1. This is an election petition under Section 80 of the Representation of the People Act, 1951 challenging the election of Vishveshwar Nath Bhargava-respondent to the Lok Sabha from the Ajmer Parliamentary Constituency. The petition has been filed by one Ramlal, an elector of the Constituency. It has been contested the by returned candidate.
2. The grounds on which the petition is based appear from the following issues which were framed in the case:
1. (A) Is the office of pramukh of a Zila Parishad in Rajasthan (1) under the Government and is it (2) an office of profit within the meaning of Article 102(1)(a) of the Constitution?
1. (B) Is the amount of Rs. 300/- which respondent No. 1 was admittedly entitled to draw as Pramukh of Zila Parishad Salary or honorarium or compensatory allowance?
1. (C) Did respondent No. 1 not draw the above amount from the second week of January 1967 up to the date of election? If so, what is its effect?
1. (D) Is the office exempt above from disqualification under Section 3(1) of the Parliament (Prevention of Disqualification) Act (No. 10 of 1959), 1959?
2. (A) Is Section 10(2) of the Delimitation Commission Act, 1962 void on the ground that by delegating its power to the delimitation commission to such an extent the parliament has effected itself?
2. (B) If so, is taking Bhim and Kurabhalgarh Assembly Constituencies to Ajmer Parliamentary Constituency void, and the votes polled in these Assembly Constituencies should be excluded? If so, how will the result of the election be effected?
2. (C) Can the Delimitation Order. 1966 be challenged before this Court in this Election petition under the Representation of the People Act. 1951?
3. (A) Whether the presiding and polling Officers for Bhim and Kumbhalgarh Constituencies were not appointed by District Election Officer Ajmer?
3. (B) If so, who appointed them? Was any breach of the provisions of Section 25 or 26 of the Representation of the People Act. 1951 thereby committed?
3. (C) Is it necessary to go into the above questions in the absence of any allegation in the petition that the result of the election was materially affected by irregularity, if any of the above description?.
4. (A) Did the respondent commit a breach of Section 78 of the Representation of the People Act. 1951 by filing the return of his election expenses before the District Election Officer. Aimer and by not filing the return before the District Election Officer, Udaipur?
4. (B) Does it constitute a ground for setting aside the election under Section 100 of the Representation of the People Act, 1951?
5. (A) Was the Returning Officer of the Aimer parliamentary Constituency not authorised to administer oath to the respondent under Article 84 of the Constitution by virtue of Notification No. S. O. 3215 dated 14-11-1963, published in the Gazette of India (Extraordinary), Part II, Section 3(ii). No. 228 dated 16-11-1963.
5. (B) If so, is the election liable to be set aside under Section 100(1)(a) of the Representation of the People Act, 1951?
6-- To what relief are the parties entitled?
ISSUE No. 1 (A). The petitioner was the Pramukh of Ajmer Zila Parishad on the date on which he filed his nomination paper as well as on the date on which the election was held. Under the Rajasthan Zila Parishad (Payment of Allowance to Members) Rules, 1961 as Pramukh of the Aimer Zila Parishad he was entitled to a monthly honorarium of Rs. 300/- and was also entitled to draw travelling allowance and daily, allowance in accordance with these rules in addition to the honorarium.
3. Some village panchayats were in existence in Rajasthan when the Constitution came into force and others were established after the coming into force of the Constitution in pursuance of the directive principle contained in Article 40 of the Constitution, which runs as follows:
'40. The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.'
4.-5. In the Second Five Year Plan, the Planning Commission had laid great emphasis on the fact that planning should start at the lowest level and that Panchayats should be the nucleus of such planning: implementation of all schemes of rural development should be broad-based on self-help and mutual co-operation. The Study Team of Community Development headed by Shri Balwant Raiji Nahta (which was appointed by the Committee on plan projects set up by the planning Commission) examined this question at great length and suggested the formation of panchayats in villages and democratic decentralisation of administration at the block and district levels. The Rajasthan Panchayat Samatis and Zila Parishands Act, 1959 was passed to give effect to this recommendation. Panchayats were formed for groups of villages so as to cover all the villages in the State. The Sarpanch of each Panchayat is elected by adult franchise. For every block a Panchayat Samiti was constituted to supervise over the work of all Panchayats within its jurisdictions as well as to carry out some other duties. A Zila Parishad was constituted in each District to supervise and co-ordinate the work of panchayat Samitis.
It is also an Advisory Body for planning and development activities in the District. The Panchayat Samitis and the Zila Parishads are Corporate Bodies having perpetual succession, with power to acquire, hold and dispose of property and to enter into contracts and can sue and be sued. The Sarpanch of the Panchayat is elected on the basis of adult franchise by all the residents of the group of village included in it. All Sarpanchas of Panchayati within the jurisdiction of a panchayat Samiti are ex-officio members of it. Members of the Legislative Assembly of the State elected from an area within the jurisdiction of the Panchayat Samiti are also ex-officio members. Some members of that Panchayat Samiti are elected by the president of the Gram Sabhas in the block from amongst themselves. These members in turn co-opt upto two women, two persona belonging to the scheduled castes and that persons belonging to scheduled tribes. The pradhan of the Panchayat Samiti is elected by an electoral college consisting of:
(i) Sarpanchas of all panchayats;
(ii) Members of Legislative Assembly elected from the block;
(iii) Co-opted members of the panchayat Samiti;
(iv) All panchas of the panchayats in the block.
(v) Presidents of all Gram Sabhas in the block.
6. Every Zila Parishad consists of the following members:
(i) Pradhans of Panchayat Samities in the District:
(ii) members of the Rajya Sabha residing in the District;
(iii) members of the Loksabha elected from a Constituency which forms part of the District.
(iv) members of the Legislative Assembly elected from the District;
(v) the above ex-officio members co-opt upto two women a person belonging to that scheduled caste and a person belonging to the schedule tribes. Besides the above members the District Development Officer, viz. the Collector of the District, is a member. He has a right to speak at the meetings but he has no right to vote. There are some other associate members also, who have right to speak but cannot vote.
The District Development Officer and the associate members do not take any part in electing the pramukh of the Zila parishad, who is elected by an electoral college consisting of
(i) pradhans of all Panchayat Samitis,
(ii) members of the Rajya Sabha residing in the District.
(iii) members of the Loksabha elected from a Constituency forming part of the District.
(iv) members of the Legislative Assembly elected from a Constituency forming part of the District.
(v) members of the panchayat Samiti, who have a right to vote at its meetings.
(6A) The functions which the panchayats, Panchayat Samitis and Zila Parishads discharge are governmental functions, viz., functions which would normally be performed by the servants of the State, if these bodies had not been created, they are all subject to governmental control that extent of which is indicated by the Statutescreating these bodies and the rules framed under them. As has already been mentioned above the Zila parishads were created by the Rajasthan panchayat Samitis and Zila Parishads Act, 1959, the following provisions of which may be noticed to indicate the extent of control exercised by the Government on the Zila Parishads and its Pramukh.
Section 42(2)-- Makes the Zila parishad a body corporate having perpetual succession and a common seal, with power to acquire, hold and dispose of the property, to enter into contracts and to sue or be sued in its corporate name.
Section 43 (3) (iv-a)--The District Development Officer viz. the Collector is a member of the Zila parishad, who has a right to speak at its meetings but has no right to vote.
