2005 Supreme(Bom) 1024

IN THE HIGH COURT OF BOMBAY
SARDAR SURJEETSINGH
Versus
STATE OF MAHARASHTRA
Decided on : AUGUST 10, 2005

Headnote:Affidavit - Verification of. A statement of fact by a deponent takes the colour of an affidavit when it is duly sworn being stated on oath and properly verified. Otherwise, it is a mere piece of paper having no evidentiary value. Every statement of fact in an affidavit is essentially to be verified disclosing the source of information unless the fact is to the personal knowledge of the deponent, and it is either to be stated so or revealed from the statement itself.

       CONSTITUTION OF INDIA, 1950 - Article 158(2) The expression "any other office of profit" would include an office which is not under the control of the Government. The provisions comprised under Article 158(2) of the Constitution relates to "any other office of profit" which means even an office other than one controlled by the Government either in relation to its activities or even in relation to source of remuneration could be an office of profit. In other words, an office spoken of under Article 158(2) would include an office which is not under the control of the Government.

       CONSTITUTION OF INDIA, 1950 - Article 158(2) Office of profit Decisive factor Once the office is attached with such benefits or profits, it is immaterial whether such profits or benefits are actually availed or not. The provision comprised under Article 158(2) of the Constitution speaks about holding of any other office of profit. It does not speak of actually enjoying or availing the profit attached to such office. Whether such profits or benefits are actually availed of or enjoyed or not by the holder of office is immaterial. Once the office is attached with such benefits or profits, it would be an office of profit. The decisive factor would be the attachment of such profit and not the actual enjoyment or actual availing of such profits by the holder of such office. Being so, merely because the affidavit is filed on behalf of the respondent No. 1 stating that no such remuneration would be claimed by the respondent No. 4, that will not make the office held by the respondent No. 4 as an office of ’no profit’ or without profit.

       CONSTITUTION OF INDIA, 1950 - Article 158(2) Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchal Nagar Sahib Act, 1956, Section 53 Office of member or the President of Gurudwara Committee is an office of profit within the meaning of the expression "any other office of profit" under Article 158(2). Office of member or the President of Gurudwara Committee is an office of profit within the meaning of the expression "any other office of profit" under Article 158(2) of the Constitution. It was obligatory on the part of the respondent No. 1 to take appropriate steps in terms of Section 53 of the Act of 1956 consequent upon the appointment of the respondent no. 4 as the Hon’ble Governor of State of Bihar since November, 2004 to relieve the respondent No. 4 of the said office and having failed to do so, the petitioners are entitled for the reliefs in the nature of prayer clause (B).

       CONSTITUTION OF INDIA, 1950 - Article 158(2) Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchal Nagar Sahib Act, 1956, Section 53 Honorarium payable to member or the President of Gurudwara Committee Not related to any expenditure towards discharge of any official duty It would be the ’profit’ within the meaning of the expression ’profit’ under Article 158(2). The word "profit" connotes an idea of pecuniary gain and does not include amount paid towards reimbursement of the expenses for discharge of official duties, if one peruses the provisions of clause 15 of the said bye-laws, it relates to the payment of honorarium. It becomes, at once, clear that such honorarium is merely on account of being the holder of the office of the P resident of the Gurudwara Committee. It has nothing to do with the expenditure incurred in discharge of his official duties. Being so, merely because it is nomenclatured as "honorarium", though it would not by itself decide whether it would be profit or otherwise. Once it is revealed that such honorarium is not related to the expenses to be incurred for discharge of any official duty, that would certainly be the ’profit’ within the meaning of the said expression under Article 158(2) of the Constitution.

       CONSTITUTION OF INDIA, 1950 - Articles 361(4) and 158(2) Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchal Nagar Sahib Act, 1956, Section 53 Grievance of the petitioner that the respondent No. 4 having entered the office of the Governor of State of Bihar cannot be continued as a Member or President of the Gurudwara Maintainability of petition nowhere challenges any act on the part of Governor Petition essentially relates to the failure on the part of the respondent No. 1 which was required to take necessary action consequent upon the respondent No. 4 entering the office of Hon’ble Governor of State of Bihar since November last No relief claimed against the respondent No. 4 Preliminary objection regarding non-maintainability of the petition in view of the provisions comprised under Article 361(4) of the Constitution of India is not tenable, and hence rejected. Perusal of the writ petition and considering the arguments of the petitioners evidently the petition relates to the grievance of the petitioner that the respondent No. 4 having entered the office of the Governor of State of Bihar cannot be continued as a Member or President of the Gurudwara Committee. It essentially relates to the failure to exercise of powers by and obligation of the State of Maharashtra, in that regard, in the absence of the respondent No. 4 himself taking proper steps to do the needful. The controversy which is sought to be raised on behalf of the petitioners does not relate to any act of the respondent No. 4 either as the Governor of State of Bihar or otherwise, but essentially it relates to the inaction on the part of the respondent No. 1 in terms of Section 53 of the said Act. There being no relief claimed against the respondent No. 4 and the relief being essentially in relation to the failure on the part of the respondent No. 1 to perform its duties in terms of Section 53 of the said Act read with article 158(2) of the Constitution, the preliminary objection regarding non-maintainability of the petition in view of the provisions comprised under Article 361(4) of the Constitution of India is to be held as not tenable, and hence rejected.