Case: Abdul Shakur Vs. Rikhab Chand &amp; Another

1. This is an appeal from the order of the Election Tribunal dated January 31, 1957, setting aside the election of the appellant, Maulana Abdul Shakoor, who was elected to the Council of States by the Electoral College of Ajmer which consisted of 30 members constituting the State Legislature of Ajmer. He received 19 votes as against 7 polled in favour of the other candidate who is respondent No. 1 in this appeal. The total number of valid votes polled was 26 and there were 3 invalid votes. The result of the election was published in the Official Gazette on March 31, 1957, declaring the election of the appellant. The unsuccessful candidate, the present first respondent filed his election petition on May 2, 1956. It is not necessary to set out all the allegations in the petition because the main controversy between the parties is whether the successful candidate, the present appellant, held an "office of profit" under the government. The impugned election was held on March 22, 19562. By a notification issued on February 17, 1956, the nominations for candidature were to be filed between February 28, 1956, and March 1, 1956. The date for scrutiny was March 5, 1956, and for the polling March 22, 1956. The appellant filed two nomination papers on February 28, 1956, and a third one on March 1, 1956. The respondent Rikhab Chand Jain also filed his nomination papers on March 1, 1956. On March 5, 1956, the respondent Rikhab Chand Jain raised certain objections to the validity of the appellants nomination, the main ground being that the appellant was holding an office of profit under the government. The Returning Officer by his order dated March 6, 1956, rejected the two nomination papers of the appellant filed on February 28, 1956, but accepted the third one, i.e., on March 1, 1956, because, according to that officer, under the provisions of Durgah Khwaja Sahib (Emergency Provisions) Act, 1950 (Act XVII of 1950) which was in force upto 29-2-1956, the appellant was holding an office of profit under the government but on the coming into force of the Durgah Khawaja Sahib Act (Act XXXVI of 1955) on 1-3-1956, he no longer held such office under the government. On 3-5-1956, the respondent filed an election petition under S. 81 of the Representation of People Act 1951 in which he submitted that the third nomination paper of the appellant should also have been rejected as even under the provisions of Durgah Khawaja Sahib Act (Act XXXVI of 1955), the appellant was holding an office of profit under the government and therefore his case was covered by the provisions of Art. 102(1)(a) of the Constitution. He also prayed that he be declared elected as the votes cast in the appellants favour were "thrown away" votes and the respondent alone received a majority of valid votes4. It is not necessary to go into the question whether the two nomination papers filed by the appellant on 28-2-1956, were valid or not because if the nomination paper filed on 1-3-1956, is valid the question of their validity would not arise. It may here be stated that the argument before us has proceeded on the assumption that the appellant held an office of profit. The controversy between the parties was therefore confined to whether this office of profits was held under the Government of India and therefore the disqualification for membership under Art. 102(1)(a) applies to the appellant. In order to resolve this controversy the important question of construction that arises is: was the appellant holding an office of profit under the Government of India and does Art. 102(1)(a) of the Constitution operate? This article is as follows:102(1) "A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;" This article occurs under the heading Disqualification of members. In the same part of the Constitution, i.e., Part V are given the disqualification for election to the offices of President and Vice-President. The relevant part of Art. 58 which lays down the disqualification for the office of the President is:Art. 58 (1) "No person shall be eligible for election as President unless he-(a) ... ... ... ... ... ... ... ... ... ... ...(b) ... ... ... ... ... ... ... ... ... ... ...(c) ... ... ... ... ... ... ... ... ... ... ...(2) A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments."5. There is a similar provision in regard to the Vice-President in Art. 66 (4)6.Counsel has rightly pointed out the difference in the language between the two articles. Whereas in the case of the President and Vice-President the holding of an office of profit under an authority subject to the control of the government is a disqualification, it is not so prescribed in the case of members of the legislatures7. The Madarsa Durgah Khwaja Sahib Akbari in which the appellant held the appointment of a manager (mohatmin) is a school for teaching Persian, Arabic and Muslim theology. Before 1951 is was managed and run by the Government of the Nizam of Hyderabad. In 1951 this school was taken over by the Durgah Committee. On 28-2-1955; the appellant was given an honorary appointment of mohatmin (manager) of the school by the Administrator of Durgah Khwaja Sahib. He was to work under the Administrator and was to hold charge of the management of the school. But from May 1955 he was being paid Rs. 100 per month which has been variously described as salary and honorarium.

Reasoning:
17. In view of the finding in regard to the office of profit under the government, it is not necessary to go into the question whether there were any "thrown away" votes or whether the respondent has been rightly declared to have been elected.