M. Ramappa Vs. Sangappa & Ors
[1958] INSC 68 (21 August 1958)
SARKAR, A.K.
AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B.
CITATION: 1958 AIR 937 1959 SCR 1167
ACT:
Election Dispute-Disqualification for being
chosen as member of State Assembly-Hereditary village office-Whether office of
Profit under the Government-Mysore Village Offices Act, 1908 (Mysore 4 of
1908), ss. 6, 7, 8-Representation of the People Act, 1951 (43 of 1951) s.
100(1)(c)-Constitution of India, Art. 191.
HEADNOTE:
The nomination papers of three candidates for
election as members of the State Assembly were rejected by the Returning 1168
Officer on the ground that the first two of them were Patels and the third, a
Shanbhog, of their villages and as such they were holders of offices of profit
under the Government and consequently disqualified from membership of the State
Assembly under Art. 191 of the Constitution of India. The validity of the
election was challenged by some of the electors of the constituency by an
election petition under s. 100(1)(c) of the Representation of the People Act,
1951, on the ground that the nomination papers of the three candidates were
wrongly rejected. It was contended for the petitioners that the candidates in
question were not holders of offices of profit under the Government because (1)
they were holding their offices by hereditary right and not under the
Government, and (2) there was no direct payment of their dues by the
Government. It was not disputed that village offices are governed by the Mysore
Village Offices Act, 1908, and it was found that Patels and Shanbhogs were
holding their offices by reason of the appointment by the Government, though in
certain cases the statute gave the heir of the last holder a right to be appointed
if the statutory requirements were fulfilled, that they worked under the
control and supervision of the Government and were removable by it, and that
their remuneration was paid by it out of its funds and assets :
Held, that the holder of a village office
though he may have a hereditary right, does not get the office till he is
appointed by the Government under whom the office is held.
Accordingly, Patels and Shanbhogs are holders
of offices of profit under the Government and their nomination papers were
rightly rejected by the Returning Officer.
CIVIL APPELLATE JURISDICTION' Civil Appeal
No. 251 of 1958.
Appeal from the judgment and order dated
February 26, 1958, of the Mysore High Court in Misc. Appeal No. 142 of 1957.
R. Patnaik, for the appellant.
S. K. Venkatranga Iyengar and N. Keshava
Iyengar, for the respondents.
1958. August 21. The Judgment of the Court
was delivered by SARKAR J.-The question for decision in this appeal is whether
certain persons were holders of offices of profit under the Government and were
therefore disqualified under Art. 191 of the Constitution, for being chosen as
members of a legislative assembly. It 1169 arises out of a petition presented
under the Representation of the People Act, 1951, for a declaration that the election
of the appellant was void.
The election with which the case is
concerned, was held on March 8, 1957, for choosing members for the Mysore State
Legislative Assembly. One of the constituencies for the purposes of election to
that Assembly was known as Harihar.
The nomination papers filed by three persons,
namely, Hanumanthappa, Siddappa and Guru Rao for election from that
constituency were rejected by the Returning Officer on the ground that the
first two of them were Patels and the third a Shanbhog of certain villages in
Mysore and as such they were all holders of offices of' profit under the Mysore
Government and consequently disqualified from membership of the Assembly' under
Art. 191. As a result of this rejection two candidates were left to contest the
election and the appellant, who was one of them, was declared elected as he
obtained the larger number of votes at the poll. Six electors of the Haribar
constituency then filed the election petition for a declaration under s. 100
(1)(c) of the Representation of the People Act, 1951, that the election of the
appellant was void on the ground that the nomination papers of Hanumanthappa,
Siddappa and Guru Rao had been improperly rejected. If the rejection was
improper the petition would have to be allowed. The appellant was the sole
respondent to that petition. It was alleged in the petition that Patels and
Shanbhogs were hereditary village officers and therefore were not holders of
offices of profit under the Government. It was said that they were really
representatives of the village community, and only acted as agents of that
community or as liaisons between it and the Government, and that in any event
they were not holders of offices of profit because the amount of money
receivable by them in respect of their offices was very small and out of all
proportion to the work done by them. The petition was dismissed by the Election
Tribunal by its order dated September 10, 1957. It held that the conditions of
service of Patels and Shanbhogs were regulated by 1170 the Mysore Village
Offices Act, 1908, and that the mere fact that offices of Patels and Shanbhogs
were hereditary was not by itself sufficient to establish that they were not
offices under the Government. It also held that Hanumanthappa, Siddappa and Guru
Rao were in receipt of considerable remuneration and were, therefore, holding
offices of profit.
