VATAL NAGARAJ v. RETURNING OFFICER, KARNATAKA LEGISLATIVE COUNCIL ELECTIONS
2001-04-20
CHANDRASHEKARAIAH
body2001
DigiLaw.ai
CHANDRASHEKARAIAH, J. ( 1 ) CHANDRASHEKARAIAH, J this petition has been filed challenging the election of respondents 2 to 12 as Members of the Karnataka Legislative council, said to have been declared on 3. 6. 2000, as null and void. ( 2 ) THE Government of Karnataka, by its order dated 18. 4. 2000,constituted a One Man Commission under the Chairmanship of Sri vatal Nagaraj, Ex. M. L. A. . , to study the problems of the Kannadigas in the Border areas of Kerala, Maharastra, Andhra Pradesh, Goa and Tamil Nadu and to submit a report to the Government within four months. Thereafter, the Government issued a notification dated 18. 4. 2000, stating that Sri Vatal Nagaraj, who is appointed as chairman of One Man Commission is accorded the status, of a minister of Cabinet Rank. Again the Government issued a government Order dated 24. 5. 2000, providing a grant of Rupees five lakhs to defray the expenses of pay and day to day expenditure of the Chairman of the Commission, in the Budget estimate of the year 2000-2001 allotting a new Head of Account "2070-00-105-0- 40". While the petitioner was functioning as One Man Commission the 1st respondent issued calendar of events to elect Members to the Karnataka Legislative Council from among the Members of the karnataka Legislative Assembly. The petitioner had filed, his nomination paper offering himself as a candidate on 31-5-2000 similarly respondents-2 to 12 also filed their nominations. As per the calendar of events the scrutiny of nomination paper was held on 1-6-2000. At the time of scrutiny the 2nd respondent who is a candidate for the membership of the Karnataka Legislative Council sponsored by the Indian Natlonal Congress raised objection to the acceptance of the petitioner's nomination paper on the ground that the petitioner holds an office of profit and therefore he had incurred disqualification under Article 191 of the Constitution of India. According to the 2nd respondent the petitioner was receiving salary as on the date of scrutiny of nomination paper as the Chairman of one Man Commission and hence held an office of profit. The 1st respondent who received the objections on 1-6-2000 adjourned the matter to 2. 6. 2000 to enable the petitioner to file his reply, if any.
According to the 2nd respondent the petitioner was receiving salary as on the date of scrutiny of nomination paper as the Chairman of one Man Commission and hence held an office of profit. The 1st respondent who received the objections on 1-6-2000 adjourned the matter to 2. 6. 2000 to enable the petitioner to file his reply, if any. The petitioner in fact had filed a detailed reply to the objections of the 2nd respondent denying that he holds any office of profit much less an office with salary. The 4th respondent had also opposed the acceptance of the nomination paper of the petitioner orally. The 1st respondent after hearing the petitioner and the respondents who objected the acceptance of the nomination of the petitioner, passed an order declaring the nomination paper of the petitioner as invalid and accordingly rejected. ( 3 ) THIS rejection of nomination paper of the petitioner has madehim to come to this Court by way of tiling this petition. ( 4 ) THE petitioner in his election petition has made certainallegations against the Returning Officer. Since the petitioner at the time of argument has not pressed the said allegations, I do not propose to consider the same in this petition. ( 5 ) RESPONDENTS-2, 4 and 12 have filed their statement ofobjections denying all the averments made by the petitioner in this petition. The case of these respondents is the Government by its order dated 24-5-2000 has made a grant of Rs. 5,00,000/- to defray the expenses of pay and day to day expenditure of the Chairman of the Commission which makes it clear that he holds the office of profit and therefore he incurred disqualification to get himself elected as the member of the Legislative Council of the State. ( 6 ) RESPONDENTS-6, 9 and 10 have also filed v/ritten statementsjustifying the order of the Returning Officer stating that the Office held by the petitioner is an office of profit and therefore he is disqualified from contesting the election. Respondent-6 in his written statement has taken the plea that the petitioner having not disclosed any material facts and particulars regarding the aliegations made against the 1st respondent the petition is liable to be rejected for non compliance of mandatory provisions of Section 83 of the representation of the People Act, 1951 (hereinafter referred to as 'the Act' ).
Respondent-6 in his written statement has taken the plea that the petitioner having not disclosed any material facts and particulars regarding the aliegations made against the 1st respondent the petition is liable to be rejected for non compliance of mandatory provisions of Section 83 of the representation of the People Act, 1951 (hereinafter referred to as 'the Act' ). ( 7 ) ON the basis of the pleadings the following issues are framed:-"1) Whether the petitioner proves that the office of Chairman, one man Commission for Border areas is not an "office of profit" within the meaning of Article 191 of the Constitution of India? 2) Whether the petitioner proves that his nomination paper has been improperly rejected and election of respondents-2 to 12 are liable to be set aside? 3) What order?" ( 8 ) BEFORE considering the issues referred to above, I propose toconsider the contention raised by Sri G. V. Shantharaju, learned senior Counsel appearing for some of the contesting respondents that the petition is liable to be rejected as it does not disclose the material facts and particulars as required under Section 83 (a) and (b) of the Act. In support of this contention, it is submitted that the petitioner has not disclosed necessary particulars regarding the nature of office held by him so as to contend that the petitioner was not holding any office. This point has been raised because Sri R. N. Narastmha Murthy, learned senior counsel appearing for the petitioner submitted that even though the petitioner was entitled to draw salary as a Chairman of the One Man Commission and the "post of chairman had been given the status of a cabinet rank by the government, the position occupied by him as a Chairman of One man Commission is not an office much less an office of profit so as to incur any disqualification under Article 191 of the Constitution of india and therefore the Returning Officer is not justified in rejecting the nomination paper of the petitioner. ( 9 ) THE objection raised by respondents-2 and 4 before thereturning Officer is to the effect that the State Government by its order granted Rupees five lakhs towards pay and other expenses to one Man Commission and therefore the office held by the petitioner is an office of profit.
( 9 ) THE objection raised by respondents-2 and 4 before thereturning Officer is to the effect that the State Government by its order granted Rupees five lakhs towards pay and other expenses to one Man Commission and therefore the office held by the petitioner is an office of profit. Before the Returning Officer, it is not the case of the above said respondents that the position occupied by the petitioner as a Chairman of One Man Commission is an office. But, on the other hand the specific case of the respondents before the returning Officer is that the post held by the petitioner is an office of profit, since he was allowed to draw salary and was given the status of cabinet rank. ( 10 ) SECTION 36 of the Act, confers power on the Returning Officerto consider and decide all objections which may be made to any nomination and may either on such objections or on his own after such summary enquiry, if any, as he thinks necessary reject any nomination on any of the grounds provided therein. ( 11 ) AS stated earlier, it is not the case of the respondents thatthe position held by the petitioner as Chairman of the One Man commission is an office. The objection is the petitioner was drawing salary as a Chairman of the One Man Commission and therefore he was holding an office of profit as on the date of the scrutiny of nomination paper and therefore he incurs disqualification. The reply to the said objection is that even though the petitioner is entitled for salary he does not incur any disqualification as he was made entitled to draw salary treating the post held by him as a cabinet Minister which is covered by the provisions of Karnataka Legislature prevention of Disqualification) Act, 1956. Further, the petitioner in his reply has also stated that the position held by him as. the chairman of One Man Commission is not an office. The Returning officer by his order has rejected the nomination paper of the petitioner applying Section 3 (h) of the parliament (Prevention of Disqualification) act 1959. This shows the non application of mind of the Returning officer since the said Acts has no application so far as the election to the post of Karnataka Legislative Council is concerned.
