The Gazzette of India

REGISTERED NO. DL-33001/97

The Gazzette of IndiaPUBLISHED BY AUTHORITY

No. 411 NEW DELHI, SATURDAY, NOVEMBER 8, 1997/KARTIKA 17, 1919

Separate Paging is given to this Part in order that it may be filed as aseparate compilation

PART II—Section 3—Sub-section (iii)

Orders and Notifications issued by Central Authorities (other than the Administrations of UnionTerritories)

2756 GI/97—1

(1043)

1044 THE GAZETTE OF INDIA : NOVEMBER 8, 1997/KARTIKA 17, 1919 [PART II—SEC. 3(iii)]

ELECTION COMMISSION OF INDIA

New Delhi, the 30th September, 1997

O.N. 243.—In pursuance of Section 106 ofthe Representation of the People- Act, 1951(43 of 1951), the Election Commission herebypublishes the judgement of the High Court ofKarnataka State dated 18-4-96 in ElectionPetition No. 5 of 1991.

IN THE HIGH COURT OF KARNATAKAAT BANGALORE

Dated the 18th day of April, 1996

BEFORE

THE HON'BLE MR. JUSTICE

SREENIVASA REDDY

ELECTION PETITION NO. 5|1991.

BETWEEN

Srikantadatta Narasimha Raja Wodeyar,S|o Late H. H. Sri, Jayachamaraja Wodeyar,F-l, Palace, Mysore. ..Petitioner

(By Smt. M. N. Pramila Adv.)

AND

1. Smt. Chendraprabha Urs W|oM. C. Mohanraje Urs, R|o.Kallahalli, Hanagodu Hobli,Hunsur Tq., Mysore Dist.

2. K. S. Nanjegowda S|oSannegowda N. R. Major,Kaushika Form,Nagenahalli, Hunsur Tq.,Mysore Dist.

3. D. Madegowda, Door No. 36,1st Main Road,Kumbarkoppalu,Mysore-16.

4. Moogooru Nanjundaswamy,No. 1772, Anikethna,5th cross,Kuvempunagar, Mysore.

5. Raju,Sri Raghavandra Studio,Yelandur.

6. M. R. Raju, No. 4310,L-28, 1st cross,2nd Main, Gandhinagar,Mysore.

7. Y. C. Revenna,Freedom Fighter,7th A, Cross Road,Krishnarajanagar.

8. Lingappa,Alanahalli, Lalithadripura Post.Mysore Taluk |

9. Shafi Ahmed Shariff,No. 3349, 3rd Main,Loordhnagar, Mysore.

10. H. S. Siddaraju, No. 43,6th Cross, Model House,Ashokapuram, Mysore.

.. Respondents

11. Returning Officer,

Mr. Siddaiah, 16, Mysore,Parliamentary Constituency,Mysore. . . Respondents

(Sri Javaji Srinivasalu for R l ,Miss. Geetha Menon,Archana Vishwanath &Sri N. Y. Coregannavar for R5,The Govt. Adv. for R l l . ,Sri M. R. Venkatanarasimhachar &A. S. Parasarakumar for R7).

This Election Petition is filed under Section81 of the Representation of the People Act,1951 by the Candidate at 1991 ParliamentrayElection to the Loka Sabha No. 16, MysoreParliamentary Constituency Election held on15-6-1991 through his counsel Smt. PramilaM. N. praying that this Hon'ble Court may bepleased to :—

(a) Declare the Election of the Respon-dent No. 1 from No. 16, MysoreParliamentary Constituency as nulland void.

(b) Declare that Respondent No. 1 hascommitted Corrupt Practice under

1045

Section 123(1), 123(3), 123(4),123(6), 123(7) and 123(8) of theRepresentation of the People Act.

(c) Set aside the election of the Respon-dent No. 1 under Section 100(1)(d) (iv) and order for recountafter excluding the votes that havebeen rigged and to declare the resultthereafter.

(d) Declare that the petitioner has sec-ured the highest votes after such re-count and that the petitioner havingbeen duly elected.

(e) Declare that the acceptance of thenomination of the first Respondentas void under Section 100(1) (a) ofthe Representation of People Act.

(f) Make an order under Section 98 ofthe Representation of People Act,that the Respondent No. 1 has Com-

mitted Corrupt practice and nameother person so committed.

(g) Award costs of the Petition.

This Election Petition coming on for fur-ther orders | Arguments this day, the Court madethe following :—

ORDER

This is an Election Petition. Since the elec-tion process for the eleventh Lok Sabha hascommenced, this petition has become virtuallyinfructuous. Therefore, it is dismissed as hav-ing become infructuous. No costs.

Sd|- JUDGE.

[No. 82|KT-HP|5|91|97]

By Order.

BABU RAM, Secy.

1046 THE GAZETTE OF INDIA : NOVEMBER 8,1997/KARTIKA 17, 1919 [PART II—SEC. 3(iii)]

ORDER

New Delhi, the 7th October, 1997

O.N. 244.—Whereas, the Election Com-mission is satisfied that the contesting candi-dates specified in column (3) of the Table be-low at the General-election to the LegislativeAssembly, 1994 held from the constituencyspecified in column (2) against his|her namehas failed to lodge an account of his|her elec-tion expenses or in the manner required bylaw, as shown in column (4) of the said table,as required by the Representation of thePeople Act, 1951 and the Rules made there-under ;

And, whereas, the said candidates haveeither not furnished any reason or explanationfor the said failure even after the due noticeor the Election Commission, after consideringthe representations of any, made by him |heris satisfied that he|she has no good reason orjustification for the said failure ;

Now, therefore, in pursuance of Section10A of the said Act, the Election Commissionhereby declares the persons specified in Col-umn (3) of the Table below to be disqualifiedfor being chosen as and for being, a memberof either House of, the Parliament or of theLegislative Assembly or Legislative Councilof a State for a period of 3 years from the dateof this order.

1047

Sl.No.

(1)

1.

2.

3.

4.

5.

6.

7.

8.

9.

No. and name of theAssembly Constituency

(2)

27—Uttarapalli

27—Uttarapalli

197—Gadwal

200—Kodangal

233—Yellareddy

233— Yellareddy

238-Dichpalli

254—Karirnnagar

259—Siricilla

Name and address of theContesting Candidates

(3)

Shri Vasantha Sriramamurthy (SC),Surrenddipalem, K. KotapadduMandal, (A,P.).

Shri Nachu Satyanarayana,K. Kotapadu, (A.P.).

Shri Venkatesh,H. No. 7-9-55, Gadwal, (A.P.).

Shri Ashappa,H. No 2-81/1/A, Kodangal, (A.P.).

Reason for disqualification

(4)

Failed to lodge the account ofelection expenses.

—do—

- d o —

— d o -

Shri KamellyBalaiah, — do—Village and Mandal Gandhari, (A.P.)-

Shri Tanduri Bala Goud, —do—H. No. 1-1-77, Village Yellareddy,

Mandal Yellareddy (A.P.).

Shri Neeradi Laxmnan, do—Jalalpoor (V), Nizamabad (M), (A.P.).

Shri G. Laxman,10-66, Padmanagar, Karimnagar.

(A.P.).

—do—

Shri Gangipally Lachaiah, —do—Burugupalli (V), Karimnagar District,Andhra Pradesh.

[ No. 76/AP-LA/97

By Order,BABU RAM, Secy.


1049

ORDER


O.N. 245.—Whereas, the Election Com-mission is satisfied that the contesting candi-dates specified in column (3) of the Table be-low at the General-election to the LegislativeAssembly, 1994 held from the constituencyspecified in column (2) against his|her namehas failed to lodge an account of his|her elec-tion expenses or in the manner required bylaw, as shown in column (4) of the said table,as required by the Representation of thePeople Act, 1951 and the Rules made there-under ;

And, whereas, the said candidates havenot either furnished any reason or explanationfor the said failure even after the due noticeor the Election Commission, after consideringthe representations of any, made by him|heris satisfied that they have no good reason orjustification for the said failure;

Now, therefore, in pursuance of Section10A of the said Act, the Election Commissionhereby declares the persons specified in Col-umn (3) of the Table below to be disqualifiedfor being chosen as and for being, a memberof either House of the Parliament or of theLegislative Assembly or Legislative Councilof a State for a period of 3 years from the dateof this order.

Sl.No.

(1)

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

No. and name of theAssembly Constituency

(2)

12—Afzalpur

13—Chitapur

17—Yadgiri

70—Mulbagal

—do—

—do—

172—Karwar

—do—

192—Ramdurg

206—Chikkodi (SC)

Name and address of theContesting Candidates

(3)

Shri Devindrappa Hadegil Haruthi,Post: Hadagil Haruthi,Tq : Gulbarga, Karnataka.

Shri Shadakshri Swami Hiremath,R/o. Honna Kiranigi, Tq : Gulbarga,Karnataka.

Shri Prabhulinga Warad,H. No. 94, Saidapur Station.Gulbarga District, Karnataka.

Shri V. Krishnappa,S/o. Venkatappa Santhe Maidan,Mulbagal, Karnataka.

Shri K. S. Narayanappa,S/o. Sanjappa,Koladevi Mulbagal Taluk, Karnataka.

Shri B. Sonnappa,S/o. Chowdappa Duggasandra,Mulbagal Taluk, Karnataka.

Shri Vijay Kumar Desai,Gund, Yaramuk, Joida, Karnataka.

Shri NareshYeshwant Rare,Angadi, Sanmudgeri, Kamataka.

Shri Kamalkishor Giridharlal Rathi,At : Manihal, Sureban,Taluk : Ramdurg, Karnataka.

Shri Suresh Maruti Bagewadi,At Post: Bambalwad, Tq : Chikodi,Karnataka.

Reason for disqualification

(4)

Failed to lodge the accountof election expenses.

—do—

—do—

—do—

— d o -

—do—

—do—

—do—

— d o -

—do—

1050 THE GAZETTE OF INDIA : NOVEMBER 8, 1997/KARTIKA 17, 1919 [PART II--SEC. 3(iii)]

(1)

11.

(2)

219—Basavana Bagewadi

(3)

Shri Patil BasanagoudaDhareppagouda,At : Katral, P.O. : Arjunagi,Tq : Bijapur,Karnataka.

(4)

Failed to lodge theaccount of electionexpenses

[[No. 76/KT-LA/97]By Order,

BABU RAM, Secy.

1051

2756 GI/97—2


1053

ORDER


O.N. 246.—Whereas, the Election Commission of India issatisfied that each of the contesting candidate specified incolumn -1 of the Table below at the General Election to theMaharashtra Legislative Assembly specified in column 2 andheld from the constituency specified in column 3 against his/her name has failed to lodge the account of his/her electionexpenses as shown in column 5 of the said Table as requiredby the Representation of the People Act, 1951 and the Rulesmade thereunder;

And whereas, the said candidates have either not furnishedany reason or explanation for the said failure even after duenotice by the Election Commission or after considering therepresentation made by them, if any, the Election Commissionis satisfied that they h;ivc no good reason or justificationfor the said failure ;

Now, therefore, in purs uance of Section 10A of the saidAct, the Election Commission hereby declares the personsspecified in column 4 of the Table below to be disqualifiedfor being chosen as and for being a member of either houseof Parliament or the Legislative Assembly or LegislativeCouncil of a State or Union Territory for a period of threeyears from the date of this order :—

TABLE

Sl. No.

1

310.

311.

312.

313.

314.

315.

316.

Particulars of elections

2

General Election toMaharashtra LegislativeAssembly, 1995.

-do-

-do-

-do-

-do-

-do-

-do-

Sl. No. & Nameof AssemblyConstituency

3

20-Umarkhadi

22-Khetwadi

29-Shivadi

-do-

-do-

33-Matunga

34-Mahim

Name & Address of thecontesting candidates

4

Rupendrasingh Rajavat,5, Thokarshi Lalji KapadiaBuilding, Masjid SidingRoad No( 1, Dana Bunder,Mumbai—400009,Maharashtra.

Ha Dagli,23/31, C. P. Tank Road,Mumbai—4Maharashtra.

Akbar Abdul Qureshi,2/8, Mayanagar Colony,B. G. Kher Road, Worali,Mumbai—18,Maharashtra.

S. M. Abdulla Patel,H. Block-92, V. P. Nagar,Lala Lajpatrai Marg,Worali, Mumbai—18,Maharashtra.

Tambe Suresh Bhiku,8/78, Mahapalika Vasahat,Dr. E. Mozes Road,Worli Naka,Mumbai—18,Maharashtra.

Ayyar Natarajan B.,191, Ramesh Stores,Sion Koliwada,Mumbai-400037Maharashtra.

Chandrakant Shivagan,156-C Vijaychandra BhagatLane Cross Road,(East), Mahim—16,Maharashtra. [

Reasons fordisqualification

5

Failed to lodge theaccount in themanner.

