SHIBU SOREN Vs. DAYANAND SAHAY

JUDGEMENT

(1.) Pursuant to a Notification issued by the Election Commission for filling up seven seats of Rajya Sabha, nine persons, including the appellant and seven respondents filed their nomination papers, which on scrutiny were found to be valid. On the last date for withdrawal of nominations, one candidate withdrew, thus leaving eight candidates to contest the election for seven seats. Polling took place on 18th June, 1998 and after counting of votes, result was declared on the same date. Appellant secured the highest number of votes (43.74) (sic) and along with respondents 2 to 7 was declared elected. Respondent No. 1 was defeated. Respondent No. 1 herein thereupon filed an Election Petition under Sections 80 and 81 of the Representation of the People Act, 1951 (hereinafter referred to as the R.P. Act), calling in question election of the appellant on the ground that at the time of filing his nomination papers, the appellant was holding "an office of profit" under the State Government as Chairman of the Interim Jharkhand Area Autonomous Council (for short 'JAAC'), set up under the Jharkhand Area Autonomous Council Act, 1994 (hereinafter the JAAC Act) and was thus disqualified to contest election to Rajya Sabha. Respondent No. 1, not only sought setting aside of the election of appellant but also a declaration to have been duly elected, instead, as a member of the Rajya Sabha. Election petition was resisted by the appellant and it was asserted that office of Chairman of the interim JAAC was not an 'office of profit' or even an 'office' under the State Government and further that the election petitioner was barred from raising the challenge, for not having raised that objection at the time of scrutiny of nomination papers before the returning officer. It was vehemently maintained that the returned candidate had not been earning any 'profit' and was drawing only honorarium and allowances to meet his 'out of pocket expenses' and the office he was holding could not be treated as an 'once of profit' under the State Government and, therefore, his election was not liable to be set aside. According to an additional plea raised by the appellant, his disqualification, if any stood removed by Section 3 of the Parliament (Prevention of Disqualification) Act, 1959 since he enjoyed the status of a Minister while functioning as Chairman of the Interim Council.

(2.) On 10th May, 2000, a learned designated Judge of the Patna High Court, allowed the election petition and set aside election of the appellant. It was held that the once of Chairman of Interim JAAC was an 'office of profit' under the State Government because the payment of honorarium at Rs. 1,750/- per month to the Chairman could not be construed as compensatory allowance. It was also held that the Chairman of the interim JAAC held his office under the State Government and, therefore, disqualification stipulated by Article 102 (1) (a) of the Constitution of India was clearly attracted to the appellant's election. It was further held that the said disqualification was not saved by the Parliament "Prevention of Disqualification Act, 1959" on the pleas raised in the additional written statement which inter alia included the plea that as Chairman of Interim council, the appellant enjoyed the 'status' and other privileges of a Minister within the State and hence his disqualification stood removed by Section 3 of Prevention of Disqualification Act, 1959. Consequently, the election of the appellant was declared void and respondent No. 1 was declared duly elected to Rajya Sabha. This appeal is directed against that judgment of the Patna High Court dated 19th May, 2000.

(3.) Article 102 (1)(a) of the Constitution of India deals with disqualifications for 'being chosen as' and "for being a member of either House of Parliament and inter alia provides: