Supreme Court of India
SHIBU SORENversusDAYANAND SAHAY AND ORS.
- Citation
- 2001 INSC 300
- Decided
- 19 July 2001
- Disposal
- Dismissed
- Bench
- A S ANAND
Holding
The appellant held an office of profit under the State Government and was disqualified from being a Rajya Sabha member; the disqualification was not removed by Parliament.
Summary
Shibu Soren was elected to the Rajya Sabha while serving as Chairman of the Interim Jharkhand Area Autonomous Council (JAAC). A defeated candidate, Dayanand Sahay, challenged the election on the ground that Soren held an "office of profit" under the State Government, rendering him disqualified under Article 102(1)(a) of the Constitution. The Supreme Court held that the honorarium, perquisites and the manner of appointment demonstrated a pecuniary gain and that the interim council was an agency of the State, satisfying the tests for an office of profit under the Government. The Parliament (Prevention of Disqualification) Act, 1959 did not exempt this office, and the State Legislature lacked authority to remove the disqualification for a Parliament member. Consequently, Soren's election was set aside and the respondent was declared elected. The appeal was dismissed.
Issues considered
- The appellant's position as Chairman of the Interim JAAC constituted an "office of profit" under the State Government.
- Whether the honorarium and perquisites received amounted to pecuniary gain within the meaning of "profit".
- Whether the Parliament (Prevention of Disqualification) Act, 1959 exempted the office from disqualification.
- Whether the State Legislature could remove the disqualification for a Rajya Sabha member.
Legislation cited
Subjects
office of profitdisqualificationRajya SabhaJharkhand Area Autonomous CouncilhonorariumParliament (Prevention of Disqualification) ActArticle 102(1)(a)election petitionRepresentation of Peoples Act
Judgment
A SHIBU SOREN
v.
DAYANAND SAHA Y AND ORS.
JULY 19, 2001
B [DR. A.S. ANAND, CJ., R.C. LAHOTI AND
SHIVARAJ V. PATIL, JJ.]
Election Laws:
C Parliament (Prevention of Disqualification) Act, 1959-Disqualification I
of member of Parliament-Exemption from disqualification by Parliament-
H eld, the office of the Interim Jharkhand Area Autonomous Council set up
under the relevant Act is not included under the Schedule to the I959 Ac/-
Chairman of Interim Council does not enjoy the status of a Minister-
D Disqualification not removed by Parliament-Hence, the appellant is
disqualified ji-om being member of Rajya Sabha-Constitution of India-
Article 102(J)(a).
Constitution of India-Article 102(1}(a}-Disqualification of member
of Parliament-Office of Profit under the State Government-Election of
E appellant as member of Rajya Sabha-Appellant was Chairman of Interim
Jharkhand Area Autonomous Council set up under the relevant Act drawing
honorarium, daily allowances besides accommodation and car at the relevant
time-Held, daily allowances to meet out of pocket expenses are not profit-
Honorarium and other perquisites are pecuniary gain to the appellant-
Interim Council is an agency of the State Government-Thus, the appellant
F was holding an office ofprofit under State Government-Hence disqualified-
Election of appellant set aside-Jharkhand Area Autonomous Council Act,
1994.
Words & Phrases:
G 'Office of Profit '-Meaning of in the context of Election laws.
Appellant was holding the office of Chairman of Interim Council set up
under the Jharkhand Area Autonomous Council Act, 1994. He was entitled
to honorarium, daily allowances and travelling allowance besides
accommodation and a car. Appellant and seven respondents filed their
H 1020
I
Sl-IIBU SOREN v. DAY ANAND SAHAY 1021
nomination papers pursuant to a notification issued by Election Commission A
for filling up seven seats ofRajya Sabha. The appellant and respondents 2 to
7 were declared elected. Respondent 1, who was defeated, filed an election
petition before High Court under the provisions of Representation of Peoples
Act, 1951 challenging the election of the appellant to the Rajya Sabha on the
ground that the appellant was holding 'an office of profit' under the State B
Government at the time of filing nomination papers. The High Court allowed
the election petition and declared the election of the appellant void. It also
declared respondent 1 as duly elected to the Rajya Sabha.
In appeal to this Court, the appellant contended that the payment of
honorarium is not a payment of salary or remuneration; that the payment 'C
cannot constitute an 'office of profit' unless it gives .is some pecuniary gain
to the appellant that the office held by him as Chairman of the Interim Council
is not an office of profit under the State Government; and that if the office
held by him as Chairman of the Interim Council was to be construed as an
office of profit under the State Government, the disqualification provided for
under Article 102(1)(a) stood removed since as Chairman oflnterim Council, D
the appellant enjoyed the status of a Minister.
Dismissing the appeal, the Court
HELD: 1.1. Articles 102(1) and 19l(l)(a) of the Constitution were
incorporated with a view to eliminate or in any event reduce the risk of E
conflict between duty and interest amongst members of the Legislature so as
to ensure that the concerned legislator does not come under an obligation of
the executive, on account of receiving pecuniary gain or profit from it, which
may render him amenable to the influence of the Executive, while discharging
his obligations as a legislator. 11026-A-B)
F
Bihari/al Dobray v. Roshan Lal Dobray, 119841 1 SCC 551, referred
to.
1.2. The word 'profit' for the purpose of Article 102(1)(a) or Article
191(1)(a) of the Constitution connotes an idea of pecuniary gain, though G
neither the label under which it is paid nor the quantum of the amount may
always be material to determine the issue. Payment of daily allowances was
intended to meet out of pocket expenses of the appellant and were in the
nature of compensatory allowances .and were not a source of profit. The
payment of honorarium was clearly in the nature of giving some pecuniary
gain to the appellant and was not intended to compensate the appellant for his H
)- I
.,
1022 SUPREME COURT REPORTS [2001] 3 S.C.R.
A out of pocket expenses. The grant of honorarium besides other pre-requisites
granted by the State Government, in addition to the payment of daily allowances
to meet out of pocket expenses, does bring in an element of granting profit
to the appellant. The honorarium receivable by the appellant besides other
allowances perquisites was not in the nature of gratuitous payment or voluntary
donation. It was in the nature of remuneration and was a source of pecuniary
B gain, a benefit which was capable of bringing about a conflict between the duty
and interest of the appellant as a member of Parliament. Thus, the appellant,
as Chairman of the Interim Council was in receipt of pecuniary gain in the
form of honorarium and he, thus, held an "office of profit".
11046-C-E; H; 1047-A-D)
c Ravabba Subanna v. G.S. Kaggeerappa, AIR (1954) SC 653;
Shivamurthy Swamy v. Agadi Sanganna Andanappa, [1971) 3 SCC 870;
Karbhari Bhimaji Rohanare v. Shankar Rao Genuji Ko/he & Ors., 11975] 1
SCC 252; Madhukar G.E. Pankakar v. Jaswant Chobildas Rajani & Ors.,
11977) 1 SCC 70 and Ashok Kumar Bhattacharyya v. Ajay Biswas, 11985) 2
D SCR 50, referred to.
1.3. The provisions of the Jharkhand Area Autonomous Council Act,
1994 shows that the Interim Council, a body comprising exclusively of
Government appointees, holding their office at its pleasure was created to act
as a limb or agency of the State Government to facilitate smooth creation of
E Regular Council under the Act. The State Government not only had the
exclusive jurisdiction to appoint the Chairman of the Interim Council but also
the power to remove or dismiss him besides controlling the manner of
functioning of the Interim Council and providing funds for the Interim Council
out of which honorarium was paid to the appellant. Therefore, the appellant
F was holding his office under the State Government.f 1049-B; 1050-B-C; DJ
Shivamurthy Swamy v. Agadi Sanganna Andanappa, 11971] 3 SCC 870
and Guru Gobind Basu v. Shankar Prasad Ghosal, AIR (1964) SC 254, relied
on.
G Maulana Abdul Shakur v. Rikhab Chand & Anr., 11958) SCR 387 (CB)
and Surya Kant Roy v. lmamul Hai Khan, 1197513SCR909, distinguished.
Kanta Kathuria v. Manak Chand Surana, [19701 2 SCR 835 (CB);
Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani & Ors., 11977] 1
SCC 70 and Satrucharia Chandrasekhar Raju v. Vyricheria Pradeep Kumar
H Dev, (19921Supp.1 SCR 408, referred to.
SHIBU SOREN v. DA YANAND SAHA Y 1023
3. The provisions of the Jharkhand Area Autonomous Council Act, A
1994 does not provide that the Chairman of the Interim Council would enjoy
the status of a Minister. The disqualification, in the case of the appellant,
could only be removed by the Parliament and not by the State Legislature,
since the membership of Rajya Sabha was in issue, within the meaning of
Article 102 (1) (a) of the Constitution. No such disqualification was removed B
by the Parliament as the Jharkhand Act has not been included in the Schedule
to the Parliament (Prevention of Disqualification) At, 1959. The office of
Chairman of Interim Council has not been exempted under the Parliament
(Prevention of Disqualification) Act, 1959 and as such the disqualification
contained in Article 102(1)(a) is squarely attracted. The appellant was thus
holding an office of profit under the State Government' at the relevant time C
and thus, was disqualified to be a member of Raj ya Sabha.
