1 IN THE HIGH COURT OF BOMBAY AT GOA ELECTION PETITION NO. 1 OF 2002. Chandrakant Uttam Chodankar, son of Uttam Chodankar, resident of House No. 581, Guddem, Siolim, Goa. .... Petitioner. Versus 1. Shri Dayanand Rayu Mandrekar, son of Rayu Mandrekar, major in age, married, r/o House No.353/6B,Oxel, Chopdem, Siolim, Bardez, Goa, . 2. Christopher Fonseca, major in age, married, r/o House No.60, Vale Gongurrem, Assagao, Bardez, Goa, . 3. Pandharinath Vaman Polle, major in age, r/o H. No.118-1A, Trimurti Bhavan, Abbas Wado, Canca, Bardez, Goa, 4. Francis Gregorio Fernandes, major in age, r/o Sodiem, Siolim. Bardez, Goa, 5. Gokuldas Surya Naik, s/o Surya Naik, major in age, r/o House No. 694,Assagao, Badem, Bardez, Goa, 6. Albin Fernandes, major in age, r/o House No.203, Chawadi Vaddo, Marna, Siolim, Bardez, Goa, 7. Jawaharlal Henriques, major in age, r/o H.No. 161, Rodrigues Vaddo, Siolim, Bazrdez, Goa, 8. Sanjay Ganesh Narvenkar,s/o Ganesh Narvekar, major in age, r/o 223/A, Abbas Vaddo, Canca, Parra, Bardez, Goa, 9. Kalidas Vinayak Vernekar, s/o Vinayak Verenkar, major in age, r/o H.No. 476/7, Oxel, Siolim., Bardez, Goa, 10. Mangesh Kaskar, 2 major in age, r/o Bandir Wada, Shapora, Anjuna, Bardez, Goa. 11. The Returning Officer, ) 6-Siolim Assembly ) Constituency, having ) office at the Office of Dy. ) Collector, Mapusa, Bardez, Goa. ) 12. The Chief Electoral Officer, ) State of Goa, Office of the ) Chief Electoral Officer Altinho, Panaji, Goa. ) 13. Election Commissioner, ) Election Commission of India, ) having office at “Nirvachan Sadan” ) Ashoka Road, New Delhi, Pin-110001. ) 14. Goa Khadi And Village Industries ) Board, through its Managing Director, ) with office at Junta House, 2nd Floor, ) Panaji, Goa. ) .... Respondents. (Respondents no.11 to 14 deleted vide Order dated 13.09.02 on Exh.2 in Election Application No.1/02) Mr. J.E. Coelho Pereira, Senior Advocate with Shri S. Karpe and Shri W. Rodrigues, Advocates for the Petitioner. Shri V.P. Thali with Ms. G. Pednekar, Advocates for the Respondent No.1. CORAM: N. A. BRITTO, J. DATE: 27 th MAY, 2005. JU D G M E N T: In this election petition filed under the Representation of the People Act, 1951, the petitioner who is one of the unsuccessful candidates at the election held on 30.5.02 for 6-Siolim Constituency in the State of Goa has challenged the election of the respondent No.1 (respondent, for short) the returned candidate, on the ground that the latter was holding an office of profit as contemplated by Article 191(1)(a) of the Constitution, having 3 been the Chairman of the Goa Khadi and Village Industries Board (Board, for short), constituted under the Goa Khadi and Village Industries Board Act, 1965 (Act, for short), on the date of the nomination as well as on the date of election to the said Constituency. 2. First some undisputed facts are required to be mentioned. 3. By virtue of Notification No.4/12/87-IND dated 8.12.1999, the Board was constituted by the Government and the respondent was appointed as Member/Chairman for a period of three years with effect from 8.12.1999 and by another Notification dated 1.3.2000 the Board was constituted with the names of nine official as well as non-official members and the respondent as Chairman thereof which position the respondent held from 8.12.1999 till he resigned on 8/15.7.02 after the respondent became a Minister for Agriculture on 4.6.02. 4. The respondent was a Member of the State Legislative Assembly. The said Assembly was dissolved on 27.2.02. The elections for the said Assembly were declared on 6.5.02 and the last date for filing of nominations was 13.5.02. The petitioner as well as the respondent filed their nominations which were displayed on 16.5.02. The polling took place on 30.5.02. The counting took place on 1.6.02 and the respondent was declared as the returned candidate on 2.6.02. 5. The petitioner has examined himself and four more witnesses in support of the petition . The respondent has chosen not to examine himself, 4 but has examined three witnesses. As far as the facts go, it appears that the respondent did not wish to contest the same and for that reason did not examine himself. The witnesses examined on behalf of the respondent could only corroborate the facts, if any, if facts were deposed to by the respondent. In this context I may refer to the case of Vadar v. Manik Rao and Another [(1999) 3 S.C.C. 573] wherein the Hon'ble Supreme Court has stated that where a party does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. This has been stated by the Hon'ble Supreme Court relying upon a catena of decisions in that regard. I may also refer to the case of R. Puainar Alhithan and others v. P.H. Pandian and others [(1996) 3 S.C.C. 624] wherein the Supreme Court has stated that in an election petition though the trial is like a trial in a criminal case, but unlike in a criminal case where the petitioner has adduced evidence to prove that the returned candidate had committed corrupt practice, the burden shifts on the returned candidate to rebut the evidence, and, after its consideration, it is for the Court to consider whether the election petitioner had proved the corrupt practice as alleged against the returned candidate. The Supreme Court has also stated that the standard of proof required cannot be put in a strait-jacket formula and no mathemetical formula can be led on the degree of proof. The probative value could be gauged from the facts and 5 circumstances in a given case. Again the case of Sushil Kumar v. Rakesh Kumar [(2003) 8 S.C.C. 673] the Supreme Court has stated that the initial burden to prove the allegation made by the petitioner is on the election petitioner and the onus then shifts on the candidate to prove the facts which are within his special knowledge, but where both the parties adduce evidence, the question of burden of proof becomes academic. 6. Article 191 of the Constitution provides for disqualification for membership. Clause (1) thereof provides that 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)..................................................... (c)..................................................... (d) ................................................... (e) ................................................... Explanation for the purpose 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 6 he is a Minister either for the Union or for such State. (2) ... ” 7. The principle for debarring a holder of office of profit under the Government from being a Member of Legislative Assembly is that such person cannot exercise his functions independently of the executive of which he becomes a part by receiving pecuniary gain. The object of enacting Art.191(1)(a) of the Constitution, as stated by the Supreme Court time and again, is that the person who is elected to a legislature should be free to carry on his duties fearlessly without being subjected to any kind of Governmental pressure. If such a person is holding an office which brings him remuneration and the Government has a voice in his continuance in that office, there is every likelihood of such a person succumbing to the wishes of the Government. Art.191(1)(a) is intended to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the legislature – (See Biharilal Dobray v. Roshan Lal Dobray (A.I.R. 1984 S.C. 385). In the case of Shibu Soren v. Dayanand Sahay and Others [(2001) 7 S.C.C. 425], on which reliance has been placed by both the parties, the Supreme Court speaking through its three learned Judges stated that Art.191(1)(a) as well as Art.102(1)(a) were incorporated with a view to eliminate or in any event reduce the risk of conflict between duty and interest amongst members of the legislature so as to ensure that the legislator concerned does not come under an obligation of the executive on 7 account of receiving pecuniary gain or profit from it which may render him amenable to the influence of the executive, while discharging his obligations as a legislator. 8. I will now proceed to examine the case of the petitioner vis-a-vis the case of the respondent in the light of Art.191(1)(a) of the Constitution and various tests laid down by the Supreme Court particularly in the case of Shibu Soren (supra) which was followed by the Constitution Bench of the Supreme Court in the case of K. Prabhakaran v. P. Jayarajan [(2005) 1 S.C.C. 754] on which reliance has been placed on behalf of the respondent. 