SIVADASA MENON v. SUNNA SAHIB — 1977 DIGILAW 184 (KER)

Judgment :- 1. Through this petition the petitioner challenges the election of the 1st respondent to the Lok Sabha from No. 7 Palghat Parliamentary Constituency in the elections that were conducted in March 1977. The petitioner was the candidate of the Communist Party of India (Marxist) and his symbol was "hammer, sickle and star" The Ist respondent was the candidate for the Indian National Congress and his symbol was "Calf and Cow". The 2nd respondent was an independent candidate to whom was allotted the symbol "Rising Sun". Poll was taken on 19-3-1977 and the counting which began on 20-3-1977 concluded on 21-3-1977. The 1st respondent obtained 207604 votes and the petitioner obtained 192733 votes. 22101 votes were declared as invalid. The 1st respondent was declared elected by the Returning Officer on 21-3-1977. According to the petitioner the 1st respondent was disqualified for being chosen as or for being a member of the Lok Sabha since be was and is holding an office of profit both under the Government of India as well as the Government of Kerala. The 1st respondent is is disqualified in view of Art.102 of the Constitution. The 1st respondent was appointed as Official Receiver under S.59 of the Kerala Insolvency Act, Act 2 of 1956 as amended by Act 18 of 1957, by the Government of Kerala on 23-8-1976 as per G.O. Rt. 2359/76/Home dated 14-10-1977 and he is still holding the said statutory office under the State. The 1st respondent was appointed as Court Receiver under 0.40 R.1 of the CPC. by the District Judge, Palghat in OS 1/1964. He was appointed as receiver in another case in respect of the properties of Keralassery L P. School. He is receiver is some other cases as well. The 1st respondent was appointed as Liquidator under S.448 of the Indian Companies Act (Act 1 of 1956) in respect of Narasimha Bank, Alathur (in liquidation) and he is still holding that office under the Central Government. The office of the liquidator is a statutory appointment made by the Central Government. The 1st respondent is thus holding an office of profit both under the Government of India as well as the Government of Kerala, and he is, therefore, disqualified under the Constitution of India and the Representation of the People Act, 1951. The office of the liquidator is a statutory appointment made by the Central Government. The 1st respondent is thus holding an office of profit both under the Government of India as well as the Government of Kerala, and he is, therefore, disqualified under the Constitution of India and the Representation of the People Act, 1951. The prayer is to declare that the election of the 1st respondent is void on the ground of the disqualifications referred to above and also to declare that the petitioner has been duly elected from No. 7 Palghat Parliamentary constituency. 2. In answer to the summons issued by court, the 1st respondent alone entered appearance on 22-6-1977. In the written statement filed by the 1st respondent the material allegations in the petition are denied. His contentions are as follows: The petition is not maintainable because it has not been filed in conformity with S.81 of the Representation of the People Act 1951. The allegations in Para.4 of the petition overlooked Art.103 of the Constitution which lays down that if a member of either House of Parliament has become subject to a disqualification the question shall be referred for the decision of the President and his decision shall be final The Ist respondent is not disqualified from being chosen as a member of the Parliament because he has not held any office of profit under the Government of India or under the Government of Kerala. Under a G O. dated 14-10-1976 the 1st respondent was appointed as a part-time official receiver attached to the District Court, Palghat, for a period of three years. The office of part-time official receiver is not an office of profit The government does not pay any remuneration, and the functions discharged by the part-time official receiver are not functions discharged for the Government. The Government does not exercise any control over the performance of the part-time official receiver. That apart, the 1st respondent resigned the post of the part-time official receiver by his letter dated 16-2-1977 and the Government by order G.0 Rt. 423/77/Home dated 17-2-1977 accepted the resignation with effect from the fore-noon of 15-2-1977 The post of part-time official receiver which the 1st respondent held was before the date of the election and not on the date of the election. 423/77/Home dated 17-2-1977 accepted the resignation with effect from the fore-noon of 15-2-1977 The post of part-time official receiver which the 1st respondent held was before the date of the election and not on the date of the election. It is admitted by the 1st respondent that he was appointed as a court receiver by the court of the District Judge of Palghat in O. S.1/1964 and also in O.S. 1/1968. Receivership cannot be deemed to be an office of profit. The 1st respondent was appointed as receiver in other cases also under 0.40 R.1 of the C.P.C. The averments in Para.7 of the petition are inaccurate and misleading. The Narasimha Bank, Alathur is not a company in liquidation Insolvency proceedings is pending in the court of the Sub Judge of Palghat in regard to the affairs of Narasimha Bank, which is a partnership firm. It is incorrect to state that the 1st respondent was appointed as official liquidator under S.448 of the Indian Companies Act 1 of 1956 and be is still holding that office. It was in the capacity as official receiver that the 1st respondent was functioning as the interim receiver in the insolvency proceedings in relation to the Narasimha Bank That receivership also came to an end with his resignation as official receiver. The 1st respondent is not thus holding any office of profit to incur disqualification. It is contended that this question of disqualification was not raised at the time of scrutiny of the nomination papers and as such the petitioner is not entitled to raise that question at this stage. The petitioner is hence disentitled to get any relief in this petition. 3. After discussing with both sides the following issues were raised: (1) Whether the 1st respondent was disqualified for being chosen as or for being a member of the Lok Sabha on the grounds alleged by the petitioner? (2) Reliefs and costs. 4. Issue No. 1. The short case put forward by the petitioner in challenging the election of the 1st respondent is that the 1st respondent is disqualified from being chosen as a member of the Lok Sabha in view of Art.102 (1)(a) of the Constitution. That article was amended by the Constitution (Forty-second Amendment) Act, 1976. (2) Reliefs and costs. 4. Issue No. 1. The short case put forward by the petitioner in challenging the election of the 1st respondent is that the 1st respondent is disqualified from being chosen as a member of the Lok Sabha in view of Art.102 (1)(a) of the Constitution. That article was amended by the Constitution (Forty-second Amendment) Act, 1976. But the notification issued by the Central Government under S 2 of the above Act does not include S.19 of that Act amending Art.102 of the Constitution. So both sides agree that the question has to be decided on the basis of Art.102(1)(a) as it originally stood. I may read the article: "102(1). A person shall be disqualified for being chosen as. and for being, a member of either House of Parliament- (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;" 5. According to the petitioner the 1st respondent was holding an office of profit both under the Government of India and the Government of the State of Kerala The positions specifically referred to in the petition are: (1) Official Receiver; (2) Liquidator in respect of Narasimha Bank, Alathur (in liquidation); and (3) appointment as receiver in OS. 1/1964 and another suit, the number of which it not given in the petition. I may briefly examine the arguments advanced by the petitioner on the basis of each of these positions. 6. According to the petitioner the 1st respondent was appointed as Official Receiver under S.59 of the Kerala Insolvency Act, Act 2 of 1956 as amended by Act 18 of 1957 as per G.O. Rt. 2359/76/Home dated 14-10-1976 and that the 1st respondent was holding that office when he submitted the nomination and contested the election. The 1st respondent admitted that he was appointed as part-time official receiver by the Government of Kerala. But his case is that by letter dated 16-2-1977 he tendered his resignation and it was accepted by the Government by order No. G O. Rt. 423/77/Home dated 17-2-1977. The 1st respondent tendered in evidence Exts. RI to R4 which are copies of certain records kept by the District Court, Palghat, relating to the appointment of Official Receiver. But his case is that by letter dated 16-2-1977 he tendered his resignation and it was accepted by the Government by order No. G O. Rt. 423/77/Home dated 17-2-1977. The 1st respondent tendered in evidence Exts. RI to R4 which are copies of certain records kept by the District Court, Palghat, relating to the appointment of Official Receiver. On the request of the 1st respondent the original records were called for from the District Court and by the consent of both sides the originals of Exts. R1to R4 filed by the 1st respondent were respectively marked as Exts R1to R4. Ext. R4 is the copy of G. O. Rt. 423/777 Home dated 17-2-1977. The operative portion of the order reads as follows: "Government are pleased to to accept the resignation of Shri A. Sunna Sahib, Part Time Official Receiver, District Court. Palghat with effect from 16-2-1977 E. N." It is clear that the government accepted the resignation of the Ist respondent of the post of official receiver from 16-2-1977. The nomination for the election was filed only subsequent to that date, and therefore, it cannot be said that at the time of nomination or election the 1st respondent was holding the post of Official Receiver. The further case advanced by the petitioner in this respect is that subsequently the 1st respondent has withdrawn bis resignation. Such withdrawal apparently has no legal effect because his resignation has already been accepted by the government. This 'argument was essentially based upon Ext. R5, which is a letter issued from the High Court to the District Judge, Palghat. The operative