M.V. Rajashekaran
& Ors Vs. Vatal Nagaraj & Ors [2002] Insc 30 (23 January 2002)
G.B.
Pattanaik & R.P. Sethi
With Civil
Appeal No.3714 of 2001 and Civil Appeal No.3844 of 2001
PATTANAIK,
J.
These
three appeals are directed against one and the same Judgment of the Karnataka
High Court. An Election Petition was filed under Section 81 of the
Representation of the People Act, 1951, challenging the election of the present
appellants as Members of the Karnataka Legislative Council and for declaring
the said election as null and void inter alia on the ground that the nomination
of Vatal Nagaraj, respondent No. 1 had been improperly rejected. Said Vatal Nagaraj
was an ex M.L.A. and had been appointed as a One Man Commission by the
Government of Karnataka by Order dated 18.4.2000 to study the problems of the Kannadigas
in the Border areas of Kerala, Maharashtra, Andhra Pradesh, Goa and Tamil Nadu.
By a subsequent order, the Chairman of the Commission was accorded the status
of a Minister of Cabinet rank and thereafter by a Government Order dated
24.5.2000, for defraying the expenses of pay and day to day expenditure of the
Chairman of the Commission, a sum of Rs. 5 lacs was provided in the Budget
estimate for the year 2000-2001. When election to the Karnataka Legislative
Council was held for filling up 11 vacancies and said Vatal Nagaraj filed his
nomination paper, on an objection being filed for accepting the nomination, the
Returning Officer took up the scrutiny and rejected the nomination of said Vatal
Nagaraj on a finding that he was holding an office of profit and as such was
disqualified from being elected. Said Nagaraj, therefore, filed the election
petition, alleging inter alia that his nomination has been improperly rejected
within the ambit of Section 100[1][c] of the Representation of the People Act
and, therefore, the election of all the Members must be declared void. By the
impugned Judgment, the High Court having come to the conclusion that the post
of Chairman of the Commission which said Nagaraj was holding, cannot be held to
be an office and, therefore, the Returning Officer illegally rejected the
nomination paper of said Shri Nagaraj. The High Court ultimately held that the
position held by Nagaraj, not being an office much less an office of profit, did
not incur any disqualification under Article 191 of the Constitution and
consequently, rejection of his nomination was improper. The High Court
ultimately having allowed the election petition and declaring the election of
the elected candidates to the Karnataka Legislative Council to be null and void
and further directing the Returning Officer to accept the nomination of Nagaraj
and proceed with the election in accordance with law, the present appeals have
been preferred.
Mr. Shanti
Bhushan and Mr. Venugopal, the learned senior counsel appearing for appellants
in two different appeals, and Mr. Javali, learned senior counsel appearing for
the appellant in third appeal contended, that having regard to the
circumstances under which the post of One Man Commission was created and an ex
M.L.A. was appointed to that post, and having regard to the fact that the
government sanctioned money to defray the expenses of the pay and other
allowances of the said Commission, the conclusion is irresistible that the post
of One Man Commission was an office of profit and, therefore, the Returning
Officer rightly rejected the nomination of respondent Vatal Nagaraj and the
High Court committed error in holding that the post does not constitute an
office much less an office of profit. In support of this contention reliance
was placed on the decisions of this Court in Mahadeo vs. Shantibhai & Ors. -
(1969) 2 SCR 422, Kanta Kathuria vs. Manak Chand Surana - (1970) 2 SCR 835 and Shibu
Soren vs. Dayanand Sahay and Others (2001) 7 SCC 425. Mr. Bobde, the learned
senior counsel appearing for respondent no. 1, on the other hand contended,
that the word 'office' not having been defined either in the Constitution or in
the Representation of People Act, and the definition given to the said expression
by Justice Rowlatt in the case of Great Western Railway Co. vs. Bater 8 Tax
Cases 231 having been accepted by this Court in Kanta Kathuria's case (supra)
the test to be applied is whether it was subsisting, permanent, substantive
which had an existence independent of the person who filled it, and on the
other hand in the present case for a limited purpose a person was appointed to
discharge certain obligations which came to an end on submission of the report
by the person concerned. According to Mr. Bobde the test of permanency or
substantive does not apply at all. In this view of the matter the High Court
was fully justified in recording the finding that there was no office much less
an office of profit, that was held by respondent no. 1 Vatal Nagaraj, and
consequently the order of the rejection of his nomination was rightly held to
be illegal. Mr. Bobde placed strong reliance on the self same decision of Kanta
Kathuria's case on which the counsel for the appellant had relied upon, as well
as the decision in Rabindra Kumar Nayak vs. Collector (1999) 2 SCC 627 wherein
the dictum of Rowlatt,J. had been approved. Mr. Bobde also relied upon the
decision of this Court in Ashok Kumar Bhattacharyya vs. Ajoy Biswas and others
- (1985) 1 SCC 151, and also the decision in Satrucharla Chandrasekhar Raju vs.
