KANTA KATHURIA versus MANAK CHAND SURANA

KANTA KATHURIA

MANAK CHAND SURANA

October 16, 1969

(M. HIDAYATULLAH, C.J., S. M. SIKRI, G. K. MITTER, A. N. RAY, AND P. JAGANMOHAN REDDY, JJ.j

Constitution of India, 1950, Art, 191(1)-0ffice of profit-Of]lce of Special Government Pleader if such office.

Retrospective /egls/atlon~andidate held to be disqualified becauu of holding office of profit-Stare Legls/aturt enacting that such ofjice not an C>f!ice of profit and validating electlo,..-EOect of,

Repmentatlon of th1 Peopl1 Act (43 of 1951), s. 82(b)-'Any othtr candldatl' aralnst whom corrupt practlc11 ar1 al/111d, lo b1 mad1 p111ty, -Scop' o/.

Di1_Put11 between the State of Rajasthan and company were referred to arbitration and the Oovernment Advocate was appO!nted to represent the State. Another advocate was appointed to 111111 the Government Advocate but as the advocate was -not able to appear, the appellant was appointed under 0.27, r., SB of the Civil Procedure Code, as Special Oovernment Pleader. The appellant then stood for election to the State Legislative Assembly and was declared elected. The election was challenged and one of the grounds of challenge was that the appellant held an office of profit within the meaning of Art. 191 of the Constitution. The High Court set aside the election. While the appeal was pending in this Court, Rajasthan Act 5 of 1969 wao passed declaring among othero that the holder of the office of Special Qovernment Pleader was not disqualified from being chosen or fo1- being member of the State Legis· lative As'lembly; and by s. 2(2), the Act was made retrospective remov· ing the appellant's disqualification retrospectively.

On the questions : (I) Whether the appellant was holding an office of profit and hence was disqualified; (2) Whether the disqualification was removed by Act 5 of 1969; and (3) Whether the election petition was in accordance with law, because, another candidate from another consti~ tuency, aga,in'st whom co'rrupt practices were aUeged, was not impleaded , as party, ·

HELD: (I) (Per Sikri, appellant was not holding an office of profit.

Ray and Jaganmohan Reddy, JJ.) : The

(a) Before person becomes subject to the d;squalification in Art. 191(1) there must be an office wbich exists independently of his being the holder of the office. The word 'office' means an office or employment which was subsisting, permanent, substantive position which had an exis-tence independent of the person who filled it, which went on and was filled in succession by successive holders; but if person was engaged on whatever terms to do the duties which were assigned to him, his employ-H ment to do those duties did not create an office to which those duties were attached. Hence an office does not come into existence every time pleader is asked by the Government to appeal in case on its behalf. [847 F; 848 A-B; 850 G-H] ,

LSSup.CI/70-8

(b) reading of s. 2(7) and 0.27, r. 8B of the Civil Procedure Code shows, that even an advocate who is acting under the directions of the Government Ple~der could be deemed to be Government Pleader. Therefore, the notification of t.he appellant's name under r. 8B as Special Government Pleader did not amount to the creation of an office. [850 F·GJ

( c) Assuming that Government Pleader is an agent of the Govern-rnent for purposes of receiving processes against the Government, the fact that processes couid be served on an advocate, would not mean that the advocate was holding an office under his client. [851 A-BJ

( J) It is not necessary to give wider meaning to the word 'office' because, if Parliament thinks that legal practitioner who is being paid fees in case by the Government should not be qualified to stand for an election as momber of the Legislative Assembly, it can make that provi-sion under Art. I9I(l)(c) o'f the Con3titution. [851 C·D]

Great Western Railway Co. v. Bater, 8 Tax Cases 231 and McMillan v. Guest (II. M. Inspector of Taxes) 24 Tax Cases 190, applied.

Mahadeo v. Shantibhoi & Ors. [I 969]2 S.C.R. 422 distinguished.

Sakhawat Ali v. Stale of Orissa, [1955] I S.C.R. 1004, referred to.

(Per Hidayatullah, C.J. and Mitter, J. dissenting) : The High Court was right in holding tha the appellant held an office of profit. [842 CJ

It was not case of the appellant merely being briefed as lawye< and given the Government litigation. On the other band an office, that of Special Government Pleader was created, and since the office of G<>vernment Pleader is an office of profit, the office of Special Govern· ment Pleader will equally be an office of profit. It was an office which cou1rl be successively held. it was inaependent of its holder, it was substantive position and a() permanent as other supernumerary offices. [841 FG; 842BJ

Mnhadeo v. Shantibhai & Ors. [1969]2 S.C.R. 422 and The Statesman (P.) Ltd. v. H. R. Deb & Ors. [1968]3 S.C.R. 614 applied.

