Decided on October 31,1967



- (1.) THIS is a petition under section 81 of the Representation of the People Act by an elector, who incidentally happens to be the husband of respondent No. 2 one of the defeated candidates. It is in challenge of the election of respondent No. 1 Mahadeo Govind Joshi in the Madhya Pradesh Ujjain North Vidhan Sabha constituency No. 245. In the petition a large number of grounds have been alleged including appeal to religion and threat of divine displeasure; but at the final stages the petitioner has restricted himself only to one heading which is numbered 1 in the issues, concerning the alleged disqualification of respondent No. 1 under Article 191 (1) (a) of the Constitution as he was holding three offices of profit under either the State Government or the Union Government in the Western Railway Administration.
(2.) THE petitioner's allegation is that, having held at the time of the election three different offices of profit, one under the Union Government in the Western Railway Administration and two others under the Madhya Pradesh State Government, the respondent No. 1 was disqualified and the election has to be declared void under section 100 (1) (a) of the Representation of the People Act- "Disqualified to be chosen to fill the seat under the Constitution." Each of these three alleged disqualifications is by itself sufficient to call for an order declaring the respondent's election void; but it would be proper to examine each of them separately. It has to be noted that there is the additional prayer that the respondent No. 2 Hansaben Patel securing the second largest number of votes should be declared elected; but the petitioner has not established the requirements either of section 101 (a) or (b) so that in effect the prayer for the evidence of the election of respondent No. 1 has alone to be considered. In view of the narrowness of the field of controversy as it has shaped, we need only briefly summarize the very salient features of the election. There were actually eight candidates out of whom five polled so few votes that they forfeited their deposits. The remaining three stood in the following order: (1) M. G. Joshi (successful candidate and 23,709 votes contesting respondent) (2) Mrs. Hansaben Patel (Congress) 10,767 votes (3) Bansidhar Azad (Communist) 7,093 votes. Though the respondent No. 2 has not filed her written statement the petition is in effect one in her interest. The allegations that call for consideration have been incorporated in the following issue: 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 Administrations. (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 Madhava College, Ujjain on a regular salary of 2-50 p. m.; (b) If so, its effect ?" Ground No. (I) Employment by the Railway:
(3.) THOUGH the issue has mentioned Central Railway Administration as well, the documents produced relate only to the Western Railway Administration. But this does not make any material difference because the holding of an office of profit under any of the railway administrations is really the holding of such office under the Union Government and as such a disqualification for the membership either of the Union or of any State Legislature. In February 1962 the Western Railway Administration addressed a letter offering the respondent a place in "the panel of railway pleaders for conducting suits filed by or against the Union of India represented by the Western' Railway in the Courts of Ujjain on the following terms and conditions of fees". This is exhibited at P/1. There are as many as 16 headings most of which relate to fees but some of which have a farther effect. We are concerned with conditions in paragraphs 9 and 13:- "9 Acceptance of briefs against any Railway in any court will not be allowed." "13 You will be expected to watch cases coming up for hearing against this Railway in the various courts at UJN and give timely intimation of the same to this office. If no instructions regarding any particular case are received by you, you will be expected to appear in the court and obtain an adjournment to save the ex parte 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." shri Joshi accepted this offer in his letter dated 19-2-1962 (Ex. P/2): "In acknowledging your letter No.....I have to thank you for keeping my name in the panel of Railway pleaders. The information about the condition and terms of engagement was given to me and I had already given my acceptance." Presumably he had written an earlier letter to the same effect; but he was again confirming that he had accepted the conditions including those in Paragraphs 9 and 13. On behalf of the petitioner it is urged that the arrangement between the administration and the respondent is not one for ad hoc briefing in individual cases without any continuing obligation on the part of the pleader, but is what can be properly described as the office of a "standing counsel", who has to appear in every case unless ordered otherwise, whether or not there is a specific instruction to that effect. In that sense this is a case of continuing obligation. As against it, the respondent has urged that this is a case of a lawyer discharging professional duties and offering legal assistance on casual occasions, and the mere inclusion in the panel is only a matter of preference and not creation of any continuing obligation. In fact on the argument of the respondent there is no office of the lawyer for the Western Railway cases at Ujjain. Both parties have tried to derive support for their contentions from case-law.;

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