Y.S. Tambe, J.
1. This is an appeal under Section 116A of the Representation of the People Act, 1951 (No. XLIII of 1951), hereinafter called the Act of 1951.
2. The appellant Ramnarain is the defeated candidate. Ramnarain and respondent Ramchandra were two rival candidates for election to the Bombay Legislative Assembly from the Yeotmal Assembly constituency.
3. Facts material for the purposes of this appeal, which are not in dispute, in brief are: Respondent's name appeared at two places in the electoral roll of the Yeotmal Assembly constituency. It appeared once at No. 572 in village Gharfal and second time at No. 816 in Yeotmal town. Both Gharfal and Yeotmal fall within the area comprising Yeotmal Assembly constituency. In the nomination paper submitted bythe respondent, he had mentioned his electoral roll No. as 572 of Gharfal. No objection was taken to his nomination paper. Elections were held on 6-3-1957. Respondent cast his vote at Yeotmal and obtained the ballot paper on the electoral roll No. 816 of Yeotmal town. It is to be noted that he had not voted twice, i. e. once on roll No. 816 of Yeotmal and second time on roll 110. 572 of Gharfal. The counting of votes was completed by 8-3-57 and on that day the result was declared. The respondent obtained highest number of votes and he was declared duly elected. The result of the elections was duly published in the official gazette on 4-4-1957. It is to be noted that prior to the date of election the respondent wag a sitting member of the Bombay Legislative Council and was also receiving pay in that capacity. He tendered resignation of his seat in the Bombay Legislative Council on 24-3-1957. On 21-4-1957 the appellant made an election petition before the Election Commission of India. This election petition was then referred for trial to the Election Tribunal Wardha.
4. The material contentions raised by the appellant in the petition were two-fold; firstly, it was contended that as the respondent No. 1 since some time prior to the date of election was a sitting member of the Bombay Legislative Council and was receiving salary of that office, he was a person disqualified for being chosen as a member of the Bombay Legislative Assembly within the meaning of Sub-clause (a) of Clause (1) of Article 191 of the Constitution of India, and, therefore, his election was liable to be set aside under Clause (a) of Sub-section (1) of Section 100 of the Act of 1951. The second contention was that as the respondent's name appeared twice in the electoral roll, once at roll No. 572 of village Gharfal and for the second time at roll No. 816 of town Yeotmal, the provisions of Section 18 of the Representation of the People Act, 1950 (No. XLIII of 1950), hereinafter called the Act of 1950, were not complied with, and, therefore, he was not qualified to be chosen to fill a seat in the Bombay Legislative Assembly within the meaning of Section 5(c) of the Act of 1951. It was, therefore, contended that the election of the respondent was liable to be declared void under Clause (d)(iv) of Sub-section (1) of Section 100 of the Act of 1951.
5. In addition to these two contentions, at the stage of arguments before the Election Tribunal the election of the respondent was challenged on the ground that he having not resigned his membership of the Bombay Legislative Council within 14 days of the date of election, that is within 14 days from 8th March 1957, his scat has fallen vacant under Section 70 of the Act of 1951. None of these contentions prevailed before the Election Tribunal. It, therefore, dismissed the petition. The appellant, therefore, has preferred this appeal.
6. Shri B. R. Mandlekar, who appears for the appellant, has pressed these three contentions before us. As regards the first contention, he contends that the Election Tribunal was in error in holding that the respondent was not , holding an office of profit under the Government. He has placed reliance on Articles 168, 174and 192 of the Constitution. He has also referred us to the decision reported in Ravanna Subanna v. G. S. Kaggeerappa, : AIR1954SC653 .
7. Article 191(1)(a) of the Constitution reads as follows:
'A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State 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.'