The six petitioners then appealed to the High
Court of Mysore. The High Court by its judgment, dated February 26, 1958,
allowed the appeal and held that the offices of Patels and Shanbhogs were not
offices under the Government. The election of the appellant was thereupon
declared void. It is from this judgment that the present appeal to this Court
has been taken with a certificate granted under Art. 133(1)(c) of the
Constitution. One of the six petitioners being dead, the remaining five are the
respondents in this appeal.
There is no dispute that Hantimanthappa and
Siddappa held the offices of Patels and as remuneration for their services
lands had been allotted to them and provision for cash allowances made.
Likewise it is not disputed that Guru Rao was a Shanbbog and had cash
remuneration provided to him for his services. It is also clear and not
challenged that Patels and Shanbhogs have specific duties to perform and are
holders of offices. The only point for determination in this appeal is whether
they are holders of offices under the Mysore Government.
The contention of the learned Advocate for
the respondents is that Patels and Shanbhogs are not holders of offices under
the Government. He said that their offices were recognised by the old customary
law and devolved by hereditary succession. According to him under that law
these offices were held under the village community and the officers acted as agents
of that community to pay the revenue of the village to the authority entitled
to it and formed the liaisons between that community and the authority. He
contended that under the Mysore Land Revenue Code, 1888, the Government could
appoint Patels and Shanbhogs only where there were no hereditary Patels and
Shanbhogs. He said that as Hanumanthappa and 1171 Siddappa were admittedly
hereditary Patels and Guru Rao, a hereditary Shanbhog, they could not have been
holding offices under the Government. He contended that the Mysore Village
Offices Act was a consolidating Act and it did not alter the hereditary right
to the offices but maintained the old law. According to him being hereditary,
these offices were not held under the Government.
Village Offices are now governed by the
Mysore Village Offices Act, 1908. The election petition proceeds on this basis
and both the Courts below have so held and the contrary has indeed not been
contended in this Court. The Act itself mentions the offices of Patels and Shanbhogs
as " Village Offices " within it and puts the matter beyond all
doubt. The Act, no doubt, recognises a hereditary right to village offices to
some extent and a larger hereditary right to the offices is not claimed for
Hanumanthappa, Siddappa or Guru Rao. A consideration of the customary law of
the Madras Land Revenue Code is, therefore, unnecessary.
The question then is, what is the effect of
the provisions of the Mysore Village Offices Act dealing with the hereditary
right to the offices ? First, there is s. 6 under which when two or more
villages or portions thereof are grouped together or amalgamated to form a new
village, or one village is divided into 2 or more villages, the old village
offices cease to exist and new offices have to be created. In choosing persons
to fill such new offices the Government has to select the best qualified from
among the last holders of the offices which have ceased to exist or the members
of their families. In these -cases obviously no full hereditary right to the office
is recognised, for the offices which have ceased to exist may have been held by
members of different families. All that s. 6 says is that the new appointment
shall be made from amongst these families. So it is possible under this section
to appoint to an office a person who is not the heir of the last holder of the
office abolished. The important section, however, for the purpose of a
hereditary right to the 149 1172 office is s. 8 which provides for filling up a
vacancy occurring in the office of a Patel or a Shanbhog. Subsection (1) states
that certain persons shall not be eligible for the office. It is there provided
that a person who has not attained majority or does not possess requisite
physical or mental capability, or the prescribed educational qualification, or
has been convicted by a criminal court for an offence which, in the opinion of
the prescribed officer, disqualifies him for holding the office, or has been
adjudged by that officer after an enquiry as prescribed, to be of general bad
character, shall not be eligible for appointment. Sub-section (2) provides that
succession in the case of a permanent vacancy shall be regulated by the
ordinary provisions of the personal law applicable to the last bolder, provided
that it shall devolve on a single heir and that where there are more persons
than one who would under the ordinary provisions of that law be entitled to
succeed to the last holder of the office, preference shall be given to the
eldest member of the eldest branch among those persons. This would seem to
create a right in the heir of the deceased holder of an office to succeed to
him.