-do-

Failed to lodge anyaccount of electionexpenses.

-do-

-do-


-do-


1

317.

318.

319.

320.

321.

322.

323.

324.

325.

326.

2

General Election toMaharashtra legislativeAssembly, 1995.

-do-

-do-

-do-

-do-

-do-

-do-

-do-

-do-

-do-

3

34-Mahim

-do-

69-Sinnar

-do

105-Sindkhed Raja

106-Mehkar

107-Khamgaon

217-Solapur CityNorth

-do-

222-Madha

4

Patel Hassan Dagdu,Mahim Chunabhatti,D. K. Chawl,Room No. 132,Senapati Bapat Marg,Mumbai—16,Maharashtra.

Shaikh M. Hussain M. Raja,Room No. 23, Samad Patal

Chawl, Dharavi, Main Road,Mumbai—400017,Maharashtra.

Arote Mahadu KaluNear Kashidevi MangalKaryalaya, Deolali,Distt.—Nashik,Maharashtra.

Avhad Madhav Govind,At. Post—Dodi Bk.,Tal.—Sinnar,Maharashtra.

Patil Narayan Shamrao,At. Po. Bhatkheda,Tq.—Erandol,Distt.—Jalgaon,Maharashtra.

Awachar Roduba Kacharu,At. Post. Sultanpur,Taluq—Lonar,Distt.—Buldana,Maharashtra.

Sonekar Rajkumar Pandurang,Civil Line,Near School No. 9,Khamgaon,Distt.—Buldana,Maharashtra.

Pagadiwale MahamdshariphMehatabsab,Garibi Hatav Zopadpatti No. 2,Vijapur Naka, Solapur,Maharashtra.

Shah Kishor Bhabutmal,206, East Mangalwar Peth,Solapur,Maharashtra.

Keche Baban Gahininath,At. Garakole, Post Adhegaon,Tal. Madha,Distt.—Solapur,Maharashtra.

5


Failed to lodge anyaccount of election

expenses.

-do-


-do-

-do-

Failed to lodge anyaccount of electionexpanses.

-do-

Failed to lodge theaccount in mannermanner.

1055

1,

327.

328.

329.

2.

General Election to MaharashtraLegislative Assembly, 1995

-do-

3.

222-Madha

-do-

-do- 224-Sangola

4,

Ostwal Ramlal NemchandShukrawar Peth, Tembhurni,Tal—Madha,Distt.—Solapur,Maharashtra.

Gore Prakash Ramchandra,At. & Post. Kurduwadi,Tal.—Madha,Distt.—Solapur,Maharashtra.

5.

Failed to lodge theaccount in the manner

-do-

Maske Chandrakant Shankarrao, Failed to lodge anyH. No. 1034, Lohar Galli, account of electionSangola, expenses.Distt. Solapur,Maharashtra.

[No. 76/MT-LA/95]

By order,AJAY MITTAL, Director (Admn.)-cum-Principal Secy.


O.N. 247.—In pursuance of Section 106 of the Represen-tation'of the People Act, 1951 (43 of 1951) the ElectionCommission hereby published the order of the High Courtof Madhya Pradesh, Jabalpur dated 30-2-96 in ElectionPetition No. 1 of 1991.

ELECTION PETITION NO. 1 OF 1991

Ramesh Bais and another.

V/8.

Shri Vidya Charan Shukla and 27 others.

ORDER

Consequent upon publication of notification u/s 14 of theRepresentation of People Act, 1951 (for brevity hereinafterreferred to as the Act) sometimes in April, 1991 callingupon Parliamentary constituencies for electing members forthe House of the People, the Election Commission appointed.as required u/s 30 of the Act, date for making nominations,scrutiny of nominations, withdrawal of candidature after thedate of scrutiny and the poll dates, whereupon the ReturningOfficer gave a public notice of election u/s 31 of the Actinviting nomination of candidates, inter alia, in respect of17-Raipur Parliamentary Constituency, which led to filingof various nomination papers but during the process of scru-

tiny, the nomination of one Shri Shobbaram Barman wasrejected by the Returning Officer on 27-4-91 on the groundof his having disqualification under Article 102(l)(a) of theConstitution of India (for brevity hereinafter referred to as"the Constitution") and after withdrawal of candidature, thereremained in the fray us many as 29 candidates amongst whomShri Vidya Charan Shukla and Shri Ramesh Bais were alsothe candidates at the contest. Shri Vidya Charan Shukla,who secured highest number of Votes i.e. 1,88,335, was de-clared elected by the Returning Officer on 17-6-1991 asagainst Shri Ramesh Bais who polled the next highest numberof votes i.e. 1,87,376.

2. By means of the present election petition (for brevityhereinafter referred to as the petition) the election ofShri Vidya Charan Shukla (respondent No. 1) is called inquestion by Shri Ramesh Bais alongwith one Dr. Rajendraan elector, seeking following reliefs :—

(1) To declare the election ofthe respondent No. 1Vidya Charan Shukla, voidu/s 100(1)(a), (c) and (d)(i) of the Act ;

(2) To declare the petitionerNo. 1 duly elected from 17-Raipur Lok Sabha Constituency;

l056 THE GAZETTE OF INDIA : NOVEMBER 8,1997/KARTIKA 17, 1919) [PART II—SEC. 3(iii)]

(3) To grant any other suitablerelief alongwith costs of thepetition.

3. The notices meant for respondents were served on therespondents No. 1 on 28-10-1991, respondents No. 2, 4, 5,6, 9, 10, 11, 12, 13, 16, 19, 20, 21, 22. 23,24,25, 26, 27, 28 24-9-1991 and respondent Nos.3,7 and 14 on 23-9-1991, respondent No.17, on 1-11-1991,respondent No. 18 on 10-11-1991 and respondent No. 8 on5-12-1991.

It was respondent No. 1 alone who put in appearance on18-11-91 and filed his Written Statement. The other res-pondents 2 to 28 were proceeded ex-parte. On the basis ofthe pleadings in the petition, and the Written Statement,following issues were struck :

ISSUES

1-(a) Whether respondent No. 1 having been disqualifiedunder the provisions of Xth Schedule to the Cons-titution of India, was not qualified to contest theParliamentary Elections ?

1-(b) What is the effect of the pendency of the WritPetition filed by respondent No. 1 in Delhi HighCourt on the proceedings of this Election Petition,challenging his disqualification under Xth Scheduleto the Constitution ?

2. Whether the nomination paper of Shri ShobharamBarman was improperly rejected?

3. Relief and costs?

4.So far as the following facts are concerned, the learnedcounsel for the parties are not at variance:—

(a) That on the date of the scrutiny of the nominationpaper for being candidate for the House of thePeople, from 17- Raipur Parliamentary Constituency,the nomination paper of Shri Shobharam Barmanwas rejected on 27-4-91 by the Returning Officerby passing following order:—

whereafter main contest confined between the petitioner No.1 Ramesh Bais and the respondent No, 1 Shri Vidya CharanShukla. The petitioner No. 1 was the candidate set up byBhartiya Janta Party whereas the respondent No. 1 was thecandidate set up by Congress (I) political party. Poll, as perscheduled programme, took place on 20-5-91 and on con-clusion of the counting, which though came into abeyanceti l l 16-6-91 owing to the assassination of the then PrimeMinister of India Shri Rajiv Gandhi, the respondent No. 1Shri Vidya Charan Shukla, having secured highest number ofvotes i.e. 1,88,335 as against the petitioner No. 1 Shri RameshBais, who secured next highest number of votes i.e. 1,87,376was declared on 17-6-1991 as having been duly elected forthe House of the People.

(b)Anterior to the election in question by means of thepresent petition, there had earlier been an election for theHouse of the People, from 18-Mahasamund ParliamentaryConstituency sometimes in November, 1989 whereas ShriVidya Charan Shukla, set up as a candidate by the JantaDal party, having secured highest number of votes, was dec-lared duly elected. Janta Dal having succeeded in forming

Government at the centre under the leadership of Shri V. P.Singh could not continue owing to inner-developments whichpromoted defections and Shri Vidya Charan Shukla was oneof the defectors, received expulsion from the Janta Dal partyon 5-11-90.

The then Prime Minister Shri V. P. Singh thereafter tableda motion, seeking confidence of the House on 7-11-90 whereat on division of votes, Shri Vidya Charan Shukla waa foundto have voted in support of confidence motion which ulti-mately defeated, leading to resignation of Shri V. P. Singhand as well as dissolution of the House paving way for freshpoll in April, 1991 and the present petition Is outcome there-of.

(c) The then Speaker of House of the People vide orderdated 11-1-91, which is as extracted below, declared interalia, Shri Vidya Charan Shukla as having incurred disqualifi-cation for being a member of the House of the People.

"In exercise of the powers conferred upon me underParagraph 6 of the Tenth Schedule to the Constitu-tion of India and the Rules thereunder. I, Rabi Ray,Speaker, Lok Sabha, hereby declare that the follow-ing 7 members of Lok Sabha have incurred dis-qualification for being Member of Lok Sabha interms of Paragraph 2(1) (b) of the said Scheduled:

1. Shri Basavraj Patil,2. Shri Hemendra Singh Banera,3. Shri Vidya Charan Shukla,4. Dr. Bengali Smith,5. Shri Sarwar Hussain,6. Shri Bhagey Gobardhan,7. Shri Devananda Amat.

Accordingly, the aforesaid Members having earned disquali-fication, ceased to be the Members of Lok Sabha with imme-diate effect and their seats shall thereupon fall vacant."

This order was given challenge by Shri Vidya CharanShukla before Delhi High Court by means of Writ PetitionNo. 537 of 1991 under Art. 226 of the Constitution which,according to the statement made at the Bar, is pending thoughthe learned counsel for the contesting parties were at varianceon the question of there being any order in the said WritPetition, staying the impeached order of the Speaker of theLok Sabha dated 11-1-91. Learned counsel for the respon-dent No. 1 Shri Kapil Sibbal, Senior Advocate, submittedthat after the order of the Speaker of the Lok Sabha, freshelections for the House of the People had taken place andthe petition contains only challenge of the fresh election ofrespondent No., 1 and the pendency of the said Writ Petitionin the Delhi High Court and grant or non-grant of anyinterim relief has no relevancy in the context of the facts ofthe present petition qua the constitutional position.

5. Heard the learned counsel for the petitioner Shri: N. S.Kale, Senior Advocate, assisted by Shri L. S. Baghal andlearned counsel for the respondent No. 1 Shri Kapil Sibbal,Senior Advocate, assisted by Shri V.. K. Tankha, Advocate.

Learned counsel for the petitioner very fairly did not pressthe Issues No. l-(a) and l-(b), may be for not finding hisway clear in view of the provisions of Article 102 of theConstitution which speaks that a person shall be disquali-fied for being a member of the either House of Parliament.Now, as such, the only issue survives for consideration isIssue No. 2 as the Issue No. 3 is resultant one.

6. Shri Vidya Charan Shukla, the respondent No1 havingfiled written Statement in the petition did, not come to Wit-ness Box and did not examine any witness from his side,may be because of the fact that the issues involved in thepetition were purely of legal character, not having dependenceon the material not finding place in Election Petition anne-xures annexed thereto and the written Statement on anyfactual aspect, as on 12-11-1992, the statement was madebefore this Court to the effect that respondent No. 1 doesnot wish to examine any witness nor himself. The writtenStatement is only the pleading relating to admission or denial.

1057

of the facts pleaded in the plaint and may also have newpleas under Order 8 Rule 2 C.P.C. to shown non-maintain-ability of the petition, including all such grounds of defenceas, if not raised, would likely to take the opposition by sur-prise or would raise issues of fact not arising out of theplaint,

Evidence is defined in Sec. 3 of the Evidence Act, 1872 as"Evidence means and includes

(1) the statements which the Court permits or requireto be made before it by witnesses, in relation tomatters of fact under enquiry.

Such statements are called oral evidence.(2) All documents produced for the inspection of the

Court : Such Documents arc called documentaryevidence."

Thus, the Written Statement by itself is no evidence and isonly pleading, requiring proof of unadmitted or disputed factsbut in the present petition, respondent No. 1 did not leadany evidence. Petitioner in support of his case, examinedShri G. S. Yadu as PW 1 and Ramesh Bais, the petitioner,as PW2, and Shri Shobharam Barman as PW3, Sri G. S.Yadu, a Store Keeper in the Election Office Raipur whoproved the order passed by the Returning Officer on thenomination Paper Shri Ramesh Bais (PW2) proved thepleadings stating to the effect that he (Sri Sobha Ram Barman)was a Watchmen in the Food Corporation of India, whichpost does not fall in the abit of "office of profit" but theReturning Officer rejected his nomination paper on thisground that he was holding office of profit in the Food Cor-poration. Sobha Ram Barman examined as PW-3. He pro-ved his signatures on his nomination paper. He stated thathe was employed as a Watchman in the Food Corporationof India at Raipur,and was in employment then he wasgetting salary Rs. 322|- per month.

