Karnataka High Court
Dr. S.B. Amarkhed vs Basangouda on 7 June, 1993
Equivalent citations: ILR1993KAR2734, 1993(3)KARLJ448, 1995 A I H C 1270, (1993) 3 KANT LJ 448
ORDER N.D.V. Bhat, J.
1. This Petition is filed under Section 81 of the Representation of Peoples Act, 1951 (hereinafter referred to as the Act) by the unsuccessful candidate Dr. S.B, Amarkhed praying for declaring the election of respondent-1 to the 23-Manvi Assembly Constituency as void under the provisions of Section 100(1) (a), (b) & (d) of the Act, on the count that respondent-1 was disqualified to be a Member of the State Legislative Assembly under Article 191(1)(a) of the Constitution of India; as also on the count that corrupt practices such as, rigging and booth capturing have been practised at the election by respondent-1 and his supporters and also on the count that the result of the election in so far as it concerned respondent-1 has been materially affected. The petitioner has also prayed for declaring him as having been duly elected from the said Constituency.
2. General election to 23-Manvi Assembly Constituency was held on 24-11-1989. The last date for filing nomination to the said election was on 30-10-1989. Petitioner and respondents-1 to 6 had filed their nominations. The scrutiny of the nomination papers took place on 2-11-1989. The last date for withdrawing one's candidature was fixed on 4-11-1989. The nominations of all the candidates were approved by the Returning Officer, with the result, in all 7 candidates were in the fray for the said election. The election took place on 24-11-1989. It is seen that in view of the complaints filed by the Polling Officers in relation to the two booths viz., Polling Booth Nos. 6 and 7, re-poll was ordered and the re-poll took place on 26-11-1989. After the re-poll was held, counting took place and respondent-1 - Basangouda who polled 23,500 votes was declared as having been elected in the said election. Petitioner - Dr. S.B. Amarkhed polled the second highest number of votes viz., 17,928. The symbol of respondent-1 at the election was 'bicycle' and the symbol of the petitioner was 'hand'. The other candidates viz., respondents-3 to 6 polled lesser number of votes.
3. It is the case of the petitioner that respondent-1 - Basangouda was the Pradhana of Bagalwad Mandal Panchayat in Manvi Taluk at the time of filing his nomination and he continued to hold the said office till 6-12-1989 on which date according to the petitioner, respondent-1 tendered his resignation. Petitioner has alleged that the post of Pradhana of Mandal Panchayat is an office of profit as the Pradhana is paid a salary of Rs. 300/- p.m. under the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the Zilla Parishads Act). Petitioner has, therefore, contended that respondent-1 incurred disqualification under Article 191(1)(a) of the Constitution of India.
4. Petitioner has also alleged in his petition that respondent-1 indulged in corrupt practices such as, booth capturing and rigging of booths. According to him, such instances of booth capturing took place in polling booth Nos. 5, 6, 7, 68, 76, 74, 89, 91, 92, 93, 94, 95, 96, 100, 102 and 103, It is asserted that respondent-1 and his supporters snatched the ballot papers from the Presiding Officers and after putting the 'X' mark against the bicycle they put them into the ballot boxes. It is stated that on account of the complaint filed in respect of booth Nos. 6 and 7 re-polling took place in relation to those booths on 26-11 -1989. It is the version of the petitioner that in several instances after entering the polling booths, respondent-1 and his supporters have prevented the voters from exercising the franchise and sent them away threatening them and thereafter seizing the ballot papers from the officials and after putting the 'X' mark seal against the symbol of bicycle they put them in the ballot boxes. It is stated by doing so, respondent-1 and his supporters put their thumb impression or forged signatures on the counter-foils of the ballot papers and on, some counter-foils no signatures were affixed. It is the case of the petitioner that complaints were not filed in respect of the other polling booths referred to hereinabove (other than polling booth Nos. 6 and 7), either on account of the fact that the said officials were afraid of respondent-1 and his henchmen or that they were colluding with respondent-1 and his men. The petitioner has alleged that on account of the sins of commission on the part of respondent-1 and his henchmen, polling percentage in the aforesaid polling booths proved to be abnormally high and respondent-1 Basangouda polled in the said polling booths in the range of 80% to 99% of the votes polled. Petitioner has also alleged that even the votes of the dead persons and persons who were out of station on the date of election were also got cast in the process of rigging the votes in those particular booths.
5. Petitioner has, therefore, asserted that the election of respondent-1 is rendered void on the aforesaid grounds and that therefore, the same is liable to be declared as such and that he is entitled to be declared as having been elected in the said election.
6. Respondent-1 by his written statement has denied the various allegations of sins of commission attributed to him. He has contended in his written statement that he was not the Pradhana of Bagalwad Mandal Panchayat on the date of filing the nomination papers. It is his version that he has tendered his resignation much earlier. He has also contended that the office of Pradhana of Mandal Panchayat is not an office of profit. Respondent-1 has stated that the salary of Pradhana is not paid out of the State exchequer.
7. Respondent-1 has stoutly denied the allegations of corrupt practices such as, booth capturing and rigging attributed to him. The various allegations made by the petitioner in support of his assertion that respondent-1 indulged in booth capturing and rigging were all denied by respondent-1. According to respondent-1, petitioner was a stranger to the Constituency in question and that therefore, he was not at all popular in the said Constituency. He has also denied the other allegations made in the petition.
8. Respondents-2 to 5 have not filed any written statement. Respondent-6 - Raja Sanjeev Naik has, in his written statement submitted that the allegations made by the petitioner in the course of his petition are substantially true. He has also stated that respondent-1 taking advantage of his position as the Pradhana of Bagalwad Mandal Panchayat resorted to large scale rigging in polling booth Nos. 92 to 97 coming directly within the jurisdiction of Bagalwad Mandal Panchayat. It is further stated that in addition to the large scale rigging in these polling booths, respondent-1, his election agent and other agents with his knowledge and consent did resort to rigging in other polling stations also. It is the version of respondent-6 that respondent-1 had hired lorries, jeeps and tempos and he was taking goondas armed with sticks, axes and country pistols who stormed into the polling stations and took possession of the ballot papers and stamped the ballot papers in favour of the returned candidate. It is stated that a jeep belonging to one Gavigatta Naganna Gouda was used for transporting the goonda elements who indulged in rigging in the aforesaid polling stations. It is his version that after coming to know of the large scale rigging, he directed his worker - Vinayak Patil to book a trunk call to the Chief Electoral Officer, Bangalore and convey the message of the large scale rigging resorted to by the 1st respondent, his election agent and other agents with his knowledge and consent, but according to him, the said attempt proved futile for the reasons stated in para-6. He has also made other allegation in para-7 of his written statement which are identical to the allegations reflected in certain paras in the petition filed by the petitioner and alluded to earlier. He has prayed for setting aside the election of respondent-1 and for ordering re-poll.
9. Respondent-7 - the Returning Officer has in his written statement contended that he is not a necessary party and that he ought not to have been made a party in the light of the Decision referred to in his written statement. He denied the allegations that there was any improper acceptance of nominations. He has stated that scrutiny of nominations took place on 2-11-1989 at 11.00 a.m.; but neither the petitioner nor any other person raised any objection regarding the nomination of the 1st respondent. He has also taken a contention that the office of Pradhana of Mandal Panchayat is not an office of profit either under the Government of India or the State Government. He has denied the allegation that booth capturing had taken place in the polling booths referred to by the petitioner (other than polling booth Nos. 6 and 7). However, he has stated that the Presiding Officers of Polling Station Nos. 6 and 7 reported regarding rigging and capturing of booths in the Polling Station Nos. 6 and 7 respectively and that he contacted the District Election Officer, Raichur over phone and kept the connected papers and boxes separately and on 25th morning he went to Raichur along with those two Presiding Officers and the District Election Officer had talked with the Chief Electoral Officer, Bangalore. He has also stated that the Chief Electoral Officer, Bangalore issued directions over phone that the Election Commission of India has given clearance order for conduct of re-poll in respect of both Assembly and Parliamentary elections on 26-11-1989 pertaining to the Polling Station Nos. 6 and 7 of 23 - Manvi Assembly Constituency. He has further stated that he pursuant to such a direction after giving wide publicity regarding the time and the place of re-poll, conducted the re-poll on 26-11-1989 in respect of Polling Station Nos. 6 and 7 between 8-00 a.m. and 5-00 p.m. He has asserted that except polling station Nos. 6 and 7, he has not received any complaint from any Presiding Officer or from any persons regarding either rigging or booth capturing. He has also asserted that neither the petitioner nor any other persons has brought to his notice any irregularity or illegality in respect of polling. In so far as the allegations reflected in the petition in relation to the electoral roll are concerned, he has stated that the electoral roll was amended in the year 1989 and certain names were deleted from the electoral roll and that the contesting candidates were informed by a letter of the Returning Officer dated 11-11-1989 to prepare a list regarding the dead and bogus voters in the Taluka, but none of the contesting candidates has furnished the list. He has also stated that the Returning Officer is not aware of any votes cast on behalf of the dead persons. He has prayed for the dismissal of the Election Petition.