The Returning officer by his order has rejected the nomination paper of the petitioner applying Section 3 (h) of the parliament (Prevention of Disqualification) act 1959. This shows the non application of mind of the Returning officer since the said Acts has no application so far as the election to the post of Karnataka Legislative Council is concerned. ( 12 ) ON the above said facts let me examine whether in fact thepetitioner has not disclosed the material facts and the particulars that is required to be pleaded in the petition. In this petition, the petitioner has challenged the decision of the returning Officer rejecting the nomination paper of the petitioner on the ground that he was holding the office of profit as on the date of scrutiny of nomination paper. The reason given by the Returning officer to reject the nomination paper is that he was holding the office of profit. In such a case what is to be pleaded and proved is that, the petitioner was not holding any office much less an office of profit. This is not a petition challenging the election of the returned candidates on the ground of any corrupt practices. No doubt in a case where election has been challenged on the ground of corrupt practice, omission of a single material fact leads to an incomplete cause of action and the settlement of claim becomes bad. But it is not so in this case, What'is required to be pleaded in this case is whether the position held by the petitioner as Chairman of the One man Commission assuming all the objections raised by the contesting respondents are found correct is not an office. ( 13 ) SRI G. V. Shantharaj, learned Senior Counsel appearing forsome of the contesting respondents submit that the petitioner ought to have disclosed in the petition what is the nature of office held by him so as to say that it is not an office. ( 14 ) SRI Narasimha Murthy, learned Senior Counsel, for thepetitioner, submits that the facts and particulars which are necessary to adjudicate the rights of the parties are all pleaded in the petition and therefore it is not open for the respondents to contend that the petition does not disclose cause of action to maintain the election petition. Section 81 of the Act provides for presentation of petition.
Section 81 of the Act provides for presentation of petition. Section 82 of the Act provides for who are the persons to be impleaded as respondents. Section 83 of the Act provides for the contents of the election petition. Under Section 83 (a) (b) of the Act, the petitioner shall disclose in his petition a concise statement of the material facts on which the petitioner relies and shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. ( 15 ) THE petitioner in para-6 of the petition, has stated as follows:"the petitioner filed a detailed reply to the objections of the 2nd respondent categorically denying that he holds any office of profit much less an office with salary" in para-9, it is stated as follows: "based on the abovfe provisions, the petitioner contended before the 1st respondent that the petitioner falls out side the scope of disqualification as he being a Commission with the status of a Cabinet Minister, is excluded from such disqualification under article 191 itself and also under Section 3 of the Act. " ( 16 ) IN para-10, it is stated as follows:-"except relying on the word "salary" used in the Government order dated 24. 5. 2000, the said respondents did not produce any evidence to show that the petitioner received any remuneration as the chairman of Commission or that he held an office of profit within the meaning of Article 191 of the Constitution of India. " ( 17 ) THE objection filed by the petitioner before the Returningofficer is produced as Annexure-E along with the written submission. In Annexure-E, he has specifically pleaded as tollows:- "but primafacie this position is not an office" in the written submission filed by the petitioner before the returning Officer, it is stated as follows:- "one of the most of important test is in order to constitute an "office" there must be a permanent, substantive position which must exist independently of the holder of the office . There is no office if the employment is only to do a particular work or to perform specified duties and there is an end of the employment after that work or duties are over.
There is no office if the employment is only to do a particular work or to perform specified duties and there is an end of the employment after that work or duties are over. ( AIR 1970 SC 694 } the Constitution of the committee by the State Government is for the specific purpose of conducting a study of the kannada speaking people in the border areas noted therein. The questions referred therein, and the time schedule mentioned therein and the assignments undertaken by the Committee, reveals that the committee can be compared to a commission of enquiry under the Commission of Enquiries Act. . . . . . Thus, the respondent who is constituted as One Man. Commission to study and report the conditions of kannada speaking people residing in the border areas of the State does not hold a post under the Government nor does he hold an office of profit under the Government. The tests laid down by the supreme Court in various judgments, when applied to the facts of the present case, does not attract the provisions of Article 191 (1) (a) of the Constitution of India. The petition filed for rejecting the nomination of the respondent is without any substance and the same is liable to be rejected. ( 18 ) THESE Annexures are signed and attested as provided undersection 83 of the Act. On these facts, it is contended on behalf of the petitioner that the election petition consists of ail material facts and the particulars and therefore there is no infirmity or illegality in the election petition so as to strike of the pleadings or to reject the petition as contended by the learned Counsel for the contesting respondents. In support of this contentions the learned Counsel for the petitioner relied on the following decisions. ( 19 ) THE Supreme Court in the case of SMT. SAHODRABAI RAlvs RAM SINGH AHARWAR AND OTHERS, has held as follows:- (para-12) "12. . . . . The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondents if the requirement regarding service of the election petition is to be wholly complied with.
. . The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondents if the requirement regarding service of the election petition is to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. " ( 20 ) IN the case on hand, the reply and the written submissionfiled before the Returning Officer are produced as Annexures. along with the election petition as stated earlier. The said Annexures were also signed and verified as required under Section 83 of the Act. Therefore, the said documents are to be treated as an integral part of the election petition itself. A part from what is stated in the election petition that he is not holding any office, the petitioner in his reply has categorically stated that the position held by him as Chairman is not an office and in the written submission filed along with the reply he has a!so pleaded that the position held by him cannot be considered as an office, since it does not satisfy the test as held by the Supreme Court in the case of SMT. KANTA KATHURIA vs manak CHAND SURANA2. Therefore, it cannot be held that the petitioner has not disclosed the material facts or particulars in the election petition. ( 21 ) THE Supreme Court in the case of U. S. SASIDHARAN vsk. KARUNAKARAN AND ANOTHER has held as follows in para 15: "15. We have already referred to Section 83 relating to the contents of an election petition. The election petition shall contain a concise statement of material facts and also set forth full particulars of any corrupt practice. The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document.
The election petition shall contain a concise statement of material facts and also set forth full particulars of any corrupt practice. The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. When such a reference is made in the election petition a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition. Section 81 (3) provides for giving a true copy of the election petition. When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of Section 81 (3) and, as such the Court has to dismiss the election petition under Section 86 (1) for non-compliance with Section 81 (3 ). " the view taken by the Supreme Court in the decision referred to above is accepted as correct view in the case of MOHAN RAWALE vs DAMODAR TATYABA @ DADASAHEB AND OTHERS ( 22 ) IN view of the decisions of the Supreme Court referred toabove, since the petitioner has pleaded that he is not holding any office and also in the reply filed before the Returning Officer has specifically stated that the position held by him is not an office, which is produced as an annexure along with the election petition and also in view of the fact that he has specifically stated in the written submission filed before the Returning Officer thai the position held by him cannot be considered as an office as it does not satisfy the test laid down by the Supreme Court, the contention that the petitioner has not disclosed material facts and there is no cause of action is liable to be rejected and accordingly, it is rejected. ( 23 ) NOW I propose to consider the issues framed in this petition. Since issue Nos. 1 and 2 are inter linked, I consider them together.