9. Was the respondent, as Chairman of the Board holding any office as contemplated by Article 191(1)(a) of the Constitution ? The word “office” has not been defined in the Constitution nor in the Representation of the People Act, 1951, but various pronouncements of the Supreme Court have now given to it a definite meaning. Generally it means a position or place to which certain duties are attached. Rule 11 of the G.D.D. Khadi and Village Industries Board Rules, 1967 (Rules, for short) confers certain powers on the Chairman of the Board and makes him responsible for the proper functioning of the Board and the implementation of its decision and discharge of its duties under the Act and it also provides that the Chairman 8 shall exercise administrative control over all Departments and officers of the Board. It is therefore obvious that the respondent as Chairman of the Board had certain duties to be performed. Sub-section (5) of S.4 of the Act provides that in the event of any vacancy in the office of a member of the Board by reason of death, resignation or removal, such vacancy shall be filled in by appointment by Government and the member appointed in such vacancy shall hold office for the unexpired term of his predecessor (emphasis supplied). The definition of that word given by Justice Rowlatt in the case of Great Western Rly Co. v. Bater was accepted by the Supreme Court in the case of Kanta Kathuria v. Manak Chand Surana [(1969) 3 S.C.C. 268] and followed in the case of M. V. Rajeshekaran and others [(2002) 2 S.C.C70) and it was stated that the test to be applied is whether it was subsisting, permanent, substantive which had an existence independent of the person who filled it. Although the respondent contends that he did not hold any office as the Chairman of the said Board, it is also not the case of the respondent that he was appointed to do a particular work or perform specified duties and his Chairmanship would come to an end after that work or those duties were over. In the case of Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani [(1977) 1 S.C.C. 70] the Supreme Court stated that holding an office denotes an office and connotes its holder and this duality implies the existence of the office as an independent continuity and an incumbent thereof for the nonce. The 9 Supreme Court followed the view of the Constitution Bench in the case of Kanta Kathuria v. Manak Chand Surana (supra) that 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 and the fact that the legislature of the State has been authorised by Art.191 to declare an office of profit not to disqualify its holder, contemplates existence of an office apart from its holder. If in yesteryears the respondent was the Chairman of the said Board, today it is someone else who is occupying the said position of the Chairman and this shows that the office of the Chairman of the Board is distinct from its holder and has permanency and continuity. It follows therefrom that the office of the Chairman of the Board is an office which has an independent existence from the person who occupies it and is permanent, substantive as well as subsisting and has certain duties attached to it. Therefore, it is to be concluded, that the office of the Chairman of the Board was an office as contemplated by Art.191(1)(a) of the Constitution. 10. Was the said office of the Chairman of the Board, an office of profit as contemplated under Article 191(1)(a) of the Constitution ? In the case of Shiva Murti S. Inamdar v. Veerapa [(1971) 3 S.C.C. 870] relied upon on behalf of the respondent, it has been stated that the word 'profit' connotes the idea of pecuniary gain and if there is really a gain, its 10 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. In the case of Shibu Soren (supra) the Supreme Court has stated that the expression “office of profit” has not been defined either in the Constitution or in the Representation of the People Act but in common parlance, the expression profit connotes an idea of some pecuniary gain and if there is really some gain, its label - honorarium – remuneration – salary is not material – It is the substance and not the form that matters and even the quantum or amount of pecuniary gain is not relevant – what needs to be found out is whether the amount of money receivable by the person concerned in connection with the office he holds, gives to him some pecuniary gain other than as compensation to defray his out of pocket expenses, which may have the possibility to bring that person under the influence of the executive, which is conferring that benefit on him. The Supreme Court stated that payment of honorarium may not by itself imply payment of any pay, salary, remuneration or emoluments. The Supreme Court further stated that honorarium is a concept different from salary or remuneration and its payment cannot constitute an office of profit unless there is