PETITIONER: KANTA KATHURIA Vs. RESPONDENT: MANAK CHAND SURANA DATE OF JUDGMENT: 16/10/1969 BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) SIKRI, S.M. RAY, A.N. REDDY, P. JAGANMOHAN CITATION: 1970 AIR 694 1970 SCR (2) 835 1969 SCC (3) 268 CITATOR INFO : R 1975 SC2299 (138,186,229,230,314,362,690) RF 1976 SC2283 (34,36,40,41) RF 1977 SC 682 (3) R 1984 SC 664 (4) RF 1992 SC1213 (34) ACT: Constitution of India, 1950, Art, 191(1)-Office of profit--office of Special Government Pleader if such office. Retrospective legislation candidate held to be disqualified because of holding office of profit-State Legislature enacting that such Office not an office of profit and validating election-Effect of. Representation of the People Act (43 of 1951), s. 82(b)-Any other candidate' against whom corrupt practices are alleged, to be made party.-Scope of. HEADNOTE: Disputes between the State of Rajasthan and a company were referred to arbitration and the Government Advocate was appointed to represent the State. Another advocate was appointed to assist the Government Advocate but as the- advocate was table to appear, the appellant was no appointed under 0.27, r. 8B of the Civil Procedure Code, as Special Government 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 this Court, Rajasthan Act 5 of 1969 was passed declaring among others that the holder of the office of a Special Government Pleader was not disqualified from being chosen or for being a member of the State Legislative Assembly; and by s. 2(2), the Act was made retrospective removing- the appellant's disqualification retrospectively. On the questions : (1) Whether the appellant was holding an office of profit and hence was disqualified; (2) Whether the disqualification was removed by Act 5 of 1969; and (3) Whether the election petition was in accordance with law, because, another candidate from another constituency, again t whom corrupt practices were alleged, was not impleaded as a party, HELD : (1) (Per Sikri, Ray and Jaganmohan Reddy, JJ.) : The appellant was not holding an office of profit. (a) Before a person becomes subject to the disqualification in Art. 191(1) there must be an office which 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 employment 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] p.Cl/70-8 836 (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 Pleader could be deemed to be a Government Pleader. Therefore, the notification of the appellant's name under r. 8B as Special Government Pleader did not amount to the creation of an office. [850 F-G] (c) Assuming that a Government Pleader is an agent of the Government for purposes of receiving processes against the Government, the fact that processes could be served on an advocate, would not mean that the advocate was holding an office under his client. [851 A-B] (d) 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 member of the Legislative Assembly, it can make that provision under Art. 191 (1) (e) of the Constitution. [851 C-D] Great Western Railway Co. v. Bater, 8 Tax Cases 231 and McMillan v. Guest (H. M. Inspector of Taxes) 24 Tax Cases 190, applied. Mahadeo v. Shantibhai & Ors. [1969]2 S.C.R. 422 distinguished. Sakhawat Ali v. State of Orissa, [1955] 1 S.C.R. 1004, referred to. (Per Hidayatullah, C.J. and Mitter, J. dissenting) : The High Court was right in holding that the appellant held an office of profit. [842 C] It was not a case of the appellant merely being briefed as a lawyer and given the Government litigation. On the other hand an office, that of Special Government Pleader was created, and since the office of a Government Pleader is an office of profit, the office of Special Government Pleader will equally be an office of profit. It was an office which could be successively held, it was independent of its holder, it was a substantive position and as permanent as other supernumerary offices. [841 FG; 842B] Mahadeo 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. McMillan v. Guest, [1942] A.C. 561 and Great Western Railway Co. v. Bater, 8 Tax Cases 231, 235, referred to. (2) (By Full Court) : The Act 5 of 1969 has removed the disqualification retrospectively. Per Hidayatullah, C.J. and Mitter, J. : It is well recognised that Parliament and the Legislature of a State can make their laws operate retrospectively subject to limitations, if any, in the Constitution. Any law that can be made prospectively may be made with retrospective operation except those which cannot operate retroactively. In Art. 191 itself, power is reserved to the State Legislature to make a declaration that the holder of an office shall not be disqualified and there is nothing in the words of the Article to indicate that such a declaration cannot be made with retrospective effect, therefore, whatever may be the propriety of such legislation regard being had to legislative practice and the absence of a clear prohibition, express or implied. the Act must be declared to have retrospective effect. [843 B-C, D-F] 837 Per Sikri, Ray and Jaganmohan Reddy, JJ. : Parliament and the State legislatures can legislate retrospectively subject to the provisions of the Constitution. No limitation on the powers of the Legislature to make a declaration validating an election, effective from an earlier date, is expressly 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 practice and might be abused is no ground for limiting the powers of the State Legislature. [852 B] 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 is 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 of the People Act, 1951, who should be impleaded, refers to a candidate in the election for the constituency which is the subject matter of the petition, and not to a candidate from another constituency. [843 G-H; 853 D-E] JUDGMENT:
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. Vij, for the appellant.