7. The nomination paper of Shri Shobharam Barman wasrejected by the Returning Officer on 27-4-91 (Ex. P-l) on theground of his having incurred disqualification for being elec-ted for the House of the People under the provisions ofArticle 102 (1) (a) of the Constitution, as he was under anemployment of the Food Corporation of India (for brevity,hereinafter referred to as "the Food Corporation"), Theallegations as regards to rejection of the nomination paperof Shri Shobharam Barman, by the Returning Officer as con-tained in Paras 14(a) and 14(b) of the petition are asextracted :

"14. (a) That the election of the respondent No. 1 isalso liable to be declared void under Section 100(1)(c) of the Act for the reasons that the nomination-paper filed by Shri Shobharam Barman was impro-perly rejected on the ground, that he was holdingoffice of profit. Though in fact the said ShriShobharam Barman cannot be said to be holdingoffice of profit under Article 102 (1) (a) of Samvi-dhan, aS he was posted only as a Watchman by theFood Corporation of India, the employees of whichare not disqualified to fill a sent in the Lok Sabhaor any other Legislative."

(Emphasis supplied)

"14. (b) That though the said candidate filed affidavitstating therein that he was only a temporary em-ployee in the Food Corporation of India, still theReturning Officer, without applying his mind, rejec-ted the nomination-paper. A copy of the nomina-tion-paper containing the order of rejection passedby the Returning Officer and the affidavit filed bythe said candidate is annexed herewith as Annexure-A-l and A-2 to this petition."

8. The Written Statement filed by the respondentNo. 1 contains reply to Paras 14(a) and 14(b) of thepetition in Paragraph 21 and 22 of the Written State-ment which are as extracted :

"21 That in reply to Para 14(a).—It is submittedthat Shobharam Barman was holding officeof profit being an employee of Food Corpo-ration of India,"

22. That in reply to Para 14(b).—It is submit-ted that whether an employee is temporaryor permanent is not material. The factremains that at the time of filing of thenomination paper, Shri Shobharam Barmanwas holding office of profit and the Return-ing Officer had rightly rejected his nomina-nation paper."

Here holding by Shri Shobha Ram Barman "office ofprofit" being an employee of the Food Corporation ofIndia is admitted. It was also admitted that he wasposted only as Watchman by the Food Corporationof India. The documents filed with the petition asAnnexures A-l and A-2 were not denied. It hasfurther not been denied or disputed that the employeesof Food Corporation of India are not disqualified tofill a seat in the Lok Sabha or any other legislature.

The nature of employment of Shri Shobha RamBarman as mentioned in Para 14(b) of the petitionhas not been denied rather it has been said whetheran employee is temporary or permanent is immaterial.

9. Thus, in respect of Para 14(a) of the Petition,it has been admitted that Shri Shobharam Barmanwas holding office of profit, being an employee of theFood Corporation of India and in respect of Para14(b) of the petition, it has been stated that whetheran employee is temporary or permanent is not mate-rial, and the fact remains that at the time of filingof the nomination paper, Shri Shobharam Barmanwas holding office of profit and the Returning Officerhad rightly rejected his nomination paper. Within theprovisions of Order 8 Rule 4 of the Code of CivilProcedure. There is no denial of the allegation inthe petition.

10. In the context of the controversy as involvedhere, it is relevant to consider various articles of theConstitution, such as Article 58(2) of the Constitu-tion, which deals with the disqualification for being acandidate at the election for the office of the Presi-dent of India, Article 66(4) of the Constitution whichdeals with the disqualification for being a candidatefor the office of Vice-President, Article 102 (l)(a)of the Constitution, which deals disqualification forbeing a candidate for the election of either House ofParliament, Article 191 of the Constitution whichdeals with disqualification for being a candidate forthe election to the Legislative Assembly or LegislativeCouncil of a State; and the same are extractedbelow :—

Article 58(2) with Explanation :

"(2) A person shall not be eligible for election asPresident if he holds any office of profitunder the Government of India or the Gov-ernment of any State or under any local orother authority subject to the control of anyof the said Governments.

Explanation.—For the purposes of thisArticle, a person shall not be deemed tohold any office of profit by reason only thathe is the President or Vice President of theUnion or the Governor of any State or is a

1058 THE GAZETTE OF INDIA : NOVEMBER 8,1997/KART1KA 17, 1919 [PART II—SEC. 3(iii)]

Minister either for the Union or for anyState."

(Emphasis supplied)

Article 66(4) with Explanation :

"(4) A person shall not be eligible for electionas Vice-President if he holds any office ofprofit under the Government of India orthe Government of any State or under anylocal or other authority subject to the con-trol of any of the said Governments.

Explanation : For the purpose of this Article, aperson shall not be deemed to hold anyoffice of profit by reason only that he is thePresident or Vice-President of the Unionor the Governor of any State or is aMinister either for the Union or for anyState."

(Emphasis supplied)

Article 102(l)(a) with Explanation and Clause (2) :

"(1) A person shall be disqualified for beingchosen as, and for being a member ofeither House of Parliament —

(a) if he holds any office of profit under theGovernment of India or the Governmentof any State, other than an office declar-ed by Parliament by law not to disqualifyits holder;

Explanation : For the purpose of thisclause a person shall not be deemed tohold an office of profit under the Gov-ernment of India or the Government ofany State by reason only that he is aMinister either for the Union or for suchState.

(2) A person shall be disqualified for being amember of either House of Parliament, ifhe is so dis-qualified under the Tenth Sche-dule,"

Article 191 (1)(a) and Clause (2) :

"(1) A person shall be disqualified for beingchosen as, and for being, a member of theLegislative Assembly or Legislative Councilof a State—

(a) if he holds any office of profit under theGovernmment of India or the Govern-ment of any State specified in the FirstSchedule, other than an office declared bythe Legislature of the State by law notto disqualify its holder;

(2) For the purpose of this article, a personshall not be deemed to hold an office ofprofit under the Government of India orthe Government of any State specified inthe First Schedule by reason only that he is

a Minister either for the Union or for suchState."

11. On analysis of Articles of the Constitutionextracted (supra) it comes to; (a) Articles 58(2) and66(4) provide that a person shall not be eligibleelection as Prcsident/Vice-President, if he holds anyoffice of profit : (i) under the Government of India;or (ii) the Government of any State; or (iii) under anylocal or other authority subject to the control of anyof the said Government. Explanation makes it clearthat a person shall not be deemed to hold any officeof profit by reason only that he is the President orVice-President or the Governer of any State or is aMinister cither for the Union or for any State. (b)Clause (a) of Article 102(1) provides for disqualification for being chosen as a member of the House ofthe People if he holds any office of profit under theGovernment of India or the Government of any Stateother than an office declared by Parliament by lawnot to disqualify its holder. The disqualificationunder Clause (a) of Act, 191 of the Constitution forbeing chosen as a Member of Legislative Assembly orLegislative Council of a State is the same as is pro-vided for the House of the People except with thedisqualification as attached to a person who holds anoffice of profit under Government of State specifiedin the First Schedule, other than the office declaredby the Legislature by law not to disqualify its holder.

12. There is no challenge to the fact regardingShri Shobharam Barman's employment in the FoodCorporation of India as Watchman and in regard tothe capacity of his service whether temporary orpermanent, the Written Statement only contains therecital whether an employee is temporary or perma-nent is not material. The dispute related, irrespectiveof the capacity whether he was temporary or a perma-nent Watchman, to the disqualification of ShriShobharam Barman and the capacity of being perma-nent or temporary has no bearing to the basic con-troversy which is subject-matter of consideration.

13. The Food Corporation is a statutory Corpora-tion, came into being, by virtue of Food Corpora-tion Act, 1964 (for brevity hereinafter referred to as"the Food Corporation Act"), which is a legislationlegislated by the Parliament in exercise of its Legis-lative power as contained in Item 43 List I of SeventhSchedule to the Constitution, as a trading corpora-tion for trading in foodgrains and other foodstuffs andthe matters connected therewith and incidental thereto.Food Corporation was established u/s 3 of the FoodCorporation Act and on its establishment it acquiredthe status of a body corporate by name i.e. FoodCorporation of India, having perpetual successionhaving common seal with power, subject to theprovision of the Food Corporation Act, to acquire,hold and dispose of property and to contract and tosue or be sued by corporate name. Thus, the statusof the Corporation, obviously, is that of a juristicperson distinct one being clothed with its own perso-nality. In Daman Singh v State of Punjab (AIR1985 SC 973) Supreme Court had the occasion todeal with as to what is corporation and in this con-text the relevant portion is as extracted :

1059

"In Halsbury's Laws of England, 4th Edn. Vol.3 Paragraph 1201, it is said—

"A Corporation may be defined as abody of persons (in the case of Corpora-tion aggregate) or an office (in the caseof corporation sole) which is recognized bylaw as having a personality which is distinctfrom the separate personalities of the mem-bers of the body or the personality of theindividual holder for the time being of theoffice in question.'''

A Corporation aggregate has been defined inParagraph 1204, as—

"A Corporation of individuals limited into on"body under a special denomination havingperpetual succession under an artificial form,and vested by the policy of the law with thecapacity of acting in several respects as anindividual, particularly of taking and grant-ing property, of contracting obligations andof suing and being sued, of enjoying privi-leges and immunities in common and ofexercising a variety of political right, moreor less extensive, according to the design ofits institution, or the powers conferred uponit, either at the time of creation of at anysubsequent period of its existence."

14. In Board of Trustees, Ayurvedic and UnaniTibia College, Delhi vs. State of Delhi (AIR 1962SC 458) Supreme Court was passed with the ques-tion as to what is a Corporation, which was answeredwith statements contained in Halsbury's Law ofEngland extracted supra by adding.—

"A Corporation aggregate has therefore onlyone capacity, namely, its corporate capa-city. A corporate aggregate may be atrading corporation or a non-trading corpo-ration. The usual examples, of a tradingcorporations are (1) Charter Companies (2)Companies incorporated by special acts ofParliament (3) Companies registeredunder the Companies Act etc. Non-tradingcorporations are illustrated by (1) Munici-pal Corporations, (2) District Boards, (3)benovalent institutions, (4) universities etc.An essential element in the legal concep-tion of a Corporation is that its identity iscontinuous, that is. that the original mem-ber of members and his or their suceessersare one. In law the individual corporators,or members, of which, it is composed aresomething wholly different from the corpo-ration itself for a corporation is a legal oer-son just as much as an individual. Thus,it has been held that a name is essentialto a corporation; that a corporation aggre-gate can, as a general rule, only act or ex-press its will by deed under its commonseal that at present day in England a corpo-ration is created by one or other of twomethods, namely, by Royal charter of in-corporation from the Crown or by the Autho-rity of Parliament that is to say. by or by

virtue of statute. There is authority of longstanding for saying that the essence of acorporation consists in (1) lawful authorityof incorporation, (2) the persons to be in-corporated, (3) a name by which the personsare incorporated, (4) a place, and (5) wordssufficient in law to show incorporation. Noparticular words arc necessary for the crea-tion of a corporation; any expression show-ing an intention to incorporate will be suffi-cient."

15. These facts, thus, make it clear that the FoodCorporation of India is incorporated by statute.

1. It may be noticed that Para 1210 Vol. 9 4th Edn.of Halsbury's Laws of England deals with Corpora-lion and crown status: and the relevant portion is :

"The question whether a Corporation is a ser-vant or agent of Crown depends on thedegree of control which the Crown, throughits ministers, can- exercise over it in theperformance of its duties. In the absenceof any express statutory provision, the pro-per inference, at any rate, in the case of acommercial Corporation is that it acts on itsown behalf, even though it is controlled tosome extent by a Government department.The fact that a Minister of the Crown ap-points the members of such a Corporation,is entitled to require them to give him in-formation and is entitled to give them di-rections of a general nature does not makethe Corporation his agent. The inferencethat a Corporation acts on behalf of theCrown is more readily drawn where itsfunctions are not commercial but are con-nected with matters, such as the defence ofthe realm, which are essentially the provin-ce of Government."

