1. This is an appeal by Bhaironlal under Section 116A of the Representation of the People Act, (No. 43 of 1951) which will hereinafter be referred as the Act,against the judgment of the Election Tribunal, Jaipur,dated 31-1-1958.
2. The facts giving rise to it are that in the General Ejections, which were held in 1957 for membership of the Rajasthan Assembfy, one of the constituencies, namely, Jamua Ramgarh, was a double member constituency. For the general seat there were three contesting candidates, i.e., Bhaironlal (appellant), Doongarsidas (respondent No, 1) and one Fateh Singh. Respondent No. 1 got the maximum number of votes and so he was declared elected. The appellant and Fateh Singh were defeated. Fateh Singh is not a party to this appeal.
For the reserved seat, there were only two candidates and respondent No. 2 Ramlal defeated his rival Chhaganlal. The appellant challenged the validity of the election of respondent No. 1 only. In the petition which was filed by him he had raised two objections. The first objection was that the nomination paper of respondent No. 1 (Doongarsidas) was wrongly accepted since he was holding office of profit under the Government of Rajasthan as a 'Meena Bara Gaon'. His next contention was that the nomination paper of one Shri Narain was wrongly rejected. The second objection was abandoned by the petitioner at the time of final arguments before the Election Tribunal. It has not been raised in the memorandum of appeal and therefore this Court is not concerned with it.
The only objection which was pressed by the appellant before the election tribunal was that respondent No. 1 was holding office of profit under the Government of Rajasthan. It was stated by the petitioner that as a 'Meena Bara Gaon' respondent No. 1 had to render service, as a (Chowkidar) guard wherever he was posted and if he absented himself from duty, he was liable to be fined. It was further averred that instead of being paid for the above service in cash, the respondent No. 1 was given land and he enjoyed its income by way of salary (Tankha).
According to the petitioner, respondent No. 1 had got his name entered in the State records in place of his father after his death for rendering services to the Government, that his appointment and dismissal were within the competence of the Government and so he was disqualified from being chosen as a member of the Legislative Assembly under Article 191 of the Constitution of India.
3. The reply of respondent No. 1 before the Tribunal was that he was holding 50 bighas of land in Tehsil Jamua Ramgarh and that it was part of the State grant given by the rulers of Amer to his ancestors and others about 400 years ago. According to him, it was a State grant within the meaning of the provisions of the Jaipur Matmi Rules, 1945, that it was subject to mutation on the death of the last holder and thus although he was a tenure holder, he was not holding any particular office.
It was also stated by him that on his father's death in 1946, mutation was effected in his name as required by the Matmi Rules referred above. It was asserted by him that the grant in his favour as also of other Meenas Bara Gaon was in the nature of Jagir and they were allowed to enjoy rents from the tenants and in lieu of the payment of revenue in cash to the ruler they were required to do some personal service. In case of their failure to render the service or to give a substitute, they had to pay annas 2 per day as 'Tafawat'.
4. After recording evidence of both the parties, the Tribunal came to the conclusion that Meena Bara Gaon' was only a kind of Jagir and not an office of profit under the Rajasthan Government, and therefore the petition was dismissed with costs.
5. It is clear from what has been stated abovethat tne only question tor determination before this Court is whether 'Meena Bara Gaon' was an office of profit under the Rajasthan Government at the time when the respondent's nomination paper was accepted and whether respondent No. 1 was disqualified for being chosen as a member of the Legislative Assembly under Article 191 of the Constitution of India.
6. Learned counsel for the appellant has urged that the Tribunal has committed an error in not hold-in 'Meena Bara Gaon' as an office of profit. It has been painted out that on respondent No. 1's own admission he. was holding 50 bighas of land in tehsil Jamua Ramgarh and in lieu thereof he was required to render service. It was further urged that according to his own showing he had to pay 'Tafawat' at the rate of annas -/2/- per day in default of his rendering the required service and that this was in the nature of a tine.
According to learned counsel, respondent No. 1 was thus amenable to discipline and penalty by the Government and under these circumstances it could not be said that 'Meena Bara, Gaon' was not an office of profit under the Rajasthan Government. He has referred to Ex. 3 which is a reply from Collector, Jaipur, dated 23-4-1957, to his client's letter dated 19-4-57. It has been pointed out with reference to this letter that the Coliecor had clearly mentioned that the 'Tafawat' which the respondent had to pay for his absence on duty was a fine'.
It has also been pointed out in this letter that the respondent had not resigned from the office by the time this reply was received. Learned counsel has next referred to Exs. 4 and 5. Ex. 4 is an application dated 10-12-1946, by the respondent to the Collector Jaipur. It is urged by learned counsel that in this application the respondent had himself requested the Collector to enter his name in place of his deceased father and to permit him to render service's. Then, it has been pointed out by referring to Ex. 5 that by this order mutation was allowed and the respondent was directed to render service in place of his father.
