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Banomali Behera Vs. Markanda Mahapatra and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 266 of 1960
Judge
Reported inAIR1961Ori205
ActsOrissa Gram Panchayats Act, 1948 - Sections 10(9); Constitution of India - Articles 58(2), 59(2), 64, 66(4) and 191(1)
AppellantBanomali Behera
RespondentMarkanda Mahapatra and anr.
Advocates:P.V.B. Rao, Adv.
DispositionPetition allowed
Cases ReferredVenkatappa v. Subba Rao
Excerpt:
.....versed in drafting documents etc. and whose conduct is good and who is of good character may a. rule 6 says that the licence shall have effect till 31st december of every year, and will be renewed from year to year by the registrar, subject, however, to the good conduct, satisfactory act and physical fitness of the applicant, and on payment of the annual renewal fee of one rupee. 5. the expression 'office of profit' bas not been defined anywhere though it is also found mentioned in several provisions of our constitution, like articles 58(2), 59(2), 64, 66(4)(a) and 191(1)(a) of the constitution. 8. in the, case before us there is no question of remuneration nor is there any relationship of master and servant or employer and employee between the state or any other local authority and a..........alia, that the present petitioner being a deed writer registered under the orissa licensing oe deed writers rules, 1950 (hereinafter referred to as 'the rules'), holds an office of profit within the meaning of section 10 (9) (c) of the orissa gram panchayat act, 1949 (hereinafter referred to as 'the act') and as such, he is not eligible to be elected as sarpanch.the election officer directed sri. b. mohapatra, magistrate, 3rd class, to make an enquiry and the said enquiring officer submitted his report holding that the petitioner holds an office of profit and on the basis of that report the sub-divisional magistrate, by his order dated 26-10-60 in a. p. no. 2 of 1960, declared the election of thepetitioner as sarpanch to be void in law and ordered a fresh election. against the said.....
Judgment:

R.K. Das, J.

1. This is an application under Article 226 of the Constitution filed by the petitioner for quashing the order dated 26-10-60 passed by the Sub-divisional Magistrate and Election Officer of Grama Panchayat, Nowrangpur, District Koraput. The facts, in short compass, are as follows:

The petitioner, being a member of the Agnipur Grama Panchayat in the district of Koraput, contested the election for Sarpanch. But at the time of filing the Nomination Paper, Opposite Party No. 1, Markanda Mohapatra filed an objection petition on various grounds, to the nomination of the petitioner before the Presiding Officer, who gave him time to produce evidence. He having failed to do so, the nomination was accepted, the election was completed in due course and the petitioner was declared elected to the office of Sarpanch on 17-5-60.

Opposite Party No. 1, being aggrieved by the election of the petitioner as Sarpanch, preferred an appeal to the Sub-Divisional Magistrate, Nowrangpur, on the ground inter alia, that the present petitioner being a deed writer registered under the Orissa Licensing oE Deed Writers Rules, 1950 (hereinafter referred to as 'the Rules'), holds an office of profit within the meaning of Section 10 (9) (c) of the Orissa Gram Panchayat Act, 1949 (hereinafter referred to as 'the Act') and as such, he is not eligible to be elected as Sarpanch.

The Election Officer directed Sri. B. Mohapatra, Magistrate, 3rd Class, to make an enquiry and the said Enquiring Officer submitted his report holding that the petitioner holds an office of profit and on the basis of that report the Sub-Divisional Magistrate, by his order dated 26-10-60 in A. P. No. 2 of 1960, declared the election of thepetitioner as Sarpanch to be void in law and ordered a fresh election. Against the said order of the learned Sub-Divisional Magistrate the petitioner has filed the present application under Article 226 of the Constitution.

2. The petitioner admittedly is a registered-deed writer under the Rules. The only question, therefore, is whether such a person--a deed writer--holds an office of profit within the meaning of Section 10 (9) (c), and as such, is disqualified to be a sarpanch. The relevant provisions of the said section of the Act run as follows:

Section 10. Election of Sarpanch and Naib Sarpanch.

