Madhya Pradesh High Court
Bhanukumar Jain vs Kamal Gupta And Ors. on 23 June, 2003
Equivalent citations: AIR2004MP25, 2003(4)MPHT124, AIR 2004 MADHYA PRADESH 25, (2003) 3 MPLJ 182, (2003) 4 MPHT 124, (2003) 8 INDLD 433
ORDER A.K. Gohil, J.
1. This civil revision filed under Section 441-F of the M.P. Municipal Corporation Act, 1956 (hereinafter referred to as 'the Act of 1956'), is directed against the order dated 11-4-2002 passed by XII Additional District Judge, Indore in Election Petition No. 14/2000, whereby the Trial Court has dismissed the petition.
2. It is a case of direct election to the post of Mayor, Municipal Corporation, Indore. Admittedly, the election to the office of Mayor, Municipal Corporation, Indore was notified on 25-11-99 and on 2-12-99. The last date for filing the nomination was 3-12-99. The date for scrutiny of nomination was 6-12-99 and the last date for withdrawal of nomination paper was 22-12-99. The election was held on 27-12-99 and the result was declared on 3-1-2000. Respondent No, 3, Kailash Vijayvargiya, amongst other non-applicants, contested the election and was declared elected as Mayor, Indore.
Undisputedly, on the date of filing of the nomination paper, i.e., on 3-12-99 the respondent No. 3 was a sitting Member of the Legislative Assembly from Assembly Area No. 221 (Indore Assembly No. 2) and was holding the office of Member of Legislative Assembly. After declaration of the result, the petitioner, a voter in the said election, filed an election petition challenging the election of respondent No. 3 as Mayor, Indore. In the petition it was contended that as per the provisions contained under Article 191(1)(a) of the Constitution of India, the returned candidate was a disqualified person for filing the nomination as he was holding the office of Member of the Legislative Assembly at the time of filing the nomination which is an office of profit under Government.
3. It was further contended in the petition that the elections conducted on the basis of an electoral roll which was prepared in the year 1994 was null and void not only because the electoral roll was not notified in the gazette but it was not correct as most of the voters were either expired or were not available, more so, the names were inserted in more than one ward. It was further contended that as the provisions of Section 10 of the Act of 1956 were not followed before holding the election, the division of wards was not in conformity with law. It was further contended that a person can not hold two offices at a time and that since the office of Member of Legislative Assembly (MLA) as also the office of Mayor are offices of profit, the election of respondent No. 3 as Mayor is bad in law.
4. After filing reply by the respondents, as many as seven issues were framed by the Trial Court. Issue Nos. 1 and 2 relate to the question whether non-applicant No. 3 was entitled to contest the election of Mayor while holding the post of MLA and whether on this ground his election as Mayor should be quashed ? Both these issues were decided as preliminary issues against the applicant along with issue No. 4 by order dated 12-3-2001. Similarly, issue No. 4 was to the effect that whether non-applicant No. 3 be restrained from holding the post of Mayor ? Issue No. 5 was whether non-applicants, except non-applicant No. 3, are not necessary parties in the petition. This issue was also decided in favour of the applicant by order dated 5-10-2000. Issue No. 6 was to the effect that whether electoral roll can be challenged in the election petition. This issue was also decided in favour of the applicant by order dated 17-4-2001. Only issue Nos. 3 and 7 were remained undecided. But by the impugned order dated 11-4-2002, the learned Trial Court answered all questions relating to issue Nos. 3 and 7 against the applicant and has held that the petitioner has failed to prove that there was some interpolation in the voters list with the connivance of returned candidate respondent No. 3. By order dated 12-3-2001 and by impugned order dated 11-4-2002, the learned ADJ while deciding the election petition has held that the office of MLA is not an "office of profit under Government', therefore, the election of respondent No. 3 as Mayor, Indore is neither illegal nor unconstitutional nor contrary to the provisions of law. The Trial Court has further held that in the absence of any statutory bar, the respondent No. 3 was entitled to contest the election on the post of Mayor and on all other grounds and issues the Court below has also held that the applicant has failed to prove the case. The Trial Court while upholding the election as valid and in conformity with law, dismissed the election petition, against which the applicant has filed this revision.
5. I have heard Shri D.D. Vyas, learned Senior Advocate instructed by Smt. Anita Sharma and Shri Ashish Sharma for applicant; Shri S. Bhargava, learned Senior Advocate instructed by Smt. Bhargava for respondent No. 3 and Shri Suresh Seth, for respondent No. 10.