7. Learned counsel for the respondent has on the other hand urged that a few hundred years ago, Meenas used to rule over the Eerritory where the villages which are now held by Meena Bara Gaon are situated. The Meenas were conquered by Rajputs and thereafter, although 12 villages were allowed to be enjoyed by them as their Jagir, they were required to render nominal 'personal service to the ruler in order to acknowledge his suzerainty. According to him, this was the origin of the Jagirs which are now called 'Meena Bara Gaon'. He has frankly admitted that he has not been able to lay his hands on any authentic record about tho origin of the grant of 'Meena Bara Gaon', but according to him, it was a grant burdened with service and not an office for which remuneration might have been fixed by the Government.
He has referred to Exs. D. 1 and D. 2 and pointed out that in those Pattas Meena Bara Gaon has been referred as Jagir. Ex. D. 1 bears the date of Asoj Sudi 12th, Samwat 1833. He has also referred to Exs. D 5 to D 13 which are copies of the revenue records relating to Tehsil Jamua Bamgarh and which show that a cess called 'Bab' was realised from 'Meena Bara Gaon'. It has been urged that this 'Bab' was realised only from Jagirdars and this also shows that the respondent was a Jagirdar and not a servant of the Government. He has next urged that according to the statement of P. W. 5 Shri Narain Das Mehta, Additional Collector, who was examined by the petitioner himself, the respondent was not rendering service himself long before he stood forhis election. He was only sending a substitute for a few years and even that substitute was not sent by him after 19-3-1956. He was thus not holding any office.
It is pointed out that according to the said witness the Government could, at the most, realise from the respondent annas -/2/- per day for the period of 3 1/2 months in a year and no more. According to learned counsel, the charge of annas -/2/- per day was for 'Tafawat' which was not a fine, but which was only revenue chargeable by the Government. It has also been urged by him that from the statement of P. W. 5 himself it was clear that the respondent was not liable to removal or dismissal on account of his failure to render service, nor was he amenable to any other kind of discipline. He was also free to take up any other service and the holding of the Jagir could not come in his way. Thus he has tried to support the judgment of the Election Tribunal to the effect that his client was not holding any office of profit.
8. We have gone through the record and given due consideration to the arguments raised by learned counsel for both the parties. It may be observed that the term 'office of profit' has not been defined in the Constitution or in the Act. It is however certain that in order to hold a certain person disqualified under Article 191(1) of the Constitution of India it must be proved that he was holding an office, that the office was under the Government of India or the State Government and that it also carried profits with it The word 'office' itself has been construed judicially in several different senses and no hard and fast definition has yet been evolved. In Hotilal v. Raj Bahadur, Civil Misc. First' Appeal No. 5 of 1958 decided on 3-4-1958 by a Division Bench of this Court: (AIR 1959 Raj 219) the following criteria were suggested:
(1) That the office should be independent of the person holding it, meaning thereby that the office must exist even if the person is not there.
(2) The office cannot be assignable or heritable.
(3) That there should be a relation of master and servant between the government on the one hand and the person holding the office on the other, and
(4) that it must be for a specified period.
9. Learned counsel for the appellant has urged that the first criterion is not correct. In support of his argument he has referred to Dr. Deorao Laxman v. Keshav Laxman, AIR 1958 Bom 314 wherein it was held that:
'the word 'office' does not necessarily imply that it must have an existence apart from the person, who may hold it. Cases are known, in which, in order to make use of the special knowledge, talent, skill or experience of certain persons, posts are created, which exist only for so long as they hold them. It will be difficult to hold that such persons are not holders of offices'.
It would suffice to say that in the above case learned Judges of the Bombay High Court were considering a special kind of office, namely, that of an Insurance Medical Practitioner functioning under the Employees State Insurance Act, 1948. The criteria which were suggested by this Court were for normal cases. The reasoning given by the learned Judges in the above case would not be available to the appellant in the present case, because it has not been suggested that the Government had created posts of Meena Bara Gaon on account of their special knowledge, talent, skill or experience. The entire burden of the argument of appellant's learned counsel is that since the respondent was required to render service to theGovernment as a Chowkidar, he was holding anoffice under the Government.
We have therefore to see whether the Government had created any post of Chowkidar or Chowki-dars and after appointing Meenas thereon it had given lands to them to remunerate them ior their services or they were given Jagirs and some obligation was attached to them as an incidence of feudalism. In Lakhamgouda Basavprabhu Sardesai v. Baswantrao AIR 1931 PC 157, it was observed by their Lordships of the Privy Council that:
'The distinction to be borne in mind is between the grant of an oifice to be remunerated by the use of land and the grant of land burdened with service. In the former case the land will prima facie be resumable; in the latter case prima facie it will not'.
