D.P.S.Chauhan, J. - (1.) The judgment in Election Petition No. 1 of 1991 is pronounced today before lunch. An application moved during the post lunch session by the learned counsel for the respondent No. 1 Shri V.K. Tankha taking prayer that this Hon'ble Court may kindly be leased to stay the operation of the order delivered today for a period of one month or for such time as this Hon'ble Court deems just in the interest of justice. Heard the learned counsel for the respondent No. 1, Shri V.K. Tankha and the learned counsel for the petitioners, Shri L.S. Baghel. Under Section 116 A of the Representation of the People Act, 1951 (for brevity hereinafter referred to as 'the Act'), the order made by the High Court under section 98 or section 99 is appealable to the Supreme Court both on question of law as well as on the question of fact and the period of limitation is also provided there under, which is 30 days from the date of the order of the High Court. Section 116 B of the Act gives discretion to the High Court on the sufficient cause having been shown to stay the operation of the order on such terms and conditions as it may think fit. So far as the terms and conditions are concerned, learned counsel for the respondent No. 1 relied on the case of Kirpal Singh V. Shri Uttam Singh and another decided by the Supreme Court on 9th October, 1985. In the case relied on, the Hon'ble Judges of the Supreme Court observed: without meaning any disrespect to the learned judges who made the interim order, we think that where an election is set aside for no fault of his, such as a corrupt practice committed by him or his agent or a disqualification suffered by him, but on the ground that some one else's nomination had been improperly rejected, the more appropriate order would perhaps would be to grant an absolute stay so that the Constituency may not go unrepresented for no fault of either the elected or those who elected. In the present case, the election of respondent No. 1 has not been set aside on the ground of any corrupt practice or on the ground sufferance of any disqualification, but the election petition has been allowed on the ground of improper rejection of the nomination paper of Shri Shobha Ram Burman. In view of this, so far as question of terms and conditions is concerned, the case relied on squarely covers the present case. The other thing for grant of stay order to be seen is existence of sufficient cause. Since Section 116 A of the Act has provided for appeal both on law and facts and further in view of the observation of the Supreme Court in the case of Kirpal Singh (supra), there is sufficient cause for staying the operation of the order for a period of there weeks from today. Ordered accordingly. Certified copy of this order as well as of the judgment delivered in Election Petition No. 1/91 may be supplied to the learned counsel for the parties on payment of usual charges. ORDER Consequent upon publication of notification u/s 14 of the Representation of People Act, 1951 (for brevity hereinafter referred to as the Act) sometimes in April, 1991 calling upon Parliamentary Constituencies for electing members for the House of floe People, the Election Commission appointed, as required u.s 30 of the Act, date for making nominations, scrutiny of nominations withdrawal of candidature after the date of scrutiny and the poll dates, whereupon the Returning Officer gave a public notice of election u/s 31 of the Act Inviting nomination of candidates, inter alia, in respect of 17 -Raipur Parliamentary Constituency, which led to filing of various nomination papers but during the process of scrutiny, the nomination of one Shri Shobharam Barman was rejected by the Returning officer on 27.4.91 on the ground of his having disqualification under Article 102 (1) (a) of the Constitution of India (for brevity hereinafter referred to as " the Constitution") and after withdrawal of candidature, there remained in the fray as many as 29 candidates amongst whom Shri Vidya Charan Shukla and Shri Ramesh Bais were also the candidates at the contest. Shri Vidya Charan Shukla, who secured highest number of votes i.e. 1,88,335 was declared elected by the Returning Officer on 17.6.91 as against Shri Ramesh Bais who polled its next highest number of votes i.e. 1,87,376. By means of the present election petition (for brevity hereinafter referred to as the petition) the election of Shri Vidya Charan Shukla (respondent No. 1) is called in question by Shri Ramesh Bais along with one Dr. Rajendra Dubey, an elector, seeking following reliefs : - TO declare the election of the respondent No. 1 Vidya Charan Shukla, void u/s 100 (1) (a), (c) and (d) (i) of the Act; To declare the petitioner No. 1 duly elected from 17 - Raipur Loksabha Constituency: TO grant any other suitable relief along with costs of the petition. The notice meant for respondents were served on the respondent No. 1 on 28.10.1991, respondents No. 2, 4, 5, 6, 9, 10, 11, 12, 13, 16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 on 24.9.1991 and respondent No. 3, 7 and 14 on 25.9.1991, respondent No. 17, on 1.11.91, respondent No. 18 on 10.11.91 and respondent No. 8 on 5.12.91. It was respondent No. 1 alone who put in appearance on 18.11.91 and filed his Written Statement. The other respondents 2 to 28 were proceeded ex - parte. On the basis of the pleadings in the petition, and the Written Statement, following issues were struck : - ISSUES 1 - (a) Whether respondent No. 1 having been disqualified under the provisions of Xth Schedule to the Constitution of India, was not qualified to contest the Parliamentary Elections ? 