Supreme Court of India
ANOKH SINGHversusPUNJAB STATE ELECTION COMMISSION
- Citation
- 2010 INSC 758
- Decided
- 29 October 2010
- Disposal
- Disposed off
- Bench
- B SUDERSHAN REDDY
Holding
A Lambardar does not hold an office of profit; the honorarium is merely compensatory, so the circular disqualifying Lambardars is invalid.
Summary
The Supreme Court examined whether a Lambardar in Punjab, who receives a monthly honorarium of Rs.900, holds an "office of profit" that disqualifies him from contesting Panchayat elections. The Court noted that the land‑revenue system had been abolished, so the Lambardar receives no salary, only a compensatory allowance to meet out‑of‑pocket expenses. Applying the tests from Shivamurthy Swami I. and related precedents, the Court held that the honorarium is not a profit but merely reimbursement, and the Lambardar does not occupy a salaried government post. Consequently, the circular issued by the State Election Commissioner declaring Lambardars ineligible was held ultra vires and set aside. The appeal was allowed, quashing the disqualification of Lambardars.
Issues considered
- Whether the office of Lambardar constitutes an "office of profit" under the Punjab State Election Commission Act.
- Whether the honorarium paid to a Lambardar is a remunerative profit or merely compensatory.
- Whether the Punjab State Legislature (Prevention of Disqualifications) Act, 1952, exempts Lambardars from disqualification for Panchayat elections.
- Whether the State Election Commissioner had statutory authority to issue the circular disqualifying Lambardars.
Legislation cited
Subjects
office of profitLambardarPanchayat electionshonorariumdisqualificationState Election CommissionPunjab
Judgment
[2010] 13 (ADDL.) S.C.R. 455
ANOKH SINGH A
v.
PUNJAB STATE ELECTION COMMISSION
(Civil Appeal No. 9485 of 2010 etc.)
OCTOBER 29, 2010
B
[B.SUDERSHAN REDOY AND SURINDER SINGH
NIJJAR, JJ.]
. Election Laws:
c
Elections to Panchayat Samitis .and Zita Parishads -
Lambardards in State of Punjab - Eligibility of to contest the
elections - Circular No. SEC-200814365 dated 30.4.2008
issued by the State Election Commissioner, Punjab clarifying
that Lambardars and Anganwari workers held "office of profit" D
and, therefore, were ineligible to contest the elections - HELD:
With the abolition of land revenue by Punjab Government,
Lambardar would not receive any remuneration as 10% of
land revenue cess but receives an honorarium which is
merely compensatory to meet the out of pocket expenses for E
attending his duties - There is nothing to show that the
honorarium received by Lambardar is not compensatory in
nature - High Court has quashed the Circular in relation to
Anganwari workers - For the same reason the Circular could
not be sustained and is set aside qua the Lambardars also -
State Election Commissioner, Punjab, Circular SEC-20081 F
. 4365 dated 30.4. 2008.
Words and Phrases:
'Honorarium', 'Office of profit' in the context of election G
laws - Connotation of.
The Memorandum No. SEC-200814365 dated
30.4.2008 issued by the State Election Commissioner,
455 H
456 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A Punjab to the Deputy Commissioners-cum-District
Election Officers in the State clarifying that Lambardars
and Anganwari workers held "office of profit" and, thus,
were ineligible to contest elections to Panchayat Samitis
and Zila Parishads, was challenged in the writ petitions
B before the High Court. The High Court allowed the writ
petitions of the Anganwadi workers but dismissed the
writ petition as regards the Lambardar. Aggrieved, the
appellant-Lambardar filed the appeal.
Allowing the appeal, the Court
c
HELD: 1.1 Since the Lambardar is not holding any
post under the Government, no salary is payable to him.
There is no pay scale attached to the office of Lambardar.
Therefore, it cannot be said that he is in receipt of any
D remuneration. [para 17] [466-B]
Mahavir Singh Vs. Khiali Ram & Ors. 2008 (17) SCR 534
=2009 (3) sec 439 - relied on.
Som Lal Vs. Vijay Laxmi & Ors. 2008 (5) SCR 49 = 2008
E (11) SCC 413; and Maulana Abdul Shakoor Vs. Rikhab
Chand and Anr 1958 SCR 387 =AIR 1958 SC 52 - referred
and Shivamurlhy lnamdar Vs. Agadi Sanganna Andanappa
(1971) 3 sec 870 - referred to.
F 1.2 Under the Punjab Land Revenue Rules, the
Lambardar was receiving village officer's cess equal to
ten percent of the land revenue assessed on the estate
or the portion of the estate in which .he holds office,
whether the assessment is levied or not. However, with
G the abolition of land revenue by the Punjab Government,
the Lambardar has no land revenue to collect, and, thus,
he would not receive any remuneration as 10% of the
land revenue assessed, the percentage of cess has been
replaced by an honorarium. Currently, the Lambardar
H receives Rs.9001- per month, which is merely
ANOKH SINGH v. PUNJAB STATE ELECTION 457
COMMISSION
compensatory to meet the out of pocket expenses, A
incurred in the performance of his duties. [para 19-20]
(469-E-H; 470-A-B]
1.3 The High Court erred in rejecting the submission
that the honorarium received by the Lambardar would not B
fall within the ambit of the term 'office of profit'. Tile High
Court has erroneously distinguished the observat~ons of
this Court in the case of Shivamurthy Swami lnamda,r*. The
tests laid down in the said case would be rele~ant to
determine whether a particular office is an office 1under
the Government. It would be essential to determine C
whether it would be necessary for the person holding an
office under the Government to incur any expenditure in
performance of the functions. These matters would then
have to be correlated to any honorarium, allowance. or
stipend that may be attached to the office. Witho.ut D
examining any of these issues, the conclusion of t~e
High Court that the honorarium received by the
Lambardar is not compensatory in nature, cannot be
endorsed. [para 21-22] (471-B-H; 472-A-D]
E
Shivamurthy Swami lnamdar Vs. Veerabhadrappa
Veerappa (1971) 3 SCC 870 - referred to.
