{"id":258140,"date":"1969-10-16T00:00:00","date_gmt":"1969-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kanta-kathuria-vs-manak-chand-surana-on-16-october-1969"},"modified":"2015-06-16T18:04:26","modified_gmt":"2015-06-16T12:34:26","slug":"kanta-kathuria-vs-manak-chand-surana-on-16-october-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kanta-kathuria-vs-manak-chand-surana-on-16-october-1969","title":{"rendered":"Kanta Kathuria vs Manak Chand Surana on 16 October, 1969"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kanta Kathuria vs Manak Chand Surana on 16 October, 1969<\/div>\n
Equivalent citations: 1970 AIR 694, 1970 SCR (2) 835<\/div>\n
Author: M Hidayatullah<\/div>\n
Bench: Hidayatullah, M. (Cj), Sikri, S.M., Mitter, G.K., Ray, A.N., Reddy, P. Jaganmohan<\/div>\n
           PETITIONER:\nKANTA KATHURIA\n\n\tVs.\n\nRESPONDENT:\nMANAK CHAND SURANA\n\nDATE OF JUDGMENT:\n16\/10\/1969\n\nBENCH:\nHIDAYATULLAH, M. (CJ)\nBENCH:\nHIDAYATULLAH, M. (CJ)\nSIKRI, S.M.\nRAY, A.N.\nREDDY, P. JAGANMOHAN\n\nCITATION:\n 1970 AIR  694\t\t  1970 SCR  (2) 835\n 1969 SCC  (3) 268\n CITATOR INFO :\n R\t    1975 SC2299\t (138,186,229,230,314,362,690)\n RF\t    1976 SC2283\t (34,36,40,41)\n RF\t    1977 SC 682\t (3)\n R\t    1984 SC 664\t (4)\n RF\t    1992 SC1213\t (34)\n\n\nACT:\nConstitution   of   India,  1950,  Art,\t  191(1)-Office\t  of\nprofit--office of Special Government Pleader if such office.\nRetrospective legislation candidate held to be\tdisqualified\nbecause\t of  holding  office  of  profit-State\t Legislature\nenacting  that\tsuch  Office not an  office  of\t profit\t and\nvalidating election-Effect of.\nRepresentation of the People Act<\/a> (43 of 1951), s.  82(b)<\/a>-Any\nother candidate' against whom corrupt practices are alleged,\nto be made party.-Scope of.\n\n\n\nHEADNOTE:\nDisputes  between the State of Rajasthan and a company\twere\nreferred  to  arbitration and the  Government  Advocate\t was\nappointed  to  represent the State.   Another  advocate\t was\nappointed  to  assist the Government Advocate  but  as\tthe-\nadvocate was table to appear, the appellant was no appointed\nunder  0.27, r. 8B of the Civil Procedure Code,\t as  Special\nGovernment  Pleader.  The appellant then stood for  election\nto the State Legislative Assembly and was declared  elected.\nThe  election  was  challenged and one\tof  the\t grounds  of\nchallenge  was that the appellant held an office  of  profit\nwithin\tthe  meaning of Art. 191<\/a> of the\t Constitution.\t The\nHigh  Court  set aside the election.  While the\t appeal\t was\npending\t in this Court, Rajasthan Act 5 of 1969\t was  passed\ndeclaring  among others that the holder of the office  of  a\nSpecial\t Government Pleader was not disqualified from  being\nchosen\tor  for\t being a member\t of  the  State\t Legislative\nAssembly;  and\tby s. 2(2)<\/a>, the Act was\t made  retrospective\nremoving- the appellant's disqualification retrospectively.\nOn the questions : (1) Whether the appellant was holding  an\noffice of profit and hence was disqualified; (2) Whether the\ndisqualification  was  removed\tby Act 5 of  1969;  and\t (3)\nWhether\t the election petition was in accordance  with\tlaw,\nbecause, another candidate from another constituency,  again\nt whom corrupt practices were alleged, was not impleaded  as\na party,\nHELD : (1) (Per Sikri, Ray and Jaganmohan Reddy, JJ.) :\t The\nappellant was not holding an office of profit.\n(a)  Before a person becomes subject to the disqualification\nin  Art.  191(1)<\/a>  there\t must  be  an  office  which  exists\nindependently  of his being the holder of the  office.\t The\nword  'office'\tmeans an office or employment  which  was  a\nsubsisting,  permanent,\t substantive position which  had  an\nexistence  independent\tof the person who filled  it,  which\nwent on and was filled in succession by successive  holders;\nbut  if\t a person was engaged on whatever terms\t to  do\t the\nduties\twhich  were assigned to him, his  employment  to  do\nthose duties did not create an office to which those  duties\nwere attached.\tHence an office does not come into existence\nevery  time a pleader is asked by the Government to  appeal,\nin a case on its behalf. [847 F; 848 A-B; 850 G-H]\np.Cl\/70-8\n836\n(b)  A\treading\t of  s. 2(7)<\/a> and 0<\/a>.27, r. 8B  of  the  Civil\nProcedure Code A shows, that even an advocate who is. acting\nunder  the  directions of the Government  Pleader  could  be\ndeemed\t to  be\t a  Government\tPleader.    Therefore,\t the\nnotification of the appellant's name under r. 8B as  Special\nGovernment  Pleader  did not amount to the  creation  of  an\noffice. [850 F-G]\n(c)  Assuming  that a Government Pleader is an agent of\t the\nGovernment  for purposes of receiving processes against\t the\nGovernment,  the fact that processes could be served  on  an\nadvocate,  would not mean that the advocate was\t holding  an\noffice under his client. [851 A-B]\n(d)  It is not necessary to give a wider meaning to the word\n'office'    because,   if   Parliament\t thinks\t   that\t   a\nlegal\"practitioner  who is being paid fees in a case by\t the\nGovernment should not be qualified to stand for an  election\nas  a member of the Legislative Assembly, it can  make\tthat\nprovision  under Art. 191 (1) (e)<\/a> of the Constitution.\t[851\nC-D]\nGreat  Western\tRailway Co. v. Bater, 8 Tax  Cases  231\t and\nMcMillan v.    Guest  (H.   M. Inspector of  Taxes)  24\t Tax\nCases 190, applied.\nMahadeo\t  v.   Shantibhai   &  Ors<\/a>.   [1969]2\tS.C.R.\t 422\ndistinguished.\nSakhawat  Ali  v. State of Orissa<\/a>, [1955]  1   S.C.R.  1004,\nreferred to.\n(Per  Hidayatullah, C.J. and Mitter, J.\t dissenting)  :\t The\nHigh  Court was right in holding that the appellant held  an\noffice of profit. [842 C]\nIt was not a case of the appellant merely being briefed as a\nlawyer\tand given the Government litigation.  On  the  other\nhand  an  office,  that of Special  Government\tPleader\t was\ncreated, and since the office of a Government Pleader is  an\noffice\tof profit, the office of Special Government  Pleader\nwill equally be an office of profit.  It was an office which\ncould  be  successively\t held, it  was\tindependent  of\t its\nholder,\t it was a substantive position and as  permanent  as\nother supernumerary offices. [841 FG; 842B]\nMahadeo\t v.  Shantibhai & Ors<\/a>. [1969] 2 S.C.R. 422  and\t The\nStatesman (P.) Ltd. v. H. R. Deb & Ors<\/a>. [1968] 3 S.C.R.\t 614\napplied.\nMcMillan v. Guest, [1942] A.C. 561 and Great Western Railway\nCo. v.\t  Bater, 8 Tax Cases 231, 235, referred to.\n(2)  (By  Full Court) : The Act<\/a> 5 of 1969  has\tremoved\t the\ndisqualification retrospectively.\nPer  Hidayatullah,  C.J.  and  Mitter,\tJ.  :  It  is\twell\nrecognised  that Parliament and the Legislature of  a  State\ncan  make  their  laws operate\tretrospectively\t subject  to\nlimitations, if any, in the Constitution.  