JUDGMENT - This election petition under section 81 of the Representation of the People Act, 1951, has been filed by the petitioner Motisingh to call in question the election of respondent Bhaiyyalal to the Maharashtra Legislative Assembly from the Tiroda Constituency, held in February 1967.

2. Respondent Bhaiyyalal was elected the Vice-President of Zilla Parishad, Bhandara, in about November 1962. In view of the provisions of section 83 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Maharashtra Act No. V of 1962), hereinafter called the Act, he has been the ex-officio Chairman of two Subjects Committees. He has been continuing to hold that position of Vice President of the Zilla Parishad and Chairman of the Subjects Committees all along from November 1962 till now. As the Chairman of the Subjects Committees, he is, under the provisions of section 84 of the Act, entitled to get, and has been getting, what is called an honorarium of three hundred rupees per month and the use of a free furnished residential accommodation or, in lieu thereof such house rent allowance as may be prescribed by the Zilla Parishad. He is also entitled to get a permanent traveling allowance of Rs. 175 per month out of which Rs. 50 are deducted on account of the hire of a jeep kept at his disposal. In addition, he is entitled to a daily allowance as prescribed by the Government under the rules. These facts were specifically admitted before me and represented the common ground between the parties.

3. The case for the petitioner was as follows: - The office of Vice President-cum-Chairman of the Subjects Committees held by the respondent was under the control and supervision of the state Government for all practical purposes. The provisions of the Act and the rules framed thereunder showed that the office was, in fact, held under the State Government. The respondent was paid a salary from the public revenues and was also provided with the amenities of a jeep and residential accommodation or a rent in lieu thereof, at the cost of public revenues. While performing his official duties, he is governed by the rules pertaining to travelling and other allowances as framed by the Government and his leave also is sanctioned by the State Government. He s liable to be removed from his office by the Government. For all these reasons, the office held by the respondent was an office of profit under the State Government on the date of election and he was, therefore, disqualified under Article 191 (1) (a) of the Constitution from being chosen as a member of the Legislative Assembly. His election should be declared void under section 100 (1) (a) of the Representation of the People Act, 1951.

4. Respondent Bhaiyyalal contested the claim of the petitioner on the ground that he was not getting any honorarium or any other kind of payment in his capacity as Vice-President and no allegations were made in the petition with regard to the office of the Chairman of the Subjects Committees which he held ex-officio as the Vice-President of the Zilla Parishad. He further contended that even if the two offices were one, they were not under the control or supervision of the Government and did Dot carry any remuneration and gave no scope for profit and he was ordinarily not removable from office by Government. Consequently, he did not hold an office of profit under the State Government and there was no question of his being disqualified under Article 191 (1) (a) of the Constitution of India.

5. The following issues were framed and my findings thereon are stated opposite: -

Issues. Findings.

1 (a).Is the office of Vice-President, Zilla Parishad, Bhandara, which the respondent was holding on the date of the nomination and election to the State Legislative Assembly in 1967, an office of profit under the State Government, within the meaning of Article 191 (1) (a) of the Constitution ?

It is not an office of profit under the State Government.

1 (b).Does this alleged

Click Here to Read the rest of this document