[1051-D-H; 1052-C-D)
Kanta Kathuria v. Manak Chand Surana, (1970) 2 SCR 835 CB and
fishwanath Reddy v. Konappa Rudrappa Nadouda, AIR (1969) SC 604,
referred to. D
4. 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 the enactment. Courts, therefore, while construing a
statute avoid strict construction by construing the entire Act. While
interpreting statutory provisions, Courts have to be mindful of the E
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 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 F
democratic set up. A ban on candidature must have a substantial and reasonable
nexus to the object sought to be achieved namely, elimination of or in any
event reduction of possibility of misuse of the position which the concerned
legislator holds or had held at the relevant time. [1035-H; 1036-A-D)
Ashok Kumar Bhattachmya v. Ajoy Biswas and Ors., [1985) 2 SCR 50; G
Tinsukhia Electric Supply Co. Ltd. v. State of Assam and Ors., [1989) 3 SCC
709 and Commissioner of Income Tax, Bangalore v. J.H. Gotla, Yadagiri.
[1985) 4 sec 343, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3538 of
2000. H
1024 SUPREME COURT REPORTS [2001] 3 S.C.R.
A From the Judgment and Order dated I 0.5.2000 of the Patna High Court
in Election Petition No. 5 of 1998. .-f
P.P. Rao and D.D. Thakur Sr. Advocates, Barun K. Sihna, Pratap C.
Mohapatra, Subbash Chandra, Sanjiv Kumar, B.K. Satija, M.P. Jha, H.K. Lal,
Ankur Talwar, Vijay Prakash, R.C. Kohli, Ranjit Kumar, Ms. Binu Tamta, Anil
B K. Chopra (N.P.) and Mr. S.R. Setia (N.P.), Advocates with them for the
appearing parties.
The Judgment of the Court was delivered by p
.....
DR. A.S. ANAND, CJ. Pursuant to a Notification issued by the Election
c Commission for filling up seven seats of Rajya Sabha, nine persons, including
the appellant and seven respondents filed their nomination papers, which on
scrutiny were found to be valid. On the last date for withdrawal of nominations,
one candidate withdrew, thus leaving eight candidates to contest the election
for seven seats. Polling took place on 18th June, 1998 and after counting of
votes, result was declared on the same date. Appellant secured the highest
D number of votes (43.74) and along with respondents 2 to 7 was declared
elected. Respondent No. I was defeated. Respondent No. I herein, thereupon
filed an Election Petition under Sections 80 and 81 of the Representati~n of
;..
Peoples Act, 1951 (hereinafter referred to as the R.P. Act), calling in question
election of the appellant on the ground that at the time of filling his nomination
papers, the appellant was holding "an office of profit" under the State
E
Government as Chairman of the Interim Jharkhand Area Autonomous Council
(for short 'JAAC'), set up under the Jharkhand Area Autonomous Council
Act, 1994 (hereinafter .the .TAAC Act) and was thus disqualified to contest
election to Rajya Sabha. Respondent No.1, not only sought setting aside of
the election of appellant but also a declaration to have been duly elected,
F instead, as a member of the Rajya Sabha. Election petition was resisted by ~
.,.
the ~pellant and it was asserted that office of Chairman of the interim JAAC
was not an 'office of profit' or even an 'office' under the State Government
and further that the election petitioner was barred from raising the challenge,
for not having raised that objection at the time of scrutiny of nomination
papers before the returning officer. It was vehemently maintained that the
G returned candidate had not been earning any 'profit' and was drawing only
honorarium and allowances to meet his 'out of pocket expenses' and the
office he was holding could not be treated as an 'office of profit' under the
State Government and, therefore, his election was not liable to be set aside. '
According to an additional plea raised by the appellant, his disqualification,
H if any stood removed by Section 3 of the Parliament (Prevention of
~-
SHIBU SOREN v. DA YANAND SAHA Y [A.S. ANAND, CJ.] 1025
Disqualification) Act, I 959 since he enjoyed the status of a Minister while A
functioning as Chairman of the Interim Council.
On 10th May, 2000, a learned designated Judge of the Patna High Court
allowed the election petition and set aside election of the appellant. It was
held that the office of Chairman of Interim JAAC was an 'office of profit' B
under the State Government because the payment of honorarium at Rs. 1750
per month to the Chairman could not be construed as compensatory allowance.
It was also held that the Chairman of the interim JAAC held his office under
the State Government and, therefore, disqualification stipulated by Article
. 102(1 )(a) of the Constitution of India was clearly attracted to the appellant's
election. It was further held that the said disqualification was not saved by C
the Parliament "Prevention of Disqualification Act, 1959" on the pleas raised
in the additional written statement which inter alia included the plea that as
Chairman of Interim Council, the appellant enjoyed the 'status' and other
privileges of a Minister within the State and hence his disqualification stood
removed by Section 3 of Prevention of Disqualification Act, 1959. Consequently,
the election of the appellant was declared void and respondent No. I was D
declared duly elected to Rajya Sabha. This appeal is directed against that
judgment of the Patna High Court dated 19th May, 2000.
Article I 02( 1)(a) of the Constitution oflndia deals with disqualifications
for 'being chosen as' and 'for being a meinber of either House of Parliament' E
and inter alia provides:
(I) A person shall be disqualified for being chosen as, and for
being, a member of either House· of Parliament-
(a) if he holds any office of profit under the Government of India F
or the Government of any State, other than an office declared by
Parliament by law not to disqualify its holder;
A perusal of the above provision shows that three elements which are
sine qua non for attracting the above provision are that the person concerned G
must hold an office (1) under the Government of India or any State; (2) the
office should be an 'office of profit' and (3) the office should be other than
- an office declared by Parliament by law not to disqualify its holder. Article
102(l)(a) (supra) corresponds to Article 19l(l)(a) of the Constitution oflndia
which lays down similar disqualifications for being chosen as or for being a
member of the Legislative Council or Assembly of a State. H
1026 SUPREME COURT REPORTS (200 I] 3 S.C.R.
A Both Artides 102(1 )(a) and Article 191 ( 1)(a) were incorporated with a
view to eliminate or in any event reduce the risk of conflict between duty and
interest amongst members of the Legislature so as to ensure that the concerned
legisiator does not come under an obligation of the Executive, on account of
receiving pecuniary gain or profit from it, which may render him amenable to
influence of the Executive, while discharging his obligations as a legislator.
B It is in the context of Article 102(l)(a) (supra) that we have to examine the
meaningful question whether the appellant in the· present case held an 'office
of profit' under the State Government at the relevant time - the date of
scrutiny of nomination papers and whether that office has not been declared
by the Parliament by law not to disqualify its holder.
c
To examine this meaningful question let us first take a panoramic view
of the case law ah the subject.
In Ravabba Subanna v. G. S. Kaggeerappa, A.LR. (1954) S.C. 653, the
issue involved was whether a person holding the position of Chairman of
iD Gubbi Taluk Development Committee, could be said to be holding an 'office
of profit' under the Government.