(Emphasis supplied)

17. Under the scheme of the Act, so to find out theposition of Shri Shobharam Barman qua the Art. 102(1 )(a) in regard to his disqualification for being cho-sen for the House of the People by virtue of his beingunder the employ of the Food Corporation a; aChowkidar, the requires to be examined, undisputed-ly the Food Corporation is a trading (commercial)corporation, came into being by statute for takingup state trading in food staffs on an appreciable scaleand to function generally as an autonomous organisa-tion working on commercial lines and to secure foritself a strategic commanding position in the foodgrains trade of the country. It has to work with theactive and continued co-operation of State Govern-ment, and their machinery wherefor providing forsetting up of Boards of Management or State FoodCorporation. With the establishment of the FoodCorporation under the Act the work relating to sto-rage, movement, distribution of and sale of food grains,performed thereto by the Regional Directorate underthe Food Department of the Government, graduallytransferred to the Food Corporation as also the staffworking in the Regional Directorates to the FoodCorporation where whom prescribing the conditions

2756 GI/97-3


of service in regard to pay, pension and other similarfacilities matters which are to be applicable to suchemployees on transfer, to the corporation so to takecare for not effecting adversely them on such a trans-fer. Here it may be noticed that it is not the caseset up in Written Statement the Shobharam Barmanis the person belonging to the Category of employeetransferred' from Regional Directorate of Food De-partment of the Government to the Food Corporationon its coming into being. The preamble of the Actreads as :

"An Act to provide for establishment of FoodCorporation for the purpose of trading infoodgrains and other food stuffs and formatters connected therewith and incidentalthereto."

18. The Food Corporation on being established i.e.with effect from the date of issuance of the notifica-tion in the official Gazette u/s 3 of the Act came intoa body corporate by lame having perpetual succes-sion and common seal with power, subject to the provi-sions of the Act, to acquire, hold and despose of pro-perty and to contract and may, by that name, sue andbe sued. Functions of the Food Corporation are pro-vided under Section 13 of the Act. Parliament itselfNot provided the location of the Head Office of theCorporation, allowing option to the Central Govern-ment for specifying other place by notification, FoodCorporation is empowered for establishing the officesas also agencies at other places in or outside thecountry. The corporation, as such, has been invest-ed independently with the power for establishing itsoffices and agencies not only inside the country butoutside as well, which in fact, emplifies its autono-mous character. Though its original capital whichwas not exceedable beyond one hundred crores ofrupees made increasable from time to time by theCentral Government after due appropriation madeby the Parliament by Law for the purpose and subjectto such terms and conditions determined by thatGovernment. The general superintendence, direc-tion, and management of affairs and business of theFood Corporation vests in the Board of Directors,which to exercise all such powers and do all such actsand things as may be exercised or done by the FoodCorporation under the Food Corporation Act. ThisFond Corporation, while exercising its functions re-quired to work on business principles, having regardto the interests of the producer and consumer and tobe guided by such instructions on questions of policyas may be given to it by the Central Government, andon doubt being arisen whether a question is or is nota question of policy the decision of the Central Gov-ernment thereon to be final. The Board of Directorsto consist of persons as provided u/s 7 of the i.e. aChairman, three Directors to represent respectively theMinistries of the Central Government dealing with :(a) Food (b) Finance, (c) and Cooperation. ManagingDirector of the Central Warehousing Corporationestablished under Section 3 of the Warehousing Cor-poration Act, 1962 (Ex-officio Managing Director andsix other Directors. All the Directors, except ex-officio to be appointed by the Central Government.

The Managing Director to exercise such powers andperform such duties as the Board of Directors mayentrust or delegate and to receive such salary andallowances as the Board of Directors fix with theapproval of Central Government, The term of officeof Managing Director and filing of vacancies to bemade in the matter prescribed. Director is remov-able by Central Government after consultation withthe Corporation, which of course to have primacy,after opportunity to him on incurring disqualificationas provided under Section 8 of the Act, The Boardof Directors to meet at such time and place and deci-sion to be by voice vote. Chairman having castingvote and to observe such rules of procedure in regardto the transaction of business at its meetings (includingthe quorum at meetings) as may be provided by Re-gulations by the Food Corporation under the FoodCorporation Act. Advisory Committee may be setup by the Central Government under Section 11 ofthe Act to give advice on being sought from it eitherby the Central Government or the corporation-. Sec-tion 12 of the Act provides for the officers and otheremployees of the Food Corporation, which is as ex-tracted :

"(1) The Central Government shall, after consul-tation with the Corporation, appoint aperson to be the Secretary of the Corpora-tion-.

(2) Subiect to such rules as may be made by theCentral Government in this behalf, theCorporation may appoint such other offi-cers and employees as it may consider neces-sary for the efficient performance of itsfunction.

(3) The methods of appointment, the conditionsof service and the scale of pay of the offi-cers and other employees of the Corpora-tion shall—

(a) As respects the Secretary, be such as maybe prescribed;

(b) as respects the other officers and employ-ees, be such as may be determined byregulations made by the Corporation—under the Act.

(Emphasis supplied)

Thus, the Food Corporation to appoint its otherofficers & employees as it considers necessary for theefficient performance of its functions. The method ofappointment as respects the other officers and emp-loyees, be such as may be determined by regulationsmade by the Corporation under the Act. Section 26of the Act provides for submission of programme ofactivities and financial estimates for each year in ad-vance for the succeeding year. It has borrowingpower under Section 27 of the Act which is as—

"(1) A Food Corporation may for the purposesof carrying out its functions under the Act,take advance against stocks of food grainsor other food stuffs held by it, or borrowmoney—

(i) from any Scheduled Bank; or

1061

(ii) from any other Bank or financial institu-tion approved by the Central Governmentin this behalf.

(2) The Central Government may guarantee theloans and advances taken by a Food Cor-poration under sub-section (1) as to therepayment of principal and payment of in-terest and other incidental charges.

(3) A Food Corporation may, for the purpose ofcarrying out its functions under this Act.also borrow money from the Central Gov-ernment, and that Government may, afterdue appropriation made by Parliament bylaw in this behalf, pay to the Food Cor-loan on such terms and conditions as thatGovernment may determine."

It may also land or advance money to anyperson engaged in the production of food grainsupon the security of food grains or such othersecurity as may be prescribed connected withsuch productions. It has power to enter intoagreement with any grower of crops for pur-chase of food grains after harvest of suchcrops. Scheduled Bank or other financialagency may, on the basis of agreement lendmoney to a grower of food crops on guaranteeof loan by Food Corpn. The Food Corporationto have its own funds, and all receipts of theFood Corporation to be credited thereto andall payments of the Corporation to be met there-from. Such fund to be applied for meeting allits administrative expenses and for carryingout the purposes of the Act. Its funds to be in-vested in the securities of the Central Govern-ment or any State Government or in such othermanner as may be prescribed. It may establisha reserve fund to which amount to be creditedevery year such portion of its annual profit asit thinks fit. After making provisions for suchreserve fund and for bad and doubtful debts,depreciation in assets and all other matterswhich are usually provided for by companiesregistered and incorporated under the Compa-nies Act, 1956, the balance of its annual pro-fits to be paid:—

(a) In the case of Food Corporation ofIndia, to the Central Government;,and

(b) In the case of a State Food Corpora-tion, to the Central Government andthe Food Corporation of India in thesame proportion as the capital pro-vided by them.

The Central Government, as such, has theright of participation in profit to receive pro-

fits qua proportion of its capital provided tothe Corporation. Section 40 of the Act grantsprotection of action taken under the Actwhich is as extracted :—

"No suit or other legal proceeding shallbe against a Food Corporation orany member of the Board of Direc-tors thereof or any officer or 'otheremployee thereof or any member ofa Board of Management or its staffor any other person authorised bythe Food Corporation or a Board ofManagement to discharge any func-tions under this Act for any loss ordamage caused or likely to be caus-ed by anything, which in good faithdone or intended to be done in pur-suance of this Act."

Section 41 provides for offences, where, who-ever without consent in writing of the FoodCorporation uses its name in any production ofadvertisement, is made punishable with impri-sonment for a term which may extend to sixmonths or with fine which may extend to onethousand rupees or with both but cognizanceof offence could not be except on a complaintin writing by an officer authorised in this behalfby the Corporation. It not to be placed in liqui-dation save by an order of Central Governmentand in such manner as that Government maydirect. The provisions of Income Tax and Sup-per Tax on income profit or gains to apply bydeeming it a company within the meaning ofIncome Tax Act, 1961. It has power to makeregulations with the sanction of Central Gov-ernment by notification in the Official Gazettenot inconsistent with the Act and rules forproviding for all matters for which provision isnecessary or expedient for the purpose of giv-ing effect to the provisions of the Act but with-out prejudice to the generality of the powerthe regulations, inter alia, may provide for :—-

(i) the methods of appointment, the con-ditions of service and the scales ofpay of the officers and employees ofthe Food Corporation of India.

(ii) the duties and conduct of officers andemployees of a Food Corporationother than the Secretary.

Any regulation is rescindable by the CentralGovernment by notification. The Food Corpo-ration,undisputedly, is neither sovereign func-

1062 THE GAZETTE OF INDIA : NOVEMBER 8,1997/KARTIKA 17, 1919 [PART 11—SEC. 3(iii)]

tionary under the Constitution nor is possessedof Regal powers. It is a statutory trading (Com-mercial) Corporation and constitutionallydoes not enjoy sovereign immunity and is not aservant or agent of Central Government anddoes not enjoy the status off the CentralGovernment and its property is not the pro-perty held on behalf of the Central Govern-ment. Though under the Food CorporationAct, Officers and Employees of the Food Cor-poration are accorded protection from civilcause for anything done or intended to be donein good faith, but it is founded on the theoryof good faith not on the theory of sovereignimmunity.

19. Now, the regulation framed by the FoodCorporation, in exercise of powers conferredby Section 45 of the Food Corporation Actand all other powers thereunder enabling, andwith the previous sanction of the Central Gov-ernment, known as Food Corporation of India(Staff) Regulations, 1971 which were pub-lished in the Gazette of India, Part III, Sec-tion 4 dated 8th May, 1971 (for brevity here-inafter referred to as "the Regulations") mayalso be examined.

20. Clause (e) of Sub Regulation 3 of Regu-lation 7 of the Regulations permits appoint-ments on ad-hoc basis notwithstanding any-thing contained in Regulation 7 itself whichprovides appointment to any post on a purelytemporary basis for a period not exceeding oneyear. Under Regulation 3, classification of postsin the Food Corporation are categorized as :—

CLASSIFICATION

All posts with a fixed pay Classificationof or on a Scale of pay with amaximum ofNot less than Rs. 950 Category—INot less than Rs. 700 Category II

But less than Rs. 950

Not less than Rs. 150But less than Rs. 700 Category IIILess than Rs. 150 Category—IV

The post of Watchman is there under AppendixII as per Regulation 6, the appointing authority inthe Zonal Office is Deputy Manager of the FoodCorporation and in the District Office, the appoint-ing authority is also District Manager. For appoint-ment on regular basis, mode is provided under Regu-lation 7 and procedure is provided under Regulation9 for direct recruitment for the Class of category ofemployees falling in Category III and IV under thecategorization made thereunder. Regulation 15,except for ad hoc--temporary appointment, providesfor appointment under the Corporation to be on

probation of one year extendable by one year. Regu-lation 19 provides for termination. Shri ShobhaRam Barman, if he was a temporary Chowkidar inthe Corporation was not governed by the regulations,though might have been governed by IndustrialEmployment (Standing Orders) Act, 1946 in theFood Corporation of India (Industrial Establish-ments) Standing Orders framed under the said Act,whatever may be his capacity, he, however, undoub-tedly, did not fall in the category of officers or otherofficers of the Corporation as under the Act, words"officers", "other officers" and "employees" are usedseparately having different sense. The CentralGovernment did not exercise control or supervisionover him. Neither appointed nor removable by theCentral Government. He was the employee eitherof the Central Government. He was not the emp-loyee either of the Central or State Government norwas required to perform Governmental functions forthe Government. Further the Corporation not hav-ing been created by statute enacted under legislativepower under Item 5 List II of VII Schedule is notthe local authority. However, even local authorityso constituted becomes a separate and distinct entityas under the said entry municipalities are separatelymentioned in contradistinction of the State Govern-ment.

21. Keeping in mind the above principles of law,the scheme of the Act and regulations, the questionof disqualification of Shri Shobharam Barman,which is the main plank in the case, requires consi-deration.

22. In the case of Dr. Gurushantappa v. AbdulKhuddus Anwar (AIR 1969 SC 744), SupremeCourt considered whether a candidate employed ina company owned by the Government was disquali-fied under Art. 102(l)(a) and 191(l)(a) of theConstitution and in this connection, considered therelevant provisions of Art. 102 ( l ) ( a ) and 191(1)(a) of the Constitution and after discussing the caseof Gurugobinda Basu v, Sankari Prasad Ghoshal(AIR 1964 SC 254) and the decision in the case ofAbdul Shakur v. Rikhab Chand (AIR 1958 SC 52)come to the conclusion that the Government hadcontrol over the Managing Director and otherDirectors as well as the power of issuing directionsrelating to the working of the Company could notlead to the inference that every employee of thecompany was under the control of the Government.Thus, the meaning of the word "under the Govern-ment" means under the control of Government.