Section 46--The normal term of office of Zila parishad is three years but the State Government may extend it from time to time by a period not exceeding one year in the aggregate.
Section 48--The resignation of the pramukh only takes effect from the date on which the sanction of the State Government thereto is received in the office of the Zila Parishad
Section 52 -- Rules for the conduct of business at its meetings are prescribed by the State Government
Section 53(1) - The District Development Officer is entitled to attend meetings of the sub-committees of the Zila Parishad and to participate in the deliberations.
Section 53(2) -- All officers of the State Development Department are entitled to attend the meetings of the Zila Parishad or a sub-committee thereof and to participate in the deliberations of such meetings relating to matters concerning their Departments. Section 54 -- The Zila Parishad can direct any division level officer of Government to attend any of its meetings. It can also direct any officer of the State Development Department to attend its meetings.
Section 55 -- The Secretary of the Zila Parishad is appointed by the State Government. He is a person holding a post under the State Government and is liable to transfer by the State Government
Section 56 -- The Secretary appointed by the State Government records and keeps the minutes of the meetings of the Zila Parishad as well as its sub-committees He works as drawing and disbursing officer of the Zila Parishad. The Pramukh has however the power to stop any payment and place the matter before the Zila Parishad for its orders.
Section 57 -- Enumerates the powers and functions of the Zila Parishad. The main function of the Zila Parishad is to supervise and coordinate the activities of the Panchayat Samitis and to distribute among them the ad hoc grants allotted to the District by the State Government.
Section 58(c) -- Defines the powers and functions of the Pramukh. He convenes, presides over and conducts the meetings of the Zila Parishad, has full access to its records, exercises administrative control over its Secretary and the staff working in the Secretariat in order to enable him to assess the activities of the Panchayat Samitis. He is expected to visit the blocks and to inspect the works undertaken and the records maintained by the Panchayat Samitis. The pramukh sends annually a report about the work of the Secretary to the District Development Officer.
Section 60--The State Government fixes the strength of the staff, determines their conditions of service and the method of their recruitment. The Zila Parishad is the appointing authority in case of Class III staff. The appointments are made on the recommendation of a Selection Commission consisting of two persons appointed by the State Government and the Pramukh. Members of the State Service can be appointed to the Zila Parishad Service and vice-versa.
7. Under Section 87 the members of the Zila Parishad service are entitled to receive pensions from the State Government out of the consolidated fund of the State. Section 61--The allowance of the Pramukh as well as the members of the Zila Parishad is fixed by the State Government.
Section 62 -- All moneys received by a Zila Parishad are credited to and constitute a fund which is called 'The Zila Parishad Fund' and are to be applied for the purposes specified in the Act or the Rules framed thereunder. The moneys are however to be kept in the Government Treasury. All orders for payment are to be signed by the Secretary. Payments for amount exceeding Rs. 5,000/- are to be countersigned by the Pramukh.
Section 63 -- The only two sources of income of the Zila Parishad consist of moneys received from the State Government;
(ii) donations and contributions from the Panchayat Samitis or from the publicAct making it incumbent on the Panchayat Samitis to make a donation or contribution to the Zila Parishad. The Zila Parishad Fund thus mainly consists of moneys received from the State Government. The payment of allowances of the Pramukh and the members of the Zila Parishad is made a first charge upon the fund of the Zila Parishad.
Section 64(4) -- The Budget Estimates as finally passed by the Zila Parishad are to be submitted to the State Government and if the State Government is satisfied that an adequate provision has not been made for giving effect to the provisions of the Act it shall have power to suggest modifications and to return it to the Zila Parishad with its observations. The Zila Parishad is bound to consider such observations and pass the budget with such modifications as it deemsnecessary. It is noteworthy that the Zila Parishad is not bound to accept modifications suggested by the Government.
Section 65 -- The Zila Parishad is bound to maintain accounts, to transact its financial business, to submit returns to the State Government and to prepare its budget in accordance with the Rajasthan Panchayat Samitis and Zila Parishads (Financial, Accounts and Budget) Rules, 1959. Under Rule 30 it is the duty of the Secretary to see that the total expenditure is kept within the limits of authorised appropriation and funds are expanded on objects for which provision has been made. Under Rule 76 (3) the State Government has power to cause the payment of the pay and allowances of the officers and servants of the Zila Parishad including the members after they have become due if the Zila Parishad fails to make payment. Under Rule 102 the Zila Parishad has to send quarterly as well as annual statements of income and expenditure under each head of the budget to the District Development Officer who in turn submits them to the State Government with the comments
The accounts of the Zila Parishad are audited under the Rajasthan Local Fund Audit Act 1954 and the Rajasthan Local Fund Rules. 1955, Under Rule 107 it is The duty of the District Development Officer to see that the irregularities pointed out in the Audit Report are promptly attended to and rectified. Rule 108 makes it binding on the Zila Parishad to remove the audit objections without delay. Under Rule 113(21 the Zila Parishad can write off loss of money, recoverable revenues, loans, advances or stores only with the approval of the State Government. Under Rule 115 the State Government have power to issue instructions to the Zila Parishad from time to time for the proper observance of the Rajasthan Panchayat Samitis and Zila Parishads 'Financial. Accounts and Budget) Rules. 1959.
Section 66-A -- If the Zila Parishad makes any default in performing any duty imposed upon it by or under the Act the State Government may direct it to perform the duty within a period fixed by it. If the duty is not performed within the period the State Government can appoint some person to perform it and direct the Zila Parishad to pay the expenses incurred in the performance of the duty together with reasonable remuneration to the person so appointed.
Section 67 -- The State Government may supersede the Zila Parishad if it appears to it that it has failed to exercise its powers and perform its functions or has exceeded or abused its powers. On being superseded the Pramukh as well as the members of the Zila Parishad all go out of the office.
Section 73 -- The Pramukh as well as members of the Zila Parishad are made public servants within the meaning of Section 21 of the Indian Penal Code.
Section 74 -- The Zila Parishad has to send to the State Government annually a report on its administration.
Section 75 -- Provides that no suit against a Zila Parishad or against any member, officer or servant thereof or against any person acting under the direction of the Zila Parishad for anything done or purporting to be done under the Act in its or his official capacity shall be instituted without giving two months notice or more six months alter the accrual of the cause of action.
Section 76 -- Gives protection against being sued or prosecuted for any thing done in good faith under the Act.
Section 77 -- Surplus funds can be invested by the Zila Parishad only with the sanction of the State Government.
Section 79 -- Gives power to the State Government to frame rules for carrying out the purposes of the Act.
Section 84 -- Gives power to the State Government to delegate some of its powers under the Act to any person or authority subordinate to it. Section 58(e) lays down that the Pramukh shall exercise such other powers as may be delegated to him under Section 84. From this it is inferred on behalf of the petitioner that the State Government treats the Pramukh as a person subordinate to it.
Section 85 -- Enables the State Government is revise any order of the Zila Parishad.
Section 90 -- If any dispute arises between two Zila Parishads or between a Zila Parishad and a Municipal Board it shall be referred to the State Government for decision. Such decision shall be final and shall not be questioned in any court of law.
8. It is not disputed that the office of Pramukh of a Zila Parishad in Rajasthan is an office within the meaning of Article 102(1)(a) of the Constitution. The first question for determination is whether the office of Pramukh is held under the Government. The contention of the petitioner is that it is so held. It is argued that although that Pramukh is elected his term can be extended by Government under Section 46 by extending the term of the Zila Parishad. Further although the Pramukh ran only be removed from his office by a motion of no confidence under Section 49, the State Government may put an end to the term of the office of the Pramukh by superseding the Zila Parishad under Section 67.
