Appeal No 1707 of 1967
422 Appeal under Section 116 A of the Representation of the People Act 1951 from the judgment and order dated September 19 1967 of the Punjab and Haryana High Court in Election Petition No 28 of 1967
Harder Singh P Parmeswara Rao and SS Khanduja for the appellant
RK Garg SC Agarwala Baldev Singh Khojiand Anil Kumar Gupta for respondent No 1
The Judgment of the Court was delivered by Bhargava J
The appellant who was defeated by respondent No 1 hereinafter referred to as the respondent the successful candidate in the General Election of 1967 to the Punjab Vidhan Sabha from Nakodar Constituency District Jullundur challenged the election of the respondent in an election petition inter alia on the ground that he was disqualified from being chosen as a member of the Assembly because he was holding an office of profit under the State Government at the relevant time
This was the only ground which was pressed at the trial of the election petition before the High Court of Punjab and Haryana at Chandigarh
The High Court dismissed the election petition rejecting this contention of the appellant and consequently the appellant has come up to this Court in this appeal under section 116A of the Representation of the People Act 1951
Admittedly the respondent was the Chairman of a Panchayat Samiti and the ground that he was disqualified from being a candidate was based on Rules 3 to 7 of the Punjab Panchayat Samitis and Zila Parishads Non official Members Payment of Allowances Rules 1965 hereinafter referred to as the Rules which are as follows  3
There shall be paid a monthly consolidated allowance in lieu of all other allowances at the following rates
to the Chairman of a Panchayat Samiti and that of a Zila Parishad for performing all official duties and journeys concerning the Panchayat Samitis or Zila Parishad as the case may be within the district including attending of meeting supervision of plans projects schemes and other works and also for the discharge of all lawful obligations and implementation of Government directives  a Chairman Panchayat Samiti 
Rs 100 b Chairman Zila Parishad 
Rs 150 4
The Chairmen Vice Chairmen and Members shall for the purpose of rates of mileage and daily allowance admissible to them under these rules be divided into the following two categories  423 i Category I This shall include Chairmen and Vice Chairmen of the Panchayat Samitis and Zila Parishads
ii Category II This shall include all other Members of the Panchayat Samitis and Zila Parishads
There shall be paid to the Chairman Vice Chairman and Member mileage allowance for journeys performed for any official work outside the district
Such journeys shall not be undertaken unless authorised by the Panchayat Samiti or the Zila Parishad as the case may be
Note  The Power under this sub rule shall not be delegated to any other authority
2 The Vice Chairman and the Member shall also be paid mileage allowance in respect of a journey performed within the district for a attending the meetings and b for any official work or for supervision of a cattle fair held by the Panchayat Samiti Provided that the Vice Chairman and the Members shall not be entitled to mileage allowance under clause b unless the journey for such work or supervision has been approved by the Panchayat Samiti or Zila Parishad as the case may be and the number of Members deputed for supervision does not exceed five on any one day
The payment of mileage allowance to a Chairman Vice Chairman and Members for the purposes and journeys mentioned in rule 5 shall be regulated as follows  i Mileage allowance by rail
For a journey between the stations connected by rail the Chairman and Vice Chairman shall be entitled to travel by 1st Class and the Members by 2nd Class
The Chairman Vice Chairman and the Members shall be enti tled to draw single fare of the Class of accommodation to which he is entitled Provided that if the journey is performed in lower class the Chairman Vice Chairman and Members shall 424 be entitled to the fare actually paid for that class
ii Mileage allowance by bus
For a journey between the places connected by road where regular bus service plies and also for a journey between the stations connected by rail but performed by bus by taking a single seat the Chairman Vice Chairman and Members shall be paid the fare actually paid
iii Mileage allowance for journeys between the stations partly connected by rail and partly by bus
For a journey between stations partly connected by rail and partly by bus the Chairman  Vice Chairman and Members shall be paid actual railway fare limited to the class of accommodation to which he is entitled and the bus fare actually paid
