(1) This election petition under Section 81 of the Representation of the People Act, 1951, has been filed by the petitioner Motisingh to call in question the election of respondent Bhaiyyalal to the Maharashtra Legislative Assembly from the Tiroda Constituency held in February 1967.
(2) Respondent Bhaiyyalal was elected the Vice-President of Zilla Parishad, Bhandara, in about November 1962. In view of the provisions of Section 83 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Maharashtra Act No. V of 1962), hereinafter called the Act he has been the ex-officio Chairman of two Subjects Committees. He has been continuing to hold that position of Vice-President of the Zilla Parishad and Chairman of the Subjects Committees all along from November 1962 till now. As the Chairman of the Subjects Committees, he is, under the provisions of Section 84 of the Act entitled to get, and has been getting, what is called an honorarium of three-hundred rupees per month and the use of a free furnished residential accommodation or, in lieu thereof, such house rent allowance as may be prescribed by the Zilla Parishad. He is also entitled to get a permanent travelling allowance of Rs. 175/- per month out of which Rs. 50/- are deducted on account of the hire of a jeep kept at his disposal. In addition he is entitled to a daily allowance as prescribed by the Government under the rules. These facts were specifically admitted before me and represented the common ground between the parties.
(3) The case for the petitioner was as follows:-
The office of Vice-President-cum-Chairman of the Subjects Committees held by the respondent was under the control and supervision of the State Government for all practical purposes. The provisions of the Act and the rules framed thereunder showed that the office was, in fact, held under the State Government. The respondent was paid a salary from the public revenues and was also provided with the amenities of a jeep and residential accommodation or a rent in lieu thereof, at the cost of public revenues. While performing his official duties, he is governed by the rules pertaining to travelling and other allowances as framed by the Government and his leave also is sanctioned by the State Government. He is liable to be removed from his office by the Government. For all these reasons, the office held by the respondent was an office of profit under the State Government on the date of election and he was, therefore, disqualified under Art. 191(1)(a) of the Constitution from being chosen as a member of the Legislative Assembly. His election should be declared void under Section 100(1)(a) of the Representation of the People Act, 1951.
(4) Respondent Bhaiyyalal contested the claim of the petitioner on the ground that he was not getting any honorarium or any other kind of payment in his capacity as Vice-President and no allegations were made in the petition with regard to the office of the Chairman of the Subjects Committees which he held ex-officio as the Vice-President of the Zilla Parishad. He further contended that even if the two offices were one, they were not under the control or supervision of the Government and did not carry any remuneration and gave no scope for profit and he was ordinarily not removable from office by Government. Consequently, he did not hold an office of profit under the State Government and there was no question of his being disqualified under Article 191(1)(a) of the Constitution of India.
(5) The following issues were framed and my findings thereon are stated opposite.
1(a). Is the office of Vice-President, Zilla Parishad, Bhandara, which the respo ndent was holding on the date of the nomination and election to the State Legisl ative Assembly in 1967, an office of profit under the State Government, within t he meaning of Art. 191(1)(a) of the Constitution?.......
It is not an office of profit under the State Government. 1(b). Does this alleged disqualification stand removed by virtue of the provisio ns of S. 84(8) of the Maharashtra Zilla Parishads and Panchayat Samitis?........ ........
2. Is the decision of the question regarding the alleged disqualification within the exclusive jurisdiction of the Governor under Art. 192 of the Constitution a nd if so, has this Court no jurisdiction to try this petition?.......
3. Is the petitioner estopped from challenging the election of the respondent on the ground of this disqualification because of his failure or omission to raise the question at the same of scrutiny of nomination papers?.....................
4. Is the election of the respondent liable to be set aside on the ground that i t is void under S. 100(1)(a) of the Representation of the People Act, 1951?..... ....
5. Relief and costs?.........
The petition stands dismissed with costs.
Reasons for the findings.
(6) Issue No. 1(a) - According to Mr. Dharmadhikari Advocate for the petitioner, the honorarium and allowances payable to the respondent and the perquisites in the shape of a free accommodation or rent in lieu thereof and the grant of a vehicle for use, clearly showed that the respondent made a sizable profit out of his office and, therefore, he was holding an office of profit. According to Mr. Mandlekar, the permanent travelling allowance and the other allowances under the rules were only given for compensating the incumbent of the office for the incidental expenses made by him for undertaking tours and attending meetings and could not therefore be described as a profit accruing from the office Mr. Mandelkar further submitted that the perquisities of free accommodation or rent in lieu thereof and of a free vehicle were meant only for official use while the incumbent was staying at the head-quarters of the Zilla Parishad for carrying out his duties of office and could not therefore be treated as rendering any profit to him. According to him, the honorarium was not by way of any remuneration but could be taken as an equivalent of a daily allowance calculated at Rs. 10/- per day which would be less than that of a daily allowance for a Class I Government servant with whom he was equated by the rules.