Under Section 61 it is the State Government which determines the remuneration attached to the office of the Pramukh. The source from which this remuneration is paid is mainly Government revenue. Under Section 63 the Zila Parishad Fund mainly consists of moneys received from the State Government. It is pointed out that under Section 48 the resignation of the Pramukh only takes effect after it is sanctioned by the Government. Further that under Section 58(e) read with Section 84(1) it is dear that the Government treats the Pramukh as its sub-ordinate to whom its powers can be delegated. It is argued that the Pramukh as well as the Zila Parishad work under the control of the Government and are bound to obey the directions issued by it. It is contended that the Zila Parishad performs only governmental functions and as such it is an agent or servant of the State and the Pramukh who admittedly holds office under the Zila Parishad, holds it under the State.
9. On behalf of the respondent it is contended, on the other hand, that the decisive factor in coming to the finding as to whether or not an office is held under the Government is whether the Government has power to appoint a person to it. The Pramukh is elected by an electoral college consisting of persons who are themselves elected and the Government has no hand in the appointment Further the Pramukh can only be removed from his office by a motion of no confidence passed by the members of the Zila Parishad and in this also the Government has no hand. It is pointed out that the Government can neither extend the term of office of the Pramukh or put an end to it without extending the term of the office of the Zila Parishad or superseding it, and that from these powers of the State Government no inference can be drawn that it has any power of appointment or removal of the incumbent of the office of Pramukh. As regards the power of the State Government to determine the quantum of allowance to be paid to the Pramukh under Section 61 the argument on behalf of the respondent is that such a determination can only be made by rules
With regard to the source from which payment is made to the Pramukh the contention of the respondent is that it is paid out of the Zila Parishad Fund and not out of Government revenues in the eye of law even though the Zila Parishad Fund may mostly consist of moneys received from the State Government. It was denied that the State Government can issue any directions to the Pramukh or the Zila Parishad interfering with the exercise of their discretion in discharging their functions and compel obedient e to such directions. Lastly it was contended that the Zila Parishad is a juristic entity distinct from the State Government, and cannot be treated as a servant or an agent of the latter The provisions of the Rajasthan Municipalities Act. 1959 were referred to and it was pointed out that the Government exercises comparatively a stricter control over the Municipal Board and its Chairman.
The Chairman can be removed like any other member for misconduct. Several of the taxes can only be imposed by the Municipal Board with the sanction of the State Government. The Government may refuse to sanction a tax proposed by the Board or may sanction the proposal after such modification as it deems fit. The Municipal Board has to send its Budget Estimates for sanction to the State Government which has power to modify them. The Municipal accounts are also audited by the examiner of the Local Fund Audit. The Municipal Board has to send to the Government an annual Administration Report. The State Government has full powers of inspection and supervision under Chapter XII. It is contended on behalf of the respondent that despite these powers no one would think of treating the Municipal Board as an agent or servant of the State Government.
10. I now proceed to examine some of the decisions cited on behalf of the parties on this part of the issue:
Hansa Jivraj Mehta v. Indubhai Amin, (1952) 1 Ele LR 171 (Elec. Tri., Baroda).
Shrimati Hansa Mehta was appointed Vice Chancellor of the University of Baroda by the then Government of Baroda before Baroda merged with Bombay. She received an honorarium of Rs. 500/- per month, a car allowance and a free furnished house from the funds of the University. She was liable to be removed from the office by the Government. It was held that even though the petitioner received her allowances from the funds of the University and not from the State direct as she was appointed by the Government of Baroda and was liable to be removed by the Government she was disqualified under Article 121(a) of the Constitution for being chosen as a member of the Parliament. It was observed that in deciding whether or not the office is held under the Government of a State various tests can be applied:
(i) Whether the State Government has the power of appointing or removing from office an incumbent?
(ii) Whether it has power to issue directions to the incumbent and compel obedience to such directions?
(iii) Whether the profit in question is derived by the incumbent from the Government of the State?
The first test was held to be decisive on the ground that if it is satisfied the irresistible inference would be that the incumbent would be under an obligation to that Government irrespective of the fact that his salary is drawn from source other than Government. The Tribunal came to the finding that the honorarium and allowance received by Smt. Hansa Mehta came directly from the University Fund and the fact of Government's contribution to that fund does not in any way change the source of the honorarium and allowance.
11. Hakikatullah v. Nathusingh, (1953) 6 Ele LR 10 (Ele Tri. Bikaner)
Hakikatullah was the president of the Jodhpur Municipality. He was getting Rs. 130/- per month as an honorarium. Under Section 53 of the Jodhpur Municipal Act. 1943 the President of the Board was elected by the members of the Board from amongst themselves subject to the approval of the Government. Under Section 59 he wasliable to be removed from the office by the Government on the ground of persistent failure to perform his duty. It was held that Section 53 gives a hand to the Government in the appointment of the president which could not be made until and unless the Government agreed to it. As he was also removable from office by the State. It was held that he was disqualified under Article 191(1)(a) of the Constitution for being chosen as a member of the Rajasthan Legislative Assembly.
12. Dr. Deorao Laxman v. Keshav Laxman, AIR 1958 Bom 314. The question which arose for decision in the case was whether an Insurance Medical Practitioner appointed under the Employees State Insurance Corporation was disqualified under Article 191(1)(a). The Corporation was a body incorporate having perpetual succession and a common seal and was capable of suing and being sued in the name of Employees State Insurance Corporation. Under the provisions of the Act under which the Corporation was established the Government exercised considerable control over it. Its principal officers were appointed by the Government. Its Budget Estimates were to be submitted, to the Central Government for approval. The Audit Accounts were also to be submitted to the Government. The Corporation thus worked under the control and supervision of the Central Government. It was held that that would not make it a servant or an agent of the Government or justify an inference that it was a Government Department. In the eye of law it was separate statutory body and its employees could not be regarded as employees of Government. A reference was made to the decision in Tamlin v. Hannsford. (1950) 1 KB 18
It was found that the Insurance Medical Practitioners were appointed by the surgeon-General to the State of Bombay. They were liable to dismissal or removal or to other disciplinary action by the same authority. Part of the remuneration payable to the Insurance Medical Practitioners came out of the revenues of the State. On these findings it was held that the Insurance Medical Practitioners held office under the Government of Bombay.
13. It was observed that the principal tests for deciding whether an office is under the Government are -
(1) What authority has the power to make an appointment to the office concerned.
(2) What authority can take disciplinary action and remove or dismiss the holder of the office, and
(3) By whom and from what source is his remuneration paid.
Of these the first two were held to be more important than the third.
14. Narayanaswamy v. Krishnamurthy. AIR 1958 Mad 343.
In this case the question which arose was whether the nomination paper of oneC. Krishnamurthy, a Junior Inspector under the Life Insurance Corporation of India who had stood for election to the Madras Legislative Assembly was rightly rejected. It was held that he was not disqualified under Article 191(1) (a) but was disqualified under Article 191(1)(e) by virtue of Regulation 29 framed by the Life Insurance Corporation under Section 49 of the Life Insurance Corporation Act prohibiting its employees from standing for election to the legislatures.
