Tarun Chatterjee vs Vinod Kumar Naik and Others

Fakhruddin, J.—The applicant has moved this Court by filing a revision petition u/s 441F (2) of the Municipal Corporation Act, 1956 against the judgment and order dated 25-4-2003 passed in Election Petition No. 2/2002 by the District Judge, Raipur, challenging the election of Mayor having been declared void. The applicant has also sought for stay of the effect and operation of the said order passed by the Election Tribunal.

The revision petition has already been admitted for hearing. Arguments have been advanced by the Counsel for the parties. Advocate General of the State of Chhattisgarh has also addressed.

Before dealing with the factual matrix, it is pertinent to mention here that learned Counsel for the parties have referred to the provisions of Articles 190, 191, 192, 243P, 243Q, 243R and 243V. The provisions of Schedule VII - Entries 72, 73 and 74 of List I - Union List, Schedule VII -Entries 37, 38 and 39 of List II - State List have also been referred. Certain provisions of M.P. Municipal Corporation Act, now known as C.G. Municipal Corporation Act (hereinafter referred to as ''the Act''), are also relevant. Section 5 (14) defines the Councillor. Section 6 relates to the municipal authorities charged with the execution of this Act. Section 7 relates to Constitution of Municipal Corporation for a larger urban area. Section 7 (2) defines the meaning of larger urban area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Act. Section 9 relates to Composition of Municipal Corporation. Section 16 deals with qualification for election as Mayor or Councillor. Section 17 deals with General disqualifications for becoming a Councillor. Section 17 (3) relates to power to decide whether vacancy has occurred.

Now, so far as the election petitions are concerned, Section 441 of the Act deals with it. Section 441-B deals with Grounds for declaring elections or nominations to be void. Section 441-F deals with Finality of decisions.

Learned Counsel for the petitioner submitted that the Tribunal had exercised the jurisdiction not vested to it by law and committed grave of jurisdiction, especially giving findings in Paragraph 23 of the impugned order. It is contended that the Tribunal has held the office of M.L.A. as an office of profit. This is going to affect the legislature through out the country. The Tribunal has dealt with the qualifications and disqualifications of M.L.A. In this connection, the Tribunal has failed to consider the constitutional provisions and the decision of the Supreme Court in the case of Bhagwati Prasad Dixit ''Ghorewala'' Vs. Rajeev Gandhi, . The Tribunal misconstrued the provisions of Madhya Pradesh Vidhan Mandal Sadasya Nirharta Niwaran Adhiniyam (hereinafter referred to as ''the Adhiniyam''). It is contended that as the office of M.L.A. is not an office of profit, there is no question of disqualification and if there is no disqualification, there is no question of removal under the Adhiniyam. It is further contended that the finding of the Tribunal that an M.L.A. while remaining the M.L.A. can not contest the election, is against Chapter 6 of Representation of the People Act, 1951. It is also contended that the finding recorded by Tribunal that under the provisions of Representation of the People Act, a sitting member can not contest for vacant seat of Assembly and he is disqualified for that, is against the provisions. It is also contended that the finding of the Tribunal that the applicant was ex officio Councillor and he is not qualified to contest, is contrary to law.

Learned Counsel for the applicant submits that prima facie the applicant has strong case on the merits in the sense that the judgment on its face is without jurisdiction, perverse, illegal and not at all sustainable.

On the other hand, learned Counsel for the non-applicant Nos. 1 to 3 contended that the findings recorded by the Tribunal are sound.

This Court heard to some extent the arguments of the learned Counsel for the applicant and counter submissions made by the learned Counsel for the non-applicant Nos. 1 to 3 in her endeavour to establish that the findings recorded by the Tribunal are sound.

Considering the stay, the Apex Court in the case of Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, has held as under :--

"When the Court is considering whether a stay should be granted or not, it is premature and perhaps unwise to pronounce on the merits of the appeal itself except where the judgment contained grotesque errors, absurd conclusions or grossly erroneous propositions of law."

For this purpose, the duty of the Court is amply described by the Apex Court, which reads as under :--

"While the right to appeal is statutory, the power to stay is discretionary--indeed, even executive discretion -- can not run riot the former, though plenary, is governed in its exercise by sound guidelines, and Courts look for light, inter alia from practice and precedent, without however being hide -- bound mechanically by the past alone. After all judicial power is dynamic, forward looking and socially lucent and aware. I mention this dimension of ''judge-power'' because the industry and ingenuity of both lawyers have unearthed prior instances zigzagging now and then but substantially striking the same note. A few orders from the debris of old records have been brought up which seem to suggest variations in the type of stay granted by the higher Courts. I shall have occasion to dilate on them a little later. Suffice it to note that the power of the Court must rise to the occasion, if justice, in its larger connotation, is the goal --and it is."

