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2010 DIGILAW 1081 (BOM)

Gajanan Samadhan Lande v. Sanjay Shyamrao Dhotre

2010-07-30

A.P.LAVANDE

body2010
Judgment By this petition, the petitioner has challenged the election of the respondent to the 15th Lok Sabha from Akola Constituency. The challenge is on the anvil of Section 100(1)(a) of the Representation of the People Act, 1951 ("The Act" for short) read with Article 102(1)(a) of the Constitution of India. The petitioner's challenge is also based on Section 10 of the Act. 2. The case of the petitioner is that the Maharashtra Seeds Corporation Limited (hereinafter referred to as "The Corporation") is a Corporation controlled by the State Government. The respondent at the time of his election was a Director elected from Growers constituency and he was ineligible to be a candidate for the said election since he was holding the office of profit. According to the petitioner, since the appropriate Government was holding 49% shares in the Corporation, the respondent attracts disqualification. It is further the case of the petitioner that the respondent is managing agent and as such also disqualified to be elected as Member of Parliament. It is also the case of the petitioner that since National Seeds Corporation Limited holds 35.44% shares in the Corporation the respondent suffers disqualification in terms of Section 10 of the Act. It is further the case of the petitioner that the respondent being Director of the Corporation receives various types of allowances from the Corporation which are in the nature of the emoluments and, therefore, he is holding the Office of profit under the Government. 3. The respondent filed written statement denying the statements made in the election petition. According to the respondent, the petition is not maintainable. The Office of Director held by the respondent is not an office under the Government. 4. It is further the case of the respondent that the amount received by the respondent by way of allowances is not in the nature of profit but it is by way of the reimbursement of actual expenses. It is further the case of the respondent that the Government has no right to remove or dismiss the respondent from the post of Director of the Corporation nor he discharges functions for and on behalf of the Government. According to the respondent, the Government has no control over the performance of functions of respondent as a Director of the Corporation. According to the respondent, the Government has no control over the performance of functions of respondent as a Director of the Corporation. The respondent does not hold the office of profit under the Government as contemplated under Article 102 of the Constitution of India and as such he is not liable to be disqualified in terms of Section 10 of the Act and consequently the petition is liable to be dismissed. The respondent further claims that he is not managing agent of the Corporation. 5. On the basis of the pleadings of the parties after hearing the parties the following issues were framed. 1) Whether the petition is maintainable? 2) Whether the office of Director of Maharashtra Seeds Corporation Limited (MSSCL) held by the respondent is an office under the Government? 3) Whether the petitioner proves that the amount received by the respondent being Director of MSSCL is in the nature of profit? 4) Whether the respondent proves that the amount received by him from MSSCL is the reimbursement of actual expenses? 5) Whether the petitioner proves that the respondent being Director of MSSCL the Government is in a position to influence the respondent as to interfere with his independence in functioning as a member of parliament? 6) Whether the respondent proves that he has been elected to the post of Director of MSSCL from Grower Shareholders category from Akola (Vidarbha Division) Constituency by the Grower Shareholders of MSSCL? 7) Whether the petitioner proves that the Government has right to remove or dismiss the respondent from the post of Director of MSSCL? 8) Whether the petitioner proves that the respondent by virtue of being a Director of MSSCL performs the functions for and on behalf of the Government? 9) Whether the petitioner proves that the Government has control over the performance of functions of respondent as a Director of MSSCL 10) Whether the respondent being Director of MSSCL holds office of profit under the Government as contemplated by Article 102 of the Constitution of India, 1950? 11) Whether the respondent is liable to be disqualified in view of Section 10 of the Representation of the People Act, 1951? 12) Whether the respondent is entitled to the protection of The Parliament (Prevention of Disqualification) Act, 1959? 13) Whether the respondent is entitled to the protection of Maharashtra Legislature Members (Removal of Disqualification) Act, 1956? 11) Whether the respondent is liable to be disqualified in view of Section 10 of the Representation of the People Act, 1951? 12) Whether the respondent is entitled to the protection of The Parliament (Prevention of Disqualification) Act, 1959? 