Full Judgment Text
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CASE NO.:
Writ Petition (civil) 199 of 2006
PETITIONER:
JAYA BACHCHAN
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT: 08/05/2006
BENCH:
Y.K. SABHARWAL CJI & C.K. THAKKER & R.V. RAVEENDRAN
JUDGMENT:
JUDGMENT
ORDER
The challenge in this petition filed under Article 32 of the Constitution
of India, is to the order of the Hon’ble President of India, dated 16th
March, 2006, whereby, in exercise of powers conferred under clause (1) of
Article 103 of the Constitution of India, the Hon’ble President has
decided, after obtaining the opinion of the Election Commission as required
by Article 103(2), that the petitioner stands disqualified for being a
Member of the Rajya Sabha on the From 14th day of July, 2004. The challenge
is also to the opinion dated 2nd March, 2006 rendered by the Election
Commission to the Hon’ble President, under clause (2) of Article 103, that
the petitioner became disqualified under Article 102(1)(a) of the
Constitution for being a Member of the Rajya Sabha on and from 14th July,
2004 on her appointment by the Government of Uttar Pradesh as Chairperson
of the U.P. Film Development Council.
2. The Government of Uttar Pradesh, by Official Memorandum dated 14.7.2004,
appointed the petitioner as the Chairperson of Uttar Pradesh Film
Development Council (for short ‘the Council’) and sanctioned to her the
rank of a Cabinet Minister with the facilities as mentioned in O.M. No.
14/1/46/87-C. Ex. (1) dated 22.3.1991 (as amended from time to time). The
benefits to which she became entitled, as a consequence, are :
(i) Honorarium of Rs. 5,000 per month;
(ii) Daily allowance @ Rs. 600 per day within the State and Rs. 750
outside the State. Rs. 10,000 per month towards entertainment expenditure.
(iii) Staff car with driver, telephones at office and residence, one
P.S., one P.A. and two class IV employees.
(iv) Body Guard and night escort.
(v) Free accommodation and medical treatment facilities to her and
family members.
(vi) Free accommodation in government circuit houses/guest house and
hospitality while on tour.
3. The Election Commission, after referring to the facts and the law
enunciated by this Court in several decisions, has expressed the opinion
that the office of Chairperson of the Council to which the petitioner was
appointed by the State Government by O.M. dated 14.7.2004, on the terms and
conditions specified therein, is an "office of profit" under the Government
of Uttar Pradesh for purposes of Article 102(1)(a) of the Constitution. The
Commission also found that Section 3 of the Parliament (Prevention of
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Disqualification) Act, 1959 did not exempt the said office of profit from
disqualification under Article 102(1)(a) of the Constitution.
4. The petitioner contends that the post of Chairperson of the Council, and
the conferment of the rank of Cabinet Minister, were only "decorative";
that she did not receive any remuneration or monetary benefit from the
State Government; that she did not seek residential accommodation, nor used
telephone of medical facilities; that though she travelled several times in
connection with her work as Chairperson, she never claimed any
reimbursement; and that she had accepted the Chairpersonship of the Council
honorarily and did not use any of the facilities mentioned in the O.M.
dated 22.3.1991. The petitioner contends that in the absence of any finding
by the Election Commission that she had received any payment or monetary
consideration from the State Government, she could not be said to hold any
office of profit under the State Government and, therefore, her
disqualification was invalid.
5. It is not in dispute that the Council is not an autonomous body or
statutory Corporation, that the Council has no budget of its own, and that
all its expenses are met by the Department of the State Government
administratively in-change of it. Similarly, the fact that the petitioner
was appointed as Chairperson of the Council, conferring on her the rank of
a Cabinet Minister entitling her to all the remuneration and benefits as
provided in the O.M. dated 22.3.1991 (extracted above), is also not
disputed.