6. Shri D.D. Vyas, learned Senior Advocate appearing for the petitioner in this revision cited before this Court a catena of decisions available on the subject and argued vehemently and eloquently that the office of Member of Legislative Assembly (MLA) is an office of profit under Government and by virtue of provisions of Article 191(1)(a) of the Constitution of India read with Section 17 (1) (k) of the Act of 1956, the respondent No. 3, who was a sitting MLA on the date when he contested the office of Mayor, was disqualified to contest the same, therefore, his election as Mayor, Indore is invalid. He submitted various provisions of the Act of 1956 as well as of the Constitution and submitted that looking to the powers, privileges and immunities enjoyed by the Members of Legislative Assembly, in view of Article 195 of the Constitution of India by which salaries and allowances of Members of Legislative Assembly are payable and looking to the various legislations passed by the State Legislative Assembly for Vetan, Bhatta, Pension, Travelling Allowances, Free Transit by Railways, Free Bus Passes, Telephones etc. to the MLAs, the post of MLA is an 'office of profit' and the MLA owns an 'office of profit under Government'. In support of this contention he placed reliance on various decisions of the Supreme Court as well as of High Courts and mainly in the case of Pashupati Nath Sukul v. Nem Chandra Jain and Ors. (AIR 1984 SC 399); P.V. Narsimha Rao v. State (CBI/SPE) etc. etc. (AIR 1998 SC 2120); Shibu Soren v. Dayanand Sahay (AIR 2001 SC 2583) and US, Nayak v. A.R. Anthulay (AIR 1985 SC 684). The other decisions which have been cited by the Counsel are also being considered in this revision.
7. Learned Counsel for the petitioner further cited various provisions of the Act of 1956 by which a Mayor can be removed from his post by the State Government. He contended that a writ of quo-warranto can also be issued for the removal of Mayor. He further submitted that under the Prevention of Corruption Act, 1988 (for short 'the PC Act of 1988') now the MLA is a public servant and performs public duty and it is also not necessary that there must be relationship of master and servant. Hence, his submission was that the Trial Court has committed illegality in dismissing the election petition and the same is liable to be allowed and the election of respondent No. 3 is liable to be quashed.
In reply Shri S. Bhargava, learned Senior Advocate defended the impugned order and submitted that the disqualification prescribed under Section 17 (1) (k) of the Act of 1956 has no relation with the disqualification prescribed under Article 191(1)(a) of the Constitution of India. It has been further submitted that the office of Mayor is neither an office of profit nor an office of profit under Government and that since these questions have already been decided as preliminary issues by order dated 12-3-2001 and the same was not challenged, it became final and can not be considered in this revision. It has been further submitted that as the complaint made in this regard under Article 192 of the Constitution has already been decided by the Governor, the same became final, therefore, this revision petition is not maintainable. Hence, he submitted that this revision has no force and is liable to be dismissed.
8. Having heard the learned Counsel for the parties, I find that the main controversy involved in this revision revolves around the questions whether respondent No. 3 was a disqualified person to be chosen as Mayor as per the provisions of Article 191(1)(a) read with Section 17 (1) (k) of the Act of 1956 and in sum and substance whether the office of MLA is an 'office of profit under Government'.
9. Article 191(1)(a) of the Constitution of India reads as under :--
(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.
10. Section 17 (1) (k) of the Act of 1956 provides as under :--
(1) No person shall be a Councillor or Mayor, who-
(k) If he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislative Assembly of the State.
11. It is not in dispute that under the M.P. Vidhan Mandal Sadasya Nirhata Nivaran Adhiniyam, 1967 (hereinafter referred to as 'the Adhiniyam of 1967'), it has been declared that certain offices of profit such as (1) Speaker and Deputy Speaker of the State Legislative Assembly (2) Chairman and Deputy Chairman of the State Legislative Council (3) Minister of State (4) Deputy Minister (5) Parliamentary Secretary (6) Advocate General (7) Government Pleader (8) Public Prosecutor (9) Any person appointed as, or performing the functions of a Patel under the M.P. Land Revenue Code or a Manjhi or a Chalki in Bastar District (10) Official Receiver appointed under the Provincial Insolvency Act, 1920 (11) Sarpanch of an irrigation panchayat as defined in the rules made under Section 62 of the M.P. Irrigation Act, 1931 (12) Any office in the National Cadet Corps or the Territorial Army (13) Any office in the Auxiliary Air Force or the Air Defence Reserve raised under the Reserved and Auxiliary Air Forces Act, 1952 (14) Member of the Naval, Military, Air Forces or any other armed forces of the Union during the period, the proclamation of Emergency by the President of India dated the 26th Oct., 1962 remains in force and six months thereafter (15) Any office under an insurer the management of whose controlled business is vested in the Central Government under the Life Insurance (Emergency Provisions) Act, 1956 (16) The office of the Leader of the Opposition in the Madhya Pradesh Legislative Assembly (17) Chairman and Vice-Chairman or President and Vice-President or Managing Director or Director of a statutory body, or a member of any committee by whatever name any of the aforesaid office be called (18) Secretary of the M.P. Khadi and Village Industries Boards (19) The Deputy Chairman Rajya Yojna Mandal, Madhya Pradesh, shall not be disqualified for being chosen or for being Members of State Legislature.
