DAYANAND RAYU MANDREKAR v. CHANDRAKANT UTTAM CHODANKAR & ORS

Citation: [2007] 13 S.C.R. 979

Court: Supreme Court of India

Bench: K.G. BALAKRISHNAN, DALVEER BHANDARI, D.K. JAIN

Case summary

DAYANAND RAYU MANDREKAR v. CHANDRAKANT UTTAM CHODANKAR & ORS.pdf

Judgment text

DAYANAND RAYU MANDREKAR v. CHANDRAKANT UTTAM CHODANKAR & ORS. JANUARY 18, 2007 [K. G. BALAKRISHNAN, CJI, DALVEER BHANDARI AND D. K. JAIN, JJ. ] ELECTIONLAW: Member of State Legislative Assembly - Election - Disqualification - Candidate holding 'office ofprofit' at the time of filing nomination paper - Candidates holding offices ofChairman, Goa Khadi and Village Industries Board and Chairman, Goa State Scheduled Castes and Other Backward Classes Finance and Development Corporation Ltd. - Under relevant rules, the said office bearers entitledto salary/honorarium andallowances - They were also availing facilities ofmobile phone, residential telephone, chauffeur driven car, services ofPA, a clerk, a peon etc.

- HELD: Perquisites availed by candidates cannot be said to have been given to them by way ofcompensatory allowance in terms ofclause (9) ofthe Schedule to 1982 Act - Since by virtue ofthe rules, candidates were entitled to get salary or honorarium that by itselfwouldshow that they were not entitled to get protection under the 1982 Act - Whether the 1982 Act was adopted by State Assembly or not left open for consideration in appropriate case - High Court rightly held that candidates were holding office ofprofit andas such were not entitledto contest election as they were disqualified - Government Territories Act, 1963 - ss. 3 and 14(1) - Goa Daman and Diu Members ofLegislative Assembly (Removal ofDisqualification) Act, 1982-Schedule - Clause (9)- Goa Daman andDiu Khadi and Village industries BoardRules, 1967- r. 7. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3578 of From the Judgment and Order dated 27. 5. 2005 ofthe High Court ofJudicature at Bombay, Bench at Goa in E. P. No.

1/2002. WITH C. A. No. 3579 of2005. Dhruv Mehta, Jha and Yashraj Singh Deora (for MIS. K. L. Mehta & Co. ), for the Appellant. M. N. Krishnamani, Dr. Abhishek M. Singhvi, Bhavanishankar V. Gadnis, S. U. K. Sagar, Bina Madhavan, A. Venayagam, Vinayakam (for MIS. Lav. yer's Knit & Co,), Sriniwas Khalap and Ashok Mathur for the Respondents. The following Order ofthe Court was delivered by ORDER The appellants, in these two appeals, challenge the judgment in the Election Petition nos. 1and 2 of 2002. In both these cases a common questions of law had arisen and, therefore, we heard the matter together and are disposing these appeals by way of a common order. The appellant in C. A. No. 3578/05 was elected to the Legislative Assembly of State of Goa from Siolim constitutency in the election held on 30. 5. 2002, whereas the appellant in C. A. No. 3579/05 was elected from Vasco-da-·gan1a Assembly constitutency of the State Legislature.

The election petitions were preferred by two unsuccessful candidates in the elections alleging that these two appellants were holding 'office ofprofit' at the time when they contested the elections and, therefore, they were ineligible to be elected to the legislature. At the time of filing their nominations, the appellant in C. A. No. 3578/05 was the Chairman of the Goa Khadi and Village Industries Board ofthe State ofGoa, whereas the appellant in C. A. No. 3579/05 was the Chairman of the Goa State Scheduled Ca:;tes and Other Backward Classes Finance & Development Corporation Ltd. ofthe State ofGoa. The appellants in these two cases contended before the High Court that they were not holding an 'office of profit' and were not receiving any salary or allowances for the said post they held and by virtue ofthe provision contained in the Goa, Daman and Diu Members ofLegislative Assembly [Removal ofDisqualifications] DAYANAND RAYU MANDREKARv.

CHANDRAKANT 981 UTTAM CHODANKAR Act, 1982 (for short 'the 1982 Act'), the disqualification, if any, was removed especially by clause (9) ofthe Schedule. The pleas set-up by the appellants were rejected and the High Court held that these appellants were holding the 'office ofprofit' and that they were not entitled to contest the election as they were disqualified and the election petitions were allowed and elections of appellants were set aside. We have heard the counsel for the appellants and counsel for the respondents. It is not disputed that the appellants were holding the office as alleged in the election petition, but contended that they were not receiving any salary or allowances and were only receiving some perquisites. It is not disputed that these two appellants, by virtue oftheir office, enjoyed the privilege ofa chauffeur driven car with unrestricted use ofpetrol.

