M. RAMAPPA versus SANGAPPA AND OTHERS

SARKAR J.-The question for decision in this ap is w hethei: certain persons were holders· of offices

p. 1168

profit 3lnder the G(\'.vernment and were. ~~erefore • disqualified under Art. 191 of the Const1tut10n, for being chosen as'member.s, o:( a legislative assembly. It arises out of a b_,.,rtion presente<i :under the Representa, tion of the People Act, 195],, for a declaration that .the election of the appe1lant was void.

pp. 1168–1169

The election with which the case is concerned, was held o.n March 8, 1957, for choosing members for the Mysore State I:egisla~ive Assembly. One of the constituencies for the purposes of election to that Assembly was known as Harihar. The nomination papers filed by three persons,• namely, Hanumanthappa, Siddappa and Guru Rao for election from that constituency were rejected by the Returning Officer on the ground that the first two of them were -Patels and the third a Shanbhog of ce1·tain villages in Mysore and as such they were all holders of offices of profit under the Mysore Government and consequently disqualified from membership .of the Assembly l\nder Art. 191. As a result of this rejection two candidates were left to contest the election and the appellant, who was one of them, was declared elected as he obtained th11. larger number of votes at the poll. Six electors of .the Harihar constituency then filed the election petition for a declaration under s. lQO,(l)(c) of the Representatioq of the People. ,Act, 1951, 'that the ,election of the appellan~was -Void on the ground that the nomination papers of Hanumanthappa, Siddappa and Guru Rao had be~n improperly rejected. 'If the rejection was improper the petition would have to· be allowed. The appellant was the sole respondent to that petition. It was. alleged in,the petition that Pa tels and ShaJ;)bhogs were hereditary village officers and therefore were hot holders .of offices of profit under the Got'ernment. It was said that they were really representatives of the village community, and only acted as agents of that community or as liaisons between it and the G,overnment, and th.at in any event they were not holders of offices of profit bee e the amount of money receivable by them in r ect of their offices was very small .and out of all roportion to the work done by tthem. The petitiop. was dis.lllissed ·by the Election Tribunal by its order .date.d September.JO, 1957.. It held that the conditions • pf service pf Patels and Shanbhogs were regulated by the Mysore Village Offities Act, 190S, and that the mere fact that offices of Pa tels and Shanbhogs were heredita.ry was not by itself sufficient to establish that they were not offices under the Government. It also held that Hanuman~happa, Siddappa and Guru Rall were in receipt of considerable -remuneration and were, therefore, holding offices of profit. The six petitioners then appealed to the High Court of Mysore. The High Court by its judgment, dated February. _2.~l,. 1958, allowed the appeal 'and held that the offices of Pa tels a;nd Shanbhogs were not offices under the Government. The election of-the appellant was thereupon declared void. It is from this judgment thatthe present appeal to this Court has been taken with a certificate granted under Art. 133(1)(0) of the Constitution. ,One of the six petitioners being dead, the remaining five are the respondents in this appeal.

pp. 1169–1170

There is no . dispute that Hanumanthappa and Siddappa held the offices·of Patt;ls.and as remuneration for their services lands had been allotted to them and ·provision for cash allowances made. Likewise it is not disputed that Guru Rao was a Shanbbog. and had cash remuneration iJrovided to him.for his services. It is also clear and not challenged that Patels and ShanbhogS' have specific duties to perform and are .holders of offices. The only point for determination in this appeal is whether they are holders of offices under the Mysore GovernmenV. '

p. 1170, margin F

Tlie contention of the learned Advocate for the respondents is th.at Patels and Shanbho~ are not ·holders of offices under the Government. He said that their· offices were recognised by the old custoniary law and devolved by hereditary succession. According to 'him under that law these ·offices were held under the village community and the officers acted as agents of that community to pay the revenue of the vlllage to the authority entitled to it and formed the l' · ons between that community and the authority. He c tended that under 'the Mysore Land Revenue Code, ·1888~ the.• Goverl\ment -could appoint Pa~ls and Shanbhogs ~nly ~h<lre there were nq heredit:;i.ry Pa~ls v,nd Shanbhogs. He said that as Hanumahthappa and ,S.~R. ·l,V'll Siddappa .were admittedly .hereditary Patels. and Guru ,&ao, a hereditary Shanbhog, th!iy could not have been holding:offices under.,t.he Government. ·He ,contended thaii·the Mysore Village Officeey Act was a consolidati.eg Act and it did not alter the hered-itary right to the offices'but 'maintaineq·the old· law. According to him }leing hereditary, these offices were .not held under the Government,

