JAYA BACHCHANversusUNION OF INDIA AND ORS.

A                               JA YA BACHCHAN
                                          v.
                          UNION OF INDIA AND ORS.

                                    MAY 8, 2006

B                   [Y.K. SABHARWAL,CJI, C.K. THAKKER
                         AND R.V. RA VEENDRAN, JJ.]

    Constitution of India, 1950 :

          Articles /02(/)(a) and 103(2)-Member ofParliament-Holding Office
c   of profit-Disqualification-Member of Rajya .Sabha-Appointed by
    Government of UP. as Chairperson of UP. Film Development Council-
    Withfa:ed monthly honorarium and entertainment expenditure, staffcar with
    driver, personal staff and free accommodation etc.-Election Commission
    held the said appointment of the MP. concerned as to an office ofprofit and
    that s.3 of Parliament (Prevention of Disqualification) Act, 1959 did not
D   exempt the said office ofprofit from disqualification under Article 102 (/){a)-
    Held, that the facilities mentioned in the O.M are pecuniary gains cannot
    be denied-Where the office carries with it certain emoluments or the order
    of appointment states that the person appointed is entitled to certain
    emoluments, then it will be an office ofprofit, even if the hoider of the office
E   chooses not to receive/draw such emoluments-What is relevant is whether
    pecuniary gain is "receivable" in regard to the office and not whether
    pecuniary gain is, in fuct, received or received negligibly.

          Ravanna Subanna v. G.S. Kaggeerappa, AIR (1954) SC 653;
    Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa, [19711 3 SCC
F   870; Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev,
    [199214 and Shibu Soren v. Dayanand Sahay & Ors., [200117SCC425,
    relied on.

        K.B. Rohamare v. Shankar Rao, [19751 1 SCC 252 and Bihari/al
    Dobray v. Roshanlal Dubray, (1984) l SC 551, referred to.
G
         Umrao Singh v. Darbara Singh, [196911SCR421 and Divya Prakash
    v. Kultar Chand Rana & Anr., [197511 SCC 264, distinguished.

         CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 199 of
    2006.
H
                                          110
                 JA YA BACHCHAN v. UNION OF INDIA                          I 11

     Under Article 32 of the Constitution of India                                 A
      F.S. Nariman, Sr. Adv., Ejaz Maqbool, Pradeep Kumar Rai, Rohit
Mammen Alex, Vikas Singh, Taruna Singh, Abhijit Sinha, Advs. with him
for the Appellant.

     S.N. Shukla, S.K. Rungta, Sushi! Kumar Jain, A.P. Dhamija, Sarad              B
Singhania, Pratibha Jain, Acjvs., for the Respondent.

     The Order of the Court was delivered by

      The challenge in this petition filed under Article 32 of the Constitution
of India, is to the order of the Hon 'ble President of India, dated 16th March,    c
2006, whereby, in exercise of powers conferred under clause (I) of Article
I 03 of the Constitution of India, the Hon 'ble President has decided, after
obtaining the opinion of the Election Commission as required by Article
I 03(2), that the petitioner stands disqualified for being a Member of the
Rajya Sabha on the From 14th day of July, 2004. The challenge is also to
the opinion dated 2nd March, 2006 rendered by the Election Commission              D
to the Hon'ble President, under clause (2) of Article 103, that the petitioner
became disqualified under Article 102(l)(a) of the Constitution for being a
Member of the Rajya Sabha on and from 14th July, 2004 on her appointment
by the Government of Uttar Pradesh as Chairperson of the U.P. Film
Development Council.                                                               E
     2. The Government of Uttar Pradesh, by Official Memorandum dated
14.7.2004, appointed the petitioner as the Chairperson ofUttar Pradesh Film
Development Council (for short 'the Council') and sanctioned to her the rank
of a Cabinet Minister with the facilities as mentioned in O.M. No. 14/1/46/
87-C. Ex.(!) dated 22.3.1991 (as amended from time to time). The benefits          F
to which she became entitled, as a consequence, are :

      (i)   Honorarium of Rs. 5,000 per month;

      (ii) Daily allowance @ Rs. 600 per day within the State and Rs. 750
           outside the State. Rs. I 0,000 per month towards entertainment          G
           expenditure.

