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PETITIONER: M. RAMAPPA

       Vs.

RESPONDENT: SANGAPPA AND OTHERS

DATE OF JUDGMENT: 21/08/1958

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B.

CITATION:  1958 AIR  937            1959 SCR 1167

ACT:        Election Dispute-Disqualification for being chosen as member        of  State Assembly-Hereditary village office-Whether  office        of  Profit under the Government-Mysore Village Offices  Act,        1908  (Mysore 4 of 1908), ss. 6, 7, 8-Representation of  the        People  Act, 1951 (43 of 1951) s. 100(1)(c)-Constitution  of        India, Art. 191.

HEADNOTE: The  nomination papers of three candidates for  election  as members of the State Assembly were rejected by the Returning 1168 Officer on the ground that the first two of them were Patels and  the  third, a Shanbhog, of their villages and  as  such they were holders of offices of profit under the  Government and consequentlydisqualified  from  membership  of   the State Assembly underArt.  191  of the  Constitution  of India.  The validity of the election was challenged by  some of the electors of the constituency by an election  petition under s. 100(1)(c) of the Representation of the People  Act, 1951, on the ground that the nomination papers of the  three candidates were wrongly rejected.  It was contended for  the petitioners that the candidates in question were not holders of  offices of profit under the Government because (1)  they were holding their offices by hereditary right and not under the Government, and (2) there was no direct payment of their dues  by the Government.  It was not disputed  that  village offices  are  governed by the Mysore  Village  Offices  Act, 1908,  and  it  was found that  Patels  and  Shanbhogs  were holding  their offices by reason of the appointment  by  the Government,  though  in certain cases the statute  gave  the heir  of  the  last holder a right to be  appointed  if  the statutory  requirements  were fulfilled,  that  they  worked under the control and supervision of the Government and were removable by it, and that their remuneration was paid by  it out of its funds and assets : Held, that the holder of a village office though he may have a  hereditary  right,  does not get the office  till  he  is appointed  by the Government under whom the office is  held. Accordingly, Patels and Shanbhogs are holders of offices  of profit under the Government and their nomination papers were

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rightly rejected by the Returning Officer.

JUDGMENT: CIVIL APPELLATE JURISDICTION’ Civil Appeal No. 251 of 1958. Appeal from the judgment and order dated February 26,  1958, of the Mysore High Court in Misc.  Appeal No. 142 of 1957. R.   Patnaik, for the appellant. S.   K. Venkatranga Iyengar and N. Keshava Iyengar, for  the respondents. 1958.   August 21.  The Judgment of the Court was  delivered by SARKAR  J.-The  question  for decision  in  this  appeal  is whether  certain persons were holders of offices  of  profit under  the Government and were therefore disqualified  under Art. 191 of the Constitution, for being chosen as members of a legislative assembly.  It 1169 arises out of a petition presented under the  Representation of the People Act, 1951, for a declaration that the election of the appellant was void. The  election with which the case is concerned, was held  on March  8,  1957, for choosing members for the  Mysore  State Legislative  Assembly.   One of the constituencies  for  the purposes of election to that Assembly was known as  Harihar. The  nomination  papers  filed  by  three  persons,  namely, Hanumanthappa, Siddappa and Guru Rao for election from  that constituency  were rejected by the Returning Officer on  the ground that the first two of them were Patels and the  third a  Shanbhog of certain villages in Mysore and as  such  they were  all  holders of offices of’ profit  under  the  Mysore Government and consequently disqualified from membership  of the Assembly’ under Art. 191.  As a result of this rejection two  candidates  were left to contest the election  and  the appellant,  who was one of them, was declared elected as  he obtained  the  larger  number of votes  at  the  poll.   Six electors of the Haribar constituency then filed the election petition  for  a  declaration under s.  100  (1)(c)  of  the Representation of the People Act, 1951, that the election of the  appellant  was void on the ground that  the  nomination papers  of  Hanumanthappa, Siddappa and Guru  Rao  had  been improperly  rejected.   If the rejection  was  improper  the petition  would have to be allowed.  The appellant  was  the sole  respondent  to that petition.  It was alleged  in  the petition  that Patels and Shanbhogs were hereditary  village officers and therefore were not holders of offices of profit under  the  Government.  It was said that they  were  really representatives of the village community, and only acted  as agents  of that community or as liaisons between it and  the Government,  and that in any event they were not holders  of offices of profit because the amount of money receivable  by them  in respect of their offices was very small and out  of all  proportion to the work done by them.  The petition  was dismissed  by  the  Election Tribunal  by  its  order  dated September 10, 1957.  It held that the conditions of  service of Patels and Shanbhogs were regulated by 1170 the Mysore Village Offices Act, 1908, and that the mere fact that offices of Patels and Shanbhogs were hereditary was not by itself sufficient to establish that they were not offices under  the  Government.  It also  held  that  Hanumanthappa, Siddappa  and  Guru  Rao were  in  receipt  of  considerable remuneration and were, therefore, holding offices of profit. The  six  petitioners  then appealed to the  High  Court  of