12. Admittedly, the State Legislature has enacted the following Acts and Rules for providing Vetan, Bhatta, Pension and other facilities to the MLAs which are as under :--
(1) Vidhan Sabha Sadasya (Vetan, Bhatta Thatha Pension) Adhiniyam, 1972, M.P. Act of 1973.
(2) M.P. Legislative Travelling Allowances Rules, 1957.
(3) M.P. Legislative Assembly Members (Free Transit by Railways) Rules, 1978.
(4) M.P. Legislative Assembly Ex-Member (Free Transit by Railways) Rules, 1976.
(5) M.P. Vidhan Sabha Sadasya (Pension) Rules, 1977.
(6) M.P. Vidhan Sabha (Recovery of Dues) Rules, 1976.
(7) M.P. Legislative Assembly Members and Ex-Members (Free Non-transferable bus pass) Rules, 1989.
(8) M.P. Vidhan Sabha Ke Sadasyon Ko Doorbhash Suvidha Niyam, 1986.
13. First of all it would be helpful to examine the meaning of "Office". Some of the literary meanings of the word "Office" as per the Law Lexicon Reprint 2002 Page 1348 are as follows :--
'The word "office" does not necessarily imply that it must have an existence apart from the person who may hold it. Cases are known, in which, in order to make use of the special knowledge, talent, skill or experience of certain persons, posts are created, which exists only for so long as they hold them. It will be difficult to hold that such persons are not holders of Office.' 'Office means a position which requires the person holding it to perform certain duties and discharge certain obligations. An office may not depend on any law or any contract, or any mandate from the State or any authority.'
14. The Division Bench of this Court in Champalal v. State of M.P. (AIR 1971 MP Page 88) has construed the word "Office" as under :--
"Construction should be harmonious and consistent with the scheme and provisions of the Act. The word 'Office' is used in different senses and in each case that meaning must be assigned to it which conforms with the language used in the enactment and its object."
15. In the case of Mcmittan v. Guest, (1943) 24 Tax Cas 190, Lord Atkin and Lord Wright while accepting the definition of the word "Office" given by Rowlatt, J., in the case of Great Western Rly. Co. v. Bater, (1920) 3 KB 266, has sufficiently observed as under :--
Atkin, J.
"There is no statutory definition of "office". Without adopting the sentence as a complete definition, one may treat the following expression of Rowlatt, J....... as a generally sufficient statement of the meaning of the word : 'an office or employment which was a subsisting, permanent, substantive position, which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders".
Wright, J.
"The word 'office' is of indefinite content; its various meanings cover four columns of the New English Dictionary, but I take as the most relevant for purposes of this case the following :-- 'A position or place to which certain duties are attached, especially one of a more or less public character".
It thus appears that, to be an 'office' a position or place has to satisfy three tests :
(i) it must be a subsisting, permanent and substantive position; (ii) it must exist independently of the incumbent who occupies it; and (iii) it must be a position of a more or less public character to which certain duties are attached.
16. Now coming to the meaning of the words 'Office of Profit', as per Law Lexicon Reprint 2002 Page 1439 by Justice Y.V. Chandrachud the meaning of the words 'Office of Profit' is as follows :--
" 'Office of Profit' indicates an office which exists independently of the Holder of the Office. The expression "office of profit" means and office capable of yielding a profit or from which a man might reasonably be expected to make a profit. The actual making of profit is not necessary. Profit means gain or any material benefit."
17. In the case of Ravanna Subanna v. G.S. Kaggeerappa (AIR 1954 SC 653), the Supreme Court has held that a person holding the office of Chairman of Taluk Development Committee can not be said to be holding an office of profit under the Government and is consequently not subject to any disqualification for being elected as a Councillor.
18. In the case of Abdul Shakur v. Rikhab Chand and Anr. (AIR 1958 SC 52) it was held that the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor. But the appointment of the Manager of the Madarsa does not come within this test. He is holding his appointment under a Committee which is a statutory body and such appointment can not be called an appointment by or under the control of the Government of India nor is his salary paid out of the revenues of the Government but out of the funds of Durgah endowment.
19. Again in the case of M. Ramappa v. Sangappa and Ors. (AIR 1958 SC 937) it has been held as under :--
Patels and Shanbhogs are officers, who are appointed to their offices by the Government though it may be that the Government has no option in certain cases but to appoint an heir of the last holder; they hold their office by reason of such appointment only; they work under the control and supervision of the Government; their remuneration is paid by the Government out of Government funds and assets; they are removable by the Government and there is no one else under whom their offices could be held. All these clearly establish that Patels and Shanbhogs hold offices of profit under the Government, within the meaning of Section 191, Representation of the People Act so that they are disqualified from membership to the Legislative Assembly of the State.