10. On the basis of the above pleadings, the following issues were raised by my predecessor:
1. Does the petitioner prove that the election of respondent-1 is vitiated because he was, on the date of the poll holding an office of profit as alleged in the petition?
2. Does the petitioner prove the factum of capturing the poll booth Nos. 5, 6, 7, 68, 73, 74, 88, 91, 92, 93, 94, 95, 96, 100, 102 and 103 on the date of the poll and in consequence of the same the result of the election has been overwhelmingly affected?
3. Does the first respondent prove that the election petition is not maintainable for the reasons mentioned in the written statement?
4. What order?
11. The petitioner in support of his case examined 14 witnesses including himself. Ex.P.1 to Ex.P.17 were marked for the petitioner. Respondent-1 has examined himself and has also examined 20 witnesses. Ex.R.1 and Ex.R.2 were marked for respondent-1.
12. Respondents-2 to 6 have neither cross-examined the witnesses examined on either side nor have they examined themselves or any witnesses. Respondent-7, in fact, is examined by the petitioner. Respondents-2 to 7 have not addressed any arguments.
13. I have heard the arguments of Sri R.J. Desai, learned Counsel for the petitioner and Smt. M.N. Pramila, learned Counsel for respondent-1.
14. ISSUE NO. I - Under this issue, it is required to be seen as to whether respondent-1 was holding an office of profit under the Government of India or the Government of State at the relevant point of time and thereby incurred any disqualification for being chosen as and for being a Member of the Legislative Assembly. I may point out here that though the issue in question is not exactly worded in the way and manner as it ought to have been worded, the same, however, has not rendered any prejudice to either side since both the contesting parties have proceeded to the trial, bearing in mind What exactly is the crux of the question reflected by this issue.
15. It is not in dispute that respondent-1 was the Pradhana of Bagalwad Mandal Panchayat According to the petitions, respondent-1 resigned the office of Pradhana by tendering his resignation to the Deputy Commissioner on 6-12-1989. He has also produced Ex.P.2, a copy of the letter purported to have been addressed by respondent-1 Basangouda to the Deputy Commissioner, Raichur. Respondent-1 has, in the course of his written statement, denied that he continued to be the Pradhan till 6-12-1989. However, in the written statement it is not made clear as regards as to on what date he tendered his resignation, but in the course of his evidence at para-7 of his deposition, he has stated that he tendered his resignation for the office of the Pradhana on 30-10-1989. He has also stated that he did not receive any remuneration whatsoever towards the remuneration payable under the law after 30-10-1989. It is also his version therein that the resignation was sent to the Chief Secretary, Zilla Parishad on 30-10-1989 itself. However he has not produced any document to show as to when exactly he tendered his resignation. At this juncture, it is relevant to refer to the provisions of Section 46 of the Zilla Parishad Act. It reads as under:
"Resignation of Pradhana or Upa-pradhana -
(1) The Pradhana may resign his office by writing under his hand addressed to the Deputy Commissioner.
(2) The Upa-pradhana may resign his office by writing under his hand addressed to the Pradhana and in the absence of the Pradhana to the Deputy Commissioner.
(3) Every resignation under Sub-section (1) or Sub-section (2) shall take effect on the expiry of ten days from the date of its receipt by the Deputy Commissioner or the Pradhana, as the case may be, unless within the period of ten days he withdraws such resignation by writing under his hand addressed to the Deputy Commissioner or the Pradhana, as the case may be."
A perusal of the said provisions would clearly go to show as regards as to how the resignation is required to be tendered if at all by the Pradhana and as to when such resignation takes effect. The resignation is required to be sent to the Deputy Commissioner. Further it will have to be in writing. Further it will take effect after the expiry of ten days from the date of its receipt by the Deputy Commissioner. It is therefore clear that any amount of resignation sent to the Chief Secretary or some one else will be wholly irrelevant and the question as to when respondent-1 ceased to be the Pradhana will have to be answered only in the context of the provisions reflected in Section 46 of the Zilla Parishad Act culled out hereinabove. As pointed out earlier, the petitioner has produced a copy of the letter at Ex.P.2. Further he has also got produced the original letter at Ex.P.2. Respondent-1 also has not, in the course of his evidence or for that matter in the course of his written statement, come out with any definite version as regards as to when he had actually sent the letter of resignation to the Deputy Commissioner. Under these circumstances, I have no hesitation whatsoever in taking a view that respondent-1 did not cease to be a Pradhana till the expiration of ten days next after Ex.P.2 which is dated 6-12-1989 was actually communicated to the Deputy Commissioner, Raichur. It is therefore clear that respondent-1 was a Pradhana of Bagalwad Mandal Panchayat both on the date of nomination as also on the date of election to the Legislative Assembly.
16. If that be so, the next question that is required to be considered is as to whether the office of Pradhana is an office of profit and if so, whether the same is an office of profit under the Central or the State Government. It is necessary to bear in mind that a candidate merely by holding an office of profit will not render him disqualified for being chosen as a Member of either House of Parliament or of the Legislative Assembly. However, if he holds an office of profit either under the Government of India or the Government of State, he will render himself disqualified to be so chosen.
I may point out here that the petitioner has, nowhere in the course of his Petition, stated that respondent-1 was holding an office of profit under the Government of India or the State Government though the petitioner has indeed asserted more than once in the course of his Petition that respondent-1 is holding an office of profit. However, on this count alone I am not inclined to throw over board the point pressed into service by the petitioner under this issue. I hasten to add here that both the Counsels representing the petitioner and respondent-1 have addressed arguments on the question as to whether the office of Pradhana is an office of profit under the State Government. Under these circumstances, it is necessary to see as to whether the office of Pradhana is an office of profit and also to see as to whether it is an office of profit under the State Government. At this juncture, it is necessary to refer to some of the provisions of the Zilla Parishad Act (for short) relevant in the context of the point under consideration. Section 44 of the Z.P. Act relates to the Term of office and conditions of service of Pradhana or Upa-pradhana of the Mandal Panchayat Section 44(3) of the Z.P.Act reads as under:
"Term of office and conditions of service of Pradhana or Upa-pradhana -
(1) xxx xxx xxx (2) xxx xxx xxx
(3) There shall be paid a monthly salary of three hundred rupees to the Pradhana and one hundred and fifty rupees to the Upa-pradhana. Their other conditions of service shall be as prescribed."
From what is stated hereinabove, it is clear that the Pradhana is paid a salary of Rs. 300/- p.m. At this juncture, it is also necessary to see as to what exactly is the function of the Pradhana as prescribed under the Act. Section 61 of the Z.P. Act prescribed the functions and powers of the Pradhana. It reads as under:
"Functions and powers of the Pradhana-
(1) The Pradhana shall, in addition to the functions and powers exercisable under any other provision of this Act or rules made thereunder,-
(a) convene meetings of the Mandal Panchayat;
(b) have access to the records of the Mandal Panchayat; and
(c) exercise supervision and control over the acts of the officers and employees of the Mandal Panchayat.
(2) The Pradhana may, if in his opinion the immediate execution of any work or the doing of any act which requires the sanction of a committee or of the Mandal Panchayat, is necessary in public interest convene a meeting for the purpose with a notice of 24 hours.
(3) The Upa-pradhana shall exercise the powers and perform the function of the Pradhana when the Pradhana is absent on leave or is incapacitated from functioning or is continuously absent for more than fifteen days."
A perusal of the above provisions would indeed go to show that the office of a Pradhana of a Mandal panchayat is not just and an ornamental office, but is an office to which certain important duties are attached or assigned. Further the nature of the duties or the functions would indeed go to show that the job of a Pradhana is almost a whole time job. The question of payment of salary of Rs. 300/- will have to be considered also in the context of the duties assigned to the job of a Pradhana, Further it is significant to notice that the Legislature in its wisdom has employed the word 'salary' with reference to the amount of Rs. 300/- payable to the Pradhana from month to month and has not chosen to use the word 'honorarium1 or for that matter any other word like 'allowances' etc. If it was the intention of the Legislature that what was being given to the Pradhana from month to month was only a honorarium or allowance, nothing prevented the Legislature to say so. When the Legislature has not chosen to use those expressions but has chosen to use the expression 'salary', the same would indeed assume some significance. However, I hasten to add here that the distinction or difference between salary and honorarium is very thin and sometime difficult to demarcate. At the same time, it appears to me that having regard to the functions prescribed for the Pradhana in Section 61 of the Z.P. Act and the same appears to be a whole time job, the office of Pradhana is an office of profit. In this connection, the Decision in MOTI SINGH v. BHAIYYALAL, 29 ELR 215 deserves to be noted. In the said case, the Bombay High Court while considering the question as to whether the office of the Vice-President of the Zilla Parishad is an office of profit has, among other things, held as under:
"In view of all the aforesaid definitions and the facts of the present case which showed that the respondent was employed for doing a full time job of the Vice-President and Chairman of the subject committees, the payment which was sanctioned for him would necessarily be as his fee or remuneration for the work done by him. The euphemistic use of the word 'honorarium' would not change the fact that he is getting a regular, and monthly salary or remuneration. In view of receipt of salary or remuneration, coupled with perquisites of a free accommodation and a free conveyance that the respondent was getting. I have no manner of doubt that he is holding an office of profit. I find accordingly."
In the same way in the Decision in RAMA LAL v. VISHVESHWAR NATH, 29 ELR 307 the High Court of Rajasthan has pointed out that a Pramukh of the Zilla Parishad who was entitled to a honorarium of Rs. 300/- a month is holding an office of profit.
17. In the instant case, as pointed out earlier, the Pradhan is entitled to a salary of Rs. 300/- p.m. It is true that an amount of Rs. 300/- is a small one. However that would not be distinguishing feature to hold that the office of Pradhana is not an office of profit.
18. From what is stated hereinabove, I have no hesitation whatsoever in holding that the office of Pradhana is an office of profit.
19. If that be so, it will have to be next seen as to whether the office of profit held by the Pradhana is an office of profit under the Government of the State. At the juncture, it would be indeed necessary to refer to the provisions of Article 191(1)(a) of the Constitution of India. Article 191(1)(a) of the Constitution of India reads as under:
"Disqualification 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;
(b) to (e) xxx xxx xxx"
20. Sri R.J. Desai, learned Counsel for the petitioner contended that the office held by the Pradhana of a Mandal Panchayat, is an office of profit under the State Government, in that, the State Government exercises numerous control over the Mandal Panchayat. In this connection, the learned Counsel invited the attention of this Court to the provisions of Section 8 of the Zilla Parishad Act and Section 113 of the said Act as also the provisions of Sections 190 and 191 of the said Act. The learned Counsel submitted that as the Mandal Panchayat exercises Governmental functions is in the nature of a 'mini Government'. Reliance is placed on certain observations made by this Court in the Decision in BOMMEGOWDA v. STATE OF KARNATAKA, . Dilating on this aspect, the learned Counsel submitted that there are certain important tests by the touch stone of which the question as to whether an office of profit is one under the Government can be resolved. In this connection, the learned Counsel has placed reliance on the Decision of the Supreme Court in BIHARILAL v. ROSHANLAL, and the Decision in SATRUCHARLA CHANDRA-SEKHAR RAJU v. VYRICHERLA PRADIP KUMAR DEV AND ANR., . With reference to the Decision in Satrucharla Chandrasekhar's case, the learned Counsel pointed out that one of the very important tests which is required to be seen is as to whether holding an office of Pradhana comes in any manner into conflict with his duties as a Legislator and with his obligation with the Government because of the office he holds. The learned Counsel argued that if a Pradhana is elected as a Legislator, the latter position would not enable him to do his duties as a Pradhana independently and without prejudice or predilection. Making his submissions on these lines, the learned Counsel contended that the office of Pradhana is an office of profit under the Government of State which would render him disqualified to be chosen as a Member of the Legislative Assembly. The learned Counsel, Sri Desai also contended that the Karnataka Legislature (Prevention of Disqualification) (Amendment) Act, 1991 which was enacted with a view to remove the disqualification also is not of any consequence since the provisions of the said Act having regard to the language employed therein would not serve the purpose for which the Act was enacted. The learned Counsel has placed reliance on certain Decisions of the Supreme Court in this behalf to contend that the said Act is of no avail to the respondent.
21. On the other hand, Smt. Pramila, learned Counsel for respondent-1 contended that the office of Pradhana is an elected office and that he can be removed only by a No Confidence Motion. In other words, the learned Counsel argued that Pradhana is neither appointed by the Government nor can he be removed by the Government. In this connection, the learned Counsel has invited the attention of this Court to the provisions of Section 43 of the Zilla Parishad Act as also to the provisions of Sections 46 and 47 of the said Act. The learned Counsel, Smt. Pramila also pointed out that the Mandal Panchayat is a body corporate incorporated under Section 6 of the said Act and that therefore, it is an independent entity. A reference is also made to Section 61 of the Zilla Parishad Act relating to the functions and powers of the Pradhana. Attention of the Court is also drawn to the provisions of Section 114 of the said Act which provides for the "Mandal Panchayat Fund". Reference is also made to the provisions of Section 123 relating to the appointment of employees. The learned Counsel also took the Court through the provisions relating to the dissolution of Mandal Panchayat including the powers of the Government to dissolve as provided for under Section 311 of the Zilla Parishad Act. The learned Counsel for respondent-1 contended that the various provisions referred to by her and alluded to hereinabove would unmistakably go to show that the Mandal Panchayat is an independent body, notwithstanding the fact that it may exercise some of the powers which would otherwise have been exercised by the State Government The learned Counsel submitted that none of the Decisions pressed into service by the learned Counsel for the petitioner would apply to the facts of the instant case. The learned Counsel argued that the Decision in Satrucharla Chandrasekhar's case, is not at all of any assistance to the petitioner, but on the other hand, the same would fortify the submission made on behalf of respondent-1. The learned Counsel further submitted that the Act No. 20/1991 that is to say, the Karnataka Legislature (Prevention of Disqualification) (Amendment) Act, 1991 would having regard to its language remove the disqualification if any, incurred by respondent-1.
22. I have given my anxious consideration to the submission made by the learned Counsels on either side. The question as to whether the office of profit held by the Pradhana is one under the Government is required to be considered, bearing in mind the various factors relevant for consideration and in the light of the guidelines laid down in the decided Cases. At the very outset it is necessary to remember that the office of Pradhana is an office created by a Legislative enactment viz., Zilla Parishad Act. The Zilla Parishad Act is enacted with an avowed objective. The Preamble of the Zilla Parishad Act reads as under:
"Whereas it is expedient to provide for the establishment in rural areas of Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats to assign to them local Government and judicial functions and to entrust the execution of certain works and development schemes of the State Five Year Plans to the Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and to provide for the decentralisation of powers and functions under certain enactments to those local bodies for the purpose of promoting the development of democratic institutions and securing a greater measure of participation by the people in the said plans and in local and Governmental affairs and for purposes connected with and incidental thereto;
Be it enacted by the Karnataka State Legislature in the Thirty-fourth Year of the Republic of India as follows:-"
The Preamble of the Zilla Parishad Act culled out hereinabove is self-explanatory and it is not necessary to dilate on the same at this juncture. All that can be observed at this stage is that the Zilla Parishad Act was enacted with the objects reflected in the Preamble. It is also clear that the purpose behind the Act among other things is to entrust to the bodies referred to their certain Governmental functions as also to provide to the people a sort of local Government. This aspect can be appropriately referred to in greater detail a little later.
23. At this juncture, it is pertinent to note that under Section 6 of the said Act, the Mandal Panchayat is made a body corporate having perpetual succession and a common seal. It is vested with the capacity of suing or being sued in its corporate name. In other words, it is made a separate legal entity distinct and different from the State Government. Further under Section 2(17) of the Zilla Parishad Act, the Mandal Panchayat is categorised among others as a local authority. The Mandal Panchayat is established under Section 4 of the Zilla Parishad Act. Section 5 of the said Act goes to show that it shall consist of elected members. Section 43 of the said Act goes to show that the Pradhana is an elective post. Section 47 of the Zilla Parishad Act provides for no-confidence motion against the Pradhana. He ceases to be a Pradhana on the motion of no-confidence being carried with the support of not less than two-thirds of the total number of members of the Mandal Panchayat. Further Section 114 of the said Act provides for the creation of Mandal Panchayat Fund of which following shall forth part-
"(a) the amount which may be allotted to the Mandal Panchayat Fund by the Government or by the Zilla Parishad under the provisions of this or any other Act;
(b) the proceeds of any tax imposed by the Mandal Panchayat;
(c) all sums ordered by a court to be placed to the credit of the Mandal Panchayat Fund;
(d) the sale proceeds, except in so far as any person is entitled to the whole or a portion thereof, of all dust, dirt, dung or refuse (including the dead bodies of animals) collected by the employees of the Mandal Panchayat;
(e) sums contributed to the Mandal Panchayat Fund by the Government or Zilla Parishad;
(f) all sums received by way of loans or contributions from the Government or any other authority or person or by way of gift;
(g) sums received by way of grants, subsidy or loans from the Khadi and Village Industries Commission or the Karnataka Khadi and Village Industries Board or any other authority or institution;
(h) the income from or proceeds of any property vesting in the Mandal Panchayat; and
(i) sums raised by way of loans by the Mandal Panchayat with the previous sanction of the Government."
It is necessary to point out here that though the State Government does contribute to the fund, the same is not the sole source. Further Section 115 of the Zilla Parishad Act provides for the manner of application of the said fund. I may also point out here that the various provisions of the Zilla Parishad Act would go to show that the Government has got certain control over the Mandal Panchayat. It is also necessary to notice that under Section 311 of the said Act the Government has power to dissolve the Mandal Panchayat under the circumstances mentioned there.
