U.C.RAMAN Vs P.T.A.RAHIM .
Bench: CHIEF JUSTICE,SHIVA KIRTI SINGH
Case number: C.A. No.-005509-005509 / 2012
Diary number: 22105 / 2012
Advocates: P. GEORGE GIRI Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5509 OF 2012
U.C. RAMAN ... APPELLANT
VS.
P.T.A. RAHIM AND ORS. ... RESPONDENTS
J U D G M E N T
SHIVA KIRTI SINGH, J.
The only issue falling for consideration in this
Appeal filed under Section 116A read with Section 116B
of the Representation of People Act, 1951 is whether
for the purpose of Article 191(1)(a) of the
Constitution of India, the first respondent held an
office of profit under the Government of India and for
that reason his nomination ought to have been rejected
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by the returning officer and the High Court should have
set aside his election as a member of Kerala
Legislative Assembly for which he was declared elected
on 13.5.2011.
2. At the stage of scrutiny of nomination papers, the
appellant as well as one another candidate raised
objections against acceptance of nomination of the
first respondent by pointing out to the returning
officer that the first respondent was disqualified to
contest the election to the Kerala Legislative Assembly
by reason of his holding an ‘office of profit’ under
the State Government namely the post of Chairperson of
State Haj Committee. The returning officer rejected
the objections. In the election, first respondent
secured highest number of votes followed by the
appellant and was declared elected. Undisputedly, the
first respondent had been nominated by the State
Government as one of the members of the Haj Committee
under the provisions of Haj Committee Act, 2002
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(Central Act 35 of 2002) (hereinafter referred to as
‘the Act’) on 18.6.2009.
3. Under the provisions of the Act, the first
respondent got elected as the Chairperson and he was
notified as such by the State Government in the
Official Gazette with effect from 30.6.2009. The
appellant obtained information regarding allowances
received by the first respondent as Chairperson of
State Haj Committee and filed Election Petition No.4 of
2011 on 27.6.2011. As noticed earlier the case of the
appellant is that election of first respondent was
vitiated by improper acceptance of his nomination
papers and that he was wholly disqualified to contest
in the election on account of his holding an ‘office of
profit’ under the State Government.
4. The first respondent filed written statement in the
election petition wherein he admitted that at the
relevant time he held the office of Chairperson of the
Kerala State Haj Committee. However, he raised several
objections to the maintainability of the election
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petition and also disputed that Chairperson of Kerala
State Haj Committee holds an ‘office of profit’ under
the State Government so as to be covered by the
provisions of Article 191 of the Constitution of India.
He also disputed that he was appointed by the State
Government.
5. After noticing the relevant provisions of the
Constitution, the Representation of People Act and the
Act the learned Single Judge under the main issue,
found two questions falling for consideration:-
(1) Whether the first respondent occupies the
office under the State Government? and
(2) If it is an office, is he the holder of an
office of profit?
6. The High Court further observed that if the
aforesaid two questions are answered against the first
respondent, then the next question would be whether he
is exempted under the provisions of Kerala Legislative
Assembly(Removal of Disqualification) Act, 1951 (Act 15
of 1951).
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7. In the light of facts of the case and the various
decisions of this Court, the High Court answered the
first question in favour of the appellant and held that
the office of Chairperson of the Haj Committee is an
office under the State Government. However, on the
basis of large number of precedents of this Court, the
High Court decided the second question against the
appellant by holding that the appellant had miserably
failed to prove that the first respondent was holding
an ‘office of profit’ as contemplated under Article 191
of the Constitution and therefore acceptance of his
nomination did not suffer from any impropriety or
illegality. Accordingly, the election petition
preferred by the appellant, was dismissed by the
judgment under appeal.
8. On behalf of the appellant, Mr. T.R. Andhyarujina,
learned senior advocate made serious effort to persuade
us to hold that on the basis of evidence adduced by the
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appellant, the High Court should have decided the
second question also in favour of the appellant and
ought to have held that the office held by the first
respondent was an ‘office of profit’ covered by Article
191 of the Constitution of India and consequently the
election of first respondent should have been set
aside. On the other hand, Mr. V.A. Mohta, learned
senior advocate, appearing for the first respondent
defended the judgment of the High Court by referring to
the evidence on record that had been considered by the
High Court as well as by placing reliance upon several
judgments of this Court and Section 2(1)of Act 15 of
1951.
