Kailash Nath v. Girdhar Sharma — 1965 DIGILAW 143 (RAJ)

JAGAT NARAYAN, J.—This is an appeal by one Kailash Nath under sec. 46 of the Rajasthan Municipalities Act, 1959 against an order of the District Judge, Alwar, dismissing his election petition challenging the validity of the election of Girdhar Sharma to ward No. 5 of the Alwar Municipal Council. 2. The sole ground on which this appeal has been pressed is that Girdhar Sharma was disqualified from being chosen as a member of the Municipal Council under sec. 26(viii) of the Act as he "holds a salaried or part time appointment under the State Government." 3. I have heard the learned counsel for the parties and have perused the evidence on record. It is abundantly proved from the evidence on record that Girdhar Sharma alias Girdhari Lal was appointed as Pujari of two temples in the ear 1941 on the death of his father Bala Sahai alias Ganga Lahari. Two documents Ex. 1 P. W. 3 and Ex. A. 1 are relevant in this connection. They go to show that 10 bighas 12 biswas Pukhta (— 15 bighas Kham) Muafi land was granted to Girdhar Sharma and his predecessors. The following cash grants were also granted: (1) Rs. 7-10-0 per month Hanumanjis temple. (2) Rs. 2-0-0 per month Mahadeojis temple Bhuteshwarji. (3) Rs. 3-12-0 per month Mahadeojis temple Mehandibagh. It has also been satisfactorily established that Punnya Rules Alwar 1931 were enforced by the then State of Alwar and continued to remain in force up to this day. These rules were framed by the then Ruler. Under clause 2 of the Rules it was necessary to notify them in the State Gazette before they could come into force. The administration Reports of the Alwar State for the years 1930-31, 1938-39, 1939-1940 and 1940-1941 go to show that these Rules were in force in those years. There is a presumption that the Rules were duly notified in the State Gazette. 4. The Rules continued to remain in force under the Rajasthan Administra-tion Ordinance No. 1 of 1949 as existing law. 5. Some rules were framed by the Government of Rajasthan under Revenue Department (A) Notification No. D. 12065//F. II (12) Dev./BA/57, dated November 18, 1958 styled "Rules for the cash grant-in-aid to temples and other religious and charitable institutions in Rajasthan." These rules are not statutory rules. They cannot have the effect of repealing the Punnya Rules 1931. 6. 5. Some rules were framed by the Government of Rajasthan under Revenue Department (A) Notification No. D. 12065//F. II (12) Dev./BA/57, dated November 18, 1958 styled "Rules for the cash grant-in-aid to temples and other religious and charitable institutions in Rajasthan." These rules are not statutory rules. They cannot have the effect of repealing the Punnya Rules 1931. 6. Under clause 4 of the Punnya Rules grants are divided as follows: (a) Bhog Kharch which includes annual or monthly cash grants or landed property for expenses - and maintenance of any temple, mosque, or church, (b) Udak Mafi which includes grants either cash or land assigned to any particular person for his own expenses or for any charity defined in the Sanad. In Ex.A-1 it was mentioned clearly when the grant of land was first made in favour of Jugal Brahmin that it was a Bhog Kharch grant. So far as cash grants are concerned it is mentioned clearly in Ex. A-l that they are Bhog Kharch grants. The grants which Girdhar Sharma is receiving are therefore not Udak grants. They are Bhog Kharch grants which are intended for being spent on the maintenance of the temples. It cannot therefore be said that Girdhar Sharma is in receipt of any salary from the State. 7. There is no evidence on record to show that Girdhar Sharma derives any profit from the office of Pujari which he is holding. The Bhog Kharch grant which he is receiving cannot be regarded as a profit or remuneration yielded by his office as it is meant to be spent on the temple. In this connection I may refer to the decision of their Lordships of the Supreme Court in Ravanna Subanna Vs. G.S. Kaggarappa (1). In that case the person who was elected was holding the office of Chairman of Gubbi Taluk Development Committee. There was no dispute that this office was an office under the Government. The question which arose for determination was whether it was an office of profit. The Chairman did not receive any remuneration, but he was entitled to a fee of Rs. 6/— for each sitting of the Committee which he attended. It was observed:— "The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments or allowance is attached. The Chairman did not receive any remuneration, but he was entitled to a fee of Rs. 6/— for each sitting of the Committee which he attended. It was