(7) Mr. Dharmadhikari did not dispute the correctness of the submission of Mr. Mandlekar that the permanent travelling allowance and the other allowances for attending meetings could fairly be taken as payment for compensating the incumbent for the expenses and trouble incurred by him for undertaking tours and for attending meetings. He did not therefore, press his submission that these allowances could be treated as a profit flowing to the respondent from his office.
(8) It is true that a Vice-President, who is an ex-officio Chairman of two Subjects Committees has to reside at the head-quarters of the Zilla Parishad. However, Section 84 of the Act permits the grant of a free accommodation or rent in lieu thereof, irrespective of whether the incumbent possesses a residence at the head quarters of the Zilla Parishad or shifts to the headquarter from some rural area. That section would mean that the moment a person was elected to the office of the Vice-President and, therefore, had become an ex-officio Chairman of the Subjects Committees, he would become entitled to this free accommodation or rent in lieu thereof even if he was a permanent resident of the place and living in his own house where the headquarters of the Zilla Parishad were situated. True, the residential house as also the jeep car provided to the Vice-President-cum-Chairman of the Subjects Committees, were primarily meant for his official duties but it cannot be gainsaid that both the house and the jeep would in actual fact, be used only partly for his official work and partly for the private use of the incumbent. In this connection, a reference to the Indian Income-tax Act would be useful. In the case of a person getting free accommodation or free conveyance the income-tax department, admittedly determines the percentage of use for official purposes and excludes that for the purposes of levying of income-tax and charges income-tax on that percentage of use of these perquisites which are not used for official purpose though given by Government. That means that atleast part of these perquisites is treated as income of the employee in addition to his salary. By analogy of that reasoning these perquisites of a residential accommodation and of a free use of a vehicle would necessarily amount to a profit to the incumbent in so far as he used them otherwise than for the purpose of his office, Mr. Mandelkar does not, therefore, seem to be right in saying that no part of these perquisites could amount to a profit to the incumbent. The extent of the part would be a question of fact to be determined in each case but the fact would remain that atleast a part of these amenities of a free accommodation and free conveyance would necessarily amount to a profit to the incumbent which he would be using also for his personal purposes otherwise than for his official use.
(9) Mr. Mandlekar showed no warrant for supporting his claim that the monthly honorarium of Rs. 300 should be equated to a daily allowance on the basis of Rs. 10 per day. If that was the intention of the Legislature there was nothing to prevent them from saying so. Moreover, daily allowance is paid only in certain events, for instance, when a person goes on a tour and it is not paid when he remains at headquarters, for doing his duties. It does not seem to be permissible to convert a monthly payment into a sort of a daily wage or daily allowance by dividing it by the number of days in a month. Moreover, this submission would stand negatived by the admitted position that, apart from the honorarium, the respondent is entitled to get other allowances when he goes no tours or attends meetings. Accepting the argument of Mr. Mandlekar would result in granting a double payment of allowances to an incumbent which would not be permissible under the rules. So long as persons in the position of the respondent are entitled to daily allowances under certain circumstances, this submission that the honorarium should be treated as equivalent to daily allowance cannot be upheld.
(10) Mr. Dharmadhikari drew my attention to S. 46 of the Act according to which the President of a Zilla Parishad, who is to get an honorarium of Rs. 500 per month, is enjoined to devote sufficient time and attention to the duties of his office. Section 55 which prescribes the functions of the Vice-President, requires the Vice-President to preside over the meetings in the absence of the President and to exercise such other powers and perform such other duties as President, as the President may delegate to him an order in writing and has also to perform the duties of President in the absence of the President on leave. As soon as a person is appointed a Vice-President, he has to take over the duties of Chairman of two Subjects Committees under the provisions of S. 83. He becomes entitles to the honorarium of Rs. 300 retrospectively from the date of his election as a Vice-President upon his taking over the duties of Chairman of the Subjects Committees. The Vice-President or the Chairman of the Subjects Committees cannot remain absent without leave and is required to stay permanently at the head-quarters. In view of these provisions even Mr. Mandlekar did not dispute that the duties of a Vice-President-cum-Chairman of Subjects Committees were whole-time. In the face of that position, it is indeed difficult to accept the contention of Mr. Mandlekar that this payment called honorarium is not by way of remuneration. Looking to the functions and duties as Vice-President and the fact that it is a whole time job the conclusion would seem irresistible that the payment of Rs. 300 per month is made by way of a remuneration, though it has been described only as an honorarium. It is not the use of the word 'honorarium' which would decide the question.
