GAJANAN SAMADHAN LANDEversusSANJAY SHYAMRAO DHOTRE

               [2011] 13 (ADDL.) S.C.R. 395


              GAJANAN SAMADHAN LANDE                                A
                              . v.
               SANJAY SHYAMRAO DHOTRE
               (Civil Appeal No. 7923 of 2010)
                    NOVEMBER 30, 2011                               B
         [R.M. LODHA AND H.L. GOKHALE, JJ.]

     Representation of People Act, 1951: ss.10, 100(1)(a)
- Disqualification from contesting elections - State C
Government having more than 25% share in a Corporation
- Returned candidate was an elected Director of the
Corporation - Since returned candidate was neither managing
agent nor manager nor secretary in the Corporation, s. 10 of
the Act is not attracted - Returned candidate is, therefore, not
disqualified u/s.. 1O of the Act.                                D

     Constitution of India, 1950: Article 102 -
Disqualification for membership - Held: For attracting the
disqualification provided in Article 102, a person must be
holder of 'office of profit' under the Government of India or the   E
Government of any State - Returned candidate was elected
Director of Corporation - He was holding an elected office and
not an office by appointment - He did not hold an office of
profit under the Government - One of the essential
necessities in determining the question whether the office is       F
an 'office of profit' or not is whether such office carries
remuneration in the form of pay or commission - As an
elected Director, the amount paid to the returned candidate
was by way of allowances not 'remuneration' - It is only a sort
of reimbursement of the expenses incurred by the returned           G
candidate - Returned candidate was neither disqualified to
be member of Parliament either u/Article 102 or uls.10 of the
1951 Act - Representation of People Act, 1951.


                              395                                   H
    396    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A        The respondent was elected from Akola
    Constituency for the 15th Lok Sabha. The appellant, a
    voter in the constituency challenged the election of
    respondent under Section 100(1)(a) of the Representation
    of People Act, 1951 on the ground that the returned
s   candidate was disqualified to contest the election as he
    was holding the 'office of profit' under the Government
    company being a Director of the Maharashtra Seeds
    Corporation. The High Court held that the returned
    candidate was not disqualified to be a member of
c   Parliament either under Article 102(1 )(a) of the
    Constitution or under Section 10 of the 1951 Act. The
    instant appeal was filed challenging the order of the High
    Court.

          Dismissing the appeal, the Court
D
       HELD: 1.1. Section 10 of the Representation of
  People Act, 1951 refers to category of persons who shall
  be disqualified from contesting election, inter alia, of
  either House of Parliament. These persons are, managing
E agent, manager or secretary of any company or
  corporation (other than a co-operative society) in the
  capital of which the appropriate Government has not less
  than twenty-five per cent share. The Government of
  Maharashtra admittedly has more than 25 per cent share
F in the Corporation. The Corporation is, thus, covered by
  Section 10. However, the returned candidate is an elected
  Director from the Growers constituency on the Board of
  the Corporation. He is neither .managing agent nor
  manager nor secretary in the Corporation. Section 10 of
G the 1951 Act is, therefore, not at all attracted in the instant
  case. [Para 10] [400-F-G; 401-A]
      1.2. Article 102 of the Constitution provides for
  disqualifications for membership. For attracting the
  disqualification provided in Article 102 of the Constitution,
H a person must be holder of 'office of profit' under the
       GAJANAN SAMADHAN LANDE v. SANJAY                  397
               SHYAMRAO DHOTRE

Government of India or the Government of any State. The         A
returned candidate is not the holder of any office of profit
under the Government of India. He is neither the holder
of the office under the Government of Maharashtra,
reason being in the first place that the returned candidate
was holding an elected office and not an office by              B
appointment. The test of appointment is decisive. The
Government had nothing to do in the election of Director
from the Growers constituency. Moreover, being an
elected office, the Government has no power to remove
the returned candidate from that office. On this ground         C
alone, it must be held that the returned candidate did not
hold an office much less an 'office of profit' under the
Government. Secondly, one of the essential necessities
in determining the question whether the office is an
'office of profit' or not is whether such office carries        D
remuneration in the form of pay or commission. As an
elected Director, the amount paid to the returned
candidate by way of allowances, by no stretch of
imagination, can be said to be 'remuneration' in the form
of pay or commission. It is only a sort of reimbursement        E
of the expenses incurred by the returned candidate.
Essential condition that office carries remuneration in the
form of pay or commission is also not satisfied. Lastly,
the peculiar features of an elected office of Director in the
Corporation, do not bring such office within the meaning        F
of 'office of profit'. The view of the High Court did not
suffer from any legal infirmity justifying interference.
[Paras 12-16] [401-E-H; 402-A-E]