1.4 It would be apparent from the facts that though
the Lambardar may not be holding a civil post, he would
F
be holding an office under the Government. He receives
no salary, emoluments, perquisites or facilities, but is
entitled to receive an honorarium of Rs.900/- per month.
The State Election Commissioner, whilst issuing the
Circular dated 30.4.2008, reached an erroneous
conclusion that the Lambardar holds an 'office of profif. G
[para 23] (471-F-GJ
1.5 The term 'office of profit' has not been defined in
the Constitution, the Representation of the People Act,
the Punjab State Election Commission Act or the H
458 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A Panchayati Raj Act. It is one of those rare terms which is
not even defined in the General Clauses Act, 1897. It has,
however, been judicially considered in numerous
judgments of this Court. [para 24) [471-G-H; 472-A]
8 Gatti Ravanna, son of Gatti Subanna, Gubbi Taluk,
Mysore State Vs. G.S.Kaggeerappa, Merchfmt, Gubbi
1954 AIR 653 - referred to.
1.6 The High Court gives no reason for concluding
that the honorarium received by a Lambardar is not
C compensatory in nature. The High Court erred in not
analyzing the real and substantive nature of the
honorarium. The· High Court failed to take notice of the
fact that the respondents had placed no material on the
record to establish that the honorarium of Rs.900/- would
D result in a net gain to the Lambardar, or that the out of
pocket expenses for attending to the duties of the
Lambardar would be less than Rs.900/- per month. [para
26) [473-B-C]
E S. Umrao Singh Vs. Darbara Singh & Ors. 1969 (1) SCR
421 - relied on.
Shibu Soren Vs. Dayanand Sahay 2001 (3) SCR 1020 =
2001 (7) SCC 425; and K.B. Rohamare Vs. Shanker Rao
Genuji Ko/he 1975 (2) SCR 753 = 1975 (1) SCC 252 -
·F referred to.
1.7 A perusal of the Circular dated 30.4.2008 would
clearly show that the State Election Commission has
failed to take note of the factual situation. The circular is
G based on a misinterpretation of the law laid down by this
Court in the cases of Shivamurthy and Ravanna
Subanna*. There is no material on the record to show that
the receipt of Rs.900/- per month by the Lambardar would
invariably lead to a saving. Even though the office of
H Lambardar is regarded as a mere relic in this day and age,
ANOKH SINGH v. PUNJAB STATE ELECTION 459
COMMISSION
it still carries with it certain important duties which are to A
be performed by the incumbent. Although purely
'honourary', being a Lambardar gives the incumbent a
certain status in the village. The office of Lambardar is a
heritage office. Therefore, some families would cherish
the office of Lambardar, even though the lncumbant does s
not get any salary, emoluments or perquisites. The very
basis of issuing the Circular dated 30.4.2008 was non-
existent and misconceived. On this very basis, the High
·Court has quashed the circular in relation to Anganwari
workers. For the same reasons the Circular could not bo c
sustained qua the Lambardars also. The lmpugnod
judgment of the High Court is set aside, in so far as it
relates to Lambardars. The Circular dated 30.4.2008 is
quashed and set aside qua the Lanibardars also. [para
32] [478-F; 480-G-H; 481-A-D]
*Shivamurthy Swami lnamdar Vs. Veerabhadrapps
Veerappa (1971) 3 sec 870; and Gatti Ravanna, son of <3~tti
Subanna, Gubbi Taluk, Mysore State Vs. G.S.Kaggeerappa,
Merchant, Gubbi 1954 AIR 653 - referred to.
E
Case Law Reference:
2008 (5) SCR49 referred to para 12
1958 SCR 387 referred to para 15
(1971) 3 sec 810 referred to para15 F
1958 SCR 387 referred to para 16
2008 (17) SCR 534 referred to para 16
1954AIR 653 referred to para 25 G
1969 (1) SCR 421 relied on para 26
1975 (2) SCR 753 referred to para 27
2001 (3) SCR 1020 referred to para 29
H
460 SUPREME COURT REPORTS (2010) 13 (ADDL.) S.C.R.
A CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9485 of 2010.
From the Judgment & Order dated 05.12.2008 of the High
Court of Punjab and Haryana at Chandigarh in CWP No. 7727
B of 2008.
WITH
C.A. No. 9486 of 2010.
C Gagan Gupta, Tarun Shankar Bhardwaj, Ujjal Singh, J.P.
Singh, R.C. Kaushik, Kuldip Singh, Abhinav Ramkrishna and
Prashant Shukla (for Ajay Pal) for the appearing parties ...
The Judgment of the Court was delivered by
o SURINDER SINGH NIJJAR, J. 1. Leave granted.
2. These appeals arise out of a common judgment of the
Punjab and Haryana High Court dated 5.12.2008 in Writ Petition
Nos. 7727 of 2008, 8264 of 2008, 8270 of 2008, 8279 of 2008,
8310 of 2008 and 11724 of 2008.