pp. 1170–1171, margin F

Village Offices now gove'rned by the Mysore Village ,9ffices Act, 1908. The election petition proceeds.on this basis and both tlie Courts below have so held al).d the contrary haf\ indeed not tbeen contended in this. Court. The Act itself mentions the offices of Pa tels and Shanbhogs as "Village Offices" within it and puts the matter beyond all doubt. The Act, no doubt, recognise~ a hereditary .right to ;village offices tq some extent and. a larger -hereditary right to the offices is not clai'med"for. Hanrimamthappa,., Siddappa or. Gurn Rao. A consideration o{ the customary law of .the Madras Land Reven\rn. Code is, therefore, unftece!lsary·.• . ' The question then is, what is the ('fleet of the pro. visipns of the Mysore Village Offices Act dealing .with tlie' hereditary ·right .to the offices? First, there· is s,,6 under which .when two or more villages .or portions thereof are grouped toge'ther.or amalgamat'ed to.form a new village, or one villag<;i is diyided into 2 or more yil!ages, the. old. ;village 'Offices c~ase. to exist and ne:w offices ·have to be .created,. In choosing perspns to till such new offices the Gov.ernment ,has to .select the best qualified -from among the last l;wlders of. .the ·office~ \V.)lich haNe1 ce1tsed, to exist qr_,the. members.of their falllilies. these c;i.ses obviously. no full hereditary right to. the ·office is recognised, for, the offices which have ceased to ex;ist niay ,have 9eei;i· held. by m\)mbers of differept ,familie,s. All that .s. 6 says is that the new appointment ·shall Pll made from atnongst these ies. So it.is possible nnder:this section to a.ppoint

p. 1171

·an office a person who is not the heir of the last holder of tl:ie'. office abolished. The. important sectiop, however,'for"the·purpose of .a hereditary right to, the office is s. 8 which provides 'for filling up a vacancy ·OQQUrring in the office of a Patel or a Shanl:/h~og. S h h uh-section (1) states t at certain persons s a ·not be eligible for the ·office. It is there provided that a person who has not attained majority or does not possess requisite physical or mehtal capability, 'or the prescribed educational qualification, ··or has been convicted by ~ criminal court for an offence which, in the opinion of the prescribed officer, disqualifies him.for holding the .office, or has been. adjudged'by ~hat officer after an enquiry as prescribed, to be of general ba:d ·charac'ter, shall not be eligible for appointment. Sub-section (2) provides that succession in the case of a perma:nent vacancy shail be regulated by tlie ordinary provisions of the personal law applicable to'the last holder, provided tliat it shall devolve on a single heir and that •where/ there are more persons than one who would under tl{e ordinary provision![ of that law be entitled to succeed to the last holder of· the office, preference shall be given to the eldest member of the eldest branch among those persons. Thi's would seem to create a right in the heir of the deceased holder of an office to. succeed to him. This right, however, i~ not. an· absolute right for he cannot be aP.pofnted if he is not eligible ·under sub-s. (1) nor where the ):irescribed officer "has declared under s. 7 {v) in dismissing any holder of office, that the dismissal would entail a forefeit.ure of the· right bf succession of all the·undivided members of his family. !J'his is all the hereditary right to. an office/that is prdvided by·the Act. ~ /

pp. 1171–1172, margin F

Let us, however, ·ignore the restrictions on the hereditary right to the office mentioned in· the Act and assume that the eldest heir in the eldest 'branch of the last holder of it; -is entitled ·te succeed to the office when he vacates it. The qu.estion is, tloes this make the office one not under thi; Government The learn~d Advocate for the respondent contended tha ·t did and this contention has been accepted-by the Hig Court. The learned Chief Justice in his. judgment said " can the Government prevent him from succeeding to the permauent vacancy ? Such a person gets to tha~ post not b\)cause he is ap1Jointed by tjle Government but by his o:wn rights." "He. also supported ,his view py referring to M angal Sain "'· State of Punjab ( where it had been held that the mere fact that the Government - has under a statute a hand in the appointment and dismissal of the Executive Officer of a Mun,icipality, does rrot· make him its s,ervant.

pp. 1172–1173

·We thin!\. th\s view is unten:i.ble. It ovt?rlooks the fact that the heir of the last holder does not get the office till he is appointed to it by the (}overnment .. The statute, no· doubt, gives him a tight to be appointed by the Goverµment in certain qases. None the less, it is the appointment by the Government ,that perfects his right to the officJ3 and makes him the officer; .without f\UCh appo,iµtmel).t l;ie does not hold th.e office. The Govern,ment makes_ the :i,_ppoin~ment to, the office though -it may .be that it h.a:i under the statute no opt\on but _to appoint ,the heir ~p the office if he has fulfilled the statutory requirements. The. office is, therefore, held by ·reason of the appointment by' the Government and ·not simply because of a hereditary right to it. The fact "that the Government c~nnot refuse to _make the ap~ointment does not alter the situation.