15. The Government of India has provided capital for the Corporation and has large powers of supervision and control over its management. The contention was that employees of the Corporation should be deemed to be holding office of profit under the Government of India. This contention was repelled by the High Court.
16. The reasoning on which the decision of the Tribunal against which an appeal was preferred before the High Court was based was similar to that given by their Lordships of the Supreme Court in Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52. Before the High Court it was sought to distinguish Abdul Shakur's case, AIR 1958 SC 52 on the ground that in that case Government had merely assumed control over the property of a public charity and provided for the management of the public Trust which was not in any sense the exercise of sovereign power or the creation of a Department of State and therefore furnished no analogy to the case before the High Court where the Government had nationalised the business of Insurance by taking over the assets of companies theretofore transacting life insurance business, had by statute created for itself a monopoly in such business and had created a corporation for the transaction of what was thereby rendered a State activity. Ti was urged that the Life Insurance Corporation is virtually a Department of the State of a servant of Government. This contention was negatived.
Their Lordships referred to (1950) 1 KB 18. In that case the plaintiff was the lessee of a house which was vested in the British Transport Commission under the Transport Act of 1947. The defendant was the subtenant of some rooms in the house. The plaintiff sued for possession of the rooms in the occupation of the defendant, and the defendant claimed, the protection of the Rent Restriction Acts. The County Court Judge held that as the title to the house was vested in the British Transport Commission it must be deemed to be owned by the Crown and that the Crown was not bound by the Rent Acts and he made an order for possession. The question debated before the court of appeal was whether by reason of the house becoming vested in the British Transport Commission, it had become Crown property, the contrary contention being founded on the British Transport Commission being a distinct legal entity the Corporation created for certain public purposes, and that by reason of the vesting of thehouse in such a body, it could not he treated ay Crown property.'
17. Denning L. J who delivered the judgment observed:--
'The Transport Act, 1947, brines into being the British Transport Commission which is a statutory corporation of a kind comparatively new to English law. It has many of the qualities which belong to corporations of other kinds to which we have been accustomed. It has for instance, defined powers which it cannot exceed, and it is directed by a group of men whose duty it is to see that those powers are properly used.
It may own property, carry on business borrow and lend money, just as any other corporation may do so long as it keeps, within the bounds which parliament has set but the significant difference in this corporation is that there are no share-holders to subscribe the capital or to have any voice in its affairs. The money which the Corporation needs is not raised by the issue of shares, but by borrowing, and its borrowing is not secured by debentures, but is guaranteed by the Treasury If it cannot repay, the loss falls on the consolidated fund of the United Kingdom: that is to say, on the tax payer. There are no shareholders to elect the Directors or to fix their remuneration
If it should make losses and be unable to pay its debts, its property is liable to execution, but it is not liable to be wound up at the suit of any creditor. The tax payer would, no doubt be expected to come to its rescue, before the creditors stepped in. Indeed, the tax payer is the universal guarantor of the Corporation. But For him it could not have acquired its business at all, nor could it now continue it for a single day.
The protection of the interests of all these tax payers, user and beneficiary is entrusted by Parliament to the Minister of Transport. He is given powers over this Corporation which are as great as these possessed by a man who holds all the shares in a private company, subject however, as such the man is not to a duty to account to Parliament for his stewardship. It is the Minister who appoints the Directors -- the members of the Commission and fixes their remuneration.
They must give him any information he wants, and lest they should not prove amenable to his suggestions as to the policy they should adopt, he is given power to give them directions of a general nature in matters which appear to him to affect the national interest, as to which he is the sole judge and they are then bound to obey.
These are great powers, but still we cannot regard the Corporation as being his agent, any more than a company is the agent of the shareholders or even of a sole shareholder. In the eve of the law the Corporation is its own master and is answerable as fully as any other person or Corporation. It is not the Crown and has none of the immunities or privileges of the Crown.
Its servants are not civil servants and its property is not Crown property. It is as much bound by acts of Parliament as any other subject of the King. It is, of course, a public authority and its purposes, no doubt, are public purposes but it is not a Government Department, nor do its powers fall within the province of Government,
We do not find it very useful to chawthe analogies from other bodies which aredifferently constituted and differently controlled and exist for different purposes. TheTerritorial Forces Association, for instance,is not concerned with commercial matter,but with the defence of the realm, which isessentially the province of Government andit is therefore, to be considered as agent ofthe Crown The Post Office is thenearest analogy.
It is of course, concerned with commercial matters, but it is nevertheless, a Government Department and its servants are civil servants That is however, an anomaly due to its history The carriage of mail was a Crown monopoly tone before the Post-Master-General was incorporated. But the carriage of passengers and goods is a commercial concern which has never been the monopoly of any one and we do not think that its unification under State control is any ground for conferring Crown privileges on it.
The only fact in this case which can be said to make the British Transport Commission a servant or agent of the Crown is the control over it which is exercised by the Minister of Transport, but there is ample authority both in this Court and in the House of Lords for saving that such control as he exercise insufficient for the purpose
When Parliament intends that a new corporation should act on behalf of the Crown, it as a rule, says so expressly as it did in the case of the Central Local Board by the Town and Country Planning Act 1947, which was passed on the very same day as the Transport Act, 1947.
In the absence of any such express provision the proper inference in the case, at any rate, of a commercial corporation is that it acts on its own behalf even though it is controlled by a Government department
In our opinion, the British Transport Commission is not a servant or agent of the Crown and its property is as much subject to Rent Registration Acts as the property of any other person.'
18. The decision in (1950) 1 KB 18 was applied and it was held that the Life Insurance Corporation could not be treated as a department of Government or its servant or agent. It was observed:--
'The object and purpose of the statute was the creation of a body autonomous in regard to its day to day administration and free from ministerial control except as to broad lines of policy, and therefore outsideplenary parliamentary surveillance, save perhaps in regard to the directions given by the responsible minister under Section 21.
It was this freedom that was sought to be achieved by the creation of a separate legal entity in the form of a statutory Corporation. There was not, therefore, merely a difference in form between a department of the Government and this statutory Corporation but one in substance.'
19. AIR 1958 SC 52. The appellant was the manager of a school run by a committee of management formed under the provisions of Durgah Khwaja Sahib Act, 1955. He was appointed by the Administrator of the Durgah and was paid Rs. 100/- per month.' The question arose whether he was disqualified to be chosen as a member of Parliament in view of Article 102(1)(a) of the Constitution? It was contended for the respondents in that case that under Sections 5 and 9 of the Durgah Khwaja Sahab Act, 1955 the Government of India had the power of appointment' and removal of members of the committee of management as also the power to appoint the Administrator in consultation with the committee. Therefore, the appellant was under the control and supervision of the Government and that therefore he was holding an office of profit under the Government of India. This contention was repelled and the Supreme Court pointed out the distinction between the holder of an office under the Government and the holed to an office of profit under some other authority subject to the control of Government. It was observed:--
''No doubt the Committee of Durgah Endowment 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 of the members of the committee are removable by the Government of India or the committee can make bye-law? prescribing the duties and powers of its employees cannot in our opinion 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 removable by the Government of India nor is he paid out of the revenues of India. The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues 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. But the appointment of the appellant does not come within this test
A number of election cases reported in the Election Law Reports were cited before us but they were decided on their own facts and are of little assistance in the decision of the present case. The test of the powerof dismissal by the Government or by an officer to whom such power has been delegated which was pressed in support of his case by the respondent is equally inapplicable to the facts of the present case because the appellant cannot be dismissed by the Government or by a person so authorised by the Government, He is a servant of the statutory body which in the matter of its servants acts within the powers conferred upon it by the statute.