23. In Ashok Kumar Bhattacbaryya v. AjoyBiswas (AIR 1985 SC 215) para 16, the Courtheld :

"The true principle behind this provision inArticle 102 (1) (a) is that there shouldnot be any conflict between the duties andthe interest of an elected member. Gove-rnment controls various activities invarious spheres and in various measuresBut to judge Whether employees of anyauthority or local authorities under the con-trol of Govt. become Government emp-loyees or not or holders of office of profit

1063

under the Government, the measure andnature of control exercised by the Govern-ment over the employee must be judgedin the light of the facts and circumstancesin each case so as to avoid any possibleconflict between his personal interests andduties and of the Government.'

(Emphasis Supplied).

This position was further examined in the caseof Surya Kant Roy vs. Imamul Hai Khan (1975) 3SCR 9O9=1975 SC 1053. There, under Bihar andOrissa Mining Settlement Act, 1920, a Board calledthe Mines Board of Health was established toprovide for the control and sanitation of any areawithin which the persons employed in a mine resideand for the prevention therein of the out-break andspread of epidemic diseases. After analysing thefacts of that case, this Court held that the mere factthat the candidate was appointed Chairman of theBoard by State would not make him a person hold-ing an office of profit under the State Government,There the Supreme Court referred to the decisionin the case of Shivamurthy Swami v- Agadi SangannaAndanappa (1971) 3 SCC 870, Supreme Court inSurya Knat Roy v. Imamul Hai Khan (supra)observed at page 911 [of (1975) 3 SCR : (at P.1054 of AIR 1075 SC) as follows :—

'"Here again it is to be pointed out that the Gov-ernment does not pay the remuneration nor.does the holder perform his function for theGovernment. To hold otherwise would beto hold that local bodies like MunicipalCouncils perform functions for the Govern-,ment though in one sense the functions theyperform are Governmental functions."

24. Under the regulations the posts could be crea-ted by the Corporation and appointments to be madeindependently by the Corporation so the termination.It not having come into being by an statute enactedunder Item 5 List II of the VII Schedule is not thelocal authority but it having been established by statuteenacted under power Item 43 List I of the VII Sche-dule as a trading corporation for purpose alreadymentioned, comes within the meaning of other autho-rity as the word "authority" must be construed ac-cording to its ordinary meaning and therefore mustmean a larger power by one person to another to doan act.

Supreme Court in the case Dr. Gurushantappa v.Abdul Khuddus Anwar (AIR 1969 SC 744) at page750 observed:

"The mere control of the Government over theauthority having the power to appoint, dis-miss, or control the working of the officeremployed by such authority does not disqua-lify that officer from being a candidate forelection as a member of the Legislature inthe manner in which such disqualificationcomes into existence for being elected as thePresident on the Vice-President."

25. So far as the Capital of the Food Corporationis concerned Parliament itself fixed the same simulta-neously empowering the Central Government for ex-tension of limit but after due appropriation made byParliament. It is not funded purely by the CentralGovernment at its pleasure or discretion but is byappropriation By Parliament. However, the funds soprovided to the Food Corporation looses its char-acter as that of Government fund no sooner the samearc transferred to the Food Corporation and on lossingits such character become the funds of the FoodCorporation, its character as that of a fund by virtueof creation of its status as Corporation clothed withthe power to acquire property whereas a multi-Statecooperative society under the Multi-State CooperativeSocieties Act, 1985 where a cooperative society onregistration thereunder acquifies the status of a corpo-ration under Section 52 thereof, which does not givepower to the cooperative society so registered to ac-quire for itself movability or immovable property. Onthe registration, of a multi-state Cooperative societyrenders itself into a body corporate by name underwhich it is registered having perpetual succession andcommon seal, and with power to hold property, interinto contract, institute and defend suits and otherlegal proceedings and to do all things necessary forthe purposes for which it is constituted,Minus thepower to acquire for itself.

26. It is settled position of law that the objectbehind Art. 102(1) (a) of the Constitution is thatthere should not be any conflict between the dutiesand interest of an elected member, Government con-trols various activities in various sphere and in variousmeasures. But to judge whether employees of anyauthority or local authorities under the control ofGovernment become Government employees or not orholders of office of profit under the Government, themeasure and nature of control exercised by the Gov-ernment, the measure and nature of control exercisedby the Government over the employee must be judgedin the light of the facts and circumstances in each caseso as to avoid any possible conflict between his per-sonal interests and duties and the Government."

After analysing the facts and the law, the Chowki-dar may be irrespective of the capacity temporary orpermanent is in the employment of the Food Cor-porJation and he cannot be said to have any sort ofconflict between his personal intersts and duties andof the Central Government.

27. In Kripal Singh v. Shri Uttam Singh (AIR1986 SC 300) Supreme Court was possed with thequestion as to what extent and which of the employeesof the public corporations and Government companiesshould be disqualified from contesting election. In thiscontext Para 3 is relevant, which is as extracted :

"3 . The clear and undoubted object of Art.191(1) (a) to (e) and the provisions of theRepresentation of the People Act (includingS. 10) is the preservation of the purity andintegrity of the election process by reventingGovernment or State employees from takingpart in the elections. But than S. 10 appearsto confine the disqualification, in so far as it


relates to employees of Government com-panies to the top-brass' only it' such an un-couth expression may be allowed to creepinto the judgment of a Court : Nowadaysthe activities of the State are so manfoldand prolific that the State has been forced,in the interest of better manageemnt andadministration and in order to further thedirective Principles of State Policy, to set upvarious Corporations which are but mereinstrumentalities of the State. Is the principleof Art. 191(1) (a) then to be extended toemployees of Stale Corporations also byenacting appropriate laws under Art.191(1) (e)? Or are employees of PublicCorporation to be treated differently fromemployees of the Government? Are notsome of them in a better position to exertundesirable pressure than Government em-ployees? On the other hand, arc a tre-mendously large number of employees ofPublic Corporation to be denied the oppor-tunity of being chosen, as representatives ofthe People? Do all the considerations ap-plicable to Government Employees equallyapply to employees of Public Sector under-takings? Is there no distinguishing feature?Are a large mass of highly or moderatelyliterate people to be denied the right to speakfor the people? Is the right to be elected,to be confined, without meaning any dis-respect to anyone to the professional politi-cians only? These are some of the vitalquestions posed and which require to beanswered. The answer should be best givenby the elected representatives of the peoplethemselves. We are not shirking the deci-sion of these questions but our decision canonlv be confined to interpretation. Not so,Parliament which can decide upto thePolicy. That is why, we recommend to theGovernment to have the matter examined bythe Law Commission very early. When asuitable occasion arises in future we will ofcourse, deal with the matter, probablyhelped by new legislation."

It may be noticed with gravity that observations ofSupreme Court were paid on deaf ears.

28. Tremendously large number of employees who arethe citizens of the country and have even no possibleconflict between the personal interests and duties and ofthe Government, cannot be kept out of arena of demo-cacy for being chosen for the House of People orLegislature, otherwise, as is seen present day, such asacred body possessed of sovereign status and functionswould go in the hands of professional class of politiciansto the exclusion of vast literate majority, depriving theequal opportunity owing to consideration of poverty keep-ing the matter to top brassman. In India the majority isnot a political professional majority. Majority is born notmade. A political professional majority is not purely amajority, it is the majority which is always made, unmadeand remade. Judicial must, by process of interpretation,in the healthy interest of the society, promote the citizens'active participation in proper perspective in order to main-tau democratic process on an even keel keeping in arenaa vast majority.

The case of Dr. Gurushantappa v. Abdul Khuddus (supra)was considered in the case Ashok Kumar Bhattachharyyav. Ajoy Biswas (AIR 1985 SC 215 Para 5).

29. The next case cited is Shivumurthy Swami, Inamdarv. Agadi Sanganna Andappa, (19/1) 3 SCC 870 wherethe Supreme Court, alter referring to some of the abovementioned decisions, held thus ;

"The tests for finding out whether an office in questionis an office under a Government and whether it

is an office of profit, arc :

(1) Whether the Government makes the appointment ;

(2) Whether the Government has the right to removeor dismiss the holder ;

(3) Whether the Government pays the remuneration ;

(4) What are the functions of the holder ? Does heperform them for the Government, and

(5) Does the Government exercise any control voterthe performance of these functions ?"

30. In Madhukar v. Jaswani Chobbildas Rajani (AIR 1976SC 2283) the Court observed .

'The next case of considerable importance is Guru-goWnda 1964-4 SCR 311 = (AIR 1964 SC 254)which related to a chartered accountant, a partnerof a firm of auditors of two companies whichwere owned by the Union Government and theState Government. Disqualification for holding anoffice of profit, again, in this circumstance, waspressed before the Court, and S. K. Das Acg. C. J.,speaking for the Court, observed :

"We think that this contention is correct. We agreewith the High Court that for holding an officeof profit under the Government, one need notbe in the service of Government and there needbe no relationship of master and servant betweenthem." (P. 319) (of SCR)=(at page 258 ofAIR)

"In Maulana Abdul Shakur v. Rikham Chand, 1958SCR 387= (AIR 1958 SC 52) the appellant wasthe Manager of a school run by a committeeof management formed under the provisions ofthe Durgah Khwaja Saheb Act, 1955. He wasappointed by the administrator of the Durgahand was paid Rs. 100 per month. The questionarose whether he was disqualified to be chosenas a member of Parliament in view of Art. 102(l)(a) of the Constitution. It was contended forthe respondent in that case that under Sections 5and 9 of the Durgah Khwaja Saheb Act. 1955the Government of India had the power ofappointment and removal of members of thecommittee of management as also the power toappoint the administrator in consultation withthe committee; therefore the appellant was underthe control and supervision of the Governmentand that therefore he was holding an office ofprofit under the Government of India. Thiscontention was repelled and this Court pointedout the distinction between the holder of anoffice of profit under some other authority sub-ject to the control of Government." (Page 319-320) (of SCR)=(at page 258 of AIR).

"It has to be noted that in Maulana Abdul Shakur'scase the appointment of the appellant in thatcase was not made by the Government nor washe liable to be dismissed by the Government.The appointment was made by the administratorof a committee and he was liable to be dismissedby the same body." (page 320) (of SCR) = atpage 258 of AIR).

"It is clear from the aforesaid observations that inMaulana Abdul Shakur's case the factors whichwere held to be decisive were (a) the power ofthe Government to appoint a person to an officeof profit or to continue him in the office or

1065

revoke his appointment at their discretion, and(b) payment from out of Government revenues,though it was pointed out that payment froma source other than Government revenues was notalways a decisive factor. In the case before usthe appointment of the appellant as also hiscontinuance in office rests solely with the Govern-ment of India in respect of the two companies.His remuneration is also fixed by Government.We assume for the purpose of this appeal thatthey are Government companies within themeaning of the Indian Companies Act 1956and 100% of the shares are held by the Govern-ment. We must also remember that in the per-formance of his functions the appellant is cont-rolled by the Comptroller and Auditor-Generalwho himself is undoubtedly holder of an officeof profit under the Government, though there aresafeguards in the Constitution as to his tenureof office and removability therefrom." (Page321) (of SCR) = (at page 259 of AIR).

"Therefore if we look at the matter from the pointof view of substance rather than of form. Itappears to us that the appellant as the holderof an office of profit in the two Governmentcompanies, the Durgapur Projects Ltd. and theHindustan Steel Ltd.. is really under the Govern-ment of India: he is appointed by the Govern-ment of India, he is removable from office bythe Government of India: he performs functionsfor two Government companies under the controlof the Comptroller and Auditor-General whohimself is appointed by the President andwhose administrative powers may be cont-rolled by rules made by the President." (Page322) of SCR) = (at page 259 of AIR).

"In Ramanna v. Sangappa, (AIR 1958 SC 937) thequestions arose as to whether the holder of avillage office who has a hereditary right to itis disqualified under Art. 191 of the Constitution,which is the counterpart of Art. 102. in thematter of member-ship of the State Legislature.It was observed therein :

"The Government makes the appointment to theoffice though it may be that it has under thestatute no option but to appoint the heir tothe office if he has fulfilled the statutory require-ments. The office is, therefore, held by reasonof the appointment by the Government and notsimply because of a hereditary right to it. Thefact that the Government cannot refuse to makethe appointment does not alter the situation."There again, the decisive test was held to be thetest of appointment. In view of these decisionswe cannot accede to the submission of Mr.Chaudhury that the several factors which enterinto the determination of this question—the ap-pointing authority; the authority vested withpower to terminate the appointment, the autho-rity which determines the remuneration, thesource from which the remuneration is paid andthe authority vested with power to control themanner in which the duties of the office are

discharged and to give directions in that behalf—must all co-exist and each must show sub^nV-ifltwi to Government and that it must necessarilyfollow that if one of the elements is absent, thetest of a person holding an office under theGovernment, Central or State, is not satisfied.