It is in this view the matter is to be considered.

Non-applicant Nos. 1, 2 and 3 namely Vinod Kumar Naik, Viresh Doshi and Dilip Kumar Verma filed an election petition as voters u/s 441 of the M.P. Municipal Corporation Act, 1956 on 27-1-2000. The election petitioners joined Tarun Chatterjee as respondent No. 1 and Collector/District Election Officer, Raipur as respondent No. 2.

According to the election petitioners, for the election of Mayor, following programme/schedule was declared :--

(1) Last date for submitting nomination 242-1999

(2) Date of scrutiny of nomination 3-12-1999

(3) Date of withdrawal of nomination 6-12-1999

(4) Date of polling of Mayor 22-12-1999

(5) Date of counting and declaration of 27-124999 result

(6) Date of publication of result in the 3-1-2000 Gazette

It was submitted that the voting was held on 2242-1999 and the result was declared by Returning Officer on 27-12-1999. The petitioners in Para 7 of their petition referred to Section 17 (1) (K) of the Act in order to contend that no M.L.A. can participate in the election for the post of Mayor. The contention was that respondent No. 1 was M.L.A. of Raipur Gramin Constituency No. 127 and although he is an M.L.A. enjoying all the benefits, yet he filled the form for which he was not entitled.

It is also stated that on 7-1-2000 he assumed the office of the Mayor and as such drew the allowances. The prayer is to the following effect :--

"The Court be pleased to declare void the election of non-applicant No. 1 Tarun Chatterjee as Mayor and in the alternative since respondent No. 1 is M.L.A. as well as Mayor and continuing in both the posts, which is unconstitutional, and as such he should be directed to resign from the post of Mayor."

The affidavits of election petitioners Dilip Kumar, Vinod Kumar Naik and Viresh Doshi were also filed. Written statement was submitted by respondent No. 1 Tarun Chatterjee. Preliminary objections were raised to the effect that there is no disqualification for M.L.A. to contest the election of Mayor under the existing Law and Rules. Secondly, it was further contended that the election petitioners have failed and have not been able to demonstrate that respondent No. 1 therein suffers from any such disqualification as expressly laid down by or under the law. Thirdly, that the relevant date for ascertaining the qualification or eligibility to contest the election will be the date of nomination and scrutiny and in any case respondent No. 1 did not suffer from any such disqualification whatsoever on the date of nomination. Fourthly, that Section 17 of the Municipal Corporation Act nowhere provides that a person who has already been elected as Member of Legislative Assembly is disqualified from becoming the Mayor of Corporation and further that there is no statutory bar for members of the Legislative Assembly from contensting the election to the post of Mayor and respondent No. 1, therein had rightly contested and was elected as a Mayor of Corporation. It was also contended that the question of disqualification of respondent No. 1 to be an M.L.A., was raised at the behest of election petitioner before His Excellency the Governor, that had since been adjudicated and determined in accordance with law in favour of respondent No. 1 therein. It was admitted that petitioner when he contested the election was an M.L.A., and he filed nomination and was declared elected by notification dated 3rd January, 2000. It was reiterated that he does not suffer from any disqualification. It was also contended in Para No. 2 that the wife of election petitioner No. 1 Smt. Kiranmayee Naik filed a petition under Article 192 of the Constitution of India making a grievance that respondent No. 1 had become disqualified from continuing the office of M.L.A., as provided in Article 191(1) of the Constitution of India as respondent No. 1 has held the office of the Mayor. His Excellency the Governor obtaining the opinion of Election Commission answered to the effect that the petitioner does not suffer from any disqualification as the office of Mayor is not an Office of profit under the Government of India or the Govt. of any State specified in Ist Schedule and in accordance with the Article 192(2).

Respondent No. 2 therein, the Collector, filed reply opposing the stand of election petitioners. The stand of respondent No. 2, the Collector is to the effect that in view of the decision of the Supreme Court and the High Courts and in view of the recommendations of the Election Commission, the post of Mayor is not under the Office of Central Govt. or the State Government and the appointment or removal of the Mayor can not be made by the Central Govt. or the State Government. It was further stated that the remunerations are not given to the Mayor by the Central Govt. or the State Govt. and there is no control of the Central Govt. or State Govt. on the working of the Mayor. Mayor''s election is a direct election and the Government can not remove him and it is not an office of profit. It was contended that in such circumstances the application of the election petitioners deserves to be rejected.

The Tribunal framed the following issues :--

(1) Whether taking the benefits of the office of M.L.A. and receiving the salary, contesting the election of Mayor in December, 1999 by the respondent is illegal ?

If yes, the effect thereof ?

(2) Relief and costs ?