    Pradyut Bordoloi v. Swapan Roy AIR 2001 SC 296 -
c~d.                                                            G
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7923 of 2010.

    From the Judgment & Order dated 30.07.2010 of the High
                                                                H
    398     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A Court of Judicature at Bombay, Nagpur Bench in Election
  Petiiion No. 1 of 2009.

        Vishal Jogdand, Suhas Kadam, Dr. Kailash Chand for the
    Appellant.
B
          Saurav S. Shamshery, Shubhashis R. Soren, Ruchi Kohli
    for the Respondent.

          The Judgment of the Court was delivered by

c        R.M. LODHA, J. 1. This is an Appeal under Section 116-
    A of the Representation of the People Act, 1951 (for short "the
    1951 Act").

       2. The respondent - Sanjay Shyamrao Dhotre - contested
  the election from Akola Constituency for the 15th Lok Sabha
D and was declared elected.

       3. The appellant - a voter in the constituency - challenged
  the election of the respondent (her,inafter referred to as
  "returned candidate") in the election petition before the Bombay
E High Court, Nagpur Bench, Nagpur. The invalidity of the election
  of the returned candidate was sought under Section 100(1 )(a)
  of the 1951 Act. The appellant avered in the election petition
  that the returned candidate was disqualified to contest the
  election as he was holding the 'office of profit' under the
F Government company being a Director of the Maharashtra
  Seeds Corporation (for short "Corporation"). Section 10 of the
  1951 Act and Article 102(1)(a) of the Constitution of India were
  pressed into service by the election petitioner in this regard.
       4. The returned candidate contested the election petition
G and disputed that he was holding an 'office of profit' under the
  Government. His case was that he was elected as a Director
  of the Corporation from Growers constituency and the
  allowances received by him as an elected Director were not in
  the nature of profit but were paid to him by way of
H
      GAJANAN SAMADHAN LANDE v. SANJAY                       399
       SHYAMRAO DHOTRE [R.M. LODHA, J.]

reimbursement of actual expenses. Moreover, the returned            A
candidate was not appointed by the Government nor the
Government has any right to remove or dismiss him from the
elected office of Director of the Corporation. He also set up the
case that the Government has no control over the performance
of functions of the elected Director of the Corporation.            B

     5. On the basis of the pleadings of the parties, the High
Court framed 14 issues. The appellant examined two
witnesses, including himself and tendered documentary
evidence. On the other hand, the returned candidate examined        C
himself and one more witness who was Deputy General
Manager (Audit) of the Corporation. He also produced
documentary evidence in support of his defence.

      6. The High Court by an elaborate judgment, on
consideration of the evidence on record and on hearing the          D
counsel for the parties, held that the returned candidate was
not disqualified to be a member of Parliament either under
Article 102(1 )(a) of the Constitution or under Section 10 of the
1951 Act.
                                                                  E
     7. Mr. Vishaal Jogdand, learned counsel for the appellant,
assailed the correctness of the judgment of the High Court and
submitted that the returned candidate at the time of nomination
and election was holding the office of profit. In this regard, he
referred to the allowances received by the returned candidate, F
namely, Rs. 0.75 Lakh meeting allowance calculated at the rate
of Rs. 300/- per day; telephone allowance in the sum of Rs.
2,000/- per month; dearness allowance paid at the rate of Rs.
100/- for metropolitan cities and Rs. 85/- for other places and
also sale of seeds at concessional price. Learned counsel G
further submitted that the Corporation was a Government
company and Government has full control and supervision over
the company as well as its directors. Learned counsel also
submitted that the returned candidate as an elected Director
was entitled to enter into contract with the company and make
                                                                  H
    400     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A profit from such contract. He invited our attention to Section 1O
  of the 1951 Act and Article 102(1 )(a) of the Constitution and
  submitted that the facts clearly demonstrate that the returned
  candidate was holding the 'office of profit'.