1 -(b) What is the effect of the pendency of the Writ Petition filed by respondent No. 1 in Delhi High Court on the proceedings of this Election Petition challenging his disqualification under Xth schedule to the Constitution ? Whether the nomination paper of Shri Shobharam Barman was improperly rejected ? Relief and costs? So far as the following facts are concerned, the learned counsel for the parties are not at variance : - (a) That on the date of the scrutiny of the nomination paper for being candidate for the House of the People, from 17 -Raipur Parliamentary Constituency, the nomination paper of Shri Shobharam Barman was rejected on 27.4.91 by the Returning Officer by passing following order : - whereafter main contest confined between the petitioner No. 1 Ramesh Bais and the respondent No. 1 Shri Vidya Charan Shukla. The petitioner No. 1 was the candidate set up by Bhartiya Janta Party whereas the respondent No. 1 was the candidate set up by Congress (I) Political party. Poll, as per scheduled programme, took place on 20.5.91 and on conclusion of the counting, which though came into abeyance till 16.6.91 owing to the assassination of the then Prime Minister of India Shri Rajiv Gandhi, the respondent No. 1. Shri Vidya Charan Shukla, having secured highest number of votes i.e. 1,88,335 as against the petitioner No. 1 Shri Ramesh Bais, who secured next highest number of votes i.e. 1,87,376, was declared on 17.6.1991 as having been duly elected for the House of the People. (b) Anterior to the election in question by means of the present petition, there had earlier been an election for the Hues of the People, from 18 -Mahasamund Parliamentary Constituency sometimes in November, 1989 whereat Shri Vidya Charan Shukla, set up as a candidate by the Janta Dal party, having secured highest number of votes, was declared duly elected. Janta Dal having succeeded in forming Government at the centre under the Leadership of Shri V.P. Singh could not continue owing to inner developments which promoted defections and Shri Vidya Charan Shukla was one of the defectors, received expulsion from the Junta Dal party on 5.11.90. (a) The then Prime Minister Shri V.P. Singh thereafter tabled a motion, seeking confidence of the House on 7.11.90 whereat on division of votes, Shri Vidya Charan Shukla was found to have voted in support of confidence motion, which ultimately defeated, leading to resignation of Shri V.P. Singh and as well as dissolution of the House paving way for fresh poll in April, 1991 and the present petition is outcome thereof. The then Speaker of House of the People vide order dated 11.1.91. which is as extracted below, declared inter alia, Shri Vidya Charan Shukla as having incurred disqualification for being a member of the House of the People. In exercise of the powers conferred upon me under Paragraph 6 of the Tenth Schedule to the Constitution of India and the Rules there under, I, Rabi Ray, Speaker, Lok Sabha, hereby declare that the following 7 members of Lok Sabha have incurred disqualification for being Member of Lok Sabha in terms of Paragraph 2 (1) (b) of the said Schedule : 1. Shri Basavraj Patil. Shri Hemendra Singh Banera, Shri Vidya Charan Shukla. Dr. Bengali Singh. Shri Sarwar Hussain. ft. Shri Bhagey Govardhan. Shri Devnanda Amat. Accordingly, the aforesaid Members having earned disqualification, ceased to be the Members of Lok Sabha with immediate effect and their seats shall thereupon fall vacant. This order was given challenges by Shri Vidya Charan Shukla before Delhi High Court by means of writ Petition No. 537 of 1991 under Art. 226 of the Constitution which, according to the statement made at the Bar, is pending though the learned counsel for the contenting parties were at variance on the question of there being any order in the said Writ Petition, staying the impeached order of the Speaker of the Lok Sabha dated 11.1.91. Learned counsel for the respondent No. 1 Shri Kapil Sibbal, Senior Advocate, submitted that after the order of the Speaker of the Lok Sabha, fresh elections for the House of the People had taken place and the petition contains only challenged of the fresh election of respondent No. 1 and the pendency of the said Writ Petition in the Delhi High Court and grant or non -grant of any interim relief has no relevancy in the context of the facts of the present petition qua the Constitutional position. Heard the learned counsel for the petitioner Shri N.S. Kale, Senior Advocate, assisted by Shri L.S. Baghel and learned counsel for the respondent No. 1 Shri Kapil Sibbal. Senior Advocate assisted by Shri V.K. Tankha, Advocate. Learned counsel