Counsel for the applicant submitted that the applicant has not been unseeded on any of the corrupt practices. The Election Tribunal has declared his election void on the assumption that the office of M.L.A. in the Vidhan Sabha is an office of profit under the State and as such he was not qualified. It is submitted that said proposition/assumption of the Tribunal is contrary to the decision in Bhagwati Prasad Dixit''s case (supra). It is further submitted that the Tribunal in Paragraph 23 on that basis has reached on the conclusion and recorded the findings as under :--

^^bl izdj.k esa Loh�r fLFkfr fof/k ,oa lk{; dk fo''ys"k.k ,oa lk{; dh fo''oluh;rk ds vk/kkj ij fuEu fcUnw izekf.kr jgs gSa %&&

�1� m�kjoknh �- 1 Jh r:.k izlkn pVthZ us fo/kk;d dk in /kkj.k djrs gq, fnlEcj] 1999 esa jk;iqj uxj fuxe ds egkikSj ds in dk pquko yM+k A

�2� m� yM+us ds le; ,oa mlds iwoZ RkFkk mlds ckn Hkh m�kjoknh �- 1 Jh r:.k izlkn pVthZ fo/kk;d ds in dks ysdj ikfjJfed ds :i esa osru ,oa lEiw.kZ Hk�ks izkIr djrs jgs vkSj bl rjg mUgksaus fnlEcj] 1999 ds egkikSj ds pquko esa Hkkx ysus ds le; ''kklu ds v/khu YkkHk dk in /kkj.k dj j[kk Fkk A

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�6� m�kjoknh �- 1 insu ik"kZn Fks ,oa m� vk/kkj ij Hkh egkikSj dk pquko yM+us ds fy;s fujgZfjr Fks A**

It is also submitted by the learned Counsel for the applicant that the State Legislature has not enacted any law under Article 243V of the Constitution of India. It is submitted that under Article 191(e) it is the Parliament, which could disqualify the person for being chosen a Member of the Legislative Assembly or Legislative Council of the State. It is further submitted that during the intervening period, the applicant has been sworn in as a Minister and Explanation to Article 191 has been referred to. Learned Counsel submits that the applicant is a Minister which has been noted by the learned Tribunal. While dealing cursorily with the impugned order, it is stated that though the issue was one, but the findings have been given in Paragraph 23 on six points.

Reference has been made to Paragraphs 9, 10, 11, 12 and 13 of the impugned order of the Tribunal, in which evidence to the drawing of pay and allowances as an M.L.A. and as a Minister has been dealt with. R.K. Netam (P.W. 1), Treasury Officer, has stated in his evidence that Exs. P-1 to P-6 are the documents on which Shri Chatterjee, while holding the post of M.L.A., has put the signatures. L.P. Yadav (P.W. 2) has stated in his evidence that Exs. P-7 to P-11 are the documents, which are the bills regarding T.A., D.A. etc, and Exs. P-12 to P-15 are the documents which are the bills regarding expenditure on the vehicle of Shri Chatterjee while holding the post of Mayor. Ram Kumar Verma (P.W. 3) has stated in his evidence that Exs. P-27 and P-28 are the documents which relate to the pay and allowances of Shri Chatterjee while holding the post of Minister.

Section 17 (k) of the Act has been referred to in Paragraph 14 of the impugned order. Section 3 of the Adhiniyam has been referred to in Paragraph 15 of the impugned order.

It is submitted by the learned Counsel for the applicant that the learned Tribunal has committed grave irregularity in holding that this Adhiniyam of 1967 does not mention about removal of disqualification of M.L.A. It is further submitted that the M.L.A. is not an office of profit under the Union or the State and as such the question of removal of such disqualification does not arise.

In Paragraph 16 of the impugned order learned Tribunal referred to Articles 190, 191 and 191(1)(k) of the Constitution. In Paragraph 17 learned Tribunal referred to the decision of the Apex Court in the case of P.V. Narsimha Rao Vs. State (CBI/SPE), . In Paragraph 18 reference has been made to the decisions of the Apex Court in the cases of Ram Krishna Hegde v. State of Karnataka ( AIR 1993 Kar 54 ) and Ashok Kumar Bhattacharyya Vs. Ajoy Biswas and Others, . In Paragraph 19, reference has been made to the decision of the Apex Court in the case of Shibu Soren Vs. Dayanand Sahay and Others, . In other paragraph, Section 16 (4) of the Act has been referred to and the findings have been recorded that since Shri Chatterjee was ex-officio Councillor u/s 9 (1), he could not contest the election of Mayor u/s 16 of the Act. It is submitted that these findings recorded are per se contrary to law. It is further submitted that the learned Tribunal considered the question regarding disqualification under Article 192 and the decision of the Governor which was made on the basis of the report of the Election Commission. It is also submitted that there are two aspects, one so far as election petitions are concerned the cause of action is up to the date of declaration of result or the publication in the official gazette, second application u/s 441 of the Act is to be filed within 30 days. For the said purpose M.P. Municipal Corporation (Election Petitions) Rules, 1963 have been framed which are now known as Chhattisgarh Municipal Corporation (Election Petitions) Rules.

