Lande Vs. Sanjay Shyamrao Dhotre
CIVIL APPEAL NO(s).
7923 OF 2010
J U D G M E N T
R.M. LODHA, J.
is an Appeal under Section 116-A of the Representation of the People Act, 1951 (for
short "the 1951 Act").
respondent - Sanjay Shyamrao Dhotre - contested the election from Akola Constituency
for the 15th Lok Sabha and was declared elected.
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.
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.
the basis of the pleadings of the parties, the High Court framed 14 issues. The
appellant examined two 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.
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.
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 of Rs. 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'.
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 Roy1 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.
10 of the 1951 Act reads as follows :- "10. Disqualification for office under
Government company.--A person 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."
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 of any company or 1 AIR 2001 SC 296 5 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 of the Corporation. He is neither
managing agent nor manager nor secretary in the Corporation. Section 10 of the
1951 Act is, therefore, not at all attracted in the present case.
102 of the Constitution provides for disqualifications for membership. Article 102(1)(a)
is relevant for the present purposes and it reads as follows :- "102.
Disqualifications for membership.- (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 an office declared by Parliament by law not to disqualify its holder;
b. x x x
c. x x x
d. x x x
e. x x x"
attracting the disqualification provided in 6the 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 Government of India. Is he the holder
of the office under the Government of Maharashtra? Our answer is in the
negative for more than one reason.
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 of profit' under the Government.
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 of pay 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
'remuneration' in the form of pay or commission. It is only a 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
the peculiar features of an elected office of Director in the Corporation do
not bring such office within the meaning of 'office of profit'.
we are satisfied that the view of the High Court does not suffer from any legal
infirmity justifying interference by us in this Appeal.
Appeal is, accordingly, dismissed with no order as to costs.