J. M. SHETH, J. ( 1 ) [ The Honble Court after discussing the facts of the case further observed :] ( 2 ) THE main controversy in this election petition centres round the question whether it could be said that respondent No. 1 was holding an office of profit under Government of Gujarat at the material time. It is the petitioners contention that at the relevant time respondent No. 1 was the Secretary of Agricultural Produce Market Committee Amreli. He was a paid servant. ( 3 ) THE petitioner has been examined as petitioners witness No. 1. In this behalf his evidence is that he had heard that at the time of filing of his nomination paper respondent No. 1 was working as a Secretary of Agricultural Produce Market Committee Amreli. Lathi-Lilia Constituency forms part of Amreli District. He had also heard that respondent No. 1 was getting some salary as a Secretary of the said Committee. He was not actually working in that post but he heard that he continued to hold that post at the time of filing of his nomination paper. It is significant to note that the Petitioner had called for the record of that committee in this proceeding. Ultimately for the reasons best known to him he has not chosen to examine the accountant who was named by him in the list of witnesses. It is significant to note at this stage that respondent No. 1s case was that he was on leave and subsequently on 10th March 1972 he had given his resignation and that was accepted by the Chairman of the Agricultural Produce Market Committee Amreli with retrospective operation. It was on that basis that his contention was that at the relevant time even he cannot be said to be holding an office of the Secretary of the Agricultural Produce Market Committee Amreli and consequently no question arises for consideration whether he was holding any office of profit under the Government of Gujarat State. It was on that basis that his contention was that at the relevant time even he cannot be said to be holding an office of the Secretary of the Agricultural Produce Market Committee Amreli and consequently no question arises for consideration whether he was holding any office of profit under the Government of Gujarat State. ( 4 ) IT is not necessary to enter into that controversy as this contention raised on behalf of the petitioner regarding this disqualification can be decided on the position of law itself-Article 191 of the Constitution of India material for our purposes reads:19 (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 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. State of Gujarat is specified in the first Schedule of the Constitution. It is also equally true that respondent No. 1s case does not fall within the purview of the provisions of The Gujarat Legislative Assembly Members (Removal of Disqualifications) Act 1960 (Gujarat Act No. 1 of 1960 ). The broad question therefore that survives for consideration is whether respondent No. 1 who was secretary of Agricultural Produce Market Committees Amreli was holding any office of profit under the Government of Gujarat State. ( 5 ) TO appreciate the arguments advanced at the Bar in this behalf and to decide the aforesaid question it is necessary to refer to a few relevant and material provisions of The Gujarat Agricultural Procedure Markets Act 1963"director "has been defined in sec. 2 (vi) as under: " director means the Director of Agricultural Marketing and Rural Finance Gujarat State. " "market" has been defined in sec. 2 (xii) as under: "market means a market declared or deemed to be declared under this Act. " "market area" has been defined in sec. 2 (xiii) as under: "market area means any are declared or deemed to be declared to be a market area under this Act" " Market Committee" has been defined in sec. 2 (iv) as under: "market Committee means a market committee established or deemed to be established under this Act. " Word "prescribed "has been defined in sec. 2 (xiii) as under: "market area means any are declared or deemed to be declared to be a market area under this Act" " Market Committee" has been defined in sec. 2 (iv) as under: "market Committee means a market committee established or deemed to be established under this Act. " Word "prescribed "has been defined in sec. 2 (vi) as under: "prescribed means prescribed by rules made under sec. 59. " the word rules has been defined in sec. 2 (xix) as under: "rules means rules made under sec. 59. The word "secretary" has been defined in sec. 2 (xx) as under: "secretary means a Secretary of a market committee appointed under this Act. " ( 6 ) SEC. 9 deals with Establishment of Market Committee or Committees. Sub-sec. (1) of it states:" (1) Save as otherwise provided in sub-secs. (2) and (3 ). the Director shall establish a market committee for every market area. " sub-sec. (5) of it reads: " (5) Every market committee shall be deemed to be established under this with effect from the date on which it is duly constituted for the first time under sec 11" Sec. 10 which is very material for our purposes reads: " (1) Every market committee shall be a body corporate by such name as the Director may specify by notification in the Official Gazette. It shall have perpetual succession and a common seal may sue and be sued in its corporate name and shall be competent to acquire hold lease sell or otherwise transfer property to raise loans upon the security of its property in the manner and subject to the limits and other requirements including guarantees prescribed by rules and to contract and to do all other things necessary for the purposes for which it is established. " this section on its plain reading reveals that such market committee is a statutory corporate body. ( 7 ) SEC. 11 deals with Constitution of Market Committee. " this section on its plain reading reveals that such market committee is a statutory corporate body. ( 7 ) SEC. 11 deals with Constitution of Market Committee. It reads:" (1) Every market committee shall consist of the following members namely: (i)eight agriculturists who shall be elected by members of managing committees of co-operative societies (other than co-operative marketing societies) dispensing agricultural credit in the market area; (ii) four members to be elected in the prescribed manner from amongst themselves by the traders holding general licenses; (iii) two representatives of the Co-operative marketing societies situate in the market area and holding general licenses to be elected from amongst the members (other than nominal associate or sympathiser members) of such societies by the members of the managing committees of such societies: provided that where the number of co-operative marketing societies so situate does not exceed two only one representative shall be so elected; (iv) one member to be nominated by the local authority (other than the market committee) within whose jurisdiction the principal market yard is situated from amongst its councilors or as the case may be members who do not hold any general - licence: provided that where under the law applicable to the local authority its councilors or members have vacated office and any person or administrator has been appointed to exercise the powers and perform the functions of the local authority such person or as the case may be administrator shall nominate a member under this paragraph from amongst persons qualified to be councilors or members of the local authority and not holding a general licence; (v) two members to be nominated by the State Government; Provided that when a market committee is constituted for the first time all the members thereof shall be persons nominated by the State Government and shall hold office for a period of two years from the date of their nomination. . . . . . . . ( 8 ) SEC. 13 deals with Liability of members of market committee to removal from office. . . . . . . . ( 8 ) SEC. 13 deals with Liability of members of market committee to removal from office. It reads:" (1) The Director may on the recommendation of the market committee supported by at least two-thirds of the whole number of members by an order remove any member of the market committee elected or nominated under this Act if after holding such inquiry as he may deem fit the Director is of the opinion that such member has been guilty of neglect or misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties as a member. . . . . (2)The decision of the State Government on appeal made under sub-sec. (2) and subject thereto the decision of the Director under sub-sec. (1) shall be final. Sec. 22 which deals with Appointment of servants of market committee and conditions of service and which is another important section for our purposes reads. (1) There shall be a secretary for every market committee who shall be appointed by the marker committee with the approval of the Director and subject to the terms and conditions prescribed. The Secretary shall exercise such powers and perform such duties as the market committee may from time to time direct. (2) xx xx xx xx (3) Subject to any rules made in this behalf the market committee may provide for payment to its officers and servants of such salaries leave allowances pensions or gratuities as it deems proper and may contribute to any provident fund which may be established for their benefit. ( 9 ) SEC. 23 deals with Powers and duties of market committee. It reads: a market committee shall exercise the powers and perform the functions and duties conferred or imposed on it by this Act and the rules. ( 10 ) SEC. 32 deals with Market Committee Fund and it reveals that all expenditure incurred by the market committee under or for the purposes of this Act has to be defrayed out of the said Fund. Sec. 33 lays down the purposes for which the fund shall be expended and amongst others it includes the following purposes viz. the pays pensions leave allowances gratuities compensation for injuries resulting from accidents. . to the officers and servants employed by it. Sec. 33 lays down the purposes for which the fund shall be expended and amongst others it includes the following purposes viz. the pays pensions leave allowances gratuities compensation for injuries resulting from accidents. . to the officers and servants employed by it. ( 11 ) IT is thus evident that a Secretary who is to be paid by the Market Committee has to be paid out of this Market Committee Fund and it is the Market Committee which has been given power to appoint the Secretary 2nd Market Committee is a statutory corporate body. ( 12 ) BEARING the aforesaid material factors in mind one has to determine whether it could be said that such a Secretary is holding the office of profit under the Government of Gujarat State. ( 13 ) THE Supreme Court in Abdul Shakur v. Rikhab Chand A. I. R. 1958 Supreme Court 52 had to deal with a case similar to the instant case. The instant case stands on a stronger footing than the case which the Supreme Court had to consider. The Supreme Court had to consider the provisions of Durgah Khawaja Sahib Act (36 of 1955) which came into force on 1-3-1956. Validity of the appellants nomination was challenged in that case on the ground that the appellant was holding an office of profit under the Government. The provisions of Article 102 (1) (a) of the Constitution of India which deal with disqualifications for being chosen as and for being a member of either House of Parliament which are in pari materia with the provisions of Article 191 of the Constitution practically had to be considered by the Supreme Court. The Supreme Court bore in mind the distinction between Article 58 (1)and Article 102 of the Constitution of India. The appellant in that case held the appointment of manager (Mohatmin) in a school for teaching Persian Arabic and Muslim the logy in Mallasarasa Durgah Khwaja Sahib Akbari. At page 55. The Supreme Court has referred to the provisions of sec. 4 (1) of Act No. 36 of 1955 referred to by me earlier which indicated that the administration control and management of the Durgah Endowment came to be vested in a committee which is a body co-operate having perpetual succession and common seal and which can sue and be sued through its President. Under sec. 4 (1) of Act No. 36 of 1955 referred to by me earlier which indicated that the administration control and management of the Durgah Endowment came to be vested in a committee which is a body co-operate having perpetual succession and common seal and which can sue and be sued through its President. Under sec. 5 the Committee is to consist of not