9. On behalf of the appellant it was further contended
that Section 37 of the Haj Committee Act, 2002 though
provides that office of a member of the Committee or
State Committee shall not be deemed to be an ‘office of
profit’, it cannot be of any help to the first
respondent because he held the post of Chairperson of
the State Haj Committee and also because the Haj
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Committee Act, 2002 is a Central Act and not a law
enacted by the legislature of the State as contemplated
under Article 191(1)(a). On the other hand Mr. Mohta
has relied upon Section 2 of Act 15 of 1951 to
supplement his submissions that a person shall not be
disqualified, as per aforesaid State Act, for being
chosen as and for being a member of the legislative
assembly of the State of Kerala by reason only that he
is in receipt of travelling and daily allowances while
serving as a member of any Committee or Board
constituted by the Government of India or the
Government of any State.
10. The issue of exemption from disqualification by
virtue of Section 37 of the Haj Committee Act, 2002 or
Section 2 of Act No. 15 of 1951, will be relevant and
worth deciding only if the appellant succeeds in
assailing the finding of the High Court on the basis of
judgments of this Court and the evidence on record that
office in question is not an ‘office of profit’. On
this issue, the conclusions derived by High Court as
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findings of fact on the basis of evidence on record
have not been assailed as perverse or even erroneous.
The relevant findings are that the evidence led by the
appellant coupled with pleadings of the rival parties
disclose that the appellant has succeeded only in
proving that the first respondent has obtained
pecuniary benefits by way of travelling allowance
covered by exhibits P-4, P-5, and P-6 and beyond that
the first respondent has not received any pecuniary
benefits by way of any other allowances, salary or
commission. There is no pleading, evidence or even a
suggestion given to the first respondent that he
received anything beyond TA which is admissible to the
Chairperson, Vice-chairperson and members, as per Rule
11 of the Haj Committee Rules, 2002 made by the Central
Government in exercise of powers conferred under
Section 44 of Haj Committee Act, 2002. The rules do
not entitle the Chairperson and the members anything
besides TA and daily allowance for attending meetings.
It is also an admitted fact that although State
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Government has been vested with power to prescribe
allowances to the members of the Haj Committee under
Section 20 of the Act but such power has not been
exercised by the State Government so far. Keeping in
view the nature of TA and daily allowance in mind, the
High Court has come to the conclusion that not only the
pecuniary benefits received by the first respondent are
only compensatory in nature but as a matter of fact the
post did not carry any other benefits which may be
categorized as pecuniary benefits ‘receivable’ by the
first respondent, so as to classify the office in
question as an ‘office of profit’.
11. In the backdrop of factual matrix noted above,
learned senior advocate for the appellant has advanced
a submission that profit should not be confined to
pecuniary benefits but also to other factors such as
status, power and influence emanating from the post. He
has placed reliance upon the judgments of this Court in
the cases of :
(1) Gurugobinda Basu vs. Sankari Prasad Ghosal and Ors. 1964 (4) SCR 311,
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(2) Biharilal Dobray vs. Roshan Lal Dobray, 1984 (1) SCC 551
(3) Pradyut Bordoloi vs. Swapan Roy, 2001 (2) SCC 19 and
(4) Jaya Bachchan v. Union of India & Ors., (2006) 5 SCC 266.
The first three judgments deal with various tests
which should be applied to find out whether the
office in question is an office under the
Government or not. Since in the present case this
issue has been decided by the High Court in favour
of the appellant and there is no serious challenge
to that finding, those judgments are not of much
relevance. So far as the case of Jaya Bachchan is concerned, this Court was called upon to answer
what the term ‘office of profit’ could mean
although the context was Article 102 of the
Constitution of India which is concerned with
disqualification of member of either House of
Parliament. Nonetheless, the interpretation given
by this Court to the term ‘office of profit’ is
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equally applicable in interpreting the same
phraseology in the context of Article 191 of the
Constitution. It will be useful to extract a part
of paragraph 6 of the judgment which runs as
follows:
“6. …… An office of profit is an office which is capable of yielding a profit or pecuniary gain. Holding an office under the Central or State Government, to which some pay, salary, emolument, remuneration or non-compensatory allowance is attached, is “holding an office of profit”. The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. Nomenclature is not important. In fact, mere use of the word “honorarium” cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. Payment of honorarium, in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit. For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the “pecuniary gain” is “receivable” in
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connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102(1)(a). This position of law stands settled for over half a century commencing from the decisions of Ravanna Subanna v. G.S. Kaggeerappa AIR 1954 SC 653, Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa (1971) 3 scc 870, Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev (1992) 4 scc 404 and Shibu Soren v. Dayanand Sahay (2001) 7 SCC 425.”
12. The law as indicated above was not only
noticed by the High Court but also appreciated in
proper perspective. In that light, the High Court
examined the evidence on record and came to the
conclusion that the pecuniary gain not only
received but also ‘receivable’ in connection with
the office was only compensatory in nature by way
of TA and daily allowances. Therefore, the High
Court in tune with the aforesaid judgment of this
Court held that office in question was not an
‘office of profit’. The answer given by the High
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Court is fully in accord with the law laid down by
this Court because as per the evidence on record
the first respondent was neither in receipt of any
pay, salary, emoluments, remuneration or
commission, nor anything of such nature was payable
to him. He was in receipt of only TA and daily
allowance which are compensatory allowance and
these alone were ‘receivable’ also.