The election petitioner submitted that the returned candidate did not vacate the office within 7 days and, therefore, a prayer was made to declare the election of Mayor as void, in the alternative since respondent No. 1 therein is holding the two posts of M.L.A. and Mayor together, which is unconstitutional, therefore, he should be directed to resign from the post of Mayor. It is submitted that so far as this is concerned, it could not have been done by the Tribunal. Multiple elections are provided under the Representation of People Act and reference is made to Sections 68, 69 and 70 of the said Act. The Election Tribunal is not vested under law with the power to issue direction to resign from the post. The contention that the person is holding the two offices or two posts, which is violative, can not be gone into by way of election petition before the Election Tribunal, The Constitution takes care and for that Article 192 of the Constitution is there and that power has to be exercised by the Governor. Before giving the decision, the Governor shall obtain the opinion of the Election Commissioner. It is submitted that normally the Governor acts on the advice of the Council of Minister. There is a special power to the President of India under Article 103 and to the Governor under Article 192 of the Constitution of India after taking opinion of the Election Commissioner. In this case, it is submitted that the Governor has given an opinion and the documents are on the record of revision petition. The finding given by the Governor can not be set at naught by Election Tribunal. The judicial view of that may be made. The said order of the Governor has not been challenged by anybody. The order is not in personam, it is in a rem. The order of the Constitutional functionary can not be set at naught nor could be ignored.

Learned Counsel for the election petitioners Smt. Naik on the other hand submitted written submissions. In fact, she has filed the reply to the revision as well as the stay application. Her main convention is with reference to Sections 17 (1) (k), 9, 16 (4) and 410 of the Corporation Act. Heavy reliance has been made on the decision of P.V. Narsimha Rao''s case (supra). The office of Member of Parliament or the Legislative Assembly according to her is the office of profit. On the other hand, learned Counsel for the applicant submits that it is the public office.

Section 410 of the Act describes that the councillors and Municipal Officers, etc. are deemed to be public servants within the meaning of Section 21 of the Indian Penal Code. It is not laid down that the M.P./M.L.A. holds office of profit under the Union or the State. Offices of profit and public are different.

Reliance has been placed by Smt. Naik on the decision of Shibu Soren''s case (supra). That case is a different one. In that case, the appellant was holding the position of Chairman of interim Jharkhand Area Autonomous Council and receiving honorarium and other allowances. The Apex Court dealt with the matter in great detail and has held as under :--

"The question whether a person holds an office of profit, as already noticed is required to be interpreted in a realistic manner having regard to the facts and circumstances of each case and relevant statutory provisions. While ''a strict and narrow construction'' may not be adopted which may have the effect of ''shutting off many prominent and other eligible person to contest the elections'' but at the same time ''in dealing with a statutory provision which imposes a disqualification on a citizen it would be unreasonable to take merely a broad and general view and ignore the essential points''. The approach which appeals to us to interpret the expression ''office of profit'' is that it should be interpreted with the flavour of reality bearing in mind the object for enactment of Article 102(1)(a) namely to eliminate or in any event to reduce the risk of conflict between the duty and interest amongst members of the legislature by ensuring that the legislature does not have persons who receive benefits from the Executive and may thus be amenable to its influence.

The word ''profit'' for the purpose of Article 102(1)(a) or Article 191 ''connotes an idea of pecuniary gain'', though neither the label under which it is paid nor the quantum of the amount may always the material to determine the issue. In the instant case, the appellant on his own admission was to receive Rs. 150/- per day as allowance for performing work of the interim Council outside the head-quarters and Rs. 120/- per day for the days of sitting of the Council. These amounts, in our opinion, were intended to meet out of pocket expenses of the appellant and were in the nature of compensatory allowances and were not a source of profit. Payment of Rs. 1750/- per month as honorarium was in addition to the aforesaid allowances. In Karbhari Bhimaji Rohamare Vs. Shanker Rao Genuji Kolhe and Others, , this Court opined that a person receiving an honorarium of Rs. 25/- per day besides travelling and daily allowances could not be said to be making any pecuniary gain nor could it become a ''source of profit'' for the concerned person, unless he stays ''with some friends or relatives or stays in the Dharmshala .......''