less than 5 and not more than 9 members of the Hanafi Muslim faith all of whom are to be appointed by Central Government. Sec. 8 gives power to the Central Government to supersede the Committee. Under sec. 9 the Central Government in consultation with the Committee can appoint a Nazim (administrator) of the Durgah who is an ex-officio secretary of the committee. His salary is to be fixed by the Central Government but is to be paid out of the revenues of the Durgah Endowment Funds. The Committee exercises its power of administrations control and management through the Nazim. The power and duties of the committee are given in sec. 11 of that Act. That section when quoted runs as under:"11 The powers and duties of the Committee shall be " (i) to appoint suspend or dismiss servants of the Durgah Endowment. " under sec. 20 of that Act the committee has the power to make byelaws to carry out the purpose of that Act and the respondent of that case emphasised clause (1) of sub-sec. (2) which provides: "20)2 In particular and without prejudice to the generality of the foregoing power such bye-laws may provide for (i)the duties and powers of the employees of the Durgah " sub-sec. (5) of that sec. 20 is as follows : "the Central Government may after previous publication of its intention cancel any bye-law which it has approved and confirmed and thereupon the bye-law shall cease to have effect. " It was contended by the respondent before the Supreme Court: "because under the Act of 1955 the Committee of Management is to be appointed by the Government who also appoint the Nazim (administrator) through whom the Committee acts and because under sec. " It was contended by the respondent before the Supreme Court: "because under the Act of 1955 the Committee of Management is to be appointed by the Government who also appoint the Nazim (administrator) through whom the Committee acts and because under sec. 6 (2) the Government as the power of removal from office of any member of the committee and because the committee can make bye-laws prescribing the duties and powers of the employees of the Durgah the appellant was under the control and supervision of the Central Government and therefore he was holding an office of profit under the Government of India. " The significant observations made by the Supreme Court are: ". . . It is significant to note that in laying down the disqualifications of the President and the Vice-President the Constitution has expressly provided the disqualifications which include not only an office of profit under the Government of India or the Government of any State but also an office of profit under any local or other authority subject to the control of any of the said Governments. This last disqualification the Constitution does not make applicable to the members of the Legislatures. It is further observed: no doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four corners of the Act. Merely because the Committee or the members of the committee are removable by the Government of India or the Committee can make bye-laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the committee into holders of office of profit under the Government of India. The appellant is neither appointed by the Government of India nor is removable by the Government of India nor is he paid out of the revenues of India. The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether the person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor. But the appointment of the appellant does not come within this test. But the appointment of the appellant does not come within this test. As said earlier by me the instant case stands on a much stronger footing. The marketing committee is the appointing authority of the Secretary. A member of the Market Committee can be removed by the Director on the recommendation of the Market Committee supported at least by two third of the whole number of members. His salary is also to be paid from the Market Committee fund. ( 14 ) MR. Raval appearing for the petitioner has invited my attention to the decision of the Supreme Court in Guru Gobinda Basu v. Sankari Prasad Ghosal A. I. R. 1964 Supreme Court 254. At page 25e it is observed therein:we agree with the High Court that for holding an office of profit under the Government one need not be in the service of Government and there need be no relationship of master and servant between them. The Constitution itself makes a distinction between the holder of an office of profit under the Government and the holder of a post or service under the Government; see Articles 309 and 314. The Constitution has also made a distinction between the holder of an office of profit under the Government and the holder of an office of profit under a local or other authority subject to the control of Government see Articles 58 (2) and 66 (4 ). The Supreme Court has thereafter referred to the decision in Abdul Shakur v. Rikhab Chand (Supra) and observed: in that case the appellant was the manager of a school run by a committee of management formed under the provisions of the Durgh Khawaja Saheb Act 1955 He was appointed by the administrator of the Durgah and was paid Rs. 100/per month. The question arose whether he was disqualified to be chosen as a member of Parliament in view of Article 102 (1) (a) of the Constitution. It was contended for the respondent in that case that under secs. 100/per month. The question arose whether he was disqualified to be chosen as a member of Parliament in view of Article 102 (1) (a) of the Constitution. It was contended for the respondent in that case that under secs. 5 and 9 of the Durgah Khawaja Saheb Act 1 55 the Government of India had the power of appointment and removal of members of the committee of management as also the power to appoint the administrator in consultation with the committee; therefore the appellant was under the control and supervision of the Government and that therefore he was holding an office of profit under the Government of India. This contention was repelled and this Court pointed out the distinction between `the holder of an office of profit under the Government and the holder of an office of profit under some other authority subject to the control of Government. Mr. Chaudhary has contended