24. From what is stated hereinabove, it is clear that the Pradhana is not appointed by the Government. Further it appears that his salary is also not payable from the State Exchequer as such. It is also evident that the Mandal Panchayat is distinct and different from the State Government, being a separate legal entity. Further, the Act itself provides for the apparatus to remove the Pradhana by moving a motion of no confidence. !t does not appear that the Government has got any disciplinary control as such over the Pradhana. Further the functions of the Pradhana are specified in the Act itself. At the same time, it cannot also be gain-said that the Government has some certain control over Mandal Panchayat. It is also clear that the powers exercised by the Mandal Panchayat are akin to the functions exercisable by the Government.
25. It is in the context of the aforesaid circumstances, the question as to whether the office of profit held by the Pradhana is one under the Government is required to be considered. While it is necessary to remember that each one of the aforesaid aspects may be relevant for consideration, none of the aforesaid aspects by itself is decisive on the question under consideration. Before adverting to the guidelines reflected in the Decisions cited at the Bar on either side with reference to this aspect, I think it would be indeed in fitness of things to refer to some other Decisions also since, the said Decisions, in my opinion, would render great assistance to reach a conclusion on the question in controversy. The Bombay High Court in Moti Singh v. Bhaiyyalal had occasion to consider the question as to whether the office of profit held by the Vice-President of a Zilla Parishad can be said to be one under Government. After referring to the various Decisions reflected therein the High Court of Bombay has reached a conclusion that the said office of profit is not one under the Government. It is pointed out by the Bombay High Court that the provisions of Maharashtra Zilla Parishads and Panchayat Samithis Act, 1961 would only show that the Vice President was subordinate to an office bearer of the Zilla Parishad. It is pointed out that even if the contention of the petitioner (in the said case) that Zilla Parishads are subject to some control by the Government is accepted, the respondent (Vice President of Zilla Parishad) would come under Clause-2 of Article 58 of the Constitution and holding an office of profit "under a local authority subject to the control of the State Government". It is further pointed out that the same, however, does not and cannot make the Vice President the holder of an office of profit under the State Government within the meaning of Article 191(1)(a) of the Constitution.
In the Decision in Ramlal v. Vishveshwarnath, the High Court of Rajasthan had occasion to consider the question as to whether the office held by the Pramukh of Zilla Parishad is an office of profit under the Government. In fact, both the High Court of Bombay and High Court of Rajasthan in the respective Decisions referred to immediately hereinabove and taken the view that the office of Vice President of Zilla Parishad (in the case dealt with by the Bombay High Court) and the office held by the Pramukh of Zilla Parishad (in the case dealt with by the High Court of Rajasthan) are offices of profit. However, both the High-Courts have ruled that neither is an office of profit under the Government, the emphasis being "under the Government". I have already referred to the reasons given by the Bombay High Court briefly to reach a conclusion as to why the Vice President of Zilla Parishad though he was drawing a salary (though he was drawing a remuneration of Rs. 300/-) is not an office of profit under the Government. The High Court of Rajasthan in Ram Lal's case, after referring to the various Decisions alluded to therein has, among other things, observed that merely because, the Zilla Parishad performs Governmental functions and the State Government exercises control over it, it cannot be held that it is merely a Department of the State. It is further pointed out that within the four corners of the Rajasthan Panchayat Samiti and Zilla Parishad Act, 1959 the Zilla Parishad has full power to act independently and that there is no provision in the Act or the Rule framed thereunder under which the State Government can dictate to it in which manner it should discharge a particular duty or perform a particular function. It is also pointed out that the power of the State Government to extend the term of appointments indirectly by extending the term of the Zilla Parishad and the power to terminate the appointment indirectly by superceding the Zilla Parishad cannot be regarded as power of appointment and removal. It is further pointed out that a Pramukh, no doubt, holds an office of profit under the Zilla Parishad which is a local authority, subject to the control of the State Government and as such, he is disqualified for the office President of the Union under Article 58(2) of the Constitution of India. but he is not disqualified for being chosen as a Member of the Legislative Assembly. In my opinion, the observations made in the aforesaid Decisions have relevance in the context of the facts of this particular case. I hasten to add here that Act No. 5/1968 was also since passed by Rajasthan Legislature declaring that the office of Pradhan or Pramukh, among others, as defined in Rajasthan Panchayat Samithis and Zilla Parishads Act, 1959 insofar as it is an office of profit under the State Government shall not disqualify or deemed to have disqualified the holder thereof for being chosen as or for being a member of the Rajasthan Legislative Assembly. It is also necessary to point out here that the Judgment of the Rajasthan High Court to reach a conclusion that the office of Pramukh of the Zilla Parishad is not an office of profit under the State Government was given even before Act No. 5/1968 was passed by the State Legislature or for that matter Ordinance No. 3/1968 which preceded Act No. 5/1968 was passed by the Governor of Rajasthan. The Ordinance came into being on 24-12-1968 and the Judgment of the Rajasthan High Court was delivered on 1-8-1967. It is under these circumstances, I have chosen to refer to the reasoning reflected in the Judgment of the Rajasthan High Court with reference to the aspect under consideration. Further, it is also necessary to notice here that the Supreme Court also had occasion to consider the scope and ambit of Article 191(1)(a) vis-a-vis Article 58 of the Constitution. In the Decision in D.R. GURUSHANTHAPPA v. ABDUL KHUDDUS ANWAR AND ORS. , the Supreme Court, among other things, in the said Judgment, has held as under in para-II therein:
"In this connection, a comparison between Articles 58(2) and 66(4) and Articles 102(1) and 191(1)(a) of the Constitution is of significant help. In Articles 58(2) and 66(4) dealing with eligibility for election as President or Vice-President of India, the Constitution lays down that a person shall not be eligible for election if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments. In Articles 102(1)(a) and 191(1)(a) dealing with membership of either House of Parliament or State Legislature, the disqualification arises only if the person holds any office of profit under the Government of India or the Government of any State other than an office declared by Parliament or State Legislature by law not to disqualify its holder. Thus, in the case of election as President or Vice-President, the disqualification arises even if the candidate is holding an office of profit under a local or any other authority under the control of the Central Government or the State Government, whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution if the office of profit is held under a local or any other authority under the control of the Governments and not directly under any of the Governments. This clearly indicates that in the case of eligibility for election as a member of a Legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification even if that local authority be under the control of the Government. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification comes into existence for being elected as the President or the Vice-President. The Company in the present case, no doubt, did come under the control of the Government and respondent-1 was holding an office of profit under the Company; but, in view of the distinction indicated above, it is clear that the disqualification laid down under Articles 191(1)(a) of the Constitution was not intended to apply to the holder of such an office of profit."
It is also necessary to point out here that while delivering this Judgment, the Supreme Court has relied on Its earlier Decision in ABDUL SHAKUR v. RIKHAB CHAND AND ANR., .
26. Sri Desai, learned Counsel for the petitioner, however, has placed strong reliance on the Decision in Biharilal Dobray v. Roshan Lal Dobray. That was a case where the elected candidate was originally employed as an Assistant Teacher in Basic Primary School run by Zilla Parishad of U.P. On coming into force of the U.P. Basic Education Act, 1972, he became an employee of the Board of Basic Education under Section 9(1) of the said Act. While holding the post of the Assistant Teacher, he filed his nomination. He was elected and his election was questioned by the unsuccessful candidate. The High Court dismissed the Election Petition and in Appeal before the Supreme Court, it was contended that the elected candidate at the time of filing his nomination was holding an office of profit. The Rules framed under the Act had laid down that the Appellate Authority, in case of disciplinary proceeding, are the State Government or the Offices of the Government, depending upon the nature of the Court. The Supreme Court after referring to the provisions of the said Act and the Rule, held, among other things, as under:
It is seen that all officers mentioned in column 3 and column 4 of the above Schedule are either the State Government or officers appointed by the State Government. The said officers are all officers of the Government Department who hold the posts in the Board ex officio, that is, by virtue of the corresponding post held by them under the Government. The rules provide for the procedure to be followed in disciplinary proceedings and the punishments that may be imposed when an employee is found guilty of any act of misconduct. Rule 5 of the said rules provides for an appeal against any order imposing punishment to the prescribed authority. The procedure laid down in Civil Services (Classification, Control and Appeal), Rules as applicable to servants of the Uttar Pradesh Government is required to be followed as far as possible in the case of the employees of the U.P. Board of Basic Education, The funds of the Board mainly come from the contribution made by the State Government. The school in question is not a privately sponsored institution which is recognised by the Board. The Statement of Objects and Reasons attached to the Bill which was passed as the Act clearly says that the Act was passed in order to enable the State Government to take over the administration of Schools imparting primary education which were being run by the local authorities into its own hands. Even though the representatives of local authorities are associated in the administration of such schools after the Act was passed, the final control of the schools is vested in the Government and such control is exercised by it through the Director and Deputy Director of Basic Education (Member Secretary) and other District Basic Education Officers appointed by the Government."
