IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 El.Pet..No. 6 of 2011() ----------------------- PETITIONER(S): --------------------- ADV. JOHNY NELLOOR, S/O. VARKEY, AGED 61 YEARS, NELLOOR HOUSER, MUVATTUPLUZHA P.O., PIN - 686 651, ERNAKULAM DISTRICT. BY ADV. SRI.WILSON URMESE RESPONDENT(S): ---------------------- ADV. JOSE THETTAYIL, S/O,. THOMAS, AGED 62 YEARS, THETTAYIL HOUSE, ANGAMALY P.O., PIN - 683 572, ERNAKULAM DISTRICT. ADV. SRI.K.JAYAKUMAR, SENIOR ADVOCATE SRI.GRASHIOUS KURIAKOSE, SENIOR ADVOCATE SRI.P.K.VIJAYAMOHANAN SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA SRI.V.S.BOBAN SRI.NISHIL.P.S. SRI.V.K.BIJU SMT.O.V.BINDU SRI.J.VIMAL FOR R1 SRI.V.V.NANDAGOPAL NAMBIAR SRI.P.RAMAKRISHNAN SRI.M.K.DAMODARAN, SENIOR ADVOCATE FOR R1 THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 25/11/2011, THE COURT ON 12.12.2011 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - E.P. No. 6 of 2011 - - - - - - - - - - - - - - - - - - - Dated this the 12th day of December, 2011. JUDGMENT Election to the 075 Angamaly Assembly constituency was held on 13.4.2011. The petitioner was a candidate sponsored by the UDF and the respondent was a candidate sponsored by the LDF. Counting took place on 13.5.2011. Respondent secured 61500 votes, whereas the petitioner could poll only 54330. Hence, the respondent, who obtained the largest number of votes, was declared duly elected. 2. In this petition, the petitioner challenges the election of the respondent mainly on three grounds. They are (i) the respondent was holding an office of profit under the State Government and therefore he was disqualified under Article 191 of the Constitution of India from contesting the election, (ii) there is gross violation of Section 38 of the Representation of the People Act, 1951 (hereinafter referred E.P.6/2011. 2 to as 'the Act') and the Conduct of Election Rules in preparing the list of candidates and (iii) in the election campaign the respondent used a poster showing him standing before the newly put up KSRTC bus stand at Angamaly and thereby took undue advantage of the same. 3. The allegations in brief are that at the time of filing of nomination the respondent was functioning as a Notary appointed by the State Government and therefore he held an office of profit. Even at the time when he filed the nomination, his name continued in the Register of Notaries maintained by the State. He is an advocate and was appointed as Notary by the orders of the State Government. He is to have an office of his own. He shall have and use a seal in the prescribed form and design. According to the petitioner, there can be no doubt that the respondent was holding an office of profit. 4. The second ground alleged is that there is violation of Section 38 of the Act. That section stipulates E.P.6/2011. 3 the manner in which the candidates are to be ranked in the ballot paper. Initially a list was published, which is produced as Annexure C. According to the petitioner, without any authority and without any reason thereafter the list was revised and Annexure D was published. The change of the list is unauthorised and constitutes violation of the provisions of the Act and the Rules providing a ground for setting aside the election. 5. The respondent has made use of a poster, wherein he is shown as standing before the KSRTC Bus stand at Angamaly which was put up recently. It is alleged that by doing so he has misused his office and made use of a public building for his campaign thereby violating the election code. 6. The grounds on which the election is assailed are under Section 100(1)(a) and Section 100(1)(d)(iv) of the Act. Accordingly, it is alleged that the election of the respondent is liable to be set aside. However, there is no E.P.6/2011. 4 prayer seeking a consequent declaration that the petitioner is duly elected. 7. The respondent filed preliminary objections and wanted to have the maintainability of the petition heard. In the objection so filed, it is contended that Notary is not an office of profit either under the Central Government or under the State Government and therefore does not fall within the prohibition envisaged under Article 191 of the Constitution of India. As regards the other two grounds, it is contended that even assuming them to be true, they do not provide grounds for setting aside the election and therefore, the petition has to fail. Regarding the latter two contentions, it is also pointed out that there is absolute want of pleadings or in other words, the material facts are not stated which constitute grounds for setting aside the election. It is pointed out that in order to attract Section 100(1)(d)(iv), it will have to be specifically pleaded that by virtue of the violation of the provisions of the Act and the Rules, the E.P.6/2011. 