Any law that\t can\nbe  made  prospectively\t may  be  made\twith   retrospective\noperation  except those which cannot operate  retroactively.\nIn  Art.  191<\/a>  itself,\tpower  is  reserved  to\t the   State\nLegislature  to\t make a declaration that the  holder  of  an\noffice shall not be disqualified and there is nothing in the\nwords of the Article to\t indicate  that such  a\t declaration\ncannot\t be  made  with\t retrospective\teffect,\t  therefore,\nwhatever  may  be the propriety of such\t legislation  regard\nbeing had to legislative practice and the absence of a clear\nprohibition, express or implied. the Act must be declared to\nhave retrospective effect. [843 B-C, D-F]\n837\nPer  Sikri, Ray and Jaganmohan Reddy, JJ. :  Parliament\t and\nthe State legislatures can legislate retrospectively subject\nto the provisions of the Constitution.\tNo limitation on the\npowers\tof the Legislature to make a declaration  validating\nan  election, effective from an earlier date,  is  expressly\nstated nor could it be implied in Art. 191(1).<\/a> ]851 F-G; 852\nD-E]\nThe  apprehension that it may not be a healthy practice\t and\nmight be abused is no ground for limiting the powers of\t the\nState Legislature. [852 B]\nThe impugned Act does not amend or alter the  Representation\nof  the\t People Act<\/a>, 1951, in any  respect  whatsoever.\t  By\nenacting  the  impugned Act, the  disqualification  if\tany,\nwhich existed in the 1951 Act has been removed, but that  is\nwhat the State Legislature is entitled to do under Art.\t 191<\/a>\nso  long as it does not touch the wording of the  1951\tAct.\n[852 F-G]\n(3)  (By Full Court) : The words 'any other candidate' in s.\n82(b)<\/a>  of  the Representation of the People Act,  1951,\t who\nshould\tbe impleaded, refers to a candidate in the  election\nfor the constituency which is the\nsubject matter of the petition, and not to a candidate\tfrom\nanother constituency. [843 G-H; 853 D-E]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1869 of 1968.
\nAppeal\tunder s. 116-A<\/a> of the Representation of\t the  People
\nAct, 1951 from the judgment and order dated August 12, 1968
\nof  the Rajasthan High Court in Election Petition No. 16  of
\n1967.\n<\/p>\n
S.   V. Gupte, M. M. Tiwari, H. K. Puri, Bishamber Lal,
\nM.   K. Garg, K. K. Jain and S. P. Vij, for the appellant.
\nM. C. Chagla and S. M. Jain, for respondent.
\nNiren  De,  Attorney-General,  G.  C.  Kasliwal,   Advocate-
\nGeneral.   Rajasthan  and  K. B. Mehta,\t for  the  State  of
\nRajasthan.\n<\/p>\n
The  Judgment  of S. M. SiKRi, A. N. RAY and  P.  JAGANMOHAN
\nREDDY, JJ.was delivered by SIKRI, J., M. HIDAYATULLAH,\tC.f.
\nand G. K. MITTER, J. gave a separate opinion.
\nHidayatullah, C.J. We regret our inability to agree that the
\nappellant  Mrs. Kanta Kathuria was not holding an office  of
\nprofit under the Government of Rajasthan when she stood as a
\ncandidate for election to the Rajasthan Legislative Assembly
\nfrom the Kolayat Constituency.\n<\/p>\n
Mrs.  Kathuria\tis an advocate practicing at  Bikaner.\t She
\ncontested  the\tabove  election held on\t February  18,\t1967
\nagainst seven other candidates.\t She was declared elected on
\nFebruary 22, 1967.  One of the defeated candidates filed the
\nelection petition,  from    which   this   appeal    arises,
\nquestioning her election on several\tgrounds.    We\t are
\nconcerned only with one of them, namely, that on the date of
\nher  nomination\t and  election she was\tdisqualified  to  be
\nchosen\tto fill the seat as she held the office\t of  Special
\nGovernment Pleader, which was an office of profit under\t the
\nGovernment of Rajasthan.\n<\/p>\n
838<\/span><\/p>\n
Article\t 191<\/a> of the Constitution, which is relevant in\tthis
\nconnection, reads :\n<\/p>\n
\t      “191 : Disqualifications for membership
\n\t      (1)   A person shall be disqualified for being
\n\t      chosen  as,  and for being, a  member  of\t the
\n\t      Legislative Assembly or Legislative Council of
\n\t      a State-\n<\/p><\/blockquote>\n
\t      (a)   if\the holds any office of profit  under
\n\t      the  Government of India or the Government  of
\n\t      any  State  specified in the  First  Schedule,
\n\t      other   than   an\t office\t declared   by\t the
\n\t      Legislature  of  the  State  by  law  not\t  to
\n\t      disqualify its holder;\n<\/p><\/blockquote>\n
\t      Mrs. Kathuria was appointed by the  Government
\n\t      of Rajasthan as Special Government Pleader  to
\n\t      conduct\tarbitration   cases   between\t the
\n\t      Government  and  Modern  Construction  Company
\n\t      arising out of the construction of Rana Pratap
\n\t      Sagar  Dam and Jawahar Sagar Dam.\t  The  order
\n\t      was  passed  on June 26, 1965  (Ex.  1).\t The
\n\t      order reads:\n<\/p><\/blockquote>\n
\t      “ORDER
\n\t      Sub:  Construction of R.P.S. Main Dam-Contract
\n\t      of  M\/s.\tM.C.C. (Pvt.) Ltd.,  Arbitration  in
\n\t      disputes arising out of.\n<\/p><\/blockquote>\n
\t      In  pursuance of Rule 8 (b) of Order XXVII  of
\n\t      the  First  Schedule  to\tthe  Code  of  Civil
\n\t      Procedure,  1908\tread  with  clause  (7)\t  of
\n\t      Section 2 of the Code, the Governor is pleased
\n\t      to  appoint  Smt.\t  Kanta\t Kathuria,  Advocate
\n\t      Bikaner  as  Special  Government\tPleader\t  to
\n\t      conduct the above noted case on behalf of\t the
\n\t      State  of\t Rajasthan  alongwith  Shri   Murali
\n\t      Manohar Vyas, Government Advocate, Jodhpur.
\n\t       By order,
\n\t       Sd. D. S. Acharya
\n\t       26-6-65
\n\t       (D. S. Acharya)
\n\t       Joint Legal Remembrancer”.\n<\/p><\/blockquote>\n
By subsequent orders, which we do not consider necessary  to
\nquote here, her remuneration was fixed at Rs. 1501- per\t day
\nfor  each  date\t of hearing, Rs. 75\/- per day  for  days  of
\ntravel\tand dates on which the case was adjourned, and\tdays
\nspent  on  preparation\tof the case.   Mrs.  Kathuria  began
\nappearing  in  the  case  from March 27,  1965.\t  It  is  an
\nadmitted  fact that she was paid for work between that\tdate
\nand November 28, 1966 a sum of
\n839<\/span>
\nRs.  26,325\/- and again from February 26, 1967 to  March  2,
\n1967 a sum of Rs. 900\/- and that the arbitration proceedings
\nwere  continuing on the date of the filing of  the  election
\npetition.  Therefore for over two years she was employed  as
\nSpecial\t Government Pleader and was still employed when\t her
\nelection took place.  It is also admitted by her that  prior
\nto this employment, she had never paid income-tax in  excess
\nof Rs. 1200\/- in any year.\n<\/p>\n
On  these facts, the High Court held that Mrs. Kathuria\t was
\ndisqualified.  Before this appeal came on for hearing before
\nus,  the Governor of Rajasthan by Ordinance  3\/68  (December
\n24, 1968) removed the disqualification retrospectively.\t The
\nOrdinance  was\tfollowed by Act V of 1968 (April  4,  1969).