( 23 ) NOW I propose to consider the issues framed in this petition. Since issue Nos. 1 and 2 are inter linked, I consider them together. ( 24 ) BOTH the petitioner and the contesting respondents agreedfor marking of the documents produced by them by consent. Accordingly, this Court by an order dated 8-3-2001 marked the documents produced by the petitioner as Exhibits P1 to P7. By an order dated 12-3-2001 the documents of the respondents are marked by consent as Exhibits R1 to R-2 (a ). On 12-3-2001 after marking of the documents the learned Counsel appearing for the parties submitted that oral evidence is not necessary and the matter may be posted for arguments. On that submission, this Court passed an order posting the petition for arguments since the parties have no oral evidence to adduce. Accordingly, the matter is heard on merits. ( 25 ) SRI Narasimha Murthy learned Senior Counsel appearing forthe petitioner submits that the position held by the petitioner as chairman of One Man Commission is not an office as per the test laid down by the Supreme Court in the case of SMT. KANTA kathuria vs MANAK CHAND SURANA (supra ). In reply to the said submission Sriyuths: G. V. Shantaraju learned Senior Counsel l. M. Chidanandaiah, and S. . Doreraju, learned Counsel for the respondents submit that the office held by the petitioner as Chairman of One Man Commission is an office of profit as he was paid salary and therefore, the Returning Officer is justified in rejecting the nomination of the petitioner. ( 26 ) !n order to consider the said submission, it is useful to referto the contents of the order of appointment Ex. Pl and Ex. R1 (b ). The English translation of Ex. P-1 and Ex. R1 (b) read as follows:- "proceedings OF THE GOVERNMENT OF KARNATAKA sub ; Constitution of a Commission to study and submit a report on the problems of Kannadigas in the Border areas - Reg read : Budget- Speech of the Honourable Chief Minister on 27-3-2000.
Pl and Ex. R1 (b ). The English translation of Ex. P-1 and Ex. R1 (b) read as follows:- "proceedings OF THE GOVERNMENT OF KARNATAKA sub ; Constitution of a Commission to study and submit a report on the problems of Kannadigas in the Border areas - Reg read : Budget- Speech of the Honourable Chief Minister on 27-3-2000. PREAMBLE: on 27-3-2000 referred at (1) above while delivering his Budget speech for the year 2000-2001 the Hon'ble Chief Minister has stated that a Commission would be set up to study the problems of Kannadigas in the border areas of Kerala, Maharastra, Andhra pradesh, Goa and Tamil Nadu and to submit a report and that this Committee will submit a report to the Government in four months. In his Note dated 12-4-2000 read at No. (2) above the Hon'ble chief Minister has directed to appoint Sri Vatal Nagaraj, Ex. M. L. A. , as the Chairman of the One Man Commission. GOVERNMENT ORDER NO. DPAR 6 Ragavi 2000, bangalore, DATED 18. 4. 2000 a One Man Commission is constituted under the chairmanship oi Sri Vatal Nagaraj, Ex. MLA to study the problems of the Kannadigas in the Border areas of Kerala, Maharashtra, andhra Pradesh, Goa and Tamil Nadu and to submit a report to the Government. The Commission shall submit its report to the government within four months. By Order and in the name of the governor of Karnataka. Sd/ ( H. Krishnamurthy) under Secretary to Government, dpar (Political)" exhibit R-1 (b) reads as follows:- "proceedings OF THE GOVERNMENT OF KARNATAKA sub:- Extension of time for the Kannada Border Area Commission constituted to study the problems of the kannada speaking people in the border areas. READ :- 1. 1. Government Order dated 18-4-2000 CASE 6 RGV 2000 2. Government Order dated 18-4-2000 CASE 77 CCV 2000 3. Government Order dated 30-6-2000 CASE 6 RGV 2000 4. Letter of the Chairman of the Border Area Commission dated 18-8-2000 No. G-A. A-2000. PREAMBLE: in the Government order dated 18-4-2000 referred at No. (1) above an One Man Commission was constituted under the chairmanship of Sri Vatal Nagaraj, Ex. M. L. A. to study the problems faced by the Kannadigas in the border areas of Kerala, maharastra, Andhrapradesh, Goa and Tamilnadu and to submit a report to the Government within four months and its term has come to an end on 17-8-2000.
M. L. A. to study the problems faced by the Kannadigas in the border areas of Kerala, maharastra, Andhrapradesh, Goa and Tamilnadu and to submit a report to the Government within four months and its term has come to an end on 17-8-2000. In the Government order dated 18-4-2000 referred at No. (2) above the status of a Cabinet Minister was accorded to Sri Vatai nagaraj. In the Government order dated 30-6-2000 referred at No. (1) above the grant of a sum of Rs. 5 lakhs was provided for the salary and other expenses of the chairman and the staff and the powers were conferred on the Under Secretary to Government department of DPAR (Accounts) to supervise the same. In the letter dated 18-8-2000 referred at No. (4) above the chairman of the Border Area Commission has submitted an interim report along with his letter. The Government has perused the report and has taken a decision on 27-11-2000 that the purpose of the constitution of the Commission has been fulfilled. Hence the present order is issued to extend the term of the commission till this date. / government ORDER NO. C. A. S. E. 6 PGV. 2000 bangalore, DATED 30-12-2000. The term of the Border Area Study Commission has been extended from 18. 8. 2000 till 27. 11. 2000 and for this period, the chairman of the Commission and the staff are entitled to get salary and allowances. As per the order and in the name of the Governor of Karnataka sd/ (S. V Satyanarayana Murthy) under Secretary to Government dpar (Political ). " ( 27 ) FROM reading the abovesaid Exhibits it is seen that thecommission would be set up to study the problems of Kannadigas in the Border areas of Kerala, Maharastra, Andhra Pradesh, Goa and Tamilnadu and the said Commission would submit the report to the Government in four months. Accordingly the Chief Minister directed by his Note dated 12-4-2000 to appoint the petitioner as the Chairman of the One Man Commission. Pursuant to the said direction an order was passed on 18-4-2000 constituting commission under the Chairmanship of Sri Vatal Nagara petitioner to study the problems of Kannadigas in the Borde referred to above and to submit a report to the Government within four months. Exhibit P2 is the notification issued by the Government according the status of a Minister of Cabinet rank to the petitioner.