iv Mileage allowance by road a The mileage allowance by road shall be admissible at the rates specified below for the journeys performed by the Chainnan Vice Chairman or Members between stations which are neither connected by rail nor by regular bus  Motor Cycle or Ordinary cycle Other means of con Scooter veyance 12 Paise per mile 9 Paise per mile 25 Paise per mile b If a Chairman Vice Chairman or Member performs a journey by Motor Cycle Scooter Ordinary Cycle or by other means of conveyance between the stations connected by rail or regular bus the mileage allowance calculated at the rates prescribed above for each kind of conveyance shall be limited to rail or bus fare had the journey been performed by rail or bus as the case may be
Notes  1  A Chairman Vice Chairman or Member using means of locomotion provided at the expense of the Government Panchayat Samiti Zila Parishad or any other local authority shall not be entitled to any mileage allowance
2 A Chairman Vice Chairman or Member travelling in a vehicle belonging to any other Member Vice Chairman or Chairman shall not be entitled to any mileage allowance
The mileage allowance of the owner of the vehicle shall however be regulated under clause iv
425 7
Subject to the provisions of rule 3 1 the daily allowance to a Chairman Vice Chairman and Members shall be admissible at the following rates  Category I 
Rs 600 per day
Category II 
Rs 400 per day
2 A Chainnan Vice Chairman or Member shall be allowed  a full daily allowance for the day he
attends the meeting b full daily allowance for the days of halt in case the halt is for any of the purposes specified in rule 5 above c half daily allowance for the day of departure and half daily allowance for the day of arrival in connection with a journey performed for any of the purposes specified in rule 5 Provided that i in the case of a Chairman Vice Chairman or Member who is treated as a State guest while attending the meeting or while on duty within or outside the district his daily allowance for such days shall be limited to one fourth if he is provided with free board and lodging and to one half if he is charged either for board or for lodging ii not more than one daily allowance shall be admissible for a day in any case
iii a Chairman Vice Chairman or Member may at his option draw one daily allowance in lieu of mileage allowance plus half daily allowance for the day of journey preceding and following the days of halt
 It was alleged that the office of Chairman of a Panchayat Samiti was an office under the State Government of Punjab and that the allowances paid under these Rules made that office an office of profit
Two questions therefore arose for decision
The first was whether the payment of the allowances under rules 3 to 7 made the office of Chairman of Panchayat Samiti an office of profit and the second was whether the office of Chairman of Panchayat Samiti was an office under the State Government
The learned Judge trying the election petition recorded evidence in the trial of the petition up to 31st July 1967 and adjourned the case for arguments to 21st August 1967
On 19th 426 August 1967 however the Governor of Punjab issued Ordinance No 10 of 1967 to amend the State Legislature Prevention of Disqualification Act 1952 so as to add section 2b in that Act as follows  It is hereby further declared that the office of Chairman of a Panchayat Samiti or Zila Parishad shall be deemed never to have disqualified and shall not disqualify the holder thereof for being chosen as or for being a Member of the Punjab State Legislature In view of the issue of this Ordinance the appellant was allowed to challenge the validity of the Ordinance without amendment of the election petition and the learned Judge trying the petition being of the view that the various questions involved were of considerable importance and should be settled by a larger Bench referred the petition to a Full Bench
The Full Bench held on the first two questions against the appellant so that the petition had to be dismissed on that ground
Consequently the Full Bench refrained from expressing any opinion on the third question relating to the validity of the Ordinance and passed an order dismissing the petition with costs
In this appeal also the same three questions have been again raised by the appellant
We consider that this appeal can be disposed of on the basis of the answer to the first question alone because in our opinion the High Court came to a correct conclusion in holding that the allowances paid under rules 3 to 7 of the Rules did not convert the office of Chairman of a Panchayat Samiti into an office of profit
The payment to a Chairman Panchayat Sanuti under r 3 is described in the rule as a monthly consolidated allowance in  lieu of all other allowances for performing all official duties and journeys concerning the Panchayat Samiti within the disutility including attending of meetings supervision of plans projects schemes and other works and also for the discharge of all lawful obligations and implementation of Government directives
This provision in very clear language shows that the allowance paid is not salary remuneration or honorarium
It is clearly an allowance paid for the purpose of ensuring that the Chairman of a Panchayat Samiti does not have to spend money out of his own pocket for the discharge of his duties