portion of the O.M. reads as follows: "The attention of the District Judge, Palghat, is invited to the above reference and be is informed that Shri Sunna Sahib had subsequently applied to the Government to withdraw his resignation as Part-time Official Receiver, District Court, Palghat and that the matter is engaging the attention of the Government. Orders of the Government may be awaited before proceeding with the matter." The petitioner has no case that the alleged withdrawal ever took effect and that the 1st respondent at any time functioned as official receiver subsequent to his resignation with effect from 16-2-1977. In view of these facts it is not necessary to consider whether the position of official receiver is an office of profit under the State for the purpose of Art.102(1)(a) of the Constitution. 7. In view of these facts it is not necessary to consider whether the position of official receiver is an office of profit under the State for the purpose of Art.102(1)(a) of the Constitution. 7. The second position specifically referred to in Para.7 of the petition is that the 1st respondent was appointed as liquidator under S.448 of the Indian Companies Act. Act 1 of 1956 in respect of the Narasimha Bank, Alathur (in liquidation) and that he is still holding the said off ice of prof it under the Central Government. In Para.8 of the written statement the 1st respondent denied the allegations contained in Para.7 of the petition. It was pointed out that Narasimha Bank, Alathur was not a company and that it was a partnership firm. The 1st respondent also denied that he was appointed as liquidator in the liquidation of the Narasimha Bank. The petitioner has not chosen to prove that the 1st respondent was appointed as liquidator in the liquidation proceedings relating to Narasimha Bank In fact, it was fairly admitted during the time of argument that the 1st respondent was appointed as liquidator not of the Narasimha Bank but of some other Chit Funds. It was to get over that difficulty that the petitioner tiled CMP No. 9313/77 dated 1-7-1977 for amending the petition That petition was dismissed by me. So, as matters now stand, there is no material to hold that the 1st respondent was functioning as liquidator of the Narasimha Bank. But the learned counsel for the petitioner drew my attention to the statement contained in Para.8 of the written statement to the effect that the 1st respondent in his capacity as official receiver was functioning as the interim receiver in the insolvency proceedings in relation to the affairs of the Narasimha Bank, and contended that in view of that admission the question regarding the receivership of the 1st respondent in the Narasimha Bank affair should be considered on merits. In Para.8 of the written statement the 1st respondent has clearly stated that the said receivership came to an end with the resignation of the 1st respondent as official receiver. In Para.8 of the written statement the 1st respondent has clearly stated that the said receivership came to an end with the resignation of the 1st respondent as official receiver. If the admission of the 1st respondent is to be acted upon it must be read as a whole The stand taken by the 1st respondent was that his interim receivership of Narasimha Bank also terminated by his resignation from the position of official receiver. Thus the alternative case put forward by the petitioner also has no factual foundation. 8. The third allegation is regarding the appointment of the 1st respondent as a receiver in O. S.1/1964 of the District Court, Palghat and in certain other litigations. In Para.7 of the written statement of the 1st respondent it is admitted that he was appointed as a receiver under 0.40 R.1 of the CPC. in O.S. 1/1964 and its connected suit O. S.1/1968. The 1st respondent has no case that the receivership was terminated. Thus it is common case that during the relevant time the 1st respondent was functioning as a receiver in certain suits. In this respect also I cannot say that the allegations contained in the petition are fully satisfactory. The terms and conditions of the appointment order, the remuneration if any, received by the 1st respondent and other relevant details are not given. So the entire argument centred upon the general question whether a receiver appointed under 0.40 R.1 of the Code of Civil Procedure can be regarded as the holder of an office of profit under the Government of the State of Kerala for the purpose of Art.102 (1) (a) of the Constitution. 