5 election of the respondent has been materially affected. There is no such pleading and therefore, the petition has to fail at the threshold itself. It is also pointed out that there is no triable issue as could be gathered from the pleadings in the case. 8. Part VI Chapter II deals with presentation of election petition and its trial by the High Court. Section 80 stipulates that no election can be called in question except by an election petition presented in accordance with the provisions of the Act. Section 80A clothes the High court to try an election petition. Section 81 deals with the manner of presentation of an election petition and Section 82 deals with the parties to the election petition. Section 83 deals with the contents of the election petition and Section 84 is regarding the relief that may be claimed by the petitioner. Section 86 deals with the trial of the election petition and Section 87 deals with the procedure to be followed by the High Court. It is significant to notice that by Section 87 of E.P.6/2011. 6 the Act, the provisions of the Code of Civil Procedure are made applicable for trial of election petition. The other relevant section is Section 100. Section 100 provides grounds for declaring an election to be void. It reads as follows: “100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- E.P.6/2011. 7 (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. (2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfied- (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent; (b) omitted E.P.6/2011. 8 (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.” 9. The relevant provisions for the present purpose are Section 100(1)(a) and Section 100(1)(d)(iv) of the Act. As per Section 100(1)(a) of the Act, if it is established that as on the date of the election, the returned candidate was not qualified or was disqualified, then his election has to be held void. In the case of Section 100(1)(d)(iv) of the Act, the petitioner has not only to plead and establish that there was non-compliance with the provisions of the Constitution of India or the Act or of any rules or orders made under the Act, but also has to plead and establish that by virtue of those E.P.6/2011. 9 violations, the election of the returned candidate has been materially affected. 10. Necessarily, one will have to refer to Article 191 of the Constitution of India. The same reads as follows: “191. Disqualification 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; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherences to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. E.P.6/2011. 10 Explanation.- For the purposes of this clause, 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. (2) A person hall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.” 11. As already noticed, the most serious allegation is that the respondent was holding an office of profit as contemplated under Article 191 of the Constitution and therefore, he was disqualified from contesting the election. It is not in dispute that the respondent was appointed as a Notary by the State Government. That would be evident from Annexure B, which is a notification appointing the respondent as a Notary issued by the State Government. Annexure C shows that his name continued to be in the register maintained by the State even at the time of filing of nomination. Even though the respondent has a E.P.6/2011. 11 contention that during the relevant time, he had suspended his practice as an Advocate, there is no proof regarding the same and he continued to be a Notary having his name retained in the register of Notaries maintained by the State Government. 12. The question that has to be tackled is whether office of Notary is an 'office of profit' as is envisaged under the above provision of the Constitution. 13. Sri. M.K.Damodaran, learned Senior Counsel appearing for the respondent, pointed out that by no stretch of imagination a Notary could be said to be occupying an 'office of profit'. It is pointed out that while it may be true that the Notary is appointed by the Government and that he may be removed by the Government, there ends the control of the Government. There is no office to which a Notary is appointed and a Notary is appointed for a term, after which he automatically ceases to be a Notary. The fact that the Notary is to maintain an office of his own does not mean E.P.6/2011. 12 that it is an office as contemplated under Article 191 of the Constitution. Learned counsel went on to point out that even assuming that there is an office to which the respondent was appointed, it is not an 'office of profit'. The respondent derives no pecuniary benefits from the Government or from any other source which is an essential ingredient to fall within the ambit of the office of profit under Article 191 of the Constitution of India. 14. Relying on several decisions, it was pointed out that in order to be an office, it has to exist independent of the person, who is holding the said office, and in the case on hand the appointment is co-terminus with expiry of the period as a Notary. It is not a post which can be occupied by successive persons. All that the Notary is entitled to is the prescribed fee and nothing more. He receives no allowance or any other pecuniary benefits from the State Government or the Central Government. In support of his contention, learned counsel relied on the decisions reported E.P.6/2011. 