It envisages that in performing the duties the Chairman must undertake journeys within the district and must be incurring expenditure when attending meetings supervising plans projects schemes and other works and also in connection with the discharge of other lawful obligations and implementation of Government directives
No evidence has been led on behalf of the appellant to show that a Chairman of a Panchayat Samiti does not have to perform such journeys 427 in the course of his official duties and to incur expenditure in that connection
The State Government which was the competent authority fixed the allowance for a Chairman of a Panchayat Samiti at Rs 100 per month obviously because it was of the opinion that this sum will be required on an average every month to meet the expenses which the Chairman will have to incur in this connection
In these circumstances the burden lay on the appellant to give evidence on the basis of which a definite finding could have been arrived at that the amount of Rs 100 per month was excessive and was not required to compensate the Chairman for the expenses to be incurred by him in the discharge of his official duties as envisaged in the rule
That burden clearly has not been even attempted to be discharged by the appellant
In this connection the High Court rightly compared rule 3 of the Rules with the earlier provision on the same subject contained in the Punjab Panchayat Samitis and Zila Parishads NonOfficial Members Payment of Allowances Rules 1961
Under those earlier Rules of 1961 the Chairman was entitled to draw travelling allowance and daily allowance even when travelling within the district
There were however certain limitations such as that no travelling allowance was to be drawn by a Member if the journey was performed for attending a meeting held within a radius of five miles from his place of residence or he performed the journey in a transport provided at the expense of the Zila ParishadsPanchayat Samiris or any other local authority or Government
There were also limitations on the right to draw daily allowance eg the amount of daily allowance was to be limited to 14th of the rate provided if the Chairman was provided free board and lodging officially and
at 12 rate if he was charged either for board or for lodging
It appears that in the year  1965 it was considered desirable that the Chairman of a Panchayat Samiti should not draw travelling allowance and daily allowance while performing duties within the district and should only be entitled to these allowances when required to travel outside the district
Consequently under r 3 of the Rules provision was made for this monthly allowance of Rs 100 as a consolidated amount in lieu of the travelling allowance daily allowance or any other allowances to which he might have been entitled in order to compensate him for expenses incurred in connection with the discharge of his official duties
In these circumstances the High Court was perfectly correct in arriving at the conclusion that this allowance of Rs 100 per month did not amount to receipt of any profit or gain by the Chairman and only represented the amount which he was expected to spend on an average every month for the purpose of properly discharging his official duties
So far as rules 4 to 7 are concerned they only provide for payment of travelling allowance and daily allowance when a Chair 428 man performs a journey in connection with his official duties outside the district
Clearly these allowances are also meant to ensure that he does not have to incur expenditure from his own pocket for the purpose of discharging his official duties
There is again no evidence from which an inference may be drawn that the amount received by a Chairman for travelling allowance or daily allowance is in excess of the amount of expenditure which he would have to incur for the purpose of performing the journeys in order to discharge his official duties
Our attention was drawn by learned counsel to the fact that in rule 7 the persons entitled to daily allowance are divided into two categories and a Chairman of a Panchayat Samiti belonging to Category II is entitled to Rs 6 per diem when a Member of the
Samiti belonging to Category II is only entitled to Rs 4 per diem
The argument was that there was no explanation for payment at a higher rate to the Chairman and consequently it must be held that the Chairman must be making gain out of the payment to him of daily allowance
We are unable to accept this submission
The daily allowance is invariably fixed after estimating what extra expenditure in a day the person concerned would have to incur
A Chairman it appears was expected to incur more expenditure per day than a Member and that seems to be the reason why a higher rate of daily allowance was prescribed for him