McMillan v. Guest, [1942J A.C. 561 and Great fVestern Railll'ay Co. v. Bc.te·, 8 Tax Cases 231. 235, referred to.

12) (By Full Court) : The Act 5 of 1969 has removed the disqualifi· cation retrospectively.

Per HidayatuJiah, CJ. and Mitter, J. : It is well recognised that Parlia~ ment and th.:: Leg~s!ature of S~ate can make their laws operate retros-p!:ctively sub;ect to limil~tions, if any, in the Constitution. Any law that can be made prospectively may be made with retrospective operation ex~ cept those which cannot op~rate retroactively. In Art. 191 itself, power is fesenred to the State Legislature to make declaration that the holder of an office shaJI not be '-UsquaJified and there is nothing in the words of the Article to indicate that such declaration cannot be made with retros-pecth·e effect The:.afore. 'vhatever mav be the proprietv of such Jegis-J '.ltio1. re2ard b~Jn~ had to le~isl.'.ltive pra.crice and the absence of clear p•ohibiti'"'n. expri>-s;:; or implif"d, the Act must be declared to have retros-pective effect. [843 B-C, D-FJ

Per Sikri, Ray and Jaganmohan Reddy, JJ. : Parliament ar.d the State legislatures can legislate retrospectively subject to the provisions of the Constitution. No limitation on the po\vers of the Legislature tO make declaration validating an election, effective_ from an earlier date, is ex~ pressly stated nor could it be implied in Art. 191(1). ]851 F-G; 852 D-E]

The apprehension that it may not be healthy ptactice and might be abused is no ground for limiting the powers of the State Legislature. [852 El

The impugned Act does not amend or alter the Representation of the People Act, 1951, in any respect whatsoever. By enacting the impugned Act, the disqualification if any, which existed in the 1951 Act has been removed, but that ii what the State Legislature is entitled to do under Art. 191 so long as it does not touch the wording of the 1951 Act. [852 F-G]

(3) (By Full Court) : The words 'any other candidate' in s. 82(b) of the Representation 0f the People Act, 1951, who should be impleaded, refers to candidate in the election for the constituency ¥.:hich is the subject matter of the petition, and not to candidate from another consti· tuency. [843 G-H; 853 D-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1869 of 1968.

Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated August 12, 1968 of the Rajasthan High Court in Election Petition No. 16 of 1967.

S. V. Gupte, M. M. Tiwari. H. K. Puri. Bishamber Lal, M. K. Garg, K. K. Jain and S. P. Vii, for the appellant.

M. C. Chagla and S. M. Jain, for respondent.

Niren De, Attorney-General, G. C. Ka</iwal, Advocate-General. Rajasthan and K. B. Mehta, for ;he State of Rajasthan.

The Judgment of S. M. SIKRI, A. N. RAY and P. JAG"-N· .. MOHAN REDDY, JJ.was delivered· by S!KRI, J., M. HIDAYATULLAH,

C.J. and G. :K. MITTER, J. gave separate opinion.

· Hidayatullah, C.J. We regret our inability to agree that the appellant Mrs. Kanta Kathuda was not holding an office of profit under the Government of Rajasthan when she stood as candidate for election to the Rajasthan Legislative Assembly from the Kolayat Constituency.

Mrs. Kathuria is an advocate practising at Bikaner. She contested the above election held on February 18, 1967 against seven other candidates. She was declared elected on February 22, 1967. One of the defeated candidates filed the election petition, from which this appeal arises, questioning her election on several grounds. We are concerned only with one of them, namely, that on the date of her nomination and election she wa~ disqualified to be chosen to fill the seat as she held the office of Special Government Pleader, which was an office of profit under the Government of Rajasthan.

Article 191 of the Constitution, which is relevant in this con-

nee ti on, reads :

"191 : Disqualifications for membership :

( 1) person shall be disqualified for being chosen as, and for being, member of the Legislative Assem-bly or Legislative Council of State-

(a) if he holds any office of profit under the Gov-ernment of India or the Government of any State speci-fied in the First Schedule, other than an office decl3red by the Legislature of the State by law not to disqualify its holder;

Mrs. Kathuria was appointed by the Government of Rajasthan as Special Government Pleader to conduct arbitration cases between the Government and Modern Construction Company arising out of the construction of ~ana Pratap Sagar Dam and J awahar Sagar Dam. The order was passed on June 26, 1965 (Ex. 1). The order reads :

"ORDER

Sub : Construction of R.P.S. Main Dam-Contract of M/s. M.C.C. (Pvt.) Ltd., Arbitration in disputes arising out of.

In pursuance of Rule 8 (b) of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 read with clause (7) of Section 2 of the Code, the Governor is pleased to appoint Smt. Kanta Y.:uthuria, Advocate Bikaner as Special Government Header to conduct the above noted case on behalf of the State of Rajasthan :iJongwith Shri Murali Manohar Vyas, Gov-F ernment Advocate, J odhpur.