On the basis of the said findings, the Supreme Court held that the Government had direct control and that the subordination of the Board and its employees to the Government is writ large on the face of the Act and the Rules made thereunder. Taking into consideration these aspects, the Supreme Court held that under the Act, the Government took over all the basic schools with the object of providing compulsory education to the children and that every employee of the Board is, in fact, holding the office under the Government. At this juncture, it is necessary to notice here that the Decision in Biharilal Dobray's case was pressed into service in a later case viz., in Satrucharla Chandrasekhar's case by the unsuccessful candidate to contend that the successful candidate was holding an office of profit under the Government. With reference to the said case, the Supreme Court in Satucharla Chandrasekhar's case, has, among other things, pointed out as under:
"As a matter of fact in a later decision i.e., in Ashok Kumar Bhattachary's case, this Court distinguished Biharilal Dobray's case and held thus (at p.217, Para-20 of AIR):
"The measure of control by the Government over a local authority should be judged in order to eliminate the possibility of conflict between duty and interest and to maintain the purity of the elected bodies. After reviewing various cases, and the provisions of the various sections of the U.P. Basic Education Act, 1972 especially in view of Section 13 of the Act, this Court held in the last mentioned case that the measure of control was such that U.P.Education Board was an authority which was not truly independent of the Government and every employee of the Board was in fact holding an office of profit under the State Government. The Statement of Objects and Reasons of the U.P. Basic Education Act, 1972 and Sections 4, 6, 7, 13 and 19 all of which have been set out in extenso in that decision make that conclusion irresistible."
Therefore Biharilal Dobray's case is not of much assistance to the respondents. As a matter of fact, as already observed in Biharilal Dobray's case as well as Ashok Kumar Battacharyya's case the emphasis was also on the nature of the post held and the possibility of conflict between duty and interest of an elected member and to appreciate the same the test is whether the Government has power to appoint or dismiss the employee who is being chosen as a legislator."
27. From what is stated hereinabove, it appears to me that the facts in Biharilal's case are clearly distinguishable and the ratio laid down in the said case cannot be called in aid by the petitioner for the same reason explained by the Supreme Court in a later case.
28. It is significant to notice here that the Supreme Court in Satrucharla Chandrasekhar's case has taken a survey of the various Decisions rendered by it earlier and in view of the same, it is not necessary to refer to the earlier Decisions. After referring to the various Decisions, the Supreme Court has in para-23 in its Judgment held as under:
"What emerges from the above discussion is that the Government has some control over the ITDA which is set up as a project, since it provides funds and sanctions the posts; the District Collector is appointed as Project Officer and some officers are ex-officio members of the ITDA which carries out the object of providing the compulsory education in tribal areas. But the ITDA is a registered society having its own constitution. Though the Project Officer is the District Collector, he acts as a different entity. The power to appoint or to remove teachers is not with the Government but with the Project Officer. The Government may have control over the appointing authority but has no direct control over the teachers. The small post that appellant holds in ITDA is only that of a Teacher who is directly under the control of the Project Officer. In such a situation the question of any conflict between his duties and interests as an elected member does not arise since it cannot be said that he, as a teacher, can be subjected to any kind of pressure by the Government which has neither the power to appoint him nor to remove him from service. Taking a practical view of the substance of these factors into consideration, we are of the view that the appellant cannot be held to be holding an office of profit under the Government. Accordingly the order of the High Court is set aside and the appeal is allowed. Parties are directed to bear their own costs throughout."
29. A careful perusal of the Judgment of the Supreme Court in Satrucharla Chandrasekhar's case would clearly go to show that the fact that the Government has got some control over Mandal Panchayat or for that matter the Government contributes certain amount to the Mandal Panchayat fund or the fact that the functions exercised by the Mandal Panchayat are in the nature of Governmental functions or for that matter the fact that the Government has got under certain circumstances the power to dissolve Mandal Panchayat are not factors which are decisive with reference to the question in controversy. Sri R.J. Desai, learned Counsel for the petitioner, however, submitted that one of the important criteria laid down in Satrucharla Chandrasekhar's case, viz., the possibility of conflict between the duties attached to the office of the Pradhan and the duties flowing from one's position as an M.L.A. will be decisive in this case and according to Sri Desai, as pointed out earlier, if a Pradhana is elected as an M.L.A. he will not be in a position to exercise his duties as Pradhana freely and impartially or effectively. Though Sri Desai is right in contending that the criterion laid down by the Supreme Court with reference to the conflict of duties is a very important criterion, I am not in a position to agree with him that the Pradhana if elected as an M.L.A. cannot be in a position to effectively exercise his functions as Pradhana or for that matter he would be in a position to exercise his functions without prejudice or predilection. I am indeed of the view that the submissions made by Sri Desai in this behalf are far fetched. The functions of the Pradhana as enumerated in Section 61 of Zilla Parishad Act are already referred to earlier. If the Pradhana does not discharge his function properly there is a provision to remove him by moving a motion of no confidence. Further in a democratic set up where elections are fought out on party lines at all levels, that is to say, even at the level of Panchayats, submissions made by Sri Desai lose their significance. As pointed by the Supreme Court in the Decision in GURUGOBINDA BASU v. SARKARI PRASAD GHOSAL AND ORS., a practical and sensible conclusion is required to be reached in such a situation. Under these circumstances, I am not inclined to agree with the submissions made by Sri Desai in this behalf.
30. Further, it is necessary to remember that Mandal Panchayat is a local authority as defined in Section 2(17) of the Zilla Parishad Act. It is therefore obvious that the Chairman of the Mandal Panchayat is a holder of office under a local authority. Might be that the Government has got some control over the Mandal Panchayats; that however will not and cannot make the Pradhana of the Mandal Panchayat an holder of office of profit under the Government. This line of distinction is clearly brought out in the two Decisions of the Supreme Court viz., in Abdul Shakur's case and in Gurushanthappa's case - para 11. The observations of the Supreme Court in the said two Decisions are on the point. As pointed out by the Supreme Court, the wording of Article 58(2) and Article 191(1)(a) of the Constitution is not the same. While under Article 58(2), a person shall not be eligible for election as President (of the Union) if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments, under Article 191(1)(a) the latter part of disqualification reflected in Article 58(2) (portion underlined herein earlier), is not a disqualification to be chosen as or to be a Member of the Legislative Assembly. Even at the risk of repetition it is necessary to state that the Mandal Panchayat is a local authority and even if it is held that it is subject to control by the Governments still the holder of office of profit in a Mandal Panchayat cannot and will not be a holder of office of profit under the State Government. Further the Supreme Court in the Decision in Ashok Kumar's case, has in para-11 of its Judgment observed that "Municipalities are separately mentioned in contradistinction of the State Government as it will be clear from reference to Item 5 in List II of the VII Schedule of the Constitution. Therefore, a local authority as such is a separate and distinct entity. This will become further clear from Article 58(2) of the Constitution."
Further in para-21 of its Judgment, in Ashok Kumar's case, the Supreme Court has held as under:
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. Having regard to the provisions of the Bengal Municipal Act, 1932 as extended to Tripura, the provisions of which have been set out hereinbefore, we are of the opinion that the State Government does not exercise any control over officers like accountant in charge respondent No. 1 and that he continues to be an employee of the Municipality though his appointment is subject to the confirmation by the Government. Just by reason of this condition an employee of a local authority does not cease to be an employee of the Municipality. Local authority as such or any other authority does not cease to become independent entity separate from Government. Whether in a particular case it is so or not must depend upon the facts and circumstances of the relevant provisions. To make in all cases of employees of local authorities subject to the control of Government and to treat them as holders of office of profit under the Government would be to obliterate the specific differentiation made under Article 58(2) and Article 102(1)(a) of the Constitution and to extend the disqualification under Article 102(1)(a) to an extent not warranted by the language of the Article."
I may also point out here that the Decision in SMT. KANTA KATHURIA v. MANAK CHAND SURANA, is not of any assistance in reaching a conclusion on this aspect. However, that Decision will be considered in greater detail while considering the effect of Karnataka Legislature (Prevention of Disqualification) (Amendment) Act, 1991 with reference to the removal of disqualification if any. Thus testing the facts of the case by the touch stone of the various Decisions of the Supreme Court, I have no hesitation whatsoever in reaching a conclusion that respondent-1 though was holding an office of profit as Pradhana of Mandal Panchayat on the relevant date was not holding the said office under the Government.
31. In view of my finding hereinabove, the question as to whether the disqualification is removed by Karnataka Act No. 20/1991 really does not arise. However, I find that it is desirable that the same is required to be considered having regard to the submissions made at the Bar with reference to the same.
32. Karnataka Legislature (Prevention of Disqualification) (Amendment) Act, 1991 was enacted by the Karnataka Legislature. The said Act amends Section 3 of the Karnataka Legislature (Prevention of Disqualification) Act, 1956 (Karnataka Act No.4/57). It would be indeed in fitness of things to extract the provisions of the said Act with a view to appreciate the submissions made by the learned Counsels on either side from a proper perspective. The same reads as under:
"1. Short title and commencement -
(1) This Act may be called the Karnataka Legislature (Prevention of Disqualification) (Amendment) Act, 1991.