6. Clause (1)(a) of Article 102 provides that 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. The term ‘holds an office
of profit’ though not defined has been the subject matter of
interpretation, in several decisions of this Court. 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. Nomenclature is not important. In fact, mere use of the word
‘honorarium’ cannot take the payment out of the purview of profit, if there
is pecuniary gain for the recipient. Payment of honorarium, in addition to
daily allowances in the nature of compensatory allowances, rent free
accommodation and chauffeur driven car at State expense, are clearly in the
nature of remuneration and a source of pecuniary gain and hence constitute
profit. 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. 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). This
position of law stands settled for over half a century commencing from the
decisions of Ravanna Subanna v. G.S. Kaggeerappa, AIR (1954) SC 653;
Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa, [1971] 3 SCC 870;
Satrucharla Chandrasekhar Raju v. Vyricherla pradeep Kumar Dev, [1992] 4
SCC 404 and Shibu Soren v. Dayanand Sahay & Ors., [2001] 7 SCC 425.
7. The petitioner relied on the decisions in Umrao Singh v. Darbara Singh,
[1969] 1 SCR 421 and Divya Prakash v. Kultar Chand Rana & Anr., [1975] 1
SCC 264.
8. In Umrao Singh (supra) the question that arose for consideration was
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whether payment of a monthly consolidated allowance for performing all
official duties and journeys concerning the work and a mileage allowance
for the journeys performed for official work outside the district and daily
allowances for the days of attendance of meetings/travel/halt, would
convert the office of Chairman of a Panchayat Samiti into an office of
profit. This Court held that these were allowances paid for the purpose of
ensuring that the Chairman did not have to spend money out of his own
pocket for discharging his official duties, and therefore, receipt of such
allowances did not make the office one of profit.
9. In Divya Prakash (supra), this Court held that the post of a Chairman of
the Board of School Education of the State of Himachal Pradesh was not an
office of profit. The candidate was appointed specifically in an honorary
capacity without any remuneration. Further the post of Chairman did not
carry with it a scale of pay. On the same date Bench also decided the case
of K.B. Rohamare v. Shankar Rao, [1975] 1 SCC 252, where while discussing
the question at length, Ravanna Subanna (supra) was cited with approval. It
was held in the said case that amount of money receivable (emphasis
supplied by us) by a person in connection with the office he holds is
material when deciding whether the office carried any profit.
10. Learned counsel for the petitioner has also referred to Biharilal
Dobrav v. Roshanlal Dobrav, [1984] 1 SCC 551 and contended that citing
Divya Prakash (supra), with approval, it was held that when a candidate is
appointed in an honorary capacity without any remuneration even though post
carried remuneration, he cannot be said to be holding an office of profit
and thus was not disqualified under Article 191 (1)(a) of the Constitution.
In Biharilal Dobray’s Case (supra) it was held that respondent was holding
an office of profit under the State Government and his nomination was
rightly rejected by the Returning Office. In that case, the only question
was whether the post the respondent was holding was one under State
Government or not. The observations made with reference to Divya Prakash’s
case were clearly obiter. Further, an error seems to have been made while
noticing Divya Prakash’s case. In Divya Prakash it was held that the post
did not carry with it any remuneration but in Biharilal Dobrey it was said
that the post carried remuneration.
11. A careful examination of the decisions relied upon the learned counsel
on behalf of the petitioner shows that each of those cases turned on its
own facts and did not lay down any proposition of law contrary to what has
been laid down in a series of decisions starting from Ravanna Subanna to
Shibu Soren. It is well settled that where the office carries with it
certain emoluments or the order of appointment states that the person
appointed is entitled to certain emoluments, then it will be an office of
profit, even if the holder of the office chooses not to receive/draw such
emoluments. 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.
12. In this case, as noticed above, the office carried with it a monthly
honorarium of Rs. 5000, entertainment expenditure of Rs. 10,000., staff car
with driver., telephones at office and residence, free accommodation and
medical treatment facilities to self and family members, apart from other
allowances etc. That these are pecuniary gains, cannot be denied. The fact
that the petitioner is affluent or was not interested in the
benefits/facilities given by the State Government or did not, in fact,
receive such benefits till date, are not relevant to the issue.
13. In this view, the question whether petitioner actually received any
pecuniary gain or not is of no consequence. We find no merit in the writ
petition and the same is, accordingly, dismissed.
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