9. It is the case of the petitioner that a receiver appointed by a court under 0.40 R.1 of the Code of Civil Procedure is the holder of an office under the State. In support of his argument the learned counsel for the petitioner relied upon certain statutory provisions as well as judicial decisions. The statutory provisions cited before me are S.21 (4) of the Indian Penal Code and S.2 (17) (d) of the Code of Civil Procedure. S 21 of. the Indian Penal Code defines "public servant" and by virtue of sub-clause (4) of that section the expression defined takes in every officer of a court, including a liquidator, receiver or commissioner. The statutory provisions cited before me are S.21 (4) of the Indian Penal Code and S.2 (17) (d) of the Code of Civil Procedure. S 21 of. the Indian Penal Code defines "public servant" and by virtue of sub-clause (4) of that section the expression defined takes in every officer of a court, including a liquidator, receiver or commissioner. Similarly S.2 (17) of the Code of Civil Procedure defines the expression "public officer" and in view of clause (3) that expression takes in a receiver, commissioner, etc. The effect of the two provisions in the two Codes may at best show that the receiver is a public officer and a public servant. But these definitions are not sufficient to establish that an office called receivership is created when a court appoints a receiver. As pointed out, the two definitions include a commissioner appointed by courts also. It is extremely difficult to hold that a commissioner deputed from court is holding an office called commission. I do not think that the inclusion of receiver in the two definitions stands on a different footing. The two definitions in the two Codes are intended for certain other purposes, which it is not necessary for me to examine in detail On the strength of these two definitions or because of the casual usage of the expression 'officer' in relation to a receiver, it cannot be held that an office called receivership is first created and then a person named receiver is appointed when a court passes an order under 0.40 R.1 of the Code of Civil Procedure. 10. The learned counsel then drew my attention to certain reported decisions The first decision is Krishnaswami v. Naranappa (AIR 1959 Madras 209). The question raised in thai case was whether a receiver could have legal representatives to succeed him. 10. The learned counsel then drew my attention to certain reported decisions The first decision is Krishnaswami v. Naranappa (AIR 1959 Madras 209). The question raised in thai case was whether a receiver could have legal representatives to succeed him. The passage in that decision relied on by the petitioner reads as follows: "Unless it be that P. Solayyappa Naicker, who had been appointed receiver, also became the assignee of the debt, no question of any legal representatives succeeding to the receiver Solayyappa could arise, is so far as the receivership is an office created by an order of court; and as soon as the receiver dies the office comes to an end so far as is he concerned; and unless a successor is appointed by a fresh order issued by the court, there cannot be legal representatives to the deceased receiver coming and taking his place on bis demise". Emphasis was laid on the observation "as the receivership is an office created by an order of the court" to support the contention that receivership is an office. The next case is Sunni Central Waqf Board v. Sirajul Haq (AIR 1963 Allahabad 537). The question raised in that case was regarding the maintainability of an appeal against an order purported to have been passed under 0.40 R.1 of the Code of Civil Procedure. The passage relied on by the petitioner reads as follows: "Every order of appointment of receiver, includes a finding that it is just and convenient to appoint a receiver, thereby cresting an office of receiver and a direction nominating a certain person to fill the office of receiver so created." The last decision cited was that of the Supreme Court reported in Hiralal Patni v. Loonkaran Sethiya (AIR 1962 SC. 21). One of the questions considered in that case was regarding the duration of the appointment of a receiver. Para.9 of the judgment is extracted below: "The second contention of learned counsel for the appellant is that the Receiver appointed in the suit ceased to be a Receiver qua the rights of the parties when the final decree was made by the Court. This contentions leads us to the consideration of the question whether a Receiver appointed in a suit ceases to be such automatically on the termination of the suit. This contentions leads us to the consideration of the question whether a Receiver appointed in a suit ceases to be such automatically on the termination of the suit. Neither S.51(d) nor Order XL of the Code of Civil Procedure prescribes for the termination of the office of receivership. We must, therefore, look for the solution elsewhere. Some of the authoritative text-books on receivers may usefully be consulted in this connection". The petitioner relies upon the expression "termination of the office of receivership" These decisions contain expressions indicating that there is an office called office of receivership I have referred to the contexts in which the courts used those expressions in the respective judgments, and 1 doubt whether in view of such contexts, the concerned passages in the three decisions could be taken as conclusive in the matter of interpreting the expression "office of profit under the government" occurring in Art.102(1)(a) of the Constitution. "Office of profit under the government" came up for consideration of the Supreme Court in Madhukar G. R. Pankakar v.J. C. Rajani (1977 (1) SCC 70). In Para.22 of that decision the expression "office of profit under government" was construed That paragraph ends with the following direction: "A balanced view, even if it involves 'judicious irreverence to vintage