During the elections held for Town Municipal Councillorship of Gubbi
in the State of Mysore an objection was raised at the time of scrutiny of
E nomination papers to the nomination of the appellant, in that case, on the
ground that he was holding an office of profit under the Government (Chairman
of Gubbi Taluk Development Col111!1.ittee) and was, therefore, disqualified for
being chosen as a Councillor under Section 14 of the Mysore Town
Municipalities Act, 1951. The objection was overruled and nomination paper
of the appellant was accepted. After voting, the appellant was declared
F elected. The respondent filed an Election Petition before the appropriate
forum. The learned Designated authority dismissed the Election Petition holding
that the appellant who was drawing a fee of Rs. 6 per sitting could not be
said to be holding an 'office of profit' under the Government as contemplated
by Section 14 of the Act. The High Court of Mysore, accepted the appeal filed
G by the respondent and set aside election of the appellant. Allowing the appeal
of the appellant this Court held 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 n_or could it amount to 'profit'; and that the
fee was paid to the Chairman to enable him to meet "out of pocket expenses
. which he has to incur for attending the meetings of the committee". This
H Court, accordingly, held the appellant could not be said to be "holding any
SHIBU SOREN v. DA YANAND SAHA Y [A.S. ANAND, CJ.] 1027
office of profit" under the Government at the material time. A
In Maulana Abdul Shakur v. Rikhab Chand and another, [1958] SCR
387 a Constitution Bench of this Court considered the case of a Manager of
a School run by a Committee of Management formed under the provisions of
the Dargah Khwaja Saheb Act, 1955. The concerned candidate had been
appointed by the Administrator of the Dargah and was being paid a salary B
of Rs. 100 per month. The Government of India under sections 5 and 9 of the
DKS Act, 1955 had the power to appoint as well as remove Members of the
Committee of Management and power to appoint an Administrator in
consultation with the Committee. It was found on facts, by the court, that the
concerned candidate was neither appointed by the Government of India nor C
was he removable by it. It was also found that his salary was not fixed or paid
by the Government but that the same was paid out of the funds of the Dargah ·
endowment. In the light of these facts, the Bench opined that though the
appellant was holding his appointment under a statutory body appointed by
the Government, he could not be held to be holder of an office of profit under
the Government of India within the meaning of Article 102 (l)(a) of the .C
Constitution of India. The Bench accordingly set aside the judgment of the
High Court which had held the election of the concerned candidate to be bad
on the ground that the concerned candidate was holding an office of profit
under the Government at the relevant time. This Court observed :
"On the other hand on March 1, 1956, he was holding his ,E
appointment under a Committee which is a statutory body and such
appointment cannot be called an appointment by or under the control
of the Government of India nor is his salary paid out of the revenues
of the Government but out of the funds of Durgah Endowment. In the
circumstances the majority of the Tribunal has erred in holding that
the appellant held an office of profit under the Government and the F
opinion of the Chairman to the contrary lays down the correct position."
In Kanta Kathuria v. Manak Chand Surana, [1970] 2 SCR 835, a
Constitution Bench of this Court considered the case of an Advocate, who
held an office of Special Government Pleader under the Government of Rajasthan G
to conduct arbitration cases between the Government and Modern
Construction Company. Her remuneration had been fixed at Rs. 150 per day
1 for each date of hearing, Rs. 75 per day for days of travel and dates on which
the case was adjourned as well as for days spent on preparation of the case.
She held that office for over two years. She contested assembly elections in
1967 and was declared elected to the Rajasthan Legislative Assembly. On her H
1028 SUPREME COURT REPORTS [2001) 3 S.C.R.
A election being challenged, the High Court held that she was disqualified on
the ground of holding an office of profit under the State Government. During .;
the pendency of her appeal in the Supreme Court, the Governor of Rajasthan
by an Ordinance removed the particular 'disqualification' retrospectively. The
Ordinance was replaced by an Act by the Legislature. Dealing with the issue
whether the office held by the appellant in that case could be said to be an
B office of profit under the State Government of Rajasthan and the effect of the
Act of the state legislature removing that disqualification, Sikri, J. speaking
for the majority of the Bench opined:
~
"It seems to us that the High Court erred in ho~ding that the appellant
lf
held an office. There is no doubt that if her engagement as Special
c Government Pleader amounted to appointment to an office; it would
be an office of profit under the State Government of Rajas~an. The
word 'office' has various meanings and we have to see which is the
appropriate meaning to be ascribed to this word in the context. It
seems to us that the words 'its holder' occurring in Art. 191(l)(a),
D indicate that there must be an office which exists independently of the
holder of the office. Further, the very fact that the Legislature of the
State has been authorised.by Art. 191 to declare an office of profit not
to disqualify its holder, contemplates existence of an office apart from
its holder. In other words, the Legislature of a State is empowered to
declare that an office of profit of a particular description or name
E would not disqualify its holder and not that a particular holder of an
office of profit would not be disqualified."
and finally held that the appellant was not disqualified to contest the election
under Article 191 ( 1)(a) of the Constitution.
F Dealing with the question of removal of disqualification retrospectively
by the Rajasthan Legislative Assembly, the majority also opined that the State
Legislature was competent to declare a certain office as not to disqualify its
holder to contest election to the State Legislature. Bench repelled the argument
that the impugned Act, i.e., Removal of Disqualification Act as enacted by
G the State Legislature amounted to amending or altering the Representation of
Peoples Act, .1951. Consequently the appeal of Kanta Kathuria was allowed
and judgment of the High Court was set aside and election petition of.the
respondent was dismissed.
"
The minority spe~king through Hidayatullah, ~.J., however, h~ld that
H Ms. Kathuria was holding an "office of profit" under the State but agreed w1ith
SHIBU SOREN v. DAY ANAND SAHA Y [A.S. ANAND, CJ.] 1029
the majority that her disqualification stood removed by retrospective operation A
of the Removal of Disqualification Act, which the State Legislatlire was
'competent to enact'.
In Shivamurthy Swami v. Agadi Sanganna Andanappa, [1971] 3 SCC
870, the question under consideration of this Court was whether a Member
of Koppal Taluk Development Board as well as a member of the District B
Development Council could be said to be holding an 'office of profit' under
the Government. After analysing the fact situation besides relevant provisions
including provisions of Article 102(1)(a) of the Constitution and various
precedents of this Court, the Bench opined:
" ... Therefore before the provisions of that Article can be attracted,
c
it must be established th.at he was holding an office under the Union
or the State Government and that that office was an office of profit
and thereafter we must see whether the disqualification relating to
that office has been removed by any Parliamentary legislation. In
other words, the office in question must ·have been held under a D
Government and to that some pay, salary, emoluments or allowance is
attached. The word '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 E
really carries any profit...".
(Emphasis supplied)
The Bench noticed that the concerned person, Sangappa, became an e.x-
officio member of these bodies by virtue of his being elected as a member
of the Mysore Legislative Council and therefore "it could not be said that p
he was holding those offices under the Government." The Court further
opined that the allowances paid to the members of the Koppal Taluk
Development Board and District Development Council were intended to meet
their out of pocket expenses and were in the nature of compensatory
allowances and not "profits". The Court summarised the tests which may be
applied to determine whether an "office" is an office of profit under the State G
Government thus:
( 1) whether the Government makes the appointment;
(2) whether the Government has the right to remove or dismiss the
~~ H
1030 SUPREME COURT REPORTS [2001] 3 S.C.R.
A (3) whether the Government pays the remuneration;
(4) what are the functions of the holder; and
(5) Does the Government exercise any control over the performance
of those functions?"
B In Karbhari Bhimaji Rohamare v. Shankar Rao Genuji Ko/he & Ors.,
[1975] 1 SCC 252, election of Respondent No.l, who was a member of Wage
Board for Sugar Industry constituted by the Government of Maharashtra
under Bombay Industrial Relations Act, 1946, was called in question on
various grounds. hi the Supreme Court, however, only ground pressed was
C to the effect that the election of first Respondent in that case was liable to
be set aside on the ground that he was holding 'an office of profit' under the
State Government as 'a member of the Wage.Board'. After noticing various
provisions of the relevant statutes, it was held that f~st Respondent did hold
an 'office under the Government', but that it was not 'an office of profit'.
D Reference was made to "the notification constituting the Wage Board as
well as to the resolution appended thereto, which provided that non-official
members of the Wage Board would be paid honorarium at the rate of Rs. 25
per day for attending meeting of the Wage Board and that they would also
be allowed to draw Travelling Allowance and Daily Allowance at the rate
prescribed under the Bombay Civil Service Rules. This Court opined that mere
E drawal of Daily Allowance and Travelling Allowance could not make
membership of the Board, an 'office of profit' as the drawal of those allowances
would fall within the definition of the expression "Compensatory Allowance".
The controversy, however, centered around the question whether honorarium
payable to the members of the Wage Board could render that office as an
'office of profit'. After referring to dictionary meaning of the word "honorarium"
F
and its interpretation in some other judgments, this Court agreed with the
learned Judge of the High Court, who had refused to set aside the election
of the first '.Respondent, that "the payment of honorarium to the first
Respondent, apart from Daily Allowance and Travelling Allowance, for
attending the meetings of the Board did not amount to the first Respondent
G 'making any pecuniary gain thereby'." It was opined that merely because part
of the payment made to the first Respondent was called 'honorarium', it did
not lead to a conclusion that it was not meant to meet daily expenses, and
was meant to be 'a source of profit'. In the words of the Court:
" ... Merely because part of the payment made to the first respondent
H is called honorarium and part of the payment daily allowance, we
SHIBU SOREN v. DA YANAND SAHA Y [A.S. ANAND, CJ.] 1031
cannot come to the conclusion that the daily allowance is su(ficient A
to meet his daily expenses and the 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 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 B
and depend upon the hospitality of his friends and relatives or force
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 C
cannot be a source of profit unless he stays with some friends or
relatives or stays in a dharmshala ... "
The Court further opined:
"The question has to be looked at in a realistic way. ... The law D
regarding the question whether a person holds an office of profit
should be interpreted reasonably having regard to the 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. The first respondent did not hold an office of profit."
