रजिस्ट्री सं. डी. एल. (एन ) 04/0007/2003-05
REGD. NO. D. L. (N ) 04/0007 /2003-05
सममेव जयते भारत का राजपत्र
The Gazette of India
प्राधिकार से प्रकाशित
PUBLISHED BY AUTHORITY
साप्ताहिक
WEEKLY
नई दिल्ली, सितम्बर 2 सितम्बर 8 , 2012 , शनिवार/ भाद्र 11-भाद्र 17 , 1934
सं. 16]
NEW DELHI, SEPTEMBER 2- SEPTEMBER 8, 2012 , SATURDAY/BHADRA 11 - BHADRA 17 , 1934 No. 16]
इस भाग में भिन्न पृष्ठ संख्या दी जाती है जिससे कि यह पृथक संकलन के रूप में रखा जा सके
Separate Paging is given to this Part in order that it may be filed as a separate compilation
भाग II-खण्ड उप-खण्ड ( iii )
PART II Section 3-Sub- section ( iii)
केन्द्रीय अधिकारियों ( संघ राज्य क्षेत्र प्रशासनों को छोड़कर ) द्वारा जारी किए गए आदेश और अधिसूचनाएं Orders and Notifications Issued by Central Authorities (other than the Administrations of Union Territories)
भारत निर्वाचन आयोग
नई दिल्ली , 29 अगस्त, 2012
आ.अ. 29. लोक प्रतिनिधित्व अधिनियम , 1951 ( 1951 का43 ) की धारा 116 ( ग ) की उप - धारा 2( ख ) के अनुसरण में , भारत निर्वाचन आयोग , मुम्बई उच्च न्यायालय के नागपुर बेंच के 2009 की निर्वाचन याचिका संख्या । के निर्णय/ आदेश के विरुद्ध, 2010 की सिविल अपील सं. 7923 में भारत के उच्चतम न्यायालय के दिनांक 30 नवम्बर , 2011 का निर्णय/ आदेश एतद्वारा प्रकाशित करता है ( श्री गजानन समाधान लांडे- याचिकाकर्ता बनाम श्री संजय श्यामराव धोत्रे- प्रत्यर्थी) ।
(निर्णय/आदेश अधिसूचना के अंग्रेजी भाग में छपा है । )
[सं. 82/महा.-लो.स. / 1 /2009 (नागपुर ) ]
आदेश से ,
बर्नाड जॉन , सचिव ELECTION COMMISSION OF INDIA
New Delhi , the 29th August , 2012
O.N. 29. In pursuance of sub - section 2 (b ) of Section 116 (C) of the Representation of the People Act, 1951 (43 of 1951 ) , the Election Commission of India hereby publishes the Judgment/Order dated 30-11-2011 of the Supreme Court of India in Civil Appeal No. 7923 of 2010 against the Judgment/Order of the Bombay High Court, Nagpur Bench in Election Petition No.1 of 2009 . (Sh. Gajanan Samadhan Lande - Appellant V/ s Sh . Sanjay Shyamrao Dhotre - Respondent) .
CIVIL APPEAL NO . 7923 OF 2010
(Election Petition No. 1 of 2009 )
...Appellant Gajanan Samadhan Lande
VERSUS
Respondent Sanjay Shyamrao Dhotre
(103)
3211 GI/2012 104
THE GAZETTE OF INDIA : SEPTEMBER 8 , 2012/ BHADRA 17, 1934
Sir,
Inpursuance of Order XIII , Rule6 , S.C.R. 1966 , I am directed to transmit herewith a Certified Copy of the Judgment dated the 30th November, 2011 in the Appeal above-mentioned . The Certified Copy of the Decree made in the aforesaid appeal will be sent later on.
Please acknowledge receipt .
Yours faithfully,
Sd/- Decree
ASSISTANT REGISTRAR
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO . (S) , 7923 OF 2010
Gajanan Samadhan Lande
[PART II-SEC . 3( iii) ]
witnesses , including himself and tendered documentary evidence . On the other hand , the returned candidate examined himself and one more witness who was Deputy General Manager (Audit) of the Corporation . He also produced documentary evidence in support of his defence.
6. The High Court by an elaborate judgment, on consideration of the evidence on record and on hearing the counsel for the parties , held that the returned candidate was not disqualified to be a member of Parliament either under Article 102 ( 1 ) ( a) of the Constitution or under Section 10 of the 1951 Act .
Appellant(s)
Versus
Respondent( s)
Sanjay Shyamrao Dhotre
JUDGMENT
R.M. LODHA , J.