precedents, is the wiser desideratum." The court held further: "Certain aspects appear to be elementary For holding an office of profit under government one need not be in the service of government and there need be no relationship of master and servant. Similarly, we have to look at the substance, not the form. Thirdly, all the several factors stressed by this Court, as determinative of the holding of an'office' under Government, need not be conjointly present. The critical circumstances, not the total factors, prove decisive. A practical view, not pedantic basket of tests, should guide in arriving at a sensible conclusion." For answering the question whether a receiver appointed by court is the "holder of an office of profit under the government", it is, therefore, necessary to consider certain relevant factors like the power of the court to appoint a receiver, the purpose for which a receiver is appointed, the source of the remuneration paid to the receiver and the jural relationship between the court on the part and the appointee on the other. 11. 11. The main controversy in this case centered round the question whether a receiver appointed by court can be considered as holding an'office'. Lord Wright in Macmillan v. Guest ( 942 AC 561) explained the meaning of the word 'office' in the following terms: "The word 'office' is of indefinite content. Its various meanings cover four columns of the New English Dictionary, but I take as the most relevant for purpose of this case the following: 'A position or place to which certain duties are attached, especially one of a more or less public character." The Supreme Court approved that passage in Statesman (P) Ltd v H. R. Deb (AIR 1968 SC. 1495.) In that case Sikri J. also referred to the observations of Lord Atkin where be approved the observations of Rowlatt J, in Great Western Rly Co v. Eater (1922-8 Tax Cases 231 at p. 235). Justice Rowlatt said thus: "Now it is argued, and to my mind argued most forcibly, that that shows that what those who use the language of the Act of 1942 meant, when they spoke of an office or employment which was a subsisting, permanent. substantive position which bad an existence independent from the person who filled it which went on and was filled in succession by successive holders, and if you merely bad any man who was engaged on whatever terms, to do duties which were assigned to him, his employment to do those duties did not create an office to which those duties were attached. He hereby was employed to dp certain things and that is and end of it, and if there was no office or employment existing in the case as a thing, the local led office or employment was merely an aggregate of the activities of the particular man for the time being." In Kanta Kathuria v. Manak Chand (AIR. 1970 SC. 694) after referring to the aforesaid passages, the Supreme Court held: "We say with profound respect for this most succint exposition, that we entirely agree." These tests may, therefore, be applied to a receiver appointed under 0.40 R.1 of the Code of Civil Procedure. It is not seriously disputed by the petitioner that if an office called receivership exists it can only be by virtue of the creation of such an office by the court. It is not seriously disputed by the petitioner that if an office called receivership exists it can only be by virtue of the creation of such an office by the court. The authority of the court to appoint a receiver of property is traceable to S.94 (d) of the CPC. The relevant provisions may be read: "94. In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, (d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;" The expression "prescribed" is defined in S.2 (16) of the Code as "prescribed by rules". The concerned rules are contained in 0.40 of the Code. R.1 of 0.40 deals with appointment of receiver. R.2 provides for payment of remuneration. R.3 prescribes the duties of the receiver, and R.4 pertains to the enforcement of receiver's duties. R.5 mentions the cases where Collector may be appointed as receiver. Sub-rule (1) of R.1 of 0.40 shows that the court may by order appoint a receiver of any property "where it appears to the court to be just and convenient". These provisions do not expressly confer any power on the court to create an office called receivership. The further question is whether these provisions of the Code can be construed as conferring an implied power on the court to create an'office' before anyone is appointed as receiver. To answer this question it may be necessary to consider the purpose of appointing a receiver of any property, the effect of appointment of a receiver and the other relevant materials, already referred to. it is true knowledge thai the effect of appointment of a receiver of a property involved id a litigation is that the property is placed under "custodia legis". The court takes the property into custody because i; is just and convenient to do so and the purpose is to preserve the property for the benefit of the ultimate winner in the litigation. When once the property is placed under legal custody the court has necessarily to make arrangements for its management, preservation or maintenance, as the case may be It is for that purpose