. (Emphasis ours) E
This Court, thus, held that the first respondent in that case did not hold
'an office of profit' and as such did not incur any disqualification for being
a member of the legislature.
A two Judge Bench of this Court in Surya Kant Roy v. Imamul Hai F
Khan, [1975] 3 SCR 909 dealt with the case of Chairman of a Board constituted
under the Bihar and Orissa Mining Settlement Act, 1920. He was appointed
as Chairman by the State Government from amongst the Members of the
Board. The High Court had held that the returned candidate in that case,
namely the Chairman of the Board, did not suffer from a disqualification G
envisaged by Article 102 of the Constitution. Agreeing with the High Court,
the Court, opined that merely because returned candidate had been appointed
as Chairman of the Board by the Government from amongst the Members of
the Board, it would not make him a person holding an office under the State
Government. The Court also held the fact that Government provided grants
to the Board, did not mean that "all the funds of the Board were Government H
'.<
1032 SUPREME COURT REPORTS [2001] 3 S.C.R.
A funds or Government properties". The Court noticed the tests laid down in
Shivamurthy Swami's case (supra) and observed that the Government did not
pay the remuneration nor did the holder of the office perform his functions
for the Government and, therefore, he could not be said to- hold an office
under the State Government. The question whether the office was an 'office
B of profit' was, however, left open for want of material on the record. The
Bench opined :-
"The office held by the respondent is held under a local authority.
The holding of an office of profit in it does not bring about a
disqualification even if that local authority be under the control of the
Government. The mere control of Government over the authority
c having the power to appo!nt, dismiss, or control the working of the
officer employed by such authority does not disqualify that officer
from being a candidate for election as a member of the Legislature.
Therefore, the control exercised by the Government over the Board in
this case does not make the Board an organ of the Government nor
D does it make the respondent a 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 conclusion that it i~ not an office of profit."
(Emphasis ours)
E
In Madhukar G. E. Pankakar v. Jaswant Chobbildas Rajani & Ors.,
( 1977) 1 sec 70, the name of the appellant. was included in the list of doctors
under the Employees State Insurance Scheme. He resigned from his job under
ESIS before the date of poll to the Municipal Election, but after the date of
F filing of nomination papers. In challenging his election, the defeated candidate
/
urged that as a doctor under the ESI Corporation, the appellant was holding
'an office of profit'. After a detailed analysis of various judgments and
statutory provisions, this Court held that appellant suffered no such
disqualification.
G The Court elaborately dealt with the issue of disqualification on the
ground of holding 'an office of profit' under the State/Central Government
and opined:
"Back to the issue of 'office of profit'. If the position of an insurance
medical officer is an 'office', it actually yields profit or at least probably
H may. In this very case the appellant was making sizeable income by
SHIBU SOREN v. DAY ANAND SAHAY [A.S. ANAND, CJ.] 1033
way of capitation fee from the medical services, rendered to insured A
employees. The crucial question then is whether this species of medical
., officers are holding 'office' and that 'under government'. There is a
haphazard heap of case-law about these expressions but they strike
different notes and our job is to orchestrate them in the setting of the
statute. After all, all law is a means to an end. What is the legislative B
end here in disqualifying holders of 'offices of profit under
government'? Obviously, to avoid a conflict between duty and interest,
to cut out the misuse of official position to advance private benefit
and to avert the likelihood of influencing government to promote
personal advantage. So this is the mischief to be suppressed. At the
same time we have to bear in mind that our Constitution mandates the C
State to undertake multiform public welfare and socio-economic
activities involving technical persons, welfare workers, and lay people
on a massive scale so that participatory government may prove a
progressive reality. In such an expanding situation, can we keep out
from elective posts at various levels many doctors, lawyers, enginee:rs
and scientists, not to speak of an army of other non-officials who are D
wanted in various fields, not as full-time government servants but as
part time participants in people's projects sponsored by governrne~t?
. For instance, if a National Legal Services Authority funded largely by
the State comes into being, a large segment of the legal profession
may be employed part time in the ennobling occupation of legal aid E
to the poor. Doctors, lawyers, engineers, scientists and other experts
may have to be invited into local bodies, legislatures and like political
and administrative organs based on election if these vital limbs of
representative government are not to be the monopoly of populist
politicians or lay members but sprinkled with technicians in an age
which belongs to technology. So, an interpretation of 'office of profit' F
to cast the net so wide that all our citizens with specialities and
knowhow are inhibited from entering elected organs of public
administration and offering semi-voluntary services in para-official,
statutory or like projects run or directed by Government or corporations
controlled by the State may be detrimental to democracy itself. Even G
athletes may hesitate to come into Sports Councils if some fee for
services is paid and that proves their funeral if elected to a pancha>'at.
A balanced view, even if it involves 'judicious irreverence' to vintage
precedents, is the wiser desideratum".
In Bihari/al Dobray v. Roshan Lal Dobray, [1984] l SCC 551, the Court
1034 SUPREME COURT REPORTS [200 I] 3 S.C.R.
A once again reiterated that a person, who is elected to a legislature should be
free to carry out his duties fearlessly 'without being subjected to any kind
of governmental pressure' and that Article 19l(l)(a) is intended to eliminate
the possibility of a conflict between duty and interest with a view to maintain
purity of the legislature and that relevant provisiqn has to be interpreted in
B a realistic manner only so to achieve that objective.
Ashok Kumar Bhattacharyya v. Ajoy Biswas, (1985] 2 SCR 50, was a
case concerning an employee of the Agartala Municipality holding the post
of an Assistant Accountant which carried a pay scale of Rs. 80-180 per
month. At the relevant time that employee was drawing a monthly salary of
C Rs. 200. The Bench opined:
"For determination of the question whether a person holds an office
· of profit under the Government each case must be measured and
judged in the light of the relevant provisions of the Act... To make in
all cases employees of local authorities subject to the control of
D Government and to treat them as holders of office of profit under the
Government would be to obliterate the specific differentiation made
under Article 58(2) and Article 102(l)(a) of the Constitution and to
extend the disqualification under Article 58(2) to one under Article
102(l)(a) to an extent not warranted by the language of the Article."
E The Bench approved the decision of the High Court holding that the
returned candidate in that case did not hold an 'office of profit' under the
Government of Tripura on the date of the filing of his nomination papers.
In Satrucharia Chandtasekher Raju v. Vyricherla Pradeep Kumar Dev,
[1992] Supp. I SCR 408, the appellant had been appointed as a Single Teacher
F in a primary school by the Project Officer of the Integrated Tribal Development
Agency (IIDA). The High Court held that the appellant was holding an
'office of profit' and· had, thus, incurred a disqualification envisaged by
Article 191 ( 1)(a) of the Constitution. Setting aside the order of the High Court,
and allowing the appeal it was held by this Court:
G
"What emerges from the. above discussion is that the Government has
some control over the ITDA which is set up as a project, since it
provides funds and sanctions the posts: the District Collector is
appointed as Project Officer and some officers are ex-officio members
of the .ITDA which carries out the object of providing the compulsory
H education in tribal areas. But the ITDA is a registered Society having
--- SHIBU SOREN v. DAY ANAND SAHA Y [A.S. ANAND, CJ.) 1035
its own constitution. Though the Project Officer is the District A
Collector, he acts as a different entity. The power to appoint or to
remove teachers is not with the Government but with the Project
Officer. The Government may have control over the appointing
authority but has no direct control over the teachers. The small post
that appellant holds in ITDA is only that of a Teacher who is directly
under the control of the Project Officer. In such a situation the question B
of any conflict between his duties and interests as an elected member
does not arise since it cannot be said that he, as a teacher, can be
subjected to any kind of pressure by the Government which has
neither the power to appoint him nor to remove him from service.
Taking a practical view of the substance of these factors into C
consideration, we are of the view that the appellant cannot be held
to be holding an office of profit under the Government...".
(emphasis supplied)
From a resume of precedents noticed above we find that in order to
attract disqualification contained in Article 102(1)(a), a person must not only D
be holding ''an office" but that office must be "an office of profit" and should
be "under the Government" and should be an office other than an office
declared by the competent legislature by law, not to disqualify its holder. The
first question which comes to the fore, therefore is as to when can a person
be said to be 'holding an office of profit' under the Government.
