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Vazir Ali Vs. M. Shankariah and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 459 of 1961
Judge
Reported inAIR1964AP91; (1962)IILLJ636AP
ActsHyderabad District Municipalities Act, 1956 - Sections 27(1)
AppellantVazir Ali
RespondentM. Shankariah and ors.
Appellant AdvocateS.M. Hasan, Adv.
Respondent AdvocateV. Venkateswarlu and ;K. Janardhana Rao, Advs. and ;P. Ramachandra Reddi, Third Govt. Pleader
DispositionWrit petition allowed
Excerpt:
.....government - court observed that recipient of pension cannot fall under ambit of 'office' or 'place of profit' - held, appellant is entitle to file his nomination. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on..........office or place of profit under the government at the material time, he was not disqualified for being elected as a member of the town cornmitte.13. the result is that a writ of certiotarimust issue setting aside the order of the districtjudge and restoring the ruling of the returningofficer. the petitioner will have his costs fromthe ist respondent. we fix the advocate's fee atrs. 100/-.
Judgment:

Satyanarayana Raju, J.

1. This is a petition, under Article 226 of the Constitution, for the issue of a writ of Certiorari quashing the order of the District Judge, Nalgonda, by which he reversed, on appeal, an order of the Returning Officer of the Nalgonda City Municipality.

2. The material facts lie within a brief compass and are for the most part uncontroverted. For the purpose of holding elections to the Town Committee of the Nalgonda Town Municipality, the Government of Andhra Pradesh issued a notification calling upon all the constituencies to elect members in accordance with the provisions of the Hyderabad District Municipalities Act (XVIII of 1956) (hereinafter called, 'the Act'). The petitioner, the 1st respondent and two others filed their nominations for one of the constituencies. At the time of the scrutiny of the nomination papers, objection was taken by the 1st Respondent to the nomination of the petitioner as a candidate on the ground that he was a pensioner of the State Government and hence was disqualified for being elected as a member of the Town Committee. (under Section 27(1)(c) of the Act). The objection was overruled by the Returning Officer and the nomination of the petitioner was accepted. Aggrieved by the decision of the Returning Officer, the 1st respondent preferred an appeal to the District Judge as provided under Section 21 of the Act. The District Judge allowed the appeal, with the result that the order of the Returning Officer accepting the nomination of the petitioner was set aside. The District Judge granted a declaration that the petitioner was disqualified to contest the election in view of the provisions contained in Section 27(1)(c) of the. Act. It is the validity of this order that is impugned in the present petition.

3. Now, the point that requires consideration is whether, at the material time, the petitioner, by reason of his being a pensioner of the State Government, was disqualified for being elected as a member of the Town Committee.

4. Section 27(1)(c), in so far as it is material for the present purpose, reads as follows :

'27(1). Subject to the provisions of this Act a person shall be disqualified for being elected as a member of a Committee if such a person at thedate of election

***** (c) holds any office or place of profit under the Government or under the Municipality or under any local authority.'

5. It is not disputed that the petitioner is a retired clerk of a Government High School and that he was at the time of filing the nomination paper a recipient of a monthly pension from the State Government. The question, therefore, narrows down to this :

Whether a recipient of a pension from Government can be said to hold, an office or place of profit, under the Government, which Section 27(i)(c) of the Act contemplates?

6. A pensioner receives periodical payments from the Government in consideration of his pastservices, and it may, therefore, be said that he is in receipt of a profit. But the question is whether that profit is referable to aa office. In the Encyclopaedia of the Laws of England, an office is defined as

'a right to exercise a public or private employment, and to take the fees and emoluments belonging to it.'

The term 'office of profit' denotes an office to which salary, compensation or fees are attached. The word 'profit' connotes the idea of pecuniary gain. The term 'office' denotes a duty in the office-holder to be discharged by him as such and consists in a right and corresponding duty to execute a public or private duty and to take emoluments belonging to it.