This is an Appeal under Section . 116 -A of the Representation of the People Act, 1951 ( for short " the 1951 Act") .
2. The respondent Sanjay Shyamrao Dhotre contested the election from Akola Constituency for the 15th Lok Sabha and was declared elected .
3. The appellant a voter in the constituency- challenged the election of the respondent (hereinafter referred to as "returned candidate " ) in the election petition before the Bombay High Court, Nagpur Bench , Nagpur. The invalidity of the election of the returned candidate was sought under Section 100( 1 ) ( a) of the 1951 Act . The appellant avered in the election petition that the returned candidate was disqualified to contest the election as he was holding the ' office of profit ' under the Government company being a Director of the Maharashtra Seeds Corporation (for short " Corporation " ) . Section 10 of the 1951 Act and Article 102 ( 1 ) (a) of the Constitution of India were pressed into service by the election petitioner in this regard .
4. The returned candidate contested the election petition and disputed that he was holding an ' office of profit under the Government . His case was that he was elected as a Director of the Corporation from Growers constituency and the allowances received by him as an elected Director were not in the nature of profit but were paid to him by way of reimbursement of actual expenses . Moreover, the returned candidate was not appointed by the Government nor the Government has any right to remove or dismiss him from the elected office of Director of the Corporation . He also set up the case that the Government has no control over the performance of functions of the elected Director of the Corporation .
5. On the basis of the pleadings of the parties , the High Court framed 14 issues . The appellant examined two 1 AIR 2001 SC 296
7. Mr. Vishaal Jogdand, learned counsel for the appellant , assailed the correctness of the judgment of the High Court and submitted that the returned candidate at the time of nomination and election was holding the office of profit . In this regard , he referred to the allowances received by the returned candidate , namely, Rs . 0.75 Lakh meeting allowance calculated at the rate of Rs . 300/- per day; telephone allowance in the sum ofRs. 2,000/- per month ; dearness allowance paid at the rate of Rs . 100/- for metropolitan cities and Rs . 85/- for other places and also sale of seeds at concessional price. Learned counsel further submitted that the Corporation was a Government company and Government has full control and supervision over the company as well as its directors . Learned counsel also submitted that the returned candidate as an elected Director was entitled to enter into contract with the company and make profit from such contract . He invited our attention to Section 10 of the 1951 Act and Article 102 ( 1 ) ( a) of the Constitution and submitted that the facts clearly demonstrate that the returned candidate was holding the ' office of profit' .
8. On the other hand , Mr. Saurav S. Shamshery, learned counsel for the respondent , stoutly defended the findings recorded by the High Court . He also invited our attention to a decision of this Court in Pradyut Bordoloi Vs. Swapan Roy' in support of his argument that the first and foremost thing that the election petitioner, in a case as the present one , is required to show is whether the Government has appointed the returned candidate and has power to remove him from the office and if the election petitioner has not been able to show that , nothing further is required to be seen .
9. Section 10 of the 1951 Act reads as follows :--
"10. Disqualification for office under Government company. Aperson shall be disqualified if, and for so long as , he is a managing agent , manager or secretary of any company or corporation ( other than a co - operative society) in the capital of which the appropriate Government has not less than twenty - five per cent share. " 105 भारत का राजपत्र : सितम्बर 8 , 2012/ भाद्र 17 , 1934
[ भाग II-खण्ड 3 (iii) ]
sort of reimbursement of the expenses incurred by the returned candidate . Essential condition that office carries remuneration in the form of pay or commission is also not satisfied.
15. Lastly, the peculiar features of an elected office of Director in the Corporation, do not bring such office within the meaning of ' office of profit ' .
16. Thus , we are satisfied that the view of the High Court does not suffer from any legal infirmity justifying interference by us in this Appeal .
17. The Appeal is , accordingly, dismissed with no order as to costs .
10. Section 10 refers to category of persons who shall be disqualified from contesting election , inter alia, of either House of Parliament . These persons are , managing agent, manager or secretary ofany company or corporation (other than a co -operative society ) in the capital of which the appropriate Government has not less than twenty - five per cent share . The Government of Maharashtra admittedly has more than 25 per cent share in the Corporation. The Corporation is , thus , covered by Section 10. However , the returned candidate is an elected Director from the Growers constituency on the Board. ofthe Corporation . He is neither managing agent nor manager nor secretary in the Corporation . Section 10 ofthe 1951 Act is, therefore , not at all attracted in the present case .
Sd-
J.
(R.M. LODHA) 11. Article 102 of the Constitution provides for disqualifications for membership . Article 102( 1 ) ( a) is relevant for the present purposes and it reads as follows:
Sd/-
"102. Disqualifications for membership:
J.
