http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  3578 of 2005

PETITIONER: Dayanand Rayu Mandrekar

RESPONDENT: Chandrakant Uttam Chodankar & Ors

DATE OF JUDGMENT: 18/01/2007

BENCH: K.G. BALAKRISHNAN , DALVEER BHANDARI & D.K. JAIN

JUDGMENT: JUDGMENT

O R D E R CIVIL APPEAL NO. 3578 OF 2005 With Civil Appeal No. 3579/2005

       The appellants, in these two appeals, challenge the  judgment in the Election Petition nos. 1 and 2 of 2002.  In both  these cases a common questions of law had arisen and, therefore,  we heard the matter together and are disposing these appeals by  way of a common order.  The appellant in C.A. No. 3578/05 was  elected to the Legislative Assembly of State of Goa from Siolim  constitutency in the election held on 30.5.2002, whereas the  appellant in C.A. No. 3579/05 was elected from Vasco-da-gama  Assembly constitutency of the State Legislature.  The election  petitions were preferred by two unsuccessful candidates in the  elections alleging that these two appellants were holding ’office of  profit’ at the time when they contested the elections and, therefore,  they were ineligible to be elected to the legislature.  At the time of  filing their nominations, the appellant in C.A. No. 3578/05 was the  Chairman of the Goa Khadi and Village Industries Board of the  State of Goa, whereas the appellant in C.A. No. 3579/05 was the  Chairman of the Goa State Scheduled Castes and Other  Backward Classes Finance & Development Corporation Ltd. of the  State of Goa.  The appellants in these two cases contended before  the High Court that they were not holding an ’office of profit’ and  were not receiving any salary or allowances for the said post they  held and by virtue of the provision contained in the Goa, Daman  and Diu Members of Legislative Assembly [Removal of  Disqualifications] Act, 1982 (for short ’the 1982 Act’), the  disqualification, if any, was removed especially by clause (9) of the  Schedule.  The pleas set-up by the appellants were rejected and  the High Court held that these appellants were holding the ’office  of profit’ and that they were not entitled to contest the election as  they were disqualified and the election petitions were allowed and  elections of appellants were set aside.

       We have heard the counsel for the appellants and counsel  for the respondents.

       It is not disputed that the appellants were holding the office  as alleged in the election petition, but contended that they were not  receiving any salary or allowances and were only receiving some  perquisites.  It is not disputed that these two appellants, by virtue  of their office, enjoyed the privilege of a chauffeur driven car with  unrestricted use of petrol.  The appellants were also given the  services of a PA, a clerk and a Peon and they were  provided with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

a residential telephone with unrestricted number of calls.  They  were also provided with a mobile telephone and newspapers were  supplied at their residences and the expenses were paid from the  funds of the office.

       Under Rule 7 of the Goa, Daman and Diu Khadi and Village  Industries Board Rules, 1967 (for short ’the 1967 Rules’), "The  Chairman, the Vice-Chairman and other members of the Board  shall be paid such salary or honorarium and allowances from the  funds of the Boards as the Government may from time to time fix."   The appellant in C.A. No. 3578/05 was not receiving any salary or  honorarium as, according to him, the government had not fixed  any such salary or honorarium.  The question that arises for  consideration is whether the appellants could seek the benefit of  the 1982 Act.  By virtue of clause (9) of the Schedule, the appellant  contended, that the office of Chairman/Director or member of the  statutory or non-statutory Board are exempted from any  disqualification but the proviso to clause (9) of the Schedule makes  if further clear that this disqualification is circumscribed by a further  limitation.

       Clause 9 of the Schedule reads as follows :

"9.     The office of Chairman, Director or member of a  statutory or non-statutory body or committee or  corporation constituted by the Government of Goa,  Daman and Diu :

Provided that the Chairman, Director or Member of  any of the aforesaid committees or bodies or  corporations is not entitled to any remuneration other  than compensatory allowance."

