Case: Mahadeo Vs. Shantibhai And Ors

There was no less than eight candidates at the said election, five of whom polled very few votes. The result of the election so far as the other three were concerned was as follows:1. Mahadev Govind Joshi, the returned candidate secured 23, 709 votes 2. Mrs. Hansaban Patel polled 10, 767 , , 3. Shri Bansidhar Azad polled 7, 093The election petition was filed by the husband of the 2nd respondent, Mrs. Hansaben Patel. In the petition numerous grounds were taken. for declaring the election of the appellant void under the Act and no less than five issues with different sub- heads were flamed by the court on August 31, 1967, but at the final stage the hearing only the first issue was canvassed.The said issue reads as follows:"1. (a) Was the respondent No. 1 holding one or more of the three following offices of profit ?(i) his being included in the panel of lawyers prepared by the Central and Western Railway Administration;(ii) his holding the post of the president member of a tribunal constituted under section 73 of the M.P. Town Improvement Trusts Act, 1960;(iii) his holding the office of Professor of law in the Madhav College, Ujjain on regular salary of Rs. 250 p.m.;(b) If so, its effect ?"Before the trial Judge a number of documents were exhibited and some witnesses were examined. The learned trial Judge was of opinion that the appellant, the successful candidate held an office of profit under Government being on the panel of lawyers prepared by the Central and Western Railway Administration and having been at the material time a Professor of Law in the Madhav College on a regular salary of Rs. 250 per month, but he was not prepared to hold on the material before him that the appellant held the post of the President-member of a Tribunal constituted under s. 73 of the Madhya Pradesh Town Improvement Trust Act, 1960.The first alleged disqualification is based on a letter of appointment dated February 6, 1962 addressed by the Chief Commercial Superintendent to the appellant who accepted the conditions and terms of that letter by his reply within a few days thereafter. The letter of the Commercial Superintendent shows that the appellants name. was kept on the panel of Railway Pleaders for conducting suits filed against the Union of India in the courts of Ujjain on the terms and conditions therein mentioned. It is not necessary to recapitulate the terms excepting -three or four to be mentioned presently. The first term showed that the appellant was ordinarily to be entrusted with cases up to valuation of rupees three thousand only. The ninth term imposed a condition on the appellant that he would not accept any briefs against. any Railway in any court. Clause (13) of the terms is really the most important one for our present purposes:and reads as follows:--"You will be expected to watch cases coming up for hearing against this Railway in the various courts at UJB and give timely intimation of the same to this office. H no instructions regarding any particular case are received by you, will be expected to appear in the court and obtain an , adjournment to save the exparte proceedings against this Railway in the court. You will be paid Rs. 5 for every such adjournment if you are not entrusted with the conduct of the suit later On."The other terms deal mostly with the fees and the expenses to which the appellant would be entitled if he accepted the engagement.

Reasoning: The word office according to Websters New World Dictionary means, inter alia, "a function or duty assigned to someone, specially as an essential part of his work or position, a position of authority or trust especially in a Government, Corporation etc." According to Jowitts Law Dictionary, it means the right and duty to exercise an employment such as an office of a trustee, executor, guardian, director, Sheriff, Judge etc. The expression office of profit finds a place in an old English Act, namely, the Act of Settlement, 1701, s. 3 of which provided that "no person having an office or place of profit under the Crown could be a member of the House of Commons."In our view, although it was open to the appellant to terminate the engagement at any time and he might even commit a breach of etiquette by accepting a brief against the Railway without formally putting an end to the engagement, that would not detract from the position that he was in duty bound to work the Railway Administration and see that its causes did not suffer by default. So long as the engagement was not put an end to, he was holding an office of profit in the Railway Administration, and as such was disqualified for being elected to the Legislative Assembly of Madhya PradeshFor the purpose of this case, it is nor necessary to express any final opinion on the joint except to say that the contention put forward on behalf of the appellant seems to have great force. The appellant was only a temporary Government servant. lie had never become permanent. lie really had no lien on the post. He was sent on deputation to the University in 1959 and in the ordinary course of things such deputation would have come to an end in 1964 when he attained the are of superannuation. It was really for the Umversity. to ignore the fact. that he had been superannuated.in 1964 and.continue him in service, but that would be an act of the University and not of the Government. There is room for doubt as to whether in the circumstances mentioned above the appellant was holding an office Of profit under the Government as a Lecturer in law in the Madhav College by reason of the fact that no order was passed in respect of him at any time either by the Government or by the University until after the filing of the election petition.The last point of disqualification alleged was whether the appellant could be said to have been a holder of an office of profit by reason of his appointment as Chairman of the Improvement Trust Tribunal in Ujjain City. The appointment was gazetted in October 1966 by a notification to the effect that the State Government was pleased to constitute the Tribunal as specified below for the purpose of s. 73 of the Madhya Pradesh Improvement Trusts Act, 1960, for acquisition of land at UjjainThe High Court in its judgment noted that there was no clear positive indication that the appellant had been consulted beforehand. There is certainly no evidence that he had acted on the appointment or that he had ever taken charge of the office. The finding of the High Court is that when the order was delivered at his house, the appellant took it and did not inform anybody connected with the Trust, or as for that matter, the Government, that the order had come to him by mistake and he was not "M. C. Joshi" as mentioned in the notification. The High Court gave, the appellant what it terms "the benefit of doubt" on this alleged disqualification. But quite apart from the mistake as regards the name, it is difficult to hold that the appellant held the office of profit as the President of the Tribunal. As noted already, he had never been approached for the purpose nor had he ever signified his willingness to act under the terms of the notification. He had never taken charge of any office nor had he ever discharged any function with regard to the office. In the circumstances, it would hardly be right to hold that he was holding an office of profit under the Government. On the materials before it the High Court was not prepared to hold that the appellant was the holder of an office of profit and on the facts of this case, we do not feel called upon to disturb the finding. of the High Court.