A comparison of the different Articles of the Constitution 58(2), 66(4), 102(1)(a) and 191(1)(a) dealing with membership of the State Legislatures shown in the case of members of the Legislatures unlike the case of the President and the Vice-president of the Union the disqualification arises on account of holding an office of profit under the Government of India or the Governments of the States but not if such officer is under a local or any other authority under the control of these Governments.'
20. M. Ramappa v. Sangappa, AIR 1958 SC 937. The question arose as to whether the holder of a village office, who has a hereditary right to it is disqualified under Article 191(1)(a) of the Constitution which is the counter part of Article 102 in the matter of membership of the State Legislature. It was observed:--
'The statute, no doubt, gives him a right to be appointed by the Government in certain cases. Nonetheless, it is the appointment by the Government that perfects his right to the office and makes him the officer; without such appointment he does not hold the office. The office is, therefore, held by reason of the appointment by the Government and not simply because of a hereditary right to it. The fact that the Government cannot refuse to make the appointment does not alter the situation.'
21. It was found that the holder of the village office works under the control and supervision of the Government, his remuneration is paid by the Government out of Government funds and assets, he is removable by the Government, and thus he holds his office under the Government.
22. Guru Gobinda v. Shankari Prasad, AIR 1964 SC 254. The appellant was appointed an auditor by the Central Government of two Government companies: (I) The Hindusthan Steel Ltd., and (II) Durgapur Projects Ltd., He was removable from office by the Company in a general meeting after obtaining previous approval of the Central Government The Comptroller and Auditor General of India exercises control over the auditor of a Government Company. The Auditor General has right to give such auditor instructions in regard to any matter relating to the performance of his functions as such. The remuneration of the auditor is fixed by the Central Government though it is paid by the company. Both the companies are hundred percent Government companies. The Comptroller and Auditor General is appointed by the President and his administrative powers are controlled by the rules made by the President of India. On these facts it was held that the appellant was disqualified under Article 102(1)(a). The following five tests were referred to before their Lordships:--
(1) Whether Government makes the appointment to the office:
(2) Whether Government has the right to remove or dismiss the holder of office:
(3) Whether Government pays the remuneration.
(4) What are the functions which the holder of the office performs and does he perform them for Government: and
(5) Does Government exercise any control over the performance of those functions.
23. It was contended on behalf of the petitioner that all these tests must co-exist and each must show subordination to the Government. On behalf of the respondents It was argued that the tests are not cumulative in the sense contended for by the petitioner, and what is to be considered is the substance of the matter which must be determined by a consideration of all the factors present in a case, and whether stress will be laid on one factor or the other will depend on the circumstances of each particular case.
24. It was observed that in Abdul Shakur's case, AIR 1958 SC 52, the facts in which were fa) the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always a decisive factor. Further that in AIR 1958 SC 937 the decisive test was held to be the test of appointment. It was held: --
'In view of these decisions we cannot accede to the submission of Mr. Chaudhari that the several factors which enter into the determination of this question the appointing authority the authority vested with power to terminate the appointment, the authority which determines the remuneration, the sources from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged, and to give directions in that behalf must all coexist and each must show subordination to Government, and that it must necessarily follow that if one of the elements is absent, the test of a person holding an office under the Government, Central or State is not satisfied. The cases we have referred to specifically point out that the circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor not decisive of the question. As we have said earlier whether stress willbe laid on one factor or the other will depend on the facts of each case.'
25. Kishore Chandra Deo Bhanj v. Raghunath Misra, 19 Ele LR 1 = (AIR 1959 SC 589). The case came on an appeal from a decision of the High Court of Orissa. The High Court was of the opinion that a Sarpanch of the Gram Panchayat, though not a Government servant appointed by the Government, was nonetheless a person in the service of the Government as he performed many of the Governmental duties and was also removable by the Government and such a person came within t he provisions of Section 123(7)(f) of the Representation of the People Act, 1951. The Sarpanch exercised mostly governmental functions like collection of taxes, maintenance of public accounts etc. The High Court thought that if such a person was not brought under Section 123(7)(f) there would be a lot of undue influence exercised on the voters by these persons, who in the village exercised a lot of influence considering the nature of their powers and the ideas of the village people. Their Lordships drew a distinction between 'servant under the Government' and 'in the service of the Government' on the ground that while one may serve under a Government, one may not necessarily be in the service of the Government Under the latter expression the existence of the relationship of master and servant is necessary, the two essentials of which are -
(i) the servant must be under the duty of rendering personal services to the master or to others on his behalf and
(ii) the master must have the right to control the servant's work either personally or by another servant or agent.
It is this right of control or interference of being entitled to tell the servant when to work (within the hours of service) or when not to work, and what work to do and how to do it (within the terms of such service), which is the dominant characteristic in his relation and marks off the servant from an independent contractor or from one employed merely to give to his employer the fruits or results of his labour. It was found that as between the State Government and the Gram Panchayat and its Sarpanch no relationship of master and servant existed. It was observed:--
'It is true that the State Government, the District Magistrate and the Sub divisional Magistrate have been given certain powers of control and supervision over the Gram Panchayat but those powers of control and supervision are in relation to the administrative functions of the Gram Panchayat and the Sarpanch. The Gram Panchayat is an autonomous body exercising functions conferred under the statute. It can hardly be said that the Gram Panchayat in so functioning in the service of the Government. Its administrative functions areakin to the functions generally performed by Municipalities and District Boards. It would be a conception hitherto unknown to suppose that any Municipality or District Board was in the service of the Government merely because it exercised administrative functions and to some extent was under the control of the Government Co-operative Societies generally are very much under the control and supervision by the State Government or one of its officers authorised in that behalf. It would be difficult to accept the suggestion that because of that a co-operative society and its members must be regarded as in the service of the Government ..
Even if it could be said that the Gram Panchayat in the exercise of its administrative functions exercised duties in the nature of governmental duties it could not thereby be said that its Sarpanch was in the Service of the Government '
26. As was pointed out by their Lordships of the Supreme Court, in AIR 1964 SC 254, for holding an office of profit under the Government one need not be in the service of Government and there need be no relationship of master and servant between them The above case is therefore of no help in deciding the question as to whether the respondent was holding an office under the Government.
27. Applying various tests suggested in the above decisions to the present case the result is as follows:--
(1) A perusal of the provisions of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 goes to show that the State Government has no hand in the appointment of a person to the office of Pramukh. The Pramukh is elected by an electoral college consisting of persons who are themselves elected by different electoral colleges. He is not elected even by members of the Zila Parishad.
Under Section 46 Government can extend the term of the Zila Parishad upto a maximum of one year. If the term of the Zila Parishad is extended then the term of the office of the Pramukh is also extended. The State Government has thus power to extend the term of the Pramukh by an year indirectly by extending the term of the Zila Parishad.
(2) The State Government cannot remove the Pramukh or take any disciplinary action against him. The Pramukh can only be removed from his office by the members of the Zila Parishad by passing a motion of no confidence as provided in Section 49.
