary development of the area
through elected representatives (see objects and
reasons of JAAC Act). As already noticed paragraph
(xix) of the Tripartite Agreement dated 26-9-1994
(supra), provided for apponitment of a provisional
general council by the State Government to act as a
body to facilitate setting up of a Regular Council
under the JAAG Act. This provisional council was,
obviously, to act as a limb or agency of the State
Government, charged with the specific task of faci-
litating the setting up of a Regular Council under the
JAAC Act. Vide sub-section (2) of Section 23, it is
the State Government which alone shall nominate
50 percent members of the interim council out of its
total membership from the members of Lok Sabha
and the Legislative Assembly representing the consti-
tuency which lies wholly or mostly in the Area and
from the members of Rajya Sabha and Legislative
Council who are inhabitants of the area. Remaining
50 per cent members were also to be nominated by tho
State Government from amongst perams who arc
inhabitants of the area and have an interest in its
development. Thus, we find that an Interim JAA
Council contemplated by JAAC Act was to consist
only of nominees appointed by the State Government,
who were to hold their office 'at the pleasure of the
State Government1 [Section 23(7)]. No clement of
election is involved in the Constitution of Indian
Council at all. The obligation to set up the Regular
Council, as per the tripartite agreement and confir-
mation made by Chief Minister of Bihar, was that of
the State Government, The State Government could
discharge that function through any of its agencies
or departments. The State Government, proposed
the Constitution of an Interim Council to discharge
its obligations and provided for its composition as
well as the manner of appointment and their conti-
nuance in oflice of the members under Section 23(2)
j>f the JAAC Act. Section 23(3) of the Act provided
that the State Government shall nominate the
Chairman and Vlco-Chainnan of tfw Intenn-Cbuncfl
with a rider that only a member of the Scheduled
Tribes could be so nominated. The Chairman and
members were to hold office "at the pleasure of th«
State". Thus, the power and jurisdiction to appoint
(nominate) or remove Chairman of the Interim JAA
Council, is vested exclusively in the State Govern-
ment. Vide Section 23(4) of the Act, the State
Government has the exclusive jurisdiction to consti-
tute an Interim Executive Council from amongst its
nominees of the Interim JAA Council. The members
of the Interim Executive Council are also to hold
their office during the pleasure of the State Govern-^
ment. The disqualifications for membership of~tnc
regular council, as envisaged under the JAAC Act
are not attracted to membership of the Interim Council
Because whereas Section 6(2) of JAAC Act disquali-
fies a Member of Parliament as well as a member
of the State Legislature, and members of other speci-
fied bodies, to be a member of the council, unless
he resigns from membership of the legislature or the
local body, as the case may be within 21 days of hii
election there is no such requirement in the case of
interim Council. The provisions of Section 6(2)
is in contra-distinction to the provisions of Section
23(2) of the Act, which mandates the State Govern-
ment shall nominate 50 per cent of the total member-
ship of the interim council from out of the members
of Parliament or tha State Legislature only. The
JAAC Act, therefore, itself drew a clear distinction
between status of the interim JAA Council and the
Regular Council, both in the matter of appointment
as well as of removal of members including Chairman
and Vice-Chairman as also for disqualifications
referred to in Section 6 in so far as the members of the
Regular Council are concerned. Our critical analysis
of the provisions of JAAC Act shows that the Interim
JAA Council, a body comprising exclusively of
Government appointees, holding their office at its
pleasure, was created to act as a limb or agency of the
Government to facilitate smooth creation of Regular
Council under the JAAC Act. Section 23(6) of the
Act provides that duration of the interim Council
was to be for a period of six months /(subsequently
extended to 18 months), subject to the Constitution
of the regular Council under Section 3, whichever is
earlier. This limited life span of the iterim Council
stands to reason when wt consider the composition,
the manner of appointment and tho job entrusted to
th« interim Council. The State. Government not
only had the exclusive
jurisdiction
to
appoint
(nominate) the Chairman of Interim JAA Council
but also power to remove him since under Section
23(7) of the JAAC Act, the Chairman and Vice-
Chainnan of »the Intenn JAA Council, as well as
members of the Interim Executive Council, "shall bold
their office during tho pleasure of the State Govern-
nwnt".