By order,

Sd. D. S. Acharya

26-6-65

(D. S. Acharya)

Joint Legal Remembrancer''.

By subsequent orders, which we do not consider necessary to quote here, her remuneration was fixed at Rs. 150/· per day for each date of hearing, Rs. 75/ • per day for days of travel and dates on which the case was adjourned, and days spent on pre-paration of the case. Mrs. Kathuria began appearing in the case from March 27, 1965. It is an admitted fact that she was paid for work between that date and November 28, 1966 sum of

Rs. 26,325/- and again from February 26, 1967 to March 2, 1967 sum of Rs. 900/- and that the arbitration proceedings were continuing on the date of the filing of the election petition. Therefore for over two years she was employed as Special Gov-ernment Pleader and was still employed when her election took place. It is also admitted by her that prior to this employment, she had never paid income-tax in excess of Rs. 1200/-in any year.

On these facts, the High Court held that Mrs. Kathuria was disqualified. Before this appeal came on for hearing before us, the Governor of Rajasthan by Ordinance 3/68 (December 24, 1968) removed the disqualification retrospectively. The Ordi-nance was followed by Act V of 1968 (April 4, 1969). The operative portions of the Act which are the same as of the Ordi-nance read:

"Prevention of disqualification of membership of the State Legislative Assembly-D

(!) It is hereby declared that none of the following offices, in so far as it is an office of profit under the State Government, shall disqualify or shall be deemed ever to have disqualified the holder thereof from being chosen as, or for being, member of the Rajasthan Legislative Assembly, namely :-E

(a) the office· of Government Pleader or Special Government Pleader or Advocate for the Government, appointed specially to conduct any particular suit, case or other proceeding by or against the State Government, before any court, tribunal, arbitrator or other autho-rity;

(b) the office of Government Pleader, Special Government Pleader or Advocate for the State Govern-ment, appointed specially to assist the Advocate Gene-ral, Government Advocate or Pleader, or Special Gov-ernment Pleader, or Advocate for Government, in any particular suit, case or other proceeding by or against the State Government before any court, tribunal, arbi-trator or other authority;

( c) the office of panel lawyer if the holder of such office is not entitled to any retainer or salary, by what-ever named called;

(4) Jhe office of Pradhan or Pramukh a~ defined in the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (Rajasthan Act 37 of 1959).

(2) Notwithstanding any judgment or order of any Court or Tribunal, the aforesaid offices shall not dis-qualify or shall be deemed never to have disqualified the holders thereof for being chosen as, or for being, members of the Rajasthan Legislative Assembly as if this Act had been in force on the date the holder of such office filed his nomination paper for being chosen as member of the Rajasthan Legislative Assembly."

The Ordinance and the Act seem to have been passed to nullify the decision in this case. One of the contentions of the answer-ing respondent is that the Legislature of Rajasthan could not remove the disqualification retrospectively since the Constitution contemplates disqualifications existing at certain time in accord-ance with the law existing at that time. We shall deal with this matter later.

When the Government of Rajasthan appointed Mrs. Kathuria it had two courses opeti to it. ·Firstly, Government could have engaged Mrs. Kathuria to conduct the particular arbitration case or cases, or even to assist the Government Advocate in those cases. Alternatively Government could create special office of Special Government Pleader and appoint Mrs. Kathuria or any other lawyer to that office. It is obvious tl)at Government did not choose the first course. There were as many as 26 arbitra-tion cases then pending and more were likely to arise. Govern-ment thought that they should be conducted by the Government Advocate but as the work involved was too much as additional office had to be created and given to lawyer. An office was therefore, created and given to Mrs. Kathuria. In recent case (Civil Appeal No. 1832 of 1967-M'lhadeo v.Shantibhai & Others-decided on October 15, 1968), we held th at panel lawyer engaged to watch cases on behalf of the Cen-F tral & Western Railway Administrations, held an office of profit. The duty of the panel lawyer was to watch cases coming up for hearing against the Railways at Ujjain and to appear in court and ask for an adjournment. The lawyer was paid Rs. 5/- for each such adjournment if he was not entrusted with the case later. In dealing with this matter reliance was placed by us on the mean-G ing to the word 'office' given in the Statesman (P) Ltd. v. H. R. Deb & Ors. ( [1 ]) In the Statesman case, this Court approved of the observations of Lord Wright in Mcmillan v. Guest<') to the fol-lowing effect :

''The word 'office is of indefinite content. Its vari-ous meanings cover four columns of the New English

{I) [1968] J S.C.R. 614.

(2) [1942] A.C. 561.

Dictionary, but I take as the most relevant for purpose of this case 'the following :

'A position or place to which certain duties are attached, especially one of more or less public cha-racter."