Now, to attract this provision it must be established that a person whose election is challenged (1) was holding an office (2) that it was an office of profit and (3) that it was under the Government of India or the Government of any State specified in the First Schedule. In the instant case, the respondent was, at the material time, a sitting member of the Bombay Legislative Council and was also receiving a salary. In our view, the respondent in his capacity as a member of the Bombay Legislative Council was holding an office. Section 157 of the Act of 1951 specifically says so. It provides that the term of office of a member of the Legislative Council of a State whose name is required to be notified in the Official Gazette under Section 74 shall begin on the date of such notification, and the term of office of a member of the Legislative Council of a state whose name is not required to be notified under Section 74 shall begin on the date of publication in The Official Gazette of the declaration containing the name of such a person. The provisions of Section 2(e) read together with Sections 3 and 4 of the Bombay Legislature Members' Salaries and Allowances Act, 1956 (No. XLIX of 1956) indicates that it is an office of profit. Section 2(e) defines that a 'member' means a member of the Assembly or the Council, as the case may be. Section 3 provides that there shall be paid to each member a salary at the rate of Rs. 150/- per month. Section 4 provides for daily allowance paid to the members when attending the session of the Assembly or Council or the meeting of the Committee. Thus to defray out-of-pocket expenses the members are paid separately daily allowances; the salary paid to the member, therefore, in our opinion, makes the office of the member of the Legislative Council as an office of profit.
8. The next question, however, to be considered is whether it is an office of profit under the Government. Shri Mandlekar very vehemently contends that the funds from which the salaries of the members of the Legislative Council are paid are the funds of the State Government of Bombay. He relies on the evidence of Shri Manohar, Extra Assistant Commissioner. Shri Manohar has deposed that he was a Treasury Officer at the material time at Yeotmal and the salary of the respondent was paid from the Yeotmal Treasury under 'XXV-General Administration Major Head, and Minor Head B-Legislative Bodies. State Legislature Secretariat'. According to Shri Mandlekar, this is the chief criterion to ascertain as to whether a person holding office is under the State Government or not. In our view, the source from which the salary is paid to a person holding office is not necessarily the sole test to determine whether he is holding an office under the State Government. The principal criterion is whether the appointment to the office and removal therefrom of a person is under the control of the State Government. If it be so, then it could safely be said that that person holds an office under the State Government. In the instant case, the appointment of the respondent to the office of the membership o the Bombay Legislative Council was not under the control of the State Government. It is common ground that the respondent was elected to the Bombay Legislative Council, and under the provisions of Section 157 of the Act of 1951 he assumed the office of the membership of the Legislative Council as and from the date his name was notified in the Official Gazette. Notification of members elected is not at the option of the State Government but is obligatory on it under the provisions of Section 74 of the Act of 1951. Thus, the respondent does not owe the appointment to this post to the State Government. There is no provision in any of the enactments enabling the State Government to remove any member of the Legislative Council from his office. In this connection, Shri Mandlekar has referred us to Article 174 of the Constitution. He says that under Article 154 of the Constitution the executive power of the State vests in the Governor; under Article 174(2)(b) he can dissolve the Legislative Council; and the removal of the member of the Legislative Council is, therefore, under the control of the State Government. It is not possible for us to accept this contention Firstly, in our opinion, the Governor, acting under Article 174, is not exercising any executive power of the State vested in him under Article 154. In our opinion, he is exercising his powers as a component part of the Legislature. Article 168 provides that for every State there shall be a Legislature which shall consist of the Governor and, in certain States, two Houses, or, in certain other States, only one House. Where there are two Houses of the Legislature in a State, one shall be known as Legislative Council and the other as Legislative Assembly, and where there is only one House it shall be known as Legislative Assembly. Secondly, Sub-clause (b) of Clause (2) of Article 174, in terms, does not empower the Governor to dissolve the Legislative Council. Thirdly, even assuming that the Governor has any power to dissolve the Legislative Council under Article 174(2)(b) of the Constitution, in our opinion, dissolution of the entire Council is not the same thing as removal or dismissal of a member from the Council. In the former case the House itself ceases to function, in the latter the House continues to function but the individual ceases to be it9 member. The other provision referred to us by Shri Mandlekar is Clause (1) of Article 192. This Clause only provides that if any question arises as to whether a member of a House ofthe Legislature of a State has become subject to any of the disqualifications mentioned in Clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final. In our view, it has no concern with the removal as such of any of the members of the Legislative Council from his office. Further, certain other provisions in the Constitution itself and the Representation of the People Act, which we will presently advert to, lend support to our conclusions. Clause (2) of Article 191 provides that 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. The phraseology, ''shall not be deemed' indicates that though, in fact a Minister holds an office of profit under the Government of India or the Government of any State, as the case may be, he would not be a person disqualified for being a member of the Legislature within the meaning of Sub-clause (a) of Clause (1) of Article 191. Now, when Article 192 is read along with Article 164, the difference between the position of a member of the Legislature and a Minister becomes clear. Article 164 provides that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor. This Article falls under the Chapter 'The Executive of the State.' It indicates that in the case of Ministers their appointment is made by the Governor in exercise of his executive powers and when the provisions of Article 154 are kept in view, those powers are the executive powers of the State vested in him. The Ministers, therefore, hold office under the State Government. Such is not the case of the elected members of the Legislature. As already stated, he holds office by virtue of his election duly notified.