The cases we have referred to specifically pointout that the circumstance that the source fromwhich the remuneration is paid is not frompublic revenue is a neutral factor—not decisiveof the question. As we have said earlier whe-ther the stress will be laid on one factor or theother will depend on the facts of each case.However, we have not—hesitation in saving thatwhere ths several elements, the power to appoint,the power to dismiss, the power to control andgive directions as to the manner in which theduties of the office are to be performed and thepower to determine the question of remunerationare all present in a given case, then, the officer

in question holds the office under the authorityso empowered." (pages 322-323) (of SCR)=at page 259 of AIR)."

"38. The core question that comes to the force fromthe survey of the panorama of case law is as towhen we can designate a person gainfully engagedin some work having a nexus with Government asthe holder of an 'office of profit' under Govern-ment in the setting of disqualification for candi-dature for municipal or like elections. The, hold-ing of an office denotes an office and connotes itsholder and this duality implies the existence of theoffice as an independent continuity and an incum-bent thereof for the nonce."

"39. Certain aspects to be elementary. For holding anoffice of profit under Government one need not bein the service of Government and there need tobe no relationship of matter and servant (Guro-gobinda : 1964—4 SCR 311 = (AIR 1964 SC 254).Similarly we have to look at the substance, notthe form. Thirdly, all the several factors stressedby this Court, as determinative of the holding ofan 'office' under Government, need not be con-j-ointly present. The critical circumstances, no.the total factors prove decisive. A practical view,not pedantic basket of tests should guide in arrivingat a sensible conclusion."

31. In Kona Prabhakara Rao v. M. Seshagiri Rao, (AIR1981 SC 658) (Para 11) though the facts were different itwas a case of Director of Travel and Tourism Corporationbut as a principle, Court held :

"In view of these decisions, it is absolutely clear thatas the appellant was neither appointed nor wasremovable by Government and even his compen-satory allowances wore paid from the funds of theCorporation and not from the confers of theGovernment, ho cannot be said to be a personholding any office of profit under the Government."

Here Shri Shobharam Barman, as Chowkidar, was neitherappointed nor was removable by the Government. The pay-ment was not made from conffers of the Government butfrom the funds of the Corporation.

32. The next case cited is the case Satrucherla Chandra-shekhar Raju v. Vvricherla Pradeep Kumar Dey, (AIR 1992SC 1959), the Court extracted the observation made in Dr.Deorao Laxman Anande v. Keshav Laxmnn Borker, (AIR1958 Bom. 314—Para 4) that :

"Before a person can be held to be disqualified underArticle I9 ( l ) (a ) , three things must be proved that(1) he he'd an office (2) that it was an office ofprofit, and (3) that it was an office under the Govern-ment of India or the State Government."

i.e. the proof of disqualification is condition precedent andburden squarely lay on the person who asserts and pleadsdisqualification.

33. From what has been stated earlier, it is clear thatfor holding Shri Shobharnm Barman disqualified the burdenrests obviously on the objector and in the petition, on therespondents to establish by cogent evidence and materialthat he held an office of profit under the Central Governmentso to disqualify for being chosen as a member of the Houseof the People. In the Act and regulations, two words areused—officers and other employees find the Question is ifthe post of Chowkidar could be held to be an office withinthe meaning of Art. 102 (1)(a) of the Constitution, byvirtue of provisions of the Act and the regulations, then,was it an office of profit under the Government of India.

The said Court in the case of Dr. Deorao Laxman Anande(supra) in Para 12 further observed :

"In our opinion, the principal test for deciding whetheran office is under the Government, are (1) what

authority has the power to make an appointment tothe office concerned. (2) what authority can take

disciplinary action and remove or dismiss the holderof the office and (3) by whom and from what

1066 THE GAZETTE OF INDIA : NOVEMBER 8,1997/KARTIKA 17, 1919 PART II—SEC. 3(iii)]

sources is his remuneration paid, of these, thefirst two are, in our opinion, more important thanthe third one."

Supreme Court in Para 11 of the case of SatrucharlaChandrasekhar Raju's Case, laid down some of the tests/principles that emerge for determining a person holds officeof profit under the Government which are :

(1) The powers of the Government is to appoint a personin office or to revoke his appointment at his discre-tion. The mere control of the Government overthe authority having the power to appoint, dismiss,or control the working of the officer employed bysuch authority does not disqualify that officer frombeing a candidate for election as a member of thelegislature.

(2) The payment from out of Government revenue :are important factors in determining whether aperson is holding an office of profit or not, of theGovernment. The payment from a source otherthan Government revenue is not always a decisivefactor,

(3) The incorporation of a body corporate and entrust-ing the functions to it by the Government maysuggest that the statute intended it to be a statutorycorporation independent of the Government. Butit is not conclusive on the question whether it isreally so independent. Sometime, the form may bethat a body corporate independent of Governmentbut in substance, it may be the just "elter-ego" ofthe Government itself.

(4) The true test of determination of the said questiondepends upon the degree of control the Govern-ment has over it, the extent of control exercisedvery other bodies or committees, and its com-position, the degree of its dependence on the Govern-ment for its financial needs and the functional aspectnamely, whether the body is discharging any im-portant Governmental function or just some functionwhich is merely optional from the point of viewof the Government function.

In Para 12 of the said case Court stated :

"It can be seen that one of the main test of determinationof the question is the degree and extent of controli.e. direct or remote over I.T.D.A. by the Govern-ment particularly with reference to making theappointment of the persons in office or to revokethe same at its discretion. In this context it isnecessary to refer to some later decisions of this

Court which are directly on the point and some ofwhich have not been cited before the High Court.Before doing so, we may, however, usefully referto the object underlying Articles 102(1) (a) and191(1)(a) of the Constitution. These two Articlesdeal with disqualifications of a person being chosenas a member of the parliament or the State Legisla-ture, respectively on the ground of holding of officeof profit under the Government. Generally it isunderstood that an office means a position to whichcertain duties are attached. An office of profitinvolves two elements namely that there should besuch an office and that it should carry some remune-rations. It is not the same as holding a post underthe Government, and therefore, for holding anoffice of profit under the Government, a person neednot be in the service of the Government. It is wellsettled now that the object of enacting Art. 102(1)(a) and I91(l)(a) is that there should not be anyconflict between the duties and interests of anelected and to see that such an elected member cancarry on freely and fearlessly his duties being sub-jected to any kind of Governmental pressure, therebyimploring that if such an elected person is holdingan office which brings him remunerations and if theGovernment has a voice in his functions in thatoffice, there is very likelihood of such person suc-cumbing to the wishes of the Government. TheseArticles are intended to eleminate the possibility

of such a conflict between duty and interest sothat the purety of legislature is unaffected."

(Emphasis supplied)

Thus it is clear by reference to the object of enacting Art.102(1 )(a) that the object is not to find out a new head ofan- illegibility

In Bihari Lal Dobray v. Roshan Lal Dobray (AIR 1984SC 385 at P. 387) Supreme Court observed in regard to theobject enacting Article 191(l)(a) as :

"The object of enacting Article 191(1) (a) is plain.A person who is elected to a legislature shouldbe free to carry on his duties fearlessly withoutbeing subjected to any kind of Governmental pres-sure. If such a person is holding office which bringshim remuneration and the Government has a voicein his continuance in that office, there is very likeli-hood of such persons succumbing to the wishes ofGovernment. The Article 191(1) (a) is intended toeliminate the possibility of a conflict between dutyand interest and to maintain the parity of thelegislature."

(Emphasis supplied)

Likewise Supreme Court observed in Ashok Kumar Bhatta-chnryyn v. Ajoy Biswas (AIR 19S5 SC 211 at P. 215).

"The true principle behind this provision in Art. 102(1)(a) is that there should not be any conflict betweenthe duties and the interest qua elected member."

34. The case of Satrucharla Chandrasekhar Raju v. Vyri-cherla Pradeep Kumar Dev, (AIR 1992 SC 1959) is a com-plete answer to the question controversy qua the disqualifica-tion under Art. 102(l)(a) of the Constitution. In this casethe Supreme Court had the occasion to consider almostthe relevant cases, i.e.

(1) R.avanna Subana v. G. S. Kageerappa (AIR 1954SC 653) ;

(2) Maulana Abdul Shakur v. Rikhah Chand (AIR1958 SC 52) ;

(3) Dr. Peorao Laxman Anande v. Keshav LaxmanBorker (AIR 1958 Bom. 314) :

(4) M. Ramappa v. Sangappa (AIR 1958 SC 937) ;

(5) Gopala Kurup v S. A. Paul (AIR 1961 Ker 242) ;

(6) Joti Prasad v. Kalka Prasad (AIR 1962 All 128) :

(7) Kona Prabhakar Rao v. M. Seshagiri Rao (AIR1981 SC 658) ;

(8) Gurugobinda Basu v. Sankari Prasad Ghosal. (AIR1964 SC 254) ;

(9) Bihari Lal Dobray v. Roshan Lal Dobray (AIR1984 SC 385);

(10) Ashok Kumar Bhattacharyya v. Ajoy Biswas (AIR1985 SC 211);

(11) D. R. Gurushatappa v. Abdul Khaddus Anwar (AIR1969 SC 744) ; and

(12) Shiva Murthy Swami Inamdar v. Agadi SangannaAndanappa (1971) 3 SCC 870

In para 21 of Satrucharla's Case. Court said ;"We do not agree. The facts of Biharilal Dobray's case are

distinguishable."

The facts in Satrucharla's Case were :

There was an integrated Tribal Development Agency(I.T.D.A. for short) which was running a primaryschool through its Project Officer where in Satruch-arla Chandra Sekhar Raju was a teacher havingjoined his duly in January, 1988 and was workingin a School in Jevvammavalasa Mandal in Vizia-nagaram District. On 2-8-1988. The Tribal WelfareOfficer inspected the said School and is alleged tohave noticed some irregularities and he kept the

1067

appellant under suspension pending enquiry by anorder dated 23-8-1988. The appellant questionedthe same before Andhra Pradesh Administrative Tri-bunal by filing a petition but the same was rejected,Thereafter by a letter dated 26-10-1989, the appel-lant submitted his resignation to the Project Officerwho was the appointing authority. However, theProject Officer made an endorsement on the saidletter that his resignation cannot be accepted in viewof pending enquiry. Subsequently the election pro-gramme for the Legislative Assembly was announcedand the appellant filed his nomination and contestedelection from the Andhra Pradesh LegislativeAssembly from No. 8—Nagurulsra Constituency on22-11-1985 who was declared duly elected on27-11-1985. Then, Vyricherla Pradeep Kumar Devwho was one of the contesting candidate and wholost the election, filed an election petition challeng-ing the election on the ground that he was disquali-fled as he was holding office of profit not only onthe date of his filing of the nomination but also sub-sequently in view of the fact that his resignationwas not accepted in view of the pending enquiryand therefore he shall be deemed to bo holding anoffice of profit under the Government.

The Andhra Pradesh High Court allowed the petition andset aside the election of Satrucharla Chandrasekhar Rajuwhereupon appeal before Supreme Court and Supreme Courtallowed the appeal by setting aside the judgment in appeal.

Learned Judge in Election Petition held :

(1) Though the Society appears to be independent ofthe State Government but in substance, its activitiesarc controlled by the officers of the Governmentwho are ex-officio members of governing body. TheChairman as well as the Project Officer are the offi-cers of the State Government, A majority of themembers of the State Government. A majority ofthe members of the Governing body are the officersholding posts in Government by virtue of whichthey became the ex-officio members of the Govern-ine body. Thus, for all practical purposes, it is theofficers of the Government who control the activi-ties of the Society;

(ii) Though the Project Officer is the appointing autho-rity of the appellant but he is only a Secretaryof the Society by virtue of the being an officer inthe Government;

(iii) The Government sanctions the number of posts ofteacher, fixes their scale of pay;

(iv) Although the rules provide to have funds of its ownby way of recurring or non recurring grants madeby the Government of India but it is the Govern-ment who sanctions the funds;

(v) Since the Civil Services (Classification, Control andAppeal) Rules of the State Government are beingapplied to the teachers of the Society, they mustbe deemed to have been treated as the employeesof the Government. The State has to provide freeand compulsory education to all the children andprimary education is also the responsibility of theState Government and it is meeting expenditure outof its funds. Therefore, the function of appoint-ment of the teacher in the Society by the ProjectOfficer is one of the Governmental functions andthus the State Government exercise almost fullcontrol.

