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1967 Supreme(All) 124
Allahbad High Court
G.D.SAHGAL
Balak Ram Vaish - Appellant
Versus
Badri Prasad Avasthi - Respondent
Decided On : 10/27/1967
Bishen Singh, for Applicant; S.D. Misra for Opposite Party.
The office of panel lawyer for Gaon Sabhas in the Tahsil of Mohanlalganj was an office of profit under Article 191 of the Constitution because it was an office under the State Government, was remunerated by fees, and was not exempt from disqualification under the U.P. Act XIX of 1951 and U.P. Act XIII of 1952.
Headnote:
Petitioner challenged the election of respondent on the grounds that he held an office of profit under the U.P. Home Guards Adhiniyam, 1963, and was a panel lawyer for Gaon Sabhas in the Tahsil of Mohanlalganj, both of which were offices of profit under Article 191 of the Constitution. The Court held that respondent did not hold an office of profit under the Adhiniyam, but did hold an office of profit as a panel lawyer. The Court also held that respondent was not exempt from disqualification under the U.P. Act XIX of 1951 and U.P. Act XIII of 1952. The Court further held that respondent's failure to show certain expenses in his return of expenses did not amount to a corrupt practice under Section 123(6) of the Representation of the People Act, 1951.
Fact of the Case:
Petitioner challenged the election of respondent on the grounds that he held an office of profit under the U.P. Home Guards Adhiniyam, 1963, and was a panel lawyer for Gaon Sabhas in the Tahsil of Mohanlalganj, both of which were offices of profit under Article 191 of the Constitution.
Finding of the Court:
The Court held that respondent did not hold an office of profit under the Adhiniyam, but did hold an office of profit as a panel lawyer. The Court also held that respondent was not exempt from disqualification under the U.P. Act XIX of 1951 and U.P. Act XIII of 1952. The Court further held that respondent's failure to show certain expenses in his return of expenses did not amount to a corrupt practice under Section 123(6) of the Representation of the People Act, 1951.
Issues: 1. Whether respondent no. 1, the returned candidate, is an adjutant under the U. P. Home Guards Adhiniyam, 1963? If so, does he hold an office of profit within the meaning of that term under Article 191 of the Constitution and as such was he not eligible for and was disqualified to be elected to the U. P. Legislative Assembly? 2. Whether respondent no. 1 holds an office of profit within the meaning of that term under Article 191 of the Constitution on account of his being a panel lawyer of the Gaon Sabhas in the Tahsil of Mohanlalganj? 5. Has respondent no. 1 failed to show the expenses incurred by him on the polling day in his return and were such expenses incurred at all on that date? Has he failed to show in his return of expenses a sum of Rs. 50 advanced by him to one Chamman? If respondent no. 1 has failed to show the expenses incurred by him on the polling day and/or to show in his return the expenses to the extent of Rs. 50 advanced by him to Chamman, will it amount to a corrupt practice under section 123(6) of the Representation of the People Act, 1951?
Ratio Decidendi: The Court held that respondent did not hold an office of profit under the Adhiniyam because he was not an adjutant under the Adhiniyam, but was an adjutant under a prior Government Scheme. The Court also held that respondent did hold an office of profit as a panel lawyer because he was appointed by the State Government, was under the control of the State Government or its officers, and received remuneration for his services. The Court further held that respondent was not exempt from disqualification under the U.P. Act XIX of 1951 and U.P. Act XIII of 1952 because the office of panel lawyer was not an office of special duty, was not honorary, and was not remunerated by compensatory allowance. Finally, the Court held that respondent's failure to show certain expenses in his return of expenses did not amount to a corrupt practice under Section 123(6) of the Representation of the People Act, 1951, because the corrupt practice in Section 123(6) only covers the incurring or authorizing of expenditure in contravention of Section 77(3), which prohibits exceeding the prescribed limit on election expenses.
Final Decision: The Court declared the election of respondent void and ordered that the petitioner be declared elected as a member of the U. P. Legislative Assembly.
SAHGAL, J. :- At the last general election held on the 15th of February, 1967 there were eleven candidates for election to the U. P. Legislative Assembly from the Lucknow Cantonment Constituency No. 104. A declaration was made on the 23rd of February, 1967 of the result of the election and respondent no. 1 was declared duly elected. This petition has been filed by one of the candidates Balak Ram Vaish challenging that election with a prayer that the election of Badri Prasad Awasthi (respondent no. 1) be declared void and that the petitioner be declared elected as a member of the U. P. Legislative Assembly.
2. Respondent no. 1 was an adjutant in the Home Guards Organisation and one of the grounds taken in the petition is that being an adjutant under the U. P. Home Guards Adhiniyam, 1963, (hereinafter to be described as the Adhiniyam), he held an office of profit within the meaning of that term under Article 191 of the Constitution and as such was disqualified for being chosen as, and for being a member of the U. P. Legislative Assembly.
3. It was also pleaded that respondent No. 1 was a panel lawyer having been appointed by the State Government to conduct suits and other proceedings by and against the Gaon Sabhas in the Tahsil of Mohanlalganj, district Lucknow with effect from the 15th of September, 1965, the appointment being made by the State Government of Uttar Pradesh under Section 127-B of the U. P. Zamindari Abolition and Land Reforms Act (Act I of 1951) (hereinafter to be described as the Abolition Act) and this post also was an office of profit within the meaning of that term under Article 191 of the Constitution thus disqualifying him for being chosen as, and for being, a member of the Legislative Assembly.
4. The petitioner also pleaded that respondent no. 1 had not maintained accounts in accordance with the provisions of section 77 of the Representation of the People Act, 1951 (hereinafter to be described as the Representation Act) and he had failed to show in his return of expenses a sum of Rs. 50 advanced by him to one Chamman. He had also failed to show the expenses incurred by him on the polling day. This amounted, according to the petitioner, to a corrupt practice under section 123(6) of the Representation Act.
5. Respondent no. 1 denied that he was an adjutant under the Adhiniyam but claimed that he was one under a Government Scheme promulgated prior to the Adhiniyam. His contention was that whether he be an adjutant in the Home Guards under the Adhiniyam or under the Scheme, he did not hold an office of profit and, even if he held an office of profit he was exempt from the disqualification mentioned in Article 191 of the Constitution under the provisions of U. P. Act XIX of 1951 and U. P. Act XIII of 1952.
6. It was admitted that respondent no. 1 was a panel lawyer of the Gaon Sabhas in the Tahsil of Mohanlalganj but it was denied that it amounted to his holding of an office of profit and in this case also it was pleaded, though unfortunately no issue seems to have been struck, specifically on this aspect of the case, that he was exempt from disqualification, if any under the two Acts, referred to above. The fact that no issue has been struck on this aspect of the case is not material as it is a pure question of law and I have been addressed on this aspect of the case also.
7. As to the expenses incurred on the polling day, it was pleaded that no expenses were incurred by respondent no. 1 on the polling day and that the amount of Rs. 50 advanced by him to Chamman has been entered in the return of expenses. In any case, it was asserted that the failure to show the expenses incurred on the polling day or the payment of a sum of Rs. 50 advanced to Chamman in the return of expenses did not amount to a corrupt practice under section 123(6) of the Representation of the People Act.
8. There were other pleas also taken in the case, but we are not concerned with those pleas and they are not to be determined at this s