9. We may also in this connection refer to the provisions of Article 101(1) and (2) and Article 190(1) and (2) of the Constitution of India read together with Sections 68, 69 and 70 of the Act of 1951. These provisions clearly indicate that a person can contest a seat at the election even though he is already holding a seat in another Legislature at that time, though in the event he gets elected he has to make a choice within a certain time as to which seat he would retain,
10. The decision relied on by Shri Mandlekar is, in our view, not of any assistance to the appellant. The observations in : AIR1954SC653 , to which reference was made, read as follows:
'The whole point that requires consideration under this head is whether at the material time the appellant held any office of profit under the Government: .......The plain meaning of the expression seems to be that an office must be held under the Government to which any pay, salary, emoluments or allowance is attached'
Now, in that case their Lordships were not considering the implication of the phrase 'under the Government' but were considering the implication of the word 'profit', and on facts their Lordships found that the amount paid to the person concerned was only an amount to defray out-of-the-pocket expenses and did not yield any profit to him. There was no dispute in that case as to whether the person concerned was holding an office under the Government or not. That case, therefore, cannot be taken as an authority for the proposition contended by Shri Mandlekar that the test for holding as to whether a person is holding an office under the Government is only the source from which the money comes.
11. For reasons stated above, in our judgment, the respondent was not a person holding. an office of profit under the State Government at the time of his election. The provisions of Sub-clause (a) of Clause (1) of Article 191 are, therefore, not attracted to the facts of this case.
12. Coming to the second point, as already stated, the respondent's name did, in fact appear at 2 places, once at roll No. 572 of village Gharfal and second time at roll No. 816 of town Yeotmal. The nomination paper was filled on the basis of roll No. 572 and the vote was cast only on the basis of roll No. 816. Shri Mandlekar contends that Section 18 of the Act of 1950 is in mandatory terms; it provides that no person shall be entitled to be registered in the electoral roll for any constituency more than once; and inasmuch as the respondent's name was entered twice in the electoral roll of the same constituency, there has been no compliance of Section 18 of the Act of 1950. He, therefore, contends that as the name appeared twice, the respondent was not a person entitled to stand for election within the meaning of Section 5(c) of the Act of 1951. It, no doubt, is true that the provisions of Section 18 had not been complied with, but we are not prepared to accept the contention of Shri Mandlekar, which virtually amounts to that as a result of it, it has to be assumed that his name-did not appear in the electoral roll at all.
13. Clause (c) of Section 5 of the Act of 1951 provides:
'A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless
(a) * * *
(b) * * *
(c) in the case of any other seat, he is an elector for any Assembly constituency in that State.'
The word 'elector' is defined in Section 2(e) of the Act of 1951. It reads as follows:
'' 'elector' in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 1950.'
As already stated, the respondent's name appeared, though twice, in the electoral roll. It has not been provided anywhere that in the eventthe name of a person appears twice in the electoral roll, then the effect thereof is that both the names should be deemed to nave been deleted from the electoral roll. In the absence of any such specific provision, to accept Shri Mandlekar's contention would yield startling results. It would give rise to unscrupulous practice in the field of election. A candidate at an election may possibly see that the name of his rival candidate is got entered at more than one place in the electoral roll. . It is well-nigh impossible for any person to scan the entire electoral roll of a constituency to find out whether his name appears more than once in the electoral roll. Further, we find in the statute itself that it was in the contemplation of the Legislature that such mistakes are likely to occur and the name of a voter may appear more than once in the electoral roll. Sub-section (4) of Section 62 of the Act of 1951 provides that no person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in that constituency shall be void. Now, if the provisions of Section 18 of the Act of 1950 and Sub-section (4) of Section 62 of the Act of 1951 are placed in juxtaposition, it becomes clear that the provisions of Section 18, are not mandatory but only directory. The provisions of Section 18 are by way of giving a direction to the officers preparing the electoral roll that they should take care that the name of an elector does not appear more than once in the electoral roll of that constituency. We are, therefore, of the view that merely because the name of the respondent appeared more than once in the electoral roll of the constituency, it cannot be said that the nomination of the respondent for being elected was void or that there has been any non-compliance with the provisions of the Constitution or the Act of 1951 within the meaning of Sub-clause (iv) of Clause (d) of Sub-section (1) of Section 100 of the Act of 1951.
