TaxTMI 
TaxTMI 
1969 (10) TMI 98
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.... be chosen to fill the seat as she held the office of Special Government Pleader, which was an office of profit under the Government of Rajasthan. 3. Article 191 of the Constitution, which is relevant in this connection, reads: 191 : Disqualifications for membership : (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State- (a) 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; .................... Mrs. Kathuria was appointed by the Government of Rajasthan as Special Government Pleader to conduct arbitration cases between the Government and Modern Construction Company arising out of the construction of Rana Pratap Sagar Dam and Jawahar Sagar Dam. The order was passed on June 26, 1965 (Ex. 1). The order reads: ORDER Sub : Construction of R.P.S. Main Dam-Contract of M/s. M.C.C. (Pvt.) Ltd., Arbitration in disputes arising out of. In pursuance of Rule 8(b) of O....
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.... (b) the office of a Government Pleader, a Special Government Pleader or Advocate for the State Government, appointed specially to assist the Advocate General, Government Advocate or Pleader, or Special Government Pleader, or Advocate for Government, in any particular suit, case or other proceeding by or against the State Government before any court, tribunal, arbitrator or other authority; (c) the office of a panel lawyer if the holder of such office is not entitled to any retainer or salary, by whatever named called; (4) the office of a Pradhan or Pramukh as defined in the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (Rajasthan Act 37 of 1959). (2) Notwithstanding any judgment or order of any Court or Tribunal, the aforesaid offices shall not disqualify or shall be deemed never to have disqualified the holders thereof for being chosen as, or for being, members of the Rajasthan Legislative Assembly as if this Act had been in force on the date the holder of such office filed his nomination paper for being chosen as a member of the Rajasthan Legislative Assembly. The Ordinance and the Act seem to have been passed to nullify the decision in t....
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....Rowlatt, J. in Great Western Railway Co. v. Bater 8 TC 231. Justice Rowlatt said thus : Now it is argued, and to my mind argued most forcibly, that that shows that what those who use the language of the Act of 1842 meant, when they spoke of an office or employment which was a subsisting permanent, substantive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders, and if you merely had any man who was engaged on whatever terms, to do duties which were assigned to him, his employment to do those duties did not create an office to which those duties were attached. He hereby was employed to do certain things and that is an end of it, and if there was no office or employment existing in the case as a thing, the so-called office or employment was merely an aggregate of the activities of the particular man for the time being. We say with profound respect for this most succinct exposition, that we entirely agree. The distinction that we are making is precisely the distinction which has been brought out by Rowlatt, J. If Mrs. Kathuria had been briefed as a lawyer and given all the Government l....
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....ds on its being effective to remove a disability existing on the date of nomination of a candidate or his election. Of course, there is no difficulty in holding the law to be perfectly valid in its prospective operation. The only dispute is in regard to its retrospective operation. 10. Our brother Sikri has cited an instance of the British Parliament from May's well-known treatise when the Coatbridge and Springburn Elections (Validation) Bill was introduced to validate the irregular elections. Halsbury's Laws of England (3rd Edn. Vol. 14 p. 5) has the following note : If a person is elected when disqualified, his disqualification for being a member of Parliament may be remedied or he may be protected from any penal consequences by an Act of Validation or indemnity. 11. The position of the British Parliament is somewhat different from that of the Indian Parliament and the Legislatures of the States. British Parliament enjoys plenary sovereignty and the Acts of the British Parliament no court can question. In India the sovereignty of the Indian Parliament and the Legislatures is often curtailed and the question, therefore, is whether it is in fact so curtailed.....
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.... a candidate from another constituency he need not have been made a party here. 16. For the above reasons we would allow the appeal but make no order about costs since the election of the appellant is saved by a retrospective law passed after the decision of the High Court. 17. Sikri, J. This appeal arises out of an election petition filed under Section 80 of the Representation of the People Act, 1951, hereinafter referred to as the 1951 Act, by Shri Manik Chand Surana, a defeated candidate, challenging the election of Smt. Kanta Kathuria, before the High Court. The High Court (Jagat Narayan, J.) allowed the election petition on the ground that the appellant held an office of profit within the meaning of Article 191 of the Constitution on the day on which she filed the nomination paper and was thus disqualified for being chosen as a member of the Rajasthan Legislative Assembly. This judgment was given on August 12, 1968. An appeal was filed in this Court on August 20, 1968. During the pendency of the appeal, the Rajasthan Legislative Assembly Members (Prevention of Disqualification) Act, 1969 (Act No. 5 of 1969) (hereinafter referred to as the impugned Act), was passed, which....