(11) A reference to Moriarty v. Regent's Garage and Engineering Co. Ltd., 1921-1 KB 423 at p. 446 would be useful in this connection. In that case the director of a company was entitled to 150 as his remuneration for one year. The question which arose for decision was whether this amounted to a salary within the meaning of the Apportionment Act, 1879. Mr. Justice McCardie made the following observations: ".........." Directors' remuneration is a vague phrase which may or may not mean a salary. The question is not in any given case whether the director is a servant for the purpose of the Apportionment Act, the question is whether he is in receipt of a "salary". If it were necessary that a man should be servant before the Apportionment Act applies, no Cabinet Minister, no high judicial officer, would be entitled to any apportionment. Further, the question is not whether the word "salary" is employed. It may or may not be employed. The word "reward" or "emolument" or "remuneration" may be used: in each case the substance rather than the actual word is to be looked at. Here the agreement says by clause 4 that the fees of the 'plaintiff for acting as director shall be 150 per annum, that is, in my view, a fixed yearly remuneration for a substantial office to be held for a substantial period of time. ................"
These observations were used in R. Ganesa Ayyar v. Lakshmi Co-operative Building Society, AIR 1937 Mad 379 for interpreting the meaning of the expression 'honorarium' used in connection with the payments to be made to the director of a co-operative society, as salary.
(12) In the Oxford English Dictionary (Vol. V, H-K), 'honorarium' is defined as: '.......... Gift made on being admitted to a post of honour, douceur, fee ................. An honorary reward; a fee for services rendered, especially by a professional person.'
In the Shorter Oxford English Dictionary (Vol. I, A-No), 'honorarium' is defined as:
'An honorary reward; a fee for (professional) services rendered.'
It is also explained as 'the emoluments and honoraria of physicians'. K. J. Ayyer's Manual of Law Terms and Phrases (Fifth Edition) describes 'honorarium' as:
'A recompense, a voluntary fee to one exercising a liberal profession, e.g., a barrister or physician'
Ballentine's Law Dictionary with Pronounciations (Second Edition), at page 594, describes 'honorarium' as
'A fee paid to an English barrister for his professional services which is regarded as an honorary gift and for which he may not sue. Under Roman Law an advocate could make no charge for his service at one time, but later he was allowed to enforce his client's express promise to pay him . .......... ......... ...... ............. ......... ............ The name given in England to the gratuitous reward paid to a physician in recognition of his professional services. Until modern statutes changed the law, a physician could not in England sue for his fee and his services were considered to be rendered gratuitously, but in the hope of an honorarium ..........."
In Prem's Judicial Dictionary (Vol. II. 1964) 'honorarium' is described as, prima facie implying a gratuitous payment, but also meaning a fee for services rendered. In view of all the aforesaid definitions and the facts of the present case which showed that the respondent was employed for doing a full time job of the Vice-President and Chairman of the Subjects Committees, the payment which was sanctioned for him would necessarily be as his fee or remuneration for the work done by him. The euphemistic use of the word 'honorarium' would not change the fact that he is getting a regular and monthly salary or remuneration. In view of receipt of salary or remuneration, coupled with the perquisites of a fee accommodation and a free conveyance that the respondent was getting, I have no manner of doubt that he is holding an office of profit. I find accordingly.
(13) However, it is not sufficient for the purposes of the petitioner to establish that the respondent is holding an office of profit. Under Art. 191(1)(a) of the Constitution of India, the petitioner would also have to show that the respondent is holding "an 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. In order to succeed, the petitioner will have, therefore to establish that the respondent is holding an office of profit under the State Government of Maharashtra as alleged by him.
(14) Referring to the preamble of the Act and the various provisions thereunder, Mr. Dharmadhikari was contending that, though the respondent was elected to his office, he was removable from office by the State Government under the provisions of Ss. 50 and 88 and the State Government could also call upon him to hand over charge under Ss. 53(2) and 90-A. He also referred to the other provisions which, according to him, showed that the Government directly controlled the activities of the Zilla Parishad as also of its office-bearers, and the remuneration was paid out of the district fund which was largely contributed by the State Government out of the public revenues. The argument of Mr. Dharmadhikari was that the State Government exercised strict control over the Zilla Parishads and its office-bearers and gave directions for the working of the Act and the respondent was, therefore, a subordinate of the State Government and must be deemed to hold an office of profit under the State Government. Mr. Mandlekar contended, on the other hand, that the provisions of Ss. 50 and 88 did not refer to the ordinary powers of an employer to determine the tenure of a servant but were extra ordinary provisions applicable under special circumstances only. The Zilla Parishad itself could remove the Vice-President by passing a vote of no-confidence at any stage and the Government could step in only when the Zilla Parishad did not take action against a recalcitrant office-bearer to remove him by passing a vote of no-confidence. According to him, the State Government did not have any direct control or supervision over the working of the Zilla Parishad or its office-bearers and the honorarium and allowances were not paid out of the general revenues but were paid out of the special district fund which was under the disposal of the Zilla Parishad itself. He described the control exercised by the Government as quasi judicial and contended that there was no administrative control over the Zilla Parishad and particularly over the office-bearers thereof. In his view, the respondent, who was under the Zilla Parishad was not and could not be holding an office of profit under the State Government.