E
3. The primary issues raised in all these writ petitions
were:-
(i) Whether the office of a Lambardar would be
F an 'office of profit' so as to disqualify the
incumbent of such an office to seek election
as Panch of the Gram Panchayat.
(ii) Whether the Anganwari workers employed in
the various social-welfare schemes in the
G State of Punjab held an 'office of profit' and
consequently disqualified for seeking
election to the Gram Panchayats.
(iii) Whether the State Election Commissioner,
H Punjab was justified in issuing the
ANOKH SINGH v. PUNJAB STATE ELECTION 461
COMMISSION [SURINDER SINGH NIJJAR, J.]
clarificatory Memorandum, Memo No. SEC- A
2008/4365 dated 30.4.2008 on the subject
"General Elections to Panchayat Samitis and
Zila Parishads - 2008 Clarification regardiAg
contesting of election by Lambardars and
Anganwari workers. B
4. Civil Writ Petition No. 7727 of 2008 was filed by a
Lambardar, who was seeking election to the Gram Sabha,
Village Ladpur, Tehsil Amloh, Distt. Fatehgarh Saheb. He had
come to know from a news item in the Daily 'Ajit' dated C
3.5.2008 that Lambardar and Anganwari workers have been
debarred from contesting election as Member Panchayat. On
enquiry, the appellant came to know that a Circular Memo No.
SEC-2008/4365 has been issued conveyed to all the Deputy
Commissioners-cum-District Electoral Officers in the State that
Lambardars and Anganwari workers, who are ineligible to D
contest elections as Member of Panchayat because they hold
'office of profit'. As a result of which, the appellant was
debarred from contesting the election as Member Panchayat,
which he. intended to contest as he was otherwise duly qualified
to contest the same. The prayer in the writ petition was for E
issuance of a writ in the nature of certiorari quashing the
impugned memorandum by which Lambardars and Anganwari
workers. have been debarred from contesting the elections.
5. Similarly, the Civil Writ Petitions No. 8264 of 2008, 8270 F
of 2008, 8279 of 2008 and 8310 of 2008 were filed by
Anganwari workers claiming that they could not be disqualified
as they were not holding any 'office of profit'. Civil Writ Petition
No. 11724 of 2008 sought a direction to the respondents not
to permit respondent No. 5, who was an Anganwari worker to G
participate in the election of Sarpanch of Gram Panchayat of
Village Ghaloti.
6. The High Court upon detailed consideration of the entire
matter concluded that the office of Lambardars is an 'office of
profit' and, therefore, the Lambardar would be disqualified from H
462 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A contesting the electfon. To this extent, the impugned
memorandum was held valid. Consequently, Civil Writ Petition
No. 7727 of 2008 was dismissed.
7. With regard to the Anganwari workers, the High Court
8 held that the Anganwari workers did not hold any civil post under
the Government. It is also held that the Anganwari workers do
not hold an 'office of profit' under the State Government.
Consequently, Civil Writ Petition Nos. 8264 of 2008, 8270 of
2008, 8279 of 2008 and 8310 of 2008 were allowed and the
C impugned memorandum was quashed so far as it pertained
to the Anganwari workers.
8. In view of the decision rendered in the aforesaid writ
petitions, Civil. Writ Petition No. 11724 of 2008 for issuing
direction not to permit the Anganwari worker, respondent No.
D 5, to participate in the election of Sarpanch of Gram Panchayat
was dismissed.
9. In this appeal, we are only concerned with the issue as
to whether an incumbent Lambardar would hold an 'office of
E profit' under the Government.
1O. Although by a common order, the High Court has
deeided the writ petitions in two parts. The first part relates to
the Lambardars in C.W.P. 7727 of 2008 and connected
matters. In these matters, the High Court crystallized three
F issues for consideration. Firstly, whether the disqualification
prescribed under Section 208 of the Panchayati Raj Act or the
disqualification prescribed under S.ection 11 of the State .
Election Commission Act is applicable in case of the petitioner.
Secondly, whether the petitioner, as a Lambardar, holds an
G 'office of profit'. Thirdly, whether in view of clause (1) of Article
243F of the Constitution read with Section 2(a) of the Punjab
State Legislature (Prevention of disqualifications) Act, 1952,
the petitioner shall not be deemed to be disqualified for being
chosen as a member of a Panchayat as the office of Lambardar
H
ANOKH SINGH v. PUNJAB STATE ELECTION 463
COMMISSION [SURINDER SINGH NIJJAR, J.]
is one of the offices of profit, holding which does not attract A
disqualification.
11. The second part relates to Anganwari Workers in CWP
No.11724 of 2008, CWP No. 8264 of 2008 and connected
matters. The issues highlighted in these matters are :
B
Firstly whether the Anganwari workers were holding 'office
of profit'. Secondly whether the State Election Commission
was justified in issuing circular dated 30.4.2008 clarifying
that Anganwari workers are disqualified to contest the
election of Members of Panchayats. c
12. In the matters concerning Lambardars, the High Court
observes that in view of the judgment of this Court in Som Lal
Vs. Vijay Laxmi & Ors. 1 the disqualifications prescribed under
Section 11 of the State Election Commission Act would prevail. 0
Under the Panchayati Raj Act, by virtue of Section 208 a
person would be disqualified to contest the elections as a
member of Panchayat, if he is a whole-time salaried employee
of the State Government. But under Clause 11 (g) of State
Election Commission Act, a person is so disqualified if he holds
E
an 'office of profit' under the State Government. However, the
issue has been set at rest by this Court in Som Lat's case
(supra), therefore, we need not say more on this issue.