In any case such a payment is clearly meant only to cover additional expenditure and out of pocket expenses of the Chairman and while no evidence has been advanced to show that out of the amount received as daily allowance the Chairman will in fact invariably make a saying it cannot be held that this payment would result in gain so as to make the office an office of profit
In the course of his submissions learned counsel tried to urge that the payment of travelling allowance and daily allowance under rules 3 to 7 was in addition to the payment of the consolidated monthly allowance under r 3 and payment of two sets of aLlowances must necessarily result in profit to the payee
The argument proceeds on a complete misunderstanding of the Rules
Rule 3 only covers payment to compensate a Chairman for journeys performed by him for his official duties within the district in which the Panchayat is situated while rules 4 to 7 govern cases where the journey is performed outside the district
Rule 3 and rules 4 to 7 are therefore complementary and exclusive of each other
In fact r 5 makes it clear that the mileage allowance is admissible only for journeys undertaken outside the district while in respect of daily allowance the fact that the right to receive it accrues only when the journey is outside the district is made manifest by laying down that the receipt of this daily allowance is to be subject to the provisions of r 3
The submission that the payment under rules 429 4 to 7 is in addition to the payment under r 3 is thus clearly misconceived
In this connection learned counsel drew our attention to a decision of this Court in Ravanna Subanna vs GS Kaggeerappa1 where dealing with the provision relating to this disqualification the Court held The plain meaning of the expression seems to be that an office must be held under Government to which any pay salary emoluments or allowance is attached
The word profit connotes the idea of pecuniary gain
there is really a gain its quantum or amount would not be material but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit
This principle on the finding arrived at by the High Court and affirmed by us above is of no assistance to the appellant
It is clear that the appellant has failed to establish that the allowances payable under rules 3 to 7 of the Rules result in any pecuniary gain to a Chairman of a Panchayat Samiti and consequently there is no question of any disqualification arising
The appeal fails and is dismissed with costs
RKPS Appeal dismissed
1 AIR 1954 SC 653 at p 656


Summary:
The appellant who was defeated by the first respondent in the General Election of 1967 to the Punjab Vidhan Sabha challenged the latter s election on the ground that he was disqualified from being chosen as a member of the Assembly because he was holding an office of profit under the State Government at the relevant time
It was admired that the respondent was the Chairman of a Panchayat Samiti and it was contended by the appellant that the allowances paid to the Chairman under Rules 3 to 7 of the Punjab panchayat Samitis and Zila Parishads Non Official Members Payment of Allowances Rules 1965 made that office an office of profit
The High Court dismissed that election petition and on appeal to this Court HELD The High Court came to a correct conclusion in holding that the allowances paid under Rules 3 to 7 did not convert the office of Chairman of Panchayat Samiti into an office of profit
The payment to a Chairman under r 3 is described in the rule as a monthly consolidated allowance in lieu of all other allowances for performing all official duties and journeys concerning the Panchayat Samiti within the district
This provision clearly shows that the allowance paid is not salary remuneration or honorarium but an allowance paid for the purpose of ensuring that the Chairman of a Panchayat Samiti does not have to spend money out of his own pocket for the discharge of his duties
The burden which lay on the appellant to show that the allowance of Rs 100 per month was excessive and was not required to compensate the Chairman for his actual expenses had not been discharged
426 F G 427 B C Rules 4 to 7 only provide for payment of traveling allowance and daily allowance when a Chairman performs a journey in connection with his official duties outside the district
There is again no evidence from which it could be inferred that the amount received by a Chairman was in excess of his actual expenditure
427 H 428 B There was no force in the contention that the payment of traveling allowance under Rules 3 to 7 was in addition to the payment of the consolidated monthly allowance under Rule 3 and payment of two sets of allowances must necessarily result in profit to the payee
Rule 3 only covers payment to compensate a Chairman for journeys performed by him for his official duties within the district in which the Panchayat is situated while rules 4 to 7 govern cases where the journey is performed outside the district
428 F G Ravanna Subanna vs G section Kaggeerappa AIR 1954 SC 653 at p 656 distinguished