It is no doubt true that in the above case their Lordships were considering the question whether the grant was resumable or not, but in our opinion, the distinction pointed out by their Lordships is of great help in determining the point whether a particular person who is holding land as a grant and rendering some service must necessarily be deemed to hold an office under the Government or not. We think that if a particular post is created by the Government and then a grant of land is made to the person holding that post, to remunerate him for his services in lieu of cash payment, then it may be held that he is holding an office under the Government, because in such a case it is the office which is created first and then it is determined by the Government how to remunerate the office-holder for his services.
If, however, a grant of land is made by the Government to a certain person out of regard for his meritorious services or some other personal consideration for the grantee and if in such a case some service is also required from him, then it cannot be said in every case that he is holding any particular office under the Government. In the second case he is primarily a grantee and the service, if any, required from him is subsidiary and it is only a term attached to that grant. We have to judge the position of respondent No. 1 in this light.
10. Although the appellant has produced five documents Exs. 1 to 5 and also examined 5 witnesses, the main evidence from his side is that of P. W. 5 Shri Narain Das Mehta, It may be pointed out that this witness has started his statement by saying that the institution known as 'Meena Bara Gaon' is under his charge as Additional Collector. It is significant that he himself considers 'Meena Bara Gaon' as an institution. Then, he proceeds to say that no record was available to him to find out as to what was the origin of this institution. According to him, 'Meenas Bara Gaon' are assigned duties of chowkidars at offices and their attendance registers are maintained, but at the same time he says that they are not required to render services personally and they can send their substitutes as well.
Then, he further proceeds to say that even if they do not send their substitutes, their services are not terminable, nor can they be removed on account of default in rendering services. They have only to pay annas -/2/- per day in case they do not send their substitutes. According to this witness, there are 18 villages allotted to 'Meena Bara Gaon'. Formerly, there were 444 shares, but now there are 1200 or more. This witness has not been able to explain as to how the institution of 'Meena Bara Gaon' came into existence but it is very clear from his statement that it is of a very ancient origin and has a history of a few hundred years behind it, though that history is very much shrouded in obscurity.
The grantees are Meenas by caste and it may be that since 12 villages might have been granted tocertain Meenas they came to be known as 'Meena Bara Gaon'. How those 12 villages increased to 18 is also not known, but that may be either on account of increase in population or distribution of 12 villages into 18. The history of this institution, it it could be available, would have thrown great light in determining the question before us, but even in its absence, it is clear that the lands were Riven to the ancestors of the respondent and others as a grant and they have been treated just like jagirs. P. W. 5 has admitted that even if ' Meenas Bara Gaon' do not send substitutes, the only order that can be passed against them is for the recovery of 'Tafawat'. Learned counsel for the appellant has tried to urge that 'Tafawat' is a fine
He has referred to Ex. 3 and contended that the Additional Collector has shown 'Tafawat' as a synonym of fine (Jurmana) in that document. This argument is not tenable because P. W. 5 who had written that letter has appealed for the appellant and explained that 'Tafawat' is not a fine nor it is in the nature of penalty. According to this witness, 'Tafawat' is charged and realised as 'arrears of land revenue'. He has also admitted that 'Meenas Bara Gaon' were given lands free of land revenue and that the holders rendered services to His Highness instead of paying land revenue.
Thus it is clear that the payment of annas -/2/-per day is in lieu of the land revenue and not as a fine in default of rendering services. In Rao Bhag-watsingh v. State of Rajasthan, Writ Petition No. 159 of 19'53 decided on 23-8-55 by a Division Bench of this Court 'Tafawat Jagir' was explained as a difference payable in cash on account ot non-maintenance of the required number of horses for the required period. In our opinion, 'Tafawat' in the case of 'Meenas Bara Gaon' meant a fixed sum which was payable by them in cash in lieu of land revenue if they did not exercise their option which was given to them to pay the land revenue by rendering personal services. This was not a penalty imposed by the Government but a concession given to the tenure holders.
11. P. W. 5 further proceeds to say that the services of 'Meenas Bara Gaon' are not terminable and the question of resumption of their land does not arise simply because of their failure to render services. According to him, the Civil Service Rules or Leave or Pension Rules do not apply to 'Meena Bara Gaon'. He also admits that 'Meenas Bara Gaon' are working as clerks or in private firms and there is no bar against their taking employment elsewhere. It also appears from his statement that out of 1200 persons who are collectively called 'Meenas Bara Gaon', there are some whose term of duty comes only for one day in the year or even half a day.