The appellants were also given the services of a PA, a clerk and a Peon and they were provided with a residential telephone with unrestricted number of calls. They were also provided with a mobile telephone and newspapers were supplied at their residences and the expenses were paid from the funds ofthe office. Under Rule 7 of the Goa, Daman and Diu Khadi and Village Industries Board Rules, 1967 (for short 'the 1967 Rules'), "The Chairman, the Vice-Chairman and other members ofthe Board shall be paid such salary or honorarium and allowances from the funds ofthe Boards as the Government may from time to time fix. " The appellant in C. A. No. 3578/ 05 was not receiving any salary or honorarium as, according to him, the government had not fixed any such salary or honorarium. The question that arises for consideration is whether the appellants could seek the benefit ofthe 1982 Act.

By virtue ofclause (9) ofthe Schedule, the appellant contended, that the office ofChainnan/Director or member ofthe statutory or non-statutory Board are exempted from any disqualification but the proviso to clause (9) of the Schedule makes if further clear that this disqualification is circumscribed by a further limitation. Clause 9 ofthe Schedule reads as follows: "9. The office ofChairman, Director or member ofa statutory or non-statutory body or committee or corporation constituted by the Government of Goa, Daman and Diu : Prov1ded that the Chainnan, Director or Member of any of the aforesaid committees or bodies or corporations is not entitled to any remuneration other than compensatory allowance. " An explanation was also added to clause (9).

The same reads thus: "Explanation - For the purpose ofthe aforesaid entries - "Compensatory allowance" means any sum ofmoney payable to the holder ofan office by way ofdaily allowance [such allowance not exceeding the amount ofdaily allowance to which a member ofthe Legislative Assembly is entitled under the Goa, Daman and Diu Salary, Allowances and Pension of the Members of the Legislative Assembly Act, 1964 (2of1965)], any conveyance allowance, house rent allowance or traveling allowance for the purpose ofenabling him to recoup any expenditure incurred by him in performing the fimctions ofthat office".

The proviso makes it abundantly clear that the compensatory allowance would only mean 'any expense which is incwred by the holder of the office in discharge of his official function to be compensated by E claim' and if any other sum of money or other perquisites are made to the hold,er of office as compensatory allowance, he would not get the benefit of clause (9) of the Schedule which was added. In the instant cases, the appellants were certainly in receipt ofvariety ofperquisites which cannot be said to be given to them by way ofcompensatory allowance. : The mobile phone, telephone and the chauffeur driven car were all pennittcd to be used for unlimited purposes and they were not restricted to official purposes. Moreover, Rule 7 of the 1967 Rules specifically states that the Chairman, Vice-Chainnan and other members ofthe Board shall be paid such salary or other honorarium and allowances from the fimds ofthe Boards as the Government may from time to time fix.

The appellants were entitled to get salary or honorarium by virtue ofthis rule. The mere fact that they had not received or they had not opted to get this salary or honorarium is immaterial. By virtue ofthe said rule, they are entitled to get salary or honorarium and that, by itself, would show DAYANAND RAYUMANDREKAR v. CHANDRAKANT 983 UTTAMCHODANKAR that they were not entitled to get the benefit ofthe Schedule ofthe 1982 Act. The respondents in these two cases had raised a contention that the 1982 Act itselfwas not applicable to the State of Goa, Daman and Diu as the same was not adopted by the State Legislature. The respondents had contended that in the absence of adoption under Section 57 ofthe Goa State Re-organisation Act, 1987, the 1982 Act had no application to the State of Goa, Daman and Diu. This plea was accepted by the learned Single Judge ofthe High Court. The respondents in these cases contended that the finding ofthe learned Single Judge in this regard is not correct.

In this case, the appellants herein contended that Article 239A of the Constitution provided for creation oflocal legislatures or council of ministers or both for certain Union Territories and the Parliament enacted the Government Territories Act, 1963. As per Section 3 of the Act of 1963, the Legislative Assembly ofthe Union Territory of Goa, Daman and Diu came into existence and sub-Section (l) of Section 14 of the Act of 1963 provided that a person shall be disqualified for being chosen as, and for being a Member ofthe Legislative Assembly of the Union Territory, inter alia, ifhe holds any office ofprofit under the Government ofIndia, or the Government ofany State, or the Government ofthe Union Territory, other than the office declared by law made by Parliament, or the Legislative Assembly ofthe Union Territory, not to disqualify its holder, i. e. , the Legislative Assembly ofthe Union Territory ofGoa, Daman and Diu.

The Act passed in 1982 provided for removal of certain disqualifications for being chosen and for being amember ofthe Legislative Assembly ofGoa, Daman and Diu. That Act was passed under Section 14(1) of the Act of 1963. The respondent had contended that when Union Territory of Goa, Daman and Diu became a State, the Assembly ofthe State of Goa had not passed any law nor had adopted the 1982 Act which was in force. The appellants contended that as per Section 66 ofthe Goa, Daman and Diu Reorganization Act, 1987, the Act of 1982 continues to be in force but this plea was rejected by the learned Single Judge. A We have examined the claim ofthe appellants in the light ofthe 1982 Act and hold that the appellants are not entitled to get the protection of the Act. Therefore, whether this Act was adopted by the State Assembly of Goa or not, need not be considered at this stage and we leave open the question to be considered in other appropriate cases.

B We find rn merit in these appeals and the appeals are dismissed accordingly. RP. Appeal dismissed.