Exhibit P2 is the notification issued by the Government according the status of a Minister of Cabinet rank to the petitioner. Ex. P3 is the order of the Government granting Rupees five lakhs to defray the day to day expenses of the One Man Commission and the pay and other expenses of the Chairman of the Commission. Exhibit R1 (b) is an order of the Government dated 30-12-2000, extending the term of the Border Area Study Commission from 18-8-2000 till 27-11-2000. From the Preamble of Ex. R1 (b), it is seen that the Commission was constituted to study the problems faced by the Kannadigas in the Border Areas and to submit the report within four months and its term had come to an end on 17-8-2000. Pursuant to the said constitution of the Commission, the Chairman had submitted an interim report along with his letter darted 18-8-2000. The Government after perusing the said report has taken a decision on 27-11-2000 stating that the purpose of constitution of the Commission has been fulfilled From a reading of Ex. P1 and Ex. R1 (b), it is clear that the Commission was constituted only for a particular purpose i. e. , to study the problems faced by the Kannadigas in the Border Areas. The purpose for which the Commission was constituted and the time schedule mentioned therein and the assignments undertaken by the Commission reveals that the State government has no control whatsoever over the Commission in the matter of day to day administration and its functioning. Further, from the reading of the abovesaid orders, it is also clear that the commission may prescribe its own procedure for the purpose of meeting various places in the Border area, and to submit its report. ( 28 ) THE decision of the Constitution Bench of the Supreme Courtin the case of Smt. Kanta Kathuriavs Manak Chand Surana (supra) explains and defines the meaning of the word "office". The minority judgment in the said case reads as follows:- "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 minority judgment in the said case reads as follows:- "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. " our brother Sikri has also relied upon the same case and has referred to the observations of Lord Atkin where he approved of the observations of Rowlatt, J. in Great Western Rly. Co.-vs- bater (1922) 8 Tax Gas 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 had an existence independent from the person who filled it, which went on and was filled in succession by successive holders, and if you merely had any man who was engaged on whatever terms, to do duties which were assigned to him, his 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. " we sav with profound respect for this most succinct exposition that we entirely agree". (emphasis supplied) after accepting the observation of Rowlatt J, the learned Judges have held that the office held by Smt. Kanta Kathuria as a Special government. Pleader to conduct the case referred to in the order on behalf of the State of Rajasthan with the Government Advocate, jabalpur is an office of profit. But according to the majority Judgment, the appellant was not disqualified for the election under Article 191 of the Constitution of India, holding that she was not holding an office of profit relying upon the observation of Rowlatt J. This decision was referred to by the Supreme Court in the case of MADHUKAR g. E. PANKAKAR vs JASWANT CHOBBildas RAJANI AND others.
In this case the Supreme Court has held as follows:- "41. This question is interlaced, in the present context, with the concept of "office-of profit". And the twin problems baffle easy solution since an apparent not real conflict of reasoning exists between Mahadeo, (1969-2 SCR 422) (decided by a Bench of two judges) and Kanta ( AIR 1970 SC 694 ) (by a Bench of five judges ). Of course, Sikri, J (as he then was) thought that mahadevo "in no way militates against the view, which appealed to the majority in Kanta Judicial technology sometimes distinguishes, sometimes demolishes earlier decisions: the art is fine and its use skilful. Both the cases dealt with advocates and we have referred to them in the earlier resume of precedents. Even so, a closer look will disclose why we follow the larger bench (as we are bound to, even if there is a plain conflict between the two cases ). Justice Rowlatt's locus classicus in Great western Ry. Co. (followed by this Court in many cases) helps us steer clear of logomachy about 'office' especially since the New english Dictionary fills four columns! Rowlatt, J rivetted attention on a 'subsisting, permanent, substantive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders'. So the first step is to enquire whether 'a permanent, substantive position, which had an existence independent from the person who filled it, can be postulated in the case of an Insurance medical practitioner. By contrast, is the post an ephemeral ad hoc, provisional incumbency created, not independently but as a List or Panel elastic and expiring or expanding, distinguished from a thing that survives even when no person had been appointed for the time being? Thin partitions do their bounds divide' , we agree, but the distinction, though delicate, is real. An office of Insurance medical Practitioner can be conjured up if it exists even where no doctor sits in the saddle and has duties attached to it qua office. We cannot equate it with the post of a peon or security gunman who too has duties to perform or a workshop where government Vehicles are repaired, or a milk vendor from an approved list who supplies milk to government hospitals.
We cannot equate it with the post of a peon or security gunman who too has duties to perform or a workshop where government Vehicles are repaired, or a milk vendor from an approved list who supplies milk to government hospitals. A panel of lawyers for Legal Aid to the Poor or a body of doctors enlisted for emergency service in an epidemic outbreak charged with responsibilities and paid by Government cannot be a pile of offices of profit. If this perspective be correct, Kanta and Mahadevo fit into a legal scheme. In the former, an ad hoc Assistant government Pleader with duties and remuneration was held to fall outside 'office of profit' It was a casual engagement, not exalted to a permanent position, occupied pro tempore by A or b. In Mahadevo, a permanent panel of lawyers maintained by the 'railway Administration' with special duties of a lasting nature constituted the offices of profit more like standing counsel. If in our case, had there been a fixed panel of doctors with special duties and discipline, regardless of doctors being there to fill the positions or no, a different complexion could be discerned as in the case of specified number of Government Pleaders, public prosecutors and the like, the offices surviving even if they remain unfilled. On the other hand, no rigid number of Insurance Medical practitioners is required by the rules or otherwise. If an Insurance medical Practitioner withdraws, there is no office sticking out even thereafter called office of Insurance Medical Practitioner The critical test of independent existence of the position irrespective of the occupant. Is just not satisfied Likewise, it is not possible to conduce that these doctors, though subject to responsibilities, eligible to. remuneration and liable to removal all with a governmental savour cannot squarely fall under the expression 'holding under Government'. Enveloped, though the Insurance medical Officer is by governmental influence, and working, though he is, within an official orbit, we are unable to hold that there is an 'office of profit' held by him and that he is 'under government'. This conclusion avoids the evil of public duty conflicting with private interest and accommodation of more technical persons in semi-voluntary social projects in an era of expanding cosmos of state activity.
This conclusion avoids the evil of public duty conflicting with private interest and accommodation of more technical persons in semi-voluntary social projects in an era of expanding cosmos of state activity. " in this decision, the office held by the Medical Practitioner working as a panel doctor appointed by the State Insurance Scheme is not an office of profit under the State Government applying the test suggested by Justice Rowlatt, J. ( 29 ) THE Supreme Court in the case of RABINDRA KUMARNAYAK vs COLLECTOR, MAYURBHANJ ORISSA AND OTHERS after considering the decision of the Supreme Court in Smt. Kanta kathuria, ( AIR 1970 SC 694 ) has held that in order to incur disqualification there shall be a permanent office and there shall be an income or profit accrued from that office; all these decisions of the Supreme Court have accepted the definition of the word 'office' as suggested by Justice Rowlatt, J. In great Western Railway Company vs Bater. ( 30 ) THE learned Counsel for the respondents relied on thedecision in the case of BIHARILAL DOBRAY vs ROSHAN IAL7 and contended that the office of profit, involved two elements namely, that there should be an office and that, it should carry some remuneration. It is submitted that in the instant case, since the petitioner is holding the post of Chairman of a Commission which carries the remuneration, he incurred disqualification as provided under Section 191 of the Constitution of India. The Supreme Court in the abovesaid case in para-5 has held as follows: "5. The object of enacting Article 191 (1) (a) is plain. A person who is elected to a Legislature should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. If such a person is holding an office which brings him remuneration, and the Government has a voice in his continuance in that office, there is every likelihood of such person succumbing to the wishes of Government. Article 191 (1) (a) ts intended to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the Legislatures. The term "office of profit under the Government" used in the above clause though indeterminate is an expression of wider import than a post held under the Government which is dealt with in part XIV of the Constitution.
