KANTA KATHURIA v. MANAK CHAND SURANA
Citation: [1970] 2 S.C.R. 835; 1969 INSC 288
Court: Supreme Court of India
Bench: M. HIDAYATULLAH , S.M. SIKRI, G.K. MITTER, A.N. RAY, P. JAGANMOHAN REDDY
Judgment date:
Case summary
1969 INSC 288. Supreme Court of India judgment dated 1969-10-16. KANTA KATHURIA v. MANAK CHAND SURANA. Read the judgment and case details on LawSphereX.
Judgment text
836 SUPREME COURT REPORTS [1970] 2 S. C. R. A KANTA KATHURIA v. MANAK CHAND SURANA October 16, 1969 B (M. HIDAYATULLAH, C. J. , S. M. SIKRI, G. K. MITTER, A. N. RAY, AND P. JAGANMOHAN REDDY, JJ. j Constitution of India, 1950, Art, 191(1)-0ffice of profit-Of]lce of Special Government Pleader if such office. Retrospective /egls/atlon~andidate held to be disqualified becauu of holding office of profit-Stare Legls/aturt enacting that such ofjice not c an C>f! ice of profit and validating electlo,.. -EOect of, Repmentatlon of th1 Peopl1 Act (43 of 1951), s. 82(b)-'Any othtr candldatl' aralnst whom corrupt practlc11 ar1 al/111d, lo b1 mad1 p111ty, -Scop' o/. Di1_Put11 between the State of Rajasthan and a company were referred to arbitration and the Oovernment Advocate was appO! nted to represent D the State. Another advocate was appointed to 111111 the Government Advocate but as the advocate was -not able to appear, the appellant was appointed under 0. 27, r.
, SB of the Civil Procedure Code, as Special Oovernment Pleader. The appellant then stood for election to the State Legislative Assembly and was declared elected. The election was challenged and one of the grounds of challenge was that the appellant held an office of profit within the meaning of Art. 191 of the Constitution. The High Court set aside the election. While the appeal was pending in E this Court, Rajasthan Act 5 of 1969 wao passed declaring among othero that the holder of the office of a Special Qovernment Pleader was not disqualified from being chosen or fo1- being a member of the State Legis· lative As'lembly; and by s. 2(2), the Act was made retrospective remov· ing the appellant's disqualification retrospectively.
On the questions : (I) Whether the appellant was holding an office of profit and hence was disqualified; (2) Whether the disqualification was F removed by Act 5 of 1969; and (3) Whether the election petition was in accordance with law, because, another candidate from another consti~ tuency, aga,in'st whom co'rrupt practices were aUeged, was not impleaded , as a party, · HELD: (I) (Per Sikri, Ray and Jaganmohan Reddy, JJ. ) : The appellant was not holding an office of profit. G (a) Before a person becomes subject to the d;squalification in Art. 191(1) there must be an office wbich exists independently of his being the holder of the office.
The word 'office' means an office or employment which was a subsisting, permanent, substantive position which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders; but if a person was engaged on whatever terms to do the duties which were assigned to him, his employ- H ment to do those duties did not create an office to which those duties were attached. Hence an office does not come into existence every time a pleader is asked by the Government to appeal in a case on its behalf. [847 F; 848 A-B; 850 G-H] , LSSup. CI/70-8 (b) A reading of s. 2(7) and 0. 27, r. 8B of the Civil Procedure Code A shows, that even an advocate who is acting under the directions of the Government Ple~der could be deemed to be a Government Pleader. Therefore, the notification of t. he appellant's name under r. 8B as Special Government Pleader did not amount to the creation of an office.