Indeed those observations were made taking a realistic view of the matter based on the fact situation in that case. In the present case, besides the receipt of daily allowances and honorarium, the appellant had, as admitted by him, also been provided with rent-free accommodation besides a car with a driver at State expense. Keeping in view these facilities, the payment of an additional amount of Rs. 1,750A per month as an honorarium was, under the circumstances, clearly in the nature of giving some pecuniary gain to the appellant and was not intended to compensate the appellant for his out of pocket expenses. In various precedents, relied upon by learned Counsel for the parties before us and referred to by us in an earlier part of this judgment, the element of providing rent-free accommodation and a chauffeur driven car at the State expense in addition to ''honorarium'' and other allowances to the concerned person was not involved. These are relevant factors. The grant of honorarium of Rs. 1,750/- per month besides other perquisites, granted by the State Government to its own nominee, in addition to the payment of daily allowances, to meet out of pocket expenses, does bring in an element of granting "profits" to the appellant. He certainly can be said to have made pecuniary gain out of the payment of honorarium of Rs. 1,750/- per month, it is not possible to construe the payment of Rs. 1,750/- per month, to be payment in the nature of "compensatory allowance". While construing the true nature of ''honorarium'', the grant of other perquisites can not be over-looked or ignored. The ''honorarium'' receivable by the appellant at the rate of Rs. 1,750/- per month, besides other ''allowances'' and ''perquisities'' was surely not in the nature of gratuitous payment, voluntary donation or compensation to meet any out of pocket expenses. It was in the nature of ''remuneration'' and was a source of ''pecuniary gain''. The receipt of honorarium at the rate of Rs. 1,750/- per month, besides daily allowances, rent-free accommodation and a chauffeur driven car at the State expense, to the appellant was a benefit capable of bringing about a conflict between the duty and interest of the appellant as a Member of parliament -- the precise vice to which Article 102(1)(a) is attracted.

We are, therefore, in the established facts and circumstances of the case, in agreement with the High Court that the appellant, as Chairman of the Interim JAA Council was in receipt of pecuniary gain in the form of honorarium and he, thus, held an ''office of profit''. This now takes us to the next question.

Did the appellant hold this ''office of profit'' as Chairman of Interim JAA Council ''under the State'' ?

The appellant was nominated (appointed) as Chairman of the Interim Council by the State Government by virtue of powers vested in it u/s 23 of the Act. He was to hold the office of the Chairman of Interim Council ''at the pleasure of the State Government'' vide Section 23 (7) of the Act. Thus, not only was the appellant appointed (nominated) by the State Government, it was the State Governments which had the right to remove or dismiss the holder of that office besides controlling the manner of functioning of the Interim Council and providing funds for the Interim JAA Council out of which honorarium of Rs. 1,750/- per month was paid to the appellant. It follows that various tests laid down by this Court to determine whether the appellant was holding an office ''under the State Government'' including the decisive test of the power of Government to appoint the person in office as well as revoke his appointment at its discretion and be responsible for the expenses, are fully satisfied in the case of the appellant, and therefore, we hold that the appellant was holding his office under the State Government. Since, we have already found that the honorarium of Rs. 1,750/- paid to the appellant as Chairman of Interim Council, besides other daily allowances and perquisites of rent-free accommodation and car with a driver, could not be said to be in the nature of ''compensatory allowances'' and was in the nature of remuneration or salary, inherently implying an element of ''profit'' and of giving ''pecuniary gain'' to the appellant, it follows that the appellant was holding an office of profit under the State Government.

We have no quarrel with the proposition that holding an office of profit under the Government of India or under the Government of any State would be a disqualification only if that office is not declared by the Parliament by law not to disqualify its holder. In exercise of this power, the Parliament under Article 102 of the Constitution has exempted some offices from operation of the disqualification and similarly under Article 191. State Legislatures have passed several enactments exempting some offices from operation of this disqualification. Therefore, before holding a person disqualified, it will have to be seen whether that office is not exempted by the competent legislature from operation of disqualification clause. Articles 102 and 191 both, by explanation, have clarified that a person shall not be deemed to hold an office of profit under Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister - either for the Union or any State. Thus, the disqualification, in the case of the appellant, could only be removed by the Parliament, since the Membership of Rajya Sabha was in issue, within the meaning of Article 102(1)(a). No such disqualification was removed by the Parliament as the JAAC Act has not been included in the Schedule to the 1959 Act. The State Legislature is not competent to remove any disqualification in respect of a Member of Parliament. Even if it be assumed, though there is no basis or material to so assume, that the State Legislature or Government had, by implication removed the disqualification by granting ''deemed'' status of a Minister to the appellant, it had no jurisdiction to remove the disqualification from which the appellant was suffering, because it is membership of the Rajya Sabha and not of State Legislature which was in issue. The judgment of the Constitution Bench in Srimati Kanta Kathuria Vs. Manak Chand Surana, can not come to the aid of the appellant because what was upheld in that case was the jurisdiction of the State Legislature to remove disqualification in respect of a member of the State Legislature and not in respect of a Member of the Parliament. The office of Chairman of Interim JAA Council, as already noticed, has not been exempted under the Parliament (Prevention of Disqualification) Act, 1959 and as such the disqualification contained in Article 102(1)(a) is squarely attracted to the facts of the present case. The appellant was thus rightly held to have been holding ''an office of profit under the State Government'' at the relevant time and thus was disqualified to be a Member of Rajya Sabha. The High Court was justified in setting aside his election and we are not persuaded to take a contrary view either."