The term "office of profit under the Government" used in the above clause though indeterminate is an expression of wider import than a post held under the Government which is dealt with in part XIV of the Constitution. For holding an office of profit under the Government a person need not be in the service of the government and there need not be any relationship of master and servant between them. An office of profit involves two elements, namely, that there should be an office and that it should carry some remuneration. In order to determine whether a person holds an office of profit under the Government several tests are ordinarily applied such as whether the Government makes the appointment, whether the Government has the right to remove or dismiss the holder of the office, whether the Government pays the remuneration, whether the functions performed by the holder are carried on by him for the Government and whether the government has control over the duties and functions of the holder. Whether an office in order to be characterised as an office of profit under the Government should satisfy all these tests or whether any one or more of them may be decisive of its true nature has been the subject matter of several cases decided by this Court but no decision appears to lay down conclusively the characteristics of an office of profit under the Government although the Court has no doubt determined in each case whether the particular office involved in it was such an office or not having regard to its features. " ( 31 ) THE decision in the case of Dr. DEORAOLAXMAN ANANDEvs KESHAV LAXMAN BORKAR8 is also to the same effect.
" ( 31 ) THE decision in the case of Dr. DEORAOLAXMAN ANANDEvs KESHAV LAXMAN BORKAR8 is also to the same effect. ( 32 ) SRI S. Doreraju, learned Counsel for respondents-9 and tohas brought to my notice the decision in the case of PRADYUT bordoloi vs SWAPAN ROY and submitted that the test for determining whether an office is an office of profit or not is on the basis of Government's power to appoint and remove from the office in the case on hand, it is submitted as the Government "has the power to remove the Chairman from the office of the Commission, it is to be held that the office held by the petitioner is an office of profit In the said case, admittedly, the candidate who contested the election was an employee of the Company where the Central government held 100% share capital. After considering the. evidence adduced in the said case the Supreme Court has held trial since the Government has no power of control over the employee of a company, it is not an office of profit. The test applied by the Supreme court in the said case cannot be said to be the sole test for the purpose of considering whether the position or office held is an office of profit. In addition to the power of control there are other tests as suggested by the Supreme Court to be applied in order to consider whether the position held or occupied is really an office or not. Therefore, the said decision cannot be taken as a law laid down by the Supreme Court to say that the power to control is the only test to be applied in order to ascertain whether an office is an office of profit or not. ( 33 ) IN the light of the above decisions, I propose to examinewhether the office held by the petitioner is an office. The Supreme court in the case of Smt. Kanta Kathuria, has accepted the definition of the word "office" as suggested by Rowlatt, J. According to this definition, office must be subsisting permanent, substantive which had an existence independent from the person who filled it which went on and was filled in' succession by successive holders.
The Supreme court in the case of Smt. Kanta Kathuria, has accepted the definition of the word "office" as suggested by Rowlatt, J. According to this definition, office must be subsisting permanent, substantive which had an existence independent from the person who filled it which went on and was filled in' succession by successive holders. The petitioner was appointed as One Man Commission to study the problems of Kannadigas in the Border Area specifying the time limit of four months to submit the report. The constitution of One Man commission is under the Chairmanship of Sri Vatal Nagaraj by name. Without the petitioner, the Commission has no existence as it is a one Man Commission. Further the life of the Commission is four months. No doubt, it is ultimately extended from 18-2-2000 till 27-11-2000 since the Commission could not submit the report within four months and al-so for the purpose of meeting the expenditure required by the Commission for the extended period as seen from ex. R-1 (b ). The post of Commission is not created providing any continuity to it. After the expiry of the term specified the life of the commission will come to an end. Therefore, there is no office either subsisting or permanent after the expiry of its term. The position held by the petitioner as the Chairman of the Commission also cannot be filled in succession by successive holders since the life of the office itself has come to an end on the expiry of the term specified. Therefore, applying the test as suggested by the Supreme Court in the above-said cases, I am of the considered view that the office held by the Commission is not an office and therefore it is not an office of profit. ( 34 ) IN the decisions relied upon by contesting respondents nodoubt, it is held that the office carries any remuneration it should be an office of profit. Mere payment of salary or remuneration to the holder of office itself is not sufficient to constitute an office of profit in the absence of any continuity in the existence of office. ( 35 ) WHETHER the post held by the petitioner as Chairman of Oneman Commission is an office or not has not been considered by the returning Officer while rejecting the nomination paper of the petitioner.
( 35 ) WHETHER the post held by the petitioner as Chairman of Oneman Commission is an office or not has not been considered by the returning Officer while rejecting the nomination paper of the petitioner. ( 36 ) SRI Narasimha Murthy, learned Senior Counsel fairly concededthat assuming that the reason given by the Returning Officer for the purpose of rejecting the nomination paper are to be correct still he ought to have considered whether there is any objection or not, on his own whether the position held by the petitioner is an office or not in view of the specific contentions raised by the petitioner in his reply to the objections filed by the respondents. This aspect of the matter has not been considered by the Returning Officer. Therefore, even assuming the facts referred to by the Returning Officer for rejection of nomination paper are correct, the Returning Officer ought to have considered whether the position heid by the petitioner is an office or not in the light of the decisions of the Supreme Court referred to above. Since there is no such consideration, in view of the admitted facts I hold that the position held by the petitioner is not an office much less an office of profit and therefore he does not incur any disqualification under Article 191 of the Constitution. Hence, I am of the considered view that the rejection of the nomination paper of the petitioner by the Returning Officer is improper. Accordingly issue Nos. 1 and 2 are answered in the affirmative. ( 37 ) SRI G. V. Shantharaj, learned Senior Counsel for the contestingrespondents submits that the Karnataka Legislature (Prevention of disqualification) Act, 1956, has been enacted to declare certain office of profit not to disqualify their holder for being choosen or being members of the Karnataka Legislative Assembly and the Karnataka legislative Council. Under this enactment, a person who is heading the commission receives any remuneration other than the compensatory allowance is liable to be disqualified for contesting the election. Section 2 (a) of the said Act, defines Committee as follows: "2 (a) "committee" means any Committee, Commission, council, Board or any other body of one or more persons whether statutory or not, set up by the Government of India or the government of any State". Section 3 which provides for Removal of certain disqualification's reads! as follows:- "3.
Section 2 (a) of the said Act, defines Committee as follows: "2 (a) "committee" means any Committee, Commission, council, Board or any other body of one or more persons whether statutory or not, set up by the Government of India or the government of any State". Section 3 which provides for Removal of certain disqualification's reads! as follows:- "3. It is hereby declared that the following offices shall not disqualify and shall be deemed never to have disqualified, the holders thereof for being chosen as, or for being members of the karnataka Legislative Assembly or the Karnataka Legislative council:- (d) the office of the Chairman or Member of a committee; provided that the holder of any such office is not in receipt of or entitled to, any remuneration other than the compensatory allowance. " from the above, it is seen that under the abovesaid enactment a Commission which is included in the definition of the word committee, is not to be disqualified if the holder of the office is entitled to any remuneration other than compulsory allowance. No doubt the word committee means a Commission also. The word "office" is not defined under the said Act. Therefore what is to be seen is whether the position held by a person is an office in order to attract the disqualification under Article 191 of the Constitution. If the position occupied by a person as a Chairman of the Commission itself is not an office, and in respect of that office if there is no disqualification as provided under Article 191 of the Constitution, the provisions of the Karnataka Legislature (Prevention of Disqualification) Act, 1956, cannot be applied to hold the commission as an office in the. event it receives any remuneration. Further, what is provided under the said Act, is only to remove certain disqualification in respect of certain offices. The said provision cannot be applied to a person who has not been disqualified under Article 191 of the Constitution. ( 38 ) FOR the reasons stated-above, I hold that the rejection ofnomination paper of the petitioner is improper antf illegal. Consequently, the election of respondents-2 to 12 is liable to be declared as illegal and void. Either of the parties have urged no other grounds. In the result, I pass the following order: - the election petition is allowed with cost.