observed:— "The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments or allowance is attached. The word "profit" connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit............From the facts stated above, we think it can reasonably be inferred that the fee of Rs. 6/- which the non official Chairman is entitled to draw for each sitting of the committee, he attends, is not meant to be a payment by way of remuneration or profit, but it is given to him as a consolidated fee for the out-of-pocket expenses which he has to incur for attending the meetings of the committee. We do not think that it was the intention of the Government which created these Taluk Development Committees which were to be manned exclusively by non-officials; that the office of the Chairman or of the members should carry any profit or remuneration." 8. There can however be no doubt that Girdhar Sharma holds an office of appointment under the State Government. Clause 11 of the Punnya Rules provides that Pujaris will be appointed by Government. Clause 6 provides for selection of candidates for appointment as Pujaris. Clause 7 provides for holding an examination of such candidates. Clause 13 lays down that the Pujaris shall be liable to dismissal by Government. 9. In Hansajivraj Mehta Vs. Indubhai B. Amin (2) the question arose whether the Vice-Chancellor of the Baroda University was holding an office under the State Government. The Vice-Chancellor was appointed by the Government and was liable to be removed by the Government by virtue of sec. 16 of the General Clauses Act. The remuneration was however paid to her out of the funds of the University and not out of the revenue of the State. It was held that she was holding an office under the State. 10. The above decision was approved in Dr. Deorao Laxman Anande Vs. Keshav Laxman Borkar (3). 16 of the General Clauses Act. The remuneration was however paid to her out of the funds of the University and not out of the revenue of the State. It was held that she was holding an office under the State. 10. The above decision was approved in Dr. Deorao Laxman Anande Vs. Keshav Laxman Borkar (3). The question which arose was whether the insurance medical practitioner under the Employees State Insurance Act 1948 was holding an office under the State Government. The State Government was the appointing authority as well as the removing authority for such medical practitioners. He received part of his remuneration out of the State revenue. It was held that he was holding an office Under the Government. It was observed that the principal tests for deciding whether an office is under the Government are, (1) what authority has the power to make an appointment to the office concerned, (2) what authority can take disciplinary action and remove or dismiss the holder of the office and (3) by whom and from what source is his remuneration paid. Of these, the first two are more important than the third one. 11. In Hotilal Vs. Shri Raj Bahadur (4), it was held that an oath commissioner appointed in civil court under General Rules ( Civil ) held an office under the Government as he was appointed by an officer of the State Government and was removable from his office by such an officer. 12. In Gobinda Basu Vs. Sankari Prasad(5) the question arose whether the auditor of the Hindustan Steel Ltd. or Durgapur Projects Ltd. was holding an office under the Government. These two are Government companies all the shares of which are held by Government. The appointment of an auditor of Government companies rests solely with the Central Government. It was held by their Lordships of the Supreme Court that the auditor held an appointment under the Central Government. They referred to their earlier decision in M. Ramappa vs. Sangappa (6) in which the question arose as to whether the holder of a village office who has a hereditary right to it is disqualified under Art.191 of the Constitution, which is the counter-part of Art.102, in the matter of membership of the State Legislature. They referred to their earlier decision in M. Ramappa vs. Sangappa (6) in which the question arose as to whether the holder of a village office who has a hereditary right to it is disqualified under Art.191 of the Constitution, which is the counter-part of Art.102, in the matter of membership of the State Legislature. It was observed therein:— "The Government makes the appointment to the office though it may be that it has under the statute no option but to appoint the heir to the office if he has fulfilled the statutory requirements. The office is therefore, held by reason of the appointment by the Government and not simply because of a hereditary right to it. The fact that the Government cannot refuse to make the appointment does not alter the situation." 