Supreme Court considered all the cases mentioned (supra)and observed in Para 22 which is as:

"It is also necessary to bear in mind that the Govern-ment is undertaking several projects and activitiesincluding commercial activities through the Corpo-rations and local bodies,.exercising some control oversuch corporations or bodies. In view of the matter,they rnay come within the meaning of the "State"as envisaged in Art.12, but that may not be a de-cisive factor in deciding the issue. As a matter offact Section 10 of the R.P. Act as well as Art.58(2) of the Constitution of India do indicate that

all persons employed in such undertaking, Corpora-tions or local bodies cannot be deemed to sufferdisqualification for contesting the election except tothe extent indicated therein. This aspect also hasbeen considered in some of the aspect also hasdecisions. If a strict and narrow construction is tobe applied, that amounts to shutting off many pro-minent and other eligible persons to contest theelections which forms the fundamental basis for thedemocratic set-up: Therefore, several factors asindicated above depending upon the facts, of eachcase have to be taken into consideration in decidingin deciding whether a particular person is disquali-fied by virtue of his holding an office of profit be-fore concluding that such an office is under theGovernment."

35. In Mudhukar C & E Panickar's case (AIR 1976 SC2283) as to what should be the approach, Supreme Courtobserved in Para 22, as :

"After all law is a means to an end. What is thelegislative-end herein disqualifying holders of ''officeor profit under Government, obiviously to avoid aconflict between duty and interest, to cut out themisuse of official position to advance private benefitand to avert the likelihood of influencing Govern-ment to promote personal advantage. So this isthe mischief, to be suppressed. At the same time,we have to hour in mind that our Constitution man-dates the State to undertake multifarious, public wel-fare and socio-economic activities involving technicalpersons, welfare workers and lay people on a massivescale so that participatory Government may provea progressive reality. In such a expanding situation,can we keep out from elective post at various levelsmany directors, lawyers, engineers and scientists, notto speak of on any of other not-officials who arewanted in various fields, not as full time Govern-ment Servants but as parttime participants in people'sprojects sponsored by Government ? For instance,if a national legal services Authority funded largelyby the State comes into being a large segment ofthe legal profession may be employed port time inthe enabling occupation of legal aid to the poorDoctors, lawyers, engineers, scientist and otherexperts may have to be invited into local bodieslegislatures and like political and administrative or-gans based, on election. If these vital limbs of re-presentative Government are not to be the monopolyof populist politicians in an age which belong totechnology. So, an interpretation of "office of

profit to cast the net so wide that all our citizenswith specialities and know how, are inhibited fromentering elected organs of public administration andoffering semi-voluntary services in para-official,statutory or like nrojects run or directed by Govern-metiti or Corporations controlled by the State maybe detrimental to democracy itself. Even atheletsmay,hesitate to come into sports councils if somefee. for services is paid and that proves their funeralif elected to a Panchayat. A balanced view even

if it involves "judicious irreverence" to vintage prece-dents is the wiser desideratum.

36.Supreme Court in Strucharla Chandrasekhar Raju'sCase (supra) in Para 23 held as:

"What emerges from the above discussion is that theGovernment has some control over the ITDA whichis set up as a project, since it provides funds andsanctions the posts ; the District Collector is appoin-ted as Project Officer and some officers are ex officiomembers of the ITDA which carries out the objectof providing the compulsory education in tribal areas.

But the ITD is a registered society having its ownconstitution. Though the Project Officer is the Dis-trict Collector, he acts as a different entity. Thepower to appoint or to remove teachers is notwith the government but with the Project Officer.The Government may have control over the appoint-ing authority but has no direct control over theteachers. The small post that appelant held inITDA is only that of a Teacher who is directlyunder the control of the Project Officer. In sucha situation the question of any conflict between hisduties and interests as an elected member does not

2756 GI/97—4


arise since it cannot be said that he, as a teacher,can be subjected to any kind of pressure by theGovernment which has neither the power to appointhim nor to remove him from service. Taking apractical view of the substance of these factors intoconsideration, we are of THE VIEW that theappellant cannot be held to be holding an office ofprofit under the Government."

37. The present case is on better footing: :

(a) Shri Shobha Ram Barman was a Chowki-dar (Class IV Post) in the Food Corpora-tion and was the holder of too small apost in the Corporation. The words"holding of an office" denote an office andconnotes its holder and this directly imp-lies the existence of office as an indepen-dent continuity and the incumbent thereoffor the nonce. The post of Chowkidar inthe Corporation in fact and in essence isnot an office and he cannot be the holderof it, as there is no existence of office asindependent continuity or otherwise. Gene-rally it is understood that an office meansa position to which certain duties areattached. However, the post of Chowki-dar does not, thus, fall into the categoryof office. He does not exercise the execu-tive powers. The regulations which pro-vide for method of appointment of otherofficers and employees are framed by theCorporation with the sanction of CentralGovernment. The appointment of other offi-cers and servants is subject to such rules asmay be made by the Central Government.The appointment or termination of Chow-kidar is not even with the sanction of theCentral 'Government. It even indepen-dently, do not either sanction the otherposts or provides for appointment with itsapproval.

(b) Apart from all, the case of Joti Prasad v.Kalka Prasad (AIR 1962 Allahabad 128)is also of relevance. Here it was held that"Vice-Chancellor of the Agra Universityholding an office of profit is a whole-timejob carrying salary, appointed by theGovernment of Uttar Pradesh in his capa-city as a Chancellor of the Agra Univer-sity under the provisions of the AgraUniversity Act, 1976. Even so, the ViceChancellor is not disqualified to stand as amember of U. P. Graduates Constituencyon the ground that he holds the office ofprofit under the State Government. Theprovisions of Agra University Act revealintention of legislature not to regard theChancellor to be a part of the State Gove-rnment, while exercising his powers underthe said Act, the Chancellor does not exer-cise the executive powers of State and theoffice of the Vice-Chancellor cannot besaid to be under the State Government byvirtue of the appointment having been bythe Government in another capacity.

(c) In Gurugobinda's case (supra) SupremeCourt held :

"Similarly we have to look at the substance,not the form. Thirdly all the severalfacts stressed by this Court as determi-native of the holding of an "office'under the Government, need not besimultaneously present. The criticalcircumstances, not the total factors,prove decisive. A practical view oftests, should guide in arriving at asensible conclusion."

38. In Para 11 of Satrucharla Chandra SekharRaju's case (supra), the one of the test [principleis :

"the incorporation of a body corporate andentrusting the functions to it by the

Government may suggest that the statuteintended it to be a statutory corpora-tion independent of the Government.But it is not conclusive on the questionwhether it is really so independent. Some-time, the form may be that of a bodycorporate independent of the Govern-ment, but in substance, it may be the justalter ego of the Government itself."

Learned counsel for respondent No. 1 laid muchemphasis on the said test out of the some of thetests laid down in Para 11 of Satrucharla ChandraSekhar Rau's case (supra) and submitted that theCorporation is just alter-ego of the Government it-self.

First it may be found out as to what is 'alter ego'and which and under what circumstances it couldbe attracted. In Black's Law Dictionary (SixthEdn.) at page 77, Column II for 'alter ego' it wassaid :

'Under doctrine of ''alter ego" court merelydisregards corporate entity and holds in-dividual responsible for acts knowinglyand intentionally done in the name ofCorporation."

In the Book titled as "5000 Legal Maxims &Phrase" by N. M. Mulchandani, the maxim "alterego" was given the meaning as ' A Second Self".In "The Reader's Digest Great Encyclopaedic Dic-tionary" at p. 40 "alter ego" was given meaningas "One's other self".

Thus, the doctrine of "alter ego" is not to beapplied as a rule by the Court without bearing inmind the circumstances necessitating its aid. TheFood Corporation Act u|s. 13 has set out its func-tions and has not left any thing on the Governmentin relation to entrustment of its functions to thecorporation by the Government". Apart from it, itis the Court which under the cover of this doctrinecould disregard the corporate entity for a limitedpurpose for holding individual responsible for actsknowingly and intentionally done in the name ofCorporation and then the protection under the

1069

Food Corporation Act made available qua the actsof individual knowingly and intentionally done inthe name of corporation. It is, in reality and autho-rity of the Court lift the shelter of corporate maski.e. juristic personality for holding individual treat-ing him as second-self responsible far his actsknowingly and intentionally done in the name ofcorporation such as it could make a member of theBoard of Directors of the Corporation orBoard of Management responsible for any mem-ber or any officer or other employee of the corpo-ration or the Board of Management for deficiencyof value of or title to, any property or security ac-quired by it on behalf of corporation even in goodfaith etc. despite the provision under sub-section 2of Section 39 of the Act. Apart from this, membersof the Board of Directors or officers could bebrought within the fold of doctrine of alter-ego ofthe Government by taking him or them away fromthe corporate mask on account of the other tests asenumerated in Para 11 of Satrucharla Chandra-sekhar Raju's Case (supra) are in test and only thetest (3) by virtue of corporate status impedes aperson as holder of office of profit under the Gov-ernment. The word "alter-ego" is a latin word mean-ing only other self; integrate friend. The word"alter" means change or multiply the sense butnot obstruct, in the self to the personality.

(1) Regulation 35 of the regulations which isas extracted was relied on behalf of respondentNo. 1 for the purpose that Shri Shobharam Barmanwas even otherwise disqualified for being chosenfor the House of the People.

"No employee shall canvass or otherwise inter-fere with or use his influence in connec-tion with or take part in an election toany legislature or local authority, pro-vided that—

(i) An employee qualified to vote at suchan election may exercise his right tovote, but where he does so, he shallgive no indication of the manner inwhich he proposes to vote or has voted.

(ii) any employee shall not be deemed tohave contravened the provisions ofthis paragraph by reason only that heasserts in the conduct of an electionin due performance of a duty imposedon him by or under any law for thetime being in force.

Explanation.—The display by anemployee on his person, vehicle orresidence of any electoral symbol shallamount to using his influence in con-nection with an election within themeaning of this regulation."

Under Art. 102(1) (a) a person could be dis-qualified by or under any law made by Parliament.

Section 45 of the Food Corporations Act, 1964which is as extracted below, gives the regulationmaking power to the Corporation :

"45. Power of Food Corporation to makeregulations :—

(1) A Food Corporation may, with theprevious sanction of the Central Gov-ernment, by notification in the OfficialGazette, make regulations not in con-sistent with this Act and the rulesmade thereunder to provide for allmatters for which provision is neces-sary or expedient for the purpose ofgiving effect to the provisions of thisAct.

(2) Without prejudice to the generality ofthe foregoing power, such regulationsmay provide for—

(a) the methods of appointment, theconditions of service and the scalesof pay of the officers and employeesof a Food Corporation, other thanthe Secretary of the Food Corpora-tion of India;

(b) the duties and conduct of officersand employees of a Food Corpora-tion, other than the Secretary afore-said ;

(c) the functions and duties which maybe entrusted or delegated to themanaging director or, as the casemay be, the General Manager, of aFood Corporation;

(d) the times and places at which meet-ings of a Food Corporation or anycommittee thereof shall be held andthe procedure to be followed there-at ;

(e) the fees and allowances payable tothe members of a committee undersub-section (6) of section 14 orsub-section (6) of section 24 ;

(f) generally, the efficient conduct of theaffairs of a Food Corporation.

(3) The Central Government may, by noti-fication in the Official Gazette, rescindany regulation which it has sanction-ed and thereupon such regulation shallcease to have effect.

(4) Any regulation which may be made bythe Food Corporation of India underthis Act may be made by the CentralGovernment within three months fromthe establishment of that Corporationand any regulation which may bemade by the Food Corporation of

1070 THE GAZETTE OF INDIA : NOVEMBER 8,1997/KART1KA 17, 1919 [PART II—SEC. 3(iii)]

India within three months from theestablishment of such State Food Cor-poration, and any regulation so mademay be altered or rescinded by theFood Corporation concerned in theexercise of its powers under this Act."

39. The Food Corporation Act has not laiddown any disqualification disqualifying any personfor being chosen for the House of the People eitherunder Article 102(1)(a) of the Constitution orthe Food Corporation Act has neither empoweredthe Central Government nor the Food Corporationlor laying down the disqualification for a person.Thus, under Food Corporation Act, Rules orregulations as per requirement of Article 102(1)(a) of the Constitution no authority rests with theCentral Government or the Food Corporationdisqualifying a person for being chosen for theHouse of the People. If under the regulationcontained in Section 4 (Conduct of Regulations)of the Regulations laying down the conduct regu-lation under the category of conduct. The Regu-lation 35 of the Regulations (supra) the user ofthe words "take part in an election" does not speakthat he shall not be entitled for being chosen forthe House of the People etc., but only could meanthat he shall not take part in election in the capa-city as counting or polling agent of any candidateat the election to any legislature or local authority.The submission thus being sans substance deservesto be rejected. In a society where the people ofIndia have constituted India into a sovereign

. Socialist Secular Domocratic Republic Securing toall its citizens justice—Social, economic and politi-.cal, liberty of thought, expression belief, faith andworship, equality of status and opportunity and topromote among them all, fraternity, assuring thedignity of the individual and the unity and integrityof the nation, the participation in the election andalso being candidate for being chosen for thelegislature is a rule and non-participation in thename of disqualification is exception and as such,the interpretation that is required to be the purposeoriented providing rule and not to allow the exce-ption for setting at naught the purpose by exclu-ding from arena of democratic process the vastmajority of populace.