The State Government can however supersede the Zila Parishad under Section 67 and if the Zila Parishad is so superseded then the term of office of the Pramukh also comes to an end. The State Government can thus terminate the office of the Pramukh indirectly by resorting to the provisions contained in Section 67.
(3) It is the State Government which determines the allowances which are payable to a Pramukh by framing rules as provided under Section 61.
(4) These allowances are paid out of the Zila Fund which in turn consists mostly of moneys received from the State Government.
(5) The powers and functions of the Pramukh are enumerated in Section 58. He performs these functions in his capacity as Pramukh of the Zila Parishad. As the Zila Parishad itself performs only governmental functions, the functions performed by the Pramukh are also governmental in nature. It cannot however be said that he discharges his functions on behalf of the Government. He performs them in his capacity as Pramukh of the Zila Parishad in exercise of statutory powers conferred on him under the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959.
(6) No power has been given to that Government to interfere with the Pramukh in the exercise of his functions under the Act or the rules framed thereunder. The Government has however been given power to exercise control over the Zila Parishad under the Acts and the Rules. These powers have been enumerated above in detail. If the Zila Parishad fails to perform any of its duties then the Government can direct its performance as provided under Section 66-A. On the failure of the Zila Parishad to comply with the direction, the Government can appoint some one to perform the duty and recover expenses of the same from the Zila Parishad. It can even supersede the Zila Parishad under Section 67 for failing to exercise its powers for abusing them. But it cannot dictate the manner in which the Zila Parishad shall discharge a particular duty or perform a particular function.
(7) The Zila Parishad is a juristic entity distinct from the State. It cannot be regarded as a department of the State or its agentor servant.
28. The only decision which the learned counsel for the petitioner cited in support of the contention that the Zila Parishad is a department of the State or agent or servant of it is the case of AIR 1958 Mad 343. Neither that decision nor the observations made in it support him. The learned Judges relied on (1950) 1 KB 18 in that case. It was held that when Parliament intends that a new corporation should act on behalf of the Crown, it as a rule, says so expressly, as it did in the case of the Central Local Board by the Town and Country Planning Act, 1947, which was passed on the very same day as the Transport Act, 1947. In the absence of any such express provision the proper inference in the case, at any rate, of a commercial corporation is that it acts on its own behalf, even though it is controlled by a Government department. The last mentioned observation was qualified by adding the words 'in the case at any rate, of a commercial corporation' by way of abundant caution.
Learned counsel for the petitioner was unable to cite any case of a non-commercial corporation in which it might have been held that it was a department of the State despite the fact that the Act creating it did not expressly say so. It was observed in para 19 in that case:--
'. . . . .the test of function on which he laid considerable emphasis appears to be equally unsafe for identifying a public corporation as a part of the mechanism of the State. To start with, it may be mentioned that for this purpose, corporations created for Municipal or Local administrations are not treated as part of the State so as to render the Corporations or those employed by the Corporations either as part of Government or as Government Servants '
29. Merely because the Zila Parishad performs governmental functions and the State Government exercises control over it, it cannot be held that it is merely a department of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 the Zila Parishad has full power to act independently. There is no provision in this Act or the Rules framed thereunder, under which the State Government can dictate to it in what manner it should discharge a particular duty or perform a particular function.
30. In all the decided cases which have been referred to above the test of appointment was given the greatest importance. In fact no case could be cited by the learned counsel for the petitioner in which it might have been held that an office was held under the Government in which the Government did not have the power of appointing the incumbent. The power of the State Government to extend the term of appointment indirectly by extending the term of the Zila Parishad and the power to terminate the appointment indirectly by superseding the Zila Parishad can hardly be regarded as power:- of appointment and removal of the Pramukh, Having regard to all the facts found by me above T am of the opinion that the office of a Pramukh of a Zila Parishad in Rajasthan is not an office under the State Government within the meaning of Article 102(1)(a) of the Constitution.
31. A Pramukh no doubt holds an office under the Zila Parishad which is a local authority subject to the control of the State Government. He is disqualified for the office of the President of the Union under Article 58(2) of the Constitution. He is not disqualified for being chosen as a member of Parliament or the Legislative Assembly of a State.
32. The next question to be considered is whether the office of Pramukh is an office of profit? Any material advantage however, insignificant, will constitute profit in the literal sense. In Ravanna Subanna v. G. S. Kaggeerappa, AIR 1954 SC 653 their Lordships of the Supreme Court took theview that reimbursement of some out of pocket expenses should not be treated as profit. Their Lordships were dealing with the question whether the office of the Chairman of Gubbi Taluk Development Committee was an office of profit. It was observed:--
'The plain meaning of the expression seems to be that an office must be held under Government to which any pay salary, emoluments or allowance is attached. The work 'profit'' connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit. It appears from the rules that the Taluk Development Committee is constituted as a part of the scheme for reorganisation of rural development.
It is a sort of advisory body consisting of ten members and is presided over by a non-official Chairman. The Chairman has no executive duties to perform which are left entirely to the Amildar of the Taluk who is the ''ex officio' Secretary to the Committee while a Special Revenue Inspector is to act as Assistant Secretary. The Chairman is to preside over the meetings which are to be convened by the Secretary in consultation with him and the rules provide that the chairman will be entitled to a fee of Rs 6/- for each sitting he attends.
From the facts stated above, we think it can reasonably be inferred that the fee of Rs. 6/- which the non-official Chairman is entitled to draw for each sitting of the committee, he attends, is not meant to be a payment by way of remuneration or profit, but it is given to him as a consolidated fee for the out-of-pocket expenses which he has to incur for attending the meetings of the committee. We do not think that it was the intention of the Government which created these Taluk Development Committees which were to be manned exclusively by non-officials, that the office of the Chairman or of the members should carry any profit or remuneration.'
33. Under the Rajasthan Zila Parishads (Payment of Allowance to Members) Rules. 1964 the Pramukh is entitled to an honorarium of Rs. 300/- per month. In addition to this he is entitled to draw travelling allowance for all journeys performed on official duty including the journey performed by him from his residence in Ajmer to the office of Zila Parishad in Ajmer at the rates prescribed in these rules. Further he is entitled to draw daily allowance at Rs 5/- per day whenever he goes out of Aimer on official duty in a conveyance other than a Government vehicle and makes halt at one place for more than eight hours. He is entitled to draw daily allowance at Rs 5/-per day even if he halts for less than eight hours outside Ajmer provided he travels by a Government vehicle.
34. It will thus be seen that all the out of pocket expenses of the Pramukh are covered by the travelling allowance and daily allowance to which he is entitled under the rules and the honorarium of Rs. 300/- per month is a net pecuniary gain to the Pramukh from his office. The office of Pramukh is thus an office of profit within the meaning of Article 102(1)(a) of the Constitution
35. On behalf of the respondent it was contended that the honorarium of Rupees 300/- per month works out to Rs. 10/- per day and even if it is assumed that the Pramukh halts outside Ajmer for more than eight hours on every day of the month the maximum amount which he can make per day comes to only Rs. 15/- which is such a small amount that it should be taken to cover only the out of pocket expenses of the Pramukh. I am unable to accept this contention. As I have pointed out above all the out-of-pocket expenses of the Pramukh are covered by the travelling allowance and the daily allowance to which he is entitled under the rules and the monthly honorarium which he gets is the net gain to him from the office. This gain must be treated as 'profit.'