before us that the decision is in his favour. He has argued that the appellant in the present case holds an office of profit under the Durgapur Projects Ltd. and the Hindustan Steel Ltd. which are incorporated under the Indian Companies Act; the fact that the Comptroller and Auditor-General or even the Government of India exercises some control does not make the appellant any the less a holder of office under the two companies We do not think that this line of argument is correct. It has to be noted that in Maulana Abdul Shakurs case 1958 S. C. R. 387: (A. I. R. 1958 S. C. 52) the appointment of the appellant of that case was not made by the Government nor was he liable to be dismissed by the Government. The appointment was made by the administrator of a Committee and he was liable to be dismissed by the same body. In these circumstances this Court observed: no doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four corners of the Act. Merely because the Committee or the members of the Committee are removable by the Government of India or the Committee can make bye-laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the Committee into holders of office of profit under the Government of India. Merely because the Committee or the members of the Committee are removable by the Government of India or the Committee can make bye-laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the Committee into holders of office of profit under the Government of India. The appellant is neither appointed by the Government of India nor is he paid out of the revenues of India. The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether mat person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor. But the appointment of the appellant does not come within this test. After referring to these observations it is observed by the Supreme Court: it is clear from the aforesaid observations that in Abdual Sakhurs case 1958 S. C. R. 387 (A. I. R. 1958 S. C. 52) the facts which were held to be decisive were (a) the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and (b) payment from out of Government revenues though it was pointed that payment from a source other than Government revenues was not always a decisive factor. In the case before us the appointment of the appellant as also his continuance in office rests solely with the Government of India in respect of the two companies. His remuneration is also fixed by Government. We assume for the purpose of this appeal that the two companies are statutory bodies distinct from Government but we must remember at the same time that they are Government Companies within the meaning of the Indian Companies Act 1956 and 100% of the shares are held by the Government. We must also remember that in the performance functions the appellant is controlled by the Comptroller and Auditor-General who himself is undoubtedly holder of an office of profit under the Government though there are safeguards in the Constitution as his tenure of office and removeability therefrom. We must also remember that in the performance functions the appellant is controlled by the Comptroller and Auditor-General who himself is undoubtedly holder of an office of profit under the Government though there are safeguards in the Constitution as his tenure of office and removeability therefrom. It is on these facts of the case that it was held that such a person appointed as Auditor of Durgapur Projects Ltd. held an office of profit under the Government of India within the meaning of Article 102 (1) (a) of the Constitution. That decision has no application to the facts of the present case. ( 15 ) IN an un-reported decision of the Supreme Court in Civil Appeals Nos. 280 and 981 of 1968 (Shivamurthy Swami Inamdar v. Aqadi Sanganna Andanappa ) decided on 11th February 1970 the Supreme Court has observed:it was next said that the returned candidate being a chairman of the Koppal Taluka Agricultural Produce Marketing Co-operative Society was holding an officer of profit and that officer carried with it an honorarium of Rs. 2 0 per year and a sitting fee of Rs. 3/per day. To this officer he was elected by the members of the Cooperative society. Therefore it cannot be said that he was holding that office under the Government. The fact that the co-operative society in question was dealing with the controlled articles supplied to it by the Government does not change the legal position. After referring to the provisions of Article 102 (1) (a) of the Constitution it is observed:. . THEREFORE before the provisions of that Article can be attracted it must be established that he was holding an office under the Union or the State Government and that that office was an office of profit and thereafter we must see whether the disqualification relating to that office has been removed by any parliamentary legislation. In other words the office in question must have been held under a Government and to that some 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-see Revenue Subanna v. G. S. Kaggerappa. 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-see Revenue Subanna v. G. S. Kaggerappa. This Court in several decisions has down the tests for finding out whether an office in question is an office under a government and whether it is an office of profit. Those tests are: (1) Whether the Government makes the appointment; (2) Whether the Government has the right to remove or dismiss the holders: (3) Whether the Government pays the remuneration; (4) What are the functions of the Holder ? Does he perform them for the Government; and (5) Does the Government exercise any control over the performance of these functions?-see Abdul Shakur v. Rikhab Chand Ramappa v. Sangappa and Govinda Basu v. Sankari Prasad. ( 16 ) KEEPING in mind these tests laid down by the Supreme Court in the aforesaid decisions it is quite evident that respondent No. 1 cannot be said to be holding any office of profit under the Government of Gujarat State. It cannot therefore be said that the nomination of respondent No. 1 was improperly and wrongly accepted by the Returning Officer. I therefore decide issue No. 1 (a) in the negative issue No. 1 (b) does not survive and decide issues Nos. 3 (a) and 3 (b) in the negative. Petition dismissed. .