M. C. Chagla and S. M. Jain, for respondent.
Niren De, Attorney-General, G. C. Kasliwal, Advocate-
General. Rajasthan and K. B. Mehta, for the State of
Rajasthan.
The Judgment of S. M. SiKRi, A. N. RAY and P. JAGANMOHAN
REDDY, JJ.was delivered by SIKRI, J., M. HIDAYATULLAH, C.f.
and G. K. MITTER, J. gave a separate opinion.
Hidayatullah, C.J. We regret our inability to agree that the
appellant Mrs. Kanta Kathuria was not holding an office of
profit under the Government of Rajasthan when she stood as a
candidate for election to the Rajasthan Legislative Assembly
from the Kolayat Constituency.
Mrs. Kathuria is an advocate practicing at Bikaner. She
contested the above election held on February 18, 1967
against seven other candidates. She was declared elected on
February 22, 1967. One of the defeated candidates filed the
election petition, from which this appeal arises,
questioning her election on several grounds. We are
concerned only with one of them, namely, that on the date of
her nomination and election she was disqualified to be
chosen to fill the seat as she held the office of Special
Government Pleader, which was an office of profit under the
Government of Rajasthan.
838
Article 191 of the Constitution, which is relevant in this
connection, reads :
“191 : Disqualifications for membership
(1) A person shall be disqualified for being
chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of
a State-
(a) if he holds any office of profit under
the Government of India or the Government of
any State specified in the First Schedule,
other than an office declared by the
Legislature of the State by law not to
disqualify its holder;
Mrs. Kathuria was appointed by the Government
of Rajasthan as Special Government Pleader to
conduct arbitration cases between the
Government and Modern Construction Company
arising out of the construction of Rana Pratap
Sagar Dam and Jawahar Sagar Dam. The order
was passed on June 26, 1965 (Ex. 1). The
order reads:
“ORDER
Sub: Construction of R.P.S. Main Dam-Contract
of M/s. M.C.C. (Pvt.) Ltd., Arbitration in
disputes arising out of.
In pursuance of Rule 8 (b) of Order XXVII of
the First Schedule to the Code of Civil
Procedure, 1908 read with clause (7) of
Section 2 of the Code, the Governor is pleased
to appoint Smt. Kanta Kathuria, Advocate
Bikaner as Special Government Pleader to
conduct the above noted case on behalf of the
State of Rajasthan alongwith Shri Murali
Manohar Vyas, Government Advocate, Jodhpur.
By order,
Sd. D. S. Acharya
26-6-65
(D. S. Acharya)
Joint Legal Remembrancer”.
By subsequent orders, which we do not consider necessary to
quote here, her remuneration was fixed at Rs. 1501- per day
for each date of hearing, Rs. 75/- per day for days of
travel and dates on which the case was adjourned, and days
spent on preparation of the case. Mrs. Kathuria began
appearing in the case from March 27, 1965. It is an
admitted fact that she was paid for work between that date
and November 28, 1966 a sum of
839
Rs. 26,325/- and again from February 26, 1967 to March 2,
1967 a sum of Rs. 900/- and that the arbitration proceedings
were continuing on the date of the filing of the election
petition. Therefore for over two years she was employed as
Special Government Pleader and was still employed when her
election took place. It is also admitted by her that prior
to this employment, she had never paid income-tax in excess
of Rs. 1200/- in any year.