On the o\tm hand, the Chairman and
284
THE GAZETTE OF INDIA : AUGUST 11, 2001/SRAVANA 20, 1923
LPART II—SEC. 3(iii)]
members of Regular Council are governed inter alria
by Sections 3, 6, 11, 12 and 17 of the Act in the
matter of appointment and removal. The State
Government has no role to play either in the appoint-
ment of Chairman of the Regular Council or in his
removal. We are unable to persuade ourselves to
agree with Mr. Rao that the distinction gets almost
obliterated by Sections 36 or 42 of the Act.
Section 36 of the Act deals with the powers and
functions of Interim JAA Council and Interim Execu-
tive Council and commences with the expression
"unless the context otherwise requires or is not
relevant or specifically otherwise provided", the pro-
visions relating to Regular Council and the Regular
Executive Council shall be "deemed" to apply to the
Interim Council or the Executive Council. Thj*
provision cannot affect the potency of Section 23(3)
and (7) of the Act which specifically provides for the
manner of appointment of the Chairman etc of
Interim Council as well as with continuation in
office of the Chairman, and members of Interim
Council "at the pleasure of the State Government"
only. Again, Section 17 of the Act which deals with
"vacBnoy, resignation and removal" of the Chairman
of Regular Council, has no application to the_nomi-
nated Chairman of Interim Council, who holds office
at the pleasure of the State Government under the
specific provision of Section 23(7) of the Act
These
provisions indicate that the legislature while enacting
JAAC Act did not consider Chairman of Interim
JAA Council to be 'at par' with the Chairman of
regular Council. Moreover directions which can be
given to the regular Council by the State Govern-
ment have a limited scope within the meaning of
Section 42 of the Act, but the same is not true of
directions which can be given to-the Interim JAA
Council.
The appellant was nominated (appointed) as
Chairman of the Interim Council by the Stato Govern-
ment by virtue of powers vested in it under Section 23
of the Act. He was to hold the office of the Chair-
man of Interim Council "at the pleasure of the State
Government" vide Section 23(7) of the Act Thus,
not only was the appellant appointed (nominated)
by the State Government, it was the State Govern-
ment which had the right to remove or dismiss the
holder of that office besides controlling the manner
of functioning of the Interim Council and providing
funds for the interim JAA Council out of which
honorarium of Rs. 1,750 per month was paid to the
appellant. It follows that various tests laid down by
this Court to determine whether the appellant was
holding an office 'under the State Government' in-
cluding the decisive test of the power of Government
to appoint the person In ofOoe as well as rovoke his
appointment at its discretion and be responsible for
the expenses, are fully satisfied in the case of the
appellant [ see Shivamurthy Swami Inamdar's case
(1971) as also Guru Gobind Basu vs. Shankar Prasad
Ghosal, AIR 1964 SC 254, with advantage] and,
therefore, we hold that the appellant was holding his
office under the State Government.
Since, we have already found that the honorarium
of Rs. 1,750/- paid to the appellant as Chairman of
Interim Council besides other daily allowances and
perquisites of rent free accommodation and car with
a driver, could not be said to be in the nature of
'compensatory allowances' and was in the nature of
remuneration or salary ineherently implying an
element of "profit" and of giving 'pecuniary gain'
to the appellant, it follows that the appellant was
holding an office of profit under the State Govern-
ment
We must at this stage point out that the facts
situation in Surya Kant Roy's case (supra) as well as
the fact situation in Maulana Abdul Shakur'scase
(supra) were entirely different
Indeed the concerned
person in those cases held office in a statutory body,
but it was found on facts of those cases that neither
he was appointed by the Government nor was he
removable by the Government and also that he did
not perform any function 'for the Government' and
that he was not receiving any remuneration from the
Government either. In Sh'vamurthy Swami's case
(supra) also the essential tests as to whether the
Government paid the remuneration and whether the
concerned person performed his functions for the
Government as also the right of the Government to
appoint and remove him were found missing. In the
instant case the position is entirely different
Till a
regular Council was set up, the funds were provided
for by the Government. As already noticed, task
assigned to the Interim Council was a task which it
was performing for the Government to facilitate the
setting up of the regular Council. The Government,
and not any statutory body, had the right to nominate
(appoint) the Interim JAA Council and its Chairman :
members of the interim JAA Council, including the
Chairman held their office "at the pleasure of the
Government" which also controlled the functions of
the interim Council. Those judgments, therefore,
are clearly distinguishable and cannot come to the
aid of the appellant to hold that in the established
facts and circumstances of this case, he did not hold
an office of profit under the State Government.