36. Another contention was that the honorarium is not attached to the office as under the rules if the office is held by a member of Parliament or a member of the Legislative Assembly then he is not entitled to any honorarium. This argument is fallacious. All that we are concerned with is as to whether the respondent was holding an office of 'profit' when he filed his nomination paper. In other words we have to find out whether he was likely to make profit from the office which he was holding. The answer to that question is that he was. As Pramukh he was entitled to an honorarium of Rs. 300/- per month by virtue of being a Pramukh. In his case therefore the honorarium was attached to the office which he was holding
37. Issue No. 1 (B). The amount of Rs. 300/- has been referred to as honorarium in the rules. In the Act there is a provision for giving allowance to the members under Section 61. In my opinion it makes no difference whether this amount is called 'salary' or 'allowance' or 'honorarium.' All these expressions almost mean the same thing--According to Webster's Third New International Dictionary -
Salary means :-- 1. fixed compensation paid regularly for services;
2 (a) remuneration for service given: fee honorarium:
(b) reward, recompensation. Allowance means:-- a sum granted as a reimbursement or bounty or as appropriate for such purposes as personal or household expenses.
Honorarium means:-- an honorary payment or reward usually given as compensation for services on which custom or propriety forbids any fixed business price to be set.
38. Members of Parliament are entitled to a salary of Rs. 500 per month and a daily allowance at the rate of Rs. 31/- per day under the Salaries and Allowances of Members of Parliament Act, 1954. In this Act the fixed amount payable monthly to members of Parliament has been referred to as 'salary'. It can also be called 'allowance' or ''honorarium' Salary, allowance or honorarium are all given as compensation for services. But the term 'compensatory allowance' has been used in the Parliament (Prevention of Disqualification) Act, 1959 in a special sense which will be dealt with under Issue No. 1 (D).
39. Issue No. 1 (C). The respondent remained on leave from 18-1-1967 to 7-4-1967, and did not draw any honorarium for this period He was not entitled to draw any honorarium for leave beyond 20 days in a year under the rules. For the first 20 days of his leave he was entitled to draw honorarium. Even if he were not entitled to draw any honorarium at the time when he filed his nomination paper that would make no difference. For he was nevertheless holding an office of profit at that time and was accordingly disqualified for being chosen as a member of Parliament. This legal position was not disputed by the learned counsel for the respondent.
40. Issue No. 1 (D). On behalf of the respondent it is claimed that the office of profit falls under Section 3(i) of the Parliament (Prevention of Disqualification) Act, 1959 and accordingly he was not disqualified for being chosen as a member of Parliament. Section 3(i) runs as follows
'(3) Certain offices of profit not to disqualify. It is hereby declared that none of the following offices, in so far as it is an office of profit under the Government of India or the Government of any State, shall disqualify the holder thereof for being chosen as or for being, a member of Parliament, namely:- (i) the office of chairman, director or member of any statutory or non-statutory body other than any such body as is referred to in Clause (h), if the holder of such office is not entitled to any remuneration other than compensatory allowance,......'
Compensatory allowance is defined under Section 2(a) as follows:
'compensatory allowance' means any sum of money payable to the holder of an office by way of daily allowance (such allowance not exceeding the amount of daily allowance to which a member of Parliament is entitled under the Salaries and Allowances of Members of Parliament Act. 1954 (30 of 1954) any conveyance allowance, house-rent allowance or travelling allowance for the purpose of enabling him to recoup any expenditure incurred by him in performing the functions of that office;
41. The office of Pramukh is no doubt the office of Chairman of a statutory body. But the remuneration to which the Pramukh is entitled is not confined to 'compensatory allowance' as defined in the Act. 'Compensatory allowance' can cover only such sums as are payable by way of
(i) daily allowance;
(ii) conveyance allowance;
(iii) house rent allowance;
(iv) travelling allowance:
The Pramukh is entitled to monthly honorarium besides travelling and daily allowance. This monthly honorarium cannot be treated as daily allowance. It is true that a member of Parliament is entitled to a daily allowance of Rs. 31/- per day and if the Pramukhs were entitled only to draw daily allowance upto Rs. 31/- per day and not to any monthly allowance then he would be exempt from disqualification under the Act, but as he is entitled to draw a monthly allowance or honorarium he is not exempt from disqualification under this Act.
42. As however I have held above that the Pramukh does not hold an office under the Government he is not disqualified for being chosen as a member of Parliament under Article 102(1)(a).
43. Issue No. 2(A). Article 82 of the Constitution provides for readjustment of constituencies after each census. Article 327 enables Parliament to make provision for the delimitation of constituencies by law. Such provision was made after the 1961 census by the Delimitation Commission Act, 1962. The Delimitation Commission which was constituted under this Act published an order under Section 10(1) delimiting Parliamentary and Assembly constituencies in the State of Rajasthan. This order was published in the Rajasthan Gazette. According to this notification the Aimer Parliamentary Constituency comprised of the following Assembly constituencies:
(i) Aimer East
(ii) Ajmer West
44. The first six of the above constituencies are in Aimer District. Kumbhalgarh and Bhim Assembly constituencies are in Udaipur District. In the year 1962, Kumbhalagarh and Bhim Assembly constituencies were not included in Aimer Parliamentary constituency. All the assembly constituencies included in Aimer Parliamentary Constituency were in Ajmer District.
45. The contention on behalf of the petitioner is that Section 10 (2) of the Delimitation Commission Act, 1962 which lays down that upon the publication in the Gazette every such order shall have the force of law and shall not be called in question in any court is void as by enacting such a provision the Parliament effected itself. It is argued that the Parliament should have made provision in the Act making it incumbent on the Delimitation Commission to obtain the approval of Parliament before the Delimitation Order could be treated as having the force of law which could not be called in question in any court. These contentions have no force.
46. In Re: Delhi Laws Act (1912) Etc AIR 1951 SC 332 the majority consisting of Kania C. J., Mahajan, Mukherjea and Bose JJ. held that the legislature in India whether established before or after the Constitution could, as a rule, delegate its legislative power to other bodies subject to its exercising essential legislative functions which consist in laying down a policy or a rule of conduct to guide the exercise of delegated authority. Legislative policy could not be left to the discretion of the delegate but where such policy was laid down by the legislature the rest could be validly delegated.
47. Under Section 9 of the Delimitation Commission Act, 1962 the Parliament laid down the principles on the basis of which the constituencies were to be delimited. It made provision for the publication by the Commission of its proposals for delimitation of constituencies, for inviting objections and for the consideration of these objections at public sittings. It was after such consideration that the proposals were to be finalised. In these circumstances it cannot be held that the Parliament abdicated its legislative function or effaced itself.
48. Issue No. 2 (B). In view of finding on issue No. 2 (A) inclusion of Kumbhalgarh and Bhim constituencies in Ajmer Parliamentary Constituency by the Delimitation Commission is valid.
