SURYA KANT ROY versus IMAMUL HAI KHAN

SURYA KANT ROY

IMAMUL HA.I KHAN

March 12, 1975

[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]

Represe~llat!on of the People Act, 1951-Ho/ding an office of profit-Tests. f<Yr determrnallon-Chainnan of statutory body-Whether an office of profit 1111der Government ..

/legations of corrupt practice should be proved beyond reasonable doubt.

Under the Bihar and Orissa Mining Settlement Act, 1920 Board called the Mines Board of Health may be established to provide for the control and sanitation of any area. The Board consists of members who are elected by mine owners, non-officials selected by the State Government and persons nomi-nated by Government. The Chairman of the Board is appointed by the State Government from among the members of the Board. The Boaird is body corporate. fund called "The Mining Settlement Fund" is created consisting of sums charged by the Board under the Act from land-owners as also sums allotted from the State revenues as well as sums borrowed by the Board under the Local Authorities Loans Act, grants received from local Authorities, associa. tiom and private persons. The respondent was appointed by the Government as Chairman of the Jharia Mines Board of Health. The .respondent was elected as member of the State Assembly in the general elections. The election petition of the appellant (the unsuo~essful candidate)° against the respondent was dismissed by the High Court.

On appeal to this Court it was argued that the respondent was disqualified from standing for the election as he held an office of profit under the StatC' Government.

Dismissing the appeal,

HELD : · ( I) The mere fact that the respondent was appointed as Chairman of the Board by the GovP.rnment would not make him person holding ain office under the State Government. The fact that the Government and other local authorities might make grants to the Board did not mean that all the funds of the B_oard were Government funds or Government property. The provisions of the Act are enough to establish that the Board is 'local authority' within the meaning of that expression as defined in cl. (31) of s. 3 of the General Clauses Act, 1897. (911 C; BJ

(2) In determining whether person is holding an office of profit under the Government the tests laid down by this Court were ( 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 be perform them tor the Government, and (5) Does the Government exercise control over the performance of those functions ? [911 G]

In the instant case the Government did not pay ·remuneration to the respondent nor did he perform his functions for the Government. The office held by him was held under local authority. The holding of an office of profit in it did not bring about disqualification, even i~ the local authority be under the control of the Government. The control exercised by the Government did not make the Board an organ of the Government nor did it make the respondent person holding an office under the Government. [912 £..Fl Maulana Abd11/ Shakur v. Riklzabclumd & Anr. [1958] S.C.R. 387 at 394 and Slifram11rtliy Swami v. Agadi Sanganna Andanappa [1971] 3 S.C.C. 870, followed.

Gumilw11111ppa v. Abdul Khaddus A.l.R. 1969 S.C. 744-[1969] 3 S.C.R. 425, referred to.

(3) An allegation of corrupt practice being serious on~, kacling not merely to the consequence of the election of the successful. candidate bc1~g set aside, but also of his being disqualified to sta,nd for election for certa~n period, should be proved beyond reasonable drubt. Such p.rool is lacking 111 this case. [913 CJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1116 cf 1973.

Prom the judgment and order dated the 22nd January, 1973 of th~ Patna High Court in Election Petition No. 21 of 1972.

J. P. Goyal and V. C. Parashar, for the appellant.

D. Goburdhan, for the respondent.

The Judgment of the Court was rielivercd by .

ALAGIRISWAMI, J.-This appeal by one of the unsu~..:c>sful 1:andi .. dates in the election held to the Legislative Assembly of Bihar State .from the Baghmara constituency is against the dismissal of his electio•,11 petition questioning the rc:spoi1dcnt's election by the High Court at Patna.

Only two questions were argued before us (l) that the respondent was disqualified for standing for the elecfo:m as he held an office of profit under the Government of Bihar, and (2) that he obtained the services of •a Sub-Inspector .of Police for the furtherance of the prospects of his election.

The facts relating to the first question are these : Under the Bihar .and Orissa Mining Settlement Act, 1920 Board called the Mines B'Jard of Health may be established to provide for the control and ·sanitation of any area within which persons employed in mine reside and for the prevention therein of the out break and spread of epidemic diseases. Before the area is declared t·o be min-ing settlement for the purposes of the Act certain prescribed formalities like receiving objections etc. have to be observed. The Board is ·body corporate having prepetual succession and common seal with power to hold and acquire property. It c·onsists of not less than seven -and not more than eleven members of whom not less than two and not more than four are elected by owners of mines within the mining settlement, three non-officials selected by the State Government and tW"<) or mdre members but not exceeding four nominated by the State Government. The Chairman of the Board is to be appointed by the State Government from among the members of the Board. fund called "The Mining SettleU?ent Fund" is formed for every mining settle-ment and the fund vests m the Board. The fund consists of sums •charged by the Board under the Act from land owners etc. as also sums allotted to the Board from the State revenues; sums borrowed by the Board under the Local Authorities Loans Act· !!rants received from I:ocal. Authorities, associations and private p~rsons etc. The Board appomts Health Officers as well as Sanitary Inspectors. The Board can impose taxes like latrine tax and also make yearly assess-ment. There are certain powers conferred on the State Government

under the Act but they are no more than powers conferred on State Governments in respect of various local bodies. The respondent was appointed by the Government as the Chairman of the Jharia Mines Board of Health.

