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2006 DIGILAW 1022 (GAU)

Abdur Rahim Laskar v. Kholilura Rahman Choudhury

2006-11-21

B.SUDERSHAN REDDY, HRISHIKESH ROY

body2006
JUDGMENT B. Sudershan Reddy, C.J. 1. Pursuant to the Notification issued by the Election Commission of Assam for electing Members to Anchalik Panchayat five persons including the appellant herein have filed their nominations seeking election as a Member from No. 2 Norsingpur Anchalik Panchayat under No. 3/02 Sonai Middle Zila Parishad from 35 No. Chandpur G.P. Area on 5.12.2001. The nomination of the 1st respondent herein has been rejected. The appellant herein has been declared to have been duly elected as the Member of the said Anchalik Panchayat. The respondent No. 1 herein, thereupon, filed Title Suit being TS(E) No. 19 of 2002 before the Panchayat Election Tribunal, Cachar, Silchar with the following prayer: (a) For declaration of election of the respondent No. 1 as null and void who was declared elected from No. 03/02 Zila Parishad under 35 No. Chandpur G.P. for the post of No. 2 Norsingpur Anchalik Panchayat Member. (b) For declaring the petitioner elected as a said No. 2 Narsingpur Anchalik Panchayat Member. (c) For costs and other reliefs that may deem fit and proper to grant in favour of the humble petitioner. 2. The case set up by the 1st respondent before the Election Tribunal is that the appellant herein had been serving as a Clerk at East Kazidahar High School and "the said school is an affiliated to Government of Assam and from time to time the Government had granted aids to the said School. He is not eligible to contest for Panchayat Election vide Assam Panchayat Raj Act and its Rules". Objections were raised in this regard before the Returning Officer at the time of scrutiny of the nomination papers, but the concerned A.R.O. "most illegally and most arbitrarily have declared the nomination paper of the respondent No. 1 as valid one". That is all what has been pleaded in the Title Suit before the Election Tribunal. 3. Objections were raised in this regard before the Returning Officer at the time of scrutiny of the nomination papers, but the concerned A.R.O. "most illegally and most arbitrarily have declared the nomination paper of the respondent No. 1 as valid one". That is all what has been pleaded in the Title Suit before the Election Tribunal. 3. The appellant herein filed a detailed written statement, inter alia, stating that "it is true that respondent No. 1 (appellant herein) is a Clerk of East Kazidahar High School and that East Kazidahar High School is in ad hoc stage, and in the event of declaration of election - respondent No. 1 took approval from the managing committee of East Kazidahar High School and after getting approval of the managing committee, the respondent No. 1 filed a petition on 3.12.2001 to the Inspector of Schools, CDC, Silchar through the Secretary/Headmaster of East Kazidahar High School seeking permission to contest in the ensuing panchayat election and the Inspector of Schools, CDC, Silchar passed order dated 6.4.2002 "permitting him to contest the said election". Much may have to be said about the pleadings of both the parties. The 1st respondent in his said petition does not refer to any provision of law under which the election of the appellant is required to be set aside. It is not pleaded that the appellant is holding "any service of profit under Government or any educational institution recognized and received grant from the government". The appellant does not say anything in his written statement except pleaded that he has been permitted to contest the election. The Election Tribunal/District Judge, Cachar, Silchar framed the following three issued for consideration: (1) Whether the O.P. No. 1 is a public servant within the meaning of Assam Panchayat Raj Act, 1994 ? (2) Whether the nomination of O.P. No. 1 was accepted properly and was valid, if not, whether election to Anchalik Panchayat Member of 3/02 Sonai Middle Zila Parishad from 35 No. Chandpur G.P. was valid ? (3) Whether the plaintiff is entitled to any relief ? 4. The learned District Judge relying upon the admission of the appellant herein made in his written statement that he was a Clerk of the East Kazidahar High School came to the conclusion that the appellant "was a public servant within the meaning of the Assam Panchayat Act, 1994". (3) Whether the plaintiff is entitled to any relief ? 4. The learned District Judge relying upon the admission of the appellant herein made in his written statement that he was a Clerk of the East Kazidahar High School came to the conclusion that the appellant "was a public servant within the meaning of the Assam Panchayat Act, 1994". The learned District Judge accordingly held that the appellant herein was "holding office of profit under the Government and contested the election and got elected. His nomination papers should have been rejected out rightly by respondent No. 5 or such other authorities. It was not so done." The learned District Judge accordingly declared the election of the appellant to be void and inoperative. 5. The appellant herein filed the writ petition, inter alia, contending that he was working as Clerk on honorary basis in the aforesaid School which was in ad hoc stage and he did not receive any kind of financial grant or aid from the government and that he obtained the permission from the school authorities to contest the election which was granted. It was contended that he was not holding office of profit within the meaning of Section 111(e) of the Assam Panchayat Act and he has not drawn any salary or remuneration and more so in view of the fact that he has been working on honorary basis as office assistant since its inception as the founder member of the institution without any salary or financial benefit. The other allegations levelled against him have been denied. 6. The learned Single Judge noted that the appellant herein did not examine any witness and did not even participate in the proceeding before the learned District Judge from 30.4.2005. The learned Judge also noted that the appellant herein in his written statement admitted that he was working as a Clerk in East Kazidahar High School. The learned Judge relying upon Annexure 4(b) came to the conclusion that the school in question is in receipt of ad hoc grant of Rs. 2,000 per month and FC grant on student enrolment basis. The learned Judge accordingly held that the appellant herein was not entitled to contest the election and accordingly set aside the election. The learned Judge also held that the appellant never took the plea that he was not holding any service of profit. Hence, this appeal. 7. 2,000 per month and FC grant on student enrolment basis. The learned Judge accordingly held that the appellant herein was not entitled to contest the election and accordingly set aside the election. The learned Judge also held that the appellant never took the plea that he was not holding any service of profit. Hence, this appeal. 