\nThe  operative portions of the Act which are the same as  of
\nthe Ordinance read
\n\t      “Prevention of disqualification of  membership
\n\t      of the State Legislative Assembly-\n<\/p>\n
\t      (1)   It\tis hereby declared that none of\t the
\n\t      following\t offices,  in so far as\t it  is\t an’
\n\t      office  of profit under the State\t Government,
\n\t      shall  disqualify or shall be deemed  ever  to
\n\t      have  disqualified  the  holder  thereof\tfrom
\n\t      being chosen as, or for being, a member of the
\n\t      Rajasthan Legislative Assembly, namely –\n<\/p>\n
\t      (a)   the\t office of a Government Pleader\t or
\n\t      Special Government Pleader or Advocate for the
\n\t      Government, appointed specially to conduct any
\n\t      particular  suit, case or other proceeding  by
\n\t      or  against the State Government,\t before\t any
\n\t      court,  tribunal, arbitrator or  other  autho-
\n\t      rity;\n<\/p>\n
\t      (b)   the\t office of a Government\t Pleader,  a
\n\t      Special Government Pleader or Advocate for the
\n\t      State   Government,  appointed  specially\t  to
\n\t      assist   the  Advocate   General,\t  Government
\n\t      Advocate\tor  Pleader, or\t Special  Government
\n\t      Pleader,\tor Advocate for Government,  in\t any
\n\t      particular  suit, case or other proceeding  by
\n\t      or  against  the State Government\t before\t any
\n\t      court,\ttribunal,   arbitrator\t or    other
\n\t      authority;\n<\/p>\n
\t      (c)   the\t office\t of a panel  lawyer  if\t the
\n\t      holder  of such office is not entitled to\t any
\n\t      retainer or salary, by whatever named called;
\n\t      (4)   the\t office of a Pradhan or\t Pramukh  as
\n\t      defined in the Rajasthan Panchayat Samitis and
\n\t      Zila Parishads Act, 1959 (Rajasthan Act 37  of
\n\t      1959).\n<\/p>\n
\t      840<\/span><\/p>\n
\t      (2)   Notwithstanding any judgment or order of
\n\t      any  Court or Tribunal, the aforesaid  offices
\n\t      shall not disqualify or shall be deemed  never
\n\t      to  have disqualified the holders thereof\t for
\n\t      being chosen as, or for being, members of\t the
\n\t      Rajasthan Legislative Assembly as if this\t Act
\n\t      had  been in force on the date the  holder  of
\n\t      such  office  filed his nomination  paper\t for
\n\t      being  chosen  as a member  of  the  Rajasthan
\n\t      Legislative Assembly.”\n<\/p>\n
The  Ordinance\tand  the Act seem to  have  been  passed  to
\nnullify\t the decision in this case.  One of the\t contentions
\nof  the\t answering  respondent is that\tthe  Legislature  of
\nRajasthan    could   not   remove    the    disqualification
\nretrospectively\t  since\t  the\tConstitution\tcontemplates
\ndisqualifications  existing  at certain time  in  accordance
\nwith the law existing at that time.  We shall deal with this
\nmatter later.\n<\/p>\n
When the Government of Rajasthan appointed Mrs. Kathuria  it
\nbad two courses open to it.  Firstly, Government could\thave
\nengaged Mrs. Kathuria to conduct the particular\t arbitration
\ncase or cases, or even to assist the Government Advocate  in
\nthose  cases.\tAlternatively  Government  could  create   a
\nspecial\t office\t of Special Government Pleader\tand  appoint
\nMrs.  Kathuria\tor any other lawyer to that office.   It  is
\nobvious\t that  Government did not choose the  first  course.
\nThere were as many as 26 arbitration cases then pending\t and
\nmore  were  likely to arise.  Government thought  that\tthey
\nshould\tbe conducted by the Government Advocate but  as\t the
\nwork  involved was too much as additional office had  to  be
\ncreated\t and  given to a lawyer.  An office  was  therefore,
\ncreated and given to Mrs. Kathuria.\n<\/p>\n
In  a  recent case (Civil Appeal No.  1832  of\t1967-Mahadeo
\nv.Shantibhai  &, Others-s-decided<\/a> on October 15,  1968),  we
\nheld that a panel lawyer engaged to watch cases on behalf of
\nthe  Central  &\t Western Railway  Administrations,  held  an
\noffice of profit.  The duty of the panel lawyer was to watch
\ncases  coming up for hearing against the Railways at  Ujjain
\nand  to\t appear in court and ask for  an  adjournment.\t The
\nlawyer was paid Rs. 51- for each such adjournment if he\t was
\nnot  entrusted\twith the case later.  In dealing  with\tthis
\nmatter reliance was placed by us on the meaning to the\tword
\n‘office’  given\t in the Statesman (P) Ltd. v. H.  R.  Deb  &
\nOrs<\/a>(1)\tIn  the Statesman case, this Court approved  of\t the
\nobservations  of Lord Wright in Mcmillan v. Guest(2) to\t the
\nfollowing effect :\n<\/p>\n
\t      “The  word ‘office is of\tindefinite  content.