13. Now the next issue would be to see whether the High
Court was correct in concluding that the office of Lambardar F
would be an 'office of profit' under the Government, as the
incumbent would be entitled to receive an honorarium of
Rs.900/- per month.
14. We have heard the learned counsel for the parties. The G
learned counsel appearing for the appellant submits:
(i) An office of Lambardar is merely a heritage
office as his paramount duty was to collect
1. f(2ooa) 11 sec 413. H
464 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A land revenue which has been abolished in
the state of Punjab.
(ii) A Lambardar is only being paid an
honorarium of Rs.900/- per month with no
other remuneration, emolument, perquisite or
B
facilities. The logic behind paying such
payment is that he does not have to spend
money out of his own pocket while
discharging his duties.
c (iii) The Punjab State Legislature (Prevention of
Disqualification) Act, 1952, section 2 of the
Act enumerates that a person shall not be
disqualified for being chosen as and for
being a member of the Punjab State
D Legislature for holding 'office of profit' under
Government of India or Govt. of State of
Punjab and hence memo dated issued by
the respondent dated 30.4.2008 is void ab
initio.
E
(iv) The respondent, i.e. Punjab State Election
Commission has no power and authority
under the Punjab State Election Commission
Act, 1994 to issue the memorandum in
question.
F
(v) The disqualification of the appellant from
contesting. the election is clearly ultra vires
of the Constitution of India and also
provisions of Punjab State Election
G Commission Act, 1994.
15. On the other hand, the counsel for the respondent
submits:
H
ANOKH SINGH v. PUNJAB STATE ELECTION 465
COMMISSION [SURINDER SINGH NIJJAR, J.]
(i) Exemption from being called an 'office of A
profit' granted to the office of the Lambardar
under the Punjab State Legislature
(Prevention of Disqualification ) Act, 1952
applies only in the case of election to State
Legislative Assembly and not in case of B
election as Member of Panchayat.
(ii) The Government exercises power of
appointment and removal over 'office of
profit' for those who perform functions for the C
government and receives remuneration in
form of honorarium, conditions laid down as
indicative of 'office of profit' in Maulana
Abdul Shakoor Vs. Rikhab Chand and Anr2
and Shivamurthy /namdar Vs. Agadi
Sanganna Andanappa 3 . D
(iii) The word 'profit' connotes the idea of a
pecuniary gain and if the pecuniary gain is
received in connection with the office, it is an
'office of profit' irrespective of whether the E
gain is actually received or not.
(iv) The Amount of money received is not
important and neither is the label attached to
the pecuniary gain being made, as long as
F
money is received by virtue of holding the
office ·
16. In our opinion, even this issue is no longer res integra.
In a recent judgment in the case of Mahavir Singh Vs. Khiali
Ram & Ors. 4 this Court has held that : G
"Although the post of Lambardar is governed by the
2. [AIR 1958 SC52]
3. [(1971) 3 sec 870.
4. [(2009) 3 SCC439. H
466 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A provisions of the Punjab Land Revenue Act and the Rules
framed thereunder, holder of the said post is not a
government servant. He does not hold a civil post within
the meaning of Article 309 of the Constitution of India."
8 17. Since the Lambardar is not holding any post under the
Government, no salary is payable to him. There is no pay scale
attached to the office of Lambardar. Therefore, it cannot be
said that he is in receipt of any remuneration.
18. The duties to be performed by a Lambardar and the
C remuneration, for holding the said office are tabulated in Rules
20 and 21 of the Punjab Land Revenue Rules. These rules are
as under:
"20. In addition to the duties imposed upon headman by
0 law for any purpose, a headman shall -
(i) collect by due date all land-revenue and all
sums recoverable as land revenue from the
estate, or Sub-Division of an estate in which
he holds office, and pay the same personally
E or by revenue money order or by remittance
of currency notes through the post at the
place and time appointed in that behalf to
the Revenue Officer or assignee empowered
by Government to receive it.
F
Selected lambaradars, approved by the
Collector, may pay land revenue and all sums
recoverable as land revenue from the estate
or sub division of an estate in which they hold
G office, by cheques on the Imperial Bank of
India, provided that there is a branch of the
Imperial Bank at the headquarters of the
district in which the said estate is include;
(ii) collect the rents and other income of the
H
ANOKH SINGH v. PUNJAB STATE ELECTION 467
COMMISSION [SURINDER SINGH NIJJAR, J.]