(2) It shall come into force at once.
1. Amendment of Section 3 - In Section 3 of the Karnataka Legislature (Prevention of Disqualification) Act, 1956 (Karnataka Act 4 of 1957) in Clause (cc), after the words "Upadhyaksha of the Zilla Parishads" the words "and Pradhana and Upapradhana of Mandal Panchayats", shall be deemed to have been inserted with effect from the Fourteenth day of August, 1985."
33. Sri Desai, learned Counsel for the petitioner submitted that the said Act cannot and will not remove the disqualification incurred by the petitioner. According to him, the Act suffers from certain infirmities, with the result, the same cannot achieve the intended object. In the first place, the learned Counsel pointed out that Section 1(2) of the said Act provides that it shall come into force at once. In other words, the said Act should be deemed to have come into force on 19th day of April 1991 when ft was published in the Karnataka Gazette Extraordinary. It is therefore contended by the learned Counsel that the Act if at all would be prospective and will not remove the disqualification if incurred next before that date. The learned Counsel submitted that retrospective operation would have been there, if in Section 1 (2) of Act No. 20/1991 it is stated that "it shall be deemed to have come into force with effect from the Fourteenth day of August 1985." The learned Counsel submitted that the modus operandi now adopted by the Legislature by using the expression in the way and manner as it has done would not give retrospective operation to the said Act The learned Counsel also pointed out that the said Act does not contain any validating provision, and that therefore, the same will not have any effect in removing the disqualification incurred by respondent-1. The learned Counsel further pointed out that the Act in question is also hit by the mischief of Article 14 of the Constitution of India. In support of his submissions, with reference to the aspect under consideration, the learned Counsel has placed reliance on the Decision in Smt. Kanta Kathuria's case as also the Decision in SHRI PRITHVI COTTON MILLS LTD., ETC. v. BROACH BOROUGH MUNICIPALITY AND ORS., . Reliance is placed on certain observations reflected in the Book "PRINCIPLES OF STATUTORY INTERPRETATION" by Justice G.P. Singh (4th Edn. - P.298) particularly, with reference to the effect of amendment on pending proceedings. Reliance is also placed on this aspect on the Decision in UNITED PROVINCES v. Mt. ATIQA BEGUM AND ORS., AIR 1941 FC 16. The learned Counsel has placed reliance on the Decision in SHRI BHAGWANDASS SEHGAL v. STATE OF HARYANA AND ORS., with reference to the submission that the Act is hit by the mischief of Article 14 of the Constitution.
34. On the other hand, Smt. Pramila, learned Counsel for respondent-1 argued that the wording of Act No. 20/1991 would clearly go to show that it has got retrospective effect. It is pointed out by the learned Counsel that the Legislature has got the supreme power and the same is valid. The learned Counsel has placed reliance on the Decision in SMT. INDIRA NEHRU GANDHI v. SHRI RAJ NARAIN, . On a careful consideration of the submissions made by the learned Counsels on either side and after going through the various Decisions pressed into service at the Bar by the learned Counsels, I find that it is difficult to accept the submissions made by Sri Desai, the learned Counsel for the petitioner.
35. The provisions of Act No. 20/1991 are already extracted hereinabove. The question as to what is the intention of the Legislature in enacting the said piece of legislation will have to be gathered from the totality of the wordings reflected in the Act. It is no doubt true that Section 1(2) has not stated that it should be deemed to have come into force with effect from a particular past date. If it was so stated then it would not have been certainly necessary for the Legislature to State that the words "Pradhana and Upapradhana of Mandal Panchayat" shall be deemed to have been inserted with effect from the 14th day of August 1985. However, the modus operandi adopted by the Legislature with reference to Act No. 20/1991 should not leave any doubt in anybody's mind as regards as to what the Legislature meant. When the actual amending clause clearly says that the words in question should be deemed to have been inserted with effect from the 14th day of August 1985 it is clear that the Legislature has given retrospective operation to the same. Might be that the drafting technique adopted in this particular piece of legislation is different from the techniques adopted in some other similar piece of legislation where retrospective effect is sought to be given. However, the same should not make any difference as long as the intention of the Legislature can be clearly spelt out from the totality of the wordings reflected in the particular piece of legislation. Under these circumstances, I am not impressed by the submission made by Sri Desai, learned Counsel for the petitioner.
36. It is true that a validating clause like, the one found in Act No. 5/1968 which was enacted for the prevention of disqualification of membership of the State Legislative Assembly by the Legislature of Rajasthan is not found in Act No. 20/1991. However, it is significant to notice here that the said Act brought into being by the Legislature of Rajasthan was enacted after a Judgment was already given by the High Court against the successful candidate in the election and when the matter was actually pending before the Supreme Court. The significance of validating clause in the said Act will have to be appreciated in the context of the said circumstance. Such is not the situation here. No Judgment was yet passed against anybody with reference to the election in question in the instant case when Act No. 20/1991 was enacted by the Karnataka State Legislature. Sri Desai, learned Counsel, however, submitted that validating clause will be necessary not merely in the context of the Judgments of a Court of Law or Tribunal, but also in the context of an administrative order. The learned Counsel argued that under Section 100(1)(d) of the Act improper acceptance of any nomination is also a ground for setting aside the election if the result of the election has been materially affected, in so far as it concerns a returned candidate. Dilating on the same, the learned Counsel argued that in the instant case, as on the date on which the nomination of respondent-1 was accepted by the Returning Officer he was clearly disqualified and that therefore, the acceptance of his nomination was an improper acceptance of nomination and that therefore, it was absolutely necessary to insert a validating clause in Act No. 20/1991 and failure to incorporate such a validating clause is fatal. I am unable to agree with the submissions made by the learned Counsel for the petitioner. Once when the alleged disqualification is removed on account of Act No. 20/1991 which is deemed to have been operating on the date on which nomination was accepted, the acceptance of nomination of respondent-1 should be deemed to have been validly accepted. The question of incorporating a validating clause in Act No. 20/91 does not arise at all. There was no order either administrative or judicial operating against respondent-1 on the date on which Act No. 20/91 was enacted with reference to his alleged disqualification. In that view of the matter question of incorporating any validating clause in Act No. 20/91 does not arise at all. Neither the Decision in Kanta Kathuria's case nor the Decision in Sri P.C. Mills Ltd.'s case, is of any avail to the learned Counsel for the petitioner.
37. It is true that retrospective statute which affects rights in existence is not readily construed to affect adjudication of pending proceedings as pointed in the book "Principles of Statutory Interpretation" at page-298 as also in the Decision in United Province's case. However if the wording is so clear as regards the intention of the Legislature to give retrospective effect to a piece of legislation, it will have to be given effect to. It would be indeed refreshing to cull out the paragraph under the caption "pending proceedings" in the aforesaid treatise' viz., "Principles of Statutory Interpretation" by Justice G.P. Singh. Under the caption "pending proceeding" it is observed therein as under:
"A retrospective statute which affects rights in existence is not readily construed to affect adjudication of pending proceedings. The Courts insist that to have that result the language should be sufficiently clear, although it need not be express. "Courts have undoubtedly leaned very strongly against applying a new Act to a pending action, when the language of the statute does not compel them to do so. In the words of S.R. Das, C.J. : "The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed."
A careful perusal of the aforesaid paragraph would clearly go to show that it is not the law that retrospective operation is barred whenever and wherever a piece of legislation is brought into being during the pendency of a litigation. While it would be indeed correct to contend that the intention to give retrospective effect, should not be readily accepted by a Court of Law when the proceeding is pending, it would be wholly wrong to contend that such an intention should not be accepted even when the wordings of the piece of legislation are crystal clear and reflects such an intention. In fact, the observations culled out hereinabove which are practically the sum total of Judicial Decisions including the Decision of the Apex Court support my observations.
38. Further I also find that there is no substance in the submission made by Sri Desai that Act No. 20/91 is hit by the mischief of Article 14 of the Constitution. The Decision in Shri Bhagwandass Sehgal v. State of Haryana and Ors. which is pressed into service by the learned Counsel in this behalf is not at all applicable to the facts of the instant case. Further the observation made in the said Case also does not assist the learned Counsel in making a submission like the one which he has made. In para-11 therein, the Supreme Court has held as under:
"It is note worthy that the status, administrative responsibilities and other conditions which go with the office of the Chairman of the Improvement Trust are not the same as those of the members of the Trust or other statutory bodies. The mere fact therefore, that for the purpose of removing the disqualification, the Chairman of the Improvement Trusts have been put in Clause (i) as a class separate from that of the members of the Trust and other statutory bodies in Clause (e) of Section 2 does not offend the guarantee of equal treatment enshrined in Article 14 of the Constitution."