Our brother Sikri has also relied upon the same case and has referred to the observations of Lord Atkin where he approved of the observations of Rowlatt, J. in Great Western Railway Co. v. Bater('). Justice Rowlati said thus :

"Now it is argued, and to my mind argued most forcibly, that that shows that what those who use the language of the Act of 1842 meant, when they spoke of an office or employment which was subsisting perma-nent, substantive position, which had an existence in-dependent from the person who filled it, which went on and was filled in succession by successive holders, and if you merely had any man who was engaged on what-D ever terms, to do duties which were assigned to him, his employment to do those duties did not create ail office to which those duties were attached. He hereby was employed to do certain things and that is an end of it, and if there was no office or employment existing in the case as thing, the so-called office or employment was merely an aggregate of the activities of the particular man for the time being''.We say with profound respect for this most succint exposition, that we entirely agree. The distinction that we are making is precisely the distinction which has been brought out by Rowlatt, J. If Mrs. Kathuria had been briefed as lawyer and given all the Government litigation in Rajasthan to conduct on behalf of the Government she could not have been described as holding an office of profit., The aggregate of her work and her activities could not have created an office nor could she have been described . as anything but an advocate. What happened here was different. ' An office was created which was that of Special Government Pleader. Now it is admitted that the office of Government Pleader is an office properly so-called. Therefore an office going under the names 'Additional Government Pleader', 'Assistant Government Pleader', 'Special Government Pleader' will equally be an office properly so-called. It matters not that Mrs. Kathuria was to conduct group of arbitration cases and against the same party. For that matter Government is always at liberty to create ff offices for special duties. They might have even created another office of Special Government Pleader for Land Acquisition cases

cri· 8 Tax Cases 231, 235.

or group of cases or Railway cases or group of cases arising out of particular accident and so on and so forth. What matters is that there was an office created apart from Mrs. Kathuria. It is in evidence that it was first held by Mr. Maneklal Mathur another advocate. It is likely that if Mrs. Kathuria had declined some one else would have been found. Therefore, there was an office which could be successively held; it was independent of Mrs. Kathuria who filled it, it was substantive position and as permanent as supernumerary offices are. Every one of the tests laid down by Rowlatt, J. is found here.

We would, therefore, hold that the High Court was right in its conclusion that Mrs, Kathuria held an office. Since there is :q9 dispute that it was for profit and under the State, the election of Mrs. Kathuria must be held to be void as she was disqualified to stand for the election.

This brings us to the next question. Does the Act of the R'ajasthan Legislature remove the disqualification retrospectively. in other words; can such law be passed by the Legislature after the election is over ?

The first question is whether the new law is remedial or dec-laratory. If it was declaratory then it would be retrospective; if remedial only, prospective unless legally made retrospective. That it has been made expressly retrospective lends support to its being remedial. Its retrospective operation depends on i•' being effective to remove disability existing on the date of nomination of candidate or his election. Of course, there is no difficulty in holding the law to be perftctly valid in its prospective opera-tion. The only dispt:te is in regard to its retrospective opera-ticn.

Our brother Sikri has cited an instance of the British Parlia-ment from May's well-known treatise when the Coatbridge and Springburn Elections (Validation) Bill was introduced to validate the irregular elections. Halsbury's Laws of England (3rd Edn. Vol. 14 p. 5) has the following note :

"If person is elected when disqualified, his dis-qualification for being member of Parliament may be remedied or he may be protected from any ~nal conse-quences by an Act of Validation or indemnity."

The position of the British Parliament is somewhat different from that of the Indian Parliament and the Legislatures of the States. British Parliament enjoys plenary sovereignty and the Acts of the British Parliament no court can question. In India the sovereignty of the Indian Parliament and the Legislatures is

often curtailed and the question, therefore, is whether it is in fact so curtailed.

· At the hearing our attention was drawn to number of such Acts passed by our Parliament and the Legislatures of the States. It seems that there is settled legislative practice to make valida-8 tion laws. It is also well-recognised that Parliament and the Legislatures of the States can make their laws operate retrospec-tively. Any law that can be made prospectively may be made with retrospective operation except that certain kinds of laws can-not operate retroactively. This is not one of them.

This position being firmly grounded \ve have to look for limi-c tations, if any, in the Constitution. Article 191 (which has been quoted earlier) itself recognises the power of·the Legislature of the State to declare by law that the holder of an office shall not be disqualified for being chosen as membet. The Article says that person shall be disqualified if he holds an office of profit under the Government of India or the Government of any State unless that office is declared by the Legislature not to disqualify the holder. Power is thus reserved to the Legislature of the State to make the declaration. There is nothing in the words of the article to indicate that this· declaration cannot be made with retros-pective effect. It is true that it gives an advantage to those who stand when the disqualification was not so removed as against those who may have kept themselves back because the disability was not removed. That might raise questions of the propriety of such retrospective legislation but not of the capacity to make such laws. Regard being had to the legislative practice in this country and in the, absence of clear prohibition either express or implied we are satisfied that the Act cannot be declared in-effective in its retrospective operation.

