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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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