Karnataka High Court
S.R. Rangappa vs Girijakumar on 8 September, 1987
Equivalent citations: ILR1987KAR3273, 1987(3)KARLJ630
ORDER Bopanna, J.
I.A.No. I is allowed. The applicant is permitted to come on record as additional respondent.
2. This petition raises an interesting question touching the right of a member of a committee under the control of the State Government to contest the elective posts under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (in short 'the Act'). This Act contains certain provisions prescribing certain disqualifications for seeking the membership of the Mandal Panchayat/Zilla Parishad. We are concerned with the case of disqualification for being chosen to be nominated and for being a member of the Mandal Panchayat. Under Section 11(j) of the Act a person who holds any office of profit under the Government of India, or the Government of Karnataka or the Government of any other State in India or of any local or other authority subject to the control of and of the said Governments other than such offices as are declared by Rules made under this Act, not to disqualify the holder.
3. The relevant Rules made in exercise of the powers under Section 11 are found in the Karnataka Zilla Parishads and Mandal Panchayats (Prevention of Disqualification) Rules 1986. Under Rule 1(b)-
"Committee" means any Committee, Commission, Council, Board or any other body of one or more persons, whether statutory or not, set up by the Government of India, or the Government of Karnataka or the Government of any other State in India, or of any local or other authority, subject to the control of any of the said Governments."
Rule 3 deals with removal of certain disqualifications. The relevant portion of Rule 3 reads as under :-
"It is hereby declared that the following Offices shall not disqualify the holders thereof for being chosen as or for being members of a Zilla Parishad or a Mandal Panchayat constituted under the Act, namely :-
(a) xx xx
(b) the office of the Chairman or member of Committee ;
(c) and (d) xx xx Provided that the holder of any such Office is not in receipt or entitled to any remuneration other than compensatory allowance."
What is compensatory allowance is defined under Rule 1(c) of the Rules :
"Compensatory allowance" means such sum of money as the Central Government or the Government of Karnataka or the Government of any other State in India or any local or other authority subject to the control of any of the said Governments, as the case may be, may determine as being payable to the Chairman or any other member of a committee by way of travelling allowance, daily allowance, sitting fee, conveyance allowance or house rent allowance for the purpose of enabling the Chairman or other member to recoup any expenditure incurred by him in attending any meeting of a Committee or performing any other function as a member of a Committee."
The petitioner, it is not in dispute, is the Chairman of the Agricultural Produce Marketing Committee and as such he is entitled to a sitting fee of Rs.30/- for every meeting attended by him and travelling allowance based on actuals. Under Section 94 of the Mysore Agricultural Produce Marketing (Regulation) Act, 1966 (in short 'the APMC Act'), the petitioner would be entitled to an honorarium of not exceeding Rs.250/-per mensem as the Marketing Committee may determine, provided that the amount payable during any market year being not more than five per cent of the gross receipts by way of market fees and licence fees during the preceding market year. Under Section 94(2), he is also entitled to travelling allowances as may be prescribed by the bye-laws. So, under Section 94, he is entitled to an honorarium not exceeding Rs. 250/- p.m. and travelling allowance as prescribed under the bye-laws of the Marketing Committee.
4. The Deputy Commissioner who is the Chief Secretary of the Zilla Parishad issued notice to the petitioner calling upon him to show cause as to why he should not be disqualified under Section 12(ii) of the Act on the ground that he was holding an office of profit and thereby incurred the disqualify cation under Section 11(i)(j) of the Act. There was also another charge against the petitioner, namely, that be had received certain amounts from the Block Development Officer during the year 1985 for the construction of Janatha Houses in Chikka Bellary Village. But this charge was dropped by the Deputy Commissioner in the proceedings before him for want of evidence and therefore, the only ground that was pressed before the Deputy Commissioner was that the petitioner having received honorarium at the rate of Rs. 250/- p.m. since 1983, under Section 94 of the APMC Act, he had incurred the disqualification under the relevant provisions of the Act and the Rules prescribed thereunder.
5. The Deputy Commissioner in a well-considered order came to the conclusion that though the amount received by the petitioner was called as honorarium, that was remuneration under the proviso to Rule 3 of the Rules and it does not amount to compensatory allowance as defined under Rule 1(c).
6. On the admitted facts, the only point raised for consideration is whether the payment of honorarium to the petitioner would amount to remuneration or compensatory allowances. If it is remuneration, the proviso to Rule 3 will come into operation and the petitioner would be disqualified from holding the elective post.
7. The learned Counsel for the petitioner submitted that the very word 'honorarium' means an amount paid gratutiously and for not any service rendered by him; that it was paid as a token of honour for the office that the petitioner held as a Chairman of the APMC. He relied on the dictionary meaning of the word 'honorarium' as also on the decision of the Supreme Court in Ravanna Subbanna -v.- G. S. Kaggeerappa, . He also relied on the decision of the Andhra Pradesh High Court in Pakanti Sudarshan Reddy and Ors. -v.- District Collector, Warangal and Ors., . In that case, a Division Bench of the Andhra Pradesh High Court has held:
"The expression "office of profit" means that an office must be held under the Government or Municipality or local authority to which any pay, salary, emoluments or allowance is attached. 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.
The consideration in determining whether an office is an office of profit is not whether the holder himself makes profit out of the office, but whether the office was one which enables him to make profit. In case of members of a municipal committee receiving a sitting fee for attending the meetings, if the intention in paying the amount is only to provide such sum which will cover approximately the out of pocket expenses, which these members are likely to incur, it can by no stretch of imagination be called as an office or place which profits or remuneration to the members.