(15) In Clause (a) of Art. 191(1) of the Constitution, the expression used is "any office of profit under the Government". The use of the word "under" would obviously connote a subordination to the Government. As I would show in the sequel, the provisions of the Act would no doubt show that the respondent was working under the local authority of the Zilla Parishad, but Article 191(1)(a) of the Constitution, unlike Article 58 of the Constitution prohibits a person holding an office of profit not only under the Government of India or the Government of any State but also under Local or other authority subject to the control of any of the said Governments, from contesting election as the President of India. Similarly provision is, however, not made in Article 191(1)(a) and the omission of the clause, "who holds an office of profit under any local or other authority subject to the control of any of the said Governments" from that article is not without significance. That would only show that the Parliament wanted to debar a person holding an office of profit under the Government of India or State Government for contesting elections to the Legislative Assemblies of the State because of the possibility of a conflict between duty and self interest but it did not intend to debar a person holding an office of profit under a local or other authority subject to the control of any of the said Governments, presumably because there was no likelihood of a conflict between duty and self-interest.
(16) Advertising to the provisions of the Act, Mr. Dharmadhikari submitted that the preamble of the Act showed that the functions of the State Government itself were transferred to these local authorities named Zilla Parishads for the purpose of decentralisation of powers and functions to them and for sponsoring democratic institutions and, therefore, Zilla Parishads were virtually parts of the Government itself, and an office-bearer of the Zilla Parishad must, therefore, be held to be a person holding an office of profit under the State Government. I am afraid, Mr. Dharmadhikari was reading far too much in this preamble than what it contains. The heading of the Act and the preamble are in the following words:
"The Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961.
An Act to provide for the establishment in rural areas of Zilla Parishads and Panchayat Samitis to assign to them local government functions, and to entrust the execution of certain works and development schemes of the State Five-Year Plans to such bodies, and to provide for the decentralisation of powers and functions under certain enactments to those local bodies for the purpose of promoting the development of democratic institutions and securing a greater measure of participation by the people in the said Plans and in local and governmental affairs.
Whereas it is expedient to provide for the establishment in rural areas of Zilla Parishads and Panchayat Samitis; to assign to them local government functions, and to entrust the execution of certain works and development schemes of the State Five-Year Plans to such bodies, and to provide for the decentralisation of powers and functions under certain enactments to those local bodies for the purpose of promoting the development of democratic institutions and securing a greater measure of participation by the people in the said Plans and in local and governmental affairs and for purposes connected with the matters aforesaid; It is hereby
This description of the nature of the Act and the preamble thereto, only purport to say that some functions of the former local Government institutions, for instance, district boards, Janpad Sabhas etc., were assigned to the Zilla Parishads and that would not mean that any functions of the State Government themselves were assigned to these Zilla Parishads. These functions were being carried out by what was formerly known as local self-government and those functions being assigned would not amount to saying that the State Government had assigned their own functions to the Zilla Parishads. The execution of certain work and development schemes of the State Five Year Plans were also assigned to these bodies and that was in order to be able to give effect to the stupendous Five-Year Plans which could not be carried out only by the Government machinery unless the aid of the people in the area was taken. That again does not mean that the functions of the State Government were transferred to the Zilla Parishads. Even if it were to be assumed that they were so transferred, that was not with the intention of converting a Zilla Parishad into a department or a branch of the Government, that was, as the preamble says, for providing for the decentralisation of powers and functions from the Centre or the State to the district level so as to associate members of the public in the district with the administration of these Five Year Plans, for promoting development of democratic institutions and securing a greater measure of participation by the people in the said Plans and in the local and governmental affairs. All these purposes flowed from the idea of a welfare State, fostering the democratic structures at all levels of society. No department of Government could possibly have the kind of autonomy given to the Zilla Parishads by the Act for the purposes of carrying out its functions thereunder. Even Mr. Dharmadhikari was not able to show anything in this preamble which could support his contention that these Zilla Parishads were a limb of the Government itself, as it were, or were to be treated as a department or branch of the Government.
(17) Before proceeding to determine whether the respondent holds an office of profit under the Government, it would be useful to consider the object of the provision in Art. 191(1)(a) of the Constitution. That object was stated in Deorao Laxman Anande v. Keshav Laxman Borker, as follows:
"The object of the provision in Art. 191 is to secure independence of the members of the Legislature and to ensure that the Legislature does not contain persons, who have received favours or benefits from the executive and who consequently, being under an obligation to the executive, might be amenable to its influence. Putting it differently, the provisions appear to have been made in order to eliminate or reduce the risk of conflict between duty and self-interest amongst the members of the Legislature. This object must always be borne in mind in interpreting Art. 191 and in cases of doubt or where two interpretation should be preferred which will further and effectively carry out the object of the makers of the Constitution."