Consequently, the election of respondents-2 to 12 is liable to be declared as illegal and void. Either of the parties have urged no other grounds. In the result, I pass the following order: - the election petition is allowed with cost. 1) The election of respondents-2 to 12 as members of the karnataka Legislative Council said to have been declared on 3-6-2000 is null and void; 2) The first respondent Returning Officer is directed to accept the nomination of the petitioner and thereafter to proceed with the election in accordance with law. --- *** --- . V levied on the full value of the share claimed. The Court held that realisation of deficiency in Court-fee could not be postponed on the Kant. 387ground that the question whether the plaintiff was in joint possession or not was not to be decided in the appeal. The Court observedto enable the Court to consider the appeal on merits the memorandum of appeal must be a document which was properly stamped. The question whether a memorandum of appeal was properly stamped or not must be decided first before the appellant could claim a hearing on merits. . . . . . The question of Court-fee therefore, had to be decided on the basis of facts, as they stood at the time when the memorandum of appeal was filed in the Court. The decision of the two Courts below that the plaintiffs were never in joint possession must be accepted as correct for levying the proper Court-fee. . . . . . . . The report relating to deficiency is correct and the deficiency must be made good first before the memorandum of appeal can be admitted. . . . . . . . Therefore, though the Court-fee must initially be accepted as correct according to the allegations made by the plaintiff in the plaint, the Court is required to revise its opinion and ask for the requisite Court-fee under the second part of the clause on coming to the view that the plaintiff is out of possession of the property and that his claim to be a coparcener or co-owner is denied. The general rule of ascertaining the valuation, for purposes of Court-fee from the allegations and prayers in the plaint must therefore, in such cases, be modified. . . . . . . .
The general rule of ascertaining the valuation, for purposes of Court-fee from the allegations and prayers in the plaint must therefore, in such cases, be modified. . . . . . . . "the Full Court also examined the principle that the Court must base its decision as to the Court-fee payable on the averments and prayer in the plaint, and held thus :"the general rule that the Court must base its decision as to the Court-fee payable on the allegations and prayers in the plaint is correct only to this extent that the general rule is invoked primarily for the purposes of classification of suit; in other words. In order to find out the nature of the suit and the category it belongs to, the Court must examine the allegations and reliefs claimed in the suit for the simple reason that it is the allegations made in the plaint which determine the nature of the suit. In making this classification about the category of the suit it is not permissible to call in aid the allegations made in the written statement. ""after the category of the suit has been ascertained, the Court has to find out whether the plaintiff has correctly; valued and relief for purposes of Court-fees in the manner laid down in S. 7 of the Court-fees Act. This process also involves the examination of the plaint allegations and, if there is nothing to indicate otherwise, the plaintiff's valuation 'prima facie' is accepted as correct. Ordinarily, the Court would accept Court-fees paid in the first instance as correct, but if it transpires subsequently that an allegation of fact on the basis of which the Court-fee was computed is not correct, then it is within the power of the Court to demand additional Court-fee before the judgment is pronounced. ""coming to the case before us, the allegations in the plaint show that it is a partition suit which is governed by sub-section (vi-A) of S. 7, Court-fees Act for computing the proper Court-fee. The Court-fees paid by the plaintiffs was accepted as correct because the plaintiffs had asserted in the plaint that they were in joint possession of the property to the extent of their share. In the initial stage it could not be said with any certainty whether the allegation was false or correct.
The Court-fees paid by the plaintiffs was accepted as correct because the plaintiffs had asserted in the plaint that they were in joint possession of the property to the extent of their share. In the initial stage it could not be said with any certainty whether the allegation was false or correct. The defendants having denied this assertion of the plaintiffs, a specific issue on the question of joint possession of the plaintiffs was framed in the case, the Court, after evidence was gone into, recorded a finding that the plaintiffs were not in the joint possession of the property. In view of this finding it was open to the first Court to demand Court-fee under the second part of sub-section (vi-A) of S. 7, Court-fees Act before pronouncing final order in the case. "6. 2 In Muneshwar Bakhsh's case AIR 1945 Oudh 207, the Court rejected a contention that realisation of deficit Court-fee on the memorandum of appeal should be postponed, as the question whether the plaintiffs were in possession or not is a matter to be decided in the appeal, on the following reasoning :"the decision of the lower Court on the question of possession for the purpose of Court-fee under the circumstances must be regarded as 'prima facie' correct and appellants must pay the deficiency according to the full value of the share which they claim on partition. " ( 7 ) BUT we find that a different view has been expressed by other Courts. To begin with, we may conveniently refer to two cases 388 Kant. decided under the Mysore Court-fees Act, 1900 (the 'old Act' for short ). The old Act did not have a provision similar to S. 35 of the present Act dealing exclusively with suits for partition. Under the old Act, a suit for partition by a person claiming to be in joint possession was subjected to Court-fee under Art. 11 (b) of Schedule II, which provides for a fixed Court-fee (of Rs. 100. 00 when presented to a District Court or sub-Court and Rs. 15/- when presented in the Munsiff Court) in regard to a plaint or memorandum of appeal where it was not possible to estimate at a money value, the subject-matter in dispute and which was otherwise not provided for in that Act.
100. 00 when presented to a District Court or sub-Court and Rs. 15/- when presented in the Munsiff Court) in regard to a plaint or memorandum of appeal where it was not possible to estimate at a money value, the subject-matter in dispute and which was otherwise not provided for in that Act. On the other hand, a suit for partition where the plaintiff was excluded from possession, fell under S. 4 (v), which dealt with the suits for possession and provided for payment of Court-fee on the value of subject-matter of the suit. 7. 1 In Krishnappa v. Bhashyam Iyengar, 1939 (44) Mys HCR 203, it was held that where the plaintiff claims to be a co-owner/co-sharer/co-tenant/co-parcener in a joint family alleging to be in joint possession of the suit properties, whether constructively or actually, and wants his share to be separated and put into his possession, fixed Court-fee under Art. 11 (b) was sufficient. 7. 2 In M. Nagendraiah v. M. Ramachandra, AIR 1953 Mys 108, a Division Bench of the Mysore High Court considered a situation, similar to that being considered by us. In that case, the plaintiff had valued the suit under Art. 11 (b) of the Mysore Court-Fees Act, 1900 claiming to be in Joint possession of several suit properties. The trial Court found that the plaintiff was in joint possession of only three items of suit properties and passed a decree granting one-third share in those items. The trial Court found that plaintiff was not in joint possession in regard to other items, and dismissed the suit in regard to those items. The trial Court also directed the plaintiff to pay Court-fee in regard to the suit items which were found to be not in the joint possession of plaintiff. The plaintiff filed an appeal and paid the fixed Court-fee under Art. 11 (b ). The office raised an objection regarding sufficiency of Court-fee paid, pointing out that though the plaint may be deemed to have been properly stamped when it was filed, as there was now a finding of the lower Court that the plaintiff was not in joint possession of certain items, the plaintiff should pay the Court-fee "ad valorem" in regard to those items, both in appeal before the High Court and Court below, before admitting the appeal as regular appeal.