some pecuniary gain for the recipient. The Supreme Court has further stated that the word “profit” for the purpose of Art.191(1)(a) of the Constitution connotes an idea of pecuniary gain though the label under which it is paid nor the 11 quantum of the amount is material to determine the issue. Rule 7, sub-rule (1) of the Rules, provides that the Chairman, the Vice- Chairman and other members of the Board would be paid such salary or honorarium and allowances from the funds of the Board as the Government, may from time to time fix. Sub-rule (2) provides that the said Chairman, Vice-Chairman and other members of the Board would also be entitled to draw travelling and daily allowances for journeys performed for attending the meetings of the Board or for the purpose of discharging such duties as may be assigned to them by the Board, in accordance with the Rules and orders issued by the Government from time to time at the highest rate admissible to Government servants of Grade I. Sub-rule (3) provides that the Chairman would be entitled without payment of rent to the use of a furnished residence. The accommodation would be furnished as prescribed by the Government at the total cost not exceeding Rs.500/-. Sub-rule (4) provides that notwithstanding anything contained in sub-rules (1) and (2), the Chairman, Vice-Chairman or any other member of the Board, who is also a member of Parliament or of the Legislature of a State or Union Territory, shall not be entitled to any remuneration other than compensatory allowances as defined in clause (a) of Section 2 of the Parliament of Prevention of Disqualification Act, 1959 or as the case may be other than the allowances, if any, which a member of the legislature of the State or Union Territory may under any law for the time being in force 12 in the State or Union Territory relating to the Prevention of Disqualification for membership of the State Legislature or Union Territory legislature, receive them incurring such disqualification. Admittedly, no salary or honorarium was fixed by the Government in terms of sub-rule (1) of rule 7 of the Rules nor any accommodation was provided to the Chairman, the respondent herein, in terms of sub-rule (3) of Rule 7 of the Rules. However, the petitioner has proved with his own evidence and that of his witnesses that the respondent while he was the Chairman of the Board, enjoyed the following privileges or perquisites or benefits :- (a) The respondent enjoyed the privilege of a chauffeur driven car with unrestricted use of petrol although the respondent attended office of the Board twice or thrice a week and considering the distance which the respondent had to cover not more than 60 litres of petrol would be required, by him in a month. The petitioner has proved that the respondent consumed 386.88 ltrs. of petrol for the period from 9.2.02 to 28.2.02 at the cost of Rs.10,600/- and 482.45 ltrs. of petrol for the period from 1.3.02 to 31.3.02 at the cost of Rs.12,900/-. The chauffeur /driver was paid about Rs.5038/- per month. No log book was maintained for the said car nor the the officials of the Board insisted for the production of the log book and as stated by one of the witnesses examined by the petitioner, this was because the respondent was the “ Chairman of the Board ”. 13 (b) The respondent was sanctioned by the Government by letter No.4/6/90-IND dated 15.2.2000 what was known as staff of the Chairman namely a P.A., a clerk, the said driver and a Peon who were paid a total sum of Rs.20,879/- each for the months of May, 2002 and June, 2002. The evidence shows that although the said Driver was seen in the office of the Board, the said other three members of the staff were not seen at the office of the Board and the salary due to them were drawn by self drawn cheques and the money was handed over either to the respondent or to his P.A. in the office – not the P.A. of the staff of the Chairman. (c) The respondent was provided with a residential telephone bearing No.270300 with no restriction in the number of calls to be made by the respondent. A sum of Rs.1885/- was paid by the Board for the use of the said telephone for the period from 1.2.02 to 31.3.02 and another sum of Rs.1522/- for the period from 1.4.02 to 31.5.02. (d) A mobile set purchased by the Board which presumably has not been returned back to the Board by the respondent having No.9822125776. There was no restriction as to the number of calls. Sum