13) Whether the respondent is entitled to the protection of Maharashtra Legislature Members (Removal of Disqualification) Act, 1956? 14) Whether the election of the respondent is liable to be declared void under Section 100(1)(a) of the Representation of the People Act, 1951? However, during the course of the arguments, the learned counsel appearing for both the parties submitted that issue No.6 i.e. whether the respondent proves that he has been elected to the post of Director of the Corporation from growers shareholders category from Akola (Vidarbha Division) Constituency by the Growers Shareholders of the Corporation has to be deleted since it is an admitted position that the respondent has been elected as Director of a Corporation from the Growers Shareholders category from Akola (Vidarbha division) Constituency by the Growers Shareholders of the Corporation. Accordingly, the issue No.6 stands deleted. 6. The petitioner in support of his case examined himself and one witness viz. Manoj Vasantrao Deshmukh and produced several documents in support of his case. 7. The respondent examined himself and examine one witness viz. Sanjay K. Mehta, Dy. General Manager (audit) of Corporation in support of his case and produced several documents in support of his case. 8. I shall refer to the relevant evidence led by the parties while dealing with the submissions made by the learned counsel for the parties. 9. Mr. Bhutada, learned counsel for the petitioner, placing reliance upon the Article 102(a) and (e) and 191(1)(a) of the Constitution of India, 1950 and Section 10 of the Act submitted that the respondent was ineligible to contest election as a Member of Parliament from Akola Constituency since he was holding the office of profit at the relevant time. According to Mr. Bhutada, the respondent was elected as Director of the Corporation which is controlled by the State Government and as such the respondent was disqualified to contest the election. Placing reliance upon the Memorandum and Articles of Association of the Corporation and the nature of the duties conferred on the Director, Mr. According to Mr. Bhutada, the respondent was elected as Director of the Corporation which is controlled by the State Government and as such the respondent was disqualified to contest the election. Placing reliance upon the Memorandum and Articles of Association of the Corporation and the nature of the duties conferred on the Director, Mr. Bhutada submitted that the National Seeds Corporation which is under the control of the Central Government and fully owned by the Government holds 35.44% shares in the Corporation and as such the respondent is liable to be disqualified as he was holding the office of profit under the Government Mr. Bhutada further submitted that the telephone allowance of Rs. 2000/- p.m. receivable by the respondent is by way of profit and the respondent has not discharged the burden of proving that the said amount is paid by way of reimbursement of actual expenses incurred by him towards telephone facility. According to Mr. Bhutada, the Corporation has been set up by the Government in discharging of duties under Article 48 of the Constitution of India dealing with the directives principles of State policy. According to Mr. Bhutada, Corporation is established to carry out the governmental functions in the field of agriculture and having regard to the objects for which the Corporation was established it is clear that the same was established for carrying out the governmental functions in the field of agriculture. He further submitted that in case, in the opinion of the Government of India and the Government of Maharashtra the Corporation fails to carry out the State Seeds Project the substratum of the Company shall be deemed to have failed and the Company shall be liable to be wound up. This clearly indicates that the Corporation is carrying out the functions of the Government. In other words the Corporation is a wing or extension of the Government. Mr. Bhutada further submitted that the Government has all control over the Corporation including the power to suspend/ dissolve the Board of Directors. Mr. Bhutada further submitted that the majority share holding in the Corporation is with the Government and/or its agencies and it is clear that the State Government has control over the affairs of the Corporation. Mr. Bhutada further submitted that in terms of clause (c) of Article 6 of the Articles of Association the Board of Directors has power to disqualify the growers shareholders. Mr. Bhutada further submitted that in terms of clause (c) of Article 6 of the Articles of Association the Board of Directors has power to disqualify the growers shareholders. Thus, according to Mr. Bhutada, the Memorandum and Articles of Association of the Corporation disclose that the Corporation is a Government Company and merely because it is the body corporate it cannot be said that its Directors are not holding the office of profit under the Government. Mr. Bhutada fairly submitted that whether the person holds office of profit and as such is disqualified to be a Member of Parliament