20. In the case of Hoti Lal v. Raj Bahadur (AIR 1959 Rajasthan 227), the Division Bench of the Rajasthan High Court has held that the office of the Oath Commissioner in Rajasthan is an office of profit under the Government of Rajasthan as the Oath Commissioners are appointed by the Government and the office brings a profit to the holder thereof, therefore, it must be held to be an office of profit.
21. Again in the case of Guru Gobinda Basu v. Sankari Prasad Ghosal and Ors. (AIR 1964 SC 254), the Five Judges Bench of the Supreme Court had occasion to consider the question of office of profit in relation to auditor who was appointed by Durgapur Projects Ltd. or Hindustan Steel Ltd., which were Government companies, as 100% shares were held by Union Government. In that context it was held as under :--
For holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them. The Constitution itself makes a distinction between the holder of an office of profit under the Government and the holder of a post or service under the Government. The Constitution has also made a distinction between the holder of an office of profit under the Government and the holder of an office of profit under a local or other authority subject to the control of Government. The decisive test for determining whether a person holds any office of profit under the Government is the test of appointment. It is not correct to say that the several factors which enter into the determination of this question-- the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the matter in which the duties of the office are discharged and to give directions in that behalf-must all co-exist and each must show subordination to Government and that if one of the elements is absent, the test of a person holding an office under the Government, Central or State, is not satisfied. The circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor-- not decisive of the question. Whether stress will be laid on one factor or the other will depend on the facts of each case. However, where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then it must be held that the officer in question holds the office under the authority so empowered.
22. In the case of Shantibhai v. Mahadeo Govind Joshi and Ors., reported in 1968 MPLJ 197, the M.P. High Court has held that a lawyer working as Standing Counsel for railway administration engaged on the condition that no briefs against railway will be accepted and would watch cases and ask for adjournment at fixed fees holds an office of profit and was disqualified to hold a seat in Vidhan Sabha.
23. In the case of Balak Ram Vaish v. Badri Prasad Avasthi, reported in AIR 1969 Allahabad 88, the Allahabad High Court has held that the Panel Lawyer of Gaon Sabha at Tahsil head-quarters under U.P. Jamindari Abolition and Land Reforms Act of 1951 holds an office of profit under Government within the meaning of Article 191 of the Constitution of India.
24. The case of D.R. Gurushanthappa v. Abdul Khuddus Anwar and Ors. (AIR 1969 SC 744) may be also helpful to be referred to here. It was observed in that case that :--
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 Government 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 disqualification laid down under Article 191(1)(a) of the Constitution is not intended to apply to the holder of an office of profit as Superintendent Safety Engineering Department of a Company under the control of Government.
The office held by the respondent is held under a local authority. The holding of an office of profit in it does not being about a disqualification even if that local authority be under the control of the Government. The mere control of 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. Therefore, the control exercised by the Government over the Board in this case does not make the Board an organ of the Government nor does it make the respondent a person holding an office under the Government.
For purposes of determining disqualification for candidature to a Legislature, it will not be appropriate to attempt to lift the veil and equate a Company with the Government merely because the share-capital of the Company is contributed by the Government.
25. In the case of Shivamurthy Swami Inamdar and one Ors. v. Agadi Sanganna Andanappa and one Anr. (1971) 3 SCC 870], the Supreme Court has laid down the following tests for finding out whether an office in question is an office under a Government and whether it is an office of profit or not.
(1) Whether the Government makes the appointment; (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays the remuneration; (4) What are the functions of the holder ? Does he perform them for the Government; and (5) Does the Government exercise any control over the performance of these functions ?
The word 'profit' connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit.
26. In the case of Bhagwandass Sehgal v. State of Haryana and Ors. (AIR 1974 SC 2355), the Supreme Court had the occasion to examine whether the office of the Chairman of Improvement Trust was an office of profit under the Government and held that Article 191(1)(a) of the Constitution gives a wide power to the State Legislature to declare by law what office or offices of profit held under the Government shall not disqualify the holder thereof from being chosen or.for being a member of the State Legislature and as such the action of the Haryana State Legislature exempting the office of the Chairman of Improvement Trust from being 'office of profit', was not discriminatory.
27. In the case of Surya Kant Roy v. Imamul Hai Khan (AIR 1975 SC 1053), it has been held by the Supreme Court that :--
The Chairman of the Mines Board of Health appointed by the State Government under B. & O. Mining Settlement Act (4 of 1920) is not a person holding office under the State Government because such a Board is not wholly under the control of the Government in all its functions. Moreover, payments to him are not from out of the Government revenues. Hence he is not disqualified for standing for election to Legislative Assembly.