      (iii) Staff car with driver, telephones at office and residence, one P.S.,
            one P.A. and two class IV employees.

      (iv) Body Guard and night escort.                                            H
    112                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A         (v)   Free accommodation and medical treatment facilities to her and
                family members.

          (vi) Free accommodation in government circuit housesiguest house
               and hospitality while on tour.

B        3. The Election Commission, after referring to the facts and the law
    enunciated by this Court in several decisions, has expressed the opinion that
    the office of Chairperson of the Council to which the petitioner was
    appointed by the State Government by O.M. dated 14.7.2004, on the terms
    and conditions specified therein, is an "'office of profit" under the Government
    of Uttar Pradesh for purposes of Article I 02(1 )(a) of the Constitution. The
c   Commission also found that Section 3 of the Parliament (Prevention of
    Disqualification) Act, 1959 did not exempt the said office of profit from
    disqualification under Article 102(l)(a) of the Constitution.

          4. The petitioner contends that the post of Chairperson of the Council,
D   and the conferment of the rank of Cabinet Minister, w.:re only "decorative";
    that she did not receive any remuneration or morietary benefit from the State
    Government; that she did not seek residential accommodation, nor used
    telephone of medical facilities; that though she travelled several times in
    connection with her work as Chairpason, she never claimed any
    reimbursement; and that she had accepted the Chairpersonship of the Council
E   honorarily and did :10t use any of the facilities mentioned in the O.M. dated
    22.3.1991. The petitioner contends that in the absence of any finding by the
    Election Commission that she had received any payment or monetary
    consideration from the State Government, she could not be said to hold any
    office of profit under the State Government and, therefore, her disqualification
F   was invalid.

          5. It is not in dispute that the Council is not an autonomous body or
    statutory Corporation, that the Council has no budget of its own, and that
    all its expenses .are met by the Department of the State Government
    administratively in-r:hange of it. Similarly, the fact that the petitioner was
G   appointed as Chairperson of the Council, conferring on her the rank of a
    Cabinet Minister entitling her to all the remuneration and benefits as
    provided in the O.M. dated 22.3.1991 (extracted above), is also not disputed.

         6. Clause (l)(a) of Article 102 provides that a person shall be
    disqualified for being chosen as, and for being, a member of either House
H
                      JA YA BACHCHAN v. UNION OF INDIA                          113

     of Parliament if he holds any office of profit under the Government of India       A
     or the Government of any State, other than an office declared by Parliament
     by law not to disqualify its holder. The term 'holds an office of profit' though
     not defined has been the subject matter of interpretation, in several decisions
     of this Court. An office of profit is an office which is capable of yielding
     a profit or pecuniary gain. Holding an office under the Central or State
     Government to which some pay salary, emolument, remuneration or non-               B
     compensatory allowance is attached, is 'holding an office of profit'. The
     question whether a person holds an office of profit is required to be
     interpreted in a realistic manner. Nature of the payment must be considered
     as a matter of substance rather than of form. Nomenclature is not important.

..   In fact, mete use of the word 'honorarium' cannot take the payment out of          c
     the purview of profit, if there is pecuniary gain for the recipient. Payment
     of honorarium, in addition to daily allowances in the nature of compensatory
     allowances, rent free accommodation and chauffeur driven car at State
     expense, are clearly in the nature of remuneration and a source of pecuniary
     gain and hence constitute profit. For deciding the question as to whether one
     is holding an office of profit or not, what is relevant is whether the office      D
     is capable of yielding a profit or pecuniary gain and not whether the person
     actually obtained a monetary gain. If the "Pecuniary gain" is "receivable"
     in connection with the office then it becomes an office of profit, irrespective
     of whether such pecuniary gain is actually received or not. If the office
     carries with it, or entitles the holder to, any pecuniary gain other than          E
     reimbursement of out of pocket/actual expenses, then the office will be an
     office of profit for the purpose of Article 102(l)(a). This position of law
     stands settled for over half a century commencing from the decisions of
     Ravanna Subanna v. G.S. Kaggeerappa, AIR (1954) SC 653; Shivamurthy
     Swami Jnamdar v. Agadi Sanganna Andanappa, [1971] 3 SCC 870;
      Satrucharla Chandrasekhar Raju v. Vyricherla pradeep Kumar Dev, [1992]            F
      4 SCC 404 and Shi bu Soren v. Dayanand Sahay & Ors., [200 I] 7 SCC 425.