On these facts, the High Court held that Mrs. Kathuria was
disqualified. Before this appeal came on for hearing before
us, the Governor of Rajasthan by Ordinance 3/68 (December
24, 1968) removed the disqualification retrospectively. The
Ordinance was followed by Act V of 1968 (April 4, 1969).
The operative portions of the Act which are the same as of
the Ordinance read
“Prevention of disqualification of membership
of the State Legislative Assembly-
(1) It is hereby declared that none of the
following offices, in so far as it is an’
office of profit under the State Government,
shall disqualify or shall be deemed ever to
have disqualified the holder thereof from
being chosen as, or for being, a member of the
Rajasthan Legislative Assembly, namely –
(a) the office of a Government Pleader or
Special Government Pleader or Advocate for the
Government, appointed specially to conduct any
particular suit, case or other proceeding by
or against the State Government, before any
court, tribunal, arbitrator or other autho-
rity;
(b) the office of a Government Pleader, a
Special Government Pleader or Advocate for the
State Government, appointed specially to
assist the Advocate General, Government
Advocate or Pleader, or Special Government
Pleader, or Advocate for Government, in any
particular suit, case or other proceeding by
or against the State Government before any
court, tribunal, arbitrator or other
authority;
(c) the office of a panel lawyer if the
holder of such office is not entitled to any
retainer or salary, by whatever named called;
(4) the office of a Pradhan or Pramukh as
defined in the Rajasthan Panchayat Samitis and
Zila Parishads Act, 1959 (Rajasthan Act 37 of
1959).
840
(2) Notwithstanding any judgment or order of
any Court or Tribunal, the aforesaid offices
shall not disqualify or shall be deemed never
to have disqualified the holders thereof for
being chosen as, or for being, members of the
Rajasthan Legislative Assembly as if this Act
had been in force on the date the holder of
such office filed his nomination paper for
being chosen as a member of the Rajasthan
Legislative Assembly.”
The Ordinance and the Act seem to have been passed to
nullify the decision in this case. One of the contentions
of the answering respondent is that the Legislature of
Rajasthan could not remove the disqualification
retrospectively since the Constitution contemplates
disqualifications existing at certain time in accordance
with the law existing at that time. We shall deal with this
matter later.
When the Government of Rajasthan appointed Mrs. Kathuria it
bad two courses open to it. Firstly, Government could have
engaged Mrs. Kathuria to conduct the particular arbitration
case or cases, or even to assist the Government Advocate in
those cases. Alternatively Government could create a
special office of Special Government Pleader and appoint
Mrs. Kathuria or any other lawyer to that office. It is
obvious that Government did not choose the first course.
There were as many as 26 arbitration cases then pending and
more were likely to arise. Government thought that they
should be conducted by the Government Advocate but as the
work involved was too much as additional office had to be
created and given to a lawyer. An office was therefore,
created and given to Mrs. Kathuria.
In a recent case (Civil Appeal No. 1832 of 1967-Mahadeo
v.Shantibhai &, Others-s-decided on October 15, 1968), we
held that a panel lawyer engaged to watch cases on behalf of
the Central & Western Railway Administrations, held an
office of profit. The duty of the panel lawyer was to watch
cases coming up for hearing against the Railways at Ujjain
and to appear in court and ask for an adjournment. The
lawyer was paid Rs. 51- for each such adjournment if he was
not entrusted with the case later. In dealing with this
matter reliance was placed by us on the meaning to the word
‘office’ given in the Statesman (P) Ltd. v. H. R. Deb &
Ors(1) In the Statesman case, this Court approved of the
observations of Lord Wright in Mcmillan v. Guest(2) to the
following effect :
“The word ‘office is of indefinite content.
Its various meanings cover four columns of the
New English
(1) [1968] 3 S.C.R. 614.
(2) [1942] A.C. 561.
841
Dictionary, but I take as the most relevant
for purpose of this case the following
‘A position or place to which certain duties
are attached, especially one of a more or less
public character.”
Our brother Sikri has also relied upon the
same case and has referred to the observations
of Lord Atkin where he approved of the
observations of Rowlatt, J. in Great Western
Railway Co. v. Baler(1). Justice Rowlatt said
thus :
“Now it is argued, and to my mind argued most
forcibly, that shows that what those who use
the language of the Act of 1842 meant, when
they spoke of an office or employment which
was a subsisting permanent, substantive
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 any man who was
engaged on whatever terms, to do duties which
were assigned to him, his employmen
t to do
those duties did not create an office to which
those duties were attached. He hereby was
employed to do certain things and that is an
end of it, and if there was no office or
employment existing in the case as a thing,
the so-called office or employment was merely
an aggregate of the activities of the
particular man for the time being”.