depends upon the facts in each case as has been held by the Apex Court in several judgments and these tests are not exhaustive and whether the person holds the office of profit would depend upon several factors including the nature of the office. In support of his submissions, Mr. Bhutada relied upon the following Judgments. i) Biharilal Dobray vs. Roshan Lal Dobray (1984) 1 Supreme Court Cases 551. ii) Madhukar G.E. Pankakar vs. Jaswan Chobbildas Rajani and others, (1977) 1 Supreme Court Cases 70. iii) Guru Gobinda Basu vs. Sankari Prasad Ghosal & others, AIR 1964 Supreme Court 254. iv) Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrekar & others, (AIR 2006 Bombay 16). v) Dayanand Rayu Mandrekar vs.Chandrakant Uttam Chodankar and others, AIR 2008 Supreme Court, 1224. vi) Jaya Bachchan vs. Union of India (2006) 5 Supreme Court Cases 266. 10. Per contra, Mr. Gordey, learned Senior Counsel appearing for the respondent submitted that the respondent is not holding the office of profit under the Government and as such he has not incurred disqualification of being Member of Parliament. According to Mr. Gordey, the Corporation is a body corporate distinct and separate from the Government and as such cannot be termed as Government or wing of Government and, therefore, the Office of the Director of the Corporation held by the respondent cannot be said to be the office under the Government. He further submitted that the Government had no role to play in the election of respondent as a Director from the Growers Shareholders Constituency and the post held by the respondent is non governmental. He further submitted that the Government had no role to play in the election of respondent as a Director from the Growers Shareholders Constituency and the post held by the respondent is non governmental. He further submitted that the respondent cannot be removed from the post of Director of Corporation either by the State Government or the Central Government and as such the Office held by the respondent cannot be said to be the office under the Government. The learned counsel further submitted that neither the State Government nor the Central Government has any direct or indirect control over the functioning of the respondent as Director of the Corporation and the decisions are taken by majority of the Directors present in the Committee. The learned counsel further submitted that the Corporation does not receive any amount from the Government or its funds and consequently no amount can be said to be paid to any of the Directors including the respondent from the revenue of the Government. The learned counsel further submitted that from a bare perusal of the Memorandum and Articles of Association it is evident that the Corporation does not perform any governmental function. The learned counsel further submitted that since the Office of the Director held by the respondent does not come under the Government, the issue as to whether allowances received by him makes the office of profit is not required to be gone into. In any event, Mr. Gordey submitted that all the allowances received by the respondent are either compensatory in nature or are meant to meet out of pocket expenses which the respondent has to incur for discharging of his duties as a Director of the Corporation. In support of his submissions, Mr. Gordey has relied upon the following Judgments: i) Ashok Kumar Bhattacharyya vs. Ajoy Biswas & others (1985) 1 Supreme Court Cases 151. ii) Shrikant vs. Vasantrao and others (2006) 2 Supreme Court Cases 682. iii) Pradyut Bordoloi vs. Swapan Roy AIR 2001 Supreme Court 296. iv) Kona Prabhakara Rao v. M. Seshagiri Rao & another. (1982) 1 Supreme Court Cases 442. v) Karbhari Bhimaji Rohamare vs. Shanker Rao Genuji Kolhe and others. (1975) 1 Supreme Court Cases 252. vi) Shivamurthy Swami Inamdar vs. Agadi Sanganna Andanappa 1971(3) Supreme Court Cases 870. vii) D.R.Gurushantappa vs. Abdul Khuddus Anwar & others. 1969 (1) Supreme Court Cases 466. 11. (1982) 1 Supreme Court Cases 442. v) Karbhari Bhimaji Rohamare vs. Shanker Rao Genuji Kolhe and others. (1975) 1 Supreme Court Cases 252. vi) Shivamurthy Swami Inamdar vs. Agadi Sanganna Andanappa 1971(3) Supreme Court Cases 870. vii) D.R.Gurushantappa vs. Abdul Khuddus Anwar & others. 1969 (1) Supreme Court Cases 466. 11. Before analysis/ appreciating the evidence led by the parties, I shall deal with the authorities cited by the rival parties. 12a. In the case of Biharilal Dobray (supra) the Apex Court held that the object of enacting Article 191(1)(a) is that a person elected to a Legislature should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure and the same is intended to eliminate the possibility of a conflict between the duty and interest and to maintain the purity of the Legislatures. For holding an office of profit under the Government a person need not be in 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 characterized 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. In the said decision, the Apex Court further held that though the incorporation of a body corporate may suggest that the statute intended it to be a statutory corporation independent of the government it is not conclusive on the question whether it is really so independent. The true test of determination depends upon the degree of control the Government has over it, the extent of control exercised by the several other bodies or committees over it and their composition, the degree of its dependence on Government for its financial needs and the functional aspect, namely,whether the body is discharging any important governmental function or just some function which is merely optional from the point of view of Government. 