Kanta Kathuria Vs. Manak Chand Surana
[1969] INSC 292 (16 October 1969)
16/10/1969 HIDAYATULLAH, M.
(CJ) HIDAYATULLAH, M. (CJ) SIKRI, S.M.
RAY, A.N.
REDDY, P. JAGANMOHAN
CITATION: 1970 AIR 694 1970 SCR (2) 835 1969
SCC (3) 268
CITATOR INFO:
R 1975 SC2299 (138,186,229,230,314,362,690)
RF 1976 SC2283 (34,36,40,41) RF 1977 SC 682 (3) R 1984 SC 664 (4) RF 1992
SC1213 (34)
ACT:
Constitution of India, 1950, Art,
191(1)-Office of profit--office of Special Government Pleader if such office.
Retrospective legislation candidate held to
be disqualified because of holding office of profit-State Legislature enacting
that such Office not an office of profit and validating election-Effect of.
Representation of the People Act (43 of
1951), s. 82(b)-Any other candidate' against whom corrupt practices are
alleged, to be made party.-Scope of.
HEADNOTE:
Disputes between the State of Rajasthan and a
company were referred to arbitration and the Government Advocate was appointed
to represent the State. Another advocate was appointed to assist the Government
Advocate but as theadvocate was table to appear, the appellant was no appointed
under 0.27, r. 8B of the Civil Procedure Code, as Special Government Pleader.
The appellant then stood for election to the State Legislative Assembly and was
declared elected.
The election was challenged and one of the
grounds of challenge was that the appellant held an office of profit within the
meaning of Art. 191 of the Constitution. The High Court set aside the election.
While the appeal was pending in this Court, Rajasthan Act 5 of 1969 was passed
declaring among others that the holder of the office of a Special Government
Pleader was not disqualified from being chosen or for being a member of the
State Legislative Assembly; and by s. 2(2), the Act was made retrospective
removingthe appellant's disqualification retrospectively.
On the questions : (1) Whether the appellant
was holding an office of profit and hence was disqualified; (2) Whether the
disqualification was removed by Act 5 of 1969; and (3) Whether the election
petition was in accordance with law, because, another candidate from another
constituency, again t whom corrupt practices were alleged, was not impleaded as
a party,
HELD : (1) (Per Sikri, Ray and Jaganmohan
Reddy, JJ.) : The appellant was not holding an office of profit.
(a) Before a person becomes subject to the
disqualification in Art. 191(1) there must be an office which exists
independently of his being the holder of the office. The word 'office' means an
office or employment which was a subsisting, permanent, substantive position
which had an existence independent of the person who filled it, which went on
and was filled in succession by successive holders;
but if a person was engaged on whatever terms
to do the duties which were assigned to him, his employment to do those duties
did not create an office to which those duties were attached. Hence an office
does not come into existence every time a pleader is asked by the Government to
appeal, in a case on its behalf. [847 F; 848 A-B; 850 G-H] p.Cl/70-8 836 (b) A
reading of s. 2(7) and 0.27, r. 8B of the Civil Procedure Code A shows, that
even an advocate who is. acting under the directions of the Government Pleader
could be deemed to be a Government Pleader. Therefore, the notification of the
appellant's name under r. 8B as Special Government Pleader did not amount to
the creation of an office. [850 F-G] (c) Assuming that a Government Pleader is
an agent of the Government for purposes of receiving processes against the
Government, the fact that processes could be served on an advocate, would not
mean that the advocate was holding an office under his client. [851 A-B] (d) It
is not necessary to give a wider meaning to the word 'office' because, if
Parliament thinks that a legal"practitioner who is being paid fees in a
case by the Government should not be qualified to stand for an election as a
member of the Legislative Assembly, it can make that provision under Art. 191
(1) (e) of the Constitution. [851 C-D] Great Western Railway Co. v. Bater, 8
Tax Cases 231 and McMillan v. Guest (H. M. Inspector of Taxes) 24 Tax Cases
190, applied.
Mahadeo v. Shantibhai & Ors. [1969]2
S.C.R. 422 distinguished.
Sakhawat Ali v. State of Orissa, [1955] 1
S.C.R. 1004, referred to.
(Per Hidayatullah, C.J. and Mitter, J.
dissenting) : The High Court was right in holding that the appellant held an
office of profit. [842 C] It was not a case of the appellant merely being
briefed as a lawyer and given the Government litigation. On the other hand an
office, that of Special Government Pleader was created, and since the office of
a Government Pleader is an office of profit, the office of Special Government
Pleader will equally be an office of profit. It was an office which could be
successively held, it was independent of its holder, it was a substantive
position and as permanent as other supernumerary offices. [841 FG; 842B]
Mahadeo v. Shantibhai & Ors. [1969] 2 S.C.R. 422 and The Statesman (P.)