We argee with the learned Judge of the High Court that it is diffi-cult to accept the argument that the Board is wholly under the control of the State Government in all its functions. The Board levies taxes and -other assessments and ha& got its own funds. The fact that the Government and other local authorities might make graats to the Board does not mean that all the funds of the Board are Government fund~ or Government property. The provisions we have set out above are enough to establish that the Board is 'local •authority' within the meaning of that expression as defined in clause (31) of section 3 of of the General Clauses Act, 1897. Indeed this position does not seem to have been disputed by the petitioner before the High Court in the course of his argument. We do not, therefore, think that the mere fact that the respondent was appointed as Chairma'.1 of the Board by the Government would make him person holding •an office under the State Government. We may in this connection refer to certain decisions of this Court. In Maulana Abdul Shakur v. Rikhabchand & Anr.([1]) this Court held :

meaning of that expression as defined in clause (31) of section 3 of of the ·

"The power of the Government to appoint person to an ·office of profit or to continue him in that office or revoke his appointment at their discertion and payment from out of Government revenues are important factors in determin- · ing whether that person is holding oan office of profit under the Government."

We have alre'idy pointed out that in this case the payments to the respondent are not from out of the Government revenues. · In Shivamurthy Swami v. Agadi Sanganna Andanappa([2]) .this Court pointed out : · · · · · " ..... the office in question must have been held under Government and to that some pay, salary, emoluments or allowance is attached . . . This Court in several decisions had laid down the tests tor finaing out whether an office in ques-tion is an office under Government and whether it is an office of profit. Those tests are : ( 1) Whether the Government makes the appointment; (2) Whether the Government has right to remove or dismiss the holder; (3) Whether the Go-vernment pays the remuneration; ( 4) What are the u11ctiv1;1 of the holder? Does he perform them for the Government, and (5) Does the Government exercise anrcontrol over the performance of those fuctions ?"

Here again it is to be pointed out that the Government does not pay the remuneration nor does the holder perform his functions for the Government. To hold otherwise would be to hold that local (1) [1958] S.C.R. 387 at 394. (2) [1971] 3 S.C.R. 870.

bodies like Municipal Councils perform their functh:ms for the Gov.ern-ment though in one sense the functions they perform are governmental functions.

The decision of this Court in Gurushantappa v. Abdul Khaddus([1]), which was also relied upon by the High Court, may be usefully referred to. It was there observed:

"Thus, in the case of election as President -.:ir Vice-Presi-dent, the disqualification arises even if the candidate is hold-ing an office of profit under local or any other authority under the C'Ontrol of the Central Government or the State Govenment, whereas, in the case of candidate for election as Member of any of the Legislatures, no such disqualifica-tion is laid down by the Constitution if the office of profit is held under local or any other authority under the c0ntrol of the Government and not directly unde! any of the Govern-ments. This clearly indicates that in the case of eligibility for election as member of Legislature, the holding of an office of profit under corporate body like 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 emplo-yed by such authority does not disqualify that ·officer from be-ing candidate for election as member of the Legislature in the manner in which such disqualification co;nes into existence for being elected as the President or the Vice-President."

The office held by the respondent is held under local authority. The holding of an office of profit in it does not bring about disquali-fication even if that local authority be under the control of the Govern-ment. The mere control of Government over the authority having the power to appoint, dismiss, or control the working of the officer emplo-yed by such authority does not disqualifiy that officer from being candi-date for election as member of the Legislature. Therefore, the con-trol exercised by the Government over the Board in this case does not make the Board an organ of the Government nor does it mah the respondent person holding an office under the Government. It is, therefore, unnecessary to go into the question whether the office· held by the respondent was an office of profit, though we may indicate that on the evidence available in this case we have come to the con-clusion that it is not an office ofl profit. We are not setting out the evidence at length only because it is unnecessary for the purpose of this case.

As regards the 2nd question the allegation of the appellant was that the respondent taking advantage of his position as former Cabinet Minister of the State of Bihar bad procured the services of the •officer-in-charge of C'has police station in arranging and holding his election meeting on 20th February, 1972 within the premises of the Chas police station and this was corrupt practice within the meaning of sub-s. (7)

(1) A.LR. 1969 S.C. 744-[1969] 3 S.C.R. 425.

s. K. ROY v, I. H. KHAN (Alagiriswami, J.)

of s. 123 of the Representati'on of the People Act. According to the re6pondent fae election meeting was held in the vacartt space on the southern side of the compound wall of the police station. The evidence relied upon by the appellant for providing his charge WCi'C his own and that of two of his co-villagers. The appellant t.Vas not an eye witness of this meeting and his evidence was pure hearsay. The person who is said to have informed him was not examined. The evidence of P. \\'s. 1 and 2 was not accepted by the High Court. The police officer concerned, who was examined as R.W. 8, as well as the respondent (R.\V. 10) have denied the allegation. After careful examinafron on all the evidence the High Court held this charge not proved. We have gone through the evidence and see no reason to differ from the High Court on this point. '