This right, however, is not an absolute right
for he cannot be appointed if he is not eligible under sub-s. (1) nor where the
prescribed officer has declared under s. 7 (v) in dismissing any holder of
office, that the dismissal would entail a forfeiture of the right of succession
of all the undivided members of his family. This is all the hereditary right to
an office that is provided by the Act.
Let us, however, ignore the restriction,,; on
the hereditary right to the office mentioned in the Act and assume that the
eldest heir in the eldest branch of the last holder of it, is entitled to
succeed to the office when he vacates it.
The question is, does this make the office
one not under the Government ? The learned Advocate for the respondent
contended that it did and this contention has been accepted by the High Court.
The learned Chief Justice in his judgment said " can the Government
prevent him from succeeding to the permanent vacancy ? Such a person gets to
1173 that post not because he is appointed by the Government but by his own
rights." He also supported his view by referring to Mangal Sain v. State
of Punjab (1) where it had been held that the mere fact that the Government has
under a statute a hand in the appointment and dismissal of the Executive
Officer of a Municipality, does not make him its servant.
We think this view is untenable. It overlooks
the fact that the heir of the last holder does not get the office till lie is
appointed to it by the Government. The statute, no doubt, gives him a right to
be appointed by the Government in certain cases. None the less, it is the
appointment by the Government that perfects his right to the office and makes
him the officer; without such appointment he does not hold the office. The
Government makes the appointment to the office though it may be that it has
under the statute no option but to appoint the heir to the office if he has
fulfilled the statutory requirements. The office is, therefore, held by reason
of the appointment by the Government and not simply because of a hereditary
right to it. The fact that the Government cannot refuse to make the appointment
does not alter the situation.
If this were not so, the result would be
curious. Ail office has to be held under someone for it is impossible to
conceive of an office held under no one. The appointment being by the
Government, the office to which it is made must be held under it for there is
no one else under whom it can be held. The learned Advocate said that the
office was held under the village community. But such a thing is ail impossibility
for village communities have since a very long time, ceased to have any
corporate existence. The case of Mangal Sain v. The State of Punjab (1) does
not assist for there, there was the Municipality under which the office could
be held though appointment to it was made by the Government.
The learned Advocate for the respondent
contended that there are certain other sections of the Act which support his
contention. First, we were referred to (1) A.I.R. 1952 Punj. 1174 s.11 which
gives a person entitled to an office under s.8 of the Act a right to sue before
the prescribed authority for it or for the recovery of its emoluments. We are
unable to see that this section advances the matter further. It only shows that
a person has a right to be appointed. That, however, as we have earlier stated,
is not enough. The right alone does not make him the officer. He must actually
be appointed to the office and upon such appointment he comes to hold it under
the Government. We were also referred to s. 8, sub-s. (4) which provides that
when the heir of the last holder of an office who would otherwise be entitled
to succeed to it is a minor, the prescribed officer shall register him as a
successor of the last holder and appoint some other qualified person to
discharge the duties of the office during his minority. This provision is
equally unhelpful. The minor is only registered as a successor and on
attainment of majority or within three years thereafter if lie is qualified
under the Act, he can be appointed to the office. In the meantime lie is not
appointed to the office nor does lie hold it. Here again it is only on appointment
after attainment of majority that the erstwhile minor heir comes to hold the
office. We, therefore, come to the conclusion that though there may be a
hereditary right to hold an office, it is not held till an appointment to it is
made by the Government and that there is no one except the Government under
whom the office can be held.
We have so far dealt with the provisions of
the Act concerning appointments. We will now turn to those dealing with
dismissal from office and other forms of punishment.
Section 7 of the Act gives the prescribed
officer of the Government, power to suspend, dismiss or remove any holder of a
village office on any of the grounds mentioned in it.
There is no other power of dismissal given by
the Act. It is said that this shows that the office is not held under the
Government for if it were so, the officer would be liable to dismissal at the
pleasure of the Governor under Art. 310 of the Constitution. This argument was
accepted by the High Court but it seems to us to lack in substance.