Reliance is also placed in the case of Ashok Kumar Bhattacharyya Vs. Ajoy Biswas and Others, in which the Apex Court has held as under :--

"If fact a person who is holding an office of profit either under the Government of India or the Government of the State or any other local or other authority subject to control of the said Governments is disqualified from becoming a President but if a person holds an office of profit under the Government of India or the Government of any State, he only is disqualified from being a Member of Parliament. A holder of the office of profit under any authority or local authority subject to the control of the State or Central Government is as such not disqualified from becoming a Member of Parliament. Keeping in view these provisions, it is necessary to consider the question whether respondent No. 1 was holding an office of profit under the State Government.

For determination of the question whether a person holds an office under the Government each case must be measured and judged in the light of the relevant provisions and the sections and having regard to the provisions of the Bengal Municipal Act, 1932 as extended to Tripura, the provisions of which have been set out hereinbefore, we are of the opinion that the Government does not control officers like respondent No. 1 and he continues to be an employee of Municipality though his appointment is subject to the confirmation by the Government. He does not cease to be an employee of the Municipality. Local authority as such or any other authority does not cease to become independent entity separate from Government. Whether in a particular case it is so or not must depend upon the facts and circumstances of the relevant provisions. To make in all cases employees of local authorities subject to the control of Government, holders of office of profit under the Government would be to obliterate the specific differentiation made under Article 58(2) of the Constitution and to extend disqualification under Article 102(1)(a) to an extent not warranted by the language of this Article."

Reliance has been placed on Bhagwati Prasad Dixit ''Ghorewala'' Vs. Rajeev Gandhi, . In that case out of 3 questions one of the question was regarding a Member of Parliament. In that case, at the time of the election respondent was Member of Parliament and he was holding the office of profit, therefore, he was disqualified being Member of Parliament. The Supreme Court held Paragraph 14 of the said judgment as under :--

"The plea that a person becomes disqualified for membership of either house of Parliament in case he is in receipt of salary and allowances payable to such member is again on the face of it untenable. The proviso to Section 14 (2) of the Representation of People Act, 1951, 1952 authorizes the issue of notification for the general election to the Lok Sabha and the holding of the general election before expiry of the duration of the existing Lok Sabha, but not earlier then six months prior to the date on which the duration of existing Lok Sabha would expire under the provisions of Article 83(2) of the Constitution. Section 73 of the Representation of People Act, 1951 again authorizes the publication of results of a general election to the Lok Sabha before the expiry of the duration of the existing Lok Sabha, but by the proviso that section it is provided that the issue of such notification shall not be deemed to affect the duration of the Lok Sabha, if any, functioning immediately before the issue of the said notification. Hence the dissolution of the existing Lok Sabha is not a condition precedent for holding a general election to it. It is no doubt true that Article 102(1)(a) says that if a person holds any office of profit under the Govt. of India or the Govt. of any State other than an office declared by parliament by law not to disqualify its holder, he is disqualified for being chosen as and for being a member of either house of Parliament. The question for consideration is whether the membership of either house of Parliament is such an office of profit. If what is contended by the appellant is correct there can be no member of Parliament at all, because all members of Parliament are entitled to receive salaries and allowances as members. Article 106 of the Constitution expressly provides that members of either house and Parliament shall be entitled to receive such salaries and allowances as may from time to time be determined by Parliament by law and, until provision in that respect is so made, allowances at such rates and upon such conditions as were immediatley before the commencement of the Constitution applicable in the case of members of constituent assembly of the dominion of India. Clause (a) of Article 102(1) and Article 106 of the Constitution must be construed in a harmonious way. When those articles are so construed, it can not be held that by receiving the salary and allowances payable to a Member of Parliament, a Member of Parliament would be disqualified for being either chosen as a Member of either house of Parliament or for continuing as a Member of either house of Parliament. In any event the membership of Parliament is not an office under the Government. So the fact that the Lok Sabha had not been dissolved on the date on which the election was held would not amount to a disqualification in the case of the respondent who was a member of Lok Sabha for being a candidate at the next general election,"