7. Section 111 of the Assam Panchayat Act, 1994 deals with disqualifications for being 'elected or co-opted' and remain as President, Vice President or Member of Zilla Parishad, Anchalik Panchayat and Gaon Panchayat, if he or she hold any service of profit under the Government or any educational institution recognized and received grant from the Government of holds remunerated office under Zilla Parishad, Anchalik Panchayat and Gaon Panchayat or holds any contract under any of the aforesaid bodies or under the government. Section 111 of the said Act reads as under: 111. Disqualifications. - No person shall be elected or co-opted and remain as President, Vice-President or Member of Zilla Parishad, Anchalik Panchayat and Gaon Panchayat, if he or she - (a) . . . (b) . . . (c) . . . (d) . . . (e) Hold any service of profit under Government or any educational institution recognized and received grant from the government, or holds remunerated office under Zilla Parishad, Anchalik Panchayat and Gaon Panchayat or holds any contract under any of the aforesaid bodies or under the Government; or (f) . . . (g) . . . (h) . . . (i) . . . (j) ... 8. In Title Suit filed by the 1st respondent it is no where pleaded that the appellant herein at the relevant time was holding any service of profit under the government or any educational institution recognized or received grants from the government. It is only during the course of the trial it was urged that some financial benefits were made available for the school where the appellant is alleged to have been working as a Clerk. There is also evidence available on record that the school in question is also recognized one. But, there is no plea much less any evidence that the appellant herein was holding any service of profit. There is no evidence whatsoever that any specified amount of money was receivable by the appellant in connection with the office held by him. 9. There is also evidence available on record that the school in question is also recognized one. But, there is no plea much less any evidence that the appellant herein was holding any service of profit. There is no evidence whatsoever that any specified amount of money was receivable by the appellant in connection with the office held by him. 9. In Shibu Soren v. Dayanand Sahay and Ors. [2001] 3 SCR 1020, the Apex Court while noticing that the expression "office of profit" has not been defined either in the Constitution or in the Representative of People Act, observed: In common parlance the expression "profit" connotes an idea of some pecuniary gain. If there is really some gain, its label - "honorarium" - "remuneration" - "salary" is not material - it is the substance and not the form which matters and even the quantum or amount of "pecuniary gain" is not relevant - what needs to be found out is whether the amount of money receivable by the person concerned in connection with the office he holds, gives to him some "pecuniary gain", other than as "compensation" to defray his out-of-pocket expenses, which may have the possibility to bring that person under the influence of the executive, which is conferring that benefit on him. The court further observed that with a view to determine whether the office concerned is an "office of profit", the court must, however, take a realistic view. Taking a broad or general view, ignoring essential details is not desirable nor is it permissible to take a narrow view by which technicality may overtake reality. The Apex Court cautioned that the courts are required to be borne in mind that "what is at stake is the right to contest an election and to be a Member of the Legislature, indeed a very important right in any democratic set-up". The court further observed that for determination of the core question, each case has to be judged in the light of the relevant provisions of the statute and its own peculiar facts, keeping in view the object of enactments. 10. In Jaya Bachchan v. Union of India and Ors. The court further observed that for determination of the core question, each case has to be judged in the light of the relevant provisions of the statute and its own peculiar facts, keeping in view the object of enactments. 10. In Jaya Bachchan v. Union of India and Ors. AIR 2006 SC 2119 , the Supreme Court held that for deciding the question as to whether "one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain or not. Whether the person actually obtained a monetary gain is not relevant. If the 'pecuniary gain' is 'receivable' in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not". In its authoritative pronouncement the court held what is relevant is whether pecuniary gain is "receivable" in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly. 11. There is no dispute whatsoever in the instant case that the school, in question, where the appellant herein, admittedly, was working at the relevant time is a recognized one. The evidence produced by the 1st respondent in the election petition though there is no specific plea as such to suggest that the school has been receiving some grants from the Government. But the crucial question is whether the appellant herein was holding any service of profit at the relevant time. There is no pleading much less any evidence that the appellant herein at the relevant time was holding any service of profit. Neither there is any plea "much less any evidence that the service rendered by the appellant is capable of yielding any profit or pecuniary gain. The said essential requirements to set aside the election are found to be singularly absent. Declaring a person, who is elected to an office on the ground of disqualification, is fraught with serious consequences and interference by the courts with the election process is not a matter of course. Heavy burden is cast upon the person challenging the election to specifically plead and prove that the elected person suffers from disqualification as provided for in the relevant statute. Heavy burden is cast upon the person challenging the election to specifically plead and prove that the elected person suffers from disqualification as provided for in the relevant statute. The admission of the appellant herein that he has been working as a Clerk in the said school is of no consequence since there is no admission on his part that the post or office as the case may be held by him is capable of yielding a profit or pecuniary gain. There is no admission that he was holding service of profit or an office under the State Government or educational institution to which some pay, salary, emolument, remuneration or non-compensatory allowance is attached and receivable. 12. For the aforesaid reasons, we hold that the judgment of the learned District Judge-cum-Election Tribunal suffers from errors apparent on the face of the record and thereby is vitiated requiring interference of this court in exercise of its Certiorari jurisdiction. The learned District Judge casually interfered with the result of the election. The learned District Judge even did not care to frame proper issues. The learned Single Judge, in our considered opinion, ought to have interfered with the erroneous order, which is vitiated for more than one reasons. 13. In the result, this appeal is allowed. Title Suit No. 19/2002 filed by the 1st respondent/appellant herein shall accordingly stand dismissed. The judgment under appeal and as well as the order of the learned District Judge are accordingly set aside. The appellant is entitled to costs all through. Appeal allowed.