This object will have to be kept in mind while applying the several tests to determine whether the office held by the respondent is an office of profit under the Government.
(18) In Dr. Deorao Anande's case, this Court had laid down three principal tests for deciding whether an office is under the Government.
(1) What authority has the power to make an appointment to the office concerned,
(2) What authority can take disciplinary action and remove or dismiss the holder of the office and
(3) by whom and from what source is his remuneration paid.
It was further observed that, of these, the first two are more important than the third one. Dealing with this question the Supreme Court observed in Guru Gobinda Basu v. Sankari Prasad Ghosal, .
"................................... The decisive test for determining whether a person holds any office of profit under the Government is the test of appointment. It is not correct to say that the several factors which enter into the determination of this question, the appointing authority, the authority vested with power to terminate the appointment, the authority which determine the remuneration, the source from which the remuneration is paid and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf-must all co-exist and each must show subordination to Government and that if "one of elements is absent, the test of a person holding an office under the Government, Central or State, is not satisfied. The circumstance that the source from which the remuneration is paid is not from the public revenue is a neutral factor not decisive of the question. Whether stress will be laid on one factor or the other will depend on the facts of each case. However, where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then it must be held that the officer in question holds the office under the authority so empowered."
These tests will have to be considered and applied to the facts of the present case.
(19) Under Section 6 of the Act, a Zilla Parishad is created for each district and under Section 7 the authorities charged with carrying out the provisions of the Act were prescribed and the presiding authorities including persons like the respondent, were also mentioned among the authorities charged with carrying out the provisions of the Act. Under Section 8, every Zilla Parishad is a body corporate having perpetual succession and a common seal. It was thus an entirely independent entity within the sphere of a district so far as its constitutional existence was concerned. Under Section 42, office-bearers like the President and the Vice-President have to be elected by the Parishad. There was nothing in these provisions to show that office-bearers like the President and Vice-President were appointed by the Government. Admittedly, Government had no power whatsoever in the matter of appointing these officials who are elected in accordance with the provisions of the Act. The power given to the Government under Section 91-A to appoint presiding officers during the continuous absence of the incumbent for a period exceeding thirty days was only for appointing locum tenens in order to ensure that there was no vaccum and the working of these bodies is not hampered by the continuous absence of the presiding authorities. That power to make temporary arrangements is not and cannot amount to a power to substantively appoint presiding authorities, who can be inducted into office by election only. The first test of authority to appoint is, therefore, not satisfied.
(20) Coming to the question of the source from which the remuneration is paid, Mr. Dharmadhikhari was contending that though the honorarium and other payments to these office-bearers of the Zilla Parishad are not directly paid from the revenue of the Government, they are paid from the district fund which gets large amounts of grants from the Government and, therefore, the payment must be deemed to be made from the general revenues only, I am of opinion that this contention is not sustainable. It is true that the Government makes several grants to a Zilla Parishad and these grants constitute some of the items which make up the district fund, as defined in S. 130 of the Act. The several sub-clauses of that section would show, however, that the fund is also made up by the assets of the former district boards or Janpads, proceeds of taxes levied by the Parishad, income from the property of the Parishad, the proceeds of all tolls and leases of tolls on roads and bridges formerly levied by the district councils or the Janpads, sums contributed by private persons grants, loans and contributions meant for Panchayat Samitis, sums paid by the Government to the Zilla Parishad to meet expenses for the performance of any agency functions, sums realised by way of penalties, etc. It would, therefore be obvious that the grants from the Government constitute a minor part of the district fund and whatever contributions are made by the Government are merged in the district fund and are not earmarked for payment of the honoraria or allowances of the office-bearers so as to entitle to say that the payment of the honoraria or allowances of the office-bearers so as to entitle to say that the payment of the honoraria is made out of the Government revenues. It could be equally possible that these payments are made from out of the income derived from sources other than the grants from the Government. Once the Government makes grants, the amount of the grants are integrated in the district fund maintained by the Zilla Parishad and under S. 133(a) of the Act, the monthly honoraria of the office bearers were a charge on the district fund and not on the amounts out of the fund which were given as grants by the Government. In view of all these circumstances, even Mr. Dharmadhikari was not in a position to support his contention that the payments were made to the office bearers from the Government revenues. This test of the source of money, which is never a decisive test, is not satisfied in the present case.