49. Issue No. 2 (C). As was held by their Lordships of the Supreme Court in Meghraj Kothari v. Delimitation Commission, AIR 1967 SC 669 the Delimitation Commission Act, 1962 was made by Parliament in exercise of its power under Article 327 of the Constitution. Under Article 329(a) of the Constitution the validity of this law cannot be challenged in any court. It cannot be challenged in an election petition under Section 80 of the Representation of the People Act. 1951 which is to be tried by the High Court. It can also not be challenged by virtue of the provisions contained in Section 8(1) of the Representation of the People Act. 1951, which runs as follows:
'8. Consolidation of delimitation orders:--(1) As soon as may be, after all the orders referred to in Sub-section (5) of Section 4 or in Sub-section (3) of Section 7 relating to the delimitation of Parliamentary and Assembly constituencies have been made by Delimitation Commission or, as the case may be, the Election Commission and published in the Official Gazette, the Election Commission shall, after making such amendments as appear to it to be necessary for bringing upto date the description of the extent of the parliamentary and assembly constituencies as given in such orders, consolidate all such orders into one single order to be known as the Delimitation of Parliamentary and Assembly Constituencies Order, 1966 and shall send authentic copies of that order to the Central Government and to the Government of such State having a Legislative Assembly: and thereupon that Order shall supersede all the orders referred to in Subsection (5) of Section 4 or in Sub-section (3) of Section 7 and shall have the force of law and shall not be called in question in any court.'
50. Consolidated Delimitation of Parliamentary and Assembly Constituencies Order, 1966 was published by the Election Commission of India in accordance with the above provision.
51. Issue No. 3, Polling for the Aimer Parliamentary Constituency took place simultaneously with polling for the Assembly Constituencies comprised in the Aimer Parliamentary Constituency. The District Election Officer. Ajmer fixed the polling stations and appointed presiding and polling Officers for them so far as assembly constituencies lying in Aimer District were concerned. The District Election Officer, Udaipur fixed the polling stations and appointed presiding and polling Officers for them so far as Bhim and Kumbhalsarh assembly constituencies are concerned. The Returning Officers of assembly constituencies acted as Assistant Returning Officers for the parliamentary constituency in which they were included. Two ballot papers were given to each elector, one for parliamentary constituency and the other for assembly constituency, and after they had been marked they were put in the same ballot box.
52. Section 13AA, of the Representation of the People Act, 1950 provides for the appointment of a District Election Officer in each District by the Election Commission in consultation with the Government of the State.
53. Sections 25 and 26(1) of the Representation of the People Act, 1951 runs as follows:
'25. Provision of polling stations for constituencies. The district election officer shall, with the previous approval of the Election Commission, provides a sufficient number of polling stations for every constituency the whole or greater part of which lies within his jurisdiction, and shall publish, in such manner as the Election Commission may direct, a list showing the polling stations so provided and the polling areas or groups of voters for which they have respectively been provided.'
'26. Appointment of Presiding Officers for polling stations. (1) The district election officer shall appoint a presiding officer for each polling station and such polling officer or officers as he thinks necessary but he shall not appoint any person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election:
Provided that if a polling officer is absent from the polling station the presiding officer may appoint any person who is present at the polling station other than a person who has been employed by or on behalf of, or has been otherwise working for a candidate in or about the election, to be the polling officer during the absence of the former officer, and inform the district election officer accordingly.
Provided further that nothing in this Sub-section shall prevent the district election officer from appointing the same person to be the presiding officer for more than one polling station in the same premises.'
54. Under Section 25 for purposes of election to the Aimer Parliamentary Constituency the District Election Officer of Aimer was the competent authority to fix the polling stations and to appoint presiding officers and polling officers in the area included in Bhim and Kumbhalgarh constituencies. As has been pointed out above the presiding officers, polling officers and the polling stations at which votes for the Aimer Parliamentary Constituency were cast in the area included in Bhim and Kumbhalgarh Assembly Constituencies were all nominated by the district election officer of Udaipur. There was thus non-compliance with the provisions of Sections 25 and 26 of the Representation of the People Act, 1951.
55. It was however not alleged in the election petition that the result of the election was materially affected by this non-compliance. It is therefore of no consequence so far as the present election petition is concerned.
In this connection, I may refer to the decision of their Lordships of the Supreme Court in Vashist Narain Sharma v. Dev Chandra, 10 Ele LR 30 : (AIR 1954 SC 513). In order to be able to succeed in having the election of respondent set aside on this ground the petitioner had to allege in his petition and to prove that the result of the election was materially affected by the non-compliance of the provisions of Sections 25 and 26 of the Representation of the People Act, 1951. In other words he had to allege and to prove that if the polling stations in Bhim and Kumbhalgarh areas had been fixed by the District Election Officer, Aimer and the presiding and polling Officers for them had been appointed by him then some candidate other than the respondent would have polled a majority of valid votes. In the absence of any allegation or proof to this effect the non-compliance of Sections 25 and 26 is of no consequence whatsoever.
56. Issue No. 4. As has been pointed out above the District Election Officer,Ajmer was the District Election Officer for the Aimer parliamentary Constituency under Section 25 of the Representation of the People Act, 1951 as the greater part of the constituency lay within his jurisdiction. He was the proper authority before whom the return of the election expenses had to be filed by the respondent under Section 78 of the Representation of the People Act, 1951. As the return was filed before him no breach of Section 78 was committed by the respondent.
57. Even if any breach of Section 78 had been committed by the respondent that would be no ground for setting aside his election under Section 100 of the Representation of the People Act. 1951.
58. Issue No. 5. Article 84 of the Constitution inter alia provides that a person shall not be qualified to be chosen to fill a seat in the Parliament unless he makes and subscribes before some person authorised in that behalf, by the Election Commission an oath or affirmation according to the form set out for the purpose in the third schedule. The respondent took the oath in this form before the Returning Officer. His case is that the Returning Officer has been duly authorised in that behalf by the Election Commission by Notification No. S. O. 91 dated 2-1-1965 published in the Gazette of India, Extraordinary, Part II. Section 3, Sub-section (ii). This notification superseded an earlier notification dated 14-11-1963. The material part of the notification on which dispute turns is reproduced below:
'In pursuance of clause (a) of Article 84 of the Constitution and in supersession of its notification No. 3/130/63 (i) dated 14th November, 1963 the Election Commission hereby directs: (a) that as candidate for election to the House of the People by a Parliamentary Constituency shall make and subscribe oath or affirmation according to form set out for the purpose of third schedule to the Constitution before the Returning Officer or an Assistant Returning Officer for the constituency, etc.'
59. The argument of the learned counsel for the petitioner is that the above notification authorised a candidate for election to the House of the People to make and subscribe an oath or affirmation before the Returning Officer or an Assistant Returning Officer of the constituency but does not authorise the Returning Officer or the Assistant Returning Officer to administer an oath to him. I am of the opinion that the intention behind that notification which has expressly been issued under Article 34(a) of the Constitution is to authorise the Returning Officer as well as the Assistant Returning Officer of the Constituency to administer oath to a candidate for election to the House of the People.
60. The respondent was thus duly qualified to be chosen as a member of Parliament under the relevant part of Article 84(a) of the Constitution and his election is not liable to be set aside on the ground that he was disqualified under Article 84(a) of the Constitution.
61. In view of my findings on the above issues the election petition is liable to be dismissed.
62. I accordingly dismiss the election petition with costs.
63. There were ten hearings. Out of them the case was adjourned on the first three hearings at the request of the respondent to enable him to file a written statement. Under Rule 24 of the Rules framed by the High Court I assess the Advocates fees at Rs. 1050 @ Rs. 150 per hearing for the remaining seven hearings as more than one counsel appeared for the respondent
64. Authenticated copies of the above judgment shall be sent forthwith to the Speaker of the Lok Sabha and the Election Commission under Section 103 of the Representation of the People Act. 1951.