p. 1173

If this were not so, the result woul~ bl!. curious. An office has to .. be h,eld under someone fo, it is' impossible to conceive of an -office- ·held, under !10 one. The, appointment ,being by t~e Gover11ment, the office to which it is made must be h.eld under it, for there is no one else under whom it can be held. The learned Adv;ocate• saip tha~ the office was. held under the village .community. But such a thing 'is a,n impossibility for village pommunities have since a very long tirµe, ceased t-0 have any corporate existence. The c(l,se of_ Mangal Sain v. T~e.Sta.te of Punjab (1) does not assist_ for there, the.re .the Municipality under whic the offiqe could be heJd thqugh appoiqtrµent to i a~ madti by the Government.

p. 1173

The le11rned Advocat\j for the respo.ndent .contended that there arE) certain other sections of the Act whiob, support his coqtention. .Firs\;, ~e were referred to .. s:'lf which gives' ,a 'pe:i;so11 entitled to an office ,under s. 8 of tlie Act a right fu 'sue before the ptes9tibed authority' foi: it or for the re,covery of its elllolument&: . We are una·ble to' see that tliis section advances iii~tter further. 1t 'only •shows that a person.has right' to be appointe9-. That; however, as we ·have earlier sti.ltte'd, is not enougl'i'.. The right atone does ndt make· him the officer. He must actually be app~inted -to the office. anct upon~ such 'appointmeht comes to hold it under ·the Government. We also referr~d to s. 8, sub-s. (4) whicli provides when the heir of"the last holder of an office who would· otherwise be entitled to .succeed to it ·is a minor,· p)e'spi-ibed officer sl_iall ·register him as' a successor' of tlie last' holder and ·appoint some other qualified per-· s'on to.discharge the' duties of the office during' . ininol'ity. Tl1is prqvision is'equally unhelpful. minor is only registered ·as a successor ·and on at~ain·· ineilt of maj6'tity or within three· years thereafter is qunJified m1der the Act, he can be appointed to clffic'e. In the meantime h~ is not· appointed to office nor does he hold it. Here again it is .6i1ly appointment after' attaitrnfient of ma·jority that erstwhile minor heir cpmes to hold the offic~: therefore., cjome to tb:e conclusion that though there may ,be" a.•heredita:ry right to· hold an offi9e, it is held till a11 'appointment to it is''lllade by the-Government ahd. tha\; 'there is no OJ)e except the G6vernmenu und!!r whom 'the office can be held.

pp. 1173–1174

·We liave's.o. far dealt with 'the prov'isioµs' 9.,f the coricerning appointtnents. We 'will n~nv1turn to th6s~ dealing w'ith dismissal froin 6ffice ·artd bther furn'l'.s Pl\µishnient. Section 7 of the Act gives the presc'.dbecr officer of the .elo".emm\).qt,' pmyer to suspe>f\d,, miss' or 'rei;nove any holder 'of' a village ,office ,on of' t11e grounds mentioned i:h it: g;here is no dthei' powe't of dismissaV given' by' th~ Act. It· is sai this shows that the office is'ribt held 11\:ider the >Gove men,t for jf it •\r~reiso, _the offiqer wduld be liable' to :drissal at the' pleasure> of the Gov~rno'f' under Art. 310 of the' Constitb.tion. This argu'.1Ueht' \'vas accepted by the High Court bot it seems us to ·1ack irr substance The [Lrgument assumes th[Lt bec11use of s. 7 of the Act, the holder of a village office is not liable to be dismissed at the ple[Lsure of the Governor. We think it unnecessary in this case to decide whether this assumption is ,justified or not and will proceed on the basis that it is the correct view of the position. But does it follow that bec[Luse a village officer cannot be dismissed a.t the pleasure of the Governor, he does not hold office under the Government ? It has been recognised th:tt a statute may prevent officer of the Government from being dismissed at its pleasure. That is what happened in Goi1,ld v. Stuart (') referred to by the Judicial Committee in R. Venkata Rao v. Secretary of State for India ( In Gould v. Stuart (supra) it was said, that "It is the law in New South Wales as well as in this com1try that in a contract for service under 'the Crown, civil as well as military, there is, except in certain cases where it is otherwise provided by law, imported into the contract a condition that the Crown has, the power to dismiss at its pleasure: Dunn v. Reg; De Dohse v. Reg (3). The question then to be determined is, lfas the Civil Service Act, 1884, made au. exception to this rule ? ", ~nd it w;i,s held th;i,t it lrnd. In the result it wn.s held that the respondent who had entered the service of the Government of New South ·wales under and in accordan~e with the provisions of the Civil Service Act, 1884, was not liable to he dismissed at the pleasure of the Government bec'1use of these provisions. \,Ye do not say anything .as to whether t.he principle of Gould v. Stnart (') will n.pply to our country in view of the com1titut.io1ml provision contained in Art. 310. Such