common land and account for them to the A
persons entitled thereto;
(iii) acknowledge every payment received by
him in the books of the land owners and
tenants; B
(iv) defray joint expenses of the estate and
render account thereof as may be duly
required of him;
(v) report to the tehsildar the death of any c
assignee of land revenue or Government
pensioner residing in the estate, or the
marriage or re-marriage of a female drawing
a, family pension and residing in the estate,
or the absence of any such person for more o
than a year;
(vi) report to the tehsildar all encroachments on
roads including village roads or on
Government waste lands and injuries to or
appropriations of, nazual property situated E
within the boundaries of the estate;
(vii) report any injury to Government buildings
made over to his charge;
F
(viii) carry out to the best of his ability, any orders
that he may receive from the Collector
requiring him to furnish information, or to
assist in providing or payment supplies or
means of transport for troops or for officers G
of Government on duty;
(ix) assist in such manner as the Collector may
from time to time direct at all crop
inspections, recording or mutations surveys
H
468 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A preparation of reco_rd of rights, or other
revenue business carried on within the limits
of the estate;
(x) attend the summons of all authorities having
B jurisdiction in the estate, assist all officers of
the Government in the execution of their
public duties, supply to .the best of his ability,
any local information which those officers
may require, and generally act for the land
owners, tenants and residents of the estate
c or sub division of the estate in which he holds
office in their relations with the Government;
(xi)· report to the patwari any 011tbreak of disease
among animals;
D
(xiii) report to the patwari the deaths of any right
holders in their estates;
(xiii) report any breach or cut in a Government
irrigation canal or channel to the nearest
E canal officer, (ziledar) or canal patwari;
(xiv) under the general or special directions of the
collector, to assist by the use of his personal
influence and otherwise all officers of
F Government and other persons, duly
authorised by the Collector in the collection
and enrolment of recruits for military service
whether combatant or non-combatant;
(xv) render all possible assistance to the village
G postman while passing the night in the
village, in safeguarding the cash and other
valuables that he carries."
Remuneration of the headman was as under :
H
ANOKH SINGH v. PUNJAB STATE ELECTION 469
COMMISSION {SURINDER SINGH NIJJAR, J.]
"Rule 21 (i) The remuneration of a headman in an estate A
or sub division of an estate, owned chiefly or altogether
by Government shall be such a portion of the village
officer's cess or of the income accruing to Government
from the estate as may be sanctioned by the Financial
Commissioner. B
(ii) In other estates the remuneration of a headman shall
be the remunerations appointed when the land revenue of
the estate was last assessed.
(iii) ln any case not provided for by sub-section (i) and (ii), C
a headman shall receive a portion of the village cess equal
to five per cent of the land revenue for the time being
assessed on the estate or portion of the estate in which
he holds office whether the assessment is leviable or not.
D
(iv) The Collector may at any time alter the existing
arrangements in an estate regarding the collection of the
land revenue by the different headmen and the division of
the remuneration between them."
19. Under the aforesaid rules, the Lambardar was receiving E
a portion of the village officer's cess or of the income accruing
to the Government from the estate which was fixed by the
Financial Commissioner. Under Rule 21 (iii), the Lambardar
was entitled to a portion of the village officer's cess equal to
ten percent of the land revenue assessed on the estate or the F
portion of the estate in which he holds office, whether the
assessment Js levied or not. lt is an undisputed fact that the
Punjab Government has abolished land revenue. Therefore,
Lambardar has no land revenue to collect. Thus the Lambardar
would not receive any remuneration as 10% of the land revenue G
assessed.
20. Thereafter the aforesaid percentage of cess has been
replaced by an honorarium of Rs.500/- pm under a circular
dated 9.10.2006 issued by the Government of Punjab, H
470 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A Department of Revenue and Rehabilitation to all Deputy
Commissioners in the State. Currently the Lambardar receives
Rs.900/- per month as honorarium. This honorarium is merely
compensatory to meet the out of pocket expenses, incurred in
the performance of his duties.
B
21. The High Court has rejected the submission that such
an honorarium would not fall within the ambit of the term 'office
of profit'. The High Court has concluded that -
"In the instant case, the Lambardars are being appointed
c by the official of the Government and they can be removed
by the official of the Government. Their appointments are
under the statute and are in overall control of the
Government. They are also receiving monthly honorarium
which cannot be said to be compensatory in nature
D [Emphasis supplied]. The facts of this case are fully
covered by the aforesaid tests laid down for finding out
whether the office of profit is an office under a
Government."
E 22. In our opinion, the High Court has erroneously
distinguished the observations of this Court in the case of
Shivamurthy Swami lnamdar Vs. Veerabhadrappa
Veerappa 5 . In the aforesaid case, this Court laid down some
of the tests that may be relevant to determine as to whether a
F particular office can be said to be an 'office of profit'. These
tests are:-
"(1) Whether the Government makes the
appointment;
G (2) Whether the Government has the right to
remove or dismiss the holder ;
(3) Whether the Government pays the
remuneration;
H 5. [1971 (3) sec a10.
ANOKH SINGH v. PUNJAB STATE ELECTION 471
COMMISSION [SURINDER SINGH NIJJAR, J.]
(4) What are the functions of the holder? Does A
he perform them for the Government; and
(5) Does the Government exercise any control
over the performance of those functions?"
All the five tests would be relevant to determine that whether a B
particular office is an office under the Government. For
determining whether such an office is also an 'office of profit',
tests 3, 4, 5 assume importance. It is, therefore, necessary to
evaluate the nature and the importance of the functions
performed. It would be essential to determine whether it would C
· be necessary for the person holding an office under the
Government to incur any expenditure in performance of the
functions. These matters would then have to be correlated to
any honorarium, allowance or stipend that may be attached to
the office. Without examining any of these issues, the High D
Court concluded that the honorarium received by the
Lambardar is not compensatory in nature. We are unable to
endorse the approach adopted by the High Court.
23. Bearing in mind these tests, we may now examine E
whether the office of Lambardar is an 'office of profit'.