for the petitioner very fairly did not press the Issues No. 1 - (a) and 1 - (b), may be for not finding his way clear in view of the provisions of Article 102 of the Constitution which speaks that a person shall be disqualified for being a member of the either House of Parliament. Now, as such, the only issue survives for consideration is Issue No. 2 as the Issue No. 3 is resultant one Shri Vidya Charan Shukla, the respondent No. 1 having filed Written Statement in the petition, did not come to Witness Box and did not examine any witness from his side, may be because of the fact that the issues involved in the petition were purely of legal character, not having dependence on the material not finding place in election petition and annexures thereto and the Written Statement, on any factual aspect, as on 12.11.92, the statement was made before this Court to the effect that respondent No. 1 does not wish to examine any witness nor himself. The Written Statement is only the pleading relating to admission or denial of the facts pleaded in the plaint and may also have new pleas under Order 8 Rule 2 C.P.C. to show non -maintainability of the petition, including all such grounds of defence as, if not raised, would likely to take the opposition by surprise or would raise issues of fact not raising out of the plaint. Evidence is defined in Sec. 3 of the Evidence Act, 1872 as "evidence means and includes (1) the statements which the Court permits or require to be made before it by witnesses, in relation to matters of fact under enquiry. Such statements are called oral evidence. (2) All documents produced for the inspection of the Court; Such Documents are called documentary evidence. Thus, the Written Statement by itself is not evidence and is only pleading, requiring proof of unadmitted or disputed facts but in the present petition, respondent No. 1 did not lead any evidence. Petitioner in support of his case, examined Shri G.S. Yadu as PW 1 and Ramesh Bais, the petitioner, as PW 2, and Shri Shobharam Barman as P.W. 3. Shri G.S. Yadu, a store Keeper in the Election Office Raipur who proved the order passed by the Returning Officer on the nomination paper. Shri Ramesh Bais (PW 2) proved the pleadings stating to the effect that he (Shri Shobha Ram Barman) was a watchman in the Food Corporation of India, which post does not fall in the ambit of "office of profit" but the Returning Officer rejected his nomination paper on this ground that he was holding office of profit in the Food Corporation. Shobha Ram Barman examined as PW 3. He proved his signatures on his nomination paper. He stated that he was employed as a Watchman in the Food Corporation of India at Raipur, and was in employment then he was getting salary Rs. 332/ -, per month.
(2.) The nomination paper of Shri Shobharam Barman was rejected by the Returning officer on 27.4.91 (Ex. P -1) on the ground of his having incurred disqualification for being elected for the House of the People under the provisions of Article 102 (1) (a) of the Constitution, as he was under an employment of the Food Corporation of India (for brevity, hereinafter referred to as "the Food Corporation"). The allegations as regards to rejection of the nomination paper of Shri Shobharam Barman, by the Returning Officer as contained in Paras 14 (a) and 14 (b) of the petition, are, as extracted; 14. (a) That the election of the respondent No. 1 is also liable to be declared void under Section 100 (1) (c) of the Act for the reasons that the nomination -paper filed by Shri Shobharam Barman was improperly rejected on the ground that he was holding office of profit Though in fact the said Shri Shobharam Barman cannot be said to be holding officer of profit under Article 102 (1) (a) of Samvidhan, as he was posted only as a Watchman by the Food Corporation of India, the employees of which are not disqualified to fill a seat in the Loksabha or any other Legislative. (Emphasis supplied) (b) That though the said candidate filed affidavit stating therein that he was only a temporary employee in the Food Corporation of India, still the Returning Officer, without applying his mind, rejected the nomination -paper. A copy of the nomination -paper containing the order of rejection passed by the Returning Officer and the affidavit filed by the said candidate is annexed herewith as Annexure -A -1 and A -2 to this petition. The Written Statement filed by the respondent No. 1 contains reply to Paras 14 (a) and 14 (b) of the petition in Paragraph 21 and 22 of the Written Statement which are as extracted : 21. That in reply to Para 14 (a): It is submitted that Shobharam Barman was holding office of profit being an employee of Food Corporation of India." that in reply to Para 14 (b): It is submitted that whether an employee is temporary or permanent is not material. The fact remains that at the time of filing of the nomination paper, Shri Shobharam Barman was holding office of profit and the Returning Officer has rightly rejected his nomination paper. Here holding by Shri Shobha Ram Barman "office of profit" being an employee of the Food Corporation India is admitted. It was