28. In the case of D.S. Awasthi and Ors. v. Virendra Swaroop (AIR 1976 Allahabad 26), a question arose before the Allahabad High Court whether the Chairman of U.P. Legislative Council is disqualified from being chosen as a Member of U.P. Legislative Council and whether such an office of Chairman is an office of profit under the State Government within Article 191(1)(a) of the Constitution or not. The learned Single Judge answered this question and has held that he is not disqualified because (1) he is not appointed by the State Government but is elected to that office (2) the Government has no power to remove or dismiss him and he can be removed under Article 183 only by the members of the Legislative Council (3) he does not perform his function of conducting the business of the House of the Legislative Council for the Govt. as the Council is an independent body (4) the Govt. does not exercise and control over the performance of his functions by the Chairman who is the master of the House (5) merely because the State Govt. pays the salary and allowances of the Chairman it does not make him hold his office under the Government (6) the mere fact that the M.P. Government in M.P. Vidhan Mandal Sadasya Nirhata Nivaran Adhiniyam (16 of 1967) has included the Chairman of the Legislative Council as holder of office of profit under the Government will not lead to the inference that the Chairman of the Legislative Council in other States particularly in U.P. holds an office of profit under the Government and that is why the Chairman has not been included in Section 3 as holder of an office of profit under the Government.
A similar question arose in the case of Ramakrishna Hegde v. The State of Karnataka and Ors. (AIR 1993 Karnataka 54) before his Lordship Shivaraj Patil, J. (as He then was) and he answered the same. Ramakrishna Hegde was elected as Member of Karnataka Legislative Assembly. He was appointed on the post of Deputy Chairman of Planning Commission in the rank of Cabinet Minister. It was specifically mentioned in the order of appointment that he would not draw any salary, he would be entitled only to the travelling allowance/daily allowance, conveyance allowance or chauffer-driven car and house rent allowance or rent free furnished accommodation including free supply of electricity and water. In that circumstances the Court held whether a person holds an office of profit should be interpreted reasonably taking into consideration the class of person at the relevant time merely because the petitioner has some privileges as State Guest of a Cabinet Minister, it can not be said that he had pecuniary gain. In the instant case no evidence was placed to show that the office of Deputy Chairman of Planning Commission really carried any profit. The Court placed reliance on a decision of the Supreme Court in the case of Divya Prakash v. Kultar Chand Rana (AIR 1975 SC 1067) and held that the petitioner was not holding an office of profit.
29. In the case of Biharilal Dobray v. Roshan Lal Dobray (AIR 1984 SC 385), the Supreme Court had again examined the question of office of profit under Government and it was held that an Assistant Teacher employed in a basic primary school run by the U.P. Board of Basic Education constituted under the U.P. Basic Education Act of 1972 is disqualified for being chosen as a Member of the State Legislative Assembly under Article 191(1)(a) of the Constitution of India as he holds an office of profit under the State Government.
30. Shri D.D. Vyas, learned Senior Counsel for the petitioner also placed heavy reliance on a decision in the case of Pashupati Nath Sukul v. New Chandra Jain and Ors. (AIR 1984 SC 399) though the case is not relevant for the present case because the question in that case for consideration before the Supreme Court was whether the Secretary of a State Legislative Assembly is not qualified to be appointed as the Returning Officer at an election held to fill a seat in the Rajya Sabha and the three Judges Bench of the Supreme Court has answered this question affirmatively and held that he can be appointed as Returning Officer. It was further held that the post of such a person who works as an officer of the Legislature of a State is that even though he belongs under Article 187 of the Constitution to the staff of the State Legislature, he is still an officer of Government in the broad sense in which the expression "Government" is used under Article 102(1)(a) and Article 191(1)(a) of the Constitution.
31. In the case of Ashok Kumar Bhattacharyya v. Ajoy Biswas and Ors. (AIR 1985 SC 211), the Supreme Court has held that the Account-in-Charge of Agartala Municipality does not hold office of profit under the Government of Tripura and is not disqualified from being a member of the Parliament merely because his appointment is subject to the confirmation by the Government and just by reason of this condition an employee of a local authority does not cease to be an employee of the Municipality. Local authority and any other authority is an independent entity separate from the Government.
32. In the case of Rajeev Gandhi (AIR 1986 SC 1534), the Apex Court while considering the question whether a sitting Member of Parliament contesting ensuing general election to Lok Sabha is disqualified as holding office of profit as Member of Parliament, it was held that it can not be held that by receiving salary and allowances payable to a Member of Parliament, would be disqualified for being either chosen as Member of either House of Parliament or for continuing as member of either House of Parliament and in any event the membership of Parliament is not an office under the Government. So the fact that the Lok Sabha had not been dissolved on the date on which the election was held would not amount to a disqualification in the case of the respondent who was a member of the Lok Sabha for being a candidate at the next general election.