Vyricherla Pradeep Kumar Dev (1992) 4 SCC 404. The entire controversy,
therefore, centers round the question whether the creation or constitution of a
One Man Commission for the purpose of holding certain enquiry and appointment
of an individual as the said Commission, and providing the money necessary for
disbursement of salary and other allowances of such Commission would make the
Commission an office of profit within the ambit of Article 191 of the Constitution
read with Section 100 (2) of the Representation of People Act, or it would not
constitute an office and as such, the disqualification for being elected, as
engrafted in the Constitution as well as in the Representation of People Act
will not be attracted. Under Article 191 (1) of the Constitution a person would
be disqualified being chosen as and for being a member of the Legislative
Assembly or Legislative Council of State, if he holds any office of profit
under the Government of India or Government of any State other than the office
declared by the Legislature of the State by law not to disqualify its holder.
In order to attract the aforesaid disqualification, therefore, the person
concerned must hold an office and that office must be an office of profit under
the Government of India or under the Government of any State. The very object
of providing the disqualification under Article 191 of the Constitution is that
the person elected to the Legislative Assembly or Legislative Council should be
free to carry on his duty fearlessly without being subjected to any kind of
governmental pressure. The Court, therefore is required to find out as to
whether there exists any nexus between the duties discharged by the candidate
and the government, and that a conflict is bound to arise between impartial
discharge of such duties in course of his employment with the duties which he
is required to discharge as a member of legislature, on being elected. While
examining the aforesaid question the Court has to look the substance and not
the form and, further it is not necessary that all factors and tests laid down
in various cases must be conjointly present so as to constitute the holding of
an office of profit under the government. Section 100 provides the grounds for
declaring an election to be void and clause (1) {c} stipulates that improper
rejection of nomination is one of the ground for declaring an election to be
void. Since nomination of Vatal Nagaraj was rejected by the Returning Officer
on the ground that he held an office of profit, and as such, was inelligible to
contest an election under Article 191(a) of the Constitution, the sole question
for consideration would be whether that order of rejection was improper as held
by the High Court? The answer to the question would depend upon a finding as to
whether the post of One Man Commission constituted by the Government of
Karnataka to study the problems of Kannadigas in the border areas is an office
of profit or not. As has been stated earlier, the expression 'office' has not
been defined in the Constitution but this Court has interpreted the said word
in different cases and it would, therefore, be necessary to examine some of the
case laws on the point.
In the
case of Mahadeo vs.Shantibhai and ors. (1969) 2 SCR 422, the question for
consideration was whether appointment of a person on the panel of lawyers by
Railway Administration can be held to be an office and is that office is one
for profit? The Court, in that case referred to observation of Lord Wright of
the House of Lords in the case of Mcmillon vs. Guest (1942) Appeal Cases 561,
where Lord Wright has opined "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 certain duties are attached, especially one of a more or less
public character." In the aforesaid case this Court while considering the
appointment of the person concerned and all terms and conditions came to the
conclusion that it is difficult to hold that he held any office of profit under
the Government.