Ltd. v. H. R. Deb & Ors. [1968] 3 S.C.R. 614 applied.
McMillan v. Guest, [1942] A.C. 561 and Great
Western Railway Co. v. Bater, 8 Tax Cases 231, 235, referred to.
(2) (By Full Court) : The Act 5 of 1969 has
removed the disqualification retrospectively.
Per Hidayatullah, C.J. and Mitter, J. : It is
well recognised that Parliament and the Legislature of a State can make their
laws operate retrospectively subject to limitations, if any, in the
Constitution. Any law that can be made prospectively may be made with
retrospective operation except those which cannot operate retroactively.
In Art. 191 itself, power is reserved to the
State Legislature to make a declaration that the holder of an office shall not
be disqualified and there is nothing in the words of the Article to indicate
that such a declaration cannot be made with retrospective effect, therefore,
whatever may be the propriety of such legislation regard being had to
legislative practice and the absence of a clear prohibition, express or
implied. the Act must be declared to have retrospective effect. [843 B-C, D-F]
837 Per Sikri, Ray and Jaganmohan Reddy, JJ. : Parliament and the State
legislatures can legislate retrospectively subject to the provisions of the
Constitution. No limitation on the powers of the Legislature to make a
declaration validating an election, effective from an earlier date, is
expressly stated nor could it be implied in Art. 191(1). ]851 F-G; 852 D-E] The
apprehension that it may not be a healthy practice and might be abused is no
ground for limiting the powers of the State Legislature. [852 B] The impugned
Act does not amend or alter the Representation of the People Act, 1951, in any
respect whatsoever. By enacting the impugned Act, the disqualification if any,
which existed in the 1951 Act has been removed, but that is what the State
Legislature is entitled to do under Art. 191 so long as it does not touch the
wording of the 1951 Act.
[852 F-G] (3) (By Full Court) : The words
'any other candidate' in s. 82(b) of the Representation of the People Act,
1951, who should be impleaded, refers to a candidate in the election for the
constituency which is the subject matter of the petition, and not to a
candidate from another constituency. [843 G-H; 853 D-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1869 of 1968.
Appeal under s. 116-A of the Representation
of the People Act, 1951 from the judgment and order dated August 12, 1968 of
the Rajasthan High Court in Election Petition No. 16 of 1967.
S. V. Gupte, M. M. Tiwari, H. K. Puri,
Bishamber Lal, M. K. Garg, K. K. Jain and S. P. Vij, for the appellant.
M. C. Chagla and S. M. Jain, for respondent.
Niren De, Attorney-General, G. C. Kasliwal,
AdvocateGeneral. Rajasthan and K. B. Mehta, for the State of Rajasthan.
The Judgment of S. M. SiKRi, A. N. RAY and P.
JAGANMOHAN REDDY, JJ.was delivered by SIKRI, J., M. HIDAYATULLAH, C.f. and G.
K. MITTER, J. gave a separate opinion.
Hidayatullah, C.J. We regret our inability to
agree that the appellant Mrs. Kanta Kathuria was not holding an office of
profit under the Government of Rajasthan when she stood as a candidate for
election to the Rajasthan Legislative Assembly from the Kolayat Constituency.
Mrs. Kathuria is an advocate practicing at
Bikaner. She contested the above election held on February 18, 1967 against
seven other candidates. She was declared elected on February 22, 1967. One of
the defeated candidates filed the election petition, from which this appeal
arises, questioning her election on several grounds. We are concerned only with
one of them, namely, that on the date of her nomination and election she was
disqualified to be chosen to fill the seat as she held the office of Special
Government Pleader, which was an office of profit under the Government of
Rajasthan.
838 Article 191 of the Constitution, which is
relevant in this connection, reads :
"191 : Disqualifications for membership
(1) A person shall be disqualified for being chosen as, and for being, a member
of the Legislative Assembly or Legislative Council of a State(a) if he holds
any office of profit under the Government of India or the Government of any
State specified in the First Schedule, other than an office declared by the
Legislature of the State by law not to disqualify its holder;
Mrs. Kathuria was appointed by the Government
of Rajasthan as Special Government Pleader to conduct arbitration cases between
the Government and Modern Construction Company arising out of the construction
of Rana Pratap Sagar Dam and Jawahar Sagar Dam. The order was passed on June
26, 1965 (Ex. 1). The order reads:
"ORDER Sub: Construction of R.P.S. Main
Dam-Contract of M/s. M.C.C. (Pvt.) Ltd., Arbitration in disputes arising out
of.
In pursuance of Rule 8 (b) of Order XXVII of
the First Schedule to the Code of Civil Procedure, 1908 read with clause (7) of
Section 2 of the Code, the Governor is pleased to appoint Smt. Kanta Kathuria,
Advocate Bikaner as Special Government Pleader to conduct the above noted case
on behalf of the State of Rajasthan alongwith Shri Murali Manohar Vyas,
Government Advocate, Jodhpur.