13 in Srimati Kanta Kathuria v. Manak Chand Surana ((1969)3 SCC 268), K.B. Rohamare v. Shanker Rao Genuji Kolhe ((1975) 1 SCC 252), Madhukar v. Jaswant (AIR 1976 SC 2283), Shibu Soren v. Dayanand Sahay ((2001) 7 SCC 425) and Jaya Bachan v. Union of India (AIR 2006 SC 2119). 15. Learned counsel appearing for the petitioner on the other hand contended that going by the tests laid down by the Apex Court in various decisions, it is very clear that Notary occupies an office of profit and therefore falls within the prohibition under Article 191 of the Constitution of India. It is contended on behalf of the petitioner that it cannot be disputed that a Notary is appointed by the State Government and can be removed by the State Government. He is under the disciplinary control of the State Government. It is not necessary, that to fall within the scope of office of profit, the person concerned should get pecuniary benefits from the State Government itself. If as a matter of fact E.P.6/2011. 14 some pecuniary gain is attached to the office, and if the person concerned is entitled to draw the same, that would be sufficient. Learned counsel placed reliance on the decisions reported in Srimati Kanta Kathuria v. Manak Chand Surana ((1969) 3 SCC 268), Madhukar G.E. Pankakar v. J.C. Rajani ((1977) 1 SCC 70), Shibu Soren's Case, Narayanaswamy v. C.P. Thirunavukkarasu ((2000) 2 SCC 294), Jaya Bachan v. Union of India (AIR 2006 SC 2119) and Abdul Shakur v. Rikhab Chand (AIR 1958 SC 52). Learned counsel also referred to the various provisions under the Notaries Act and Rules thereunder in support of his contention that the respondent at the relevant time occupied an office of profit. 16. Before going into the question as to whether the respondent occupied an office of profit, it will be useful to refer to the Notaries Act and Rules. Section 3 of the Notaries Act, (hereinafter referred to as Act 53 of 1952) stipulates that the Central Government or the State E.P.6/2011. 15 Government may appoint as Notary any legal practitioner or person who possesses such qualifications as are prescribed. Section 4 stipulates that the Government concerned is to maintain a register of Notaries. It also makes mention of the particulars that the register has to contain. Section 5 mentions that on payment of prescribed fee to the Government for appointing him as Notary, a person is entitled to have his name entered in the register and he is given a certificate authorising him to practice for five years from the date on which certificate is issued to him. Section 5 also provides that the certificate may be renewed for five years. Section 7 states that every Notary shall have and use a seal in the prescribed form and design. Section 8 deals with the functions of the Notary. Section 10 deals with the removal from the register of Notaries. It empowers the Government concerned to remove from the register maintained by it the name of a Notary, if he falls within any of the provisions contained therein. E.P.6/2011. 16 17. Rule 8 of the Notaries Rules, 1956 stipulates the procedures for appointment of a Notary. Rule 10 stipulates the fees that a Notary is entitled to collect for notarial act. Rule 12 provides the form and design of the seal to be used by a Notary. 18. Having thus had a glimpse of the statutory provisions, it becomes necessary to ascertain whether a Notary holds an 'office of profit'. Articles 58, 66, 102 and 191 of the Constitution, which deal with the election of President, Vice President, Members of Parliament and Members of the Legislative Assembly and Legislative Council as the case may be contain the words 'office of profit'. While in Articles 58 and 66, it extended to holding of an office of profit under any local or other authority subject to control of either the Central Government or State Government, in Articles 102 and 191 such a stipulation is conspicuously absent. Even though in the four articles the words 'office of profit' is used, neither the word 'office' nor the words 'office E.P.6/2011. 17 of profit' are seen defined either in the Constitution or anywhere else. One has to depend on precedents so as to ascertain what constitutes 'office of profit'. 19. As far as the case on hand is concerned, it is governed by Article 191 of the Constitution of India. Going by the various decisions of the Apex Court, the test for finding out whether an office in question is an office under the Government or whether it is an office of profit or not, the following criterion is usually adopted: i) Whether the Government makes the appointment. ii) Whether the Government has right to remove or dismiss the holder. iii) Whether the Government pays the remuneration. iv) What are the functions of the holder? Does he perform them for the Government? and E.P.6/2011. 18 v) Does the Government exercises any control over the performance of those functions? 