Judgment :

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 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 (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 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).

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 ap