It would be apparent from the facts that though the Lambardar
may not be holding a civil post, he would be holding an office
under the Government. The Lambardar is not paid any salary
but is entitled to receive an honorarium of Rs.900/- per month. F
He receives no salary, emoluments, perquisites or facilities. Is
that sufficient to conclude that he holds an 'office of profit'? This
seems to be the conclusion reached by the State Election
Commissioner, whilst issuing the impugned circular dated
30.4.2008. The High Court affirmed the aforesaid conclusion. G
24. The term 'office of profit' has not been defined in the
Constitution, Representations of Peoples Act, Punjab State
Election Commission Act or the Panchayati Raj Act. It is one
of those rare terms which is not even defined in the General
H
472 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A Clauses Act, 1897. It has, however, been judicially considered
in numerous judgments of this Court. We may notice here some
of the judgments.
25. In Gatti Ravanna, son of Gatti Subanna, Gubbi Taluk,
Mysore State Vs. G. S. Kaggeerappa, Merchant, Gubbi6
8
considered whether a person holding the position of the
Chairman of Gubbi Taluk Development Committee, could be
said to be holding an 'office of profit' under the Government. In
that case, the Chairman was entitled to a fee of Rs.6/- for each
sitting of the aforesaid Committee. It was clearly held by this
C Court that a fee of Rs.6/- which the Chairman was entitled to
draw for each sitting of the Committee was neither meant to
be payment by way of remuneration nor it could amount to profit;
and the fee was paid to the Chairman to 'enable him to meet
"out of pocket expenses, which he has to incur for attending the
D meetings of the Committee." It was held as under:-
"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
E "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.
F 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
G 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
H 6. (AIR 1954 SC 653)
ANOKH SINGH v. PUNJAB STATE ELECTION 473
COMMISSION [SURINDER SINGH NIJJAR, J.]
were to be manned exclusively by non-officials, that the A
office of the Chairman or of the members should carry any
profit or remuneration."
26. The High Court gives no reason for concluding that the
honorarium received by a Lambardar is not compensatory in 8
nature. The High Court erred in not analyzing the real and
substantive nature of the honorarium. The High Court failed to
take notice of the fact that the respondents had placed no
material on the record to establish that the honorarium of
Rs.900/- would result in a net gain to the Lambardar. In other C
words, the out of pocket expenses for attending to the duties
of a Lambardar would be less than Rs.900/- per month. This
court in S. Umrao Singh Vs. Darbara Singh & Ors. 7 has clearly
held:-
"5. The payment to a Chairman, Panchayat Samiti, under D
Rule 3 is described in the rule as a monthly consolidated
allowance in lieu of all other allowances for performing all
official duties and journeys concerning the Panchayat
Samiti within the district, including attending of meetings,
supervision of plans, projects, schemes and other works, E
and also for the discharge of all lawful obligations and
implementation of Government directives. This provision
in very clear language shows that the allowance paid is not
salary, remuneration or honorarium. It is clearly an
allowance paid for the purpose of ensuring that the F
Chairman of a Panchayat Samiti does not have to spend
money out of his own pocket for the discharge of his
duties. It envisages that, in performing the duties, the
Chairman must undertake journeys within the district and
must be incurring expenditure when attending meetings, G
supervising plans, projects, schemes and other works and
also in connection with the discharge of other lawful
obligations and implementation of Government directives.
No evidence has been led on behalf of the appellant to
7. [1969 (1) SCR 421. H
474 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A show that a Chairman of a Panchayat Samiti does not
have to perform such journeys in the course of his official
duties and to incur expenditure in that connection. The
State Government, which was the competent authority,
fixed the allowance for a Chairman of a Panchayat Samiti
B at Rs 100 per month, obviously because it was of the
opinion that this sum will be required on an average every
month to meet the expenses which the Chairman will have
to incur in this connection. In these circumstances, the
burden lay on the appellant to give evidence on the basis
c of which a definite finding could have been arrived at that
the amount of Rs.100 per month was excessive and was
not required to compensate the Chairman for the expenses
to be incurred by him in the discharge of his official duties
as envisaged in the rule. That burden clearly has not been
even attempted to be discharged by the appellant.
D
8. Our attention was drawn by learned counsel to the fact
that in Rule 7 the persons entitled to daily allowance are
divided into two categories and a Chairman of a
Panchayat Samiti belonging to Category I is entitled to Rs
E 6 per diem when a Member of the Samiti belonging to
Category II is only entitled to Rs 4 per diem. The argument
was that there was no explanation for payment at a higher
rate to the Chairman and, consequently, it must be he'd
that the Chairman must be making gain out of the payment
F to him of daily allowance. We are unable to accept this
submission. The daily allowance is invariably fixed after
estimating what extra expenditure' in a day the person
concerned would have to incur. A Chairman, it appears,
was expected to incur more expenditure per day than a
G Member, and that seems to be the reason why a higher
rate of daily allowance was prescribed for him. In any case,
such a payment is clearly meant only to cover additional
expenditure and out-of-pocket expenses of the Chairman
and, while no evidence has been advanced to show that
H
ANOKH SINGH v. PUNJAB STATE ELECTION 475
COMMISSION [SURINDER SINGH NIJJAR, J.]
out of the amount received as daily allowance the A
Chairman will in fact invariably make a saying, it cannot
be held that this payment would result in gain so as to
make the office an office of profit."
The aforesaid observations are squarely applicable to the facts B
and circumstances of this case. Even the payment of
allowances to Chairman Panchayat Samiti was held to be out
of pocket expenses. It was emphasised that the burden lay on
the appellant to give evidence to show that amount paid would
be in excess of the expenses. It was further observed that even
with regard to higher allowance paid to Chairman for performing C
duties outside the district, there was no evidence from which
an inference could be drawn that the allowance paid would be
in excess of the expenditure incurred in performance of the
duties by the Chairman.