pp. 1174–1175, margin E

question has not been argued at the lmr n.nd does not require to be decided in this c;i,se. If the principle of tlmt case does not n.pply, then the village officer, if he is servant of the Government, is liable to c · · 1is;al ;i,t its pleasure, in spite of s. 7 of the Act;

p. 1175

if it docs, then the fact tlmt he is not li;i,ble to rnh dismissal does uot prove that he doe;, not hold office under the Government. It would thus appear that. the fact that officer is not. liahle t-0 dismissal at the pleasure of the tlovernmeut docs not by itself establish that he does not hold office under t.he (;o,·ernment.

pp. 1175–1176

\Ve uow come t:o the question of the remuncrat,ion of a Yillage ofliccr. The High Court in its judgment r!!forred to the rnles under the Ad :1s to t.lw mode of payment of the emol11111c•111.s a11d held th11t. there was

p. 1176

clireet payment of his dues hy the Government. to a vill1ige officer. That:, acco1·ding to tht' II igh Court, also showed that the offiC"er <lid not holcl his oflice under the Government.. This view also is, in our opinion, unfounded. Government lands are allotted by it to the oflicers by way of emoluments for services to he rendered and the •!t1sh allowances :trc• also fixecl hi' the Go\'ernment. It is t.ruc that under the rnlc.~ cash allow,111ces are not paid directly by t.hc Government to the officers but. the lat.IA~!' ttre authorised to deduct tlw amount.s thereof from the revenue collec:t:ecl by them. This does not show that the cash rcmnnera. tion is not paid by the Government. The revenue l:ollec:ted bdnngs to the GoYc·rnmcnt. The Hulfs provide t.hat where an officer deducts the caHh allmvnnco from t.he revenue collected h.1~ him mu! dcpo8its the• habrice in t.he Go\•e1·nrncnt Tre,1sury, his receipt for the amo1mt clccluct.c<l shall be considered equivalent to the pa~._ ment into the Treas111'}' of an cqmd sum in cash : (see l'lllc 75 Xlll of tlw Hules framed unckr the Act.). The re.~ult, therefore, of this rnle is as if the cnti1°<' n.mount oft.he revenue eollccte1l had been deposited into the trea'11ry and part of it p:i.id back the ofll. cer on account of hiR cash remunemt.ion .. In any event, it: Heem8 clear to us tlmt the cash allowance to the officl'r conccrned is, in spite of tlw proce<lurn laicl dmrn in respect of its pttymcnr., a payment by t.he (Joyernment out of it8 mcJJwys .

p. 1176

Lastly, we find that the duties of the village officc>r< are fixed by the GoYernment and these officers~k under t.he direction, control rind supervision of t Govcrnmeht.. This is conceded.

p. 1176

We then come to this that Patels and Shanbhogs •are officers, ~1·ho.are appoint~d to their oftlocs by t.he Government though it may bEi that the Government has no option in certain cases but to appoint an heir of the last holder; that they hold their office by reason of such appointment only; that they work under .the control and supervision of the Government; that their remuneration is paid by the Government out of Government funds and· assets; and thai, they are removable by the Government, and that there is no one else under whom their offices could be held. All these clearly establish that Patels and Shanbhogs hold offices of profit under the Government. In this view of the matter it has to be held that the nomination papers of Hanumanthappa, Siddappa and Gum Rao were rightly rejected by the Returning Officer and the election petition is without substance. .

pp. 1176–1177

The appeal, therefore, succeeds and is allowed. The judgment and order of the High Court are set aside, and those of the Election Tribunal restored. The election petition is dismissed. The respondents will pa_x the appellant's costs throughout.

p. 1177

Appeal allowed . HANSKUMAH KISHANCHAND

p. 1177

v. • THE UNION OF INDIA

p. 1177

(and connected appeal) (VENKATARAMA ArYAR,GAJENDRAGADKAR and

p. 1177

A. K. SARKAR JJ.)

p. 1177

Appeal Su.preme Court-Maintainability-Decision of High Court in appeal from award-If and when a judgment,

p. 1177

est-Defence of India Act, r939 (No. XXXV of r939), s r9(r)(u), r9(r)(j)-Code of Civil Procedure (Act V of r908). Nagpur Hiih Court in _an.appeal under s. rg(r)(f) of the Defence • of India Acf, r939, mod1fymg an award tompensation made

p. 1177