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PETITIONER: SURYA KANT ROY

       Vs.

RESPONDENT: IMAMUL HAI KHAN

DATE OF JUDGMENT12/03/1975

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. UNTWALIA, N.L.

CITATION:  1975 AIR 1053            1975 SCR  (3) 909  1975 SCC  (1) 531  CITATOR INFO :  R          1985 SC  89  (20)  R          1985 SC 211  (16)

ACT: Representation of the People Act, 1951--Holding an office of profit--Tests  for  determination--Chairman of  a  statutory body--Whether an office of profit under Government. Allegations  of  corrupt practice should  be  proved  beyond reasonable doubt.

HEADNOTE: Under  the  Bihar and Orissa Mining Settlement Act,  1920  a Board called the Mines Board of Health may be established to provide  for  the control and sanitation of any  area.   The Board  consists of members who are elected by  mine  owners, non-officials  selected by the State Government and  persons nominated  by  Government.   The Chairman of  the  Board  is appointed by the State Government from among the members  of the  Board.  The Board is a body corporate.  A  fund  called "The  Mining Settlement Fund" is created consisting of  sums charged by the Board under the Act from land-owners as  also sums  allotted  from  the State revenues  as  well  as  sums borrowed by the Board under the Local Authorities Loans Act, grants  received  from local Authorities,  associations  and private  persons.   The  respondent  was  appointed  by  the Government as Chairman of the Jharia Mines Board of  Health. The respondent was elected as a member of the State Assembly in  the  general elections.  The election  petition  of  the appellant   (the   unsuccessful   candidate)   against   the respondent was dismissed by the High Court. On  appeal to this Court it was argued that  the  respondent was  disqualified,from standing for the election as he  held an office of profit under the State Government. Dismissing the appeal, HELD  : (1) The mere fact that the respondent was  appointed as  Chairman of the Board by the Government Would  not  make him  a person holding an office under the State  Government. The  fact  that the Government and other  local  authorities might  make  grants to the Board did not mean that  all  the funds  of  the  Board were Government  funds  or  Government property.   The  provisions  ’  of the  Act  are  enough  to establish  that the Board is a ’local authority’ within  the

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meaning of that expression as defined in cl. (31) of s. 3 of the General Clauses Act, 1897. [911 C; B] (2) In determining whether a person is holding an office  of profit  under  the Government the tests laid  down  by  this Court were (1) Whether the Government makes the appointment; (2)  Whether  the  Government has the  right  to  remove  or dismiss  the  holder; (3) Whether the  Government  pays  the remuneration;  (4)  What are the functions  of  the  holder? Does  he perform them for the Government, and (5)  Does  the Government  exercise control over the performance  of  those functions? [911 G] In the instant case the Government did not pay  remuneration to  therespondent nor did he perform his functions  for  the Government.   The office held by him was held under a  local authority.  The holding of an office of profit in it did not bring about a disqualification, even if the local  authority be,  under  the  control of  the  Government.   The  control exercised by the Government did not make the Board an  organ of  the Government nor did it make the respondent  a  person holding an office under the Government. [912 E-F] Maulana Abdul Shakur v. Rikhabchand & Anr. [1958] S.C.R. 387 at  394  and Shivmurthy Swami v.  Agadi  Sanganna  Andanappa [1971] 3 S.C.C. 870, followed. 910 Gurushantappa v. Abdul Khaddus A.I.R. 1969 S.C. 744-[1969] 3 S.C.R. 425, referred to. (3)  An allegation of corrupt practice being a serious  one, leading not merely  to  the consequence of the  election  of the  successful candidate being set aside, but also  of  his being  disqualified  to  stand for election  for  a  certain period,  should  be proved beyond  reasonable  doubt.   Such proof is lacking in this case. [913 C]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1116  of 1973. From the judgment and order dated the 22nd January, 1973  of the Patna High Court in Election Petition No. 21 of 1972. J. P. Goyal and Y. C. Parashar, for the appellant. D. Goburdhan, for the respondent. The Judgment of the Court was delivered by ALAGIRISWAMI,  J.-This  appeal by one  of  the  unsuccessful candidates in the election held to the Legislative  Assembly of Bihar State from the Baghmara constituency is against the dismissal   of   his  election  petition   questioning   the respondent’s election by the High Court at Patna. Only  two  questions  were argued before  us  (1)  that  the respondent was disqualified for standing for the election as he  held an office of profit under the Government of  Bihar, and (2) that he obtained the services of a Sub-Inspector  of Police for the furtherance of the prospects of his election. The  facts relating to the first question are these :  Under the  Bihar  and Orissa Mining Settlement Act, 1920  a  Board called  the  Mines  Board of Health may  be  established  to provide  for the control and sanitation of any  area  within which  persons  employed  in  a  mine  reside  and  for  the prevention  therein of the out break and spread of  epidemic diseases.   Before  the  area is declared  to  be  a  mining settlement  for the purposes of the Act  certain  prescribed formalities  like  receiving  objections  etc.  have  to  be observed.   The Board is a body corporate  having  prepetual succession and a common seal with power to hold and  acquire property.   It consists of not less than seven and not  more