By order, Sd. D. S. Acharya 26-6-65 (D. S.
Acharya) Joint Legal Remembrancer".
By subsequent orders, which we do not
consider necessary to quote here, her remuneration was fixed at Rs. 1501per day
for each date of hearing, Rs. 75/per day for days of travel and dates on which
the case was adjourned, and days spent on preparation of the case. Mrs.
Kathuria began appearing in the case from March 27, 1965. It is an admitted
fact that she was paid for work between that date and November 28, 1966 a sum
of 839 Rs. 26,325/and again from February 26, 1967 to March 2, 1967 a sum of
Rs. 900/and that the arbitration proceedings were continuing on the date of the
filing of the election petition. Therefore for over two years she was employed
as Special Government Pleader and was still employed when her election took
place. It is also admitted by her that prior to this employment, she had never
paid income-tax in excess of Rs. 1200/in any year.
On these facts, the High Court held that Mrs.
Kathuria was disqualified. Before this appeal came on for hearing before us,
the Governor of Rajasthan by Ordinance 3/68 (December 24, 1968) removed the
disqualification retrospectively. The Ordinance was followed by Act V of 1968
(April 4, 1969).
The operative portions of the Act which are
the same as of the Ordinance read "Prevention of disqualification of
membership of the State Legislative Assembly(1) It is hereby declared that none
of the following offices, in so far as it is an' office of profit under the
State Government, shall disqualify or shall be deemed ever to have disqualified
the holder thereof from being chosen as, or for being, a member of the
Rajasthan Legislative Assembly, namely (a) the office of a Government Pleader
or Special Government Pleader or Advocate for the Government, appointed
specially to conduct any particular suit, case or other proceeding by or
against the State Government, before any court, tribunal, arbitrator or other
authority;
(b) the office of a Government Pleader, a
Special Government Pleader or Advocate for the State Government, appointed
specially to assist the Advocate General, Government Advocate or Pleader, or
Special Government Pleader, or Advocate for Government, in any particular suit,
case or other proceeding by or against the State Government before any court,
tribunal, arbitrator or other authority;
(c) the office of a panel lawyer if the
holder of such office is not entitled to any retainer or salary, by whatever
named called;
(4) the office of a Pradhan or Pramukh as
defined in the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959
(Rajasthan Act 37 of 1959).
840 (2) Notwithstanding any judgment or order
of any Court or Tribunal, the aforesaid offices shall not disqualify or shall
be deemed never to have disqualified the holders thereof for being chosen as,
or for being, members of the Rajasthan Legislative Assembly as if this Act had
been in force on the date the holder of such office filed his nomination paper
for being chosen as a member of the Rajasthan Legislative Assembly." The
Ordinance and the Act seem to have been passed to nullify the decision in this
case. One of the contentions of the answering respondent is that the
Legislature of Rajasthan could not remove the disqualification retrospectively
since the Constitution contemplates disqualifications existing at certain time
in accordance with the law existing at that time. We shall deal with this
matter later.
When the Government of Rajasthan appointed
Mrs. Kathuria it bad two courses open to it. Firstly, Government could have
engaged Mrs. Kathuria to conduct the particular arbitration case or cases, or
even to assist the Government Advocate in those cases. Alternatively Government
could create a special office of Special Government Pleader and appoint Mrs.
Kathuria or any other lawyer to that office. It is obvious that Government did
not choose the first course.
There were as many as 26 arbitration cases
then pending and more were likely to arise. Government thought that they should
be conducted by the Government Advocate but as the work involved was too much
as additional office had to be created and given to a lawyer. An office was
therefore, created and given to Mrs. Kathuria.
In a recent case (Civil Appeal No. 1832 of
1967-Mahadeo v.Shantibhai &, Others-s-decided on October 15, 1968), we held
that a panel lawyer engaged to watch cases on behalf of the Central &
Western Railway Administrations, held an office of profit. The duty of the
panel lawyer was to watch cases coming up for hearing against the Railways at Ujjain
and to appear in court and ask for an adjournment. The lawyer was paid Rs. 51for
each such adjournment if he was not entrusted with the case later. In dealing
with this matter reliance was placed by us on the meaning to the word 'office'
given in the Statesman (P) Ltd. v. H. R. Deb & Ors(1) In the Statesman
case, this Court approved of the observations of Lord Wright in Mcmillan v.
Guest(2) to the following effect :
"The word 'office is of indefinite
content.
Its various meanings cover four columns of
the New English (1) [1968] 3 S.C.R. 614.
(2) [1942] A.C. 561.
841 Dictionary, but I take as the most
relevant for purpose of this case the following 'A position or place to which
certain duties are attached, especially one of a more or less public character."