Apparently, faced with this fact situation, the
appellant took the plea, in his additional written
statement, and.it.was canvassed before us as also in
the High Court; that even if the office held'by him
285
as Chairman of the interim Council was to be cons-
trued as an "office of profit under the State Govern-
ment", the disqualification provided for under Article
102(l)(a) stood removed by Parliament (Prevention of
Disqualification) Act, 1959, since as Chairman of
Interim Council, he enjoyed the 'status' of a Minister.
The argument was rightly repelled by the High Court
observing that nowhere in the JAAC Act is it pro-
vided that the Chairman of the Interim JAA Council
would enjoy the status of a Minister.
We have no quarrel with the proposition that
holding an office of profit under the Government of
India or under the Government of any State would
be a disqualification only if that office is not declared
by the Parliament by law not to disqualify its holder.
In exercise of this power, the Parliament under Article
102 of the Constitution has exempted some offices
from operation of the disqualification and similarly
under Article 191. State
Legislatures have passed
several enactments exempting some offices
from
operation of this disqualification.
Therefore, before
holding a person disqualified, it will have to be seen
whether that office is not exempted by the competent
Legislature from operation of the disqualification
clause. Articles 102 and 191 both, by explanation,
have clarified that a person shall not be deemed to
hold an office of profit under Government of India
or the Government of any State specified in the First
Schedule by reason only that he is a Minister—either
for the Union or any State. Thus, the disqualifica-
tion, in the case of the appellant, could only be re-
moved by the Parliament, since the membership of
Rajya Sabha was in issue, within the meaning of
Article
102(l)(a). No
such disqualification
was
removed by the Parliament as the JAAC Act has not
been included in the Schedule to the 1959 Act.
The
State Legislature is not competent to remove any
disqualification in respect of a member of Parliament.
Even if it be assumed, though there is no basis or
material to so assume, that the State Legislature or
Government had, by implication removed the dis-
qualification by granting "deemed" status
of a
Minister to the appellant, it had no jurisdiction to
remove the disqualification from which the appellant
was suffering, because it is Membership of the Rajya
Sabha and not of State Legislature which was in issue.
The judgment of the Constitution Bench in Kanta
Kathuria's case (supra) cannot come to the aid of
the appellant because what was upheld in that case
was the jurisdiction of the State Legislature to remove
disqualification in respect of a member of the State
Legislature and not in respect of a member of the
Parliament. The office of Chairman of Interim JAA
Council, as already noticed, has not been exempted
under the Parliament (Prevention of Disqualification)
Act, 1959 and as such the disqualification contained
in Article 102(l)(a) is squarely attracted to the facts
of the present case. The appellant was, thus, rightly
held to have been holding 'an office of profit under
the State Government at the relevant time and thus,
was disqualified to be a member of Rajya Sabha.
The High Court was justified in setting aside his
election and we are not persuaded to taken a contrary
view either.
»
The learned designated Judge of the High Court
after setting aside election of the appellant, declared
respondent No. 1, Shri Dayanand Sahay to be duly
elected to Rajya Sabha relying upon the law laid down
in
Vishwanath Reddy vs. Konappa
Rudrappa
Nadouda, AIR 1969 SC 604. The correctness of
that view of the High Court was not disputed before
us. We, accordingly, also uphold the declaration
made by the High Court in favour of respondent
No. 1.
Thus, this appeal fails and is hereby dismissed.
The parties shall however, bear
their
own
costs
insofar as this appeal is concerned.
Sd/-
CJI
Sd/-
(R. C. LAHOTI). J.
Sd/-
(SHIVARAJ V. PATIL), J.
New Delhi;
July 19, 2001
[No. 82/CS-BR/5/98/2OOO]
By Order,
SHARAN PAL SINGH, Secy.
Printed by the Manager, GovL of IndJ* Frew, Ring Road, New Delhi-110064
and Published oy the CoutroJIer of Publication*, De}hi-110054, 2001