also admitted that he was posted only as Watchman by the Food Corporation of India. The documents filed with the petition as Annexures -A -1 and A -2 were not denied. It has further not been denied or disputed that the employees of Food Corporation of India are not disqualified to fill a seat in the Lok Sabha or any other legislature. The nature of employment of Shri Shobha Ram Barman as mentioned in Para 14 (b) of the petition has not been denied rather it has been said whether an employee is temporary or permanent is immaterial. Thus, in respect of Para 14 (a) of the petition, it has been admitted that Shri Shobharam Barman was holding office of profit, being an employee of the Food Corporation of India and in respect of Para 14 (b) of the petition, it has been stated that whether an employee is temporary or permanent is not material, and the fact remains that at the time of tiling of the nomination paper, Shri Shobharam Barman was holding office of profit and the Returning Officer had rightly rejected his nomination paper. Within the provisions of Order 8 Rule 4 of the Code of Civil Procedure, there is not denial of the allegation in the petition. In the context of the controversy as involved here, it is relevant to consider various articles of the Constitution, such as Article 58 (2) of the Constitution, which deals with the disqualification for being a candidate at the election for the office of the President of India, Article 66 (4) of the Constitution which deals with the disqualification for being a candidate for the office of Vice -President, Article 102 (1) (a) of the Constitution, which deals disqualification for being a candidate for the election of either House of Parliament. Article 191 of the Constitution which deals with disqualification for being a candidate for the election to the Legislative Assembly or Legislative Council of a State; and the same are extracted below : - Article 58 (2) with Explanation; (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. Explanation - For the purpose of this Article, a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice President of the Union or the Governor of any State or is a Minister either for the Union or for any State (Emphasis supplied) Article 66 (4) with Explanation; A person shall not be eligible for election as Vice -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. Explanation . - For the purpose of this Article, a person shall not be deemed to hold any office of profit by reason only that he is (he President or Vice -President of the Union or the Governor of any State or is a Minister either for the Union or for any State. (Emphasis supplied) Article 102 (1) (a) with Explanation and Clause (2): (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; Explanation - For live purpose of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of either House of Parliament, if he is so disqualified under the Tenth Schedule. Article 191 (1)(a) and Clause (2): (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State - (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (2) For the purpose of this article, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. On analysis of Articles of the Constitution extracted (supra) it comes to (a) Articles 58 (2) and 66 (4) provide that a person shall not be eligible for election as President/ Vice -President, if he holds any office of profit; (i) under the Government of India; or (ii) the Government of any State; or (iii) under any local or other authority subject to the control of any of the said Government. Explanation makes it clear that a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice -President or the Governor of any State or is a Minister either for the Union or for any State. (b) Clause (a) of Article 102 (1) provides for disqualification for being chosen as a member of the House of the People 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. The disqualification under Clause (a) of Art. 191 of the Constitution for being chosen as a Member of Legislative Assembly or Legislative Council of a State is the same as is provided for the House of the People except with the disqualify fixation as attached to a person who holds an office of profit under Government of State specified in the First Schedule, other than the office declared by the Legislature by law not to disqualify its holder. There is no challenge to the fact regarding Shri Shobharam Barman is employment in the Food Corporation of India as Watchmen and in regard to the capacity of his service whether temporary or permanent, the Written Statement only contains the recital whether an employee is temporary or permanent is not material. The dispute related, irrespective of the capacity whether he was temporary or a permanent watchman, to the disqualification of Shri Shobharam Barman and the capacity of being permanent or temporary has no bearing to the basis controversy which is subject -matter of consideration.