of Rs.1892.02 was paid for the month ending 5.4.02 and another sum of Rs.1165.20 for the month ending 5.5.02. (e) Supply of three newspapers at the respondent's residence though newspapers were also subscribed by the Board in its office. The petitioner has proved that the respondent was paid Rs.255/- for the said newspapers 14 for the month of February, 2002. (f) The respondent claimed and was paid a sum of Rs.10,076/- towards the salary of the driver inspite of the fact that the Board's car was surrendered b y the respondent for the said period from 17.4.02 to 10.6.02. (g) After the Code of Conduct for elections came in force from 17.4.02 and the respondent surrendered the official car of the Board, the respondent claimed a sum of Rs.31,500/- by way of hire charges of a private vehicle for the period from 17.4.02 to 10.6.02 but was paid a sum of Rs.28,500/- by cheque dated 10.7.02. This payment was made not by way of hire charges but by way of petrol charges although the respondent did not have the official car. (h) The respondent claimed and was paid Rs.13,164/- for his official visit to Mumbai which included additional payment made to the driver. (i) The respondent was paid with the approval of the Government a sum of Rs.15,471/- as air fare to New Delhi and back at a time when the respondent accompanied by some other Ministers went on a tour to Australia which tour was otherwise not connected with the work of the Board. (j) A sum of Rs.46,800/- was claimed and paid to the respondent towards the expenditure incurred by him for the said tour to Australia as against his claim of Rs.1,10,000/- which was claimed was spent by him. 15 11. On behalf of the respondent, it is contended that the payment made to the respondent for a trip to Delhi and back, on his way to Australia, was not pleaded by the petitioner and, therefore, the same could not be met by the respondent in the written statement and being so, no evidence could be allowed to be led on the same. Reliance has been placed on the case of Ravinder Singh vs. Janmeja Singh & Ors., [ (2000) 8 SCC 191] in which the Supreme Court has stated that no evidence can be led on a plea not raised in the pleadings and no amount of evidence can cure the defect in the pleadings. In my view, even in case this contention is accepted, the same cannot take the respondent anywhere. It is to be noted that the petition is based on the ground that the respondent was holding an office of profit under the Government and to prove the said plea the respondent has proved a number of instances on the basis of which the said plea can be proved. The fare paid to and fro from Delhi is only one instance which has been impliedly admitted by the respondent, since there is no evidence produced to the contrary. 12. As already seen, as per Rule 7 of the Rules, what was payable to the respondent as Chairman was salary or honorarium and allowances to be fixed by the Government time-to-time which, admittedly, were not fixed or paid. Likewise, the respondent as Chairman was entitled to draw travelling and daily allowance for journeys performed for attending the meetings of 16 the Board and it appears that in lieu of that, the respondent was provided with a chauffeur-driven car belonging to the Board with no restriction on the use of petrol. The respondent was also entitled to rent-free and furnished residence, which was also not provided to the respondent as Chairman. The contention of the respondent is that since the salary or honorarium and the rent-free furnished accommodation in terms of Sub-(1) of Sub-rule (3) of Rule 7 of the Rules, was not provided to the respondent as Chairman, it could not be said that the respondent was entitled to any salary. In this context, reliance has been placed on behalf of the respondent on the case of Divya Prakash vs. Kultar Chand Rana & Anr., [(1975) 1 SCC 264], wherein the Supreme Court stated that the fact that the post itself carried a scale of pay is inconsequential for the holding of the `office as it has not resulted in any profit to the holder however small. The Supreme Court made the said observation in the light of the fact that the appointment of Chairman in that case was one made in an honorary capacity, unlike in the case at hand. There is nothing to indicate in this case that the appointment of the respondent as Chairman was in an honorary capacity. In my view, in order to determine whether an office held is an office