(21) While not disputing that the tests of authority to appoint and of the source of payment of the honoraria and other allowances being the Government revenues were not satisfied, Mr. Dharmadhikari was contending that Government had power under Ss. 50 and 88 of the Act to remove the office bearers for misconduct in the discharge thereof, or for being guilty of any disgraceful conduct, and that showed that these office bearers were serving under the Government. In advancing this argument Mr. Dharmadhikari was overlooking the fact that power was given to the Government under Ss. 50 and 88 to remove these office-bearers, without prejudice to the powers of the Zilla Parishad itself under Ss. 49 and 87 to remove these office bearers by a mere vote of no-confidence. When that unlimited power vested in the Parishad, it cannot be said that the Government alone had the power to remove these officials from their office. The question would arise when and under what circumstances could Government exercise their powers under these two sections. I have already referred to the preamble of the Act, which showed that the democratic process was sought to be introduced in the rural areas with the object of decentralisation of powers. It was conceivable that a Parishad or its members may fail to express want of confidence in an office-bearer despite the misbehaviour of the office-bearer being brought to their notice. The provisions of Sections 50 and 88 permitting Government to intercede for removing office-bearers seem to have been incorporated in the Act only to cover such cases in order to safeguard that these newly constituted democratic institutions are run properly and office-bearers who are remiss in their duties are not allowed to continue to hold office. Barring this contingency, it does not seem to be the intention of the Act to empower Government to intervene and to terminate the appointment of these office bearers. On considering the scheme and the purpose of the Act, it would not be right to say that these sections give an unlimited power or discretion to the Government to terminate the office of the Vice-President or Chairman of the Subjects Committee. It was clear that this test of authority of the Government to remove an office bearer from office was not satisfied.
(22) Mr. Dharmadhikari was also not right in saying that Ss. 53(2) and 90-A of the Act gave authority to the Government to remove these office-bearers from office. Under S. 43 of the Act, the President or Vice-President shall hold office for the term of office of the Councillors. Under sub-section (2) of S. 10, the term of office of the Councillors is five years, subject to the proviso that persons who are Councillors by viso that persons who are Councillors by virtue of their being Chairman of a Panchayat Samiti or of a co-operative society, shall hold so long only as they continue to hold the office of such Chairman of the Panchayat Samiti. Fresh elections are to be held at the end of the term of office of five years and the commencement of the term of office of Councillors is the date of the first meeting of the newly constituted Zilla Parishad. When the term of the Councillors of the old Zilla Parishad terminates at the end of five years, the term of office of the office-bearers viz., the President and Vice-President, also comes to an end and fresh elections are held for the President and Vice-President from amongst the newly elected Councillors. On the election of new President or Vice-President, the outgoing President or Vice-President, in whose place the new President or Vice-President has been elected, has to forthwith hand over charge of his office to the New President or Vice-President, as the case may be, under the provisions of sub-section (1) of S. 53. In case the outgoing president or Vice-President fails or refuses to hand over charge of his office as required by sub-section (1), the State Government or any authority empowered by that Government in this behalf, is authorised by order in writing, to direct the President or Vice-President, as the case may be, to forthwith hand over charge of his office and all papers and property of the Zilla Parishad if any, under sub-section (2) of S. 53. Section 90-A makes these provisions of S. 53. Section 90-A makes these provisions of S. 53 relating to the handing over the charge to the New President or Vice-President, applicable mutatis mutandis in relation to the handing over of charge by the outgoing Chairman of the Standing or Subjects Committee to the New Chairman elected in his place. Thus, these Ss. 53(2) and 90-A only empower the Government to give effect to the election of the New President, Vice-President or Chairman of the Subjects Committee, as the case may be, in case the old President, Vice-President or Chairman of the Subjects-Committee fails or refuses to hand over charge of his office, as required by sub-section(1) of S.
53. These sections do not give any power to the Government to remove the President, Vice-President or a Chairman of the Subjects Committee while he or they are holding or continuing to hold office. These powers to give effect to the result of a new election whereby the old office-bearers have ceased to hold office, cannot be construed as the power given to the Government to remove from office the office-bearers who are still holding office. Consequently, Mr. Dharmadhikari was not right in saying that the State Government was given any power by these Sections to remove these office-bearers from their office. My conclusion that the third test of the power of Government to remove these office-bearers from office was not satisfied is, therefore, not affected by the provisions of these two sections.
(23) Referring to several other sections, Mr. Dharmadhikari submitted that rules with regard to leave of absence, allowances etc. had to be framed by the Government, power was given to the Government to transfer certain works and order them to do certain duties to carry out several Government schemes transferred by the Government and power was also given to the Government to sanction the budget and to inspect the working of the Zilla Parishads and to exercise control over the working of the Zilla Parishads and, therefore, these office bearers must be deemed to hold their offices under the Government. Mr. Mandlekar contended, on the other hand, that these powers were at best supervisory and did not indicate any control or direction of the Government in the manner of carrying out their day-to-day duties. According to him, all these provisions did not amount to subordination of the Zilla Parishad or its office-bearers to the Government.