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Mysore.  The High Court by its judgment, dated February  26, 1958, allowed the appeal and held that the offices of Patels and  Shanbhogs were not offices under the  Government.   The election  of the appellant was thereupon declared void.   It is from this judgment that the present appeal to this  Court has  been  taken  with  a  certificate  granted  under  Art. 133(1)(c)  of the Constitution.  One of the six  petitioners being  dead, the remaining five are the respondents in  this appeal. There  is no dispute that Hantimanthappa and  Siddappa  held the offices of Patels and as remuneration for their services lands  had  been  allotted to them and  provision  for  cash allowances made.  Likewise it is not disputed that Guru  Rao was a Shanbbog and had cash remuneration provided to him for his  services.   It is also clear and  not  challenged  that Patels and Shanbhogs have specific duties to perform and are holders  of  offices.  The only point for  determination  in this appeal is whether they are holders of offices under the Mysore Government. The  contention of the learned Advocate for the  respondents is  that  Patels and Shanbhogs are not  holders  of  offices under  the  Government.   He said that  their  offices  were recognised  by  the  old  customary  law  and  devolved   by hereditary  succession.   According to him  under  that  law these offices were held under the village community and  the officers  acted  as  agents of that  community  to  pay  the revenue  of the village to the authority entitled to it  and formed   the  liaisons  between  that  community   and   the authority.  He contended that under the Mysore Land  Revenue Code,   1888,  the  Government  could  appoint  Patels   and Shanbhogs  only  where there were no hereditary  Patels  and Shanbhogs.  He said that as Hanumanthappa and 1171 Siddappa  were admittedly hereditary Patels and Guru Rao,  a hereditary  Shanbhog,  they  could  not  have  been  holding offices under the Government.  He contended that the  Mysore Village  Offices Act was a consolidating Act and it did  not alter the hereditary right to the offices but maintained the old  law.  According to him being hereditary, these  offices were not held under the Government. Village  Offices  are  now governed by  the  Mysore  Village Offices  Act, 1908.  The election petition proceeds on  this basis  and  both  the  Courts below have  so  held  and  the contrary  has indeed not been contended in this Court.   The Act itself mentions the offices of Patels and Shanbhogs as " Village  Offices " within it and puts the matter beyond  all doubt.  The Act, no doubt, recognises a hereditary right  to village offices to some extent and a larger hereditary right to the offices is not claimed for Hanumanthappa, Siddappa or Guru  Rao.   A  consideration of the customary  law  of  the Madras Land Revenue Code is, therefore, unnecessary. The  question then is, what is the effect of the  provisions of   the  Mysore  Village  Offices  Act  dealing  with   the hereditary right to the offices ? First, there is s. 6 under which  when  two or more villages or  portions  thereof  are grouped  together or amalgamated to form a new  village,  or one  village  is divided into 2 or more  villages,  the  old village  offices cease to exist and new offices have  to  be created.   In choosing persons to fill such new offices  the Government  has to select the best qualified from among  the last  holders of the offices which have ceased to  exist  or the members of their families.  In these -cases obviously no full  hereditary right to the office is recognised, for  the offices  which  have ceased to exist may have been  held  by members  of different families.  All that s. 6 says is  that