E
The expression "office of profit" has not been defined either in the
Constitution or in the Representation of People Act. In common parlance, the
expression 'profit' connotes an idea of some pecuniary gain. If there is really
some gain, its label - 'honorarium' - 'remuneration' - 'salary' is not material
- it is the substance and not the form which matters and even the quantum
or amount of "pecuniary gain" is not relevant - what needs to be found out
F
is whether the amount of money receivable by the concerned person in
connection with the office he h9lds, gives to him some "pecuniary gain",
other than as 'compensation' to defray his out of pocket expenses, '"hich may
have the possibility to bring that person under the influence of the executive,
which is conferring that benefit on him. G
With a view to determine whether the concerned office is an "office of
profit'', the Court must, however, take a realistic view. Taking a broad or
.., general view, ignoring essential details is not desirable nor is it permissible
to take a narrow view by which technicality may overtake reality. It is a rule
of interpretation of statutes that the statutory provisions are so construed as H
1036 SUPREME COURT REPORTS [2001] 3 S.C.R.
A to avoid absurdity and to further rather than defeat or frustrate the object of
the enactment. Courts, therefore, while construing a statute avoid strict
construction by construing the entire Act. (See with advantage Ashok Kumar '
Bhattdcharyya v. Ajoy Biswas and ors., (1985] 2 SCR 50; Tinsukhia Electric
Suppfx Co. Ltd. v. State ofAssam and ors., (1989] 3 SCC 709 and Commissioner
B of Income Tax, Bang~lore v. J.H. Got/a, Yadagiri, [1985] 4 SCC 343).
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 or the Central Government, at the relevant time. The
C ,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 bisket of tests"
must, therefore, guide the Courts to arrive at an appropriate conclusion. A
ban on candidature must have a substantial and reasonable nexus to the
.object sought to be achieved namely, elimination of or in any event reduction
D of possibility of misuse of the position which the concerned legislator holds
or had held at the relevant time. The principle for debarring holders of office
of profit under the Government from bei_ftg .a Member of Parliament is that
such person cannot exercise his functions independently of the executive of
which he becomes a part by receiving "pecuniary gain". Under Article 102(l)(a),
E of course, the 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 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.
F
When can a person be said to be holding an office of profit "under the
Government" came up for consideration by t~is Court in. Satrucharia
Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and another, [1992]
4 sec 404, and after examining a catena of authorities, it was opined :
G '
"On a careful examination of the ratio laid down in the above.mentioned
cases some of the tests or principles that ~merge for determining
whether a person holds an office of profit under the Government, may
be summarised thus :
(1) The power of the Government to appoint a person in office or
H to revoke his appointment at its discretion. The mere control of
r
SHIBU SOREN v. DAYAN AND SAHAY [A.S. ANAND, CJ.) 1037
the Government over the authority having the power to appoint, A
dismiss, or control the working of the officer employed by such
authority does not disqualify that officer from being a candidate
for election as a member of the Legislature.
(2) The payment from out of the Government revenues are important
factors in determining whether a person is holding an office of B
profit or not of the Government. Though payment from a source
other than the Government revenue is not always a decisive
factor.
(3) The incorporation of a body corporate and entrusting the
functions to it by the Government may suggest that the statute C
intended it to be a statutory corporation independent of the
Government. But it is not conclusive on the question whether
it is really so independent. Sometimes, the form may be that of
a body corporate independent of the Government, but in
substance, it may just be the alter ego of the Government itself.
(4) The true test of determination of the said question depends D
upon the degree of control the Government has over it, the.
extent of control exercised by very other bodies or committees,
and its composition, the degree of its dependence on the
Government for its financial needs and the functional aspect,
namely, whether the body is discharging any important E
Governmental function or just some function which is merely
optional from the point of view of the Government."
(Emphasis ours)
Thus, for determination of the core question, each case has to be
judged in the light of the relevant provisions of the statute and its own p
peculiar facts, keeping in view the object of enacting Article 102 (l)(a) and
19l(l)(a) namely that there should not be any conflict between duties and
interests of an elected member to ensure that the concerned legislature does
not contain persons who receive benefits from the Executive and may on that
account be under its obligation and, thus, amenable to its influence while
discharging their legislative functions. G
With a view to find out whether in the instant case, the appellant
suffered any disqualification as prescribed by Article 102(1)(a)(supra), it is
desirable to first notice some of the relevant provisions of Jharkhand Area
Autonomous Council Act, 1994 (hereinafter JAAC Act, 1994) and the
provisions under which the appellant was appointed as 'Chairman' of the H
1038 SUPREME COURT REPORTS [200 I] 3 S.C.R.
A 'Interim Council' of JAAC.
On the basis of certain discussions held on 28th April, 1993, a tripartite
agreement was drawn up on 26.9.1994. It was agreed that JAAC should be
set up to speed up the process of plenary development of the area to fulfil
the aspiration of the people of Chotta Nagpur and Santhal Pargana area.
B So far as the constitution of an interim Council is concerned, clause
(xix) of the Agreement provided:
"Till the aforesaid arrangements come into effect, State Government
may appoint a provisional general council comprising 50 percent from
MPs, MLAs, MLCs and 50 percent from amongst the Jharkhand
c Movement leaders. The State Government may also appoint an
Executive Committe~ drawn from among these members. Such
provisional Council/Committee shall· have life of not more than six
months."
The Chief Minister of Bihar, one of the signatories to the tripartite
D agreement; confirmed in the said agreement that the State Government would
"expedite and complete" various formalities to bring into existence JAAC and
with that end in view "introduce and seek approval of the Bihar Legislative
Assembly" to the revised Bill to deal with JAAC.
An Act to establish JAAC was thereafter enacted to provide for "plenary
E development of Tribai Area of Chhota Nagpur and Santhal Pargana" with a
view to fulfil ambitions of the people of the area. The JAAC Act, 1994 was
to come into force with effect from the date as the State Government may by
notification in the Official Gazette appoint. This Act incorporated the
substratum of clause (xix) of the Tripartite agreement (supra) also. We may,
R at this stage, take note of some of the relevant provisions of the Act. These
are:
"Definitions.- In this Act, unless there is anything repugnant 'in the
subject or context:-
(a) "Governor" means' the Governor of the State of .Bihar;
.
G (b) "The State Government" means the Government of Bihar;
,: (c) "Area" means the area specified in sub-section (2) of Section 1;
(d) "Council" means the Jharkhand Area Autonomous Council;
(e) "Member" means the members of the Jharkhand Area
H Autonomous <::ounc::il;
' ,/
SHIBU SOREN v. DA YANAND SAHA Y (A.S. ANAND, CJ.] 1039
(t) "The executive Council" means the executive Council constituted A
under Section 20 of the Act;
(g)
(h) "Act" means the Jharkhand Area Autonomous Council Act,
1994;
B
(i) "Rules" means the rule made by the State Government under
this Act;
(j) "Regulations" means the regulation made by the council under
this Act;
(k) "Bylaw" means the bylaw made by the Council under this Act; ... " C
"Section 3. The Constitution of Council.-( I) The State Government
shall establish an Autonomous Council for the area of the Council
which shall consist of not more than 162 directly elected members and
not more than 18 nominated members ..
D
(2) The Council shall be a body corporate which shall have a perpetual
succession and a common seal and right to acquire, hold and dispose
of movable and immovable property within and without the limits of
the Council Area and it may sue and be sued by the aforesaid name."
"Section 6. Disqualifications for the membership.- (I) a person shall E
be disqualified for being chosen and for being a member of the
Council if-
(a) he holds any office of profit under the Government oflndia, any
State Government, a local body and corporation, Board or
Authority, Co-operative Society, a company established under F
the Company Act, 1956 (Central Act 1 of 1956) in which more
than 25 per cent has been contributed in the share capital by any
Government or Governments, other than an office declared by
the Legislature of the State by law not to disqualify its holder;
*** *** *** G
(2) If he is or has been elected as a member of parliament or a
member of Legislature or the Chairman of the District Board or
... the Pramukh of the Panchayat Samiti or the Mayor of Municipal
Corporation or the Chairman of the Municipality and is elected
as a member of Council and has not subm~tted resignation from H
·-------
L
1040 SUPREME COURT REPORTS [2001] 3 S.C.R.
A the membership of the Parliament or Legislature or from the post
held in the District Board or Panchayat Samiti or Corporation or
Municipality within 21 days, he shall cease to be the member of
the Council."
"11. Duration of the Council.-The Council, if not dissolved earlier
B llt!-der section 12 shall continue for five years from the date appointed
for its first meeting, and no longer and on the expiration of the said
period the Council shall stand dissolved."
"12. Dissolution of the Council.-(.1) The Governor, after providing a
reasonable opportunity ofbemg heard, may, in his discretion, dissolve
c· the Council, if he is satisfied that the Cowiyil is unable to perfo1m its
functions or is functioning in such a manner that it may not be able
to achieve its objectives.
(2) On dissolution of the Council, under ;sub-section
I
(1) the new
Council shall be constitrited within six mon1lhs from such dissolution:
D
Provided that the said period may be extended for six months by
the Governor if circuinstances exist from which he is satisfied that it
is impracticable to hold election with~ the said period.
(3) In case of dissolution, the Governor shall appoint an officer not
E below the rank df Additional Secretary-to the Government of India to
exercise all the powers and to perform all the duties of the council."