\n\t      Its various meanings cover four columns of the
\n\t      New English
\n\t      (1)   [1968] 3 S.C.R. 614.\n<\/p><\/blockquote>\n
\t      (2)   [1942] A.C. 561.\n<\/p><\/blockquote>\n
\t      841<\/span><\/p>\n
\t      Dictionary,  but I take as the  most  relevant
\n\t      for purpose of this case the following
\n\t      ‘A  position or place to which certain  duties
\n\t      are attached, especially one of a more or less
\n\t      public character.”\n<\/p><\/blockquote>\n
\t      Our  brother  Sikri has also relied  upon\t the
\n\t      same case and has referred to the observations
\n\t      of  Lord\tAtkin  where  he  approved  of\t the
\n\t      observations  of Rowlatt, J. in Great  Western
\n\t      Railway Co. v. Baler(1).\tJustice Rowlatt said
\n\t      thus :<\/p><\/blockquote>\n
\t      “Now it is argued, and to my mind argued\tmost
\n\t      forcibly,\t that shows that what those who\t use
\n\t      the  language of the Act of 1842\tmeant,\twhen
\n\t      they  spoke of an office or  employment  which
\n\t      was   a  subsisting   permanent,\t substantive
\n\t      position,\t which had an existence\t independent
\n\t      from  the person who filled it, which went  on
\n\t      and  was\tfilled in succession  by  successive
\n\t      holders, and if you merely had any man who was
\n\t      engaged on whatever terms, to do duties  which
\n\t\t\t    were  assigned  to him, his\t employmen
\nt  to  do
\n\t      those duties did not create an office to which
\n\t      those  duties  were attached.  He\t hereby\t was
\n\t      employed\tto do certain things and that is  an
\n\t      end  of  it,  and if there was  no  office  or
\n\t      employment  existing in the case as  a  thing,
\n\t      the so-called office or employment was  merely
\n\t      an   aggregate  of  the  activities   of\t the
\n\t      particular man for the time being”.\n<\/p>\n
We  say\t with  profound\t respect  for  this  most   succinct
\nexposition, that we entirely agree.  The distinction that we
\nare  making  is\t precisely the distinction  which  has\tbeen
\nbrought out by Rowlatt, J. If Mrs. Kathuria had been briefed
\nas  a  lawyer  and given all the  Government  litigation  in
\nRajasthan to conduct on behalf, of the Government she  could
\nnot have been described as holding an office of profit.\t The
\naggregate  of  her work and her activities  could  not\thave
\ncreated\t an  office  nor could she have\t been  described  as
\nanything but an advocate.  What happened here was different’
\nAn office was created which was that of a Special Government
\nPleader.  Now it is admitted that the office of a Government
\nPleader\t is  an\t office properly  so-called.   Therefore  an
\noffice\t going\tunder  the  names   ‘Additional\t  Government
\nPleader’,    ‘Assistant\t  Government   Pleader’,    ‘Special
\nGovernment  Pleader’ will equally be an office properly\t so-
\ncalled.\t It matters not that Mrs. Kathuria was-to conduct  a
\ngroup of arbitration cases and against the same party.\t For
\nthat  matter  Government  is always  at\t liberty  to  create
\noffices\t for special duties.  They might have  even  created
\nanother\t office\t of  Special  Government  Pleader  for\tLand
\nAcquisition cases
\n(1)  8 Tax Cases 231, 235.\n<\/p>\n
842<\/span><\/p>\n
or  a  group of cases or Railway cases or a group  of  cases
\narising out of a particular accident and so on and so forth.
\nWhat matters is that there was an office created apart\tfrom
\nMrs. Kathuria.\tIt is in evidence that it was first held  by
\nMr. Maneklal Mathur another advocate.  It is likely that  if
\nMrs.  Kathuria\thad declined some one else would  have\tbeen
\nfound.\t Therefore,  there  was an  office  which  could  be
\nsuccessively  held; it was independent of Mrs. Kathuria\t who
\nfilled\tit  was a substantive position and as  permanent  as
\nsupernumerary offices are.  Every one of the tests laid down
\nby Rowlatt, J. is found here.\n<\/p>\n
We  would, therefore, hold that the High Court was right  in
\nits  conclusion\t that Mrs.,Kathuria held an  office.   Since
\nthere  is  no dispute that it was for profit and  under\t the
\nState, the election of Mrs. Kathuria must be held to be void
\nas she was disqualified to stand for the election.
\nThis  brings us to the next question.  Does the Act<\/a>  of\t the
\nRajasthan    Legislature   remove    the    disqualification
\nretrospectively, in other words; can such a law be passed by
\nthe Legislature after, the election is over ?
\nThe  first  question is whether the new law is\tremedial  or
\ndeclaratory.   If  it  was  declaratory\t then  it  would  be
\nretrospective; if remedial only, prospective unless  legally
\nmade  retrospective.   That  it\t has  been  made   expressly
\nretrospective  lends  support to its  being  remedial.\t Its
\nretrospective  operation depends on its being  effective  to
\nremove a disability existing on the date of nomination of  a
\ncandidate   or\this  election.\t Of  course,  there  is\t  no
\ndifficulty  in holding the law to be perfectly valid in\t its
\nprospective operation.\tThe only dispute is in regard to its
\nretrospective operation.\n<\/p>\n
Our  brother  Sikri  has cited an instance  of\tthe  British
\nParliament   from   May’s  well-known  treatise\t  when\t the
\nCoatbridge  and Springburn Elections (Validation)  Bill\t was
\nintroduced to validate the irregular elections.\t  Halsbury’s
\nLaws  of England (3rd Edn.  Vol. 14 p. 5) has the  following
\nnote :\n<\/p>\n
“If  a\tperson\tis  elected  when  disqualified, his  dis-
\nqualification  for  being  a member  of\t Parliament  may  be
\nremedied or he may be protected from any penal\tconsequences
\nby an Act of Validation or indemnity.”
\nThe position of the British Parliament is somewhat different
\nfrom  that of the Indian Parliament and the Legislatures  of
\nthe  States.  British Parliament enjoys plenary\t sovereignty
\nand  the7  Acts\t of  the British  Parliament  no  court\t can
\nquestion.  In India the sovereignty of the Indian Parliament
\nand the Legislatures is
\n\t\t843<\/span>
\noften  curtailed and the question, therefore, is whether  it
\nis in fact so curtailed.\n<\/p>\n
At  the hearing our attention was drawn to a number of\tsuch
\nActs  passed by our Parliament and the Legislatures  of\t the
\nStates.\t  It  seems  that there\t is  a\tsettled\t legislative
\npractice  to  make  validation\tlaws.\tIt  is\talso   well-
\nrecognised  that  Parliament  and the  Legislatures  of\t the
\nStates can make their laws operate retrospectively.  Any law
\nthat   can   be\t made  prospectively  may   be\t made\twith
\nretrospective  operation except that certain kinds  of\tlaws
\ncannot operate retroactively.  This is not one of them.
\nThis  position\tbeing firmly grounded we have  to  look\t for
\nlimitations,  if  any,\tin the\tConstitution.\tArticle\t 191
\n(which has been quoted earlier)<\/a> itself recognises the  power
\nof  the Legislature of the State to declare by law that\t the
\nholder\tof  an office shall not be  disqualified  for  being
\nchosen as a member.  The Article says that a person shall be
\ndisqualified  if  he  holds an office of  profit  under\t the
\nGovernment  of India or the Government of any  State  unless
\nthat office is declared by the Legislature not to disqualify
\nthe  holder.  Power is thus reserved to the  Legislature  of
\nthe State to make the declaration.  There is nothing in\t the
\nwords  of  the\tarticle to indicate  that  this\t declaration
\ncannot\tbe made with retrospective effect.  It is true\tthat
\nit   gives  an\tadvantage  to  those  who  stand  when\t the
\ndisqualification was not so removed as against those who may
\nhave  kept  themselves back because the disability  was\t not
\nremoved.   That\t might raise questions of the  propriety  of
\nsuch  retrospective legislation but not of the\tcapacity  to
\nmake  such  laws.   Regard  being  had\tto  the\t legislative
\npractice  in  this  country and in the absence\tof  a  clear
\nprohibition either express or implied we are satisfied\tthat
\nthe Act cannot be declared ineffective in its  retrospective
\noperation.\n<\/p>\n
The  result,  therefore,  is that while we  hold  that\tMrs.
\nKathuria   held\t an  office  of\t profit\t under\t the   State
\nGovernment, we hold further that this disqualification stood
\nremoved\t by  the retrospective operation of  the  Act  under
\ndiscussion.\n<\/p>\n
As regards the supplementary point that the petition was bad
\nfor non-joinder of Mr. Mathura Das Mathur against whom\tcor-
\nrupt  practices\t were  alleged in the petition,\t we  are  of
\nopinion\t that  s. 82<\/a> of the Representation  of\tPeople\tAct,
\n1951,  in  its clause (b) speaks of candidates at  the\tsame
\nelection  and  not  persons  who  are  candidates  at  other
\nelections.   As\t Mr.  Mathur was a  candidate  from  another
\nconstituency he need not have been made a party here.