The result, therefore, is that while we hold that Mrs. Kathuria held an office of profit under the State Government, we hold fur-ther that this disqualification stood removed by the retrospective operation of . the Act under discussion.

As regards the supplementary point that the petition was bad for non-joinder of Mr. Mathura Das Mathur against whom cor-rupt practices were alleged in the petition, we are of opinion that s. 82 of the ~resentation of People Act, 19Sl,. in its clause (b) speaks of 1dates at the same election and not persons who ~ candidatea at other elections. As Mr. Mathur was candidate from another constituency' he need no~ have been made party here.

For the above reasons we would allow the appeal but make no order about costs since the election of the appellant is saved

by retrospective law passed after the de9ision of the High Court.

Sikri, J. This appeal arises out of an election petition filed tinder section 80 of the Representation of the People Act, 1951, hereinafter referred to as the 1951 Act, by Shri Manik Chand Surana, defeated candidate, challenging the election of Smt. Kanta Kathuria, before the High Court. The High Court (Jagat Narayan, J.) allowed the election petition on the ground that the appellant held an office of profit within ·the meaning of Art. 19 I of the Constitution on the day on which she filed the nomination paper and was thus disqualified for being chosen as member of the Rajasthan Legislative Assembly. This judgment was given on August 12, 1968. An appeal was filed in this Court on August 20, 1968. During the pendency of the appeal, the Rajasthan Legislative Asse:nbly Members (Prevention of Disqualification) Act, 1969 (Act No. 5 of 1969) (hereinafter referred to as the impugned Act), was passed, which ~eceived the assent of the Governor on April 4, 1969.The impugned Act inter alia provides :

"2. Prevention of disqualification of membership of the State Legislative Assembly. (i) It is hereby declared that none of the following offices, in so far as it is an. office of profit under the State Government shall disqualify or shall be deemed ever to have dis-qualified the holder thereof from being chosen as, or for being, ·member of the Rajasthan Legislati~e Assembly, namely :-.

(a) the office of Government Pleader or Special Government Pfoader or Advocate for the Government, appointed specially to conduct any particular suit, case or other pl'!JCeeding by or against the State Govern-ment, before any court, tribunal, arbitrator or other authority;

(b) the office of Government Pleader, Special Government Pleader or Advocate for the State Gov-ernment appointed specially to assist the Advocate General, Government Advocate or Pleader, or Special Government Pleader, or Advocate for Government in any particular suit, case or other proceeding by or against the State Government before any court, tribunal. arbitrator or other authority;

(2) Notwithstanding any judgment or order of any Court or Tribunal, the aforesaid offices shall not dis-qualify or shall be deemed never to have disqualified the holders thereof for being chosen as, or for being, rrembers of the Rajasthan Legislative Ass=mbly as if this Act had been in force on the date the holder of such otlice filed his nomination paper for being chosen as member of the Rajasthan Legislative Assembly."

We may note another fact on which an argu_ment is sought to· be made by the learned Counsel for the appellant. It was alleged in the election petition that the appellant was close friend of one Shri Mathura Dass Mathur who was Minister in the State of Rajasthan at the time of the election, who contested elections as candidate in constituency different from that of ihe appellant. Shri Mathur visited the constituency during the election very frequently and during these visits the appellant accompanied by Shri Mathur visited several places in the Consti- . turn.:y where Shri Mathur in the presence of the appellant offered and promised to get several works done in those areas if the electors were to cast votes for the appellant at the said election. Jn spite of these allegations of corrupt practice, Shri Mathur was not made party to the petition.

The learned Counsel for the appellant, Mr. Gupte, contends that the High Court erred in holding that the appellant held an office of profit within the meaning of Art. 191 of the Cunstitution. Jn the alternative he contends that the Rajasthan Act No. 5 of 1969 is retrospective and •he disqualification if it existed, cannot now be deemed to have existed because of this Act. The last point raised by him is that the petition was not in accordance with law as the respondent, Shri Surana, had not impleaded Shri Mathur as respondent to the petition.