D
.- 27. In the case of K.B. Rohamare Vs. Shanker Rao Genuji
Kolhe 8, this Court again considered the factors which are
necessary to be taken into consideration :-
(i) Whether the office in question is an office
E
holding under the Government; and
(ii) Whether such an office is an 'office of profit'.
Considering the question in the light of the test laid down
in the case of Shivamurthy Swami (Supra), it was held that a F
member of the Board would be holding an office under the
Government. It was, however, observed that mere drawal of the
daily allowance and traveling allowance could not make
membership of the Board, an 'office of profit' as the allowances
drawn by such member would be merely compensatory in G
nature. In coming to the aforesaid conclusion, this Court
considered the nature"of the payment made to the members
of the Board. It was observed that the dictionary meaning of
the word 'honorarium' would not be of much help. Therefore,
a. [(1975) 1 sec 252. H
476 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A "the matter must be considered as a matter of substance ratter
than of form, the essence of payment rather than its
nomenclature".
28. In considering the substance of the nature of the
B payment made, this Court considered in detail the various
payments made to the member of the Wage Board as well as
the number of meetings attended and the places at which the
meetings were attended. This was not necessary to determine
whether the particular member made a profit after the payments
made to him but to see the effect of payments in general. Upon
C examination of the entire material, it was observed as under:-
"The question has to be looked at in a realistic way. Merely
because part of the payment made to the first respondent
is called honorarium and part of the payment daily
D allowance, we cannot come to the conclusion that the daily
allowance is sufficient to meet his daily expenses and the
• 1 honorarium is a source of profit. A member of the Wage
Board cannot expect to stay in Taj Hotel and have a few
drinks and claim the expenditure incurred, which may
E come perhaps to Rs 150 to Rs 200 a day, for his personal
expenses. In such a case it may well be held to give him
a pecuniary gain. On the other hand he is not expected to
live like a sanyasi and stay in a dharmshala and depend
upon the hospitality of his friends and relatives or force
F himself upon them. Nobody with a knowledge of the
expenditure likely to be incurred by a person staying at a
place away from his home could fail to realise how correct
the assessment of the learned Judge is. We are satisfied
that the payments made to the first respondent cannot be
a source of profit unless he stays with some friends or
G
relatives or stays in a dharmshala.c.The appellant has not
satisfied the test or discharged the burden pointed out by
this Court in Umrao Singh case. The law regarding the
question whether a person holds an office of profit should
H
ANOKH SINGH v. PUNJAB STATE ELECTION 477
COMMISSION [SURINDER SINGH NIJJAR, J.]
be interpreted reasonably having regard to the A
circumstances of the case and the times with which one
is concerned, as also the class of person whose case we
are dealing with and not divorced from reality. We are thus
satisfied that the first respondent did not hold an office of
profit." B
29. The expression 'office or profit' was reconsidered in
detail by this Court in the case of Shibu Soren Vs. Oayanand
Sahay9. This Court, apart from reiterating the ratio of law in the
aforesaid two cases i.e. K.B. Rohamare Vs. Shanker Rao C
Genuji Ko/he (Supra) and Shivamurthy Swami (Supra)
observed as follows:-
"27. With a view to determine whether the office concerned
is an "office of profit", the court must, however, take a
realistic view. Taking a broad or general view, ignoring D
essential details is not desirable nor is it permissible to
take a narrow view by which tecl)nicality may overtake
reality. It is a rule of interpretation of statutes that the
statutory provisions are so construed as to avoid absurdity
and to further rather than defeat or frustrate the object of E
the enactment.
28. While interpreting statutory provisions, courts have to
be mindful of the consequences of disqualifying a candidate
for being chosen as, and for being, a Member of the legislature
on the ground of his holding an office of profit under the State
F
or the Central Government, at the relevant time. The court has
to bear in mind that what is at stake is the right to contest an
election and to be a Member of the legislature, indeed a very
important right in any democratic set-up. "A practical view, not
pedantic basket of tests" must, therefore, guide the courts to G
arrive at an appropriate conclusion. A ban on candidature must
have a substantial and reasonable nexus with the object sought
to be achieved, namely, elimination of or in any event reduction
9. [(2001) 1 sec 425. H
478 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A of possibility of misuse of the position which the legislator
concerned holds or had held at the relevant time. The principle
for debarring a holder of office of profit under the Government
from being a Member of Parliament is that such person cannot
exercise his functions independently of the executive of which
B he becomes a part by receiving "pecuniary gain". Under Article
102(1 )(a), of course, Parliament has the jurisdiction to declare
an "office" as not to disqualify its holder to be a Member of
Parliament and likewise under Article 191 (1 )(a) the State
Legislature has the jurisdiction to declare an "office" as not to
c disqualify its holder to be a Member of the State Legislatures.
Moreover, apart from the office being an "office of profit", it must
also be an office under the State or Central Government.
30. It was further observed that for determining of the core
question each case has to be judged in the light of the relevant
D provisions of the statute and its own peculiar facts. This is to
ensure that there should not be any conflict between the duties
and interest of an elected member.
31. In view of the above, the conclusion reached by the High
E Court that receipt of Rs.900/- is not compensatory can not be
accepted. It would be preposterous to accept, in this day and
age, that a sum of Rs.900/- per month would be sufficient to
cover the out of pocket expenses of a Lambardar.
32. In this case the High Court erred in recording a
F conclusion without insisting on the evidence on the basis of
which such conclusion could have been recorded. The circular
dated 30.4.2008 merely states :-
"To
G All the Deputy Commissioners-cum-
District Electoral Officers in the State.