12b. In the case of Madhukar Pankakar (supra) the Apex Court observed that for holding an office of profit under Government one need not be in the service of Government and there need not be relationship of master and servant. A practical view, not pedantic basket of tests, should guide in arriving at a sensible conclusion. 12c. In the case of Guru Govinda Basu (supra) the Apex Court held that the constitution makes a distinction between the holder of an office of profit under the government and the holder of a post or service under the Government.(see Articles 309 and 314). The Constitution has also made a distinction between 'the holder of an office of profit under the government' and 'the holder of an office of profit under a local or other authority subject to the control of Government (see Articles 58(2) and 66(4). In the said case the Apex Court further held that several factors which enter into the determination of this question as to a person is holding an office of profit are -the appointing authority, the authority vested with power to terminate or the appointment, the authority which determines the remuneration, the source from which remuneration is paid and the authority vested with power to control, the manner in which duties of the office are discharged and to give directions in that behalf and all these tests must coexist and each must show subordination to the Government and that it must necessarily follow that if one of the elements is absent, the test of a person holding an office under the government, Central or State, is not satisfied. 12d. 12d. In the case of Dayanand Mandrekar (supra) the learned Single Judge of this court disqualified the respondent no.1 to the Legislative Assembly of Goa on the ground that he was holding an office of profit since at the relevant time he was a Chairman of Goa Khadi and Village Industries Board of the State of Goa and the power of appointment and the removal vested with the Government and the payments made to him towards facilities provided to respondent no.1 were made by the Board from funds provided by the Government and as such the Government had all control over the Board in spite of it being a statutory authority. This Judgment was upheld by the Apex Court in the case of Dayanand vs. Chandrakant and another (AIR 2008 Supreme Court 1224). 12e. In the case of Jaya Bachchan (supra) relied upon by Mr. Bhutada, learned counsel for the petitioner, the Apex Court while interpreting Article 102(1)(a) of the Constitution held that an office of profit is an office which is capable of yielding a profit or pecuniary gain. Holding an office under the Central or State Government, to which some pay, salary, emolument, remuneration or non compensatory allowance is attached, is "holding an office of profit". The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form and nomenclature is not important. 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 and not whether the person actually obtained a monetary gain. 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. The Apex Court further held that if the office carries with it, or entitles the holder to any pecuniary gain other than reimbursement of out of pocket/ actual expenses, then the office will be an office of profit for the purpose of Article 102(1)(a). 13a. The Apex Court further held that if the office carries with it, or entitles the holder to any pecuniary gain other than reimbursement of out of pocket/ actual expenses, then the office will be an office of profit for the purpose of Article 102(1)(a). 13a. In the case of Ashok Kumar (supra) relied upon on behalf of the respondent, the Apex Court held that the object of enacting provisions like Article 102(1)(a) and Article 191(1)(a) is that a person who is elected to a Legislature or Parliament should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. The term "office of profit under the Government" used in clause (a) is an expression of wider import than a post held under the Government which is dealt with in Part XIV of the Constitution. The Apex Court further held that in order to determine the question whether a person holds an office under the Government, his case must be measured and/or judged in the light of the relevant provisions and circumstances. 