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2010 Supreme(Bom) 1055
In the High Court of Bombay at Nagpur
A.P. LAVANDE
Gajanan Samadhan Lande
Versus
Sanjay Shyamrao Dhotre
ELECTION PETITION NO.1 OF 2009
Decided on : 30-07-2010
Mr. S.V.Bhutada with Mr. Alok Daga, Advocates for the petitioner. Mr. A.M.Gordey, Senior Advocate with Mr. Amol. B. Patil, Advocate for the respondent.
Headnote:Representation of the People Act, 1951 - Sections 10 and 100(1)(a)-Constitution of India, Article 102(1)(a)-Election-As a Member of Parliament-Disqualification-Holding of office of profit under Government-Director of Maharashtra Seeds Corporation Ltd. not holds office of profit under Government-Not disqualified to be Member of Parliament-His election as Member of Parliament cannot be set aside.-In the present case neither the State Government has right to remove the Director (including respondent) of the Corporation nor the Government pays any remuneration to the respondent. The functions performed by the respondent as a Director of Corporation cannot be said to be carried on by him for the Government nor the Government has control over his duties and functions. Therefore, in considered opinion, the submission that the respondent is holding the office of profit under the Government cannot be accepted.
There is absolutely no evidence led by the petitioner that the respondent has been authorised to represent the Corporation is entering into an agreement with the third parties. The mere fact that the respondent is a Director of the Corporation would not make him an agent of the Corporation and as such there is no question of respondent being considered as managing agent of the corporation.
Court, therefore, holds that the respondent is not disqualified to be Member of Parliament either under Article 102(1)(a) of the Constitution of India or under Section 10 of The Representation of the People Act, 1951.
By this petition, the petitioner has challenged the election of the respondent to the 15th Lok Sabha from Akola Constituency. The challenge is on the anvil of Section 100(1)(a) of the Representation of the People Act, 1951 ("The Act" for short) read with Article 102(1)(a) of the Constitution of India. The petitioner's challenge is also based on Section 10 of the Act.
2. The case of the petitioner is that the Maharashtra Seeds Corporation Limited (hereinafter referred to as "The Corporation") is a Corporation controlled by the State Government. The respondent at the time of his election was a Director elected from Growers constituency and he was ineligible to be a candidate for the said election since he was holding the office of profit. According to the petitioner, since the appropriate Government was holding 49% shares in the Corporation, the respondent attracts disqualification. It is further the case of the petitioner that the respondent is managing agent and as such also disqualified to be elected as Member of Parliament. It is also the case of the petitioner that since National Seeds Corporation Limited holds 35.44% shares in the Corporation the respondent suffers disqualification in terms of Section 10 of the Act. It is further the case of the petitioner that the respondent being Director of the Corporation receives various types of allowances from the Corporation which are in the nature of the emoluments and, therefore, he is holding the Office of profit under the Government.
3. The respondent filed written statement denying the statements made in the election petition. According to the respondent, the petition is not maintainable. The Office of Director held by the respondent is not an office under the Government.
4. It is further the case of the respondent that the amount received by the respondent by way of allowances is not in the nature of profit but it is by way of the reimbursement of actual expenses. It is further the case of the respondent that the Government has no right to remove or dismiss the respondent from the post of Director of the Corporation nor he discharges functions for and on behalf of the Government. According to the respondent, the Government has no control over the performance of functions of respondent as a Director of the Corporation. The respondent does not hold the office of profit under the Government as contemplated under Article 102 of the Constitution of India and as such he is not liable to be disqualified in terms of Section 10 of the Act and consequently the petition is liable to be dismissed. The respondent further claims that he is not managing agent of the Corporation.
5. On the basis of the pleadings of the parties after hearing the parties the following issues were framed.
1) Whether the petition is maintainable?
2) Whether the office of Director of Maharashtra Seeds Corporation Limited (MSSCL) held by the respondent is an office under the Government?
3) Whether the petitioner proves that the amount received by the respondent being Director of MSSCL is in the nature of profit?
4) Whether the respondent proves that the amount received by him from MSSCL is the reimbursement of actual expenses?
5) Whether the petitioner proves that the respondent being Director of MSSCL the Government is in a position to influence the respondent as to interfere with his independence in functioning as a member of parliament?
6) Whether the respondent proves that he has been elected to the post of Director of MSSCL from Grower Shareholders category from Akola (Vidarbha Division) Constituency by the Grower Shareholders of MSSCL?
7) Whether the petitioner proves that the Government has right to remove or dismiss the respondent from the post of Director of MSSCL?
8) Whether the petitioner proves that the respondent by virtue of being a Director of MSSCL performs the functions for and on behalf of the Government?
9) Whether the petitioner proves that the Government has control over the performan
