REGISTERED No. D. 221
The Gazette of India
EXTRAORDINARY
PART II- Section 3- Sub - section ( ii )
PUBLISHED BY AUTHORITY
No. 250] NEW DELHI , THURSDAY , OCTOBER 1 , 1964 / ASVINA 9 , 1886
Separate paging is given to this Part in order that it may be filed as a separate compilation
MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi , the 30th September, 1964
8.0 . 3530. The following Order made by the President is published for general Information.
ORDER
Whereas in a petition dated the 1st January , 1964, addressedto the President of India by Shri V. Narayanasamy , a member of the Legislative Assembly of Pondicherry , functioning immediately before the constitution of the present Legis- lative Assembly , a question was raised as to whether Shri Edouart Goubert , a member of the Assembly so functioning had become disqualified for being such a member by reason of his holding the office of Mayor of Pondicherry Municipality ;
And whereas the opinion of the Election Commission has been obtained on the said question, a copy of which opinion is annexed hereto;
Now, therefore, L, Sarvapalli Radhakrishnan , President of India , in exercise of the powers conferred upon me by section 14 of the Government of Union Terri- tories Act , 1963 ( 20 of 1963 ) , do hereby decide , in accordance with the opinion of the Election Commission, that the said Shri Edouart Goubert had not become dis- qualified for being a member of the Legislative Assembly of Pondicherry func- tioning immediately before the constitution of the present Legislative Assembly by reason of his holding the office of Mayor of Pondicherry .
Sd./- S. RADHAKRISHNAN , President of India .
Rashtrapati Bhavan , New Delhi .
The 28th September , 1964 .
ANNEXURE.
ELECTION COMMISSION , INDIA
Opinion ,
The question whether Shri Edouart Goubert, a member of the Legislative Assembly of Pondicherry , has become disqualified for being such member under
( 951 ) THE GAZETTE OF INDIA EXTRAORDINARY
[PART II- 952
the provisions of sub - section ( 1 ) of section 14 of the Government of Union Terri- tories Act, 1963 , has been raised before the President in a petition addressed to him by Shri V. Narayanasamy, another member of the same Assembly, and in pursuance of sub- section ( 4 ) of the said section , the Election Commission has been asked by the President to give its opinion on the question.
The facts stated in the petition are as follows . Shri Goubert was elected a member of the erstwhile Representative Assembly of Pondicherry in July , 1959 . Subsequently , at the municipal elections held on the 29th October , 1961 , he was elected as a member of the Pondicherry Municipal Council and a few days later he was elected as Mayor of Pondicherry at a meeting of the municipal councillors of that commune . In July 1963 , he was appointed Chief Minister for the Union territory but even thereafter he did not relinquish his office of Mayor . According to the petitioner , the Mayor of Pondicherry Municipal Council receives from the Municipal Council a salary of Rs . 300 per mensem and is also provided with a car . The post is an executive post and all the affairs of the Municipal Council are conducted and controlled by him . Itis urged by the petitioner that in tliese cir- cumstances Shri Goubert is holding an office of profit under the Government of Pondicherry and has , consequently , become disqualified for being a member of the Pondicherry Legislative Assembly .
It has to be mentioned here that the Government of Union Territories Act , 1963 , providing for the establishment of a Legislative Assembly in Pondicherry was enacted by Parliament only last year and was brought into force in the Union territory of Pondicherry on the 1st July , 1963. Section 54 ( 2 ) ( c ) of this Act pro- vided that every person who , immediately before the commencement of the Act , was a member elected from a constituency to filII a seat in the Representative Assembly of Pondicherry shall, on and from such commencement , represent the assembly constituency of the same name in the Legislative Assembly of the Union Territory and accordingly, the Legislative Assembly of the Union Territory shall , without any further action or step being taken in this behalf , be deemed to be duly constituted . The proviso to this sub - section made one single exception ; and that was that a person who , immediately before the commencement of the Act , was a member of the Representative Assembly of Pondicherry but not a citizen of India would not become a member of the Legislative Assembly of Pondicherry .
On receipt of the reference from the President , the Election Commission obtain- ed from the Government of Pondicherry a copy of the law regulating the munici- palities in Pondicherry . This is contained in a Decree dated the 12th March , 1880 , as subsequently amended . The Municipal Council of Pondicherry consists of 18 members , all of whom are elected. Section 3 of the Decree inter alia lays down that "the duties of the Mayor shall be honorary " , presumably meaning that the Mayor will not be entitled to any emoluments for performing his functions . Sec- tion 15 prescribes the manner in which the members of the Municipal Council will elect the Mayor . This election is final and not subject to the approval of the Government or of any other authority. There is , however , section19 which empowers "the Governor " ( now to be construed as a reference to the Lieutenant Governor of Pondicherry ) to suspend the Mayor for a period not exceeding 3 months and to dismiss him. Under section 38 he is "under the control of the Superior Administration " in regard to the performance of certain specified func tions .
The statement in the petition that the Mayor receives a monthly salary of Rs. 300 and a car for his use from the Municipal Council has been ascertained to be incorrect . The Administration has sent a copy of the Municipal Council's pro- ceedings of the 29th May , 1947 , from whichit is clear that what the Mayor does get from the Municipal Council is " Rs . 3,000 per year as entertainment allowance payable in twelve instalments " , or in other words an allowance of Rs . 250 per month .
The question to consider is therefore whether, in the circumstances detailed above , the office of the Mayor of Pondicherry is ( i ) an office of profit and ( ii ) under the Government of Pondicherry . It can be urged that the monthly allowance of Rs . 250 is essentially a compensatory allowance which would just enable the Mayor to meet the heavy expenses of entertainment normally devolv- ing on a dignitary in that position . Even assuming that there might be a small balance left over which is technically sufficient to make the office one of profit , it is clear that the Mayor is not indebted to the Government in any way for secur- ing the office . He is elected Mayor by a body of municipal councillors all of whom are themselves elected by the citizens . In order to become effective , the election does not require the approval or concurrence of the Government. Neither the THE GAZETTE OF INDIA EXTRAORDINARY
SEC. 3 ( ii ) ]
953
power of control over the Mayor vested in the Government , nor even the power of dismissal which would obviously be exercisable only in extreme cases and for good and sufficient reason, would, in my opinion , be sufficient to make an elective office of this type fall in the category of offices under the Government .
The Election Commission accordingly tenders the opinion that Shri Edouart Goubert is not disqualified for being a member of the Legislative Assembly of Pondicherry by reason of his holding the office of Mayor of Pondicherry . Even if it is capable of being regarded as an office of profit by virtue of the allowance attached to it cannot be regarded as an office under the Government .
Sd./ K. V. K. SUNDARAM , Chief Election Commissioner .
New Delhi ,
April 15 , 1964 .
[No. G. II ( POND ) 551/4/64 . ]
HARI SHARMA, Spl . Secy .
30-9-1964 .
PRINTED IN INDIA BY THE GENERAL MANAGER , GOVERNMENT OF INDIA PRESS , NEW DELHI AND PUBLISHED BY THE MANAGER OF PUBLICATIONS , DELHI , 1964 .