We say with profound respect for this most succinct
exposition, that we entirely agree. The distinction that we
are making is precisely the distinction which has been
brought out by Rowlatt, J. If Mrs. Kathuria had been briefed
as a lawyer and given all the Government litigation in
Rajasthan to conduct on behalf, of the Government she could
not have been described as holding an office of profit. The
aggregate of her work and her activities could not have
created an office nor could she have been described as
anything but an advocate. What happened here was different’
An office was created which was that of a Special Government
Pleader. Now it is admitted that the office of a Government
Pleader is an office properly so-called. Therefore an
office going under the names ‘Additional Government
Pleader’, ‘Assistant Government Pleader’, ‘Special
Government Pleader’ will equally be an office properly so-
called. It matters not that Mrs. Kathuria was-to conduct a
group of arbitration cases and against the same party. For
that matter Government is always at liberty to create
offices for special duties. They might have even created
another office of Special Government Pleader for Land
Acquisition cases
(1) 8 Tax Cases 231, 235.
842
or a group of cases or Railway cases or a group of cases
arising out of a particular accident and so on and so forth.
What matters is that there was an office created apart from
Mrs. Kathuria. It is in evidence that it was first held by
Mr. Maneklal Mathur another advocate. It is likely that if
Mrs. Kathuria had declined some one else would have been
found. Therefore, there was an office which could be
successively held; it was independent of Mrs. Kathuria who
filled it was a substantive position and as permanent as
supernumerary offices are. Every one of the tests laid down
by Rowlatt, J. is found here.
We would, therefore, hold that the High Court was right in
its conclusion that Mrs.,Kathuria held an office. Since
there is no dispute that it was for profit and under the
State, the election of Mrs. Kathuria must be held to be void
as she was disqualified to stand for the election.
This brings us to the next question. Does the Act of the
Rajasthan Legislature remove the disqualification
retrospectively, in other words; can such a law be passed by
the Legislature after, the election is over ?
The first question is whether the new law is remedial or
declaratory. If it was declaratory then it would be
retrospective; if remedial only, prospective unless legally
made retrospective. That it has been made expressly
retrospective lends support to its being remedial. Its
retrospective operation depends on its being effective to
remove a disability existing on the date of nomination of a
candidate or his election. Of course, there is no
difficulty in holding the law to be perfectly valid in its
prospective operation. The only dispute is in regard to its
retrospective operation.
Our brother Sikri has cited an instance of the British
Parliament from May’s well-known treatise when the
Coatbridge and Springburn Elections (Validation) Bill was
introduced to validate the irregular elections. Halsbury’s
Laws of England (3rd Edn. Vol. 14 p. 5) has the following
note :
“If a person is elected when disqualified, his dis-
qualification for being a member of Parliament may be
remedied or he may be protected from any penal consequences
by an Act of Validation or indemnity.”
The position of the British Parliament is somewhat different
from that of the Indian Parliament and the Legislatures of
the States. British Parliament enjoys plenary sovereignty
and the7 Acts of the British Parliament no court can
question. In India the sovereignty of the Indian Parliament
and the Legislatures is
843
often curtailed and the question, therefore, is whether it
is in fact so curtailed.
At the hearing our attention was drawn to a number of such
Acts passed by our Parliament and the Legislatures of the
States. It seems that there is a settled legislative
practice to make validation laws. It is also well-
recognised that Parliament and the Legislatures of the
States can make their laws operate retrospectively. Any law
that can be made prospectively may be made with
retrospective operation except that certain kinds of laws
cannot operate retroactively. This is not one of them.