33. Recently, in the case of c), the Supreme Court was examining the question whether by virtue of Article 105(2) of the Constitution, a Member of Parliament can claim immunity from prosecution on a charge of bribery in a Criminal Court and whether a Member of Parliament is a public servant falling within the purview of P.C. Act of 1988. In that context the majority view of the Supreme Court is as under :--
"Having regard to the provisions of the Constitution and the Representation of the People Act, 1951 as well as the Salary, Allowances and Pension of Members of Parliament Act, 1954 it can be said that Membership of Parliament is an 'office' inasmuch as it is a position carrying certain responsibilities which are of a public character and it has an existence independent of the holder of the office. A Member of Parliament thus holds an 'office'. As regards the question whether a Member of Parliament is authorised or required to perform any public duty by virtue of his office. The words "faithfully discharge the duty upon which I am about to enter" in the Form of Oath or Affirmation which is required to be made by a Member of Parliament show that a Member of Parliament is required to discharge certain duties after he is sworn in as a Member of Parliament. Under the Constitution the Union Executive is responsible to Parliament and Members of Parliament act as watchdogs on the functioning of the Council of Minister. In addition, a Member of Parliament plays an important role in Parliamentary proceedings, including enactment of legislation, which a sovereign function. The duties discharged by him are such in which the State, the public and the community at large have an interest and the said duties are, therefore, public duties. It can be said that a Member of Parliament is authorised and required by the Constitution to perform these duties and the said duties are performed by him by virtue of his office. Member of Parliament holds an office and by virtue of such office he is required or authorised to perform duties and such duties are in the nature of public duties. A Member of Parliament would, therefore, fall within the ambit of Sub-clause (viii) of Clause (c) of Section 2 of Prevention of Corruption Act, 1988."
34. In the case of Rabindra Kumar Nayak v. Collector, Mayurbhanj, Orissa and Ors. (AIR 1999 SC 1120), it was held that the appellant while functioning provisionally as Assistant Public Prosecutor holds office of profit under the State Government, therefore, disqualified to be a Member or Chairman of a Samiti. The fact that his appointment as Asstt. Public Prosecutor was stop gap arrangement and he did not in fact receive any fee is immaterial.
35. In the case of B.R. Kapur v. State of T.N. and Anr. [(2001) 7 SCC 231], it has been held that a writ of quo-warranto can be issued against a Member of Legislative Assembly.
36. The learned Counsel for the petitioner further heavily placed reliance on a recent Supreme Court decision in the case of Shibu Soren v. Dayanand Sahay (AIR 2001 SC 2583), in which it has been held by the Supreme Court that a Council is an office under the State Government. In this case the question which arose was whether the appellant holds the office of profit as Chairman of the Interim Jharkhand Area Autonomous Council under the State ? The State Government not only had the exclusive jurisdiction to appoint (nominee) the Chairman of Interim JAA Council but also power to remove him since under Section 23 (7) of the JAAC Act the Chairman and Vice-Chairman of the Interim JAA Council as well as members of the Interim Executive Council, "shall hold their office during the pleasure of the State Government". In such circumstances it was held that the appellant holds an office of profit under the State Government at the relevant time and thus, was disqualified to be a Member of Rajya Sabha.
37. In a recent judgment pronounced by the Apex Court in the case of M.V. Rajashekaran and Ors. v. Vatal Nagaraj and Ors. (AIR 2002 SC 742), it has been held by the Supreme Court that :--
"In order to attract the disqualification under Article 191(1)(a) of the Constitution, the person concerned must hold an office and that office must be an office of profit under the Government of India or under the Government of any State. The very object of providing the disqualification under Article 191 of the Constitution is that the person elected to the Legislative Assembly or Legislative Council should be free to carry on his duty fearlessly without being subjected to any kind of Governmental pressure. The Court, therefore, is required to find out as to whether there exists any nexus between the duties discharged by the candidate and the Government, and that a conflict is bound to arise between impartial discharge of such duties in course of his employment with the duties which he is required to discharge as a member of legislature, on being elected. While examining the aforesaid question the Court has to look the substance and not the form and, further it is not necessary that all factors and tests laid down in various cases must be conjointly present so as to constitute the holding of an office of profit under the Government."
The creation or constitution of a One-man Commission for the purpose of holding certain enquiry and appointment of an individual as the said Commission, and providing the money necessary for disbursement of salary and other allowances of such Commission would make the Commission an office of profit within the ambit of Article 191 of the Constitution read with Section 100(2) of the Representation of the People Act. The rejection of nomination on that score was, therefore, not improper.
38. In Anthulay's case (supra), the Supreme Court has held that an MLA is not a public servant within the meaning of Section 21 of the IPC, but now in view of the provisions of Sub-section (viii) of Clause (C) of Section 2 of the new Prevention of Corruption Act, 1988, MLA is a public servant because he performs public duties. In view of the aforesaid discussion it is clear that a Member of Legislative Assembly holds an office and also performs public duties.
39. From the aforesaid discussion and after considering various provisions of the Constitution and the provisions of law and the interpretation held in various decisions cited (supra), the Apex Court has consistently laid down five tests for finding out whether an office is an office of profit and whether it is an office of profit under Government such as (1) whether the Government makes the appointment (2) whether the Government has the right to remove or dismiss the holder of office (3) whether the Government pays the remuneration (4) what are the functions of the holder of the office ? Does he perform them for the Government and (5) Does the Government exercise any control over the performance of these functions ?