The Division Bench rejected the office objections, in view of the well settled position that allegations made in the plaint alone had to be looked into for determining the category of suit for purposes of Court-fee and the denial of plaint allegations by the defendant does not take the suit out of scope of Art. 11 (b ). The Division Bench held that where a suit for partition has been filed by paying a fixed Court-fee on the allegation that the plaintiff is in joint possession, the Court-fee payable on the memorandum of appeal also should be the same fixed Court-fee, as paid on the plaint irrespective of the fact that the trial Court had found that the plaintiff is not in possession of some or all of the suit properties. The decision in Nagendraiah is directly on the issue and contrary to the view expressed by the Full Bench of Allahabad High Court. ( 8 ) LEARNED counsel for respondents submitted that the said decision in Nagendraiah may not be helpful as the old Act did not have any provision corresponding to S. 35 (1) and (2) and S. 11 of the new Act. 8. 1 The relevant portions of S. 35 are extracted below: (I) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiffs share. (II) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:. . . . . . . Rupees two hundred, if the value is Rs. 10,000 and above. 8. 2 A learned single Judge of this Court in B. Shabeer Ahmed v. B. Iqbal Ahmed, 1965 (2) Mys LJ 431. The learned single Judge, considered S. 35 and held that even under the new Act, there is no change in the basic position that the matter has to be decided on the allegations contained in the plaint alone and the valuation slip accompanying Kant.
The learned single Judge, considered S. 35 and held that even under the new Act, there is no change in the basic position that the matter has to be decided on the allegations contained in the plaint alone and the valuation slip accompanying Kant. 389the plaint, under S. 10 of the Act, and not with reference to the allegations made in the written statement, even though the averments in the written statement showed that possession of some of the properties were with the alienees. He followed the decision in Nagendraiah. Dealing with the contention based on S. 11, the learned single Judge held as follows :-"it is no doubt a fact that there was no provision like S. 11 of the Act in the old Court-fees Act of 1870 (Central) or the Mysore Court-fees Act of 1900. Section 11 (2) says that any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All such questions arising on such pleas shall be heard and decided before evidence is recorded. But, it has to be noted that sub-section (1) of the same section states that in every suit initiated in any Court, the Court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in the plaint and on the materials contained in the statement, if any, filed under S. 10, the proper fee payable thereon and the decision being, however, subject to review, further review, and correction in the manner specified in the succeeding sub-sections. From this it follows that the Court has got to decide on the materials and allegations contained in the plaint or the statement submitted by the plaintiff along with his plaint under S. 10. It may also be mentioned that under S. 19 of the Act, in any inquiry relating to the fee payable on a plaint, written statement, petition, memorandum of appeal or other document, the Court may, if it considers necessary, give notice to the State Government with a copy of any of the documents aforesaid.
It may also be mentioned that under S. 19 of the Act, in any inquiry relating to the fee payable on a plaint, written statement, petition, memorandum of appeal or other document, the Court may, if it considers necessary, give notice to the State Government with a copy of any of the documents aforesaid. It is significant to note that S. 19 states that only a copy of the plaint or other document referred to above should be served on the State Government, there is nowhere a reference to the copy of the written statement filed by the defendant to be so served. This supports the contention that under the Act in an inquiry as to the fee payable on the plaint, only the materials and allegations contained in the plaint are to be taken into account by the Court in deciding the said question. The learned Judge also cited with approval, the following passage from GUIDE TO LAW OF COURT by K. Krishnamurthy and R. Mathrubutham :'though sub-section (2) of S. 11 gives a statutory right to the defendant to raise objections to the adequacy of the Court-fee paid by the plaintiff, the field of the investigation is confined practically to the determination of two points, viz. , under-estimation of the value of the subject-matter of the suit and the category under which it should fall for the purpose of Court-fee. The section cannot be read as enabling the defendant to challenge the plaint allegations for the purpose of determining the proper Court-fee. It is settled law, that the allegations in the plaint alone are to be considered and not the statements made by the defendant in the written statement and the act makes no change in this. But the Courts are entitled to determine the substance of the claim as distinguished from the form in which the reliefs were cast. The scope of investigation or inquiry under S. 11 after notice to defendant and on hearing his objection if any is limited to determining the nature of the suit on the basis of the plaint allegations and to see if there is any under valuation of the subject-matter of the suit. Under the pretext of deciding questions of Court-fee there cannot be a trial of the suit. . . . . . "8.
Under the pretext of deciding questions of Court-fee there cannot be a trial of the suit. . . . . . "8. 3 In Channiah v. B. K. Marulasiddappa (1) LR 459 (sic), construing the provisions of the new Court-fees Act, this Court held :'there is no doubt that the word 'plaint' is not mentioned in S. 35 (1) but there is no reference therein to the pleadings of the defendant either. Merely because the expression 'denied' is used in sub-section (1) of S. 35 there is no justification to say that the 'denial' of the title contemplates denial in the written statement of the defendant. It is reasonable to construe the expression 'denied' used in sub-section (1) of S. 35 of the Act as denial of plaintiffs' title before the Institution of the suit. Therefore, the true meaning to be attached to the words 'whose title to such property is denied' is that whose title to such property is denied prior to the institution of the suit or filing of the plaint. That being so, it is only the allegations in the plaint that will have to be looked into. Therefore, there is no valid reason to deviate from the fairly well settled principle laid down by decisions that it is the allegation in the plaint that has to be looked into. "8. 4 Thus we find that the decision in Nagendraiah has been consistently followed even after the new Act came into force. ( 9 ) IT is also useful to refer to a few decisions of other High Courts on this aspect. 9. 1 In C. R. Ramaswami Ayyangar v. C. S. Rangachariar, AIR 1940 Mad 113, a Full Bench of the Madras High Court considered the provisions of Art. 17 (vi) of Schedule II and S. 7 (iv) (b) of the Court-fees Act, 1870. It was held that the Joint owner who is in possession does not need to sue for possession and the fact that his possession is shared by others does not affect his possession. It was further held that S. 7 (v) will apply only where the plaintiff is seeking relief of possession by stating that he is out of possession. 9.