This position being firmly grounded we have to look for
limitations, if any, in the Constitution. Article 191
(which has been quoted earlier) itself recognises the power
of the Legislature of the State to declare by law that the
holder of an office shall not be disqualified for being
chosen as a member. The Article says that a person shall be
disqualified if he holds an office of profit under the
Government of India or the Government of any State unless
that office is declared by the Legislature not to disqualify
the holder. Power is thus reserved to the Legislature of
the State to make the declaration. There is nothing in the
words of the article to indicate that this declaration
cannot be made with retrospective effect. It is true that
it gives an advantage to those who stand when the
disqualification was not so removed as against those who may
have kept themselves back because the disability was not
removed. That might raise questions of the propriety of
such retrospective legislation but not of the capacity to
make such laws. Regard being had to the legislative
practice in this country and in the absence of a clear
prohibition either express or implied we are satisfied that
the Act cannot be declared ineffective in its retrospective
operation.
The result, therefore, is that while we hold that Mrs.
Kathuria held an office of profit under the State
Government, we hold further that this disqualification stood
removed by the retrospective operation of the Act under
discussion.
As regards the supplementary point that the petition was bad
for non-joinder of Mr. Mathura Das Mathur against whom cor-
rupt practices were alleged in the petition, we are of
opinion that s. 82 of the Representation of People Act,
1951, in its clause (b) speaks of candidates at the same
election and not persons who are candidates at other
elections. As Mr. Mathur was a candidate from another
constituency he need not have been made a party here.
For the above reasons we would allow the appeal but make no
order about costs since the election of the appellant is
saved
844
by a retrospective law passed after the decision of the High
Court.
Sikri, J. This appeal arises out of an election petition
filed under section 80 of the Representation of the People
Act, 1951, hereinafter referred to as the 1951 Act, by Shri
Manik Chand Surana, a defeated candidate, challenging the
election of Smt. Kanta Kathuria, before the High Court.
The High Court (Jagat Narayan, J.) allowed the election
petition on the ground that the appellant held an office of
profit within the meaning of Art. 191 of the Constitution on
the day on which she filed the nomination paper and was thus
disqualified for being chosen as a member of the Rajasthan
Legislative Assembly. This judgment was given on August 12,
1968. An appeal was filed in this Court on August 20, 1968.
During the pendency of the appeal, the Rajasthan Legislative
Assembly Members (Prevention of Disqualification) Act, 1969
(Act No. 5 of 1969) (hereinafter referred to as the impugned
Act), was passed, which received the assent of the Governor
on April 4, 1969.
The impugned Act inter alia provides :
“2. Prevention of disqualification of
membership of the State Legislative Assembly.
(i) It is hereby declared that none of the
following offices, in so far as it is an
office of profit under the State Government
shall disqualify or shall be deemed ever to
have disqualified the holder thereof from
being chosen as, or for being, a member of the
Rajasthan Legislative Assembly, namely :-
(a) the office of a Government Pleader or
Special Government Pleader or Advocate for the
Government, appointed specially to conduct any
particular suit, case or other proceeding by
or against the State Government, before any
court, tribunal, arbitrator or other
authority;
(b) the office of a Government Pleader, a
Special Government Pleader or Advocate for the
State (Government appointed specially to
assist the Advocate General, Government
Advocate or Pleader, or Special Government
Pleader, or Advocate for Government in any
particular suit, case or other proceeding by
or against the State Government before any
court, tribunal, arbitrator or other
authority;
845
(2) Notwithstanding any judgment or order of
any Court or Tribunal, the aforesaid offices
shall not disqualify or shall be deemed never
to have disqualified the holders thereof for
being chosen as, or for being, members of the
Rajasthan Legislative Assembly as if this Act
had been in force on the date the holder of
such office filed his nomination paper for
being chosen as a member of the Rajasthan
Legislative Assembly.”
We may note another fact on which an argument is sought to;
be made by the learned Counsel for the appellant. It was
alleged in the election petition that the appellant was a
close friend of one Shri Mathura Dass Mathur who was a
Minister in the Slate of Rajasthan at the time of the
election, who contested elections as a candidate in a
constituency different from that of the appellant. Shri
Mathur visited the constituency during the election very
frequently and during these visits the appellant accompanied
by Shri Mathur visited several places in the Constituency
where.Shri Mathur in the presence of the appellant offered
and promised to get several works done in those areas if the
electors were to cast votes for the appellant at’ the said
election. In spite of these allegations of corrupt
practice, Shri Mathur was not made a party to the petition.