The facts relevant for appreciating the first point are these :-

The appellant was an advocgte at all material times. Disputes arose between M/s. Modern Construction· Company Private Ltd. and the State of Rajasthan in connection with some works relat-ing to the Rana Pratao Sagar Dam. These disoutes were referred to arbitration. Shri Murli Marohar Vyas, Government Advocate in the High Court of Rajasthan at Jodhpur was appointed by the Government to represent it in these arbitration proceedings. The Government Advocate wanted one more advocate to assist him. On his 'suggestion, Shri Manak Lal Mathur advoc.ate was appointed to assist the Government Advocate. As there was possibility that Shri Manak Lal Mathur may not be available to'help the Government Advocate, the appellant was, on the sugges-tion of the Government Advocate, appointed to assist him in the absence of Shri Mathur. This proposal was approved by the Rajasthan Law Minister on March 30, 1965 and on June 26, 1965, and the Government issued the following order :-"Sub :-Construction of R.P .S. Main Dam Con-tract of M/s M.C.C. (JVT) Ltd. Arbitration in dis-pute arising out of-

In pursuance of rule 8 (b) of ·)rder XXVII of the First Schedule to the Code of Civil Procedure, 1908 read with clause (7) of section 2 of the Code, the Governor is P.leased to appoint Smt. Kanta Kathuria Advocate, B1kaner, as Special Government Pleader to conduct the above noted case on behalf of the State ol Rajasthan along with Shrl Manohar Vyas, Govern· ment Advocate Jodhpur."

Later, on Sept. 3, 1965, the Government laid down the fees ·payable to the appellant. It was stated in the order dated Sept. 3, 1965 that" Smt. Kanta Kathuria who has been appointed to . assist the Government advocate in the absence of Shri Mathur will get her share of fee in proportion to the assistance rendered by her out of the daily fee of Rs. 150/- to Shri Manak Lal Mathur."

As Shri Manak Lal Mathur was not able to appear in the case, on Nov. 18, 1965 the Governor sanctioned the payment of ·daily fee of Rs. 150/- to the appellant instead of Shri Manak Lal Mathur, for days of actual hearing. The appellant appeared from March 27, 1965 to November 28, 1966, but she did not appear from Nov. 29, 1966 t<;> Feb. 25, 1967. She again started appear-ing in the case from Febraury 26, 1967. The appellant claimed ·travelling allowance, incidental charges and daily alolwance, but the Government decided that the appellant was not entitled to :any travelling allowance or daily allowance in addition to the fees.

By notification, the Election Commission of India called upon the electors oC the Kolayat Assembly Constituency of the Rajasthan Legislative Assembly to elect meinber to the Raja-sthan Legislative Assembly and invited nomination papers for the elections to be held on February 18, 1967. The appellant was declared,duly elect~ by the Returning officer on February 22, 1967;ihe appellant having secured q926 and the respondent having se~ured 8311 votes.

The relevant portion of Art. 191 reads as follows :-

191. ( 1 ) person shall be disqualified for being chosen as, and for being, member of the Legislative Assemblv or Legislative Council of . State-

(a) if he holds any office of profit under the Gov-ernment of India or the Government of any State spe-cified in the First Schedule, other than an office declared by the Legislature of the Seate by law not to disqualify its holder;

( e) if he is so disqualified by or under any law made by Parliament.

(2) For the purposes of this article, person shall

not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is Minister either for the Union or for such Stat~.

It seems to us that the High Court erred in holding that the appellant held an office. There is no doubt that if her engage-ment as Special Government Pleader amounted to appointment to an office, it would be an office of profit under the State Gov-E ernment of Rajasthan. The word 'office' has various meanings and we have to see which. is the appropriate meaning to be ascribed to this word in the context. It seems to us that the words 'its holder' occurring in Art. 191 (l)(a), indicate that there must be an office which exists independently of the holder of the office. Further, the very fact that the Legislature of the State has been authorised by Art. 191 to declare an office of profit not to dis· qualify its holder, contemplates existence of an office apart from its holder. In other words, the Legislature of State is em-powered to declare that an office of profit of particular descrip-t~on or name would not disqualify its holder and not that par-ucular holder of an office of profit wnuld not be disqualified.

I, seems to us that in the context, Justice Rowlatt's definition in Great Western Railway Company v. Bater(') is the appro· priate meaning to be applied to the word 'office' in Art. 191 of the Constitution.

Justice Rowlatt observed at page 235 :-

"Now it is argued, and to my mind argued most forcibly, that that shows that what those who use the

(I\ ~ Tax Cases 231.

language of the Act of 1842 meant, when they spoke of an office or an employment, was an office or em-ployment which was subsisting, permanent, substan-.tive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders; and if you merely had man who was engaged on whatever terms, to do .duties which were assigned to him, his employment to .do those duties did not create an office to whkh those duties were attached. He merely was employed to do certain things and that is an end of it; and if there was no office or employment existing 111 the case as thing, '.he so-called office or employment was merely an aggre-gate of the activities of the particular man for the tin1e being. And I think myself that that is sound. I am not going to decide that, because I think I ought not to in the state of the authorities, but my own view is that the people in 1842 who used this language meant by an office substantive thing that existed apart from the holder."

This definition was approved by Lord Atkinson at page 246.