       8. On the other hand, Mr. Saurav S. Shamshery, learned .
B counsel for the respondent, stoutly defended the findings
  recorded by the High Court. He also invited our attention to a
  decision of this Court in Pradyut Bordoloi Vs. Swapan Roy1 in
  support of his argument that the first and foremost thing that the
  election petitioner, in a case as the present one, is required to
C show is whether the Government has appointed the returned
  candidate and has power to remove him from the office and if
  the election petitioner has not been able to show that, nothing
  further is required to be seen.

D         9. Section 10 of the 1951 Act reads as follows:-

          "10. Disqualification for office under Government
          company.-A person shall be disqualified if, and for so
          long as, he is a managing agent, manager or secretary of
          any company or corporation (other than a co-operative
E         society) in the capital of which the appropriate Government
          has not less than twenty-five per cent share."

       10. Section 10 refers to category of persons who shall be
  disqualified from contesting election, inter alia, of either House
F of Parliament. These persons are, managing agent, manager
  or secretary of any company or corporation (other than a co-
  operative society) in the capital of which the appropriate
  Government has not less than twenty-five per cent share. The
  Government of Maharashtra admittedly has more than 25 per
G cent share in the Corporation. The Corporation is, thus, covered
  by Section 10. However, the returned candidate is an elected
  Director from the Growers constituency on the Board of the
  Corporation. He is neither managing agent nor manager nor

H   1.   AIR 2001 SC 296
       GAJANAN SAMADHAN LANDE v. SANJAY                        401
        SHYAMRAO DHOTRE [R.M. LODHA, J.]
                                                                       A
. secretary in the Corporation. Section 10 of the 1951 Act is,
  therefore, not at all attracted in the present case.

       11. Article 102 of the Constitution provides for
 disqualifications for membership. Article 102(1 )(a) is relevant
 for the present purposes and it reads as follows :-                   B

      "102. Disqualifications for membership.-

      (1) A person shall be disqualified for being chosen as, and
      for being, a member of either House of Parliament-
                                                                       c
      (a) if he holds any office of profit under the Government of
      India or the Government of any State, other than an office
      declared by Parliament by law not to disqualify its holder;

      (b)   xx x
                                                                       D
      (c)   xx x

      (d)   xx x

      (e)   xxx"
                                                                       E
       12. For attracting the disqualification provided in the above
 provision of the Constitution, a person must be holder of 'office
 of profit' under the Government of India or the Government of
 any State. The returned candidate is not the holder of any office
 of profit under the Government of India. Is he the holder of the      F
 office under the Government of Maharashtra? Our answer is in
 the negative for more than one reason.

      13. In the first place, the returned candidate was holding
 an elected office and not an office by appointment. The test of       G
 appointment is decisive. The Government had nothing to do in
 the election of Director from the Growers constituency.
 Moreover, being an elected office. the Government has no
 power to remove the returned candidate from that office. On
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    402    SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


A this ground alone, it must be held that the returned candidate
  does not hold an office much less an 'office of profit' under the
  Government.

       14. Secondly, one of the essential necessities in
B determining the question whether the office is an 'office of profit'
  or not is whether such office carries remuneration in the form
  of pay or commission. As an elected Oirector, the amount paid
  to the returned candidate by way of allowances, by no stretch
  of imagination, can be said to be 'renumeration' in the form of
C pay or commission. It is only a sort of reimbursement of the
  expenses incurred by the returned candidate. Essential
  condition that office carries remuneration in the form of pay or
  commission is also not satisfied.

       15. Lastly, the peculiar features of an elected office of
D Director in the Corporation, do not bring such office within the
  meaning of 'office of profit'.

       16. Thus, we are satisfied that the view of the High Court
  does not suffer from any legal infirmity justifying interference by
E us in this Appeal.
        17. The Appeal is, accordingly, dismissed with no order
   as to costs.

   D.G.                                          Appeal dismissed.