MAULANA ABDUL SHAKUR v. September 12

KAPUR, J.-This is an appeal frQm the order of the Election Tribunal dated January 31, 1957, setting aside the election of the appellant, Maulana Abdul Shakur, who was elected to the Council of States by the Electoral College of Ajmer which consisted of 30 members constituting the State Legislature of Ajmer. He received 19 votes as against 7 polled in favour of the other candidate who is respondent No. l in this appeal. The total number of valid votes polled was 26 and there were 3 invalid votes. The result of the election was published in the Official Gazette on March 31, 1957, declaring the election of the appellant. The unsuccessful candidate, the present first respondent, filed his election petition on May 2, 1956. It is not necessary to set out all the allegations in the petition because the main controversy between the parties is whether the successful candidate, the present appellant. held an "office of profit" under the Government.

The impugned election was held on March 22, 1956. By a notification issued on February 17, 1956, the nominations for candidature were to be filed between February 28, 1956, and March 1, 1956. The date for scrutiny was March 5, 1956, and for the polling March 22, 1956. The appellant filed two nomination paper5 on February 28, 1956, and a third one on March 1, 1956. The respondent Rikhab Chand Jain also filed his nomination papers on March 1, 1956. On March 1956, the respondent Rikhab Chand Jain raised certain objections to the validity of the appellant's nomina tion, the main ground being that the appellant was holding an office of profit under the Government. The Returning Officer by his order dated March 6, 1956, rejected the two nomination papers of the appellant filed on February 28, 1956, but accepted the third one, i.e., of March l, 1956, because, according to that officer, S.C.R. SUPREME COURT REPORTS 389 19s1 Shakur Another Kapur J. under the provisions ot Uurgah Khwaja Saheb (Erner- gency Provisions) Act, 1950 (XVII of 1950) which was Maulana Abd 1 in force up to February 29, 1956, the appellant was " holding an office of profit under the Government but Rikhabch"and and on the coming into force of the Durgah Khwaja Saheb Act (XXXVI of 1955) on March 1, 1956, he no longer held such office under the Government.

On May 3, 1956, the respondent filed an election petition· under s. 81 of the Representation of the People Act, 1951, in which he submitted that the third nomination paper of the appellant should also have been rejected as even under the provisions of Durgah Khwaja Saheb Act (XXXVI of 1955), the appellant was holding an office of profit under the Goverment and therefore his ~ase was covered by the provisions of Art. 102 (l)(a) of the Constitution. He also prayed that he be declared elected as the votes cast in the appelant's favour were "thrown away" votes and respondent . alone received a majority o( valid votes. A majority of the Election Tribunal by their order dated January 31, 1957, held that on March 1, 1956 the appellant was holding an office of profit under the Government and therefore his nomination paper was hit by Art. 102(1) (a) of the Constitution. They set aside his election and accepting the contention as to "thrown away" votes declared respondent elected.

Disagreeing with the majority, the Chairman of the Election Tribunal held that on March l, 1956, the appellant was no longer holding an office of profit under the Government, his nomination paper was rightly accepted and his election was valid and there fore the respondent could not be declared elected. On the question whether the two nomination papers of the appellant dated February 28 , 1956, were valid or not the Tribunal unanimously held them to be invalid on the ground that the appellant held an office of profit under the Government on that date. It is not necessary to go into the question whether the two nomination papers filed by the appellant on February 28, 1956, were valid or not because if the nomination paper filed on March I, 1956, is valid the It may question of their validity would not arise. 390 SUPREME COURT REPORTS [1958} 1957 Shakw Another Kapur 1. here be stated that the argument before us has Maulana Abdul proceeded on the assumption that the appellant held office of profit.

The controversy between the Rikhabch'and and parties was therefore confined to whether this office of profit was held under the Government of India and therefore the disqualification for membership under Art. 102 (I) (a) applies to the appellant. In order to important question of resolve this controversy the construction that arises is : was the appellant holding an office of profit under the Government of India and does Art. 102 (1) (a) of the Constitution operate? This article is as follows: 102(1) "A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament- ( a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; " This article occurs under the heading Disqualifications of Members. In the same part of the Constitution, i.e., Part V, are given the disqualifications for election to the offices of President and Vice-President.

The relevant part of Art. 58 which lays down the disquali fication for the office of the President is: Art. 58(1) "No person· shall be eligible for election as President unless he- (a) ....••.................................... (b) ........••................................ (c) ......................................... . (2) A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority su~ject to control of any of the said Governments. " There is a similar provision in regard to the Vice-President in Art. 66 (4). Counsel has rightly pointed out the difference in the language between the two articles. Whereas in the case of the President and Vice-President the holding of an office of profit under an authority subject to the S.C.R. SUPREME COURT REPORTS 391 control of the Government is a disqualification, it is not so prescribed in the case of members of the Maulana Abdul legislatures.