In the instant case, it is not shown by Sri Desai as to who are the persons other than Pradhana and Upapradhana of Mandal Panchayats who have been unjustly omitted from the classification to which the aforesaid two offices belong. Under these circumstances, it is obvious that the submissions made with reference to Article 14 of the Constitution also cannot hold any water. For the aforesaid reasons, I have no hesitation whatsoever in holding that even if it is assumed that respondent-1 was holding an office of profit under the State Government and thereby incurred disqualification to be chosen as and to be a member of the State Legislative Assembly, the said disqualification stands removed on account of the provisions reflected in Act No. 20/1991.
39. For the reasons stated hereinabove, I answer Issue No. 1 by holding that respondent-1 Basannagouda held an office of profit, but he did not hold an office of profit under the State Government on the date of nomination or election and even if it is assumed that he held an office of profit under the Government, the same stands removed on account of the provisions reflected in Act No. 20/1991.
40. Issue NO. 2: Under this issue, in substance, it is required to be seen as to whether there are grounds for declaring that the election of respondent-1 is void. Section 100 of the Act reads as under:
"Grounds for declaring election to be void - (1) Subject to the provisions of Sub-section (2) if the High Court is of opinion -
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) xxx xxx xxx"
It is therefore necessary to see as to whether the allegations made in the Petition constitute the grounds adumbrated under Section 100 of the Act and if so whether the same are established by acceptable evidence. The petitioner in his Election Petition has, among other things, alleged that respondent-1 indulged in corrupt practice such as, booth capturing and rigging of booths.
It is asserted by him that respondent-1 and his supporters snatched the ballot papers from the Presiding Officer and after putting the 'X' mark against the symbol of bicycle they put them at the ballot boxes. It is also stated that on account of the complaint filed in respect of booth Nos. 6 and 7 re-polling took place in relation to those booths on 26.11.1989. It is further stated that in several instances after entering the polling booths, respondent-1 and his supporters have prevented the voters from exercising the franchise and sent them away threatening them and thereafter seized the ballot papers from the officials and after putting the 'x' mark seal against the symbol of bicycle, they put them in the ballot boxes. It is also stated that respondent-1 and his supporters put their thumb impressions or forged signatures on the counterfoils of the ballot papers and on some counterfoils no signatures were affixed. It is also stated that complaints were not filed in respect of the other polling booths referred to above (other than polling booths Nos.6 and 7) either on account of the fact that the said officials were afraid of respondent-1 and his henchmen or that they were colluding with respondent-1 and his men. It is further stated that polling percentage in the aforesaid polling booths proved to be abnormally high and respondent-1 Basanagaouda polled in the said polling booths in the range of 80% to 99% of the votes polled. It is also stated that the votes of dead persons and persons out of station on the date of election were also got cast in the process of rigging the votes in those particular booths. These are the sum total of the allegations relevant for consideration with reference to the question as to whether there are grounds for declaring the election of respondent-1 as void.
41. A perusal of the allegations marshalled hereinabove would go to show that it is the specific case of the petitioner that there was rigging and booth capturing. At this juncture, it is necessary to notice here that booth capturing by a candidate or his agent or other persons is included in the definition of 'corrupt practice' under Section 123 of the Act. Section 123(8) of the Act provides that booth capturing by a candidate or his agent or other person shall be deemed to be corrupt practice for the purpose of the Act. It is necessary to point out here that though the expression 'rigging' is not defined or explained in the Act, the meaning of the expression 'booth capturing' is explained in Section 135A of the Act. Section 135A of the Act will have to be read with Explanation (4) to Section 123(8) of the Act. Explanation (4) to Section 123(8) provides that 'booth capturing' shall have the same meaning as in Section 135A. Explanation to Section 135A reads as under:
"For the purpose of this section, "booth capturing" includes, among other things, all or any of the following activities, namely:-
(a) seizure of a polling station or place fixed for the poll by any person or persons making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections;
(b) taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and prevent others from voting;
(c) threatening any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote:
(d) seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes;
(e) doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate."
It is significant to notice here that the wording of the Explanation to Section 135A of the Act would go to show that inclusive definition is not exhaustive but is only indicative. However, it is pertinent to notice here that though the Explanation to Section 135A of the Act is not exhaustive but is indicative, the same, however, throws a lot of light on the various facets of 'booth capturing'. A careful perusal of Clause (a) to the Explanation to Section 135A culled out hereinabove would clearly go to show that the seizure of polling station or making the polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of election, would amount to booth capturing. It is therefore clear that snatching of ballot papers from the polling officers and putting the seal on the ballot papers in front of the symbol of a particular candidate and thereafter putting the same in the ballot boxes would clearly fall within the compass of the said expression. It is also clear that the act of preventing the voters from voting at the polling booths would fall under the expression "any other act which affects the orderly conduct of election" employed in clause(a) of Explanation to Section 135A of the Act. It is also noticed here that the expression 'rigging' though not a matter of definition or Explanation in the Act is such as would broadly fall within the same frame. Having regard to what is stated hereinabove, it can be stated that the allegations reflected in the Petition would reflect the grounds under Section 100 read with Section 123 of the Act. I hasten to add here that the question as to whether the Petition contains a concise statement of all the material facts on which the petitioner relies and the question as to whether the petitioner has setforth full particulars of corrupt practice that the petitioner has alleged, are questions which will have to be considered separately.
42. Smt. Pramila, learned Counsel for respondent-1 contended that the petitioner in his Election Petition has not complied with the requirements of Section 83 of the Act, in that, he has not given a concise statement of all the material facts and has also not given the full particulars of corrupt practice alleged by him. Dilating on this aspect, the learned Counsel submitted that whenever corrupt practice is alleged in an election, the petitioner is required to give the mode of corruption, the measure of corruption, the manner of corruption, the type of corruption, the date of corruption and the time of corruption and the like. The learned Counsel in this connection, has placed reliance on a recent Decision of this Court in G. SHANKAREGOWDA v. RATHAN SINGH, . Reliance is also placed on the Decision in SAMANT N. BALAKRISHNA ETC. v. GEORGE FERNANDEZ AND ORS., the Decision in AZAR HUSSAIN v. RAJIV GANDHI, and the Decision in DHARTIPAKAR MADAN LAL AGARWAL v. SHRI RAJIV GANDHI, . On the other hand, Sri Desai, learned Counsel for the petitioner submitted that the allegations made in the Petition meet all the requirements of Section 83 of the Act. Dilating on this aspect, the learned Counsel submitted that it is only material facts which are required to be placed and not the evidence by which the same are sought to be proved. Similarly, it is pointed out by Sri Desai that the particulars required to be given are the particulars which can be properly called as "material particulars". The learned Counsel also submitted that particulars like source of information with reference to a particular allegation and the like are not required to be pleaded. In this connection, the learned Counsel has relied on a Decision in NARESH KUMAR v. PRAKASH NARAIN ASWATHI AND ORS., . The learned Counsel also invited the attention of this Court to the Decision in ROOP LAL SATHI v. NACHHATTAR SINGH, AIR 1982 SC 1559. It is pointed out by the learned Counsel that the Court has got ample power to direct the parties to give better particulars with reference to the allegations. The learned Counsel also argued that none of the Decisions pressed into service by the other side on this aspect is applicable to the facts of this case.
43. In the context of the submissions made at the Bar with reference to the aspect touched upon immediately hereinabove, I am of the view that it would be convenient to consider this aspect while appreciating the evidence on record; that is so because, the appreciation of evidence in this case and the submission made with reference to Section 83 of the Act are in a way inextricably mixed up with each other.
44. The petitioner has relied on oral evidence and documentary evidence in support of the allegations made in the Petition. The oral evidence comprised of the evidence of petitioner and 13 other witnesses. Petitioner has also relied on the documents marked at Ex.P.1 to P.17. I may point out here that no document is marked as Ex.P.13 under the circumstances referred to in the order sheet dated 4-2-1993. In other words, there is no Exhibit like Ex.P.13. The contents of the order in the order sheet dated 4-2-1993 are clear in this behalf.
Respondent-1 has also examined himself apart from examining 20 witnesses. Two documents viz., Ex,R.1 and Ex.R.2 are marked for himself. I may point out here that Ex.R.1 is part of Ex.P7; Ex.R.2 is nothing but a printed copy of Karnataka Act No. 20/1991.
45 to 47: Summary of evidence
48. Having referred to the compendium of the evidence of the witnesses examined on behalf of the petitioner both oral and documents it is necessary to see as to whether the same is sufficient to prove the allegation of the petitioner with respondent-1 indulged in rigging and booth capturing.