X X X X X(9) A person shall not be eligible to stand for election as or continue to be a member of the Grama Panchayat or a Panch of an Adalti Panchayat constituted under this Act, if --

X X X X X(c) he holds any office of profit under theState or Central Government or a local authorityother than that of a Sarpanch, Naib Sarpanch ora member of a Grama Panchayat or President otan Adalti Panchayat.

X X X X XExplanation. -- For the purpose of this section 'any office of profit' shall include any office or employment, whether part-time, or whole time, whether with or without remuneration or allowance, periodic Or otherwise, determined on any basis whatsoever, by virtue of which office or employment the person holding the same exercises authority in any locality within the Grama Sasan area'. So if the petitioner is found to hold an office of profit under the meaning of Clause (c) aforesaid, certainly he is not eligible to stand for election as or continue to be a member of the Grama Panchayat or a Panch etc.

3. In this connection, it is necessary to examine the various provisions of the Rules, which were made by the Inspector General of Registration, Orissa, in exercise of his powers conferred by' Clause (j) of Sub-section (1) of Section 69 of the Indian Registration Act, 1908. The Rules have been approved by the Government of Orissa under Sub-section (2) of the said Section, and were published in the Orissa Gazette, September 7, 1951, Part III p. 1111.

Rule (4) of the Rules provides that any person of the district preferably of the area within the jurisdiction of the Sub-Registrar's Office, who is well versed in drafting documents etc. and whose conduct is good and who is of good character may a.pply in Form I to the Registrar of the District for licence to act as a deed writer.

Rule 5 (1) provides that he is to pay a licence fee of Rs. 5/- and on payment of the said amount his name shall be entered in the Register of deed writers. The licence shall take effect from the date of issue.

Rule 5(2) says that in granting the licence under Sub-rule (1) the persons, who on the date of the issue of the licence have been carrying on the work of the deed writers, if they apply under Rule 4 and fulfil the conditions specified in that rule, shall be given preference.

Rule 6 says that the licence shall have effect till 31st December of every year, and will be renewed from year to year by the Registrar, subject, however, to the good conduct, satisfactory act and physical fitness of the applicant, and on payment of the annual renewal fee of one rupee. In case an application for renewal is not made within the due time by the licensee or his renewal is refused by the Registrar, then his name shall be struck off from the Register.

Rule 7 provides that a list of licensed deed-writers shall be hung at the Sub-registrar's office and under Rule 8 they would be allowed to sit on the office precincts and to enter into the office of the Sub-Registrar to transact business authorised by the licence.

Rule 9 provides that the number of deed writers for a particular office shall be fixed by the Registrar according to the requirements of that office and there will be no limit to the number of documents to be written by any particular deed writer.

Rule 1 prescribes the scale of fee to be charged by the licenced deed writers with the approval of the District Registrar according to the condition prevailing in the district and the licence shall be liable to be cancelled in case the deed writer charges more than the prescribed fee. The licence is, however, subject to cancellation for breach of any of the provisions under the Rules, and an appeal is provided to the Inspector General of Registration against such order of cancellation.

4. From a perusal of the Rules it would appear that they are meant to regulate the profession of the deed writers by issue of licence to such persons who are otherwise qualified to write out documents in the Sub-Registrar's office before the documents are presented for registration. The deed writers have no regular office to attend nor any time limit to attend the office of the Sub-Registrar. As would appear from the frame of the Rules, a deed writer may write out the deeds at his own residence, or even may not write any deed at all during the subsistence of his licence.

In fact no duty on that count has been imposed On him. It is absolutely his option to write out any deed or any number of deeds he chooses to scribe. He has no particular office to attend, and, under Rule (8) he is only allowed to sit in office precincts. Though a particular fee is Prescribed, a deed writer is free to write document even without any fee or on a lesser fee. The only prohibition is that he cannot charge any fee in excess of the fees prescribed by the District Registrar.

Such deed writers also were in existence long before the Rules came into force and were doing their work of deed writers. Under Rule (5)(2) while considering the application of the deed writers, preference was given to those who had been carrying on such work before the Rules came into force. Obviously, therefore, these deed writers have no office of their own and they are given only an annual licence, and there is not any sort of appointment to any office, nor are they receiving any emoluments or remuneration by reason of holding any office.