\nFor the above reasons we would allow the appeal but make  no
\norder  about  costs since the election of the  appellant  is
\nsaved
\n844<\/span>
\nby a retrospective law passed after the decision of the High
\nCourt.\n<\/p>\n
Sikri,\tJ.  This appeal arises out of an  election  petition
\nfiled  under section 80<\/a> of the Representation of the  People
\nAct, 1951, hereinafter referred to as the 1951 Act, by\tShri
\nManik  Chand Surana, a defeated candidate,  challenging\t the
\nelection  of  Smt.  Kanta Kathuria, before the\tHigh  Court.
\nThe  High  Court (Jagat Narayan, J.)  allowed  the  election
\npetition on the ground that the appellant held an office  of
\nprofit within the meaning of Art. 191<\/a> of the Constitution on
\nthe day on which she filed the nomination paper and was thus
\ndisqualified  for being chosen as a member of the  Rajasthan
\nLegislative Assembly.  This judgment was given on August 12,
\n1968.  An appeal was filed in this Court on August 20, 1968.
\nDuring the pendency of the appeal, the Rajasthan Legislative
\nAssembly Members (Prevention of Disqualification) Act,\t1969
\n(Act No. 5 of 1969) (hereinafter referred to as the impugned
\nAct), was passed, which received the assent of the  Governor
\non April 4, 1969.\n<\/p>\n
\t      The impugned Act inter alia provides :
\n\t      “2.   Prevention\t of   disqualification\t  of
\n\t      membership of the State Legislative  Assembly.\n<\/p>\n
\t      (i)  It  is hereby declared that none  of\t the
\n\t      following\t offices,  in  so far as  it  is  an
\n\t      office  of profit under the  State  Government
\n\t      shall  disqualify or shall be deemed  ever  to
\n\t      have  disqualified  the  holder  thereof\tfrom
\n\t      being chosen as, or for being, a member of the
\n\t      Rajasthan Legislative Assembly, namely :-\n<\/p>\n
\t      (a)   the\t office of a Government\t Pleader  or
\n\t      Special Government Pleader or Advocate for the
\n\t      Government, appointed specially to conduct any
\n\t      particular  suit, case or other proceeding  by
\n\t      or  against the State Government,\t before\t any
\n\t      court,\ttribunal,   arbitrator\t or    other
\n\t      authority;\n<\/p>\n
\t      (b)   the\t office of a Government\t Pleader,  a
\n\t      Special Government Pleader or Advocate for the
\n\t      State   (Government  appointed  specially\t  to
\n\t      assist   the  Advocate   General,\t  Government
\n\t      Advocate\tor  Pleader, or\t Special  Government
\n\t      Pleader,\tor  Advocate for Government  in\t any
\n\t      particular  suit, case or other proceeding  by
\n\t      or  against  the State Government\t before\t any
\n\t      court,\ttribunal,   arbitrator\t or    other
\n\t      authority;\n<\/p>\n
\t      845<\/span><\/p>\n
\t      (2)   Notwithstanding any judgment or order of
\n\t      any  Court or Tribunal, the aforesaid  offices
\n\t      shall not disqualify or shall be deemed  never
\n\t      to  have disqualified the holders thereof\t for
\n\t      being chosen as, or for being, members of\t the
\n\t      Rajasthan Legislative Assembly as if this\t Act
\n\t      had  been in force on the date the  holder  of
\n\t      such   office filed his  nomination  paper for
\n\t      being  chosen  as a member  of  the  Rajasthan
\n\t      Legislative Assembly.”\n<\/p>\n
We may note another fact on which an argument is sought\t to;
\nbe  made by the learned Counsel for the appellant.   It\t was
\nalleged in the election petition that the appellant was\t a
\nclose  friend  of  one Shri Mathura Dass Mathur\t who  was  a
\nMinister  in  the  Slate of Rajasthan at  the  time  of\t the
\nelection, who contested elections as a\tcandidate    in\t   a
\nconstituency  different\t from that of  the  appellant.\tShri
\nMathur\tvisited\t the constituency during the  election\tvery
\nfrequently and during these visits the appellant accompanied
\nby  Shri Mathur visited several places in  the\tConstituency
\nwhere.Shri  Mathur in the presence of the appellant  offered
\nand promised to get several works done in those areas if the
\nelectors  were to cast votes for the appellant at’ the\tsaid
\nelection.    In\t spite\tof  these  allegations\tof   corrupt
\npractice, Shri Mathur was not made a party to the petition.
\nThe  learned Counsel for the appellant, Mr. Gupte,  contends
\nthat the High Court erred in holding that the appellant held
\nan  office of profit within the meaning of Art. 191<\/a>  of\t the
\nConstitution.\tIn  the\t alternative he\t contends  that\t the
\nRajasthan  Act\tNo.  5\tof 1969\t is  retrospective  and\t the
\ndisqualification if it existed, cannot now be deemed to have
\nexisted\t because of this Act.  The last point raised by\t him
\nis  that the petition was not in accordance with law as\t the
\nrespondent,  Shri Surana, had not impleaded Shri  Mathur  as
\nrespondent to the petition.\n<\/p>\n
The  facts  relevant for appreciating the  first  point\t are
\nthese
\nThe  appellant\twas  an\t advocate  at  all  material  times.
\nDisputes  arose between M\/s.  Modern  Construction,  Company
\nPrivate\t Ltd. and the State of Rajasthan in connection\twith
\nsome  works relating to the Rana Pratain Sagar\tDam.   These
\ndisputes  were referred to arbitration.\t Shri Murli  Manohar
\nVyas, Government Advocate in the High Court of Rajasthan  at
\nJodhpur\t was appointed by the Government to represent it  in
\nthese  arbitration  proceedings.   The\tGovernment  Advocate
\nwanted one more advocate to assist him.\t On his\t suggestion,
\nShri  Manak Lal Mathur advocate was appointed to assist\t the
\nGovernment  Advocate.  As there was a possibility that\tShri
\nManak Lal Mathur may not be available to
\n846<\/span>
\nhelp  the  Government Advocate, the appellant  was,  on\t the
\nsuggestion  of the Government Advocate, appointed to  assist
\nhim  in\t the ,absence of Shri Mathur.\tThis.  proposal\t was
\napproved by the Rajasthan Law Minister on March 30, 1965 and
\non  June 26, 1965, and the Government issued  the  following
\norder :-\n<\/p>\n
\t      “Sub  :-Construction of R.P.S. Main  Dam\tCon-
\n\t      tract of M\/s M.C.C. (PVT) Ltd.  Arbitration in
\n\t      dispute arising out of-\n<\/p><\/blockquote>\n
\t      In  pursuance of rule 8 (b) of Order XXVII  of
\n\t      the  First  Schedule  to\tthe  Code  of  Civil
\n\t      Procedure,  1908\tread  with  clause  (7)\t  of
\n\t      section 2 of the Code, the Governor is pleased
\n\t      to  appoint  Smt.\t  Kanta\t Kathuria  Advocate,
\n\t      Bikaner,\tas  Special  Government\t Pleader  to
\n\t      conduct the above noted case on behalf of\t the
\n\t      State  of\t Rajasthan along with  Shri  Manohar
\n\t      Vyas, Government Advocate Jodhpur.”\n<\/p><\/blockquote>\n
Later,\ton Sept. 3, 1965, the Government laid down the\tfees payab
\nle to the appellant.  It was stated in the order dated
\nSept.  3,  1965\t that” Smt.  Kanta  Kathuria  who  has\tbeen
\nappointed  to assist the Government advocate in the  absence
\nof  Shri Mathur will get her share of fee in  proportion  to
\nthe  assistance rendered by her out of the daily fee of\t Rs.