Our brother Sikri has also relied upon the same case and has referred to the
observations of Lord Atkin where he approved of the observations of Rowlatt, J.
in Great Western Railway Co. v. Baler(1). Justice Rowlatt said thus :
"Now it is argued, and to my mind argued
most forcibly, that shows that what those who use the language of the Act of
1842 meant, when they spoke of an office or employment which was a subsisting
permanent, substantive position, which had an existence independent from the
person who filled it, which went on and was filled in succession by successive
holders, and if you merely had any man who was engaged on whatever terms, to do
duties which were assigned to him, his employmen t to do those duties did not
create an office to which those duties were attached. He hereby was employed to
do certain things and that is an end of it, and if there was no office or
employment existing in the case as a thing, the so-called office or employment
was merely an aggregate of the activities of the particular man for the time
being".
We say with profound respect for this most
succinct exposition, that we entirely agree. The distinction that we are making
is precisely the distinction which has been brought out by Rowlatt, J. If Mrs.
Kathuria had been briefed as a lawyer and given all the Government litigation
in Rajasthan to conduct on behalf, of the Government she could not have been
described as holding an office of profit. The aggregate of her work and her
activities could not have created an office nor could she have been described
as anything but an advocate. What happened here was different' An office was
created which was that of a Special Government Pleader. Now it is admitted that
the office of a Government Pleader is an office properly so-called. Therefore
an office going under the names 'Additional Government Pleader', 'Assistant
Government Pleader', 'Special Government Pleader' will equally be an office
properly socalled. It matters not that Mrs. Kathuria was-to conduct a group of arbitration
cases and against the same party. For that matter Government is always at
liberty to create offices for special duties. They might have even created
another office of Special Government Pleader for Land Acquisition cases (1) 8
Tax Cases 231, 235.
842 or a group of cases or Railway cases or a
group of cases arising out of a particular accident and so on and so forth.
What matters is that there was an office
created apart from Mrs. Kathuria. It is in evidence that it was first held by
Mr. Maneklal Mathur another advocate. It is likely that if Mrs. Kathuria had
declined someone else would have been found. Therefore, there was an office
which could be successively held; it was independent of Mrs. Kathuria who
filled it was a substantive position and as permanent as supernumerary offices
are. Every one of the tests laid down by Rowlatt, J. is found here.
We would, therefore, hold that the High Court
was right in its conclusion that Mrs.,Kathuria held an office. Since there is
no dispute that it was for profit and under the State, the election of Mrs.
Kathuria must be held to be void as she was disqualified to stand for the
election.
This brings us to the next question. Does the
Act of the Rajasthan Legislature remove the disqualification retrospectively,
in other words; can such a law be passed by the Legislature after, the election
is over ? The first question is whether the new law is remedial or declaratory.
If it was declaratory then it would be retrospective; if remedial only,
prospective unless legally made retrospective. That it has been made expressly
retrospective lends support to its being remedial. Its retrospective operation
depends on its being effective to remove a disability existing on the date of
nomination of a candidate or his election. Of course, there is no difficulty in
holding the law to be perfectly valid in its prospective operation. The only
dispute is in regard to its retrospective operation.
Our brother Sikri has cited an instance of
the British Parliament from May's well-known treatise when the Coatbridge and
Springburn Elections (Validation) Bill was introduced to validate the irregular
elections. Halsbury's Laws of England (3rd Edn. Vol. 14 p. 5) has the following
note :
"If a person is elected when
disqualified, his disqualification for being a member of Parliament may be
remedied or he may be protected from any penal consequences by an Act of
Validation or indemnity." The position of the British Parliament is
somewhat different from that of the Indian Parliament and the Legislatures of
the States. British Parliament enjoys plenary sovereignty and the7 Acts of the
British Parliament no court can question. In India the sovereignty of the
Indian Parliament and the Legislatures is 843 often curtailed and the question,
therefore, is whether it is in fact so curtailed.
At the hearing our attention was drawn to a
number of such Acts passed by our Parliament and the Legislatures of the
States. It seems that there is a settled legislative practice to make
validation laws. It is also well recognised that Parliament and the
Legislatures of the States can make their laws operate retrospectively. Any law
that can be made prospectively may be made with retrospective operation except
that certain kinds of laws cannot operate retroactively. This is not one of
them.
This position being firmly grounded we have
to look for limitations, if any, in the Constitution. Article 191 (which has
been quoted earlier) itself recognises the power of the Legislature of the
State to declare by law that the holder of an office shall not be disqualified
for being chosen as a member. The Article says that a person shall be
disqualified if he holds an office of profit under the Government of India or
the Government of any State unless that office is declared by the Legislature
not to disqualify the holder. Power is thus reserved to the Legislature of the
State to make the declaration. There is nothing in the words of the article to
indicate that this declaration cannot be made with retrospective effect. It is
true that it gives an advantage to those who stand when the disqualification
was not so removed as against those who may have kept themselves back because
the disability was not removed. That might raise questions of the propriety of
such retrospective legislation but not of the capacity to make such laws.