[850 F·GJ ( c) Assuming that a Government Pleader is an agent of the Govern- B rnent for purposes of receiving processes against the Government, the fact that processes couid be served on an advocate, would not mean that the advocate was holding an office under his client. [851 A-BJ ( J) It is not necessary to give a wider meaning to the word 'office' because, if Parliament thinks that a legal practitioner who is being paid fees in a case by the Government should not be qualified to stand for an election as a momber of the Legislative Assembly, it can make that provi- C sion under Art. I9I(l)(c) o'f the Con3titution. [851 C·D] Great Western Railway Co. v. Bater, 8 Tax Cases 231 and McMillan v. Guest (II. M. Inspector of Taxes) 24 Tax Cases 190, applied. Mahadeo v. Shantibhoi & Ors. [I 969]2 S. C. R. 422 distinguished. Sakhawat Ali v. Stale of Orissa, [1955] I S. C. R. 1004, referred to. D (Per Hidayatullah, C. J. and Mitter, J.
dissenting) : The High Court was right in holding tha the appellant held an office of profit. [842 CJ It was not a case of the appellant merely being briefed as a lawye vernment Pleader is an office of profit, the office of Special Govern· ment Pleader will equally be an office of profit. It was an office which cou1rl be successively held. it was inaependent of its holder, it was a substantive position and a() permanent as other supernumerary offices. [841 FG; 842BJ Mnhadeo v. Shantibhai & Ors. [1969]2 S. C. R. 422 and The Statesman (P. ) Ltd. v. H. R. Deb & Ors. [1968]3 S. C. R. 614 applied. F McMillan v. Guest, [1942J A. C. 561 and Great fVestern Railll'ay Co. v. Bc. te·, 8 Tax Cases 231. 235, referred to. 12) (By Full Court) : The Act 5 of 1969 has removed the disqualifi· cation retrospectively. Per HidayatuJiah, CJ. and Mitter, J. : It is well recognised that Parlia~ G ment and th. :: Leg~s! ature of a S~ate can make their laws operate retros-p!
:ctively sub;ect to limil~tions, if any, in the Constitution. Any law that can be made prospectively may be made with retrospective operation ex~ cept those which cannot op~rate retroactively. In Art. 191 itself, power is fesenred to the State Legislature to make a declaration that the holder of an office shaJI not be '-UsquaJified and there is nothing in the words of the Article to indicate that such a declaration cannot be made with retros- H pecth·e effect The:. afore. 'vhatever mav be the proprietv of such Jegis- J'. ltio1. re2ard b~Jn~ had to le~isl. '. ltive pra. crice and the absence of a clear p•ohibiti'"'n. expri>-s;:; or implif"d, the Act must be declared to have retrospective effect. [843 B-C, D-FJ KANTA v. MANAK CHAND (Hidayatullah, C. J. ) 837 Per Sikri, Ray and Jaganmohan Reddy, JJ. : Parliament ar. d the State legislatures can legislate retrospectively subject to the provisions of the Constitution.
No limitation on the po\vers of the Legislature tO make a declaration validating an election, effective_ from an earlier date, is ex~ pressly stated nor could it be implied in Art. 191(1). ]851 F-G; 852 D-E] The apprehension that it may not be a healthy ptactice and might be abused is no ground for limiting the powers of the State Legislature. [852 El The impugned Act does not amend or alter the Representation of the People Act, 1951, in any respect whatsoever. By enacting the impugned Act, the disqualification if any, which existed in the 1951 Act has been removed, but that ii what the State Legislature is entitled to do under Art. 191 so long as it does not touch the wording of the 1951 Act. [852 F-G] (3) (By Full Court) : The words 'any other candidate' in s. 82(b) of the Representation 0f the People Act, 1951, who should be impleaded, refers to a candidate in the election for the constituency ¥.
:hich is the subject matter of the petition, and not to a candidate from another consti· tuency. [843 G-H; 853 D-E] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1869 of 1968. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated August 12, 1968 of the Rajasthan High Court in Election Petition No. 16 of 1967. S. V. Gupte, M. M. Tiwari. H. K. Puri. Bishamber Lal, M. K. Garg, K. K. Jain and S. P. Vii, for the appellant. M. C. Chagla and S. M. Jain, for respondent. Niren De, Attorney-General, G. C. Ka Feb. 25, 1967. She again started appearing in the case from Febraury 26, 1967. The appellant claimed ·travelling allowance, incidental charges and daily alolwance, but the Government decided that the appellant was not entitled to :any travelling allowance or daily allowance in addition to the fees.