They are paid by private parties for the work they do for them. The concept of a service is completely absent in the case. The licence con be compared to the licences now issued under various Acts and Control Orders to regulate trade and business concerns. Such Licences cannot in any sense be held to be holding any 'office' or, 'employment' under the State.

5. The expression 'office of profit' bas not been defined anywhere though it is also found mentioned in several provisions of our Constitution, like Articles 58(2), 59(2), 64, 66(4)(a) and 191(1)(a) of the Constitution. The principle underlying the disqualification contemplated under the aforesaid provisions of the Constitution and under Section 10(9) (c) of the Act is that there shall be no conflict between the duties of a Member of the Grama Panchayat or a Member of the State Assembly or Parliament, as such, and his private interest, and that indebtedness of such a person to Government or to any local authority is incompatible with his independence as a representative of the people. It is primarily to achieve that object, these disqualifications have been placed in the Statute.

6. The duties of a deed writer are not of such a character that bring about any such conflict between his private interest and his duties as a Member of the Grama Panchayat, and moreover no question of subordination to any Government or Local authority is involved in the work of such holder of a licence as that of a deed writer.

7. In this connection a decision reported in Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52 may be seen. In that case, their Lordships, while dealing with a case whether a Mohatmin (manager) of Madrasa Durgah Khawaja Sahib Akbari, under Act 36 of 1955 holds office of profit under the Government of India, held :

'No doubt the Committee of Durgah Endowment under Act 36/55 is to be appointed by the Government of India, but it is a body corporate with perpetual succession acting within the four corners of the Act. Merely because the Committee or the members of the Committee can make bye-laws prescribing the duties and powers of its employees cannot convert the servants of the Committee into holders of office of profit under the Government of India. The appellant is neither appointed by the Government of India nor is removeable by the Government of India nor is paid out of the revenues of India. The power of the Government to appoint a person to office of profit or to continue him in that office Or revoke his appointment at their discretion and payment from out of the Government Revenue are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government Revenue is not always a decisive factor.'

In another decision of the Supreme Court reported in Ravanna Subanna v. G, S. Kaggeerappa, AIR 1954 SC 653 their Lordships, while dealing with a case of 'office of profit' within the meaning of the Mysore Town Municipalities Act, held :

'That the plain meaning of the expression seems to be that an office must be held under thegovernment to which any pay, salary, emoluments or allowance is attached. The word 'profit' connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not bo material: but the amount of money receivable by a person in connexion with the office he holds may be material in deciding whether the office reallycarries any profit.'

A case, very similar to one before us where the question arose whether a stamp vendor, who does not get a fixed remuneration but only gets a commission On the sales he conducts, can be said to be holding an office of profit within the meaning of the Mysore Town Municipalities Act was decided by a Division Bench of the Mysore High Court reported in Venkatappa v. Subba Rao, AIR 1957 Mys 79. Their Lordships relying on the aforesaid decision of the Supreme Court reported in AIR 1954 SC 653, held that a Stamp Vendor was not a person who held any office of profit as he was not getting any fixed remuneration but only got commission on the sales he conducted.

8. In the, case before us there is no question of remuneration nor is there any relationship of master and servant or employer and employee between the State or any other local authority and a deed writer licenced under the Rules like the present petitioner. The petitioner is a mere licensee, whose licence is renewable from year to year. He does not hold any office and much less an office of profit, and he has no particular official duly to discharge. In the light of aforesaid decisions and the discussions, the petitioner cannot be held to be a person holding any office of profit within the meaning of Section 10 (9) (c) of the Act so as to disqualify him to contest for the election of or to hold the office of Sarpunch.

9. In this view of the matter, the order of the Sub-divisional Magistrate. Nowrangpur, is clearly wrong and must be quashed. The writ petition is accordingly allowed. As there is no appearance for the other side, there will be no order for costs.

Narasimham, C.J.

10. I agree.


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