13. With regard to the above decision their Lordships observed that the decisive test was held to be the test of appointment. They further observed— "In view of these decisions we cannot accede to the submission of Mr. Chaudhuri that the several factors which enter into the determination of this question the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf—must all co-exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is absent, the test of a person holding an office under the Government, Central or State is not satisfied. The cases we have referred to specifically point out that the circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor not decisive of the question. As we have said earlier whether stress will be laid on one factor or the other will depend on the facts of each case." 14. It will thus be seen that the decisive test is the test of appointment. The appointing authority is generally competent to suspend, remove or dismiss the person and has control over him. I accordingly hold that Girdhar Sharma held an appointment under the State Government. It was not a salaried appointment. It was an unsalaried or honorary appointment. It will thus be seen that the decisive test is the test of appointment. The appointing authority is generally competent to suspend, remove or dismiss the person and has control over him. I accordingly hold that Girdhar Sharma held an appointment under the State Government. It was not a salaried appointment. It was an unsalaried or honorary appointment. There was no rule governing Girdhar Sharma prohibiting him from carrying on any other business. He must therefore be regarded as holding a part-time appointment under the State Government. 15. The last question which falls for determination is as to whether the case of Girdhar Sharma falls under cl. (viii) of sec. 26 which runs as follows— "A person, notwithstanding that he is otherwise qualified, shall not be disqualified for being chosen as a member of a board— (viii) Who holds a salaried or part-time appointment under the Central or State Government or a local authority." The contention on behalf of the respondent is that on account of an accidental omission the expression "whole time" has been left out in drafting the Bill and this omission was not noticed by the Legislature at the time of passing the Act. According to him the clause should read— "who holds a salaried whole-time or part-time appointment under the Central or State Government or a local authority." Under the Rajasthan Town Municipalities Act, 1951 the corresponding disqualification was worded as follows— "Sec. 12. General disqualifications for becoming A Member—(1) No person may be a member of a Municipal Board— .................................................................................................... (vii) who holds a salaried appointment under the Government or a local authority." 16. In the Bill which was introduced in the Legislature in 1957 the proposed corresponding clause ran as follows— "Who holds a salaried or honorary or part-time appointment under the Central or State Government or a local authority." It is pointed out that the expression "whole time" was omitted from the Bill accidentally. The intention was to widen the scope of disqualification by including Salaried and honorary as well as whole-time and part-time appointees. 17. The report of the authorised proceedings of the Rajasthan Assembly Part IV No. 20, dated 27th November, 1958 was produced, which goes to show that Dr. The intention was to widen the scope of disqualification by including Salaried and honorary as well as whole-time and part-time appointees. 17. The report of the authorised proceedings of the Rajasthan Assembly Part IV No. 20, dated 27th November, 1958 was produced, which goes to show that Dr. Bahadur Singh moved an amendment to the effect that the word "honorary" should be deleted from the clause so that a person holding an honorary post under the Central or State Government may not be disqualified. This amendment was supported by Shri P.K. Chaudhry, Sri Purshottam Lal Sharma and Shri Moolchand Daga and the amendment was accepted by the Minister-in-charge. A copy of the relevant part of the proceedings of the Legislature has been filed on behalf of the respondent. 