(3.) The Food Corporation is a statutory Corporation, came into being, by virtue of Food Corporation Act. 1964 (for brevity hereinafter referred to as "the Food Corporation Act"), which is a legislation legislated by the Parliament in exercise of its Legislative power as contained in Item 43 List I of Seventh Schedule to the Constitution, as a trading Corporation for trading in foodgrains and other foodstuffs and the matters connected therewith and incidental thereto. Food Corporation was established u/s 3 of the Food Corporation Act and on its establishment it acquired the status of a body corporate by name i.e. Food Corporation of India, having perpetual succession having common seal with power subject to the provision of the Food Corporation Act, to acquire, hold and dispose of property and to contract and to sue or be sued by corporate name. Thus, the status of the Corporation, obviously, that of a juristic person distinct one being clothed with its own personality. In Daman Singh V. State of Punjab ( : AIR 1985 SC 973) Supreme Court had the occasion to deal with as to what is corporation and in this context the relevant portion is as extracted; In Halsbury's Laws of England, 4th Edn. Vol. 3 Paragraph 1201, it is said - A Corporation may be defined as a body of Persons (in the case of Corporation aggregate) or an office (in the case of corporation sole) which is recognized by law as having a personality which is distinct from the separate personalities of the members of the body or the personality of the individual holder for the time being of the office in question. A Corporation aggregate has been defined in Paragraph 12()4, as A Corporation of individuals limited into one body under a special denomination having perpetual succession under an artificial form and vested by the policy of the law with the capacity of acting in several respects an individual, particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common and of exercising a variety of political rights, more or less extensive, according to the design of its institution, or the powers conferred upon it, either at the time or creation of at any subsequent period of its existence. In Board of Trustees, Ayurvedic and Unani Tibig College Delhi Vs. State of Delhi ( : AIR 1962 SC 458) Supreme Court was posed with the question as to what is a corporation, which was answered with statements contained in Halsbury's Law of England extracted supra by adding - A Corporation aggregate has therefore only one capacity namely, its corporate capacity. A corporate aggregate may be a trading corporation or a non - trading corporation. The usual examples, of a trading corporations are (1) Charter Companies (2) Companies incorporated by special acts of Parliament. (3) companies registered under the Companies Act etc. Non -trading corporations are illustrated by (1) Municipal Corporations, (2) District Boards, (3) benevolent institutions, (4) universities etc. An essential element in the legal conception of a Corporation is that its identity is continuous, that is, that the original member of members and his or their successors are one. In law the individual corporators, or members, of which, it is composed are something wholly different from the corporation itself: for a corporation is a legal person just as much as a individual. Thus, it has been held that a name is essential to an corporation; that a corporation aggregate can, as general rule, only act or express its will by deed under its common seal; that at present day in England a corporation is created by one or other of two methods, namely, by Royal charter of incorporation from the crown or by the Authority of Parliament that is to say, by or by virtue of statute. There is authority of long standing for saying that the essence of a corporation consists in (1) lawful authority of incorporation, (2) the persons to be incorporated, (3) a name by which the persons are incorporated, (4) a place, and (5) words sufficient in law to show incorporation. No particular words are necessary for the creation of a corporation any expression showing an intention to incorporate will be sufficient. These facts, thus, make it clear that the Food Corporation of India is incorporated by statute. It may be noticed that Para 1210 Vol. 9 4th Edn. of Halsbury's Laws of England deals with Corporation and crown status; and the relevant portion is: The question whether a Corporation is a servant or agent of Crown depends on the degree of control which the Crown, through its ministers, can exercise over it in the performance of its duties. In the absence of any express statutory provision, the proper inference, at any rate, in the case of a commercial Corporation is that it acts on its own behalf even though it is controlled to some extent by a Government department. The fact that a Minister of the Crown appoints the members of such a Corporation, is entitled to require them to give him information and is entitled to give them directions of a general nature does not make the Corporation his agent. The inference that a Corporation acts on behalf of the Crown is more readily drawn where its functions are not commercial hut are connected with matters, such as the defence of the realm, which are essentially the province of Government. (Emphasis supplied);