It was further held that S. 7 (v) will apply only where the plaintiff is seeking relief of possession by stating that he is out of possession. 9. 2 In Premananda v. Dhirendranath Ganguly, AIR 1950 Cal 397, a Division Bench of the Calcutta High Court held as follows ;-"the question as to what Court-fee are payable on a plaint has to be decided on the allegation in the plaint and the nature of relief claimed. Whatever may transpire in the evidence, the plaint remains the same until and unless amended. . . . . . . If and when a Court comes to the conclusion that allegation of Joint possession in the plaint is not borne out by the evidence, the obvious result would be that the plaintiffs suit would fall unless the petition is suitably amended and further Court-fee paid. "it was held that where a fixed Court-fee is paid in a suit for partition on the allegation of Joint possession, ad valorem Court-fee will not be payable on the value of the property on the ground that the evidence showed that the plaintiff was not in possession. 9. The above decisions show the settled position that in so far as suits for partition are concerned the matter will have to be decided with reference to the plaint allegations alone. The controversy is also set at rest by two decisions of the Supreme Court. 9. 1 In Sathappa Chettiar v. Ramanathan Chettiar, AIR 1958 SC 245 , a Constitution Bench of the Supreme Court has made it clear that the question of Court-fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. The Supreme Court has also explained the reason for the legislature prescribing either a fixed Court-fee or a Court-fee on the basis of plaintiff's valuation of the relief, as follows :". . . . . . The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness.
. . . . . The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property. The basis of the claim is that the property in respect of which a share is claimed is Joint family property. In other words, it is property in which the plaintiff has an undivided share. What the plaintiff purports to do by making a claim for partition is to ask the Court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the conversion of the plaintiffs alleged undivided share in the Joint family property into his separate share cannot be easily in terms of rupees with any precision or definiteness. . . . 9. 2 In Neelavathi v. S. Natarajan, AIR 1980 SC 001 the Supreme Court was considering S. 37 (1) and (2) of Tamil Nadu Court-Fees and Suits Valuation Act, 1955, somewhat similar to S. 35 (1) and (2) of Karnataka Act. The Supreme Court, reiterated the principle in Sathappa Chettiar's case and held that it is settled law that the question of Court-fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. Further, interpreting the words 'excluded from possession' in S. 37 (1) of the Tamil Nadu Act (which corresponds to S. 35 (1) of Karnataka Act) the Supreme Court observed thus :the general principle of law is that in the case of co-owners, the possession of one is in law possession of all unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property.
To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as Joint is not disputed, the law presumes that he is in Joint possession unless he is excluded from such possession. Before plaintiffs could be galled upon to pay Court-fee under S. 37 (1) of the Act on the ground that they had been excluded from possessions, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from Joint poaaesalon to which they are entitled to in law. . . ,. . . ," (Emphasis supplied)As it was not unable to read into the plaint, a clear and specific admission that plaintiffs had been excluded from possession, the Supreme Court held that the direction by trial Court to the plaintiffs to pay Court-fee under S. 37 (1) of the Tamil Nadu Court-Fees Act was erroneous. 9. 3 In view of the decisions of the Supreme Court, it has to be held that the views expressed by the Pull Bench of Allahabad High Court in AIR 1964 All 722 and Oudh High Court in AIR 1945 Oudh 207 are not good law. ( 10 ) IF the plaintiff claims-to be in Joint possession (either constructive or actual) and flies a suit for partition and separate possession, he has to pay the Court-fee only under S. 36 (2) of the Act. In such a suit, the plaintiff will be entitled to relief, only if the Court accepts his contention that he is in Joint possession (either constructive or actual ). On the other hand, if the Court finds that he is not in possession or Joint possession (either constructive or actual) or if the Court finds that he has been excluded or ousted from possession, the relief will be denied. But the plaintiff cannot be required to pay Court-fee in such a situation.
On the other hand, if the Court finds that he is not in possession or Joint possession (either constructive or actual) or if the Court finds that he has been excluded or ousted from possession, the relief will be denied. But the plaintiff cannot be required to pay Court-fee in such a situation. If the Court finds that some of the properties in the plaint schedule are in the possession or Joint possession of the plaintiff, and others are not, the Court will give relief only in regard to those properties which are found to be in possession of Joint possession of the plaintiff and not in regard to those from which plaintiff had been excluded or ousted. The Court cannot, either at the instance of defendant, or suo motu convert the suit as one under S. 35 (1) on the basis of defendant's pleadings or evidence. We may illustrate by an example. When a suit is filed by a plaintiff for a bare injunction alleging that he is in possession and pays Court-fee under S. 26 (c) of the Act, and if defendant denies such possession and established that he (the defendant) has always been in possession, the Court will dismiss the suit for injunction. It will not and cannot hold that it is a suit for possession and consequential Injunction and call upon plaintiff to pay Court-fee under S. 24 (a) or 28 or 29 of the Act. ( 11 ) WE may now conveniently summarise the principles relating to Court-fee in regard to suits for partitions and appeals therefrom: (I) Payment of Court-fee will depend on plaint averment alone. Neither the, averments in the written statement, nor the evidence nor the final decision have a bearing on the decision relating to Court-fee. (II) The scope of investigation under S. 11 is confined practically to determine two points; (I) under valuation of the subject-matter of the suit and (II) category under which the suit falls, for the purpose of Court-fee. Once the category of suit is determined with reference to plaint averments, the Court cannot subsequently change the category on the basis of the averments in the written statement or on the basis of evidence and arguments.
Once the category of suit is determined with reference to plaint averments, the Court cannot subsequently change the category on the basis of the averments in the written statement or on the basis of evidence and arguments. In short, if the suit is found to fall under S. 38 (2) of the Act on the plaint averments, the Court has no power to convert the suit as one falling under S. 36 (1) of the Act, at any point of time, much less while rendering Judgment. The only exception is when the plaint is amended. (III) The plaintiff in a suit being domuinus litis has the choice of filing a suit of a particular nature or seek a particular relief. Neither the defendant nor the Court can alter the suit as one for a different relief or as a suit falling in a different category and require the plaintiff to pay Court-fee on such altered category of suit. (IV) If the plaintiff claims that he is in Joint possession of a property and seeks partition and separate possession, he categories the suit under S. 35 (2) of the Act. He is, therefore, liable to pay Court-fee only under S. 35 (2 ). If on evidence, it is found that he was not in Joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under S. 35 (1) of the Act and directing the plaintiff to pay the Court-fee under S. 35 (1) of the Act does not arise. Even after written statement and evidence, (which may demonstrate absence of possession or joint possession) if the plaintiff chooses not to amend the plaint to bring the suit under S. 35 (1) and pay Court-fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied. (V) On appreciation of evidence, if the Court disbelieves the claim of plaintiff regarding Joint possession, it can only hold that the case does not fall under S. 35 (2) and, therefore, plaintiff is not entitled to relief. It cannot. In the Judgment, hold that the case of plaintiff should be categorised under S. 35 (1) nor direct the plaintiff to pay Court-fee on market value under S. 35 (1) of the Act.
It cannot. In the Judgment, hold that the case of plaintiff should be categorised under S. 35 (1) nor direct the plaintiff to pay Court-fee on market value under S. 35 (1) of the Act. (VI) The Court-fee payable on an appeal is the same as the Court-fee payable on the suit. Therefore, even if the trial Court holds that plaintiff was not in joint possession or that plaintiff had been excluded from possession, there will be no change in the Court-fee payable in an appeal by the plaintiff against such decision. The Court-fee on the appeal will still be the same as the Court-fee paid on the plaint in the Court of first instance. ( 12 ) HENCE Court-fee paid on the appeal is proper. Hence, there is no merit in the application (IA II) filed by the respondents and the same is accordingly rejected. --- *** --- .