Members of a municipal committee who are paid a small amount of sitting fees as a consolidated fee for the out of pocket expenses which they are to incur for attending the meetings of the society though hold an "Office of profit" so as to entail disqualification for election as members. Such members themselves constitute the Municipal Committee and are not subordinate to the committee. They cannot also be said to hold an office or a place of profit under the Municipal Committee."
8. On the contrary, it was contended by the Learned Government Pleader and also by the contesting respondents that this amount was paid as remuneration for the services rendered by the petitioner as Chairman of the APMC Committee and therefore, the petitioner was rightly disqualified by the Deputy Commissioner.
9. The Division Bench relied on the decision of the Supreme Court in Revanna Subanna -v.- G.S. Kaggeerappa1. But this decision relates to the provisions of the Mysore Town Municipalities Act. The relevant discussion is found in para-12 of the Judgment of the Supreme Court. The Supreme Court observed:
"The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments or allowance is attached. 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. It appears from the rules that the Taluk Development Committee is constituted as a part of the scheme for re-organisation of rural development."
The Supreme Court further observed :
"The Chairman is to preside over meetings which are to be convened by the Secretary in consultation with him and the rules provide that the Chairman will be entitled to a fee of Rs. 6 for each sitting he attends.
From the facts stated above, we think it can reasonably be inferred that the fee of Rs. 6 which the non-official Chairman is entitled to draw for each sitting of the committee, he attends, is not meant to be a payment by way of remuneration or profit, but it is given to him as a consolidated fee for the out-of-pocket expenses which he has to incur for attending the meetings of the committee. We do not think that it was the intention of the Government which created these Taluk Development Committees which were to be manned exclusively by non-officials, that the office of the Chairman or of the members should carry any profit or remuneration."
10. The decisions of the Andhra Pradesh High Court and the Supreme Court rest on the facts of those cases and the statutory provisions of the respective Acts which came up for consideration. In this case as noticed earlier, the petitioner is not only entitled to sitting tee of Rs.30/- but is also entitled to travelling allowance. Travelling allowance is part of compensatory allowance as defined under Rule 1(c). In addition to sitting fee and travelling allowance to which he is entitled to as a Chairman of the A.P.M.C. he also draws an honorarium of not less than Rs 250 p.m. and in fact he was drawing honorarium since 1983. It may be that the quantum of honorarium varied with the resources of the A.P.M.C. but that does not detract from the meaning of the word remuneration which is found in the proviso to Rule 3 of the Rules, The contention of the learned Counsel for the petitioner that honorarium does not amount to any remuneration but is only a gratutious payment to the incumbent of the office in token of the honour conferred on him, that is, the honour of being the Chairman is wholly inconsistent with the very scheme of the APMC Act itself. An indication of the real meaning of the word 'honorarium' could be found in the provisions of Section 94(3) of the APMC Act itself. Section 94(3) of the Act reads as under :
"If the Chairman is absent from the market area with the leave of the market committee for purposes unconnected with the affairs of the market committee, the Chairman shall not be entitled to an honorarium for such period of absence, and the Vice-Chairman or any other member performing the functions of the Chairman during such period of leave shall be entitled to draw the honorarium for such period."
This Sub-section is indicative of the fact that honorarium is paid to the Chairman for the services rendered by him) that is to say, that it is remuneration for the services rendered by him. That is the reason, during his absence even with the leave of the Marketing Committee, he is not entitled to honorarium but the Vice-Chairman or any other member performing the functions of the Chairman during such period of leave would be entitled to draw that amount. In the circumstances, he is paid remuneration within the meaning of the proviso to Rule 3 of the Rules. The word 'honorarium' does not include remuneration. This is clear from Black's Law Dictionary which reads as under :
"Honorarium - In the civil law, an honorary or free gift ; a gratuitous payment, as distinguished from hire or compensation for service : a lawyer's counsellor's fee.
A voluntary reward for that for which no remuneration could be collected by law. Cunningham v. Commissioner of Internal Revenue, C.C.A 67 F. 2d 205. A voluntary donation, in consideration of services which admit of no compensation in money."
The petitioner was drawing a sum of Rs. 250/- p.m. for his services as the Chairman of the APMC and therefore, the petitioner being a member of a Committee which is constituted under the APMC Act and which is under the control of the State Government he was rightly disqualified by the Deputy Commissioner. The decision relied on by the learned Counsel for the petitioner in Kona Prabhakara Rao -v.- M. Seshagiri Rao and Anr., deals with the provisions of the Representation of the People Act. In this connection Article 191(1)(a) of the Constitution may be perused ;
"191(1) A person shall be disqualified for being chosen in, 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 the office declared by the Legislature of the State by law not to disqualify its holder."
But Section 11(1)(j) of the Act is not in pari materia of Article 191(1)(a) of the Constitution. That is more comprehensive than the provisions of Article 191(1)(a) of the Constitution. Therefore, the decision of the Supreme Court in , Smt Kanta Katheeria -v.- Manak Chand Surana and in Kona Prabhakar3 are not authorities for interpreting the provisions of the Zilla Pan-shad Act and the Rules made thereunder touching the disqualification of persons who choose to contest the elective posts under the Act.
11. For the reasons stated above, this Petition fails and is dismissed.