40. Owing to no objection in the WrittenStatement in any shape directly, indirectly orremotely about not giving complete concisedstatement of material facts leading to non-disclosure of full cause of action no such issue struck.Not only this, the respondent No. 1 did not cometo witness box nor examined anybody as its witnessfor any purpose, there arises no question forallowing during the course of arguments theobjection of the nature not having its foundationin the Written Statement.

In the case of Manohar Vs. Marotrao (AIR1979 SC 1084) a similar provision to that of 35

of the Regulation quoted (supra) came up forconsideration before Supreme Court where Courtheld as :

"1 hold that the impact of Regulation 25(4)is not to impose ineligibility on an LICemployee to be a member of a municipalcorporation. Its effect is not on thecandidature but on the employmentitself."

Court in Para 16, which is as extracted indicatedthe persuasive factor as broadly supportive of ourconclusion.

"16. There is a broader constitutional princi-ple which supports this semantic attribu-tion. The success of our democracy to'tourniquet' excess of authority dependson citizen participation. An inert citi-zenry indifferent to the political processis an enemy of the Republic's vitality.Indeed, absolutism thrives on inactionof the members of the polity. Therefore,activist involvement in various aspectsof public affairs by as many citizens ascan be persuaded to interest themselvesis a sign of the health and strength ofour democratic system. Local self-government and adult franchise giveconstitutional impetus to the citizens totake part in public administration. Ofcourse, this does not mean that where aplain conflict of interests between hold-ing an office and taking part in thepolitical affairs of Government exists, adisqualification cannot be imposed inpublic interest. The rule is participa-tion, the exception exclusion. Viewedfrom that angle, if a Government servantor an employee of the LIC participatesin local administration or other electionit may well be that he may forfeit hisposition as Government servant or em-ployment, if dual devotion is destructiveof efficiency as employee and be subjectto disciplinary action a matter whichdepends on a given milieu and potentialpublic mischief. I am not resting ourdecision on this general considerationbut mention this persuasive factor asbroadly supportive of our conclusion."

In Para 40 of the report Pathak. J. said :

"The right to stand for election flows fromthe election law. Regulation 25(4) doesnot take away or abrogate the right : itmerely seeks to restrain the employeefrom exercising it in the interests ofservice discipline."

41. The Written Statement filed by respondentNo. 1 contains no allegations in regard to any

1071

defect in the petition nor even in regard to non-containment of concise statement of material factson which petitioner relied or even non-disclosureof cause of action. Obviously there was none andabsence of any such pleading resulted in non-framing of issue which could be put to trial. Itmay be noticed without acceptance of any defectin the petition, that Section 83 of the Act is takenout of arena of Section 86 for the dismissal of thepetition without there being any objection, thoughtit contains in its fold the other provisions ofSections 81, 82 and 117. Despite all this, thelearned counsel for the respondent No. 1 ShriKapil Sibbal raised a preliminary objection duringthe course of arguments at the stage of final hear-ing of the petition in this regard that the petitiondid not contain concise statement of material factson which the petitioner relied, as required u|s 83(1 )(a) of the Act resulting in the non-disclosure offull cause of action qua disqualification underArticle 102(1)(a) of the Constitution, the require-ments whereof were :

(1) That the person holds an office;

(2) That the office is an office of profits.

(3) That it was an office under the Govern-ment of India or the State Government.

42. Section 83 of the Representation of PeopleAct deals with the contents of the petition andclause (a) of sub-section (1) thereof states thatan election petition to contain a concise statementof material facts on which the petitioner relies.It has not been fatal to such an extent so to leadto the dismissal of an election petition u|s. 86 ofthe Representation of People Act. If it is raisedin Written Statement to be decided under an issueframed to this .effect on the basis of the evidenceled Qua the objection in Written Statement andthe burden squarely rests on him as indicationcomes from the case of Dr. Deo Rao LaxmanAnand Vs. Keshav Laxman Borkar (AIR 1958Bombay 314) where the Court in Para 4 observeda s :

"Before a person can be held to be disqualifi-ed under Article 191 ( l ) ( a ) , threethings must be proved (1) he held anoffice (2) that it was an office of profitand (3) that it was an office under theGovernment of India."

43. In Samant N. Bal Krishna Vs. GeorgeFernandes which was a case relating to corruptpractices, Court in Para 29 observed :

"What is the difference between material factsparticulars ? The word 'material' shownthat the facts necessary to formulate acomplete cause of action must be stated.Omission of a single material fact leadsto an incomplete cause of action and

the statement of claim becomes bad, Thefunction of particulars is to present asfull a picture--of the cause of action withsuch further information in detail as tomake the opposite party understand thecase he will have to meet

The material facts thus will show theground of corrupt practice and the com-plete cause of action and particularlywill give the necessary information topresent full picture of cause of action."

44. In the case of Quamarul Islam Vs. S. K.Kama (AIR 1994 SC 1733) which related' tocorrupt practice whereat much belated stage IAIII moved on 3-4-1992 when evidence was overand than learned counsel raised an objection ascontained in Para 22 of the report, wherein Courtin Para 41 held as :

"Even if the application of the.appellant, IAIII, seeking dismissal of the electionpetition may be held to have been rightlyrejected on the ground that after the par-ties had gone to trial, despute the absenceof full, facts and particulars of the allegedcorrupt practice and had led evidence,an election petition is not liable to bethereafter dismissed for those defectsonly but in such cases, the evidence thatis required to prove the allegations ofcorrupt practices in an election petitionhas to be more strictly scrutinised, testthe evidence, which in a way travels be-yond the pleadings, is accepted withoutproper analysis.

The present is not a case of corrupt practice andthe nature of material facts very controversy tocontroversy. Here controversy is of legal natureand the [petition contains adequately all necessarymaterial facts,making clear to the respondent whatcase he has to meet. It may however be observedthat in the present petition there is no such objec-tion in the Written Statement. Consequently nosuch objection and that too even at the delayedstage, can be raised.

What to constitute the material facts will dependnot on any catelogued formula but depend uponcontroversy qua the ground of challenge and thecriterion of material facts to vary in the case con-taining ground of disqualification under Article102(1) (a) i.e. for the reason of holding of officeof profit under the Government of India as is in thepresent case and the case of disqualification on theground of commission of corrupt practice providedunder Section 123 of the Act. So far as materialtacts are concerned, the concise statements to bemade in the petition to give the basic ideas of theground of disqualification under Article 102(1)(a) of the Constitution so to make it clear as to

1072 THE GAZETTE OF India ; NOVEMBER 8, KARTHIKA 17, 1919 [PART II—SEC. 3(iii)]

on what controversy the petition is founded. Thepetition does not suffer from the defect in regardto locking in material facts.

As has been said in F. A. SAPA v. SINGORA(1991) 2 Sec.575, which was a case of corruptpractice, U|S. 123 of the Act, court spelled outme underlying ideas in requiring the electionpetitioner to set out in a concise manner all thematerial facts as well as full particulars, whereascommission of corrupt practice is complained of,is to delineate the scope, ambit and limits of theinquiry at the trial of the election petition, as thecharge of corrupt practice has (two dimensionaleffect, its impact on the returned candidate hasto be viewed from the point or view of the can-didate's future political and public life and fromthe point of view of the electorate to ensure purityof election process. There can, therefore, be nodoubt that such an allegation involving corruptpractice must be viewed very seriously and theHigh Court should ensure compliance with the re-quirements of Section 83 of the Act before partiesgo to trial.

The present case stands on different pedistal.It is not a case of corrupt practice and as suchthere is no question of candidate's future politicalor public life as the candidate cannot be disquali-fied. Concise statement of material facts qua thecontroversy in the petition, the written statementcontains no such objections rather it admits thematerial on|no objection is filed independently ofwritten statement and what has been stated in thepetition is the sufficient concise statement of factsqua the ground of Art. 102(1) (a) of the Consti-tution whereunder the nomination of Shobha RamBurman was rejected on the controversy basicallyfounded upon consideration of law and legal aspect.

45. In view of above having regard to the facts,circumstances of the case, material on the recordand the relevant law as well as analysing the legalposition, the conclusion as arrived at is that thenomination paper of Shri Shobha Ram Burman forbeing a candidate at the election for the House ofPeople from 17-Raipur Parliamentary Constituencywas improperly rejected by the Returning Officeron the ground of his having disqualification underArticle 102(1)(a) of the Constitution being holderof office of profit under Food Corporation of Indiawhich is an Undertaking of the Government orIndia being in the employment of the FoodCorporation of India.

46. The Election Petition thus, deserves to beallowed and the election of Shri Vidya CharanShukla, the respondent No. 1, deserves to be sentaside. Accordingly, the election petition is allowedand the election of Shri Vidya Charan Shukla(Respondent No. 1) for the House of People from17-Raipur Parliamentary Constituency is set-asidedeclaring the same to be void. The relief of dec-

laration of Shri Ramesh Bais as having been dec-lared as elected in his place is refused as therewere in the fray more than two candidates. Thecost is quantified at Rs. 5,000 (Rupees FiveThousand Only). The Petitioners are also entitledfor the refund of the whole of the securityamount.

Sdl-(D. P. S. CHAUHAN)

Judge.

As per requirement of Section 103 of theRepresentation of Peoples Act, 1951, the sub-stance of decision may be communicated to theSpeaker of House of People and the copy of thedecision may be sent to the Election Commissionof India.

D. P. S. CHAUHAN, Judge20-2-1996.

E.P. No- 1|91

Hon. D. P. S. Chauhan, J.

20-2-1996.

The judgment in Election Petition No. 1 of 1991is pronounced today before lunch. An applicationis moved during the post lunch session by thelearned counsel for the respondent No. 1, shri V.K.Tankha making prayer that this Hon'ble Court maykindly be pleased to stay the operation of the orderdelivered today for a period of one month or forsuch time as this Hon'ble Court deems just in theinterest of justice.

Heard the learned counsel for the respondentNo. 1, Shri V. K. Tankha and the learned counselfor the petitioners, Shri L. S. Baghel.

Under section 116A of the Representation of thePeople Act, 1951 (for brevity hereinafter referredto as 'the Act'), the order made by the High Courtunder section 98 or section 99 is appealable to theSupreme Court both on question of law as well ason the question of fact and the period of limitationis also provided thereunder, which is 30 days fromthe date of the order of the High Court.

Section 116B of the Act gives discretion to theHigh Court on the sufficient cause having beenshown to stay the operation of the order on suchterms and conditions as it may think fit. So far asthe terms and conditions are concerned, learnedcounsel for the respondent No. 1 relied on thecase of Kirpal Singh v. Shri Uttam Singh andanother decided by the Supreme Court on 9thOctober, 1985. In the case relied on, the Hon'bleJudges of the Supreme Court observed :

"Without meaning any disrespect to the learnedjudges who made the interim order. Wethink that where an election is set asidefor no fault to his, such as a corrupt

1073

practice committed by him or his agentor a disqualification suffered by him, buton the ground that some one else's nomi-nation had been improperly rejected, themore appropriate order would perhapswould be to grant an absolute stay so thatthe Constituency may not go unrepresen-ted for no fault of either the elected orthose who elected."

In the present case, the election of respondentNo. 1 has not been set aside on the ground ofany corrupt practice or on the ground of sufferenceof any disqualification, but the election petition hasbeen allowed on the ground of improper rejectionof the nomination paper of Shri Shobha RamBurman. In view of this, so far as question of termsand conditions is concerned, the case relied onsquarely covers the present case.

The other thing for grant of stay order to beseen is existence of sufficient cause. Since Section

116A of the Act has provided for appeal bothon law and facts and further in view of the obser-vation of the Supreme Court in the case of KirpalSingh (supra), there is sufficient cause for stayingthe operation of the order for a period of threeweeks from today. Ordered' accordingly.

Certified copy of this order as well as of thejudgment delivered in Election Petition No. 1|91may be supplied to the learned counsel for theparties on payment of usual charges.

Sd|-D. P. S. CHAUHAN,

Judge.

[No. 82|MP-HP|(l|91)|96]

By order,L. H. FARUQI. Secy.

Printed by the Manager, Govt. of India Press, Ring Road, Mayu Puri, New Delhi-110064and Published by the Controller of Publications, Delhi-110054, 1997