Case: Gajanan Samadhan Lande Vs. Sanjay Shyamrao Dhotre

The appellant - a voter in the constituency - challenged the election of the respondent (hereinafter referred to as) in the election petition before the Bombay High Court, Nagpur Bench, Nagpur. The invalidity of the election of the returned candidate was sought under Section 100(1)(a) of the 1951 Act. The appellant avered in the election petition that the returned candidate was disqualified to contest the election as he was holding the office of profit under the Government company being a Director of the Maharashtra Seeds Corporation (for shortSection 10 of the 1951 Act and Article 102(1)(a) of the Constitution of India were pressed into service by the election petitioner in this regard.4. The returned candidate contested the election petition and disputed that he was holding an office of profit under the Government. His case was that he was elected as a Director of the Corporation from Growers constituency and the allowances received by him as an elected Director were not in the nature of profit but were paid to him by way of reimbursement of actual expenses. Moreover, the returned candidate was not appointed by the Government nor the Government has any right to remove or dismiss him from the elected office of Director of the Corporation. He also set up the case that the Government has no control over the performance of functions of the elected Director of the Corporation.5. On the basis of the pleadings of the parties, the High Court framed 14 issues. The appellant examined two witnesses, including himself and tendered documentary evidence. On the other hand, the returned candidate examined himself and one more witness who was Deputy General Manager (Audit) of the Corporation. He also produced documentary evidence in support of his defence.6. The High Court by an elaborate judgment, on consideration of the evidence on record and on hearing the counsel for the parties, held that the returned candidate was not disqualified to be a member of Parliament either under Article 102(1)(a) of the Constitution or under Section 10 of the 1951 Act.

Reasoning: In the first place, the returned candidate was holding an elected office and not an office by appointment. The test of appointment is decisive. The Government had nothing to do in the election of Director from the Growers constituency. Moreover, being an elected office, the Government has no power to remove the returned candidate from that office. On this ground alone, it must be held that the returned candidate does not hold an office much less an office of profit under the Government.14. Secondly, one of the essential necessities in determining the question whether the office is an office of profit or not is whether such office carries remuneration in the form of pay or commission. As an elected Director, the amount paid to the returned candidate by way of allowances, by no stretch of imagination, can be said to be renumeration in the form of pay or commission. It is only a sort of reimbursement of the expenses incurred by the returned candidate. Essential condition that office carries remuneration in the form of pay or commission is also not satisfied.15. Lastly, the peculiar features of an elected office of Director in the Corporation, do not bring such office within the meaning of office of profit.16. Thus, we are satisfied that the view of the High Court does not suffer from any legal infirmity justifying interference by us in this Appeal.