Regard being had to the legislative practice in this country and in the absence
of a clear prohibition either express or implied we are satisfied that the Act
cannot be declared ineffective in its retrospective operation.
The result, therefore, is that while we hold
that Mrs. Kathuria held an office of profit under the State Government, we hold
further that this disqualification stood removed by the retrospective operation
of the Act under discussion.
As regards the supplementary point that the
petition was bad for non-joinder of Mr. Mathura Das Mathur against whom corrupt
practices were alleged in the petition, we are of opinion that s. 82 of the
Representation of People Act, 1951, in its clause (b) speaks of candidates at
the same election and not persons who are candidates at other elections. As Mr.
Mathur was a candidate from another constituency he need not have been made a
party here.
For the above reasons we would allow the
appeal but make no order about costs since the election of the appellant is
saved 844 by a retrospective law passed after the decision of the High Court.
Sikri, J. This appeal arises out of an
election petition filed under section 80 of the Representation of the People Act,
1951, hereinafter referred to as the 1951 Act, by Shri Manik Chand Surana, a
defeated candidate, challenging the election of Smt. Kanta Kathuria, before the
High Court.
The High Court (Jagat Narayan, J.) allowed
the election petition on the ground that the appellant held an office of profit
within the meaning of Art. 191 of the Constitution on the day on which she
filed the nomination paper and was thus disqualified for being chosen as a
member of the Rajasthan Legislative Assembly. This judgment was given on August
12, 1968. An appeal was filed in this Court on August 20, 1968.
During the pendency of the appeal, the
Rajasthan Legislative Assembly Members (Prevention of Disqualification) Act,
1969 (Act No. 5 of 1969) (hereinafter referred to as the impugned Act), was
passed, which received the assent of the Governor on April 4, 1969.
The impugned Act inter alia provides :
"2. Prevention of disqualification of
membership of the State Legislative Assembly.
(i) It is hereby declared that none of the
following offices, in so far as it is an office of profit under the State
Government shall disqualify or shall be deemed ever to have disqualified the
holder thereof from being chosen as, or for being, a member of the Rajasthan
Legislative Assembly, namely :(a) the office of a Government Pleader or Special
Government Pleader or Advocate for the Government, appointed specially to
conduct any particular suit, case or other proceeding by or against the State
Government, before any court, tribunal, arbitrator or other authority;
(b) the office of a Government Pleader, a
Special Government Pleader or Advocate for the State (Government appointed
specially to assist the Advocate General, Government Advocate or Pleader, or
Special Government Pleader, or Advocate for Government in any particular suit,
case or other proceeding by or against the State Government before any court,
tribunal, arbitrator or other authority;
845 (2) Notwithstanding any judgment or order
of any Court or Tribunal, the aforesaid offices shall not disqualify or shall
be deemed never to have disqualified the holders thereof for being chosen as,
or for being, members of the Rajasthan Legislative Assembly as if this Act had
been in force on the date the holder of such office filed his nomination paper
for being chosen as a member of the Rajasthan Legislative Assembly." We
may note another fact on which an argument is sought to;
be made by the learned Counsel for the
appellant. It was alleged in the election petition that the appellant was a
close friend of one Shri Mathura Dass Mathur who was a Minister in the Slate of
Rajasthan at the time of the election, who contested elections as a candidate
in a constituency different from that of the appellant. Shri Mathur visited the
constituency during the election very frequently and during these visits the
appellant accompanied by Shri Mathur visited several places in the Constituency
where.Shri Mathur in the presence of the appellant offered and promised to get
several works done in those areas if the electors were to cast votes for the
appellant at' the said election. In spite of these allegations of corrupt
practice, Shri Mathur was not made a party to the petition.
The learned Counsel for the appellant, Mr.
Gupte, contends that the High Court erred in holding that the appellant held an
office of profit within the meaning of Art. 191 of the Constitution. In the
alternative he contends that the Rajasthan Act No. 5 of 1969 is retrospective
and the disqualification if it existed, cannot now be deemed to have existed
because of this Act. The last point raised by him is that the petition was not
in accordance with law as the respondent, Shri Surana, had not impleaded Shri
Mathur as respondent to the petition.
The facts relevant for appreciating the first
point are these The appellant was an advocate at all material times.