\n150\/- to Shri Manak Lal Mathur.”\n<\/p>\n
As Shri Manak Lal Mathur was not able to appear in the case,
\non  Nov.  18, 1965 the Governor sanctioned  the\t payment  of
\ndaily  fee  of Rs. 1501- to the appellant  instead  of\tShri
\nManak Lal Mathur, for days of actual hearing.  The appellant
\nappeared  from March 27, 1965 to November 28, 1966, but\t she
\ndid  not  appear from Nov. 29, 1966 to Feb. 25,\t 1967.\t She
\nagain started appearing in the case from February 26,  1967.
\nThe  appellant\tclaimed\t travelling  allowance,\t  incidental
\ncharges and daily allowance, but the Government decided that
\nthe  appellant was not entitled to any travelling  allowance
\nor daily allowance in addition to the fees.
\nBy  a notification, the Election Commission of India  called
\nupon  the electors of the Kolayat Assembly  Constituency  of
\nthe Rajasthan Legislative Assembly to elect a member to\t the
\nRajasthan Legislative Assembly and invited nomination papers
\nfor  the  elections to be held on February  18,\t 1967.\t The
\nappellant was declared duly elected by the Returning officer
\non,  February 22, 1967, the appellant having  secured  11926
\nand the respondent having secured 8311 votes.\n<\/p>\n
847<\/span><\/p>\n
\t      The  relevant  portion of Art.  191<\/a>  reads  as
\n\t      follows\n<\/p>\n
\t      191.  (1)\t A person shall be disqualified\t for
\n\t      being  chosen as, and for being, a  member  of
\n\t      the   Legislative\t Assembly   or\t Legislative
\n\t      Council of a State-\n<\/p>\n
\t      (a)   if\the holds any office of profit  under
\n\t      the  Government of India or the Government  of
\n\t      any  State  specified in the  First  Schedule,
\n\t      other   than   an\t office\t declared   by\t the
\n\t      Legislature  of  the  State  by  law  not\t  to
\n\t      disqualify its holder;\n<\/p>\n
\t      (e)   if he is so disqualified by or under any
\n\t      law made by Parliament.\n<\/p>\n
\t      (2)   For\t the  purposes of  this\t article,  a
\n\t      person  shall not be deemed to hold an  office
\n\t      of  profit under the Government of India\tor
\n\t      the  Government of any State specified in\t the
\n\t      First  Schedule  by reason only that he  is  a
\n\t      Minister\teither\tfor the Union  or  for\tsuch
\n\t      State.\n<\/p>\n
It seems to us that the High Court erred in holding that the
\nappellant  held\t an office.  There is no doubt that  if\t her
\nengagement   as\t Special  Government  Pleader  amounted\t  to
\nappointment  to an office, it would be an office  of  profit
\nunder the State Government of Rajasthan.  The word  ‘office’
\nhas  various  meanings\tand  we have to\t see  which  is\t the
\nappropriate  meaning  to  be ascribed to this  word  in\t the
\ncontext.   It  seems  to  us that  the\twords  ‘its  holder’
\noccurring in Art. 191 (1 ) (a<\/a>), indicate that there must  be
\nan  office which exists independently of the holder  of\t the
\noffice.\t Further, the very fact that the Legislature of\t the
\nState  has been authorised by Art. 191<\/a> to declare an  office
\nof  profit  not\t to  disqualify\t its  holder,\tcontemplates
\nexistence  of  an office apart from its\t holder.   In  other
\nwords,\tthe Legislature of a State is empowered\t to  declare
\nthat an office of profit of a particular description or name
\nwould  not disqualify its holder and not that  a  particular
\nholder of an office of profit would not be disqualified.
\nIt  seems  to  us that in  the\tcontext,  Justice  Rowlatt’s
\ndefinition  in Great Western Railway Company v. Bater(l)  is
\nthe  appropriate meaning to be applied to the word  ‘office’
\nin Art. 191<\/a> of the Constitution.\n<\/p>\n
Justice Rowlatt observed at page 235
\n\t      “Now it is argued, and to my mind argued\tmost
\n\t      forcibly,\t that shows that what those who\t use
\n\t      the
\n\t      (1)   8 Tax Cases 231.\n<\/p>\n
\t      848<\/span><\/p>\n
\t      language\tof the Act of 1842 meant, when\tthey
\n\t      spoke  of an office or an employment,  was  an
\n\t      office  or employment which was a\t subsisting,
\n\t      permanent, substantive position, which had  an
\n\t      existence\t independent  from  the\t person\t who
\n\t      filled  it;  which went on and was  filled  in
\n\t      succession  by successive holders; and if\t you
\n\t      merely  had a man who was engaged on  whatever
\n\t      terms,  to  do duties which were\tassigned  to
\n\t      him, his employment to do those duties did not
\n\t      create  an office to which those\tduties\twere
\n\t      attached.\t  He  merely  was  employed  to\t  do
\n\t      certain  things and that is an end of it;\t and
\n\t      if there was no office or employment  existing
\n\t      in  the case, as a thing the so-called  office
\n\t      or  employment was merely an aggregate of\t the
\n\t      activities of the particular man for the\ttime
\n\t      being.   And I think myself that is sound.   I
\n\t      am not going to decide that, because I think I
\n\t      ought not to in the state of the\tauthorities,
\n\t      but my own view is that the people in 1842 who
\n\t      used  this  language  meant by  an  office,  a
\n\t      substantive thing that existed apart from\t the
\n\t      holder.”\n<\/p>\n
\t      This definition was approved by Lord  Atkinson
\n\t      at page 246.\n<\/p>\n
\t      This   language  was  accepted  as   generally
\n\t      sufficient  by Lord Atkin and Lord Wright\t in-
\n\t      McMillan\tv. Guest (H.M. Inspector  of  Taxes)
\n\t      (1).  Lord Atkin observed at page 201 :-
\n\t      “There is no statutory definition of ‘office’.
\n\t      Without  adopting the sentence as\t a  complete
\n\t      definition,   one\t may  treat  the   following
\n\t      expression  of Rowlatt, J., in  Great  Western
\n\t      Railway  Co. v. Baler, [1920] 3 K.B., at\tpage
\n\t      274,  adopted by Lord Atkinson in\t that  case,
\n\t      [1922]  2\t A.C., at page 15,  as\ta  generally
\n\t      sufficient  statement  of the meaning  of\t the
\n\t      word  :  an office or employment which  was  a
\n\t      subsisting,  permanent, substantive  position,
\n\t      which  had  an existence\tindependent  of\t the
\n\t      person  who  filed it, which went on  and\t was
\n\t      filled in succession by successive holders.”
\n\t      Lord Wright at page 202 observed
\n\t      “The  word ‘office’ is of indefinite  content;
\n\t      its various meanings cover four columns of the
\n\t      New English Dictionary, but I take as the most
\n\t      relevant\t for  purposes\tof  this  case\t the
\n\t      following : A position or place to which\tless
\n\t      public   character.   This,  I  think,   rough
\n\t      corresponds   with   such\t approaches   to   a
\n\t      definition as have
\n\t      (1)   24 Tax Cases 190.\n<\/p>\n
\t      849<\/span><\/p>\n
\t      been   attempted\t in  the   authorities,\t  in
\n\t      particular   Great  Western  Railway  Co.\t  v.