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the  new  appointment  shall  be  made  from  amongst  these families.   So it is possible under this section to  appoint to an office a person who is not the heir of the last holder of  the office abolished.  The important  section,  however, for the purpose of a hereditary right to the 149 1172 office  is  s.  8 which provides for filling  up  a  vacancy occurring  in  the office of a Patel or  a  Shanbhog.   Sub- section  (1)  states  that  certain  persons  shall  not  be eligible for the office.  It is there provided that a person who has not attained majority or does not possess  requisite physical or mental capability, or the prescribed educational qualification, or has been convicted by a criminal court for an offence which, in the opinion of the prescribed  officer, disqualifies  him  for  holding  the  office,  or  has  been adjudged by that officer after an enquiry as prescribed,  to be  of  general  bad character, shall not  be  eligible  for appointment.   Sub-section (2) provides that  succession  in the  case of a permanent vacancy shall be regulated  by  the ordinary  provisions of the personal law applicable  to  the last bolder, provided that it shall devolve on a single heir and  that  where there are more persons than one  who  would under  the  ordinary provisions of that law be  entitled  to succeed  to the last holder of the office, preference  shall be  given  to the eldest member of the eldest  branch  among those  persons.   This would seem to create a right  in  the heir of the deceased holder of an office to succeed to  him. This right, however, is not an absolute right for he  cannot be  appointed  if he is not eligible under  sub-s.  (1)  nor where the prescribed officer has declared under s. 7 (v)  in dismissing  any holder of office, that the  dismissal  would entail  a forefeiture of the right of succession of all  the undivided members of his family.  This is all the hereditary right to an office that is provided by the Act. Let us, however, ignore the restriction,,; on the hereditary right to the office mentioned in the Act and assume that the eldest  heir in the eldest branch of the last holder of  it, is  entitled  to succeed to the office when he  vacates  it. The question is, does this make the office one not under the Government  ?  The  learned  Advocate  for  the   respondent contended that it did and this contention has been  accepted by  the  High  Court.   The learned  Chief  Justice  in  his judgment said " can the Government prevent him from succeed- ing to the permanent vacancy ? Such a person gets to 1173 that post not because he is appointed by the Government  but by his own rights." He also supported his view by  referring to Mangal Sain v. State of Punjab (1) where it had been held that the mere fact that the Government has under a statute a hand  in  the  appointment and dismissal  of  the  Executive Officer of a Municipality, does not make him its servant. We think this view is untenable.  It overlooks the fact that the heir of the last holder does not get the office till lie is  appointed  to  it by the Government.   The  statute,  no doubt,  gives him a right to be appointed by the  Government in  certain cases.  None the less, it is the appointment  by the  Government  that perfects his right to the  office  and makes him the officer; without such appointment he does  not hold  the office.  The Government makes the  appointment  to the office though it may be that it has under the statute no option  but  to  appoint the heir to the office  if  he  has fulfilled  the  statutory  requirements.   The  office   is, therefore,  held  by  reason  of  the  appointment  by   the Government  and not simply because of a hereditary right  to

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it.  The fact that the Government cannot refuse to make  the appointment does not alter the situation. If  this  were  not so, the result would  be  curious.   Ail office has to be held under someone for it is impossible  to conceive  of an office held under no one.   The  appointment being by the Government, the office to which it is made must be held under it for there is no one else under whom it  can be held.  The learned Advocate said that the office was held under the village community.  But such a thing is ail impos- sibility  for  village communities have since  a  very  long time,  ceased to have any corporate existence.  The case  of Mangal  Sain v. The State of Punjab (1) does not assist  for there,  there  was the Municipality under which  the  office could  be  held  though appointment to it was  made  by  the Government. The learned Advocate for the respondent contended that there are  certain  other sections of the Act  which  support  his contention.  First, we were referred to (1)  A.I.R. 1952 Punj. 58. 1174 s.11 which gives a person entitled to an office under s.8 of the  Act a right to sue before the prescribed authority  for it or for the recovery of its emoluments.  We are unable  to see that this section advances the matter further.  It  only shows  that  a person has a right to  be  appointed.   That, however,  as  we have earlier stated, is  not  enough.   The right alone does not make him the officer.  He must actually be  appointed  to the office and upon  such  appointment  he comes  to  hold  it  under the  Government.   We  were  also referred  to s. 8, sub-s. (4) which provides that  when  the heir of the last holder of an office who would otherwise  be entitled to succeed to it is a minor, the prescribed officer shall  register  him as a successor of the last  holder  and appoint some other qualified person to discharge the  duties of  the  office  during his  minority.   This  provision  is equally  unhelpful.   The  minor is  only  registered  as  a successor  and  on attainment of majority  or  within  three years  thereafter if lie is qualified under the Act, he  can be  appointed  to the office.  In the meantime  lie  is  not appointed to the office nor does lie hold it.  Here again it is only on appointment after attainment of majority that the erstwhile  minor  heir  comes  to  hold  the  office.    We, therefore, come to the conclusion that though there may be a hereditary  right to hold an office, it is not held till  an appointment  to it is made by the Government and that  there is no one except the Government under whom the office can be held. We  have  so  far  dealt with  the  provisions  of  the  Act concerning appointments.  We will now turn to those  dealing with  dismissal from office and other forms  of  punishment. Section  7  of the Act gives the prescribed officer  of  the Government,  power to suspend, dismiss or remove any  holder of  a village office on any of the grounds mentioned in  it. There  is no other power of dismissal given by the Act.   It is  said that this shows that the office is not  held  under the  Government  for  if it were so, the  officer  would  be liable  to dismissal at the pleasure of the  Governor  under Art. 310 of the Constitution.  This argument was accepted by the High Court but it seems to us to lack in substance. 1175 The  argument assumes that because of s. 7 of the  Act,  the holder of a village office is. not liable to be dismissed at the  pleasure of the Governor.  We think it  unnecessary  in this case to decide whether this assumption is justified  or not  and  will proceed on the basis that it is  the  correct