13b. In the case of Shrikant (supra) the Apex Court dealt with the distinction between Articles 102(1) (a) and 191(1)(a) which deal with disqualification for membership of Houses of Parliament and the membership of the State Legislative Assembly/ Council on the one hand and Articles 58(2) and 66 (4) which deal with disqualification for election as President and Vice-President on the other hand. While Articles 102(1)(a) and 191(1)(a) disqualify any person holding any office of profit under the Government of India or Government of any State, Articles 58(2) and 66(4) disqualify any person holding any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.(emphasis supplied). The Apex Court further held that the State Government is different from "local or other authorities under the control of the State Government" for the purpose of disqualification. 13c. In the case of Pradyut Bordoloi (supra) the Apex Court held that in order to find out whether a person holds an office under the Government, the first and foremost question to be asked is, whether the Government has power to appoint and remove the person from the office? 13c. In the case of Pradyut Bordoloi (supra) the Apex Court held that in order to find out whether a person holds an office under the Government, the first and foremost question to be asked is, whether the Government has power to appoint and remove the person from the office? If the answer is in the negative, no further inquiry is called for, the basic determinative test having failed. If the answer be a positive one, further probe has to go on finding answers to questions framed in Shivamurthy's case ( 1971 (3) SCC 870 ) and searching for how many of the factors pointed out in Guru Govinda Basu's case ( AIR 1964 SC 254 ) do exist? The totality of the facts and circumstances reviewed in the light of the provisions of relevant Act, if any, would lead to an inference being drawn if the office held is under the Government. The question would whether on account of holding of such office would the government be in a position to so influence him as to interfere with his independence in functioning as a member of Legislative Assembly and/or would his holding of the two offices-one under the Government and the other being a member of Legislative Assembly, involve a conflict of interests inter se? The Apex held that this is how the issue has to be approached and resolved. 13d. In the case of Shivamurthy Swami Inamdar (supra) the Apex Court held that Khadi and Village Industries Board constituted under the Mysore Khadi and Village Industries Act, 1956 was an independent corporation though many of its activities came within the supervision of the Government. The Apex Court further held that the respondent was not disqualified though he was entitled to sitting fee of Rs. 16/- per day on the days he attends the meetings of the Board since the sitting fee paid to the members of the Board must be considered as compensatory allowance. 13e. The Apex Court further held that the respondent was not disqualified though he was entitled to sitting fee of Rs. 16/- per day on the days he attends the meetings of the Board since the sitting fee paid to the members of the Board must be considered as compensatory allowance. 13e. In the case of D.R.Gurushantappa (supra) the Apex Court held that the respondent who was an employee of a company owned by the Government of Mysore which subsequently became a Private company in which Government had a cent per cent share did not hold office of profit since the service conditions of the respondent were determined by the Standing Orders by the Company under the Industrial Employment Standing Orders and indirect control exercisable by the Government because of its power to appoint the Directors and to give general directions to the Company could not be held to make the post held by the respondent an office of profit under the Government. The Apex Court again referred to the principles laid down in the case of Guru Govinda Basu (supra) 14. Before dealing with the rival contentions in the light of the evidence led by the parties, I deem it appropriate to quote the relevant provisions upon which reliance has been placed by the learned counsel appearing on both sides. They read thus; "102(1)(a): A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder." "191(1)(a): A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State-if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder." "Section 10: A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a cooperative society) in the capital of which the appropriate Government has not less than twenty five percent share." 