2001 Supreme(SC) 948

2001(5) Supreme 193
Supreme Court of India
(From Patna High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti and Shivaraj V. Patil, JJ.
Shibu Soren —Appellant
versus
Dayanand Sahay & Ors. —Respondents
Civil Appeal No. 3538 of 2000
Decided on 19-7-2001
Counsel for the Parties :
For the Appearing Parties : Mr. P.P. Rao and Mr. D.D. Thakur, Sr. Advocates, Mr. Barun K. Sinha, Mr. Pratap C. Mohapatra, Mr. Subhash Chandra, Mr. Sanjiv Kumar, Mr. B.K. Satija, Mr. M.P. Jha, Mr. H.K. Lal, Mr. Ankur Talwar, Mr. Vijay Prakash, Mr. R.C. Kohli, Mr. Ranjit Kumar, Ms. Binu Tamta, Mr. Anil K. Chopra (N.P.) and Mr. S.R. Setia (N.P.), Advocates.

VERY IMPORTANT POINTS
1. High Court has rightly set aside election of appellant – Shibu Soren to Rajya Sabha on ground that office of Chairman of Interim JAAC (Jharkhand Area Autonomous Council) was an "office of profit" under the State Govt. because the payment of honorarium could not be construed as compensatory allowance and, therefore, disqualification stipulated by Article 102(1) (a) of the Constitution of India was clearly attached to appellant’s election to Rajya Sabha. The said disqualification was not saved by the Parliament (Prevention of Disqualification) Act, 1959.
2. The High Court was also right in declaring respondent No.1 Shri Dayanand Sahay to be duly elected to Rajya Sabha in place of Appellant Shibu Soren.

Headnote:Representation of People Act, 1951—Sections 80 and 81—Election petition by respondent No. 1 against appellant for setting aside his election as member of Rajya Sabha on ground that appellant cannot hold two posts at the same time—Allowed by Patna High Court as appellant was appointed as Chairman of the Interim Council of JAAC—Appeal against to Supreme Court—Whether appellant in the present case held an "office of profit" under the State Government, within the meaning of Act 102(1)(a) of the Constitution at the relevant time i.e. the date of scrutiny of nomination papers ? (Yes)—Whether that office has been declared by the Parliament by law not to disqualify its holder e.g. u/s 3 of the Parliament (Prevention of Disqualification) Act, 1959? (No)—Case law discussed—Appeal dismissed—(Cross Ref. JAAC Act, 1994—Sections 3, 6, 11, 12, 17, 23 and 36 to 42)—Constitution of India—Art. 120(1)(a)—Parliament (Prevention of Disqualification Act, 1959—Section 3).

       Held : From a resume or precedents noticed above we find that in order to attract disqualification contained in Article 102(1)(a), a person must not only be holding "an office" but that office must be "an office of profit" and should be "under the Government" and should be an office other than an office declared by the competent legislature by law, not to disqualify its holder. (Para 25)

       The principle for debarring holders of office of profit under the Government from being a Member of Parliament is that such person cannot exercise his functions independently of the executive of which he becomes a part by receiving ‘‘pecuniary gain’’. Under Article 102(1)(a), of course, the Parliament has the jurisdiction to declare an ‘office’ as not to disqualify its holder to be a Member of Parliament and likewise under Article 191(1)(a) the State Legislature has the jurisdiction to declare an ‘office’ as not to disqualify its holder to be a member of the State Legislatures. Moreover, apart from the office being an ‘‘office of profit’’, it must also be an office under the State or Central Government. (Para 28)

       Learned counsel for the parties appearing before us did not dispute that the appellant by virtue of his nomination as Chairman of interim JAA Council by the State Government held ‘an office’ which existed independently of its holder. However, they were seriously at variance as to whether the office held by the appellant could be said to be ‘‘an office of profit’’ as also whether it could be said that the office of Chairman of interim Council is ‘‘an office under the State Government’’. (Para 35)

       We are, therefore, in the established facts and circumstances of the case, in agreement with the High Court that the appellant, as Chairman of the Interim JAA Council was in receipt of pecuniary gain in the form of honorarium and he, thus, held an "office of profit". (Para 42)

       That the honorarium of Rs. 1,750/- paid to the appellant as Chairman of Interim Council, besides other daily allowances and perquisites of rent free accommodation and car with a driver, could not be said to be in the nature of ‘compensatory allowances’ and was in the nature of remuneration or salary, inherently implying an element of "profit" and of giving ‘pecuniary gain’ to the appellant, it follows that the appellant was holding an office of profit under the State Government. (Para 47)

       Apparently, faced with this fact situation, the appellant took the plea, in his additional written statement, and it was canvassed before us as also in the High Court, that even if the office held by him as Chairman of the Interim Council was to be construed as an "office of profit under the State Government", the disqualification provided for under Article 102(1)(a) stood removed by Parliament (Prevention of Disqualification) Act, 1959, since as Chairman of Interim Council, he enjoyed the ‘status’ of a Minister. The argument was rightly repelled by the High Court observing that nowhere in the JAAC Act is it provided that the Chairman of the Interim JAA Council would enjoy the status of a Minister. We have no quarrel with the proposition that holding an office of profit under the Government of India or under the Government of any State would be a disqualification only if that office is not declared by the Parliament by law not to disqualify its holder. In exercise of this power, the Parliament under Article 102 of the Constitution has exempted some offices from operation of the disqualification and similarly under Article 191, State Legislatures have passed several enactments exempting some offices from operation of this disqualification. Therefore, before holding a person disqualified, it will have to be seen whether that office is not exempted by the competent Legislature from operation of the disqualification clause. Articles 102 and 191 both, by explanation, have clarified that a person shall not be deemed to hold an office of profit under Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister – either for the Union or any State. Thus, the disqualification, in the case of the appellant, could only be removed by the Parliament, since the membership of Rajya Sabha was in issue, within the meaning of Article 102(1)(a). No such disqualification was removed by the Parliament as the JAAC Act has not been included in the Schedule to the 1959 Act. The State Legislature is not competent to remove any disqualification in respect of a member of Parliament. Even if it be assumed, though there is no basis or material to so assume, that the State Legislature or Government had, by implication removed the disqualification by granting "deemed" statue of a Minister to the appellant, it had no jurisdiction to remove the disqualification from which the appellant was suffering, because it is Membership of the Rajya Sabha and not of State Legislature which was in issue. The judgment of the Constitution Bench in Kanta Kathuria’s case (supra) cannot come to the aid of the appellant because what was upheld in that case was the jurisdiction of the State Legislature to remove disqualification in respect of a member of the State Legislature and not in respect of a member of the Parliament. The office of Chairman of Interim JAA Council, as already noticed, has not been exempted under the Parliament (Prevention of Disqualification) Act, 1959 and as such the disqualification contained in Article 102(1)(a) is squarely attracted to the facts of the present case. The appellant was, thus, rightly held to have been holding ‘an office of profit under the State Government’ at the relevant time and, thus, was disqualified to be a member of Rajya Sabha. The High Court was justified in setting aside his election and we are not persuaded to take a contrary view either. The learned designated Judge of the High Court after setting aside election of the appellant, declared respondent No.1, Shri Dayanand Sahay to be duly elected to Rajya Sabha relying upon the law laid down in Vishwanath Reddy v. Konappa Rudrappa Nadouda, AIR 1969 SC 604. The correctness of that view of the High Court was not disputed before us. We, accordingly, also uphold the declaration made by the High Court in favour of respondent No.1. Thus, this appeal fails and is hereby dismissed. The parties shall however, bear their own costs insofar as this appeal is concerned. (Paras 49 to 52)