"13. Nomination of the members to the Council.-(1) The members
shall be nominated to the Council in the following manner:-
(a) . Maximum 8 members of the Legislative Assembly representing
F
their Legislative Assembly Constituencies of the Area shall be
nominated by the Speaker, Bihar Legislative Assembly;
(b) Maximum two members of the Parliament representing their Lok
Sabha Constituencies wholly or mostly of the Area shall be
nominated by the State Government;
G
(c) Maximum 8 persons ~aving experience of ?ublic works, urban
works, rural development on socfal welfare works and who are
inhabitan~s of the Area, shall be nominated by the State
Government. · .
H (2) the nomination of the members under clauses (a) and (b) of sub-
SHIBU SOREN v. DAY ANAND SAHA Y [A.S. ANAND, CJ.] 1041
section (I) shall be for two years or till the duration of the Council, A
whichever is earlier:
..,
Provided that on cessation of membership of Legislative Assembly
or_ Lok Sabha before expiry of the period of nomination, his membership
of the Council shall automatically cease with effect from the date of
cessation as member of Legislative Assembly of Lok Sabha as the B
case may be.
(3) The nomination of members under Clause ( c) of sub-section ( 1)
may be upto the duration of the Council:
Provided that they shall not have the right to vote. c
(4) The members of the Council may be re-nominated."
"15. The Chairman of the Counci/.-(1) The Council shall have a
Chairman who shall be a member of the Scheduled Tribes.
(2) The Chairman shall be elected by the elected members of the D
Council from amongst them.
(3) The State Government may nominate any elected member as
Presiding Officer for the election of the Chairman who may determine
the procedure for election."
"17.Vacancy, resignation and removal from the office of Chairman. - E
The member holding the office of the Chairman of the Council.
(a) if ceases to be an elected.member of the Council, he shall vacate
his office;
(b) may tender his resignation in writing under his hand addressed F
to the Vice-Chairman at ay time; and
(c) may be removed from his office by a resolution passed by the
majority of the elected members of the Council at that time:
Provided that no resolution for the purpose of clause (c) shall be
proposed until a prior notice of at least fourteen days intending to G
move the proposed resolution is given."
"23. Constitution of Interim Council and Interim Executive Council.-
( l) The State Government before constitution of the Council under
Section 3, may constitute an Interim Council. H
1042 SUPREME COURT REPORTS [2001] 3 S.C.R.
A (2) The State Government shall nominate 50 per cent members of the
Interim Council out of its total membership from the members of the
Lok Sabha and the Legislative Assembly representing the constituency
which lies wholly or mostly in the Area and from the members of the
Rajya Sabha and Legislative Council, who are the inhaoita,nts of the
Area and the remaining 50 per cent members shall be nominated from
B amongst the persons who are illhabitants of the Area and ha~
interest in its development. '.,
(3) The State Government shall nominate the Chairman and the Vice-
Chairman of the Interim Council.
C Provided that the member of the Scheduled Tribes can only be
nominated as the Chairman.
(4) The State Government shall constitute an Interim Executive Council
from amongst the members of the Interim Council.
D (5) The Chairman and the Vice-Chairman of the Interim Council shall
be Ex-Officio Chief Executive Councillor and Vice-Chief Executive
Councillor
(6) The duration of the Interim Council and the Interim Executive
Council shall be for 6 (revised to 18) months or till the constitution
E of the Council under S(:ction 3 whichever is earlier.
(7) The Chairman and the Vice-Chairman of the Interim Council and
the .members of tpe Interim Executive Council shall hold their office
during the pleasure of the State Government.",
p "26. Honorarium and Allowances to the Chairman, Vice-Chairman
and Members.-(1) Honorarium worth Rs. 1,750, Rs. 1,250 and Rs.
1,000 per month shall be payable to the Chairman, Vice-Chairman and
the Members of the Executive Council respectively.
(2) Save as undei; clause (1), honorarium of Rs. 750 per month shall
G be payable to the remaining members.
(3) The Chairman, the Vice-Chairman and the members of the Executive
Committee shall be paid daily allowance at the rate of Rs.150 per day
for the period spent outside the head-quarters for the work of Council
and other members shall be paid daily allowance at the rate of Rs.125
H per day for taking part in the meetings of the Council.
(
.
SHJBU SOREN v. DAY ANAND SA HAY (A.S. ANAND, CJ.]
'
1043
(4) On a tour undertaken by the Chairman, the Vice-Chairman and the A
Members of the Executive Council for the works of the Council and
by the members of the Council to attend the meeting of the Couilcil,
a first class or Air-conditioned 2 tier railway fare whl~h has actually
been paid, shall be payable:
Provided that on journey by air undertakl!n for the works of the B
· . Council by the C!Jairrnan and the Vice-Chairman, the fare actually paid,
shall be.payable.", .
. "29. Pow~rs and Function of the Council.-(!) The Council shall
·hav~ the following powers and functions relating to the·d~velopment
of the Area:- C
(a)· to prepare long-term and short terms plans for all-round
development of the Area;
(b) to _consider the preparation and execution of projects relating to
. development _of the Area; .. . .
.t D
(c) . to formu,Iate the,pr~ects relating to the Area;
(d) to Co-ordinate; supervise and review the projects of the Area;
(e) to suggest mea~ures for acceierated development of the Area.
'. (2) The Council may ply passenger bus services in the Area. E
(3) Subject to the general guidelines of the state Govemn:ient, the
Council shall have the following powers and functions on th~ subjects
, .·, specified in Schedule 3-
(a) · to fix prioritY ~d prepare pla;,. for develop,;,ent progr~es; 'p
(b) to formulate_projects;
(c) to sanction projects;
· (d) · to get projects executed; .. ••
.• , j • • - ( . --
Je) tci s~nction Central PI'.'."5 refating the ,\re• and to get it executed; G.
·· (I). to review, supervise, co-ordinate and monitor the projects."
.. . "30. Supervisory powers· and functions of the Council.-( I) The
Council shltll have such supervisory powers and functions with respect
to. non-developmental 'and regulatory subjects specified in schedule
•,',,
· 3 as may be prescribed, for public purposes, by the State Government H
1044 SUPREME COURT REPORTS [2001] 3 S.C.R.
A in consultation with the· Council.
(2) The Council in its area, may supervise Municipal Corporations, \"
Municipalities, Notified Area Committees, District Boards, Panchayat
Samities and Gram Panchayats."
B "34. Financial powers of the Council.- ....... .
(6) The Council may utilize the fund for payment of pay and
allowances of the Chairman, Vice Chairman, Members of the Council,
Officers and Staff of the Council Office and on Office expenditure and
the development programmes of the area including grant to the District
c boards for different development plans."
"36. The powers and Functions of Interim Council and Interim
' '
Executive Council.-Unless the context otherwise requires or is not
relevant or specially otherwise provided; the provisions relating to
the Council and the Executive Council, shall be deemed to apply to
D the Interim Council and Interim Executive Council as the case may be.
"42. Direction by the State Government.-The Council in the discharge
of its functions, shall be guided by such direction on policy matters
as may be given to ~t from time to time by the State Government."
E Learned counsel for the parties appearing before us did not dispute that
the appellant by virtue of his nomination as Chairman of interim JAA Council
by the State Government held 'an office', which existed independently of its
holder. However, they were seriously at variance as to whether the office held
by the appellant could be said to be "an office of profit" as also whether it
could be said that the office of Chaipn~ of interim Council is. "an office under
F !_he State Government". We shall separately consider the issue whether the
concerned office had been declared by the competent legislature as not to
disqualify its holder.
The question whether a person holds an office of profit, as already
.G noticed, is required to be interpreted in a realistic manner having regard to
the facts and circumstances of each case and relevant 'statutory provisions.
While 'a strict and narrow construction' may not be adopted which may have
the effect of 'shutting off many prominent iind other eligible persons to
contest the elections' but at the same time "in dealing with a statutory
provision which imposes a disqualification on a citizen it would be
H unreasonable to take merely a broad and gene:.ral view and ignore the essential
SHIBU SOREN v. DAY ANAND SAHA Y [A.S. ANAND, CJ.] 1045
points". The approach which appeals to us to interpret the expression "office A
·"'of profit" is that it should be interpreted with the flavour of reaiity bearing
in mind the object for enactment of Article I02{l)(a) namely to eliminate or
in any event to reduce the risk of conflict between the duty and interest
amongst members of the legislature by ensuring that the legislature does not
have persons who receive benefits from the Executive and may thus be B
amenable to its influence.
Now to some factual matrix in the present case.