15. Mr. Mr. Bhutada, the learned counsel for the petitioner in order to substantiate his contention that the respondent is holding the office of profit has primarily relied upon seven documents viz. Exhs. 24, 27, 35, 29, 37, 38 and Exh. 47. Exh. 24 is a communication dated 9.7.2009 addressed by the Deputy General Manager and acting Company Secretary of the Corporation to Gajanan Lande the petitioner which discloses that during the years 2004-05 to 2008-09 the respondent received allowances towards sitting fee, telephone, daily allowance, travelling allowance and boarding allowances. The details of the amount received by the respondent year wise have been mentioned in the said document. Exh. 27 is the communication dated 1.6.2009 addressed by the Deputy General Manager to Manoj Yashwantrao Deshmukh witness No.2 for the petitioner. The said document discloses that the Government of Maharashtra holds 49% shares and the Central Government "through National Seeds Corporation Ltd." holds 35.44% in the Corporation. Exh. 29 is a Memorandum and Articles of Association of the Corporation. Exh. 35 is The Maharashtra State Seeds Corporation Limited (Appointment of Directors) Rules, 1977. Exhibits 37 and 38 are annual reports of the Corporation for the years 2007-2008 and 2008-2009. Exh. 47 is a certificate dated 17th September 2009 issued by the Deputy General Manager (Audit) and In-charge Company Secretary of the Corporation. It has been produced by the respondent in which it has been stated that the Corporation does not pay any salary, remuneration, commission, profit, honorarium to its Directors including Sanjay Shamrao Dhotre (respondent) In order to find out whether the respondent is holding the office of profit under the Government, it would be appropriate to refer to the Memorandum of Association. The objects for which the Company is established as mentioned in the Memorandum of Association are as follows: 1) To implement for State Seed Project forming part of National Seeds Programme in accordance with the arrangements between International Development Agency / International Bank for Reconstruction and Development, Government of India, National Seeds Corporation Limited, Maharashtra Government and the Company or between any two or more of them. 2) To undertake the production of certified seeds of all those kinds and varieties coming under the purview of the Seeds Act and quality seeds of other kinds or varieties. 3) To process certified seeds on scientific and commercial lines. 4) To instal, manage and operate processing plants and seed storage facilities. 2) To undertake the production of certified seeds of all those kinds and varieties coming under the purview of the Seeds Act and quality seeds of other kinds or varieties. 3) To process certified seeds on scientific and commercial lines. 4) To instal, manage and operate processing plants and seed storage facilities. 5) To undertake and promote research in agriculture in general and seed production, processing, preserving and storage techniques in particular, in collaboration with ICAR, Agricultural Universities and National Seeds Corporation Limited and other institutions. 6) To make arrangements for supply foundation seeds to grower shareholders through arrangement with NSC for varieties of all India and regional importance and through other agencies for local varieties. 7) To undertake distribution of seeds to farmers at reasonable prices and insufficient quantities to support agricultural production programmes. 8) To carry on activities of collection, processing, drying, storage, preservation, distribution, transportation and marketing of certified seeds of the grower shareholders on commercial lines. The Memorandum of Association also mentions the incidental objects. The incidental objects which are mentioned, inter alia, are as follows: 9) To carry on business as seed merchants, to buy, sell prepare for market and deal in seeds of all kinds. 10) To carry on all or any of the business usually carried on by seed companies in all their several branches and in particular to lay out, improve, alter and develop any land or property and thereon to erect, construct, alter or rebuild any buildings or works whatsoever. 11) To purchase, own, acquire, take on lease and operate land, farm machinery, seed storage and seed cleaning, seed processing and transportation equipment deemed necessary for a seed business. 12) To own and operate farm machinery, seed processing, storage and transportation facilities and equipment given on a rental basis. 13) To enter into contract with individuals, co-operative societies, corporations and government agencies, in the growing, processing, drying, storing distributing, transporting, buying and selling of agricultural seeds. There are other incidental objects which are not very much relevant for deciding the issue involved in the petition. Thus, the documentary evidence produced by the petitioner and by the respondent discloses that the Corporation has been, inter alia, established to implement the State Seeds Project and to carry out other incidental activities. Exhs. There are other incidental objects which are not very much relevant for deciding the issue involved in the petition. Thus, the documentary evidence produced by the petitioner and by the respondent discloses that the Corporation has been, inter alia, established to implement the State Seeds Project and to carry out other incidental activities. Exhs. 37 and 38 which are Annual Reports of the Corporation for the years 2007-08 and 2008-09 respectively disclose that the major income of the Corporation is by way of sale of seeds. In the light of the above evidence the moot question which arises for consideration is whether the tests laid down by the Apex Court in the various Judgments referred to above to determine whether the