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than  eleven members of whom not less than two and not  more than  four are elected by owners of mines within the  mining settlement,  three  non-officials  selected  by  the   State Government  and two or more members but not  exceeding  four nominated  by  the State Government.  The  Chairman  of  the Board is to be appointed by the State Government from  among the  members  of  the  Board.  A  fund  called  "The  Mining Settlement  Fund" is formed for every mining settlement  and the fund vests in the Board. charged by the Board under  the Act  from sums allotted to the Board from the State  by  the Board  under the Local Authorities from  Local  Authorities, associations  and Board appoints Health Officers as well  as Board     can  impose taxes like latrine tax and  also  make yearly assessment.  There  are certain powers  conferred  on the State Government  The fund consists of sums land  owners etc.  as  also  revenues; sums borrowed  Loans  Act;  grants received private persons etc.  The Sanitary inspectors.  The Board can impose taxes like latrine tax and also make yearly assessment.   There   are  certain  powers  on   the   State Government. 911 under the Act but they are no more than powers conferred  on State  Governments in respect of various local bodies.   The respondent  was appointed by the Government as the  Chairman of the Jharia Mines Board of Health. We agree with the learned Judge of the High Court that it is difficult  to accept the argument that the Board  is  wholly under  the  control  of  the State  Government  in  all  its functions.  The Board levies taxes and other assessments and has,  got  its own funds, The fact that the  Government  and other local authorities might make grants to the Board  does not  mean  that all the funds of the  Board  are  Government funds  or Government property.  The provisions we  have  set out above are enough to establish that the Board is a ’local authority’ within the meaning of that expression as  defined in  clause  (31) of section 3 of the  General  Clauses  Act, 1897.   Indeed  this  position does not seem  to  have  been disputed  by  the petitioner before the High  Court  in  the course  of his argument.  We do not, therefore,  think  that the mere fact that the respondent was appointed as  Chairman of  the  Board  by the Government would make  him  a  person holding an office under the State Government. We may in this connection refer to certain decisions of this Court. In Maulana Abdul Shakur v. Rikhabchand & Anr.(1) this Court held :               "The  power  of the Government  to  appoint  a               person  to an office of profit or to  continue               him  in that office or revoke his  appointment               at  their discertion and payment from  out  of               Government  revenues are important factors  in               determining whether that person is holding  an               office of profit under the Government." We  have already pointed out that in this case the  payments to  the  respondent  are  not from  out  of  the  Government revenues. In  Shivamurthy  Swami v. Agadi Sanganna  Andanappa(2)  this Court pointed out               "....  the office in question must  have  been               held under a Government and to that some  pay,               salary, emoluments or allowance is attached...               This Court in several decisions had laid  down               the tests for finding out whether an office in               question  is an office under a Government  and               whether  it  is an office  of  profit.   Those               tests  are : (1) Whether the Government  makes

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             the  appointment; (2) Whether  the  Government               has right to remove or dismiss the holder; (3)               Whether the Government pays the  remuneration;               (4)  What  are the functions  of  the  holder?               Does  he perform  then for the Government  and               (5)  Does the Government exercise any  control               over the performance of those functions ?" Here again it is to be pointed out that the Government  does not  pay  the remuneration nor does the holder  perform  his functions for the Government.  To hold otherwise would be to hold that local (1) [1938] S.C.R. 387 at 394. (2) [1971] 3 S.C.R. 870. 912 bodies  like Municipal Councils perform their functions  for the  Government  though  in one  sense  the  functions  they perform are governmental functions. The  decision  of  this  Court  in  Gurushantappa  v.  Abdul Khaddus(1),  which was also relied upon by the  High  Court, may be usefully referred to. It was there observed:               "Thus, in the case of election as President or               Vice-President,  the  disqualification  arises               even if the candidate is holding an office  of               profit  under  local or  any  other  authority               under the control of the Central Government or               the State Government, whereas, in the case  of               a candidate for election as a Member of any of               the Legislatures, no such disqualification  is               laid down by the Constitution if the office of               profit  is  held under a local  or  any  other               authority under the control of the               Government  and not directly under any of  the               Governments.   This clearly indicates that  in               the  case  of eligibility for  election  as  a               member  of  a Legislature, the holding  of  an               office of profit under a corporate body like a               local   authority   does   not   bring   about               disqualification even if that local  authority               be  under  the  control  of  the   Government,               The  mere control of the Government  over  the               authority   having  the  power   to   appoint,               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 in the               manner  in which such  disqualification  comes               into  existence  for  being  elected  as   the               President or the Vice-President." 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 having the power to appoint,  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  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  is not an office of profit.  We are not setting out  the

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evidence  at length only because it is unnecessary  for  the purpose of this case. As regards the 2nd question the allegation of the  appellant was that the respondent taking advantage of his position  as a former Cabinet Minister of the State of Bihar had procured the services of the Officer-in-charge of Chas police station in  arranging  and  holding his  election  meeting  on  20th February,  1972  within  the premises  of  the  Chas  police station  and this was a corrupt practice within the  meaning of sub-s. (7) (1) A.I.R. 1969 S.C. 744-[1969] 3 S.C.R. 425. 913 of  s.  123  of  the  Representation  of  the  People   Act. According to the respondent the election meeting was held in the  vacant space on the southern side of the compound  wall of  the  police station.  The evidence relied  upon  by  the appellant for providing his charge were his own and that  of two of his co-villagers.   The appellant wasnot   an    eye witness   of  this  meeting  and  his  evidence   was   pure hearsay.The person who is said to have informed him was  not examined.The evidence of P. Ws. 1 and 2 was not accepted  by the  High  Court.  The police  officer  concerned,  who  was examined as R.W. 8, as wellas  the respondent  (R.W.  10) have denied the allegation.  After a careful examination  of all the evidence the High Court held this charge not proved. We  have  gone  through the evidence and see  no  reason  to differ from the High Court on this point. An allegation of corupt practice being a serious one leading not  merely  to  the  consequence of  the  election  of  the successful  candidate being set aside but also of his  being disqualified  to  stand for election for  a  certain  period should  be proved beyond reasonable doubt and we  find  such proof lacking in this case, The appeal is dismissed with costs. P. B . R.         Appeal dismissed. 914