The Apex Court in the case of Shivamurthy Swami v. Agadi Sanganna Andnappa, (1971) 3 SCC 870 has held that the word ''profit'' connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit. The Apex Court has further held as under :--

"Now coming to the separate grounds urged against each of the returned candidates, we shall first take up those directed against the Parliamentary candidate Sanganna Andanappa. In the election petition, it is alleged that he was disqualified for being a candidate under Article 102(1)(a) of the Constitution on various grounds as at the time of his nomination, he was holding many offices of profit under the Government of Mysore. We shall take up each one of those grounds and deal with them. But before doing so, it is necessary to analysis the ingredients of Article 102(1)(a). That Article says that a person shall be disqualified for being chosen as, and for being, a Member of either House of Parliament if he holds any office of profit under the Government of India or the Government of any State other than an office declared by Parliament by law not to disqualify its holder. Therefore, before the provisions of that Article can be attracted, it must be established that he was holding an office under the Union or the State Government and that that office was an office of profit and thereafter we must see whether the disqualification relating to that office has been removed by any Parliamentary legislation. In other words, the office in question must have been held under a Government and to that some pay, salary, emoluments or allowance is attached.

The first ground of disqualification urged against Sangappa is that he was a Member of Koppal Taluk Development Board as well as the Member of District Development Council of Raichur. These offices are said to be offices of profit under the State Government. This contention has no merit. He became ex officio Member of these bodies by virtue of his being elected as a Member of the Mysore Legislative Council. Therefore, it can not be said that he was holding those offices under the Government. The Government neither appointed him nor could remove him. A Member of the Koppal Taluk Board can only be removed by the Government on the strength of a revolution passed by that Board by a 2/3rd majority. A Member of the District Development Board can not be removed at all by the Government. The allowances paid for the Members of the Taluk Development Board and District Development Board are intended to meet their out of pocket expenses. In other words, they are compensatory allowances.

It was next said that he was a Member of the Tungabhadra Board; he was appointed to that Board by the Government and as a Member of that Board he was entitled to T.A. & D.A. at the rates prescribed by the Mysore Travelling Rules, 1957. We are unable to hold that this office was an office of profit. A Member of that Board had no pecuniary benefit. The allowances given to him are clearly compensatory allowances. It was next said that the returned candidate being a Chairman of the Koppal Taluk Agricultural Produce Marketing Co-operative Society, was holding an office of profit and that office carried with it an honorarium of Rs. 2000/- per year and a sitting fee of Rs. 3/- per day. To this office, he was elected by the Members of the Cooperative Society, therefore, it can not be said that he was holding that office under the Government. The fact that the cooperative society in question was with the controlled articles supplied to it by the Government, does not change the legal position.

So far as the Khadi and Village Industries Board constituted under the Mysore Khadi and Village Industries Act, 1956 is concerned, the same is an independent Corporation though many of its activities come within the supervision of the Government and bulk of its funds are also supplied by the Government. Pursuant to the rules framed under the Khadi and Village Industries Act, 1956, certain allowances are paid to the members of the Board for the purpose of reimbursing the expenses incurred by them in attending the meetings of the Board or of any committee appointed u/s 10 of that Act. It is true that a member of the Board is entitled to a sitting fee of Rs. 16/- a day on the days he attends the meetings of the Board or any of its Committees. But he can not draw the sitting fee as well as the daily allowance. He has to draw one of the two. Therefore, the sitting fee paid to the members is in reality a payment made for the purpose of reimbursing the expenses incurred by the members. Hence, the sitting fee paid to the members of that Board must be considered compensatory allowance.

Lastly, it was said that he was disqualified for being a candidate at the time of his nomination, there was an existing contract between him and the Central Government. This contention has no substance. The alleged contract was between the Society and the Central Government. Sanganna was only the Chairman of the Society. The Society has a personality of its own. It is fallacious to contend that because of the honorarium obtained by Sanganna, he became partner of the Society."

This Court has also considered the decision of the Apex Court in the case of K. Venkatachalam Vs. A Swamickan and Another, . It was a case where disqualified person got elected and sat in the House. The High Court has jurisdiction under Article 226 of the Constitution to the effect that he is not entitled to sit in the State Legislative Assembly. The instant case, which we are dealing, is with respect to the election petition. Even otherwise, the respondents have not been able to show any law passed by the Parliament or the State to the effect that office of Mayor under the Act, i.e., elected one is office of profit.