14. As regards the third contention it is founded on Section 70 of the Act of 1951, rule 136 of the Rules framed under that Act, and Section 67A of that Act. Section 70 provides that if a person is elected to more than one seat in either House of Parliament or in the House or either House of the Legislature of a State, then, unless within the prescribed time he resigns all but one of the seats by writing under his hand addressed to the Speaker or Chairman, as the case may be, or to such other authority or officer as may be prescribed, all the seats shall become vacant. Rule 136 provides that the time within which a person may resign all but one' of the seats in either House of Parliament or in the House or either House of the Legislature of a State, to which he has been elected, shall be 14 days from the date of his election under Section 67A. Sect-ion 67A provides that for the purposes of this Act (Act of 1951), the date on which a candidate is declared by the returning officer under the provisions of Section 53, Section 54. Section 55A or Section 66, to be elected to a House ofParliament or of the Legislature of a State shall be the date of election of that candidate. What Shri Mandlekar argues is that looking to the provisions, the date of election of the respondent within the moaning of the Act was 8th March 1957, and that it was incumbent on the respondent to resign within 14 days from his membership of the Legislative Council of the State but he not having done so, i.e. having resigned on 24-3-1957 (i. e. 2 days more than 14 days), his seat had fallen vacant. No doubt, much could be said on behalf of either side on the question raised by Shri Mandlekar, but, in our view, it will not be desirable to express ourselves on this issue in this case, as, in our judgment, the issue raised has no relevance to the appeal with which we are concerned. The matter has come up before us by way of an appeal arising out of a decision given by the Election Tribunal. The grounds on which an Election Tribunal could declare an election void are contained in Section 100 of the Act of 1951. It would, therefore, be not competent for the Tribunal to traverse beyond its scope. It will also not be open to the appellate Court to do something in exercising its appellate powers which the trying authority was net competent to do. Now, when the provisions of Section 100 are looked to, it is clear that the contention raised by Shri Mandlekar is not one of the grounds on which an election could be declared void thereunder. The provisions of the Act of 1951 and rules made thereunder, on which reliance is placed by Shri Mandlekar, show that the date of the election of the respondent within the meaning of the Act was 8-3-1957 and it cannot be disputed that on that date the election of the respondent could not be rendered void on the strength of the present contention. He had 14 days time-still in his hands to resign his office of membership of the Bombay Legislative Council. His alleged failure to resign from the membership, of the Legislative Council, therefore, in our judgment, has no concern whatsoever with the validity or otherwise of his election to the Legislative Assembly.
15. Shri Mandlekar, however, states that it is the duty of the Court under Order 7 Rule 7 of the Civil Procedure Code to grant relief to the appellant if it is found that on account of the happening of subsequent event he gets entitled thereto. Now, the reliefs claimed are that it be declared that the election of the respondent is invalid and it be declared that the appellant is a duly elected candidate to fill the seat of the Bombay Legislative Assembly from the Yeotmal constituency. Assuming for a moment that the provisions of Order 7 Rule 7 could be called in aid in the instant case, as observed above, the contention raised is no ground for declaring the election of the respondent invalid. As regards the second relief, on his own contention, he is not entitled to it because if there is any force in the argument advanced, then the result is that the seat falls vacant and therefore the appellant cannot be declared to be a duly elected candidate to fill the seat of the Bombay Legislative Assembly.
16. In the result, therefore, in our judgment, there is no merit in this appeal. It fails and is dismissed with costs.
17. Appeal dismissed.