If the aforesaid tests are applied to the case of office of MLA, it is clear that MLA is not a Government appointee nor he can be removed by the Government from his office. Though the remuneration, fees, salary or allowances are paid which may be said to be paid by the Government but the Government does not exercise any control over the performance of his functions. It is also apparent from the decisions of the Supreme Court that all the five tests must be satisfied together before it is held that a person is holding an office of profit under the Government. In the case of MLA only one test is applicable regarding the payment from the Government funds and the second test also can be said to be that now he is a public officer and performs public duties as per Sub-section (viii) of Clause (C) of Section 2 of the new PC Act of 1988 and as has been held in the case of P. V. Narsimha Rao (supra), the office of Member of Parliament is an office, therefore, it can be held that now the office of MLA is an office of profit but certainly it can not be held that it is an office under Government because it does not satisfy the other tests as laid down by the Supreme Court in various cases, such as removal from office, performance of functions for the Government and Government control over the performance of functions.
40. As is clear from the name and nature of the post of MLA (Member of Legislative Assembly), he is an elected member of Legislative Assembly. He is part of the assembly but he is not subordinate to it. It can be said that he is a part of its components and structure but it can not be said that he is either dependent or even under the control of Speaker or Chairman except for some disciplinary regulations. Therefore, he holds an independent office. In no way his duties are controlled even by the Legislative Government. It is true that under the Constitution the Member of State Legislative Assembly acts as a watch-dog on the functions of the Council of Ministers and, thus, he plays an important role in legislative proceedings including enactment of legislation which may be said to be one of the sovereign functions of the Legislative Assembly. No doubt, the State, the public and the community at large have an interest in the duties which are being performed by the MLAs, therefore, these duties can be said to be public duties. Likewise, an MLA by virtue of holding his office performs public duties and, therefore, he may be said to be a public officer. Looking to the nature of duties of the MLA as he is an elected representative he is responsible and answerable to his voters of his constituency. Therefore, in view of every logic which needs to be interpreted about a particular office, logical conclusion can be drawn that an MLA holds an office of profit but that office is not under Government.
41. If we also consider the question of accountability, it seems to be important that an MLA is accountable directly to the people or voters of his constituency. He is not accountable to the executive Government and ultimately the voters of the constituency are responsible to decide the fate of their representatives. Therefore, in all fairness it can not be held that it is an office of profit under Government. No doubt, in a parliamentary democracy MLA is not only one of the important pillars but a part and parcel of the legislature with no subordination. Though he plays an important role in the governance of the State but there is no specific provision in the Constitution that an MLA holds an office of profit under Government. But he is an elected representative of the masses and a representative of a constituency to represent the will of the people. After examining the entire case law and the arguments of the learned Counsel for the parties, in fact I would have answered the questions in one line after drawing conclusion in my mind but for a judicial order it is necessary that reasons should be assigned and spelled out.
42. Having regard to the powers privileges and immunities of the MLAs and also looking to the various Acts regarding payments of salary, allowances and pension to the Members of the Legislative Assembly and the various facilities and benefits extended to them for holding office and for discharging public duties, it can be held that the MLA holds an office of profit, but it can not be held that his office is under the Government. Therefore, for the purposes of Article 191(1)(a) of the Constitution he does not hold an office of profit under the Government. It is apparent that MLAs are directly elected from the people and the Government does not enjoy any control over them nor they can be removed by any authority except that they can only be declared disqualified under the Constitution but that too under certain circumstances. He also does not hold the office at the pleasure of the Government. Virtually, it is an independent elected office in a Parliamentary democracy under the Constitution. It can be said that MLA plays an important role in legislative proceedings including enactment of legislation and directly or indirectly involved in controlling executive functions of the Government, but it can not be said that they are performing duties under the control of the Government or for the Government. Being a part of the party in power, the MLA may also be involved in exercising some of the control over the performance of the functions of the Executive Government and may be acting as a watch-dog on the functioning of the Council of Ministers but even then his office can not be treated as one under the Government. Thus, in my considered opinion an MLA is a public officer, who holds a public office and performs public duties cast upon him by the Constitution and performs constitutional obligations for which he is also remunerated fees under the Constitution. In the case of Rajeev Gandhi (supra), the Apex Court has also clearly held that in any event the membership of Parliament is not an office under the Government and in the case of P.V. Narsimha Rao (supra) too the Court has only held upto that extent and there is no dictum that it is an office under Government. Therefore, it can be held that he holds an office of profit, but for the purpose of Article 191(1)(a), it can not be held that it is an office of profit under the Government.