(24) A Zilla Parishad was constituted for each revenue district in the State and it was not disputed that there ought to be uniformity in the matter of grant of leave, payment of allowances etc. In order to ensure such uniformity in the working of the different Zilla Parishadas common and uniform rules were framed by the Government with regard to grant of leave, leave of absence, drawing of allowances rates of allowances etc. The mere fact, therefore, that these common rules were made by the Government for all the Zilla Parishads under the statutory power given to them by the Act would not postulate a subordination of the Zilla Parishads to the Government. The Act authorises these office bearers to take leave without permission from the Zilla Parishad for a period not exceeding thirty days and to obtain the sanction of the Standing Committee for leave upto a period of three months. The Government were given power to grant leave only in cases where the leave was to exceed ninety days. Normally occasions of taking leave for more than ninety days would be comparatively rare and this power had apparently been given to the Government in order to see that certain office bearers do not remain away from their duties on the guise of being on leave for long periods.
(25) Section 100 which prescribed the powers and duties of the Zilla Parishads also authorises the State Government to take certain action of transferring some works to Zilla Parishads or of withdrawing some works from the Zilla Parishads. The transfer of such works is to be restricted to the subjects enumerated in the district list in the Act in order to implement the purpose of the Act, as stated in the preamble, and on such transfer, the works and development schemes vest in the Zilla Parishad itself, subject to the terms and conditions specified. It was further provided in the Act that in case the Zilla Parishad committed any breach of the terms and conditions of the transfer of the works, those works would revest in the Government who was given power to resume possession thereof. These provisions of transferring certain works and development scheme to the Zilla Parishads were in furtherance of the object of decentralisation and of associating the people in general with the development schemes and they do not spell out any subordination of the Zilla Parishads to the Government. Chapter VIII of the Act makes provision for execution and maintenance of works and development schemes and Section 127 therein gave power to the State Government or their officers to inspect the work and to give technical guidance. Such power to give guidance would only be advisory and, at best, supervisory, but does not spell out any subordination of the Zilla Parishads to the Government.
(26) I have already indicated that though the Govt. makes grants for these works, they are merged in the district fund and are not earmarked for being used for special purposes and admittedly, Government have no power to directo or order how those amounts of grants should be spent. The grants cease to have their individuality as part of Government revenues as soon as they are merged in the Zilla Parishad funds. Zilla Parishads are authorised by Section 130-A to borrow monies for carrying out their functions, from any bank or co-operative society in which the district funds are deposited or from such body or association as may be approved by the State Government in this behalf. This Section nowhere says that the sanction of the Government is necessary for borrowing which can be done by the Zilla Parishad in its own rights. The only limitation prescribed is that in case the monies are borrowed from a society other than the one in which the district fund is kept, that body should have been previously approved by the State Government. That provision is obviously made in order to ensure that amounts are borrowed from responsible societies in whom, the Government has confidence. Section 131 which gives power to the State Government to call upon a Zilla Parishad to earmark or create a special fund for meeting certain expenditure relating to a specified object does not show that the Government themselves have any control over the actual expenditure from that fund. This power is again an advisory one. Mr. Dharmadhikari was making special reference to Section 132 to support his contention that the Government had power to control expenditure. That Section itself, however, says that the expenses of the fund within the district are only subject to the authority of the Zilla Parishad and it was only in cases where the Zilla Parishad was spending its fund in areas beyond its own jurisdiction that the sanction of the Commissioner was necessary. That special limitation with regard to spending the resources of the Parishad outside the district cannot be interpreted as a general power of control over the expenditure of the district fund within the district itself. That power was given to the Commissioner or the State Government only in order to see that the funds of these newly created democratic institutions are properly applied within the district for the purposes for which the Zilla Parishads were constituted and are not frittered away outside the district.
(27) A scrutiny of the provisions of the Act would show that the State Government had not been given any administrative control over the Zilla Parishads. I have already referred to Sections 50 and 88 which empowered the State Government to remove an office bearer on the grounds stated therein, but the provisos to those sections would show that the power could be exercised only after giving an opportunity to the official to furnish an explanation. That would mean that the power of removal was only quasi judicial and was not administrative control by the Government. Mr. Dharmadhikari did not pin-point any provision which prescribed an administrative control of the Government over the Zilla Parishads or its office bearers. The Legislature in their wisdom had thought it fit to invest Government with powers of supervision over and of giving guidance to the newly created democratic institutions, but that would not spell out any subordination of these institutions to the Government or the Commissioner. The supervisory and directory functions were assigned to the Government, more or less by way of a parental guidance, for seeing that the purpose of the Act was carried out and was not flouted. It was not the control of a superior over a subordinate. There was nothing in the provisions to show that the Government were "vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf". Therefore, it is not possible to accept the contention that the Zilla Parishads or their office bearers were subordinate to the Government or that the respondent was holding an office under the Government.