Slrakur 1957 The Madarsa Durgah Khwaja Saheb Akbari in which Rikhab~hand and Another ,Kapur J, the appellant held the appointment of a manager is a school for teaching Persian, Arabic (mohatmin) and Muslim theology. Before 1961 it was managed and run by the Government of the Nizam of Hydera- In 1951 this school was taken over by the bad. Durgah· Committee. On February 28, 1955, the appel- lant was given an honorary appointment of mohatmin (manager) of the school by the Administrator of Durgah Khwaja Saheb. He was to work under the Administrator and was to hold charge of the manage- ment of the school. But from May 1955 he was being paid Rs. 100 per month which has been variously described as salary and honorarium. Counsel for the appellant raised three questions of construction that this appointment as manager of the school amounted neither to an office nor to an office of profit nor to an office of profit under the Government.

A decision favourable to the appellant on the last question, i.e., office of profit under the Government, would render the decision of the other two questions wholly unnecessary and therefore assuming that the appellant held an office of profit, the question remains: was it an office of profit under the Government and therefore fell within Art. 102 (l)(a) of the Constitution In order to determine this we have to examine the provisions of the Statute under which the appointing authority came into existence and its powers under the statute. Before and up to 1936 the Durgah K.hwaja Saheb Endowment was administered by a committee which was constituted by the Chief Com missioner of Ajmer under s. 7 of the Religious Endow ments Act (XX of 1863). the then Central Legislature enacted the Durgah Khwaja Saheb Act (XXIII of 1936). By the provisions of that Act the management and administration was vested in Durgah Committee constituted under s.

4 of the Act. It was a body corporate with perpetual succession and com mon seal having the right to sue and be sued in the In 1936 392 SUPREME COURT REPORTS [1958] 1957 Shakur name of the president of the Committee. Under s. 5 Maulana Abdul which dealt with the constitution of the Committee it was to consist of 25 members some of whom were Rikhabc'l;,,,,,i and elected and some nominated. Section I l(f) of the Act gave to the Committee the power to appoint all its servants. Kapur J. Another The Act of 1936 was replaced by the Durgah Khwa ja Saheb (Emergency Provisions) Ordinance 3 of 1949, in turn was replaced by the Durgah Khwaja Saheb (Emergency Provisions) Act (XVII of 1950). By s. 3 of that Act the Durgah Committee constituted under the Act of 1936 was superseded and the manage ment was vested in an Administrator appointed by the Central Government who under s. 7 was to be under the control of the Central.

Government and had all the powers, of the committee constituted under the Act of 1936. That Act continued to be in force up to February 29, 1956, and it ',\1as during its continuance the appellant filed two nomination papers on February 28, 1956, which were rejected by the Return- . ing Officer. The Act of 1950 was replaced by the Durgah Khwaja Saheb Act (XXXVI of 1955) which received the assent of the President on October 14, 1955, but came into force on March 1, 1956. Unders.4(1) of this Act the administration, control and management of the Durgah Endowment came to be vested in a Committee, which is a body corporate having perpetual succession and common seal and which can sue and be sued through its President. Under s. 5 the Com mittee is to consist of not less than 5 and not more than 9 members of the Hanafi Muslim faith all of whom are to be appointed by the Central Government. Section 8 gives power to the Central Government to supersede the Committee.

Under s. 9 the Central Government in consultation with the Committee can appoint a Nazim (administrator) of the Durgalz who is an ex-officio secretary of the committee. His salary is to be fixed by the Central Government but is to be paid out of the revenues of the Durgah Endowment funds. The Committee exercises its power of adminis tration, control and management through the Nazim. S.C.R. SUPREME COURT REPORTS 393 The powers and duties of the Committee are given in s. l l of the Act; clause (i) of this section which relevant for the purpose of this case when quoted runs as under: . s. 11 "The powers and duties of the Committee 1957 is Ma11la11a Abtlw Sh::ur Rikhabc/1a11d am/ A11other Kapur J. shall be- • • • • • • ' • •· • • • ' • • • • • • • • • .,. •r• • • • • • • • • • • • • • • • • •.- • •· • • • (i) to appoint, suspend or dismiss servants of the Durgah Endowment. " Under s. 20 the Committee has the power to make bye-laws to carry out the purposes of the Act, and the respondent emphasised clause (i) of sub-s.