that a receiver is appointed. When once the property is placed under legal custody the court has necessarily to make arrangements for its management, preservation or maintenance, as the case may be It is for that purpose that a receiver is appointed. Barring the provisions contained in R.3 of 0.40, the duties of the receiver in relation to the management of the property placed in custodia legis may vary according to the nature of the property and the degree of protection needed. The management is to be done by the receiver strictly according to the orders and instructions issued by the court from time to time. The remuneration is to be borne by the estate in custodia legis. Neither the government nor the public have any sort of interest in the property. The property continues to be the property of one of the contesting parties and its expenses are also met by the property and not by any other public body. What the court thus seeks to protect is only private property. In managing the property in accordance with the directions given by court the receiver is not discharging any duty which is "more or less of a public character" referred to by Lord Wright in 1942 AC. 561. It should be remembered that as far as Art.102 (1) (a) is concerned to attract the disqualification the office must be one "under government". The expression "under government" would indicate that the concerned office is one to which certain duties are attached especially one of a more or less public character. On the other hand, the duties of a receiver more fit in with the situation explained by Rowlatt J., extracted above, namely, "if you merely had any man who was engaged on whatever terms, to do duties which were assigned to him, his employment to do those duties did not create an office to which those duties were attached. He hereby was employed to do certain things and that is an end of it, and if there was no office or employment existing in the case as a thing, the so-called office or employment was merely an aggregate of the activities of the particular man for the time being". It would appear that the expression 'so-called office' used by Rowlatt J., may possibly apply, when expressions like "office of receivership" are used by Courts. It would appear that the expression 'so-called office' used by Rowlatt J., may possibly apply, when expressions like "office of receivership" are used by Courts. It may also be pertinent in this connection to consider the jural relationship between the appointing court on the one part and the appointee on the other. In Hiralal Patni v. Loonkaran Sethiya (AIR. 1962 SC. "21) it was held that under 0.40 R.1 a receiver is an officer or representative of the court and he functions under its directions. The position of the receiver was explained in Kanhaiyalal v. Dr. D. R. Banaji (AIR. 1958 SC. 725) as follows: "A Receiver appointed under 0.40 of the Code of Civil Procedure, unlike a Receiver appointed under Insolvency Act, does not own the property or hold any interest therein by virtue of a title. He is only the agent of the court for a safe custody and management of the property during the time that the court exercises jurisdiction over the litigation in respect of the property." Thus, the position of the receiver is more or less that of an agent or a representative of the appointing court. When an agent or representative is appointed we do not generally think of the creation of an office of agency or office of representative anterior to or simultaneously with such appointment. On a consideration of the relevant factors, I am unable to hold that S.94 and 0.40 of the Code of Civil Procedure confer by implication, power on a court to create an office pertaining to a receiver before a receiver is appointed. In other words, it is not possible to hold that as far as a receiver appointed under 0.40 R.1 of the CPC. is concerned there is an office independently of its holder. Taking into consideration the real substance and not the form, as directed by the Supreme Court in 1977-1 SCC 70, I hold that when a receiver is appointed by a court under 0.40 R.1 no office called receivership is created independently of the person appointed as receiver. 12. I am thus led to conclude that when a person is appointed as receiver under 0.40 Rub 1 be is not holding any "office of profit under the government' for the purpose of Art.102 (1) (a) of the Constitution. 12. I am thus led to conclude that when a person is appointed as receiver under 0.40 Rub 1 be is not holding any "office of profit under the government' for the purpose of Art.102 (1) (a) of the Constitution. There is thus no substance in the contention of the petitioner that the 1st respondent was disqualified from being chosen as a member of the Lok Sabha. 13. Issue No. 2. The petitioner is not entitled to any of the reliefs prayed for. No other question was argued before me. In the result, this election petition is dismissed with costs. The office will communicate the substance of the order to the Election Commission and the Speaker of the Lok Sabha, and it shall also send an authenticated copy of the order as soon as it is ready to the Election Commission as provided in S.103 of the Representation of the People Act, 1951.