43. I do not see that the case of Shibu Soren (supra) is helpful for the determination of the questions involved in this case as strenuously argued by Shri Vyas. In fact, Shibu Soren was an appointee of the Government which has no comparison with the office of MLA The office of MLA is in no way under the control of the State Government. Thus, I agree with the contention raised by Shri Vyas that the MLA holds an 'office of profit' but his argument that the office of MLA is an 'office of profit under Government' can not be accepted because the duties which an MLA performs in the discharge of his duties are not performed for and on behalf of the Government and the Government does not exercise any control over the performance of those functions inasmuch as an MLA is not an appointee of the Government and the Government does not have any disciplinary powers over him including the power to remove, suspend or dismiss.
44. It was also submitted by Shri Vyas that since the post of MLA has not been included in the Schedule of the Adhiniyam of 1967, the effect of non-inclusion is that it is an office of profit under the Government. I do not think that such an argument is valid and helpful to the petitioner. In fact, such a non-inclusion can be construed as the legislature has intended that the post of MLA is not an office of profit under the Government and has not thought it fit to include the post of MLA in the Schedule of the Adhiniyam of 1967.
45. Virtually, in this case, I am not required to consider whether the office of Mayor is an office of profit under Government or not and it is not the matter of challenge in this revision. Similarly, I am also not required to consider in this case whether a person at a time can hold two offices of equal status or not. Shri S. Seth, respondent No. 10, who appeared in person, produced before me a number of local Acts and submitted that under various local Acts the State Government has prohibited the MLAs to hold two offices at a time. He further submitted that under local Acts as many as 178 MLAs of rural areas have been debarred from holding two offices of profits whereas 52 MLAs of urban areas are enjoying this facility, which is a legal and legislative discrimination. The question of this discrimination is also not under consideration or under challenge in this revision before this Court and it can not be a subject-matter of the revision also. It is for the State Government and State legislature to consider about the removal of these discriminations and to pass appropriate uniform legislation in this regard by incorporating amendments in the local Acts. The legislature has provided disqualification for the post of Mayor but that disqualification is not applicable to the MLAs. It is also for the legislature and for the Government to consider this aspect of the matter.
46. Learned Counsel for the parties submitted before me that after the order dated 12-3-2001, it was not necessary for the Trial Court to decide the questions of disqualification afresh and also to decide the issue No. 5 which was already decided on 5-10-2000. I agree with the submissions as advanced by the learned Counsel for the parties that the Trial Court has committed procedural illegality while passing the impugned order dated 11-4-2002. Only two issues, i.e., issue Nos. 3 and 7 had remained to be decided by the Trial Court at the time of final disposal. The Trial Court ought not to have recorded findings on all issues.
47. Now coming to the findings recorded by the Trial Court on issue No. 3 whether respondent No. 3 in collusion with the Government got conducted election on the basis of electoral roll of 1994, which is not in accordance with law, as such the election of Mayor on this ground is vitiated ? Undisputedly, Section 10 has been added by M.P. Act No. 16 of 1994 w.e.f. 30-5-94 in the Act of 1956 and thereafter by notification dated 13-7-94 published in M.P. Rajpatra, 69 number of wards were fixed for the Indore Municipal Corporation and as per the proviso of Section 10, the total number of wards shall not be more than 70 and not less than 40 in any Municipal area, therefore, when the number of wards were fixed by aforesaid notification and the ceiling limit of the same has been prescribed under Section 10, it can not be argued that before the election of 1999, there was any necessity of any fresh notification for determining the number of wards. Shri S. Seth vehemently submitted that before the election of Mayor the voters list was neither revised nor modified but on the contrary it has come in evidence of the witnesses that the ejections were held on the basis of the electoral roll of 1999 which was used for the Parliament election. Therefore, the Trial Court rejected the submission of the petitioner that the election was held on the basis of voters list of 1994. Though various witnesses were examined but there is no evidence on record that there was any interpolation in the voters list in collusion or connivance with respondent No. 3. The voters list having been prepared by the employees of the Municipal Corporation, the Election Commission had conducted the election on the basis of the said list. The petitioner admits that he had not raised any objection before finalising the voters list and so did other witnesses. Therefore, after appreciating the evidence of the witnesses, the Court below has found that there is no evidence on record to prove that there was any interpolation in the voters list with the connivance of the returned candidate, respondent No. 3 and I do not find any ground for interference in the same. The finding of the Court on issue No. 5 is also nothing but innocuous.
48. For the reasons indicated above, I am of the opinion that the post of MLA (Member of Legislative Assembly) is not an office of profit under the Government. Consequently, I hold that the respondent No. 3 was not disqualified from being chosen as Mayor and his nomination paper was validly accepted. Thus, this revision fails and is hereby dismissed with no order as to costs. Parties to bear their own costs. In the end, I wish to record a word of appreciation to Shri D.D. Vyas, learned Senior Counsel for the petitioner, who assisted the Court very ably and astutely and tried to hammer the point from every corner which was available at his command.