2 which provides : s. 20 (2) "In particular and without prejudice to the generality of the foregoing power such bye-Jaws. may provide for- ..................................... •· ......... . (i) the duties and powers of the employees of the Durgah. " Sub-section 5 of this section is as follows: "(5) The Central Government may, after previous publication of its intention, cancel any bye-law which it has approved and confirmed, and thereupon the bye-Jaw shall cease to have effect. " The respondent contended that because under the Act of 1955, the Committee of Management is to be appointed by the Government who also appoint the Nazim (administrator) through whom the Committee acts and because under s. 6 (2) the Government has the power of removal from office of any member of the Committee and because the Committee can make bye laws prescribing the duties and powers of the emplo yees of the Durgah, the appellant was under the con trol and supervision of the Central Government and therefore he was holding an office of profit under the Government of India. to note that in laying down the disqualifications of the President and the Vice-President the Constitution 'has expressly provided the disqualifications which include not only an office of profit under the Government of India or It is significant 394 SUPREME COURT REPORTS [1958] 1957 the Government of any State but also an office of profit Maulana Abdul under any local or other authority subject to the con- trol of any of the said Governments.

This last dis- Rikhabc~and and qualification the Constitution does not make applicable Shakur Another KapurJ. to the members of the legislatures. No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four comers of the Act. Merely because the Committee or the members of the Committee are removable by the Government of India or the Com mittee can make bye-laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the Committee into holders of office of profit under the Government of India. The appel lant is neither appointed by the Government of India nor is removable by the Government of India nor is he paid out of the revenues of India. The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor.

But the appointment of the appel lant does not come within this test. A number of election cases reported in the Election Law Reports were cited before us but they were decided on their own facts and are of little assistance in the decision of the present case. The test of the power of dismissal by the Government or by an officer to whom such power has been delegated which was pressed in support of his case by the respondent is inapplicable to the facts of the present case equally the appellant cannot be dismissed by the because a person so authorised by the Government or by Government. He is a servant of a statutory body powers conferred upon it by in the matter of its servants acts within the statute. The respondent then sought to fortify his sub missions by relying on Shivnandan Sharma v. The S.C.R. SUPREME' COURT REPORTS 395 1957 Shakur Another Kapur J. Industrial Disputes Act and the question for Maulana Abdul Punjab National Bank Ltd., (1) That was a case under decision was whether a cashier appointed by the Bank's treasurer on behalf of the Bank and paid by the Bank Rikhabc"hand and was a servant of the Bank.

It was held that he was. The rule of that case is that if the master employs a servant and authorises him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the thus appointed by the servant would be, employees equally with the servant, servants of the master. But that again has no application to the facts of the because the appellant has not been present case employed by a servant of the Government who authorised to employ servants for doing some service for the Government nor is he paid out of Indian revenues. No doubt the non-payment from out of the revenues of the Union is not always a factor of any is of some importance in the consequence but its circumstances of this case. A comparison of the different articles of the Con stitution 58 (2), 66 (4) 102 (1) (a) and 191 (1) (a) dealing with membership of the State Legislatures shows in the case of members of the Legislatures unlike the case of the President and the Vice-President of the Union the gisqualifiatcion arises on account of holding an office of profit under the Government of India or the Governments of the States but not if such officer is under a local or any other authority under control of these Governments.

As we have said the· power of appointment and dismissal by the Govern ment or control exercised by the Government is an important consideration which determines in favour of the person holding an office of profit. under the - Government, but the fact that he is not paid from out of the State revenues is by itself a neutral factor. It has not been shown that the ;tppellant's appoint ment as a mohatmin (manager) of the school satisfies any of the tests which have been discussed above. On the other hand on March 1, 1956, he was holding (1) [1965] I. S. C.R. 1427] 51 396 SUPREME COURT REPORTS [1958) 1957 Shakur his appointement under a Committee which is a Maulana Abdul statutory body and such appointment cannot be called an appointment by or under the control of the Govern- Rikhahc1and and ment of India nor is hi~ salary paid out of the revenues of the Government but out of the funds of Durgah Endowment. the majority of the Tribunal has erred in holding that the appellant held an office of profit under the Government and the opinion of the Chairman to the contrary lays down the correct position.

In the. circumstances Another Kapur 1. In view of this finding in regard to the office of profit under the Government, it is not necessary to go into the question whether there were any "thrown away" votes or whether the respondent has been rightly declared to have been elected. We are of the opinion that the election of the appellant has been wrongly set aside and we would allow the appeal and set aside the order of the majority of the Tribunal. The appellant will have his costs in this court as also before the Tribunal. Appeal al/01red. 1957 ')eptember 17. MACHERLA HANUMANTHA RAO AND OTHERS v. THE STATE OF ANDHRA PRADESH (with connected petition) (S.R. DAS C.J., VENKATARAMA AYYAR, B.P. SINHA, J.L. KAPUR and A. SARKAR JJ.) Sessions Tria/-Co1111nitment proceeding instituted 011 Police report-Proeedure. if makes for inequality before law-Code of Criminal Procedure (Act V of 1898) as amended by tire Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955), ss., 207, 207A-Constitutin of India, Art.

14. The point in controversy in this appeal was whether ss. 207 and 207 A inserted into the Code of Crimninal Procedure by the amending Act 26 of 1955, violated the provision of Art. 14 of the Constitution and were, therefore, invalid in law. The appellants were committed for trial to the Court of Session by the inquiring