          7. The petitioner relied on the decisions in Umrao Singh v. Darbard
     Singh, [ 1969] 1 SCR 421 and Divya Prakash v. Ku/tar Chand Rana & Anr.,
     [1975] 1 sec 264.                                                                  G
           8. In Umrao Singh (supra) the question that arose for consideration was
     whether payment of a monthly consolidated allowance for performing all
     official duties and journeys concerning the work and a mileage allowance
     for the journeys performed for official work outside the district and daily
     allowances for the days of attendance of meetings/travel/halt, would convert       H
    114                   SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A   the office of Chairman of a Panchayat Samiti into an office of profit. This
    Court held that these were allowances paid for the purpose of ensuring that
    the Chairman did not have to spend money out of his own pocket for
    discharging his official duties, and therefore, receipt of such allowances did
    not make the office one of profit.

B         9. In Divya Prakash (supra), this Court held that the post of a Chairman
    of the Board of School Education of the State of Himachal Pradesh was not
    an office of profit. The candidate was appointed specifically in an honorary
    capacity without any remuneration. Further the post of Chairman did not
    carry with it a scale of pay. On the same date Bench also decided the case
C   of K.B. Rohamare v. Shankar Rao, (1975] 1 SCC 252, where while
    discussing the question at length, Ravanna Subanna (supra) was cited with
    approval. It was held in the said case that amount of money receivable
    (emphasis supplied by us) by a person in connection with the office he holds
                                                                                        -
    is material when deciding whether the office carried any profit.

D         I 0. Learned counsel for the petitioner has also referred to Bihari/al
    Dobrav v. Roshan/al Dobrav, [ 1984] l SCC 551 and contended that citing
    Divya Prakash (supra), with approval, it was held that when a candidate is
    appointed in an honorary capacity without any remuneration even though
    post carried remuneration, he cannot be said to be holding an office of profit
    and thus was not disqualified under Article 191 (l)(a) of the Constitution.
E   ln Bihari/al Dobray 's Case (supra) it was held that respondent was holding
    an office of profit under the State Government and his nomination was
    rightly rejected by the Returning Office. In that case, the only question was
    whether the post the respondent was holding was one under State Government
    or not. The observations made with reference to Divya Prakash 's case were
F   clearly obiter. Further, an error seems to have been made while noticing
    Divya Prakash 's case. In Divya Prakash it was held that the post did not
    carry with it any remuneration but in Bihari/al Dobrey it was said that the
    post carried remuneration.

          11. A careful examination of the decisions relied upon the learned
G counsel on behalf of the petitioner shows that each of those cases turned on
     its own facts and did not lay down any proposition of law contrary to what
     has been laid down in a series of decisions starting from Ravanna Subanna
     to Shibu Soren. It is well settled that where the office carries with it certain
     emoluments or the order of appointment states that the person appointed is
H    entitled to certain emoluments, then it will be an office of profit, even if the
                  JA YA BACHCHAN v. UNION OF INDIA                           115

 holder of the office chooses not to receive/draw such emoluments. What is           A
 relevant is whether pecuniary gain is "receivable" in regard to the office and
 not whether pecuniary gain is, in fact, received or received negligibly.

        12. In this case, as noticed above, the office carried with it a monthly
  honorarium of Rs. 5000, entertainment expenditure of Rs. I 0,000 ., staff car
  with driver., telephones at office and residence, free accommodation and           B
  medical treatment facilities to self and family members, apart from other
  allowances etc. That these are pecuniary gains, cannot be denied. The fact
  that the petitioner is affluent or was not interested in the benefits/facilities
  given by the State Government or did not, in fact, receive such benefits till
· date, are not relevant to the issue.                                               C
       13. In this view, the question whether petitioner actually received any
 pecuniary gain or not is of no consequence. We find no merit in the writ
 petition and the same is, accordingly, dismissed.

 R.P.                                                   Writ petition dismissed.