This Court has also considered the decision of the Apex Court in the case of Thampanoor Ravi Vs. Charupara Ravi and Others, , which is also reported in Thampanoor Ravi Vs. Charupara Ravi and Others, . While dealing with the jurisdiction of the High Court for trying an election, it is held that the High Court jurisdiction is confined only to the extent conferred by the Representation of People Act. In this context, the Apex Court in Para 12 referred to the decision in the case of Bhagwati Prasad Dixit Ghorewala (supra). In Para 19, the matter has also been dealt with reference to Article 191(1)(c).

This Court has also considered another decision of the Supreme Court in the case of Rabindra Kumar Nayak Vs. Collector, Mayurbhanj, Orrisa and Others, , wherein various Sections of Orissa Panchayat Samiti Act, 1959 have been dealt with. Paragraphs 18, 19 and 20 are relevant. Paragraph 20 of the judgment is pertinent and quoted below :--

"Having given a resume of relevant provisions of the Act, we shall proceed to consider whether in view of specific machinery provided under Chapter VI-A to deal with matters connected with the election of a Member/Chairman, a petition u/s 45-B is maintainable after the election of the appellant. The election petition u/s 44-A can be filed by any candidate, who need not be a Member (Section 44-C); but an application u/s 45-B can be filed, as noted above, by a Member of the Samiti, who is in doubt about his incurring disqualification, the Chairman of the Samiti, at the request of the Samiti, or any other Member. Whereas in an application u/s 44-A, a candidate can claim not only a declaration that the election of all or any of the returned candidates is void but also a further declaration that he himself or any other candidate stands duly elected, Section 45-B is not concerned with either declaring the election void or granting any consequential declaration as to who has been duly elected. It merely enables the persons specified therein to invite a decision on the question of disqualification of a Member. Though disqualifications mentioned in Section 45 of the Act are one of the grounds u/s 44-L on which the Election Commissioner can declare the election of a returned candidate void; there are also other grounds on which the election of a returned candidate can be declared void. Yet those other grounds can not be subject matter of an application u/s 45-B. Whereas the election petition u/s 44-A has to be filed within fifteen days after the date on which the result of the election was announced, no period of limitation is prescribed for an application u/s 45-B; it can be filed at any time while the Member continues to act as a Member of the Panchayat Samiti. There is no doubt that there is some overlapping between the two Sections but the field of operation of these two Sections is different and distinct. Indeed, u/s 45-B, a District Judge is not pronouncing upon the validity of the Section but is only pronouncing upon the question as to whether a Member is or has become disqualified under the Act. It can not be laid down that no relief u/s 45-B can be claimed after the declaration of the result of the election."

In the said case, the jurisdiction conferred on Election Tribunal and the jurisdiction otherwise conferred has been considered. This Court has gone through it. The legislature neither under the Municipal Corporation Act nor under Article 243V has made any law or conferred any jurisdiction upon the District Judge.

This Court has also considered the recent decision of the Supreme Court in the case of Special Reference No. 1 of 2002, decided on 28-10-2002 [Under Article 143(1) of the Constitution] Ref. by President, . Paragraphs 27, 70 and 77 of the judgment are pertinent.

Shri V.K. Tankha, learned Counsel for the applicant prays for absolutely stay and relied upon the judgment of the Apex Court in the case of Kirpal Singh, M.L.A. Vs. Uttam Singh and Another, on the ground that there is no disqualification. On the other hand, Smt. Naik, learned Counsel for non-applicant Nos. 1 to 3 submitted that no stay should be granted.

This Court however, made it clear that the law on the question of grant of stay has to be in accordance with Smt. Indira Nehru Gandhi''s case (supra). Counsel for the parties were asked to address.

Having thus given thorough consideration and in view of the law laid down on the subject, the operation of the impugned order dated 25-4-2003 passed by the Election Tribunal is stayed until further orders with certain conditions.

Now the question remains as to what conditions may be imposed on the applicant ?

At this stage, Shri Tankha, Counsel for the applicant stated that the applicant may be allowed to function as Mayor, and if it is allowed, the applicant may not draw any salary and allowances. He may be allowed to use the facilities for the discharge of his function as a Mayor as admissible under law.

Having heard and considered and in view of the undertaking given, it is directed that the applicant be allowed to function as Mayor and he shall not draw any salary and allowance till the decision of the case. However, he may use the facilities strictly for the discharge of his functions as a Mayor as admissible under the law. It is directed that the Corporation shall keep the true and correct account of expenditure incurred so that in case an eventuality arises, suitable orders, if required, may be passed.

In view of the above discussions, M. (C.) P. No. 686 of 2003 and LA. No. 3825 of 2003 stand disposed of.

Before parting, it is made clear that the discussions and observations made in this order are for the purpose of grant of interim relief only and should not in any way be taken as a final, as the matter is to be heard on merits.

Parties are entitled for copies.