By a notification, the Election Commission of India called upon the electors oCthe Kolayat Assembly Constituency of the Rajasthan Legislative Assembly to elect a meinber to the Rajasthan Legislative Assembly and invited nomination papers for the elections to be held on February 18, 1967. The appellant was declared,duly elect~ by the Returning officer on February 22, 1967;ihe appellant having secured q926 and the respondent having se~ured 8311 votes. KANTA v. MANAK CHAND (Hidayatul/ah, C. J. ) 847" The relevant portion of Art. 191 reads as follows :- 191. ( 1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assemblv or Legislative Council of .
a State- (a) if he holds any office of profit under the Gov- B ernment of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the Seate by law not to disqualify its holder; c ( e) if he is so disqualified by or under any law made by Parliament. (2) For the purposes of this article, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he D is a Minister either for the Union or for such Stat~. It seems to us that the High Court erred in holding that the appellant held an office. There is no doubt that if her engage-ment as Special Government Pleader amounted to appointment to an office, it would be an office of profit under the State Gov- E ernment of Rajasthan. The word 'office' has various meanings and we have to see which. is the appropriate meaning to be ascribed to this word in the context.
It seems to us that the words 'its holder' occurring in Art. 191 (l)(a), indicate that there must be an office which exists independently of the holder of the office. Further, the very fact that the Legislature of the State has been authorised by Art. 191 to declare an office of profit not to dis· F qualify its holder, contemplates existence of an office apart from its holder. In other words, the Legislature of a State is em-powered to declare that an office of profit of a particular descrip-t~on or name would not disqualify its holder and not that a par-ucular holder of an office of profit wnuld not be disqualified. G I, seems to us that in the context, Justice Rowlatt's definition in Great Western Railway Company v. Bater(') is the appro· priate meaning to be applied to the word 'office' in Art. 191 of . - the Constitution.
Justice Rowlatt observed at page 235 :- H "Now it is argued, and to my mind argued most forcibly, that that shows that what those who use the (I\ ~ Tax Cases 231. [1970] 2 S. C. R. A language of the Act of 1842 meant, when they spoke of an office or an employment, was an office or employment which was a subsisting, permanent, substan- . tive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders; and if you merely had a man who was engaged on whatever terms, to do B . duties which were assigned to him, his employment to . do those duties did not create an office to whkh those duties were attached. He merely was employed to do certain things and that is an end of it; and if there was no office or employment existing 111 the case as a thing, '. he so-called office or employment was merely an aggre- c gate of the activities of the particular man for the tin1e being.
And I think myself that that is sound. I am not going to decide that, because I think I ought not to in the state of the authorities, but my own view is that the people in 1842 who used this language meant by an office a substantive thing that existed apart from the D holder. " This definition was approved by Lord Atkinson at page 246. This language was accepted as generally sufficient by Lord Atkin and Lord Wright in-McMillan v. Guest (H. M. Inspector . of Tqxes)('). Lord Atkin observed at page 201 :- E "There is no statutory definition of 'office'. With-out adopting the sentence as a complete definition, one may treat the following expression of Rowlatt, J. , in Great Western Railway Co. v. Bater, [1920] 3 K. B. , at page 274, adopted by Lord Atkinson in that case, [1922] 2 A. C.
, at page 15, as a generally sufficient state- F ment of the meaning of the word : an office or employment which was a subsbting, permanent, substantive position, which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders. " Lord Wright at page 202 observed : G "The word 'office' is of indefinite content; its various meanings cover four columns of the New English Dictionary, but I take as the most relevant. for purposes of this case the following: A position or place to w! 1ic~1 CC'r~ain Cu! ies tire :i! tached. cspcciaJly <}ne of a n1on: (1r less public character. This, I think, roughly rorre. ;- H ponds with stlch approaches to a definition as :iave --- (]) 24 Tax Cases 19G. KANTA V. MANAK CHAND (Hidayatullah, C. J. ) 849 been attempted in the authorities, in particular Great Western Railway Co. v. Bater, [1922] 2 A. C. 1 ..... .
where the legal construction of these words, which had been in Schedule E since 1803 ( 43 Geo. III, c. 122, Section 175), was discussed. " In Mahadeo v. Shantibhai & Ors. (' )-Mitter J. speaking for this Court, quoted with approval the definition of Lord Wright. In our view there is no essential difference between the definitions given by Lord Wright and Lord Atkin. The Court of Appeal 2 in the case of Mitchell v. Ross( ), thought that both the noble and learned Lords had accepted the language employed by 1 Rowlatt J. as generally sufficient. In Mahadeo's case\ ), this Court was dealing with a panel of lawyers maintained by the Railway Administration and the lawyers were expected to watch cases. Clause ( 13) of the terms in that case read as follows :- "You will be expected to watch cases coming up for hearing against this Railway in the various courts at UJB and give timely intimation of the same to this office.
