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Muhammad Bakhsh and anr. Vs. Muhammad Abdul Baqi Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad
Decided On
Judge
Reported inAIR1924All135; (1923)ILR45All720
AppellantMuhammad Bakhsh and anr.
RespondentMuhammad Abdul Baqi Khan and ors.
Excerpt:
act (local) no. ii of 1916 (united provinces municipalities act), section 16(8)(c) - 'place of profit'--hold/er of a contract with municipal board--eligibility for election as a member of the board. - - an examination of them fails to disclose that they were in any, way connected with commercial contracts into which, after all, a king as well as a commoner has to enter for the supply of commodities. we think not, and though it may have been the intention of the local legislature to follow along the lines of the disqualifications which had found favour in the enactments of bombay, calcutta and madras, the fact, according to our view, is that they have failed to do so......this point to us for our determination. the argument put forward by the petitioners is that the words 'place of profit' were deliberately chosen as a c6mpendious, all-embracing phrase to cover every recognized ground of disqualification such as are to be found in the indian acts in pari materia. in support of that argument dr. katju has referred us to the bombay municipal act (act no. ill of 1901) where, amongst other provisions, disabilities attach to 'a municipal officer or servant, a licensed surveyor, or plumber, or one who has directly or indirectly by himself or through his partner any share or interest in any contract or employment with or under, or by, or on behalf of the municipality.' section 39 of the calcutta municipal act has exactly similar disqualifying provisions. the.....
Judgment:

Grimwood Mears, C.J. and Piggott, J.

1. At the municipal election held in March last in Allahabad one Khan Bahadur Muhammad Abdul Baqi Khan was a candidate, and was subsequently declared to have been duly elected. For some years he, with other members of his family, had held a contract for the supply of kerosine oil in bulk to the Municipal Board. He was a member of the Board, whose term of office came recently to an end, and he had some three years ago disclosed the existence of that contract to the Commissioner and had been duly given permission to hold the same. He sat as a duly elected member throughout the period of the last Municipal Board. When he deemed himself to have been duly elected this year, he again sought and obtained the permission of the Commissioner to carry out the contract notwithstanding his membership of the Board. A petition to unseat him is now in course of hearing by the Commissioner; and, amongst other grounds, it is alleged that he was disqualified from becoming a candidate for election, and that his election is consequently of no effect, because he was at the time a person who under Section 16(3)(c) held a ' place of profit in the gift or disposal of the Municipal Board.'

2. The Commissioner has referred this point to us for our determination. The argument put forward by the petitioners is that the words 'place of profit' were deliberately chosen as a c6mpendious, all-embracing phrase to cover every recognized ground of disqualification such as are to be found in the Indian Acts in pari materia. In support of that argument Dr. Katju has referred us to the Bombay Municipal Act (Act No. Ill of 1901) where, amongst other provisions, disabilities attach to 'a municipal officer or servant, a licensed surveyor, or plumber, or one who has directly or indirectly by himself or through his partner any share or interest in any contract or employment with or under, or by, or on behalf of the Municipality.' Section 39 of the Calcutta Municipal Act has exactly similar disqualifying provisions. The Madras Municipal Act also affirms the inability of a person seeking election who has interest in any contract made with or work done for the corporation.

3. Therefore, had this question, which we are called upon to decide, arisen in any election to which the Bombay, Calcutta or Madras Acts applied, the position would be clear. The respondent would by the very words of either of these Acts have been disqualified for election. Here, however, we have to consider the words of the local Municipal Act, which are said to include the case of a man having a contract or interest in a contract with the Board. The question which we have to decide is whether it would be a fair construction of Section 16(3)(c) to say that on a reasonable rendering of the words 'place of profit in the gift or disposal of the Municipal Board,' they cover an ordinary commercial contract. The words 'place of profit' have a definite historical association and when coupled with the word ''office'' are familiar to all students of constitutional history. The Act of Settlement, 12 and 13 William III, Chapter II, Section 3, provides that upon the Accession of the House of Brunswick, no person holding any office or place of profit under the King should be ca/pable of serving as a member of the House of Commons. The phrase recurs in the Act of Settlement of 4th Anne and in 6th Anne, Chapter XLI.

4. The object of these Acts was to insure that the members of the House of Commons should be, as far as possible, free from any possibility of influence, or under any likelihood of the exercise of authority by the monarch and should ,be free to give effect to their political opinions and should not be merely puppets. The offices or places of profit to which these enactments apply vary from posts which were merely sinecures in the Koyal Household to positions demanding arduous duties as great officers of State. An examination of them fails to disclose that they were in any, way connected with commercial contracts into which, after all, a King as well as a commoner has to enter for the supply of commodities.

5. As far as we are aware there is only one case in which the term 'office or place of profit' has been the subject of a judicial decision. In Astley v. New Tivoli Ltd. (1899) 1 Ch. 151 the plaintiff sought an injunction to restrain the defendant company and the 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 debentures 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.' Mr. Justice North decided that the position of trustee for the debenture holders was ' a place of profit,' the object of the articles of association being to prevent the Directors from doing anything by which a Director continued to be a Director and yet accepted or held an additional office or place of profit under the company.

6. It will, therefore, be seen that .the meanings which have been attached to the words 'office or place of profit,' do not land any assistance to the petitioners, and they are thrown back upon their original general statement that the draughtsman meant by that phrase to include, and the Local Government by its acceptance meant to enact, that it should cover the special disabilities specifically set out in the Bombay, Calcutta and Madras Acts. We are unable to accept that argument. We find it, for instance, difficult to give' any meaning to the words in Section 40, 'continued to hold...any interest in a contract,' or those in Section 88, 'continues to have...,' unless the Act contemplated the possibility of a candidate for election raving in fact at the time an interest in a contract and being given by Section 40 an opportunity of obtaining permission from the Commissioner on his election to carry out the contract notwithstanding his election. A contractor who receives remuneration for the supply of articles cannot, in accordance with the ordinary meaning of the word 'place,' be said to hold a place of profit. In Murray's Dictionary 'place' is denned in this connection as 'office, employment, situation.' 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. That is, a position in relation to the Board in which the Board can require a person to obey its command and do certain work or render personal services in return for remuneration. Instances of this kind readily occur to one, e.g., a consulting engineer who for a retaining fee holds himself at readiness to 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. This rule is necessary because members of: a Board should not be in the false position of being masters and servants at one and the same time. We appreciate that the position of a contractor sitting on a Board may be a delicate one, and may give rise at times to difficult and embarrassing situations, but the question which we are called on to decide is whether on a fair construction of the words ' place of profit' a contractor could be included. We think not, and though it may have been the intention of the local legislature to follow along the lines of the disqualifications which had found favour in the enactments of Bombay, Calcutta and Madras, the fact, according to our view, is that they have failed to do so. That being so, we are of opinion that the holding of the kerosene contract by Khan Bahadur Muhammad Abdul Baqi Khan did not prevent him standing as a candidate and does not invalidate his election; and this is the answer we return to the Commissioner.


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