The appellant was admittedly holding an office of Chairman of the
... Interim JAA Council when he filed his nomination paper for election to Rajya
Sabha. He belonged to the Scheduled Tribes and had been nominated as C
Chairman of the Interim JAA Council, by the State Government. He held his
office 'at the pleasure' of the State Government. Appellant has also admitted
in his statement in the High Court that as Chaimrnn of the Interim Council he
was receiving:
(I) An honorarium of Rs. 1750 per month; D
(2) Daily allowance at the rate of Rs. 150 per day for the period
spent outside the headquarter besides travelling expenses as
prescribed;
(3) Daily allowance at the rate of Rs. 120 per day for attending E
meetings of the interim council;
(4) Furnished rent free accommodation (quarters) and
(5) A car with Driver
That receipt of daily allowance at the rate of Rs. 150 per day for the period F
spent outside his headquarters and Rs. 120 per day for attending meetings
of the Interim JAA Council by the appellant, is in its very nature only
compensatory allowance, intended to meet out of pocket expenses,, was not
disputed by learned counsel for the parties either in the High Court or even
before us and in our opinion rightly so. The serious controversy, however,
revolves around the nature of payment of Rs. I, 750 per month as "honorarium" G
to the appellant as also whether the 'office' held by the Chairman of the
Interim JAA Council was an "office under the State Government".
Does the receipt of "honorarium" at the rate of Rs. I, 750 per month by
the appellant, besides other allowances and perquisites, amount to causing
any "pecuniary gains" to the appellant? H
1046 SUPREME COURT REPORTS [2001] 3 S.C.R.
A Mr. Rao, learned senior counsel appearing for the appellant is right in
his submission that payment of 'honorarium' may not by itself imply payment
of any pay, salary, remuneration or emoluments to the appellant. Indeed,
"honorarium" is a concept different than salary or remuneration and its
payment cannot constitute an "office of profit" unless there is some 'pecuniary
B gain' for the recipient. However, for what follows we are unable to agree with
him that the payment of honorarium, in the established facts and circumstances
of the case, did not amount to giving 'pecuniary gains' or 'profits' to the
appellant.
The word 'profit' for the purpose of Article 102(l)(a) or Article 191
C "connotes an idea of pecuniary gain", though neither the label under which
it is paid nor the quantum of the amount may always be material to determine
the issue. In the instant case, the appellant on his own admission was to
receive Rs. 150 per day as allowance for performing work of the interim
Council outside the headquarters and Rs. 120 per day for the days of sitting
of the Council. These amounts, in our opinion, were intended to meet out of
D pocket expenses of the appellant and were in the nature o~ compensatory
allowances and were not a source of profit. Payment of Rs. I, 750 per month
as. honorarium was in addition to the aforesaid allowances. In Karbhari
Bhimaji Rohamare 's case (supra) this Court opined that a person receiving
an honorarium of Rs. 25 per day besides travelling and daily allowances could
E not be said to be making any pecuniary gain nor could it become a 'source
of profit' for the concerned person, unless he stays "with some friends or
relatives or stays in a dharamshala ... " Indeed, those observations were made
taking a realistic view of the matter based on the fact situation in that case.
In the present case, besides the receipt of daily allowances and. honorarium,
the appellant had, as admitted by him, also 'been provided with rent free
F accommodation besides a car with a driver at State expense. Keeping in view
these facilities, the payment of an additional amount of Rs. 1,750 per mon~
as an honorarium was, under the circumstances, clearly in the nature of
giving some pecuniary gain to the appellant and was not intended to
compensate the appellant for his out of pocket expenses. In various· precedents
G relied upon by learned counsel for the parties before us and referred to by
us in an earlier part of this judgment, the element of providing rent free
accommodation and a chauffeur driven car at the State expense in addition
to "honorarium" and other allowances to the concerned person was not
involved. These are relevant factors.. The grant of honorarium of Rs. 1750 per
month besides other perquisites, granted by the State Government to its own
H nominee, in addition to the payment of daily allowances, to meet out of
SHIBU SOREN v. DA YANAND SAHA Y [A.S. ANAND, CJ.] 1047
pocket expenses, does bring in an element of granting 'profits' to the appellant. A
He certainly can be said to have made pecuniary gain out of the payment of
honorarium of Rs. 1,750 per month. It is not possible to construe the payment
of Rs. 1750 per month, to be payment in the nature of "compensatory
allowance". While construing the true nature of "honorarium", the grant of
other perquisites cannot be overlooked or ign~red. The 'honorarium' receivable B
by the appellant at the rate of Rs. 1, 750 per month, besides other 'allowances'
and 'perquisites' was surely not in the nature of gratuitous payment, voluntary
donation or compensation to meet any out of pocket expenses. It was in the
nature of 'remuneration' and was a source of 'pecuniary gain'. The receipt
of honorarium at the rate of Rs. I, 750 per month, besides daily allowances,
rent free accommodation and a chauffeur driven car at the State expense, to C
the appellant was a benefit capable of bringing about a conflict between the
duty and interest of the appellant as a member of Par) iament - the precise vice
to which Article 102(1 )(a) is attracted.
We are, therefore, in the established facts and circumstances of the
case, in agreement with the High Court that the appellant, as Chairman of the D
Interim JAA Council was in receipt of pecuniary gain in the form of honorarium
and he, thus, held an "office of profit". This now takes us to the next
question.
Did the appellant hold this 'office of profit' as Chairman of Interim JAA . E
Council "under the State"?
The term 'Interim Council' has not been defined under the JAAC Act
though provision for its constitution, based on clause (xix) of the Tripartite
Agreement has been made in Section 23 of the Act. The JAAC Act essentially
deals with setting up of a regular council its composition, jurisdiction and F
status etc. so as to replace Chotta Nagpur and Santhal Pargana Development
Authority, with a view to ensure accelerated plenary development of the area
through elected representatives (see: objects and reasons of JAAC Act). As
already noticed paragraph (xix) of the Tripartite Agreement dated 26.9.1994
(supra), provided for appointment of a provisional general council by the G
State Government lo act as a body to facilitate setting up of a Regular council
under the JAAC Act. This provisional council was, obviously, to act as a limb
or agency of the State Government, charged with the specific task of facilitating
the setting up of a Regular Council under the JAAC Act. Vide sub-section
(2) of Section 23, it is the State Government which alone shall nominate 50
percent members of the interim council out of its total membership from the H
1048 SUPREME COURT REPORTS [2001] 3 S.C.R.
A members of Lok Sabha and the Legislative Assembly representing the
constituency which lies wholly or mostly in the Area and from the members
of Rajya Sabha and Legislative Council who are inhabitants of the area.
Remaining 50 per cent members were also to be nominated by the State
Government from amongst persons who are inhabitants of the area and have
B an interest in its development. Thus, we find that an Interim JAA Council
contemplated by JAAC Act was to consist only of nominees appointed by
the State Government, who were to hold their office 'at the pleasure of the
State Government' [Section 23(7)). No element of election is involved in the
Constitution of Interim Council at all. The obligation to set up the Regular
Council, as per the tripartite agreement and confirmation made by Chief
C Minister of Bihar, was that of the State Government. The State Government
could discharge that function through any of its agencies or departments.
The State Government, proposed the Constitution of an Interim Council to
discharge its obligations and provided for its composition as well as the
manner of appointment and their continuance in office of the members under
Section 23(2) of the JAAC Act. Section 23(3) of the Act provided that the
D State Government shall nominate the Chairman and Vice-Chairman of the
Interim-Council with a rider that only a member of the Scheduled Tribes could
be so nominated. The Chairman and members were to hold office "at the
pleasure of the State". Thus, the power and jurisdiction to app.Q!!it (nominate)
or remove Chairman of the Interim JAA Council, .is vested exclusively in the
E State Government. Vide Section 23(4) of the Act, the State Government has
the exclusive jurisdiction to constitute an Interim Executive Council from
amongst its nominees of the Interim JAA Council. The members of the Interim
Executive Council are also to hold their office during the pleasure of the State
Government. The disqualifications for membership of the regular council, as
envisaged under the JAAC Act, are not attracted to membership of the
F Interim Council. Because whereas Section 6(2) of JAAC Act disqualifies a
Member of Parliament as well as a member of the State Legislature, and ·
members of other specified bodies, to be a member of the council, unless he
resigns from membership of the legislature or the local body, as the case may
be, within 21 days of his election there is no such requirement in the case
G of interim Council. The provision of Section 6(2) is in contra-distinction to the
provisions of Section 23(2) of the Act, which mandates the State Government
shall nominate 50 per cent of the total membership of the interim council from
vut of the members of Parliament or the State Legislature only. The JAAC Act,
therefore, itself drew a clear distinction between status of the interim JAA •
Council and the Regular Council, both in the matter of appointment as well
H as of removal of members including Chairman and Vice-Chairman as also for
SHJBU SOREN v. DA YANAND SAHAY [A.S. ANAND, CJ.] 1049
disqualifications referred to in Section 6 in so far as the members of the A
Regular Council are concerned. Our critical analysis of the provisions of
JAAC Act shows that the Interim JAA Council, a body comprising exclusively
of Government appointees, holding their office at its pleasure, was created
to act as a limb or agency of the Government to facilitate smooth creation of
Regular Council under the JAAC Act. Section 23(6) of the Act provides that B
duration of the Interim Council was to be for a period of six months
(subsequently extended to 18 months), subject to the Constitution of the
regular Council under Section 3, whichever is earlier. This limited life span of
the interim Council stands to reason when we consider the composition, the
manner of appointment and the job entrusted to the Interim Council. The State
Government not only had the exclusive jurisdiction to appoint (nominate) the C
Chairman of Interim JAA Council but also power to remove him since under
Section 23(7) of the JAAC Act, the Chairman and Vice-Chairman of the Interim
JAA Council, as well as members of the Interim Executive Council, "shall hold
their office during the pleasure of the State Government". On the other hand,
the Chairman and members of Regular Council are governed inter alia by
Sections 3, 6, 11, 12 and 17 of the Act in the matter of appointment and D
removal. The State Government has no role to play either in the appointment
of Chairman of the Regular Council or in his removal. W~ are unable to
persuade ourselves to agree with Mr. Rao that the distinction gets almost
obliterated by Sections 36 or 42 of the Act.
