IMPORTANT POINT
Office of profit explained.

JUDGMENT

R.M. Lodha, J.-This is an Appeal under Section 116-A of the Representation of the People Act, 1951 (for short "the 1951 Act").

2. The respondent - Sanjay Shyamrao Dhotre - contested the election from Akola Constituency for the 15th Lok Sabha and was declared elected.

3. The appellant - a voter in the constituency - challenged the election of the respondent (hereinafter referred to as "returned candidate") in the election petition before the Bombay High Court, Nagpur Bench, Nagpur. The invalidity of the election of the returned candidate was sought under Section 100(1)(a) of the 1951 Act. The appellant avered in the election petition that the returned candidate was disqualified to contest the election as he was holding the 'office of profit' under the Government company being a Director of the Maharashtra Seeds Corporation (for short "Corporation"). Section 10 of the 1951 Act and Article 102(1)(a) of the Constitution of India were pressed into service by the election petitioner in this regard.

4. The returned candidate contested the election petition and disputed that he was holding an 'office of profit' under the Government. His case was that he was elected as a Director of the Corporation from Growers constituency and the allowances received by him as an elected Director were not in the nature of profit but were paid to him by way of reimbursement of actual expenses. Moreover, the returned candidate was not appointed by the Government nor the Government has any right to remove or dismiss him from the elected office of Director of the Corporation. He also set up the case that the Government has no control over the performance of functions of the elected Director of the Corporation.

5. On the basis of the pleadings of the parties, the High Court framed 14 issues. The appellant examined two witnesses, including himself and tendered documentary evidence. On the other hand, the returned candidate examined himself and one more witness who was Deputy General Manager (Audit) of the Corporation. He also produced documentary evidence in support of his defence.

6. The High Court by an elaborate judgment, on consideration of the evidence on record and on hearing the counsel for the parties, held that the returned candidate was not disqualified to be a member of Parliament either under Article 102(1)(a) of the Constitution or under Section 10 of the 1951 Act.

7. Mr. Vishaal Jogdand, learned counsel for the appellant, assailed the correctness of the judgment of the High Court and submitted that the returned candidate at the time of nomination and election was holding the office of profit. In this regard, he referred to the allowances received by the returned candidate, namely, Rs. 0.75 Lakh meeting allowance calculated at the rate of Rs. 300/- per day; telephone allowance in the sum of Rs. 2,000/- per month; dearness allowance paid at the rate of Rs. 100/- for metropolitan cities and Rs. 85/- for other places and also sale of seeds at concessional price. Learned counsel further submitted that the Corporation was a Government company and Government has full control and supervision over the company as well as its directors. Learned counsel also submitted that the returned candidate as an elected Director was entitled to enter into contract with the company and make profit from such contract. He invited our attention to Section 10 of the 1951 Act and Article 102(1)(a) of the Constitution and submitted that the facts clearly demonstrate that the returned candidate was holding the 'office of profit'.

8. On the other hand, Mr. Saurav S. Shamshery, learned counsel for the respondent, stoutly defended the findings recorded by the High Court. He also invited our attention to a decision of this Court in Pradyut Bordoloi Vs. Swapan Roy, AIR 2001 SC 296 in support of his argument that the first and foremost thing that the election petitioner, in a case as the present one, is required to show is whether the Government has appointed the r