Memo No. SEC-2008/4365
Chandigarh, dated the 30.4.2008
Subject : General Elections to Panchayat Samitis
H
ANOKH SINGH v. PUNJAB STATE ELECTION 479
COMMISSION [SURINDER SINGH NIJJAR, J.]
and Zila Parishads - 2008 Clarification A
regarding contesting of election by
Lambardars and Anganwari Workers.
Some of the Deputy Commissioners-cum-District 8
Electoral Officers have raised the question whether the
Lambardars and Anganwari workers are eligible to contest
Panchayati Raj Institution elections. The answer to this
question depends upon whether the aforesaid functionaries
are holding "office of profit" under the State Government. C
The Hon'ble Supreme Court of India has laid down certain
. tests for determining the question whether a particular
office is an office under the State Government or not:
particularly in Shivamurthy Swami lnamdar Vs. Agadi
Sanganna Andanaappa as follows:- D
(i) Whether the government makes the
appointment;
(ii) Whether the government has the right to
remove or dismiss the holder; E
(iii) Whether the government pays remuneration;
(iv) What the functions of the holder are and does
he perform them for government; and F
(v) Does the government exercise any control
over the performance of these functions.
Therefore, the question whether a person is holding an
office of profit under the Government of India or a State G
has to be decided by applying these teststo the facts and
circumstances of each case. Applying these questions to
the instant case, it is well established that both the above
mentioned functionaries are appointed qy the Government
and the Government has the right to remove them. They H
480 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A are also paid remuneration. However, it has been said that
the remuneration is of the nature of honorarium. Here, on
"office of profit" the Hon'ble Supreme Court of India held
in Ravanna Subanna Vs. Kaggeerappa that the word
'profit' connotes the idea of pecuniary gain. If there is really
B 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 carried any profit. Further, it is also well
established that functions pe:formed by both Lambardar
c and Anganwari workers are for the government and the
government also exercises control over the performance
of these functions. A similar point has been decided by the
Hon'ble Supreme Court in Ramappa Vs. Sangappa where
the Hon'ble Supreme court observed that the appointment
of Patels and Shanbhogs was made by the Government
D
under the Mysore Village Offices Acts 1908 and though it
may be under the statute it had no option but to appoint
the heir to the office, if he fulfills the statutory requirements,
but the office was held by them by reason of the
appointment by the government and not simply because
E
of hereditary right to it. They worked under the control and
supervision of the Government, could be removed by the
government and were paid by it.
Accordingly, the Commission is of the view that the
F Lambardar and Anganwari workers held "office of profit"
and thus are ineligible to contest.
Sd/-
(A.K. Dubey)
State Election Commissioner, Pb."
G
A perusal of the circular would clearly show that State
Election Commission has failed to take note of the factual
situation. The circular is based on a misinterpretation of
the law laid down by this Court in the cases of
Shivamurthy and Ravanna Subanna (supra). There is no
H
ANOKH SINGH v. PUNJAB STATE ELECTION 481
COMMISSION [SURINDER SINGH NIJJAR, J.]
material on the record to show that the receipt of Rs:900/ A
- per month by the Lambardar would invariably lead to a
saving. Even though the office of lambardar is regarded
'as a mere relic in ~his day and age: it still carries with it
certain important duties Which are to be perforlT)ed by the
incumbent. Although purely 'honourary' being a Lambardar B
·u .gives the incumbent a certain status in the village. In some
ca·ses, the office of Lambardar has been in· the :Same
families for generations. For them, it becomes a matter of
honour and prestige that the office remains in the family .
. • ~ Learned counsel for the appellant has rightly submitted that c
·"the office of Lambardar is· a heritage office. Therefore,
' some families would cherish the office ofLambardar, even
though the incumbent does not get any salary, emoluments
... or perquisites. In our opinion, the very basis of issuing the
'circular was rion- existent and misconceived. On this very 0
basis, the High Court has quashed the circular in relation
to Anganwari workers. In our opinion, for the same
reasons the circular could not be sustained qua the
Lambardars also.
33. In view of the aforesaid conclusion, we need not E
consider the effect of Section 2(a) of the Punjab State
Legislative (Prevention of disqualifications) Act, 1952, on
Section 11 (g) of the State Election Commission Act. By virtue
of the aforesaid Act a Lambardar would be qualified to contest
the elections for legislative assembly. This could be a stepping F
stone for becoming the Chief Minister of the State. Therefore,
it would seem a little incongruous that a Lambardar would not
be permitted to seek election to the Panchayat. The village
level democracy is the bedrock of the Indian National
Democracy. Being a member of Panchayat can be the G
beginning of a long career in public life. Therefore, the
disqualification introduced though the impugned circular could
prove disastrous to democracy at the grassroots level in
Punjab. But we need not go into controversy, as we have
already held that the office of a Lambardar would not be an H
482 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A 'office of profit'.
34. In view of the above, the appeal is allowed. The
impugned judgment of the High Court is set aside, in so far as
it relates to lambardars. The impug.ned circular dated
30.4.2008 is quashed and set aside qua the Lambardars also ..
8
Civil Appeal No. 9486 of 201 O @ Special Leave
Petition (C) No.10948 of 2009 :
1. leave granted.
c 2. In view of the judgment in Civil Appeal No. 9485 of 2010
@ SLP (C) No. 7319 of 2009, this appeal becomes
infructuous and is dismissed as such.
R.P. Appeals disposed of.
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