The learned Counsel for the appellant, Mr. Gupte, contends
that the High Court erred in holding that the appellant held
an office of profit within the meaning of Art. 191 of the
Constitution. In the alternative he contends that the
Rajasthan Act No. 5 of 1969 is retrospective and the
disqualification if it existed, cannot now be deemed to have
existed because of this Act. The last point raised by him
is that the petition was not in accordance with law as the
respondent, Shri Surana, had not impleaded Shri Mathur as
respondent to the petition.
The facts relevant for appreciating the first point are
these
The appellant was an advocate at all material times.
Disputes arose between M/s. Modern Construction, Company
Private Ltd. and the State of Rajasthan in connection with
some works relating to the Rana Pratain Sagar Dam. These
disputes were referred to arbitration. Shri Murli Manohar
Vyas, Government Advocate in the High Court of Rajasthan at
Jodhpur was appointed by the Government to represent it in
these arbitration proceedings. The Government Advocate
wanted one more advocate to assist him. On his suggestion,
Shri Manak Lal Mathur advocate was appointed to assist the
Government Advocate. As there was a possibility that Shri
Manak Lal Mathur may not be available to
846
help the Government Advocate, the appellant was, on the
suggestion of the Government Advocate, appointed to assist
him in the ,absence of Shri Mathur. This. proposal was
approved by the Rajasthan Law Minister on March 30, 1965 and
on June 26, 1965, and the Government issued the following
order :-
“Sub :-Construction of R.P.S. Main Dam Con-
tract of M/s M.C.C. (PVT) Ltd. Arbitration in
dispute arising out of-
In pursuance of rule 8 (b) of Order XXVII of
the First Schedule to the Code of Civil
Procedure, 1908 read with clause (7) of
section 2 of the Code, the Governor is pleased
to appoint Smt. Kanta Kathuria Advocate,
Bikaner, as Special Government Pleader to
conduct the above noted case on behalf of the
State of Rajasthan along with Shri Manohar
Vyas, Government Advocate Jodhpur.”
Later, on Sept. 3, 1965, the Government laid down the fees payab
le to the appellant. It was stated in the order dated
Sept. 3, 1965 that” Smt. Kanta Kathuria who has been
appointed to assist the Government advocate in the absence
of Shri Mathur will get her share of fee in proportion to
the assistance rendered by her out of the daily fee of Rs.
150/- to Shri Manak Lal Mathur.”
As Shri Manak Lal Mathur was not able to appear in the case,
on Nov. 18, 1965 the Governor sanctioned the payment of
daily fee of Rs. 1501- to the appellant instead of Shri
Manak Lal Mathur, for days of actual hearing. The appellant
appeared from March 27, 1965 to November 28, 1966, but she
did not appear from Nov. 29, 1966 to Feb. 25, 1967. She
again started appearing in the case from February 26, 1967.
The appellant claimed travelling allowance, incidental
charges and daily allowance, 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 of the Kolayat Assembly Constituency of
the Rajasthan Legislative Assembly to elect a member to the
Rajasthan Legislative Assembly and invited nomination papers
for the elections to be held on February 18, 1967. The
appellant was declared duly elected by the Returning officer
on, February 22, 1967, the appellant having secured 11926
and the respondent having secured 8311 votes.
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 Assembly or Legislative
Council of a State-
(a) if he holds any office of profit under
the Government of India or the Government of
any State specified in the First Schedule,
other than an office declared by the
Legislature of the State by law not to
disqualify its holder;
(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 is a
Minister either for the Union or for such
State.
It seems to us that the High Court erred in holding that the
appellant held an office. There is no doubt that if her
engagement as Special Government Pleader amounted to
appointment to an office, it would be an office of profit
under the State Government 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 (1 ) (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 disqualify its holder, contemplates
existence of an office apart from its holder. In other
words, the Legislature of a State is empowered to declare
that an office of profit of a particular description or name
would not disqualify its holder and not that a particular
holder of an office of profit would not be disqualified.
It seems to us that in the context, Justice Rowlatt’s
definition in Great Western Railway Company v. Bater(l) is
the appropriate meaning to be applied to the word ‘office’
in Art. 191 of the Constitution.
Justice Rowlatt observed at page 235
“Now it is argued, and to my mind argued most
forcibly, that shows that what those who use
the
(1) 8 Tax Cases 231.