In Kanta
Kathura vs. Manak Chand Surana (1970) 2 SCR 835 a Constitution Bench of this
Court considered the question as to whether a Special Government Pleader can be
held to be an office of profit within the ambit of Article 191(1) of the
Constitution. The majority view expressed through Justice Sikri held that
before a person becomes subject to the disqualification in Article 191(1) there
must be an office which exists independently of his being the holder of the
office., and 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. In the majority judgment it was held that 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
Legislative Assembly, it can make that provision under Article 191(1)(e) of the
Constitution. The majority judgment in the aforesaid case accepted justice Rowlatt's
definition of the word 'office' in Great Western Railway co. vs. Bater, 8 Tax
Cases 231, and applying the said test to the case came to hold that a Special
Government Pleader would not come within the meaning of Article 191(1) of the
Constitution.
The
minority judgment expressed by Hidayatullah, C.J. came to hold that an office
going under the names of 'Additional Government Pleader', 'Assistant Government
Pleader', 'Special Government Pleader' will equally be an office properly
so-called as government is always at liberty to create offices of special
duties, and further held that the said office was an office of profit. While
coming to the said conclusion Their Lordships relied upon the earlier decision
of the Court in Mahadeo's case (supra) as well as Lord Wright's enunciation of
the word 'office' in McMillon's case.
In Shibu
Soren vs. Dayanand Sahay and Others (2001) 7 SCC 425, a Three Judge Bench of
this Court considered several earlier judgments of this Court and preferred to
follow the earlier judgment in Ashok Kumar Bhattacharyya vs. Ajoy Biswas and
Others (1985) 1 SCC 151, wherein the Court had observed, "for
determination of the question whether a person holds an office of profit under
the Government, each case must be measured and judged in the light of the
relevant provisions of the Act". In paragraph 36 the Court held thus
"The question whether a person holds an office of profit, as already
noticed, is required to be interpreted in a realistic manner having regard to
the facts and circumstances of each case and relevant statutory provisions.
While 'a strict and narrow construction' may not be adopted which may have the
effect of 'shutting off many prominent and other eligible persons to contest
the elections' but at the same time 'in dealing with a statutory provision
which imposes a disqualification on a citizen it would be unreasonable to take
merely a broad and general view and ignore the essential points'. The approach
which appeals to us to interpret the expression 'office of profit' is that it
should be interpreted with the flavour of reality bearing in mind the object
for enactment of Article 102(1)(a), namely, to eliminate or in any event to
reduce the risk of conflict between the duty and interest amongst members of
the legislature by ensuring that the legislature does not have persons who
receive benefits from the executive and may thus be amenable to its
influence." In our considered opinion this appears to be the right
approach to be adopted, particularly when the word 'office' has not been defined
in the Constitution.
Mr. Bobde,
the learned senior counsel, on the other hand relying upon the judgment of this
Court in the case of Rabindra Kumar Nayak vs. Collector, Mayurbhanj, Orissa and
others (1999) 2 SCC 627, contended that the enunciation of word 'office' by Rowlatt
in Great Western Railway Co. vs. Bater, indicating that it should be
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, was approved by this Court in the aforesaid case as well as
in Kanta Kathuria's case by the Constitution Bench, and therefore, that test
should be applied to the case in hand. It may be noticed at this stage, the
decision of this Court in Madhukar G.E. Pankakar vs. Jaswant Chobbildas Rajani
and others (1977) 1 SCC 70, where this Court held that for deciding the
question whether it was an office of profit under the Government or not it is
the circumstances that has to be looked at and not the form and further all the
several factors stated by the Court, as determinative of the holding of an
office under Government, need not be conjointly present. It was held that the
practical view, not pedantic basket of tests, should guide in arriving at a
sensible conclusion. A conspectus of the aforesaid decisions of this Court
unequivocally therefore, indicate that the question has to be answered
depending upon the facts peculiar to the case in hand with the object of
finding out whether in fact the Government retain some control over the post
which the incumbent was holding at the time of filing of nomination and was
there any profit attached to the post in question. The underlined idea
obviously is, that it should be free from any pressure from the Government so
that there can be no conflict in discharge of his independent duties as a
member of the Legislative Assembly or the Legislative Council. Mr. Bobde, the
learned senior counsel appearing for the respondent strongly urged that One Man
Commission, which Shri Vatal Nagaraj was holding had been created for a