Disputes arose between M/s. Modern
Construction, Company Private Ltd. and the State of Rajasthan in connection
with some works relating to the Rana Pratain Sagar Dam. These disputes were
referred to arbitration. Shri Murli Manohar Vyas, Government Advocate in the
High Court of Rajasthan at Jodhpur was appointed by the Government to represent
it in these arbitration proceedings. The Government Advocate wanted one more
advocate to assist him. On his suggestion, Shri Manak Lal Mathur advocate was
appointed to assist the Government Advocate. As there was a possibility that
Shri Manak Lal Mathur may not be available to 846 help the Government Advocate,
the appellant was, on the suggestion of the Government Advocate, appointed to
assist him in the ,absence of Shri Mathur. This. proposal was approved by the
Rajasthan Law Minister on March 30, 1965 and on June 26, 1965, and the
Government issued the following order :"Sub :-Construction of R.P.S. Main
Dam Contract of M/s M.C.C. (PVT) Ltd. Arbitration in dispute arising out of In
pursuance of rule 8 (b) of Order XXVII of the First Schedule to the Code of
Civil Procedure, 1908 read with clause (7) of section 2 of the Code, the
Governor is pleased to appoint Smt. Kanta Kathuria Advocate, Bikaner, as
Special Government Pleader to conduct the above noted case on behalf of the
State of Rajasthan along with Shri Manohar Vyas, Government Advocate
Jodhpur." Later, on Sept. 3, 1965, the Government laid down the fees payab
le to the appellant. It was stated in the order dated Sept. 3, 1965 that"
Smt. Kanta Kathuria who has been appointed to assist the Government advocate in
the absence of Shri Mathur will get her share of fee in proportion to the
assistance rendered by her out of the daily fee of Rs.
150/to Shri Manak Lal Mathur." As Shri
Manak Lal Mathur was not able to appear in the case, on Nov. 18, 1965 the
Governor sanctioned the payment of daily fee of Rs. 1501to the appellant
instead of Shri Manak Lal Mathur, for days of actual hearing. The appellant
appeared from March 27, 1965 to November 28, 1966, but she did not appear from
Nov. 29, 1966 to Feb. 25, 1967. She again started appearing in the case from
February 26, 1967.
The appellant claimed travelling allowance,
incidental charges and daily allowance, but the Government decided that the
appellant was not entitled to any travelling allowance or daily allowance in
addition to the fees.
By a notification, the Election Commission of
India called upon the electors of the Kolayat Assembly Constituency of the
Rajasthan Legislative Assembly to elect a member to the Rajasthan Legislative
Assembly and invited nomination papers for the elections to be held on February
18, 1967. The appellant was declared duly elected by the Returning officer on,
February 22, 1967, the appellant having secured 11926 and the respondent having
secured 8311 votes.
847 The relevant portion of Art. 191 reads as
follows 191. (1) A person shall be disqualified for being chosen as, and for
being, a member of the Legislative Assembly or Legislative Council of a State(a)
if he holds any office of profit under the Government of India or the
Government of any State specified in the First Schedule, other than an office
declared by the Legislature of the State by law not to disqualify its holder;
(e) if he is so disqualified by or under any
law made by Parliament.
(2) For the purposes of this article, a
person shall not be deemed to hold an office of profit under the 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 for such State.
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 to this word in the context. It seems to us that the words 'its
holder' occurring in Art. 191 (1 ) (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
empowered to declare that an office of profit of a particular description or
name would not disqualify its holder and not that a particular holder of an
office of profit would not be disqualified.
It seems to us that in the context, Justice
Rowlatt's definition in Great Western Railway Company v. Bater(l) is the appropriate
meaning to be applied to the word 'office' in Art. 191 of the Constitution.
Justice Rowlatt observed at page 235
"Now it is argued, and to my mind argued most forcibly, that shows that
what those who use the (1) 8 Tax Cases 231.
848 language of the Act of 1842 meant, when
they spoke of an office or an employment, was an office or employment which was
a subsisting, permanent, substantive position, which had an existence
independent from the person who filled it; which went on and was filled in succession
by successive holders; and if you merely had a man who was engaged on whatever
terms, to do duties which were assigned to him, his employment to do those
duties did not create an office to which those duties were attached. He merely
was employed to do certain things and that is an end of it; and if there was no
office or employment existing in the case, as a thing the so-called office or
employment was merely an aggregate of the activities of the particular man for
the time being. And I think myself that is sound. I am not going to decide
that, because I think I ought not to in the state of the authorities, but my
own view is that the people in 1842 who used this language meant by an office,
a substantive thing that existed apart from the holder." This definition
was approved by Lord Atkinson at page 246.
This language was accepted as generally
sufficient by Lord Atkin and Lord Wright inMcMillan v. Guest (H.M. Inspector of
Taxes) (1). Lord Atkin observed at page 201 :"There is no statutory definition
of 'office'.