848
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, substantive 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 duties which were assigned to
him, his employment to do those duties did not
create an office to which 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
in the case, as a thing the so-called office
or employment was merely an aggregate of the
activities of the particular man for the time
being. And I think myself 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
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 Taxes)
(1). Lord Atkin observed at page 201 :-
“There is no statutory definition of ‘office’.
Without adopting the sentence as a complete
definition, one may treat the following
expression of Rowlatt, J., in Great Western
Railway Co. v. Baler, [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 statement of the meaning of the
word : an office or employment which was a
subsisting, permanent, substantive position,
which had an existence independent of the
person who filed it, which went on and was
filled in succession by successive holders.”
Lord Wright at page 202 observed
“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 which less
public character. This, I think, rough
corresponds with such approaches to a
definition as have
(1) 24 Tax Cases 190.
849
been attempted in the authorities, in
particular Great Western Railway Co. v.
Abater, [1922] 2 A.C. I…… where the legal
construction of these words, which had been in
Schedule E since 1803 (43 Geo. 111, c. 122,
Section 175), was discussed.”
In Mahadeo v. Shantibhai & Ors.(1)-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 in the case of
Mitchell v. Ross(2), thought that both the
noble and learned Lords had accepted the
language employed by Rowlatt J. as generally
sufficient. In Mahadeo’s case(1), 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.
51- 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
disqualified by the House of Commons. It is
stated in Rogers [on Elections Vol. [1]-at
page 10 :-
“However, in the Cambridge case (121 Journ.
220), in 1866, the return of Mr. Forsyth was
avoided on the ground that he held a new
office of profit under the Crown, within the
24th section. In the scheme submitted to and
approved by Her Majesty in Council was
inserted the office of standing counsel with a
certain yearly payment (in the scheme called
‘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) [1960] 2 All E.R. 238
850
office, specially as the notification
appointed the appellant as Special Government
Pleader. We see no force in these conten-
tions.
Rule 8B. of Order 27, C.P. Code reads as
follows :7-
“In this Order unless otherwise expressly
provided ‘Government’ and ‘Government leader’
mean respectively-
(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 a
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 imposed
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 Pleader for the
purpose of Order 27. Therefore, no particular
significance can be attached to the notifica-
tion made under rule 8B appointing the
appellant as Special Government Pleader. We
cannot visualise an office coming into
existence, every time a pleader is asked by
the Government to appear in a case on its
behalf. The notification of his name under
rule 8B, 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
“The Government Pleader in any Court shall be
the agent of the Government for the purpose of
receiving
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 processes 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 under-
lying Art. 191 of the Constitution is to preserve purity of
public life and to prevent conflict of duty with interest
and give an interpretation 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 Member of Legislative Assembly, it can make that pro-
vision under Art. 191 (1) (e) of the Constitution.
The case of Sakhawat Ali v. The State of Orissa(1) 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 Rajasthan 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 in 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) Edition]-
“After the general election of 1945 it was
found that the persons elected for the
Coatbridge Division of
(1) [1955] 1 S.C.R. 1004.
SupCI-9
852
Lanark and the Springbourn Division of
Glassgow 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 small fee
in respect of attendance at a Tribunal. A
Select Committee reported that the
disqualification was incurred inadvertently,
and in accordance with their 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).”
We have also noticed two earlier instances of retrospective
legislation, e.a., The House of Commons (Disqualification)
1813 [Halsbury Statutes of England p. 467] and Sec. 2 of the
Re-election of Ministers Act, 1919 (ibid. p. 515).
Great t stress was laid on the word ‘declared’ in Art.
191(1) (a), but we are unable to imply any limitation on the
powers of the Legislature from this word. Declaration 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
appreciate this contention. The State Legislature has
exercised its 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 the appellant’s
disqualification has been removed and the 1951 Act is, so to
say, 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 because the facts on
which it operates have by valid law been given a different
garb.
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 Order 27
and the impugned Act nowhere mentions the alleged offices
held by
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 force in the third point raised by the learned
counsel for the appellant. Section 82 of the Representation
of the People Act, 1 of 1951, reads 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 be himself
or any 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.
In 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 the case the parties will bear their own
costs throughout.
V.P.S. Appeal allowed.
854