1175 The argument assumes that because of s.
7 of the Act, the holder of a village office is. not liable to be dismissed at
the pleasure of the Governor. We think it unnecessary in this case to decide
whether this assumption is justified or not and will proceed on the basis that
it is the correct view of the position. But does it follow that because a
village officer cannot be dismissed at the pleasure of the Governor, he does
not hold office under the Government ? It has been recognised that a statute
may prevent an officer of the Government from being dismissed at its pleasure.
That is what happened in Gould v. Stuart (1) referred to by the Judicial
Committee in R. Venkata Rao v. Secretary of State for India (2). In Gould v.
Stuart (supra) it was said, that " It is the law in New South Wales as
well as in this country that in a contract for service under the Crown, civil
as well as military, there is, except in certain cases where it is otherwise
provided by law, imported into the contract a condition that the Crown has the
power to dismiss at its pleasure: Dunn v. Reg; De Dohse v. Reg (3). The
question then to be determined is, Has the Civil Service Act, 1884, made an
exception to this rule ? ", and it was held that it had. In the result it
was held that the respondent who had entered the service of the Government of
New South Wales under and in accordance with the, provisions of the Civil
Service Act, 1884, was not liable to be dismissed at the pleasure of the Government
because of these provisions. We do not say anything as to whether the principle
of Gould V. Stuart (1) will apply to our country in view of the, constitutional
provision contained in Art.
310. Such a question has not been argued at
the bar and does not require to be decided in this case. If the principle of
that case does not apply, then the village officer, if he is a servant of the
Government, is liable to dismissal it its pleasure, in spite of s. 7 of the Act
and if it does, then the fact that he is not liable to such dismissal does not
prove that he does not hold office under the Government.
It would thus appear (1) [1896] A.C. 579. (2)
(1936) L.R. 64 I.A. 55.
(3) [1896] 1 Q.B. 117, n. (7).
1176 that the fact that an officer is not
liable to dismissal at the pleasure of the Government does not by itself
establish that he does not hold office under the Government.
We now come to the question of the remuneration
of a village officer. The High Court in its judgment referred to the rules
tinder the Act as to the mode of payment of the emoluments and held that there
was no direct payment of his dues by the Government to a village officer. That,
according to the High Court, also showed that the officer did not hold his
office under the Government. This view also is, in our opinion, unfounded.
Government lands are allotted by it to the officers by way of emoluments for
services to be rendered and the cash allowances are also fixed by the
Government. It is true that under the rules cash allowances are not paid
directly by the Government to the officers but the latter are authorised to
deduct the amounts thereof from the revenue collected by them. This does not
show that the cash remuneration is not paid by the Government. The revenue
collected belongs to the Government. The Rules provide that where an officer
deducts the cash allowance from the revenue collected by him and deposits the
balance in the Government Treasury, his receipt for the amount deducted shall
be considered equivalent to the payment into the Treasury of an equal sum in
cash: (see rule 75 XIII of the Rules framed tinder the Act). The result,
therefore, of this rule is as if the entire amount of the revenue collected had
been deposited into the treasury and part of it paid back to the officer on
account of his cash remuneration. In any event, it seems clear to us that the
cash allowance to the officer concerned is, in spite of the procedure laid down
in respect of its payment, a payment by the Government out of its moneys.
Lastly, we find that the duties of the village
officers are fixed by the Government and these officers work under the
direction, control and supervision of the Government. This is conceded.
We then come to this that Patels and
Shanbhogs are officers, who are appointed to their offices by the 1177 Government
though it may be that the Government has no option in certain cases but to
appoint an heir of the last holder; that they hold their office by reason of
such appointment only ; that they work under the control and supervision of the
Government that their remuneration is paid by the Government out of Government
funds and assets; and that they are removable by the Government, and that there
is no one else under whom their offices could be held.
All these clearly establish that Patels and
shanbhogs hold offices of profit under the Government. In this view of the
matter it has to be held that the nomination papers of Hanumanthappa, Siddappa
and Guru Rao were rightly rejected by the Returning Officer and the election
petition is without substance.
The appeal, therefore, succeeds and is
allowed. The judgment and order of the High Court are set aside, and those of
the Election Tribunal restored. The election petition is dismissed. The
respondents will pay the appellant's costs throughout.
Appeal allowed.
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