13. On behalf of the appellant an attempt was made
to take advantage of amendment made in the year
2006 through Parliament (Prevention of
Disqualification) Act 2006, whereby Section 3 was
enlarged and the table annexed to the Parliament
(Prevention of Disqualification) Act, 1959 was
amended by adding several Committees, Councils,
Trusts etc. including the Haj Committee of India
constituted under Section 3 of the Haj Committee
Act, 2002. According to the learned senior counsel
for the appellant, the very amendment amounts to an
acceptance, though by the Central Government, that
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the Vice Chairman or member of the Haj Committee of
India suffered from disqualification and therefore,
they were included under Section 3 of the
Parliament (Prevention of Disqualification) Act,
1959 with a view to save them from disqualification
as holder of an ‘office of profit’
14. In our considered view the inclusion of Haj
Committee of India constituted under Section 3 of
Haj Committee Act, 2002 within the purview of
Section 3 of the Parliament (Prevention of
Disqualification) Act, 1959 cannot help the case of
the appellant because the first respondent happened
to be Chairperson of the State Haj Committee of
Kerala and the allowances admissible to the Haj
Committee of India have not been shown to be same
as that for the State Haj Committee, Kerala.
Further the reply on behalf of the first respondent
that such amendment may have been introduced by way
of abundant caution is also plausible and cannot be
brushed aside.
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15. Learned counsel for the first respondent has
placed reliance upon the following judgments of
this Court to further illustrate as to what are the
essential requirements for determining whether the
office in question is an ‘office of profit’ or not.
1. Gajanan Samadhan Lande v. Sanjay Shyamrao Dhotre, (2012) 2 SCC 64
2. Shivamurthy Swami Inamdar etc. vs. Agadi Sanganna Andanappa etc., 1971 (3) SCC 870 3. Ravanna Sabanna vs. G.S. Kaggeerappa, AIR 1954 SC 653
16. Paragraph 12 of judgment in the case of
Ravanna Subanna discloses that a small amount of Rs.6/- for each sitting of Committee for the
Chairman deserved to be treated as consolidated fee
for the out-of-pocket expenses which he has to
incur for attending the meetings of the Committee
and is not meant to be a payment by way of
remuneration or profit.
17. In the case of Shivamurthi Swami also a similar view was taken in paragraph 17 by treating Rs.16/-
per day payable to the member of the concerned
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Board as a payment for the purpose of reimbursing
the expenses incurred by the members and hence it
was held to be a compensatory allowance and not a
profit.
18. In the case of Gajanan Samadhan Lande to which one of us (Justice R.M. Lodha)(as His Lordship then
was) was a member, it was succinctly explained that
:
“…… one of the essential necessities in determining the question whether the office is an “office of profit” or not is whether such office carries remuneration in the form of pay or commission. As an elected Director, the amount paid to the returned candidate by way of allowances, by no stretch of imagination, can be said to be “remuneration” in the form of pay or commission. It is only a sort of reimbursement of the expenses incurred by the returned candidate. The essential condition that the office carries remuneration in the form of pay or commission is also not satisfied.”
19. The aforesaid judgments relied upon by the
learned advocate for the first respondent clearly
support the view taken by the High Court and
fortify the judgment under appeal.
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20. The plea raised by Mr. Andhyarujina, learned
senior advocate for the appellant that the word
‘profit’ should include even status and influence
etc., besides the pecuniary profits, is not found
acceptable in view of long line of judgments of
this Court, some of which have been cited by both
the parties and have been noticed above. This Court
has given categorical clarification on more than
one occasion that an ‘office of profit’ is an
office which is capable of yielding a profit or
pecuniary gain. The word ‘profit’ has always been
treated equivalent to or a substitute for the term
‘pecuniary gain’. The very context, in which the
word ‘profit’ has been used after the words ‘office
of’, shows that not all offices are disqualified
but only those which yield pecuniary gains as
profit other than mere compensatory allowances, to
the holder of the office. There is no requirement
to make a departure from the long line of
established precedents on this issue. If the
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submissions of learned counsel for the appellant
were to be accepted, it would add a great amount of
uncertainty in deciding whether an office is an
‘office of profit’ or not.
In the aforesaid factual and legal premises, we
find no option but to dismiss the appeal. We order
accordingly. However, parties shall bear their own
costs, so far as this appeal is concerned.
…………………………………………………CJI (R.M. LODHA)
……………………………………………………J. (SHIVA KIRTI SINGH)
New Delhi, August 01, 2014.
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