20. The object of the above Articles, namely, Articles 58, 66, 102 and 191 appears to be that the person, who is elected to the legislature, should be free to carry on his duties, obviously without being subjected to any kind of Governmental pressure. It is felt that if such a person holds an office and the Government has a voice in his continuation in that office, there is likelihood of such person succumbing to the wishes of the executive. The above articles are intended to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the legislature. Though the issue may appear to be very simple, its solution appears to be rather complicated. The twin questions are what is an 'office' and whether an 'office', in order to be characterised as an 'office of profit', should satisfy all the conditions mentioned above or any one of E.P.6/2011. 19 them is decisive, has been a subject matter of several decisions of the Apex Court. 21. In the decision reported in Kanta Kathuria v. Manak Chand (AIR 1970 SC 694) the issue was considered at length. The decision considered as to what is meant by 'office' and what is meant by an 'office of profit'. In the said case, one Smt. Kanta Kathuria contested for the State Legislative Assembly election. She was elected. Her election was challenged on the ground that at the relevant time, she held an office of profit under the State Government. 22. The facts of the case show that Smt. Kanta Kathuria was appointed by the Government of Rajasthan as a 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. She was to be paid a remuneration of Rs.150/- per day for each date of hearing E.P.6/2011. 20 and Rs.75/- per day for days of travel and dates on which the case was adjourned and days spent on preparation of the case. It was found that as on the date of filing of the nomination, the arbitration proceedings were still continuing. The Constitutional Bench consisting of five Judges considered the issue. Two of the Judges held that Smt. Kanta Kathuria did held an office of profit. But the majority held otherwise. Referring to Justice Rowlatt's definition in (1922) 8 Tax Cas 231 it was held as follows: “The word “office” has various meanings depending, upon its context. The words 'its holder' occurring in Art. 191(1)(a), indicate that there must be an office which exists independently of the holder of the office. Further, the very fact that the Legislature of the State has been authorised by Article 191 to declare an office of profit not to disqualify its holder, contemplates existence of an office apart from its holder. In other words, the Legislature of a State is empowered to declare that an office of profit of a particular description or name would not disqualify E.P.6/2011. 21 its holder and hot that a particular holder of an office of profit would not be disqualified.” 23. After referring to the provisions of the C.P.C., it was held that since Smt. Kanta Kathuria was appointed only to assist an Advocate in the particular case, Order 21 Rule 4 C.P.C. has no application. Referring to the object of Article 191, it was observed as follows: “.....It is not necessary to give a wide meaning to the word “office” because if Parliament thinks that a legal practitioner who is being paid fees in a case by the Government should not be qualified to stand for an election as a Member of Legislative Assembly, it can make that provision under Art.191 (1)(a) of the Constitution.” However, in the said case, in the meanwhile, the State Government had brought in a legislation declaring retrospectively exempting the office such as the nature held E.P.6/2011. 22 by Smt. Kanta Kathuria from the ambit of Article 191 of the Constitution. That was held to be valid. 24. The issue was considered in the decision reported in Mathukar G.E. Pankakar v. J.C. Rajani ((1977) 1 SCC 70). In the said case, Dr. Pankakar succeeded in the election to the Municipal Council. His election was challenged on the ground that he was disqualified under Section 16(1)(g) of the Maharashtra Municipalities Act, which stipulated that a candidate, as on the date of his nomination, if he was holding an 'office of profit' under the Government, he is disqualified from contesting the election. At the relevant time, the returned candidate was working as one in the Panel of doctors appointed under the ESI Scheme. After referring to a lot of literature as to what constitutes an office etc., it was held as follows: “22. Back to the issue of 'office of profit'. If the position of an insurance medical officer is an 'office', it actually yields profit or at least probably may. In this very case the appellant was making E.P.6/2011. 23 sizeable income by way of capitation fee from the medical services, rendered to insured employees. The crucial question then is whether this species of medical officers are holding 'office' and that 'under government', There is a haphazard heap of case law about these expressions but they strike different notes and our job is to orchestrate them in the setting of the statute. After all, all law is a means to an end. What is the legislative end here in disqualifying holders of 'offices of profit under government'? Obviously, to avoid a