E
Section 36 of the Act deals with the powers and functions of Interim
JAA Council and Interim Executive Council and commences with the expression
"unless the context otherwise requires or is not relevant or specifically
otherwise provided', the provisions relating to Regular Council and the
Regular Executive Council shall be "deemed' to apply to the Interim Council
or the Executive Council. This provision cannot affect the potency of Section F
23(3) and (7) of the Act which specifically provides for the manner of
appointment of the Chairman etc. of Interim Council as well as with continuation
in office of the Chairman and members of Interim Council "at the pleasure of
the State Government" only. Again, Section 17 of the Act which deals with
"vacancy, resignation and removal" of the Chairman of Regular Council, has G
no application to the nominated Chairman of Interim Council, who holds
office at the pleasure of the State Government under the specific provision
of Section 23(7) of the Act. These provisions indicate that the legislature
while enacting JAAC Act did not consider Chairman of Interim JAA Council
to be 'at par' with the Chairman of regular Council. Moreover, directions
which can be given to the regular Council by the State Government have a H
1050 SUPREME COURT REPORTS [2001) 3 S.C.R.
A limited scope within the meaning of Section 42 of the Act, but the same is
not true of directions which can be given to the Inte~im JAA Council.
J?le appellant was nominated (appointed) as Chairman of the Interim
Council by the State Government by virtue of powers vested in it under
Section 23 of the Act. He was to hold the office Of the Chairman of Interim
B Council "at the pleasure of the State Government" vide Section 23(7) of the
Act. Thus, not only was the appellant appointed (nominated) by the State
_Government, it was the State Government which had the right to remove or
· dismiss the holder of that office besides controlling the manner of functioning
of the Interim Council and providing funds for the interim JAA Council out
C of which honorarium of Rs. 1, 750 per month was paid to the appellant. It
follows that various tests laid down by this Court to determine whether the
appellant was holding an office 'under the State Government' including the
decisive test of the power of Government to appoint the person in office as
well as revoke his appointment at its discretion and be responsible for the
expenses, are fully satisfii:~d in the case onhe appellant [see Shivamurthy
D Swami lnamdar's case (1971) as also Guru Gobind Basu v. Shankar Prasad
Ghosa/, AIR 1964 SC 254, with advantage] and, therefore, we hold that the
appellant was holding his office under the State Government.
Since, we have already found that the honorarium of Rs. l,750 paid to
the appellant as Chairman of Interim Council, besides other daily allowances
E and perquisites of rent free accommodation and car with a driver, could not
be said to be in the nature of 'compensatory allowances' and was in the
nature of remuneration or salary, inherently implying an element of "profit"
and of giving 'pecuniary gain' to the appellant, it follows that the appellant
was holding an office of profit under the State Government.
F We must at this stage point out that the facts situation in Surya Kant
Roy's case (supra) as well as the fact situation in Mau/ana Abdul Shakur 's
case (supra) were entirely different. Indeed the concerned person in those
cases held office in a statutory body, but it was found on facts of those cases
that neither he was appointed by the Government nor was he removable by
G the Government and also that he did not perform any function "for the
Government" and that he was not receiving any remuneration from the
Government either. In Shivamurthy Swami's case (supra) also _the essential
tests as to whether the Government paid the remuneration and whether the
concerned person performed his functions for the Government as also the
right of the Government to appoint and remove him were found missing. In
H the instant case the position is entirely different. Till a regular Council was
SHIBU SOREN v. DA YANAND SAHA Y [A.S. ANAND, CJ.] 1051
set up, the funds were provided for by the Government. As already noticed, A
task assigned to the interim Council was a task which it was performing for
the Government to facilitate the setting up of the regular Council. The
Government, and 'not any statutory body, had the right to nominate (appoint)
the interim JAA Council and its Chairman; members of the interim JAA
Council, including the Chairman held their offices "at the pleasure of the B
Government" which also controlled the functions of the interim Council.
Those judgments, therefore, are clearly distinguishable and cannot come to
the aid of the appellant to hold that in the established facts and circumstances
of this case, he did not hold an office of profit under the State Government.
Apparently, faced with this fact situation, the appellant took the plea, C
in his additional written statement, and it was canvassed before us as also
in the High Court, that even if the office held by him as Chairman of the
Interim Council was to be construed as an "office of profit under the State
Government'', the disqualification provided for under Article 102(1)(a) stood
removed by Parliament (Prevention of Disqualification) Act, 1959, since as
Chairman of Interim Council, he enjoyed the 'status' of a Minister. The D
argument was Tightly repelled by the High Court observing that nowhere in
the JAAC Act is it provided that the Chairman of the Interim JAA Council
would enjoy the status of a Minister.
We have no quarrel with the proposition that holding an office of profit E
under the Government of India or under the Government of any State would
be a disqualification only if that office is not declared by the Parliament by
law not to disqualify its holder. In exercise of this power, the Parliament under
Article 102 of the Constitution has exempted some offices from operation of
the disqualification and similarly under Article 191, State Legislatures have
passed several enactments exempting some offices from operation of this F
disqualification. Therefore, before holding a person disqualified, it will have
to be seen whether that office is not exempted by the comvetent Legislature
from operation of the disqualification clause. Articles 102 and 191 both, by
explanation, have clarified that a person shall not be deemed to hold an office
of profit under Government of India or the Government of any State specified G
in the First Schedule by reason only that he is a Minister - either for the Union
or any State. Thus, the disqualification, in the case of the appellant, could
only be removed by the Parliament, since the membership of Rajya Sabha was
in issue, within the meaning of Article 102(1)(a). No such disqualification was
removed by the Parliament as the JAAC Act has not been included in the
Schedule to the 1959 Act. The State Legislature is not competent to remove H
1052 SUPREME COURT REPORTS [200 I] 3 S.C.R.
A any disqualification in respect of a member of Parliament. Even if it be
assumed, though there is no basis or material to ·so assume, that the State
Legislature_ or Government had, by implication removed the disqualification
by granting "deemed" status of a Minister to the appellant, it had no jurisdiction
to remove the disqualification from which the appellant was suffering, because
it is Membership of the Rajya Sabha and not of State Legislature which was
B in issue. The judgment of the Constitution Bench in Kanta Kathuria 's case
(supra) cannot come to the aid of the appellant because what was upheld in
that case was the jurisdiction of the State Legislature to remove disqualification
in respect of a member of the State Legislature and not in respect of a member
of the Parliament. The office of Chairman of Interim JAA Council, as already
C noticed, has not been exempted under the Parliament (Prevention of
Disqualification) Act, 1959 and as such the disqualification contained in
Article l 02(1 )(a) is squarely attracted to the facts of the present case. The
appellant was, thus, rightly held to have been holding 'an office of profit
under the State Government' at the relevant time and, thus, was disqualified
to be a member of Raj ya Sabha. The High Court was justified in setting aside
D· his election and we are not persuaded to take a contrary view either.
The learned designated Judge of the High Court after setting aside
election of the appellant, declared respondent No.l, Shri Dayanand Sahay to
be duly elected to Rajya Sabha relying upon the law laid down in Vishwanath
E Reddy v. Konappa Rudrappa Nadouda, AIR (1969) SC 604. The correctness
of that view of the High Court was not disputed before -us.
We, accordingly, also uphold the declaration made by the High Court
in favour of respondent No. I.
Thus, this appeal fails. and is hereby dismissed. The parties shall,
F
however, ~ear their own costs insofar as this appeal is concerned.
B.S. Appeal dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "office of profit"Sign in to search