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....tions of corrupt practice, Shri Mathur was not made a party to the petition. 19. The learned Counsel for the appellant, Mr. Gupte, contends that the High Court erred in holding that the appellant held an office of profit within the meaning of Article 191 of the Constitution. In the alternative he contends that the Rajasthan Act No. 5 of 1969 is retrospective and the disqualification if it existed, cannot now be deemed to have existed because of this Act. The last point raised by him is that the petition was not in accordance with law as the respondent, Shri Surana, had not impleaded Shri Mathur as respondent to the petition. 20. The facts relevant for appreciating the first point are these : 21. The appellant was an advocate at all material times. Disputes arose between M/s. Modern Construction Company Private Ltd. and the State of Rajasthan in connection with some works relating to the Rana Pratap Sagar Dam. These disputes were referred to arbitration. Shri Murli Marohar Vyas, Government Advocate in the High Court of Rajasthan at Jodhpur was appointed by the Government to represent it in these arbitration proceedings. The Government Advocate wanted one more advocate to as....
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....d 11926 and the respondent having secured 8311 votes. 25. The relevant portion of Article 191 reads as follows : 191. (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State- (a) 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; . . . . . (e) if he is so disqualified by or under any law made by Parliament. (2) For the purposes of this article, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. 26. It seems to us that the High Court erred in holding that the-appellant held an office. There is no doubt that if her engagement as Special Government Pleader amounted to appointment to an office, it would be an office of profit under the State Government of Rajasthan. The word 'office' has various mea....
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....ge 201 : There is no statutory definition of 'office'. Without adopting the sentence as a complete definition, one may treat the following expression of Rowlatt, J., in Great Western Railway Co. v. Bater [1920] 3 K.B.274 adopted by Lord Atkinson in that case [1922] 2 A.C at page 15 as a generally sufficient statement of the meaning of the word : an office or employment which was a subsisting, permanent, substantive position, which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders. 30. Lord Wright at page 202 observed : The word 'office' is of indefinite content; its various meanings cover four columns of the New English Dictionary, but I take as the most relevant for purposes of this case the following: A position or place to which certain duties are attached, especially one of a more or less public character. This, I think, roughly corresponds with such approaches to a definition as wave been attempted in the authorities, in particular Great Western Railway Co. v. Bater [1922] 2 A.C.1where the legal construction of these words, which had been in Schedule E since 1803 (43 G....
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....' and 'Government leader' mean respectively- (a) in relation to any suit by or against the Central Government or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order; . . . . . . . (c) in relation to any suit by, or against a State Government or against a public officer in the service of a State, the State Government and the Government pleader, as defined in Clause 7 of Section 2 or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order. This rule defines who shall be deemed to be a Government Pleader for the purpose of the Order. 'Government Pleader' is defined in Section 2 of Clause (7) C.P. Code thus- (7) 'Government Pleader' includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader : 36. It follows from reading Order 27 Rule 8B and Clause (7) o....
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....40. Mr. Chagla, learned Counsel for the respondent, contends that the Rajasthan State Legislature was not competent 'to declare retrospectively' under Article 191(1)(a) of the Constitution. It seems to us that there is no force in this contention. It has been held in numerous cases by this Court that the State Legislatures and Parliament can legislate retrospectively subject to the provisions of the Constitution. Apart from the question of fundamental rights, no express restriction has been placed on the power of the Legislature of the State, and we are unable to imply, in the context, any restriction. Practice of the British Parliament does not oblige us to place any implied restriction. We notice that the British Parliament in one case validated the election : [Erskine May's Treatise on the Law. Privileges Proceedings & Usage of Parliament-Seventeenth (1964) Edition]- After the general election of 1945 it was found that the persons elected for the Coatbridge Division of Lanark and the Springbourn Division of Glassgow were disqualified at the time of their election because they were members of tribunals appointed by the Minister under the Rent of Furnished Hou....