If no instructions regarding any particular case are received by you, you will be expected to appear in the court and obtain an adjournment to save the ex-parte proceedings against this Railway in the court. You will be paid Rs. 5/- for every such adjournment if you are not entrusted with the conduct of the suit later on. " That case in no way militates against the view which we have taken in this case. That case is more like the case of a standing Counsel ilisqualified by the House of Commons. It is stated in Rogers [on Elections Vol. 11]-at page 10 :- "However, in the Cambridge case (121 Journ. 220), in 1866, the return of Mr. Forsyth was a•oided on the ground that be held a new office of profit under the Crown, within the 24th section. In the scheme sub-mitted to and approved by Her Majesty in Council was inserted the office of standing counsel with a certain yearly payment (in the scheme ca! Ied 'salary') affixed to it, which Mr.
Forsyth received, in addition to the usual fees of counsel. The Committee avoided the return . .. " It is urged that there can be no doubt that the Government Pleader holds· an office and there is no reason why a person who assists him in the case should also not be treated as a holder of ---· -----··--·- (1) [1969] 2 S. C. R. 422. (2) {19601 2 All E. R. 238 at 2"l-226. office, specially as the notification appointed the appellant as Special Government Pleader. We see no force in these contentions. Rule 8B. of Order 27, C. P.
Code reads as follows :- "In this Order unless otherwise expressly provided 'Government' and 'Government leader' mean respec-tively- (a) in relation to any suit by or against the Central Government or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order; ( c) in relation to any suit by, or against a State Government or against a public officer in the service of a State, the State Government and the Government pleader, as defined in Clause 7 of Section 2 · or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order. " This rule defines who shall be deemed to be c. Government Pleader for the purpose of the Order. 'Government Pleader' is defined in Sec. 2 of Clause (7) C. P.
Code thus- "(7) 'Government Pleader' includes any officer appointed by the State Government to perform all or any of the functions expressly imposeQ by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader :" It follows from reading Order 27 rule 8B and Clause (7) of Sec. 2 C. P. Code together that even if a pleader who is acting under the directions of the Government Pleader would be deemed to be a Government ~l. eader for the purpose of Order 27. Therefore, no particular significance can be attached to the notification made under rule SB appointing the appellant as Special Government Pleader. We cannot visualise an office coming into existence, every time a pleader is as)ced by the Government to appear in a case on its behalf. The notification of his name under rule SB, does not amount to the creation of an 'office'. Some reliance was also placed on rule 4 of Order 27 C. P.
Code, which provides that : H "The Government Pleader in any Court shall be the agent of the Government for the purpose of receiving KAN'I:A v. MANAK CHAND (Sikri, /. ) 851 processes against the Government issued by such Court. " This rule would not apply to the facts of this case because the appellant was appointed only to assist the Government Advocate in a particular case. Assuming it applies, it only means that p,i:o-cesses could be served on the appellant, but processes can be served on an Advocate under Rule 2 of Order XLV of the Supreme Court Rules, 1966. . This does not mean that an Advocate on Record would hold an office under the client. The learned Counsel for the respondent, Mr. Chagla, urges that we should keep in view the fact that the object un'. der-lying Art. 191 of the Constitution is to preserve purity of public life and to prevent conflict of duty with interest and give an interpre-tation which will carry out this object.