specific tenure which does not last after the tenure is over and, therefore, if
the test of Rowlatt, J. is applied which has been approved by this Court, it
cannot be held to be an office of profit within the ambit of Article 191(1) of
the Constitution. We are, however, unable to persuade ourselves to agree with
this submission as in our view, taking into account the order of the Government
constituting the Commission, to study the problems of Kannadigas in the Border
areas of Kerala, Maharashtra, Andhra Pradesh, Goa and Tamil Nadu and to submit
a report to the Government and the appointment of Shri Vatal Nagaraj as a
Chairman of that Commission and thereafter conferring the status of the
Minister of Cabinet rank to that post and finally making a Budgetary provision
in order to a new head of account to defray the expenses of pay and day to day
expenses of the Chairman of the Commission it must be held that the office was
office of profit within the ambit of Article 191(1) of the Constitution and the
rejection of nomination on that score was not improper and High Court committed
error in holding that the nomination had been improperly rejected. Our
aforesaid conclusion is further strengthened by the provisions of the Karnataka
Legislature (Prevention of Disqualification) Act, 1956. The said Act had been
enacted by the Karnataka Legislature on 15th January, 1957 declaring certain
offices not to be the office of profit and stating that the holders thereof are
not inelligible for being chosen as, or for being members of the Karnataka
Legislative Assembly and Karnataka Legislative Council. Under Article 191 (1)(a)
a person who is disqualified for being chosen as and for being a member of the
Legislative Assembly or Legislative Council, if he holds any office of profit
under the Government of India or the Government of a State other than an office
declared by the legislature of the State by law not to disqualify its holder.
The aforesaid Karnataka Act appears to have been enacted, as contemplated under
Article 191(1)(a) of the Constitution. Section 2(a) defines a 'Committee' to
mean any Committee, Commission, Council, Board or any other body of one or more
persons whether statutory or not, set up by the Government of India or the
government of any State. Section 3 (d) includes the office of the Chairman or
Member of a committee, and therefore, by application of Section 3, the office
of the Chairman or member of a Committee would stand excluded from the
disqualification ordinarily. But the proviso to the said clause further
indicate that the holder of any such office is not in receipt of or entitled
to, any remuneration other than the compensatory allowance. The expression
'compensatory allowance' has been defined in Section 2(b). The Chairman or a
member of a Committee, therefore it is in receipt of or is entitled to any
remuneration other than compensatory allowance then the removal of
disqualification clause would not apply and the person concerned would stand
disqualified. The fact that the office of the Chairman or a member of a
Committee is brought within the purview of this Act implies that the office
concerned must necessarily be regarded as an office of profit, but for the
exclusion under the clause by the legislature, the holder of such office could
not have been eligible for being chosen as member of the legislature. The
object of this provision is to grant exemption to holders of office of certain
description and the provision in substance is that they will enjoy the
exemption even though otherwise they might be regarded as holders of offices of
profit. A conjoint reading of Section 2(a), 2(b), and 3(d) together with its
proviso of the Karnataka Legislature (Prevention of Disqualification) Act, 1956
unequivocally supports our conclusion earlier that the post of Chairman of a
Commission is an office of profit and in the case in hand, in view of the
Government order dated 24.5.2000, the remuneration which said Vatal Nagaraj was
getting cannot be held to be compensatory allowance within the ambit of Section
2(b) of the Act, and therefore, he was holder of an office of profit and
consequently the disqualification attached under Article 191 of the
Constitution would apply.
Mr. Venugopal
is also right in his submission that the second direction of the High Court is
not sustainable in law, but we need not further delve into the question, in
view of our finding on the other question.
In the
aforesaid premises, we have no hesitation in coming to the conclusion that the
respondent Vatal Nagaraj was holder of an office of profit and, therefore, his
nomination had rightly been rejected and the High Court committed error in
holding that it was an improper rejection.
Necessarily,
therefore, the election of the elected candidates could not have been held to
be null and void. We, therefore, set aside the impugned judgment of the High
Court of Karnataka and allow this appeal and hold that the appellants were duly
elected to the Karnataka Legislative Council and their election cannot be held
to be null and void.
..........................................J.
(G.B.
PATTANAIK) .........................................J.
(R.P.
SETHI) January 23, 2002.
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