7. A retired servant of the Government cannot be said to hold an office. He receives a periodical payment in consideration of his having held an office in the past. We are, therefore, unable to hold that a pensioner holds an office of profit within the meaning of Section 27(1)(c) of the Act.

8. The question, however, remains as to whether a pensioner holds a place of profit. The term 'place of profit' has nowhere been defined. In Astley v. New Tivoli, Ltd., (1899) 1 Ch 151 the question arose whether the position of a trustee for debenture-holders was a place of profit. There the plaintiff sought an injunction to restrain the defendant company and other directors from preventing him from acting as a Director of the Company. The defendants alleged that the plaintiff had ceased to be a Director because he had accepted from the Company the trusteeship of a covering deed relating to debenture on terms of payment by the Company to him for his services. They insisted that these circumstances caused his Directorship to be determined inasmuch as one of the Articles of Association prescribed that the office of a Director should be vacated if he held 'any other office or place of profit under the Company.' It was held that the position of trustee for the debenture holders was a 'place of profit'. North, J., observed as follows :

'1 think a man who has been selected by the Company -- by the directors -- to fill the position of trustee of a covering deed on the terms of receiving from the company, out of the coffers of the company, regular payment of so much a year during the time that he continues to fill that office, in addition to his payment as director, is occupying a place of profit. He is putting in his own pocket the salary that is paid by and comes from the company of which he is a director. In my opinion, a director in that position is holding a place of profit under the Company, and therefore his directorship is vacated.'

g. In Mahomed Baksh v. Muhammad Abdul Baqi Khan, AIR 1924 All 135 a Division Bench of the Allahabad High Court, consisting of Hears, C. J., and Piggott, J. held :

'We are of opinion that the proper meaning which should be ascribed to the words 'place of profit' in Section 16(3)(c) is one which denotes position and employment in the sense of having a title attached to such employment and a definite standing and partaking of the nature and character of that of master and servant.'

As illustrative of places of profit, the learned Judges gave the instances of a consulting Engineer who for a retaining fee holds himself at readiness co give expert opinions and furnish reports; a whole or part time medical officer with defined duties towards the Municipal Board; and each and every municipal servant of any grade.

10. The words 'place of profit' coupled with the word ''Office' must have been intended by the Legislature to have a definite meaning. The meaning which should be ascribed to the words is one which denotes position and employment, which pensioner certainly does not hold. We are, therefore, unable to subscribe to the view taken by the learned District Judge that a pensioner holds an office or place of profit under the Government and thereby incurs the disqualification provided under Section 27(1)(c) of the Act.

11. As lending support to the conclusion reached by him, the learned Judge relied upon Section 27(2) which reads :

'A person shall not be deemed to have incurred disqualification under Clause (b) of Sub-section (r) by reason only of his :

(a) receiving pension from the Municipality.' It was held that there having been a specific saving in favour of persons receiving pension from the Municipality from the purview of the disqualification provided under Section 27(1). it is reasonable to conclude that pensioners from the Government are sought to be included within the scope of the disqualification. We may point out that in construing the provisions of Section 27(2)(a) the learned Judge lost sight of the fact that the saving contemplated by that provision is referable to the disqualification incurred under Clause (h) of Sub-section (1). The disqualification we are now concerned with is not under Clause (h) but is one under Clause (c). Clause (a) of Sub-section (2) of Section 27 cannot therefore furnish any guide with regard to the interpretation of the provisions of Section 27(1)(c) of the Act.

12. On a consideration of the material provisions of the Act, we think that the view taken by the learned District Judge is not right, and as we hold that the petitioner was not holding any office or place of profit under the Government at the material time, he was not disqualified for being elected as a member of the Town Cornmitte.

13. The result is that a Writ of Certiotarimust issue setting aside the order of the DistrictJudge and restoring the ruling of the ReturningOfficer. The petitioner will have his costs fromthe ist respondent. We fix the Advocate's fee atRs. 100/-.


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