This language was accepted as generally sufficient by Lord Atkin and Lord Wright in-McMillan v. Guest (H.M. Inspector .of Tqxes)('). Lord Atkin observed at page 201 :-

"There is no statutory definition of 'office'. With-

out adopting the sentence as complete definition, one may treat the following expression of Rowlatt, J., in Great Western Railway Co. v. Bater, [1920] 3 K.B., at page 274, adopted by Lord Atkinson in that case, [1922] 2 A.C., at page 15, as generally sufficient state-ment of the meaning of the word : an office or em-ployment which was subsbting, permanent, substan-tive position, which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders."

Lord Wright at page 202 observed :

"The word 'office' is of indefinite content; its various meanings cover four columns of the New English Dic-tionary, but I take as the most relevant. for purposes of this case the following: position or place to w!1ic~1 CC'r~ain Cu!ies tire :i!tached. cspcciaJly <}ne of n1on: (1r less public character. This, I think, roughly rorre.;-ponds with stlch approaches to definition as :iave

(]) 24 Tax Cases 19G.

been attempted in the authorities, in particular Great Western Railway Co. v. Bater, [1922] 2 A.C. 1 ..... . where the legal construction of these words, which had been in Schedule since 1803 ( 43 Geo. III, c. 122, Section 175), was discussed."

In Mahadeo v. Shantibhai & Ors.(' )-Mitter J. speaking for this Court, quoted with approval the definition of Lord Wright. In our view there is no essential difference between the definitions given by Lord Wright and Lord Atkin. The Court of Appeal in the case of Mitchell v. Ross([2]), thought that both the noble and learned Lords had accepted the language employed by Rowlatt J. as generally sufficient. In Mahadeo's case\ [1]), this Court was dealing with panel of lawyers maintained by the Rail-way Administration and the lawyers were expected to watch cases. Clause ( 13) of the terms in that case read as follows :-

"You will be expected to watch cases coming up for hearing against this Railway in the various courts at UJB and give timely intimation of the same to this office. If no instructions regarding any particular case are received by you, you will be expected to appear in the court and obtain an adjournment to save the ex-parte proceedings against this Railway in the court. You will be paid Rs. 5/- for every such adjournment if you are not entrusted with the conduct of the suit later on."

That case in no way militates against the view which we have taken in this case. That case is more like the case of standing Counsel ilisqualified by the House of Commons. It is stated in Rogers [on Elections Vol. 11]-at page 10 :-

"However, in the Cambridge case (121 Journ. 220), in 1866, the return of Mr. Forsyth was a•oided on the ground that be held new office of profit under the Crown, within the 24th section. In the scheme sub-mitted to and approved by Her Majesty in Council was inserted the office of standing counsel with certain yearly payment (in the scheme ca!Ied 'salary') affixed to it, which Mr. Forsyth received, in addition to the usual fees of counsel. The Committee avoided the return . .. "

It is urged that there can be no doubt that the Government Pleader holds· an office and there is no reason why person who assists him in the case should also not be treated as holder of

---· -----··--·-

(1) [1969] 2 S.C.R. 422.

(2) {19601 2 All E.R. 238 at 2"l-226.

office, specially as the notification appointed the appellant as Special Government Pleader. We see no force in these conten-tions.

Rule 8B. of Order 27, C.P. Code reads as follows :-

"In this Order unless otherwise expressly provided 'Government' and 'Government leader' mean respec-tively-

(a) in relation to any suit by or against the Cen-

tral Government or against public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order;

( c) in relation to any suit by, or against State Government or against public officer in the service of State, the State Government and the Government pleader, as defined in Clause 7 of Section 2 · or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order."

This rule defines who shall be deemed to be c. Government Pleader for the purpose of the Order. 'Government Pleader' is defined in Sec. 2 of Clause (7) C.P. Code thus-

"(7) 'Government Pleader' includes any officer

appointed by the State Government to perform all or any of the functions expressly imposeQ by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader :"

It follows from reading Order 27 rule 8B and Clause (7) of Sec. 2 C.P. Code together that even if pleader who is acting under the directions of the Government Pleader would be deemed to be Government ~l.eader for the purpose of Order 27. There-fore, no particular significance can be attached to the notifica-tion made under rule SB appointing the appellant as Special Government Pleader. We cannot visualise an office coming into existence, every time pleader is as)ced by the Government to appear in case on its behalf. The notification of his name under rule SB, does not amount to the creation of an 'office'. Some reliance was also placed on rule 4 of Order 27 C.P. Code, which provides that :

"The Government Pleader in any Court shall be the agent of the Government for the purpose of receiving

processes against the Government issued by such Court."

This rule would not apply to the facts of this case because the appellant was appointed only to assist the Government Advocate in particular case. Assuming it applies, it only means that p,i:o-cesses could be served on the appellant, but processes can be served on an Advocate under Rule 2 of Order XLV of the Supreme Court Rules, 1966. . This does not mean that an Advo-cate on Record would hold an office under the client.

