Decided on February 13,1963



Ekbote, J. - (1.) This is an application under Article 226 of the Constitution of India for the issue of a writ of Mandamus directing the respondents 1 and 2 not to give effect to the election held on 26-4-1961 in respect of the Municipality of Warangal.
(2.) The material facts lie within a narrow compass and are for the most part uncontroversial. The Government issued a Notification on 11/03/1981 under Section 17 of the Hyderabad District Municipalities Act, 18 of 1956, hereinafter called the Act, calling upon all the constituencies of the City Municipality, Warangal, to elect members before 27/04/1961. The District Collector, Warangal, in pursuance of the said Notification under Section 20 of the Act, appointed various dates for nomination etc., according to which the last date for making nominations was fixed as 20/03/1981 and 26/04/1961 was fixed as the date of poll. Accordingly, the elections were held on 26/04/1961 under the supervision of the 2nd respondent, who is the Returning Officer for the purposes of the said elections. Respondents 3 to 36 were declared from various constituencies. The petitioners, who are cither the tax payers or the voters residing in the Municipal area of Warangal, filed this application questioning the validity of the election held on 26/04/1961 on various grounds.
(3.) Firstly, it was urged by the learned Advocate for the petitioners that respondents 3 to 12 being the sitting members of the City Municipality, Warangal, on the material dates of the election were holding office or place of profit under the City Municipality, Warangal, and were, therefore, disqualified in order to appreciate this contention, it becomes necessary to look into Section 27 (1) (c) of the Act Section 27, as far as at is relevant for our purpose, is as follows : "27. (1) Subject to the provisions of this Act a person shall be disqualified for being elected as member of a Committee if such person at the date of election - (a) ..... (b) ..... (c) holds any office or place of profit under the Government or under the Municipality or under any local authority." The object of Section 27 clearly appears to be to ensure purity of Municipal Committee and secure independence of the members of the Committee; it is intended that the Municipal Committee should not contain persons who are under the obligation of the Government, Municipality or any local authority. In order to ensure free and fearless discussion, it becomes necessary to see that the persons who compose the Committee are not in any way under the influence of the Government, the Municipality, or any local authority. This is evidently to avoid conflict between a members duty and his interest. Section 27 being of a disqualifying nature will have to be rigidly construed. It is true that the expression office of profit has not been defined in the Act. It does not seem possible to so define the expression, as it is likely to cover different kinds of offices or places, which now. exist under the said authorities. Section 27, however, is clear that before any person can be said to be suffering from any disqualification, the following three things must be satisfactorily proved : (1) that he holds an office or any place, (2) that it is an office or place of profit, and (3) that it is an office under the Government, Municipality, or any local authority. It is not the contention of the petitioners that respondents 3 to 12 hold office or place of profit under the Government, either the State or the Union, or under any local authority. The submission is that as they were sitting members of the City Municipality, Warangal, and as such were receiving Rs. 5 for every meeting which they attended, they would be deemed to have been holding office or place of profit under the Municipality on the date when they sought their re-election. It is unnecessary in our view to discuss elaborately what the word "Office" connotes. It is sufficient to say that office means a position or place to which certain duties are attached more or less of a public character, and that it is a sort of permanent position held by successive incumbents. An office may be with or without remuneration and may or may not be under the said authorities. It is "a right to exercise a public or private employment" or to hold a position which has certain duties attached to it. The connotation being very general it would not be correct to say that the membership of Municipal Committee is not an office. In fact, the Act itself describes it in some provisions as the office. The crucial question, however, is whether it is an office of profit. Now the only contention is that as every member gets Rs. 5 as sitting fees and as all the members reside in the City of Warangal, they do not spend Rs. 5 towards their conveyance charges, and the balance which is left with them should therefore be construed as a profit which is derived from attending the meeting of the Committee. We are unable to give any effect to this argument. The learned Advocate called in aid a decision in In the matter of, Vindhya Pradesh Legislative Assembly Members, 4 Ele L R 422. In that case a question which was referred by the President to the Election Commission was whether the members of the Legislative Assembly, who were appointed members of the respective District Advisory Councils and who were getting travelling allowance and daily allowance, had become disqualified to be members of the Assembly. The Election Commission gave opinion that membership of the Vindhya Pradesh District Advisory Councils was an office and that the members held that office under the Government of Vindhya Pradesh. Members of the Assembly who had, therefore, actually attended any meeting of a Council must be said to have held such an office. The Commission also gave opinion that where a member of a Council is merely entitled to a bona fide travelling allowance or daily allowance as distinguished From sitting fees or attendance fees which purports to covet and presumably covers only his actual out-of-pocket expenses and the amount of allowance is not fixed at such a high figure as to make it mere cloak for giving a profit, there is no profit. Consequently, the payment of one and a half first class railway fare to the members of the Dist. Advisory Councils was not a source of profit to the members. It was also opined that the daily allowance at the rate of Rs. 5-0-0 per diem which was being credited to the members of the Legislative Assembly for the sessions of the Assembly was such a reasonable amount that it cannot be said to yield any profit to the members of the Councils who went to attend the meetings thereof. The Election Commission, however, was of the opinion that by making the daily allowance rate the same for resident and non-resident members the Govt. laid itself open to the charge of ollering a certain amount of profit though a small profit, to the resident members, and as the quantum of profit is not the material consideration, members residing in the District Headquarters who had attended any of the meetings of the Advisory Councils, should be deemed to have held offices of profit under the Govt. and therefore incurred the disqualification. It is this last portion of the opinion which is relied upon by Mr. Sastry, who appears for the petitioners. His contention is that any member of the Municipality attending any meeting from any remote corner of Warangal, can so attend by spending not more than eight annas on conveyance. The member, therefore, makes a profit of Rs. 4-8-0 for every meeting which he attends. It is his contention, therefore, that we should hold that the members hold office of profit under the Municipality.;

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