       An explanation was also added to clause (9).  The same  reads thus:

"Explanation \026 For the purpose of the aforesaid  entries -

"Compensatory allowance" means any sum of money  payable to the holder of an office by way of daily  allowance [such allowance not exceeding the amount  of daily allowance to which a member of the  Legislative Assembly is entitled under the Goa,  Daman and Diu Salary, Allowances and Pension of  the Members of the Legislative Assembly Act, 1964 (2  of 1965)], any conveyance allowance, house rent  allowance or traveling allowance for the purpose of  enabling him to recoup any expenditure incurred by  him in performing the functions of that office".

       The proviso makes it abundantly clear that the compensatory  allowance would only mean ’any expense which is incurred by the  holder of the office in discharge of his official function to be  compensated by claim’ and if any other sum of money or other  perquisites are made to the holder of office as compensatory  allowance, he would not get the benefit of clause (9) of the  Schedule which was added.  In the instant cases, the appellants  were certainly in receipt of variety of perquisites which cannot be  said to be given to them by way of compensatory allowance.  The  mobile phone, telephone and the chauffeur driven car were all  permitted to be used for unlimited purposes and they were not  restricted to official purposes.  Moreover, Rule 7 of the 1967 Rules

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

specifically states that the Chairman, Vice-Chairman and other  members of the Board shall be paid such salary or other  honorarium and allowances from the funds of the Boards as the  Government may from time to time fix.  The appellants were  entitled to get salary or honorarium by virtue of this rule.  The mere  fact that they had not received or they had not opted to get this  salary or honorarium is immaterial.  By virtue of the said rule, they  are entitled to get salary or honorarium and that, by itself, would  show that they were not entitled to get the benefit of the Schedule  of the 1982 Act.

       The respondents in these two cases had raised a contention  that the 1982 Act itself was not applicable to the State of Goa,  Daman and Diu as the same was not adopted by the State  Legislature.  The respondents had contended that in the absence  of adoption under Section 57 of the Goa State Re-organisation  Act, 1987, the 1982 Act had no application to the State of Goa,  Daman and Diu.  This plea was accepted by the learned Single  Judge of the High Court.  The respondents in these cases  contended that the finding of the learned Single Judge in this  regard is not correct.

       In this case, the appellants herein contended that Article  239A of the Constitution provided for creation of local legislatures  or council of ministers or both for certain Union Territories and the  Parliament enacted the Government Territories Act, 1963.  As per  Section 3 of the Act of 1963, the Legislative Assembly of the Union  Territory of Goa, Daman and Diu came into existence and sub- Section (1) of Section 14 of the Act of 1963 provided that a person  shall be disqualified for being chosen as, and for being a Member  of the Legislative Assembly of the Union Territory, inter alia, if he  holds any office of profit under the Government of India, or the  Government of any State, or the Government of the Union  Territory, other than the office declared by law made by  Parliament, or the Legislative Assembly of the Union Territory, not  to disqualify its holder, i.e., the Legislative Assembly of the Union  Territory of Goa, Daman and Diu.  The Act passed in 1982  provided for removal of certain disqualifications for being chosen  and for being a member of the Legislative Assembly of Goa,  Daman and Diu.  That Act was passed under Section 14(1) of the  Act of 1963.

       The respondent had contended that when Union Territory of  Goa, Daman and Diu became a State, the Assembly of the State  of Goa had not passed any law nor had adopted the 1982 Act  which was in force.  The appellants contended that as per Section  66 of the Goa, Daman and Diu Reorganization Act, 1987, the Act  of 1982 continues to be in force but this plea was rejected by the  learned Single Judge.

       We have examined the claim of the appellants in the light of  the 1982 Act and hold that the appellants are not entitled to get the  protection of the Act.  Therefore, whether this Act was adopted by  the State Assembly of Goa or not, need not be considered at this  stage and we leave open the question to be considered in other  appropriate cases.

       We find no merit in these appeals and the appeals are  dismissed accordingly.