The learned Counsel for the respondent, Mr. Chagla, urges that we should keep in view the fact that the object un'.der-lying Art. 191 of the Constitution is to preserve purity of public life and to prevent conflict of duty with interest and give an interpre-tation which will carry out this object. It is not necessary to give wide meaning to the word "office" because if Parliament thinks that legal practitioner who is being paid fees in case by the Government should not be qualified to stand for an elec-tion as Mer.iber of Legislative Asembly, it can make that pro-D vision under Art. 191 (1 )( e) of the Constitution.

The cast of Sakhawat Ali v. The State of Orissa(') provides an instance where the Legislature provided that paid legal prac-titioner should not stand in the municipal elections.

In view of the above reasons, we must hold that the appellant was not disqualified for election under Art. 191 of the Consti-tution. But·assuming that she held an office of profit, this dis-qualification has been removed retrospectively by the Rajasthan Legislative Assembly by enacting the impugned Act.

Mr. Chagla, learned Counsel for the respondent, contends that the Rajasthau State Legislature was not competent 'to dec-F lare retrospectively' under Art. 191 (1 )(a) of the Constitution. It seems to us that there is no force in this contention. It has been held ir. numerous. cases by this Court that the State Legis-latures and Parliament can legislate retrospectively subject to the provisions of the Constitution. Apart from the question of fundamental rights, no express restriction has been placed on the power of the Legislature of the State, and we are unable to imply, in the context, any restriction. Practice of the British Parliament does not oblige us to place any implied restriction. We notice that the British Parliament in one case validated the election : [Erskine May's Treatise on· the Law. Privileges Proceed-ings & Usage of. Parliament---Seventeenth (1964) Eciition]-H "After the general election of 1945 it was found that the persons elected for the Coatbridge Division of

(1) [1955] I S.C.R. 1004. LSSupCl-9

Lanark and the Springbourn Division of Glassgow were disqualified at the time of their election because they were members of tribunals appointed by the Minis-ter under the Rent of Furnished Houses Control (Scotland) Act, 1943, which entitled them to sIµall fee in respect of attendance at Tribunal. Select Committee reported that the disqualification was incurred inadvertently, and in acco~dance with their recommendation the Coatbridge and Springburn Elec-tions (Validation) Bill was introduced to validate the irregular elections [H.C. Deb. ( 1945-46) 414, c. 564-6]. See also H.C. 3(1945-46); ibid. 71 (1945-46) and ibid. 92 ( 1945-46) ."

We have also nodced two earlier instances of retrospective legislation, e.g., The House of Commons (Disqualification) Act, 1813 [Halsbury Statutes of England p. 467] and Sec. 2 of the Re-election of Ministers Act, 1919 (ibid. p. 515).

Great stress was laid on the word 'declared' in Art. 191 ( 1) (a), but we are unable to imply any limitation on the powers of the Legislature from this word. Declaratim: can be made effective as from an earlier date.

The apprehension that it may not be healthy practice and this power might be abused in particular case are again no grounds for limiting the powers of the State Legislature.

It is also urged that by enacting the impugned Act the State Legislature has amended the 1951 Act. We are unable to appre-ciate this contention. The State Legislature has exercised its powers under Art. 191 to declare certain office not to have ever disqualified its holder. The impugned Act does not amend or alter the 1951 Act, in any respect whatsoever. It is said that under the 1951 Act as 'it existed before the impugned Act was passed, the appellant was not qualified to be chosen for this par-ticular election. By enacting the impugned Act !he appell'!Ilt's disqualification has been removed and the 1951 Act is, so to say, made to speak with another voice. But that is what the State Legislature is entitled to do, as long as it does not touch the wording of the 1951 Act. The answer given by the 1951 Act may be different but this is be;:ause the facts on which it operates have by valid law been given different garb.

It is further urged that the impugned Act violates Art. 14 of the Constitution because the Central Government might have . appointed Government Pleaders under rule 8B of Ordet 27 and the impugned Act nowhere mentions the alleged offices held by

them. No material has been placed to show that any such offices exist. We cannot, therefore, entertain this point. In view of the above reasons we are of the opinion that the impugned Act is valid and removes the disqualification if it existed before.

There is no force in the third point raised by the learned counsel for the appellant. Section 82 of the Representation of the People Act, 1951, 1·eads as follows :-

"81. petitioner shall join as respondents to his petition-

( a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims further declaration that he himself or al)y other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition.

ID. this context the words 'any other candidate' plainly mean candidate in the election for the constituency which is the subject matter of the petition.

In the result the appeal is allowed, the judgment of the High Court set aside and the petition dismissed. In the circumstances of th-. case the parties will bear their own costs throughout.