NewDelhi; November30 , 2011
(H.L. GOKHALE) (1) A person shall be disqualified for being chosen as, and for being , a member of either House of Parliament-
[No. 82 /MT- HP/ 1 /2009 (Nagpur )]
ByOrder,
BERNARD JOHN , Secy.
(a) if he holds any office of profit under the Government of India or the Government ofany State, other thanan office declared by Parliament by law not to disqualify its holder;
नई दिल्ली , 3 सितम्बर , 2012
(b) X X X
(c) X X X
(d) X X X
(e) X X
आ.अ. 30. लोक प्रतिनिधित्व अधिनियम , 1950 ( 1950 का 43 ) की धारा 13 क की उप - धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए भारत निर्वाचन आयोग राष्ट्रीय राजधानी क्षेत्र दिल्ली के प्रशासन के परामर्श से एतद्वारा , श्री विजय कुमार देव , आई.ए.एस. (ए.जी.एम.यू.: 87 ) , को उनके कार्यभार ग्रहण करने की तारीख से आगामी आदेशों तक के लिए राष्ट्रीय राजधानी क्षेत्र दिल्ली के मुख्य निर्वाचन अधिकारी के रूप में नामित करता है ।
12. For attracting the disqualification provided in the above provision of the Constitution , a person must be holder of' office of profit' under the Government of India or the Government of any State . The returned candidate is not the holder of any office of profit under the Govermnent ofIndia. Is he the holder of the office under the Government of Maharashtra ? Our answer is in the negative for more than one reason .
2. श्री विजय कुमार देव , आई.ए.एस. , राष्ट्रीय राजधानी क्षेत्र दिल्ली सरकार के अधीन सभी पदभार या किसी कार्य के पदभारों को तत्काल सौंप देंगे या धारण करना समाप्त कर देंगे , जो कि वे ऐसा पदभार ग्रहण करने से पहले धारण कर रहे थे ।
13. In the first place , the returned candidate was holding an elected office and not an office by appointment . The test of appointment is decisive . The Government had nothing to do in the election of Director from the Growers constituency. Moreover, being an elected office , the Government has no power to remove the returned candidate from that office. On this ground alone , it must be held that the returned candidate does not hold an office much less an' office ofprofit ' under the Government .
3. श्री विजय कुमार देव , आई.ए.एस. , मुख्य निर्वाचन अधिकारी , राष्ट्रीय राजधानी क्षेत्र दिल्ली के रूप में कार्य करते हुए राष्ट्रीय राजधानी क्षेत्र दिल्ली सरकार के अधीन किसी भी प्रकार का कोई अतिरिक्त कार्यभार ग्रहण नहीं करेंगे सिवाय इसके कि उनको राज्य सचिवालय में निर्वाचन विभाग के प्रभारी , सरकार का सचिव पदाभिहित किया जायेगा ।
[सं. 154/डी.एल./2012/नि.यो.अ. ]
आदेश से,
सुमित मुखर्जी, सचिव 14. Secondly, one of the essential necessities in determining the question whether the office is an' office of profit' or not is whether such office carries remuneration in the form ofpay or commission. As an elected Director , the amount paid to the returned candidate by way of allowances , by no stretch of imagination, can be said to be 'renumeration ' in the form ofpay or commission . It is only a 106
THE GAZETTE OF INDIA : SEPTEMBER 8 , 2012 /BHADRA 17, 1934
New Delhi , the 3rd September, 2012
O.N. 30.- In exercise of the powers conferredby sub-section( 1) of Section 13A of the Representation ofthe People Act, 1950 (43 of 1950) , the Election Commission of India, in consultation with the Government of NCT ofDelhi , hereby nominates Sh . Vijay Kumar Dev, IAS ( AGMU : 1987) as the Chief Electoral Officer for the State of NCT ofDelhi with effect from the date he takes over charge and until furtherorders .
2. Sh . Vijay Kumar Dev , IAS shall cease to hold and hand over forthwith the charge of all or any charges of
[PART II-SEC. 3( iii)]
work under the Government of NCT of Delhi , which he may be holding before such assumption of office .
3. Sh. Vijay Kumar Dev, IAS while functioning as the ChiefElectoral Officer, NCT of Delhi shall not hold any additional charge whatsoever under the Government of NCT ofDelhi except that he should be designated Secretary to the Government in charge of Election Department in the State Secretariat.
[No. 154/DL/2012 -EPS ]
ByOrder,
SUMIT MUKHERJEE, Secy.
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