respondent was holding the office of profit under the Government have been satisfied? Perusal of the Articles of Association and Memorandum of Association and various clauses therein does not reveal that the State Government has any direct control over the functioning of the Corporation. The Articles of Association and Memorandum of Association as well as the Maharashtra State Seeds Corporation Limited (Appointment of Directors) Rules, 1977 which are approved by the Company do not also empower the State Government or the Central Government to remove the Directors of the Corporation. The Annual Reports for the year 2007-08 and 2008-09 (Exh. 37 and 38 respectively) disclose that the major income of the Corporation is by way of sale of seeds and the Government does not advance any finance to the Corporation. The Articles of Association and Memorandum of Association of the Corporation also do not discloses that the Government has any direct control over the duties and functions of the Directors of the Corporation. No doubt Exh. 27 i.e. the Communication addressed by the Deputy General Manager to Manoj Deshmukh discloses that the State Government has 49% shares and Central Government through National Seeds Corporation has 35.44% shares in the Corporation. But, this fact by itself would not be sufficient to hold that the State Government or the Central Government has control over the duties and functions of the Directors of the Corporation. The Articles of Association and Memorandum of Association does not discloses that the Corporation is dependent on the Government for its financial needs. Insofar as the arguments of Mr. The Articles of Association and Memorandum of Association does not discloses that the Corporation is dependent on the Government for its financial needs. Insofar as the arguments of Mr. Bhutada that the Corporation is discharging the governmental functions by undertaking the activities mentioned in the Articles of Association is concerned, I find no merit in the said submission. Bare perusal of the Articles of Association which mentions the main and ancillary objects discloses that the Corporation is primarily being run on commercial basis like any other words commercial establishment. To undertake the production of certified seeds, to process certified seeds on scientific and commercial lines, to promote research in agriculture in general and seed production, processing, preserving and storage techniques in particular, in collaboration with ICAR, Agricultural Universities and National Seeds Corporation Limited and other institutions and to implement State Seed Project cannot be said to be in discharge of governmental functions. Therefore, I am unable to accept the submission of Mr. Bhutada that the Corporation is discharging governmental functions and for all purposes the Corporation is a Government and, therefore, respondent is holding the office of profit under the Government. 16. The various Judgments of the Apex Court which have been referred to above have laid down the tests for finding out whether a person holds an office of profit under the Government. They are as follows: a) Whether the Government makes an appointment; b) Whether the Government has right to remove or dismiss holder of the office; c) Whether the Government pays remuneration; d) Whether the functions performed by the holder are carried on by him for the Government; e) Whether the Government has control over the duties and functions of the holder; In my considered opinion, none of the above tests is satisfied in the present case. In the present case neither the State Government has right to remove the Director (including respondent) of the Corporation nor the Government pays any remuneration to the respondent. The functions performed by the respondent as a Director of Corporation cannot be said to be carried on by him for the Government nor the Government has control over his duties and functions. Therefore, in my considered opinion, the submission of Mr. Bhutada that the respondent is holding the office of profit under the Government cannot be accepted. 17. No doubt Exh. Therefore, in my considered opinion, the submission of Mr. Bhutada that the respondent is holding the office of profit under the Government cannot be accepted. 17. No doubt Exh. 27 discloses that in the Corporation the State of Maharashtra holds 49% shares and the Central Government through National Seeds Corporation Limited holds 35.44% shares. However, merely because the substantial shares in the Corporation are held by the Central or the State Government, the same by itself would not make the Corporation a wing of the Government. I, therefore, find it difficult to accept the submission of Mr. Bhutada that the Corporation has to be treated like a Government Company or a wing of the Government. Reliance has been placed by Mr. Bhutada on clause (c) of Article 6 of the Articles of Association to urge that the Government has control over the Corporation is without any substance. Article 6(c) of the Articles of Association reads thus: "6(c): If any grower, to whom shares have been allotted, is at any time