\n\t      Abater, [1922] 2 A.C. I…… where the  legal
\n\t      construction of these words, which had been in
\n\t      Schedule\tE since 1803 (43 Geo. 111,  c.\t122,
\n\t      Section 175<\/a>), was discussed.”\n<\/p>\n
\t      In  Mahadeo v. Shantibhai & Ors<\/a>.(1)-Mitter  J.
\n\t      speaking for this Court, quoted with  approval
\n\t      the  definition of Lord Wright.  In  our\tview
\n\t      there  is no essential difference between\t the
\n\t      definitions  given  by Lord  Wright  and\tLord
\n\t      Atkin.   The  Court of Appeal in the  case  of
\n\t      Mitchell\tv.  Ross(2), thought that  both\t the
\n\t      noble  and  learned  Lords  had  accepted\t the
\n\t      language\temployed by Rowlatt J. as  generally
\n\t      sufficient.  In Mahadeo’s case(1), this  Court
\n\t      was dealing with a panel of lawyers maintained
\n\t      by the Railway Administration and the  lawyers
\n\t      were expected to watch cases.  Clause (13)  of
\n\t      the terms in that case read as follows :-
\n\t      “You will be expected to watch cases coming up
\n\t      for  hearing  against  this  Railway  in\t the
\n\t      various\tcourts\tat  UJB\t and   give   timely
\n\t      intimation of the same to this office.  If  no
\n\t      instructions regarding any particular case are
\n\t      received\tby  you,  you will  be\texpected  to
\n\t      appear in the court and obtain an\t adjournment
\n\t      to save the ex-parte proceedings against\tthis
\n\t      Railway  in the court.  You will be  paid\t Rs.
\n\t      51- for every such adjournment if you are\t not
\n\t      entrusted\t with the conduct of the suit  later
\n\t      on.”\n<\/p>\n
\t      That case in no way militates against the view
\n\t      which  we have taken in this case.  That\tcase
\n\t      is  more like the case of a  standing  Counsel
\n\t      disqualified  by the House of Commons.  It  is
\n\t      stated  in  Rogers [on Elections\tVol.  [1]-at
\n\t      page 10 :-\n<\/p>\n
\t      “However,\t in the Cambridge case\t(121  Journ.\n<\/p>\n
\t      220),  in 1866, the return of Mr. Forsyth\t was
\n\t      avoided  on  the\tground that he\theld  a\t new
\n\t      office  of profit under the Crown, within\t the
\n\t      24th section.  In the scheme submitted to\t and
\n\t      approved\t by  Her  Majesty  in  Council\t was
\n\t      inserted the office of standing counsel with a
\n\t      certain  yearly payment (in the scheme  called
\n\t      ‘salary’)\t affixed  to it, which\tMr.  Forsyth
\n\t      received,\t in  addition to the usual  fees  of
\n\t      counsel.\tThe Committee avoided the return.
\n\t      It  is urged that there can be no\t doubt\tthat
\n\t      the  Government  Pleader holds an\t office\t and
\n\t      there  is no reason why a person\twho  assists
\n\t      him in the case should also not be treated  as
\n\t      a holder of\n<\/p>\n
\t      1)    [1969] 2 S.C.R. 422
\n\t      (2)   [1960] 2 All E.R. 238
\n\t      850<\/span>
\n\t      office,\tspecially   as\t the\tnotification
\n\t      appointed the appellant as Special  Government
\n\t      Pleader.\t We  see no force in  these  conten-
\n\t      tions.\n<\/p>\n
\t      Rule  8B.\t of  Order 27, C.P.  Code  reads  as
\n\t      follows :7-\n<\/p>\n
\t      “In  this\t Order\tunless\totherwise  expressly
\n\t      provided ‘Government’ and ‘Government  leader’
\n\t      mean respectively-\n<\/p>\n
\t      (a)   in\trelation to any suit by\t or  against
\n\t      the  Central  Government or against  a  public
\n\t      officer in the service of that Government, the
\n\t      Central  Government and such pleader  as\tthat
\n\t      Government  may appoint whether  generally  or
\n\t      specially for the purposes of this Order;\n<\/p>\n
\t      (c)   in relation to any suit by, or against a
\n\t      State  Government or against a public  officer
\n\t      in   the\tservice\t of  a\tState,\t the   State
\n\t      Government  and  the  Government\tpleader,  as
\n\t      defined in Clause 7 of Section 2<\/a> or such other
\n\t      pleader  as the State Government may  appoint,
\n\t      whether\tgenerally  or  specially,  for\t the
\n\t      purposes of this Order.”\n<\/p>\n
\t      This rule defines who shall be deemed to be  a
\n\t      Government  Pleader  for the  purpose  of\t the
\n\t      Order.   ‘Government  Pleader’ is\t defined  in
\n\t      Sec. 2 of Clause (7) C.P. Code thus-\n<\/p>\n
\t      “(7) ‘Government Pleader’ includes any officer
\n\t      appointed\t by the State Government to  perform
\n\t      all or any of the functions expressly  imposed
\n\t      by  this\tCode on the Government\tPleader\t and
\n\t      also  any pleader acting under the  directions
\n\t      of the Government Pleader :”\n<\/p>\n
\t      It  follows from reading Order 27 rule 8B\t and
\n\t      Clause  (7) of Sec. 2 C.P. Code together\tthat
\n\t      even  if\ta pleader who is  acting  under\t the
\n\t      directions of the Government Pleader would  be
\n\t      deemed  to  be a Government  Pleader  for\t the
\n\t      purpose of Order 27.  Therefore, no particular
\n\t      significance can be attached to the  notifica-
\n\t      tion   made  under  rule\t8B  appointing\t the
\n\t      appellant\t as Special Government Pleader.\t  We
\n\t      cannot   visualise  an  office   coming\tinto
\n\t      existence,  every time a pleader is  asked  by
\n\t      the  Government  to appear in a  case  on\t its
\n\t      behalf.\tThe notification of his\t name  under
\n\t      rule  8B, does not amount to the. creation  of
\n\t      an Office’.  Some reliance was also placed  on
\n\t      rule  4 of Order 27 C.P. Code, which  provides
\n\t      that
\n\t      “The Government Pleader in any Court shall  be
\n\t      the agent of the Government for the purpose of
\n\t      receiving
\n\t      851<\/span>
\n\t      processes\t against  the Government  issued  by
\n\t      such Court.”\n<\/p>\n
This rule would not apply to the facts of this case  because
\nthe  appellant was appointed only to assist  the  Government
\nAdvocate in a particular case.\tAssuming it applies, it only
\nmeans  that processes could be served on the appellant,\t but
\nprocesses can be served on an Advocate under Rule 2 of Order
\nXLV  of the Supreme Court Rules, 1966.\tThis does  not\tmean
\nthat  an Advocate on Record would hold an office  under\t the
\nclient.\n<\/p>\n
The  learned Counsel for the respondent, Mr.  Chagla,  urges
\nthat we should keep in view the fact that the object  under-
\nlying Art. 191<\/a> of the Constitution is to preserve purity  of
\npublic\tlife and to prevent conflict of duty  with  interest
\nand give an interpretation which will carry out this object.
\nIt  is\tnot  necessary to give a wide meaning  to  the\tword
\n“office”   because  if\tParliament  thinks  that   a   legal
\npractitioner  who  is  being  paid fees in  a  case  by\t the
\nGovernment should not be qualified to stand for an  election
\nas  a Member of Legislative Assembly, it can make that\tpro-
\nvision under Art. 191 (1) (e)<\/a> of the Constitution.