Without adopting the sentence as a complete
definition, one may treat the following expression of Rowlatt, J., in Great
Western Railway Co. v. Baler, [1920] 3 K.B., at page 274, adopted by Lord
Atkinson in that case, [1922] 2 A.C., at page 15, as a generally sufficient
statement of the meaning of the word : an office or employment which was a
subsisting, permanent, substantive position, which had an existence independent
of the person who filed it, which went on and was filled in succession by
successive holders." Lord Wright at page 202 observed "The word
'office' is of indefinite content;
its various meanings cover four columns of
the New English Dictionary, but I take as the most relevant for purposes of
this case the following : A position or place to which less public character.
This, I think, rough corresponds with such approaches to a definition as have
(1) 24 Tax Cases 190.
849 been attempted in the authorities, in
particular Great Western Railway Co. v. Abater, [1922] 2 A.C. I...... where the
legal construction of these words, which had been in Schedule E since 1803 (43
Geo. 111, c. 122, Section 175), was discussed." In Mahadeo v. Shantibhai
& Ors.(1)-Mitter J.
speaking for this Court, quoted with approval
the definition of Lord Wright. In our view there is no essential difference
between the definitions given by Lord Wright and Lord Atkin. The Court of
Appeal in the case of Mitchell v. Ross(2), thought that both the noble and
learned Lords had accepted the language employed by Rowlatt J. as generally
sufficient. In Mahadeo's case(1), this Court was dealing with a panel of
lawyers maintained by the Railway Administration and the lawyers were expected
to watch cases. Clause (13) of the terms in that case read as follows :"You
will be expected to watch cases coming up for hearing against this Railway in
the various courts at UJB and give timely intimation of the same to this
office. If no instructions regarding any particular case are received by you,
you will be expected to appear in the court and obtain an adjournment to save
the ex-parte proceedings against this Railway in the court. You will be paid
Rs. 51for every such adjournment if you are not entrusted with the conduct of
the suit later on." That case in no way militates against the view which
we have taken in this case. That case is more like the case of a standing
Counsel disqualified by the House of Commons. It is stated in Rogers [on
Elections Vol. [1]-at page 10 :"However, in the Cambridge case (121 Journ.
220), in 1866, the return of Mr. Forsyth was
avoided on the ground that he held a new office of profit under the Crown,
within the 24th section. In the scheme submitted to and approved by Her Majesty
in Council was inserted the office of standing counsel with a certain yearly
payment (in the scheme called 'salary') affixed to it, which Mr. Forsyth
received, in addition to the usual fees of counsel. The Committee avoided the
return.
It is urged that there can be no doubt that
the Government Pleader holds an office and there is no reason why a person who
assists him in the case should also not be treated as a holder of 1) [1969] 2
S.C.R. 422 (2) [1960] 2 All E.R. 238 850 office, specially as the notification
appointed the appellant as Special Government Pleader. We see no force in these
contentions.
Rule 8B. of Order 27, C.P. Code reads as
follows :7"In this Order unless otherwise expressly provided 'Government'
and 'Government leader' mean respectively(a) in relation to any suit by or
against the Central Government or against a public officer in the service of
that Government, the Central Government and such pleader as that Government may
appoint whether generally or specially for the purposes of this Order;
(c) in relation to any suit by, or against a
State Government or against a public officer in the service of a State, the
State Government and the Government pleader, as defined in Clause 7 of Section
2 or such other pleader as the State Government may appoint, whether generally
or specially, for the purposes of this Order." This rule defines who shall
be deemed to be a Government Pleader for the purpose of the Order. 'Government
Pleader' is defined in Sec. 2 of Clause (7) C.P. Code thus"(7) 'Government
Pleader' includes any officer appointed by the State Government to perform all
or any of the functions expressly imposed by this Code on the Government
Pleader and also any pleader acting under the directions of the Government
Pleader :" It follows from reading Order 27 rule 8B and Clause (7) of Sec.
2 C.P. Code together that even if a pleader who is acting under the directions
of the Government Pleader would be deemed to be a Government Pleader for the
purpose of Order 27. Therefore, no particular significance can be attached to
the notification made under rule 8B appointing the appellant as Special
Government Pleader. We cannot visualise an office coming into existence, every
time a pleader is asked by the Government to appear in a case on its behalf.
The notification of his name under rule 8B, does not amount to the. creation of
an Office'. Some reliance was also placed on rule 4 of Order 27 C.P. Code,
which provides that "The Government Pleader in any Court shall be the
agent of the Government for the purpose of receiving 851 processes against the
Government issued by such Court." This rule would not apply to the facts
of this case because the appellant was appointed only to assist the Government
Advocate in a particular case. Assuming it applies, it only means that
processes could be served on the appellant, but processes can be served on an
Advocate under Rule 2 of Order XLV of the Supreme Court Rules, 1966. This does
not mean that an Advocate on Record would hold an office under the client.
The learned Counsel for the respondent, Mr.
Chagla, urges that we should keep in view the fact that the object underlying
Art. 191 of the Constitution is to preserve purity of public life and to
prevent conflict of duty with interest and give an interpretation which will
carry out this object.