found not to possess or loses any of the aforesaid qualifications he may be required by the Board of Directors to sell his shares to one or more persons at a price determined by the Board. Provided that if a grower shareholder ceases to produce seed for a period not exceeding one year he shall not be deemed to have lost the qualification. Provided further that a grower shareholder shall not be deemed to have lost his qualification if for any reason the company has not required him to produce seed during relevant period." A bare perusal of clause (c) of Article 6 discloses that it is only in a case where grower shareholder is found not to possess or loses, qualifications required to be a grower shareholder that it may be required by the Board of Directors to sell his shares to one or more persons at a price determined by the Board. Article 6(c) does not indicate that the Board of Directors has absolute powers to disqualify the grower shareholder. In any case this clause does not by any stretch of imagination gives any indication that the Government or its functionaries have any control over the Board of Directors of the Corporation including the respondent. 18. Insofar as the argument of Mr. Article 6(c) does not indicate that the Board of Directors has absolute powers to disqualify the grower shareholder. In any case this clause does not by any stretch of imagination gives any indication that the Government or its functionaries have any control over the Board of Directors of the Corporation including the respondent. 18. Insofar as the argument of Mr. Bhutada that in case, in the opinion of the Government of India and/or the Government of Maharashtra the Corporation fails to carry out the State Seeds Project the substratum of the Company shall be deemed to have failed and the Company shall be liable to be wound up indicates that the Corporation is carrying out the functions of the Government is concerned, I do not find any merit in the submission of Mr. Bhutada. Merely because in a given situation the Company is liable to be wound up by itself could not be a indicator that the Government has control over the Corporation or it is a wing or extension of the Government. Having regard to the Memorandum of Association and Articles of Association of the Corporation it is evident that the Government has no control on the Corporation nor it has power to suspend the Board of Directors. Therefore, in my view, submission of Mr. Bhutada that the Corporation is a Government Company or extension of the Government has no merit. Since the Corporation does not receive any financial aid from the Government mere fact that the respondent is receiving telephone allowances of Rs. 2000/-per month would not be sufficient to hold that he is holding the office of profit under the Government. As such the question of respondent discharging his burden that the amount receivable as telephone allowance is compensatory in nature does not arise. 19. The next submission made by Mr. Bhutada is on the basis of Section 10 of the Representation of the Peoples Act. According to Mr. Bhutada, the petitioner being a Director of the Corporation is a managing agent of the Corporation and since the appropriate Government i.e. the Central Government has more than 25% shares as disclosed by Exh. 27, the respondent stands disqualified. Considering the nature of the duties of the Director, I find no merit in the submission of Mr. Bhutada that the respondent being Director of the Corporation is a managing agent of the Corporation. Mr. 27, the respondent stands disqualified. Considering the nature of the duties of the Director, I find no merit in the submission of Mr. Bhutada that the respondent being Director of the Corporation is a managing agent of the Corporation. Mr. Gordey is right in placing reliance upon Section 182 of the Indian Contract Act, 1872 which defines an agent to a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented is called the Principal. In order to term a person as managing agent he has to first to be an agent and he is required to be employed to represent another in dealing with third persons. There is absolutely no evidence led by the petitioner that the respondent has been authorized to represent the Corporation in entering into an agreement with the third parties. The mere fact that the respondent is a Director of the Corporation would not make him an agent of the Corporation and as such there is no question of respondent being considered as managing agent of the Corporation. 20. I, therefore, hold that the respondent is not disqualified to be Member of Parliament either under Article 102(1)(a) of the Constitution of India or under Section 10 of The Representation of the Peoples Act, 1951. 21. In view of the above discussion, I answer issue no.1 in favour of the petitioner. Issue Nos.2, 5, 7, 8, 9, 10 and 11 are answered against the petitioner. In view of the findings on the above referred issues it is not necessary to record any finding on issue Nos.3, 4, 12, 13 and 14. In the result, therefore, the petition is dismissed with costs which are quantified at Rs.10,000/-.