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view  of  the position.  But does it follow that  because  a village  officer cannot be dismissed at the pleasure of  the Governor, he does not hold office under the Government ?  It has been recognised that a statute may prevent an officer of the  Government from being dismissed at its pleasure.   That is  what happened in Gould v. Stuart (1) referred to by  the Judicial  Committee in R. Venkata Rao v. Secretary of  State for India (2).  In Gould v. Stuart (supra) it was said, that "  It  is  the law in New South Wales as  well  as  in  this country  that  in a contract for service  under  the  Crown, civil as well as military, there is, except in certain cases where  it  is otherwise provided by law, imported  into  the contract a condition that the Crown has the power to dismiss at  its  pleasure: Dunn v. Reg; De Dohse v.  Reg  (3).   The question  then  to be determined is, Has the  Civil  Service Act,  1884, made an exception to this rule ? ", and  it  was held  that  it  had.  In the result it  was  held  that  the respondent who had entered the service of the Government  of New South Wales under and in accordance with the, provisions of  the  Civil  Service  Act, 1884, was  not  liable  to  be dismissed at the pleasure of the Goverment because of  these provisions.   We  do  not say anything  as  to  whether  the principle  of Gould V. Stuart (1) will apply to our  country in  view of the, constitutional provision contained in  Art. 310.   Such  a question has not been argued at the  bar  and does  not require to be decided in this case.  If the  prin- ciple of that case does not apply, then the village officer, if he is a servant of the Government, is liable to dismissal it its pleasure, in spite of s. 7 of the Act and if it does, then  the fact that he is not liable to such dismissal  does not prove that he does not hold office under the Government. It would thus appear (1) [1896] A.C. 579.          (2) (1936) L.R. 64 I.A. 55. (3) [1896] 1 Q.B. 117, n. (7). 1176 that the fact that an officer is not liable to dismissal  at the pleasure of the Government does not by itself  establish that he does not hold office under the Government. We now come to the question of the remuneration of a village officer.   The High.  Court in its judgment referred to  the rules  tinder  the  Act as to the mode  of  payment  of  the emoluments and held that there was no direct payment of  his dues  by  the  Government  to  a  village  officer.    That, according  to the High Court, also showed that  the  officer did  not  hold his office under the Government.   This  view also  is, in our opinion, unfounded.  Government  lands  are allotted  by  it to the officers by way  of  emoluments  for services  to  be rendered and the cash allowances  are  also fixed  by the Government.  It is true that under  the  rules cash  allowances are not paid directly by the Government  to the  officers  but the latter are authorised to  deduct  the amounts  thereof from the revenue collected by  them.   This does not show that the cash remunaration is not paid by  the Government.    The   revenue  collected   belongs   to   the Government.  The Rules provide that where an officer deducts the  cash  allowance from the revenue collected by  him  and deposits the balance in the Government Treasury, his receipt for  the amount deducted shall be considered  equivalent  to the payment into the Treasury of an equal sum in cash:  (see rule  75  XIII  of the Rules framed tinder  the  Act).   The result,  therefore, of this rule is as if the entire  amount of  the  revenue  collected  had  been  deposited  into  the treasury and part of it paid back to the officer on  account of  his cash remuneration.  In any event, it seems clear  to us  that the cash allowance to the officer concerned is,  in

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spite of the procedure laid down in respect of its  payment, a payment by the Government out of its moneys. Lastly, we find that the duties of the village officers  are fixed  by the Government and these officers work  under  the direction, control and supervision of the Government.   This is conceded. We then come to this that Patels and Shanbhogs are officers, who are appointed to their offices by the 1177 Government  though  it  may be that the  Government  has  no option  in certain cases but to appoint an heir of the  last holder  ;  that  they hold their office by  reason  of  such appointment  only  ; that they work under  the  control  and supervision  of  the Government that their  remuneration  is paid  by the Government out of Government funds and  assets; and  that  they are removable by the  Government,  and  that there is no one else under whom their offices could be held. All  these clearly establish that Patels and shanbhogs  hold offices of profit under the Government.  In this view of the matter  it  has  to be held that the  nomination  papers  of Hanumanthappa,  Siddappa and Guru Rao were rightly  rejected by  the  Returning  Officer and  the  election  petition  is without substance. The  appeal,  therefore,  succeeds  and  is  allowed.    The judgment  and  order of the High Court are  set  aside,  and those  of  the  Election Tribunal  restored.   The  election petition  is  dismissed.   The  respondents  will  pay   the appellant’s costs throughout.                               Appeal allowed.