The material date for appraising the existence or otherwise of a disqualification is the date of the election itself, and the court's discretion in declaring an authorized person to fill in the office is limited.

1. This petition challenges the election of the first respondent to the Cochin Devaswom Board constituted under the Travancore Cochin Hindu Religious Institutions Act, 1950, (hereinafter referred to as the H.R.I, Act, 1950) on the ground that he was not eligible for election as a member of the Board under S. 66(iii) of that enactment. The first prayer in the petition is:

"to issue a writ of quo warranto calling upon the respondent to furnish information as to the authority under which the respondent is functioning as a member of the Cochin Devaswom Board at present and also to declare that the respondent is not authorised to fill in that office as he has not been legally and properly elected."

2. S. 66(iii) provides that a person shall not be eligible for election if he is an office-holder of a local authority and the 1st respondent was, it is admitted, the Chairman of the Trichur Municipality on 4.6.1954, the date of his nomination and election under the rules in schedule II to the Act and till 12.6.1954 when his resignation by his letter dated 8.6.1954 was accepted by the Municipality. The term "local authority" is defined in S. 2(20) of the Travancore Cochin Interpretation and General Clauses Act, 1125, as meaning:

"A Municipal corporation or Council, a Town Council, or other authority legally entitled to or entrusted by the Government with the control or management of a municipal or local fund."

and it was not disputed before us that the Trichur Municipality, a Municipality constituted under the Cochin Municipal Act, XVIII of 1113, is a local authority whose "office-holders" are disqualified for membership of the Board under S. 66(iii) of the H.R.I. Act, 1950.

3. The 1st respondent's contention was not that "office-holders" were not disqualified but that the term "office-holder" in S. 66(iii) of the H.R.I. Act, 1950, means only an'officer' and as the Chairman is not an officer of a Municipality under the Cochin Municipal Act, XVIII of 1113 - the term "office-holder" does not occur in that enactment but one of the Municipal Authorities specified in S. 6 of that Act he cannot be considered as disqualified under S. 66(iii) of the H.R.I. Act, 1950. As to what exactly is meant by the term "office-holder" in S. 66(iii) of the H.R.I. Act, 1950, has to be resolved with reference to the provisions of that Act itself. S. 87(i) of the Act refers not merely to office-holders but also officers and servants and on going through the various sections of the Act where the terms occur we are satisfied that though the words 'officer' and 'servant' have been created an inter-changeable or as denoting two gradations in the official hierarchy, the word 'office-holder' has been kept distinct and separate by the legislature as denoting something superior to the officers and servants of the Board and of the institutions under its control or management; something quite different from an employee serving under a contract of employment.

4. A further contention of the 1st respondent on this aspect of the case was that nothing should be

termed as an "office" unless there is a remuneration attached to it and as the Chairmanship of the Trichur Municipality carried no remuneration but only a conveyance allowance he cannot be deemed to be a holder of an office within the meaning of the Hindu Religious Institution Act, 1950. We see no warrant for this contention. An office without fees or perquisites will none the less be an office and in cases like the present the only test will be whether the particular office -honorary or lucrative- is the creature of a statute and is of a public nature.

5. The only conditions which under English law an office should satisfy for an information in the nature of a quo warranto to lie are:

(i) that it must be held under the Crown or have been created by Charter or Statute;

(ii) that its duties are of a public nature; and

(iii) that it must be substantive in character or independent in title - whether permanent or at plea