It is not necessary to give a wide meaning to
the word "office" because if Parliament thinks that a legal
practitioner who is being paid fees in a case by the Government should not be
qualified to stand for an election as a Member of Legislative Assembly, it can make
that provision under Art. 191 (1) (e) of the Constitution.
The case of Sakhawat Ali v. The State of
Orissa(1) provides an instance where the Legislature provided that a paid legal
practitioner should not stand in the municipal elections.
In view of the above reasons, we must hold
that the appellant was not disqualified for election under Art. 191 of the
Constitution. But assuming that she held an office of profit, this
disqualification has been removed retrospectively by the Rajasthan Legislative
Assembly by enacting the impugned Act.
Mr. Chagla, learned Counsel for the
respondent, contends that the Rajasthan State Legislature was not competent 'to
declare retrospectively' under Art. 191 (1) (a) of the Constitution. It seems
to us that there is no force in this contention. It has been held in numerous
cases by this Court that the State Legislatures and Parliament can legislate
retrospectively subject to the provisions of the Constitution. Apart from the
question of fundamental rights, no express restriction has been placed on the
power of the Legislature of the State, and we are unable to imply, in the
context, any restriction. Practice of the British Parliament does not oblige us
to place any implied restriction. We notice that the British Parliament in one
case validated the election : [Erskine May's Treatise on the Law, Privileges
Proceedings & Usage of Parliament--Seventeenth (1964) Edition]"After
the general election of 1945 it was found that the persons elected for the
Coatbridge Division of (1) [1955] 1 S.C.R. 1004.
SupCI-9 852 Lanark and the Springbourn
Division of Glassgow were disqualified at the time of their election because
they were members of tribunals appointed by the Minister under the Rent of
Furnished Houses Control (Scotland) Act, 1943, which entitled them to a small
fee in respect of attendance at a Tribunal. A Select Committee reported that
the disqualification was incurred inadvertently, and in accordance with their
recommendation the Coatbridge and Springburn Elections (Validation) Bill was
introduced to validate the irregular elections [H.C. Deb. (1945-46) 414, c.
564-6]. See also H.C. 3(1945-46);
ibid. 71 (1945-46) and ibid.92
(1945-46)." We have also noticed two earlier instances of retrospective
legislation, e.a., The House of Commons (Disqualification) 1813 [Halsbury
Statutes of England p. 467] and Sec. 2 of the Re-election of Ministers Act,
1919 (ibid. p. 515).
Great t stress was laid on the word
'declared' in Art.
191(1) (a), but we are unable to imply any
limitation on the powers of the Legislature from this word. Declaration can be
made effective as from an earlier date.
The apprehension that it may not be a healthy
practice and this power might be abused in a particular case are again no
grounds for limiting the powers of the State Legislature.
It is also urged that by enacting the
impugned Act the State Legislature has amended the 1951 Act. We are unable to
appreciate this contention. The State Legislature has exercised its powers
under Art. 191 to declare a certain office not to have ever disqualified its
holder. The impugned Act does not amend or alter the 1951 Act, in any respect
whatsoever. It is said that under the 1951 Act as it existed before the
impugned Act was passed, the appellant was not qualified to be chosen for this
particular election.
By enacting the impugned Act the appellant's
disqualification has been removed and the 1951 Act is, so to say, made to speak
with another voice. But that is what the State Legislature is entitled to do,
as long as it does not touch the wording of the 1951 Act. The answer given by
the 1951-Act may be different but this is because the facts on which it
operates have by valid law been given a different garb.
It is further urged that the-impugned Act
violates Art. 14 of the Constitution because the Central Government might have
appointed Government Pleaders under rule 8B of Order 27 and the impugned Act
nowhere mentions the alleged offices held by 853 them. No material has been
placed to show that any such offices exist. We cannot, therefore, entertain
this point.
In view of the above reasons We are of the
opinion that the impugned Act is valid and removes the disqualification if it
existed before.
There is force in the third point raised by
the learned counsel for the appellant. Section 82 of the Representation of the
People Act, 1 of 1951, reads as follows "81. A petitioner shall join as
respondents to his petition(a) where the petitioner, in addition to claiming a
,declaration that the election of all or any of the returned candidates is
void, claims a further declaration that be himself or any other candidate has
been duly elected.
all the contesting candidates other than the
petitioner and where no such further declaration is claimed, all the returned
candidates; and (b) any other candidate against whom allegations of any corrupt
practice are made in the petition.
In this context the words 'any other
candidate' plainly mean a candidate in the election for the constituency which
is the subject matter of the petition.
In the result the appeal is allowed, the
judgment of the High Court set aside and the petition dismissed. In the
circumstances of the case the parties will bear their own costs throughout.
V.P.S. Appeal allowed.
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