It is not necessary to give a wide meaning to the word "office" because if Parliament thinks that a legal practitioner who is being paid fees in a case by the Government should not be qualified to stand for an election as a Mer. iber of Legislative Asembly, it can make that pro-vision under Art. 191 (1 )( e) of the Constitution. The cast of Sakhawat Ali v. The State of Orissa(') provides an instance where the Legislature provided that a paid legal practitioner should not stand in the municipal elections. In view of the above reasons, we must hold that the appellant was not disqualified for election under Art. 191 of the Constitution. But·assuming that she held an office of profit, this disqualification has been removed retrospectively by the Rajasthan Legislative Assembly by enacting the impugned Act. Mr. Chagla, learned Counsel for the respondent, contends that the Rajasthau State Legislature was not competent 'to declare retrospectively' under Art. 191 (1 )(a) of the Constitution.
It seems to us that there is no force in this contention. It has been held ir. numerous. cases by this Court that the State Legislatures and Parliament can legislate retrospectively subject to the provisions of the Constitution. Apart from the question of fundamental rights, no express restriction has been placed on the power of the Legislature of the State, and we are unable to imply, in the context, any restriction. Practice of the British Parliament does not oblige us to place any implied restriction. We notice that the British Parliament in one case validated the election : [Erskine May's Treatise on· the Law. Privileges Proceedings & Usage of. Parliament---Seventeenth (1964) Eciition]- "After the general election of 1945 it was found that the persons elected for the Coatbridge Division of (1) [1955] I S. C. R. 1004. LSSupCl-9 [1970] 2 S. C. R.
Lanark and the Springbourn Division of Glassgow A were disqualified at the time of their election because they were members of tribunals appointed by the Minister under the Rent of Furnished Houses Control (Scotland) Act, 1943, which entitled them to a sIμall fee in respect of attendance at a Tribunal. A Select Committee reported that the disqualification was incurred inadvertently, and in acco~dance with their B recommendation the Coatbridge and Springburn Elections (Validation) Bill was introduced to validate the irregular elections [H. C. Deb. ( 1945-46) 414, c. 564-6]. See also H. C. 3(1945-46); ibid. 71 (1945-46) and ibid. 92 ( 1945-46) . " c We have also nodced two earlier instances of retrospective legislation, e. g. , The House of Commons (Disqualification) Act, 1813 [Halsbury Statutes of England p. 467] and Sec. 2 of the Re-election of Ministers Act, 1919 (ibid. p. 515). Great stress was laid on the word 'declared' in Art.
191 ( 1) (a), but we are unable to imply any limitation on the powers D of the Legislature from this word. Declaratim: can be made effective as from an earlier date. The apprehension that it may not be a healthy practice and this power might be abused in a particular case are again no grounds for limiting the powers of the State Legislature. It is also urged that by enacting the impugned Act the State Legislature has amended the 1951 Act. We are unable to appre-ciate this contention. The State Legislature has exercised its F powers under Art. 191 to declare a certain office not to have ever disqualified its holder. The impugned Act does not amend or alter the 1951 Act, in any respect whatsoever. It is said that under the 1951 Act as 'it existed before the impugned Act was passed, the appellant was not qualified to be chosen for this particular election. By enacting the impugned Act ! he appell'!
Ilt's disqualification has been removed and the 1951 Act is, so to say, G made to speak with another voice. But that is what the State Legislature is entitled to do, as long as it does not touch the wording of the 1951 Act. The answer given by the 1951 Act may be different but this is be;:ause the facts on which it operates have by valid law been given a different garb. H It is further urged that the impugned Act violates Art. 14 of the Constitution because the Central Government might have . appointed Government Pleaders under rule 8B of Ordet 27 and the impugned Act nowhere mentions the alleged offices held by KANTA V, MANAK Cl! AND (Sikri, J. ) 853 them. No material has been placed to show that any such offices exist. We cannot, therefore, entertain this point. In view of the above reasons we are of the opinion that the impugned Act is valid and removes the disqualification if it existed before. There is no force in the third point raised by the learned counsel for the appellant.
Section 82 of the Representation of the People Act, 1951, 1·eads as follows :- "81. A petitioner shall join as respondents to his petition- ( a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or al)y other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition. ID. this context the words 'any other candidate' plainly mean a candidate in the election for the constituency which is the subject matter of the petition. In the result the appeal is allowed, the judgment of the High Court set aside and the petition dismissed. In the circumstances of th-. case the parties will bear their own costs throughout. V. P. S. Appeal allowed.
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