(28) It was suggested by Mr. Dharmadhikari that the provisions of superintendence, supervision and direction which were given to the Government really amount to a strict and direct control of the Government over the working of the Zilla Parishads and their office bearers. I do not think it possible to accept this argument. When the powers of Government do not amount to "power to control the manner in which the duties of the office are discharged and to give directions in that behalf" within the meaning of the expression used by the Supreme Court in Gobinda Basu's Case, , I cannot see my way to accept the contention that any subordination of Government arises out of those provisions. Even if it were to be assumed that there were some kind of subordination, that would be by or under the Statute, and not de hors the statute. The Zilla Parishads and their office bearers do no ipso facto go under the Government or become subordinate to it because of these supervisory powers of the Government. The provisions of the Act indicate that though certain supervisory or directory functions are assigned to the Government, the Zilla Parishads and their office bearers act, within the four corners of the Act. In fact, the provisions of the Act contra-indicate subordination A reference to Section 7 would show that the authorities mentioned therein are charged with carrying out the provisions of the Act for each district and the respondent comes within the description of the presiding authorities given in Clause (e) thereof. It was, therefore, obvious that he was one of the independent statutory authorities for carrying out the purpose of the Act which charges the Zilla Parishads and Panchayat Samitis with certain duties. In view of this position, it was clear that the respondent was not subordinate to the Government but was only subordinate to the Zilla Parishad which has the power to remove him or irrespective of the Government.
(29) I may mention that what is called the integration test is also not satisfied, because the Zilla Parishads are not an integral part of the Government. In the case of Dr. Deorao Anande, , it was clear that the Employees' State Insurance Corporation was an integral part of the Government and the Government themselves were charged with carrying out several of the functions of that Corporation. That is not so here, and Mr. Dharmadhikari has not been able to show that the Zilla Parishads are an integral part of the Government. As adumbrated, they are creations of a statute and are independent sovereign bodies within their own sphere. They are, therefore, not subordinate to the Government even though the Government can give them guidance and can supervise their functions.
(30) An analysis of the provisions of the Act would clearly show that none of the tests which would make the respondent a subordinate of the Government or a person holding an office under the Government have been satisfied. These and other provisions of the Act would, no doubt, show that the respondent is a subordinate to and an office-bearer of the Zilla Parishad. Even if the contention of Mr. Dharmadhikari that Zilla Parishads are subject to some control by the Government were to be accepted, the respondent would come under clause (2) of Article 58 of the Constitution as holding an office of profit "under a Local authority subject to the control of the State Government". That however does not and cannot make him the holder of an office of profit under the State Government within the meaning of Art. 191(1)(a) of the Constitution.
(31) Mr. Dharmadhikari was wanting to rely on , I have already indicated that the case is distinguishable on facts, because the Corporation under whom Dr. Anande was serving was an integral part of the Government who were charged with carrying out some of the functions of the Corporation. That decision would not be of any help to the petitioner. The next case relied on by Mr. Dharmadhikari was . That was a case where the person whose election was being challenged was an employee of the Hindusthan Steel Ltd. and was not directly in the service of the Government. However, it was found on the facts of that case that this appointment rested solely with the Central Government and he was removeable by the Central Government and his appointment was made on the advice of the Comptroller and Auditor General of India who himself held an office of profit under the Government. The facts of that case were entirely distinguishable from the facts of the present case. I have already shown that the tests indicated in that decision have not been fulfilled in the present case. That decision also would not be of any avail to the petitioner.
(32) On a review of the material provisions of the Act and the facts of this case, there can be no manner of doubt that the respondent holds an office of profit under the Zilla Parishad, but there is nothing to show that he holds an office of profit under the State Government. I accordingly find that the petitioner has failed to prove that the respondent holds an office of profit under the Government. Consequently, there is no question of Article 191(1)(a) of the Constitution or of Section 100 (1) (a) of the Representation of the People Act coming into operation.
(33) Issues Nos 1 (b), 2 and 3:- At this stage Mr. Mandlekar Advocate for the respondent stated at the Bar that in the view that I have taken, he does not wish to press these issues and they need not, therefore, be decided, Mr. Dharmadhikari also did not want a decision on these issues which were not pressed. Accordingly, I am not deciding these issues which are not pressed.
(34) Issue No. 4:- In view of my finding that the respondent was not disqualified for being chosen as a member of the Legislative Assembly under Art. 191(1)(a) of the Constitution, there is no question of setting aside his election on that ground under Section 100(1)(a) of the Representation of the People Act, 1951. The petition will have therefore to stand dismissed with costs.
(35) Issue No. 5:- In the result, the election petition calling in question the election of the respondent Bhaiyyalal to the Maharashtra State Legislative Assembly from the Tiroda Constitutency No. 133, is dismissed with costs. The petitioner shall bear his own costs and pay the costs of the respondent. Pleaders' fees Rs. 1600/-, at Rs, 400/- per day for the four effective hearing. The balance be refunded to the petitioner.
(36) Petition dismissed.