Travelling allowance given to government servants is not an office of profit if it is merely for reimbursement of out-of-pocket expenses and not for remuneration.

Sahai, J.

1. This appeal relates to election to the Bihar State Legislative Assembly from the Jehanabad double-member constituency. Fida Hussain, respondent No. 1 has been declared elected to the general seat, and Mahabir Chaudhari, respondent No. 2, has been declared elected to the seat reserved for scheduled castes. Karu Lall, petitioner No. 1, is an elector, and Shakti Kumar, petitioner No. 2, was one of the candidates for election. Mr. A. K. Saran, the only member of the Election Tribunal at Gaya, has, by his order dated the 15th January, 1958, dismissed the two petitioners election petition for declaring the election of the returned candidates to be void, and hence they have preferred this appeal.

2. Out of the sixteen candidates, nine sought election to the general seat and seven to the reserved, seat. I need not mention all their names but I give below the names of some of the candidates with the party to which they belonged, the seat for which they were candidate and the number of votes which they secured.

Name.Party.Seat.Number of votes secured.

Fida Hussain (Respondent No. 1)CongressGeneral13,772

Ramanand SharmaJanataGeneral9,108

Sheobhajan Singh (sitting member)Praja SocialistGeneral7,371

Mahanand SinghIndependentGeneral2,371

Ram Chandra SharmaIndependentGeneral5,220

Mahabir Chaudhari (Respondent No. 2)CongressReserved11,559

Shakti Kumar (Petitioner No. 2)IndependentReserved3,031

3. The petitioners case is that the nomination papers of Ramanand Sharma, Mahanand Singh and Fida Hussain were all improperly accepted because they were disqualified for one reason or another, and that the result of the election has been materially affected by such improper acceptance. It is also their case that the returned candidates have, by themselves pr through their agents, been guilty of corrupt practices Respondents Nos. 1 and 2 have, oil the other hand, denied these allegations.

4. The tribunal has held that Ramanand Sharma was disqualified under Section 7(d) of the Representation of the People Act, 1951 (hereinafter to be referred to as the Act) from being elected as a member of the Bihar State Legislative Assembly because, at all material times, he was a partner in the contract for construction of the Ghosi National Extension Service Block buildings, which was an undertaking of the State Government. It has also held that Mahanand Singh was disqualified under the same provision for election to the Assembly because he had taken a contract under the Agriculture Department of the Government of Bihar, and the contract was subsisting at all material times. It has, however, held that the result of the election has not been materially affected owing to the acceptance of their improper nomination papers.

5. Admittedly, Fida Hussain, respondent No. 1, was one of a large number of persons who were appointed to be honorary Inspectors of minor irrigation works under the emergency irrigation drive of the Revenue Department of the Government of Bihar. Though he was not to get any salary or remuneration, he was entitled to draw travelling allowance admissible to Government servants of the second grade. The petitioners asserted that he held an office of profit within the meaning of Article 191 of the Constitution and was, therefore, disqualified. The Tribunal has held that Fida Hussain held an office; but it was not an office of profit. The Tribunal has also refused to accept any of the allegations of corrupt practice made by the petitioners.

6. Mr. K. P. Varma, appearing on behalf of the petitioners appellants, has not challenged the finding that Ramanand Sharma and Mohanand Singh were disqualified from being elected to the Assembly because those findings are in their favour. He has, however, challenged the finding that the result of the election has not been materially affected by reason of acceptance of their nomination papers. On the other hand, Mr. K. D. Chatterji who has appeared on behalf of the respondents, has submitted that he d