18. It is argued that it is clear from the above proceedings that the Legislature did not intend to disqualify persons holding honorary post. 19. Lastly it was pointed out on behalf of the respondent that both in the Rajasthan Panchayat Act, 1953 and the Rajasthan Panchayat Samitis and Zila Pari-shads Act, 1959 which were enacted by the same Legislature the corresponding disqualification is worded holds a salaried whole time or part-time appointment under the Central Government or a State Government or local authority"—Sec. 11(a) of the Panchayat Act, 1953 and sec.15 (a) of the Rajasthan Panchayat Samitis and Zila Parishads Act. 20. On behalf of the appellant it is contended that the proceedings of the Legislature cannot be referred to. Reliance is placed on the decision of their Lordships of the Supreme Court in the State of Travancore-Cochin vs. Bombay Co. Ltd. (7). In the present case the proceedings of the Legislature have been referred to in order to show the historical back-ground of the above clause. It is permissible to refer to the proceedings of the Legislature for this purpose as was held by Kania C.J. In Gopalan vs. State of Madras (8) in para 17 which runs as follows— "Our attention was drawn to the debates and report of the drafting committee of the Constituent Assembly in respect of the wording of this clause. The report may be read not to control the meaning of the Article, but may be seen in case of ambiguity. In Municipal Council of Sydney vs. Commonwealth—(1904) 1 Com. The report may be read not to control the meaning of the Article, but may be seen in case of ambiguity. In Municipal Council of Sydney vs. Commonwealth—(1904) 1 Com. L.R. 208—it was thought that individual opinion of members of the Convention expressed in the debate cannot be referred to for the purpose of construing the Constitution. The same opinion was expressed in United States vs. Wong Kim Ark—169 U.S. 649 at p. 699. The result appears to be that while it is not proper to take into consideration the individual opinions of members of Parliament or Convention to construe the meaning of the particular clause, when a question is raised whether a certain phrase or expression was up for consideration at ail or not, a reference to the debates may be permitted. In the present case the debates were referred to show that the expression "due process of law" was known to exist in the American Constitution and after a discussion was not adopted by the Constituent Assembly in our Constitution. In Administrator-General of Bengal vs. Premlal Mullick—22 I.A. 107; (22 Cal. 788 P.C.), a reference to the proceedings of the Legislature which resulted in the passing of the Act was not a particular section. The same reasons were held as cogent for excluding a reference to such debates in construing an Indian Statute. Resort may be had to these sources with great caution and only when latent ambiguities are to be resolved. See Craies Statute Law, (Edn. 4) p. 122, Maxwell on Interpretation of Statutes (Edn. 9) Pages 28-29 and Crawford on Statutory Construction (1940 Edn.) p. 379, Art. 214. A perusal of the report of the drafting committee to which our attention was drawn shows clearly that the Constituent Assembly had before it the American Article and the expression "due process of law" but they deliberately dropped the use of that expression from our Constitution." 21. On behalf of the appellant the following decisions were also referred to— Hira Devi vs. Dist. Board, Shahjahanpur (9), Nalinakhya vs. Shyam Sunder (10), Shri Ram Ram Narain vs. State of Bombay (11) and Firm Hansraj vs. Firm Lalii Raja & Sons (12) and it was contended on their basis that it is not open to the Court to supply the omission. In my opinion the facts of those cases are distinguishable. Board, Shahjahanpur (9), Nalinakhya vs. Shyam Sunder (10), Shri Ram Ram Narain vs. State of Bombay (11) and Firm Hansraj vs. Firm Lalii Raja & Sons (12) and it was contended on their basis that it is not open to the Court to supply the omission. In my opinion the facts of those cases are distinguishable. The language of the statute was clear and unambiguous and there was nothing to show with certainty that the intention of the Legislature was different. In the present case the language itself goes to show that an omission has been made. The expression "salaried" cannot be used in contradistinction to the expression "part-time appointment." The language is thus ambiguous and the historical back-ground of the enactment of this law goes to show that it was clearly the intention of the Legislature not to disqualify persons holding honorary posts under the Government. The Legislature intended to disqualify only salaried whole-time or part-time appointees. 22. I accordingly hold that as Girdhar Sharma did not hold a salaried appointment he was not disqualified. The appeal is dismissed. In the circumstances of the case, I direct that parties shall bear their own costs of it.