49. Sri Desai, learned Counsel for the petitioner submitted that the evidence of each of the witnesses examined on behalf of the petitioner is free from blemish and that nothing is elicited in the course of the cross-examination of any of these witnesses, which would render their evidence untrustworthy. The learned Counsel submitted that when a witness is examined on oath, the presumption is that he has told the truth and it is for the other side to displace this presumption by any of the modes known to law and if the other side is not successful in displacing the said presumption the evidence putforth by the witnesses will have to be accepted. The learned Counsel submitted that the evidence of the different eye-witnesses to the incident is also rendered probable by certain circumstances. In particular, the learned Counsel placed reliance on Ex.P.3 to Ex.P.7, certified copies of the complaints with reference to the incident alleged to have taken place at Chikkadinni and Hiredinni respectively. Sri Desai, learned Counsel has also relied on the related evidence of P.W.13 - Dr. Manjunath who was a Presiding Officer at Hiredinni. The learned Counsel also submitted that the polling pattern reflected in Ex.P.6, to wit, the copy of the comparative statement showing the votes polled by the petitioner and respondent-1 in polling booth Nos. 5, 68, 73, 74, 88, 91, 92, 93, 94; 95, 96, 100, 102, 103 and 103 of 23-Manvi Assembly Constituency, would lend great assurance to the evidence of the different witnesses examined on behalf of the petitioner. Dilating on this aspect, the learned Counsel submitted that the same would go to show that the petitioner has, polled ridiculously low number of votes in these polling booths in particular, whereas, respondent-1 Basanagouda has polled enormously large number of votes in these polling booths. The learned Counsel argued that if the polling pattern with reference to these polling booths is juxtaposed with reference to the other polling booths, the same would present a striking difference in the pattern of polling in the two sets of polling booths and the same, according to Sri Desai, would lend assurances to the assertion of the petitioner that there was booth capturing and rigging in the polling booths reflected in Ex.P.6 and would lend assurances to the oral evidence of the witnesses examined on behalf of the petitioner. The learned Counsel also submitted that if the Returning Officer for 3- Raichur Parliamentary Constituency, that is to say, the Deputy Commissioner, Raichur is summoned directing him to produce Form No. 16 (Part-I and Part-II) mentioned under Rule 45 of the Conduct of Election Rules, 1961, the same would confirm the oral evidence of the witnesses. Making his submissions on these lines, the learned Counsel submitted that it is a pre-eminently fit case for setting aside the election.
50. On the other hand, Smt. Pramila, learned Counsel for respondent-1 contended that the evidence adduced on behalf of the petitioner is vague and in an Election Petition it would be hazardous to rely on the oral evidence of witnesses muchless on the evidence of interested witnesses. The learned Counsel also pointed out that the documents admitted in evidence before the Court are not of any consequence and that the same cannot by any stretch of imagination be availed of by the petitioner to establish that respondent-1 is guilty of corrupt practice. It is also argued by the learned Counsel that much of the evidence sought to be let in by the petitioner is the evidence with reference to a fact which is not pleaded. It is argued by Smt. Pramila that there cannot be any variance between pleading and proof. The learned Counsel also submitted that the proof required in an Election Petition against the respondent is akin to the proof required against an accused in a criminal case. In support of her submission the learned Counsel has relied on certain Decisions which will be referred to at the appropriate place hereinbelow.
51. I have given a serious thought to the submissions made by the learned Counsels on either side. The various Decisions of the Supreme Court referred to immediately hereinabove make it clear that a charge of corrupt practice is in the nature of a criminal charge and as such a very cautious approach must be made and that the charge must be established beyond a pale of doubt, almost like a criminal charge (vide: RAM SINGH AND ORS. v. COLRAM SINGH, . It is also necessary to remember that proof beyond reasonable doubt does not mean proof to the point of perfection. The expression "proof beyond reasonable doubt" should not be stretched to such an extent as to make it almost impossible to prove the charge of corrupt practice in every case (vide: S. HARCHARAN SINGH v. S. SAJJAN SINGH AND ORS., . At this juncture it is also necessary to remember that often time it becomes difficult to place implicit reliance on the evidence of any witness, more so, at the hearing of an Election Petition, since elections are fought out on party lines and individuals are having their own political leanings. In the Decision in HALLU AND ORS. v. STATE OF MADHYA PRADESH, the Supreme Court has, among other things, held as follows:
"It is generally not easy to find witnesses on whose testimony implicit reliance can be placed. It is always advisable to test the evidence of witnesses on the anvil of objective circumstances in the case."
52. Bearing in mind what is stated hereinabove, it will have to be seen as to whether the evidence alluded to earlier stands the test of the principles laid down in the Decisions referred to hereinabove.
53 to 55: Appreciation of evidence.
55. I have pointed out hereinabove, that the oral evidence is not satisfactory. At this juncture, it is also necessary to recall the observations of the Supreme Court regarding the approach to be adopted in relation to the oral evidence particularly in a case like the one in hand. The Supreme Court in the Decision in KANHAIYALAL v. MANNALAAL AND ORS., has held therein as under:
"So far as, however, the distribution of the pamphlet on 2nd March 1972 at Jawi and Thadoli, which alone survives for consideration, the petitioner relies entirely upon oral testimony and the court will have to be cautious and circumspect in accepting the same.
This Court in Rahim Khan v. Khurshi Ahmed, dealing with the oral testimony in election cases pithily observed at page-656 as follows:
"We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a-dozen witnesses apparently respectable and dis-interested to speak to short of simple episodes such as that a small village meeting took place where the candidate accused his rival of personal vices. There is no xray whereby the dishonesty of the story can be established and, if the Court were gullible enough to gulp such oral versions and invalidate elections a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkenny cat election competitions and partisan witnesses wearing robes of veracity to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man's public life."
Further at para-46, the Supreme Court has held as under:
"Oral testimony, therefore, will have to be judged with the greatest care and an electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source. The matter would have been different if there had been an immediate written complaint to the Returning Officer against Kanhaiyalal as had been made in the case of his workers."
It is necessary to notice here that the Supreme Court in Kanhaiyalal's case has followed its earlier Decision at para-23 in RAHIM KHAN v. KHURSHID AHMED, .
56 to 64; Appreciation of evidence.
65. Further as pointed out by the Supreme Court in Kanhaiyalal's case, it must be remembered that corrupt practices may be proved by hiring half-a-dozen witnesses apparently respectable and dis-interested to speak to short and simple episodes and it is extremely unsafe in the present climate of Kilkenny cat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. Further it is held, as seen earlier, that the Court must look for serious assurance unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man's public life and oral testimony will have to be judged with the greatest care and an electoral victory cannot be allowed to be nullified by a mouthful or oral testimony without contemporaneous assurance of a reliable nature from an independent source. In para-46 it is held that "the matter would have been different if there had been an immediate written complaint to the Returning Officer against Kanhaiyalal as had been made in the case of his workers."
66. As pointed out earlier, in an Election Petition, the charge of corrupt practice is in the nature of a criminal charge and the evidence adduced in the case should be such as to enable the Court to hold that the charge must be true and it is not sufficient even if there are circumstances which may enable the Court to hold that the charge may be true. Between 'may be true' and 'must be true' there is a long distance and this distance will have to be covered by unimpeachable evidence. There may be certain circumstance which create strong suspicion. However, it is necessary to remember that suspicion however strong cannot take the place of proof. In the instant case, for the reasons stated hereinabove, I have no hesitation to hold that the petitioner has failed to establish issue No.2. It is answered accordingly.
67. Issue NO. 3: This issue relates to the contentions raised by respondent-1 that Petition is not maintainable. The learned Counsel for respondent-1 submitted that the Petition is not maintainable for the reasons more than one. In the first place, the learned Counsel argued that the petitioner has produced only the return of election in Form No.21-E and has not produced Form No. 21-C relating to the declaration of result of election. In my opinion, the said contention is not tenable, because, I find that Ex.P.1, contains the particulars relating to the return as well as the declaration. It is therefore, not necessary to dilate on this aspect. The learned Counsel also contended that the Election Petition is liable to be dismissed in limine on account of the defective verification. The verification to the Petition reads as under:
"I, B.S. Amarkhed, aged 59 years do hereby verify that the statements made in paras-III (1 to 6) are true to the best of my knowledge and belief and the statements made in paras-IV (1 to 22) are also true to the best of my knowledge, belief and information and I believe them to be true and correct."
With reference to the verification to the Election Petition culled out hereinabove, the learned Counsel submitted that the latter part does not disclose as to what portion of the Petition is to the knowledge of the petitioner, what portion of the Petition is according to his belief and what portion of the Petition is according to his information. Though I find that the said defect is one of the circumstances which has to be taken into consideration while appreciating the evidence on record, in my opinion the same is not fatal to the Petition. This view finds support from the observation made by the Supreme Court in the Decision in MURARKA RADHEY SHYAM v. ROOP SINGH, . In that view of the matter, I am of the view that the defect, if any, is cured and the contentions raised by the learned Counsel for respondent-1 that the Petition is liable to be dismissed in limine is not acceptable.
68. In the view that I have taken, I hold that the Petition is maintainable. Issue No.3 is answered accordingly.
69. From what is stated hereinabove, it would follow that the petition is liable to be dismissed under Section 98(a) of the Representation of People Act, 1951.
70. In the result, the Election Petition is dismissed with cost of respondent-1. Advocate's fee is fixed at Rs. 2,500/-. The rest of the respondents shall bear their own costs.