\nThe case of Sakhawat Ali v. The State of Orissa<\/a>(1)  provides
\nan instance where the Legislature provided that a paid legal
\npractitioner should not stand in the municipal elections.
\nIn  view  of  the  above reasons,  we  must  hold  that\t the
\nappellant  was not disqualified for election under Art.\t 191<\/a>
\nof  the Constitution.  But assuming that she held an  office
\nof   profit,   this  disqualification\thas   been   removed
\nretrospectively\t by  the Rajasthan Legislative\tAssembly  by
\nenacting the impugned Act.\n<\/p>\n
Mr.  Chagla,  learned Counsel for the  respondent,  contends
\nthat  the Rajasthan State Legislature was not competent\t ‘to
\ndeclare\t retrospectively’  under  Art. 191 (1)\t(a)<\/a>  of\t the
\nConstitution.  It seems to us that there is no force in this
\ncontention.   It  has been held in numerous  cases  by\tthis
\nCourt  that  the  State\t Legislatures  and  Parliament\t can
\nlegislate  retrospectively subject to the provisions of\t the
\nConstitution.\tApart  from  the  question  of\t fundamental
\nrights, no express restriction has been placed on the  power
\nof the Legislature of the State, and we are unable to imply,
\nin  the context, any restriction.  Practice of\tthe  British
\nParliament   does  not\toblige\tus  to\tplace  any   implied
\nrestriction.   We notice that the British Parliament in\t one
\ncase validated the election : [Erskine May’s Treatise on the
\nLaw,\t  Privileges\t Proceedings\t &     Usage\t  of
\nParliament–Seventeenth (1964) Edition]-\n<\/p>\n
\t      “After  the  general election of 1945  it\t was
\n\t      found   that  the\t persons  elected  for\t the
\n\t      Coatbridge Division of
\n\t      (1)   [1955] 1 S.C.R. 1004.\n<\/p><\/blockquote>\n
\t       SupCI-9
\n\t      852<\/span>
\n\t      Lanark   and  the\t Springbourn   Division\t  of
\n\t      Glassgow\twere  disqualified at  the  time  of
\n\t      their  election because they were\t members  of
\n\t      tribunals appointed by the Minister under\t the
\n\t      Rent  of Furnished Houses\t Control  (Scotland)
\n\t      Act, 1943, which entitled them to a small\t fee
\n\t      in  respect  of attendance at a  Tribunal.   A
\n\t      Select\tCommittee    reported\t that\t the
\n\t      disqualification\twas incurred  inadvertently,
\n\t      and  in accordance with  their  recommendation
\n\t      the   Coatbridge\tand   Springburn   Elections
\n\t      (Validation)  Bill was introduced to  validate
\n\t      the  irregular elections [H.C. Deb.  (1945-46)
\n\t      414,  c.\t564-6]. See  also  H.C.\t 3(1945-46);
\n\t      ibid. 71 (1945-46) and ibid.92 (1945-46).”\n<\/p><\/blockquote>\n
We have also noticed two earlier instances of  retrospective
\nlegislation,  e.a., The House of Commons  (Disqualification)
\n1813 [Halsbury Statutes of England p. 467] and Sec. 2 of the
\nRe-election of Ministers Act, 1919 (ibid. p. 515).
\nGreat  t  stress  was laid on the word\t‘declared’  in\tArt.
\n191(1) (a<\/a>), but we are unable to imply any limitation on the
\npowers\tof the Legislature from this word.  Declaration\t can
\nbe made effective as from an earlier date.
\nThe  apprehension that it may not be a healthy practice\t and
\nthis power might be abused in a particular case are again no
\ngrounds for limiting the powers of the State Legislature.
\nIt is also urged that by enacting the impugned Act the State
\nLegislature  has  amended the 1951 Act.\t We  are  unable  to
\nappreciate  this  contention.\tThe  State  Legislature\t has
\nexercised  its\tpowers under Art. 191<\/a> to declare  a  certain
\noffice\tnot  to\t have ever  disqualified  its  holder.\t The
\nimpugned  Act does not amend or alter the 1951 Act,  in\t any
\nrespect\t whatsoever.  It is said that under the 1951 Act  as
\nit existed before the impugned Act was passed, the appellant
\nwas not qualified to be chosen for this particular election.
\nBy    enacting\t  the\timpugned   Act\t  the\t appellant’s
\ndisqualification has been removed and the 1951 Act is, so to
\nsay, made to speak with another voice.\tBut that is what the
\nState Legislature is entitled to do, as long as it does\t not
\ntouch the wording of the 1951 Act.  The answer given by\t the
\n1951-Act  may be different but this is because the facts  on
\nwhich it operates have by valid law been given a  different
\ngarb.\n<\/p>\n
It  is further urged that the-impugned Act violates Art.  14<\/a>
\nof  the\t Constitution because the Central  Government  might
\nhave appointed Government Pleaders under rule 8B of Order 27
\nand  the impugned Act nowhere mentions the  alleged  offices
\nheld by
\n853<\/span>
\nthem.  No  material has been placed to show  that  any\tsuch
\noffices exist.\tWe cannot, therefore, entertain this  point.
\nIn view of the above reasons We are of the opinion that\t the
\nimpugned Act is valid and removes the disqualification if it
\nexisted before.\n<\/p>\n
There  is  force in the third point raised  by\tthe  learned
\ncounsel for the appellant.  Section 82<\/a> of the Representation
\nof the People Act, 1 of 1951, reads as follows
\n\t      “81. A petitioner shall join as respondents to
\n\t      his petition-\n<\/p>\n
\t      (a)   where  the\tpetitioner, in\taddition  to
\n\t      claiming\ta ,declaration that the election  of
\n\t      all or any of the returned candidates is void,
\n\t      claims  a further declaration that be  himself
\n\t      or any other- candidate has been duly elected.
\n\t      all  the contesting candidates other than\t the
\n\t      petitioner   and\t where\t no   such   further
\n\t      declaration  is  claimed,\t all  the   returned
\n\t      candidates; and\n<\/p>\n
\t      (b)   any\t  other\t  candidate   against\twhom
\n\t      allegations  of any corrupt practice are\tmade
\n\t      in the petition.\n<\/p>\n
In this context the words ‘any other candidate’ plainly mean
\na  candidate in the election for the constituency  which  is
\nthe subject matter of the petition.\n<\/p>\n
In  the\t result the appeal is allowed, the judgment  of\t the
\nHigh  Court  set aside and the petition dismissed.   In\t the
\ncircumstances  of the case the parties will bear  their\t own
\ncosts throughout.\n<\/p>\n
V.P.S.\t\t\t   Appeal allowed.\n854<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kanta Kathuria vs Manak Chand Surana on 16 October, 1969 Equivalent citations: 1970 AIR 694, 1970 SCR (2) 835 Author: M Hidayatullah Bench: Hidayatullah, M. (Cj), Sikri, S.M., Mitter, G.K., Ray, A.N., Reddy, P. Jaganmohan PETITIONER: KANTA KATHURIA Vs. RESPONDENT: MANAK CHAND SURANA DATE OF JUDGMENT: 16\/10\/1969 BENCH: HIDAYATULLAH, M. (CJ) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-258140","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKanta Kathuria vs Manak Chand Surana on 16 October, 1969 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kanta-kathuria-vs-manak-chand-surana-on-16-october-1969\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kanta Kathuria vs Manak Chand Surana on 16 October, 1969 - 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