This shows that some of them are liable to pay only one anna per day if they do not personally come for rendering service or do not send any substitute. It would be absurd to say that Government had created posts for a day or half a day and that remuneration for those services was fixed at annas two or half an anna. It is common knowledge that if certain offices are created by the Government, their number is also determined and fixed by the Government. It is not left to the sweet will or discretion of the holder of the office to increase or decrease the number of the posts. As pointed out above by P. W. 5, there were at one time 444 shares and now they have multiplied to more than 1200. If it be held that every 'Meena Bara Gaon' is holding an office under the Government, then it would mean that it is left to these office-bearers to multiply the offices.
In our opinion, 'Meenas Bara Gaon' are only tenure holders. Their estates are heritable and parti-ble and if some of them still render service, they do it in order to save the payment of land revenue in cash. As regards respondent Doongarsidas, it is further clear from the statement of P. W. 5 himself that in the past her used to send Nanga and Ghinsa as substitutes for rendering service. But he had not sent even a substitute after 19-3-1956, and thus at the time of his nomination he was not rendering any service either personally or through a substitute. He may be liable for paying to the Government annas -/2/- per day for 3 1/2 months in a year according to P. W. 5, but that would not mean that he was holding any office under the Government at the relevant period of time.
12. Learned counsel for the appellant has referred to Ramappa v. Sangappa AIR 1958 SC 937, and urged that simply because a 'Meena Bara Gaon' estate was heritable it should not be held that he was not holding office under the Government. It is true that in the above case it was held by their Lordships of the Supreme Court that:
'Patels and Shambhogs (under the Mysore Village Offices Act) are officers, who are appointed to their offices by the Government though it may be that the Government has no option in certain cases but to appoint an heir of the last holder'.
But the position of Patels and Shambhogs in Mysore was very different from that of 'Meena Bara Gaon' in Jaipur. In the above case it was not disputed before their Lordships that Hanumanthappa and Siddappa, whose nomination papers were rejected by the returning officer, held the offices of Patels and as remuneration for their services, lands were allotted to them and provision for cash allowances was made. Likewise it was not disputed that Guru Rao was a Shambhog and had cash remuneration provided to him for his services.
It was also clear in that case and it was not challenged before their Lordships that Patels and Shambhogs had specific duties to perform and that they were holders of offices. The only point for determination before their Lordships was whether they were holders of offices under the Mysore Government. In the present case, it has not been admitted by respondent No. 1, nor has it been proved by the appellant that 'Meenas Bara Gaon' used to hold offices and that the lands were granted to them in lieu of or as a part remuneration for their services.
It has also been pointed out above that they were not required to do any particular service and if they so liked, they had only to pay annas -/2/-per day in lieu of land revenue calculated on the basis of the day for which they were required to present themselves. In the case cited above the conditions of service of Patels and Shambhogs were regulated by the Mysore Village Offices Act, 1908. The Act itself mentioned the offices of Patels and Shambhogs as village offices and so the question whether they held offices or not was put beyond all doubt. No full hereditary right to the office was recognized and it was possible under Section 6 of the said Act to appoint to an office a person who was not the heir of the last holder of the office abolished. It was only the appointment by the Government which perfected the Patels and Shambhogs' rights to the offices and made them the officers.
Thus, the said case was totally different. In the present case it hardly need be repeated that every 'Meena Bara Gaon' gets his right in the land by birth subject to 'Chehra' and mutation proceedings and therefore 'Meena Bara Gaon' cannot be held to be an office under the Government. Whatever view may be held about other criteria but one about which we are quite definite in our views is that an 'office under the Government' cannot be both heritable and partible under personal law. Thegrant of 'Meena Bara Gaon' is both heritable and partible and the number of grantees increases or decreases without any effective control of the Government upon that number and therefore we find it impossible to hold that it is an office under the Government.
13. Learned counsel for the appellant has referred to Section 5 of the Jaipur Matmi Rules, 1945 andurged that a 'Meena Bara Gaon' cannot get thegrant without sanction of the Government. Section 5runs as follows:
'All State grants shall be subject to matmi with the following exceptions: (1) the holdings of the Minas of Baragaon. Mutation in respect of such holdings shall continue to be made as heretofore by summary proceedings . known as 'chehra'.....,..'
It may be remarked that this section only requires that 'Mecnas Bara Gaon' have to take summary proceedings known as 'chehra' in order to get the holding mutated in their name on the death of the last holder. This is in the nature of a privilege to the Meenas of Bara Gaon and it shows that they are not subject to matmi Rules except to the extent referred above.
14. Learned counsel for the appellant has lastly urged that the respondent himself had mentioned in Ex. 4 that he should be permitted to render service in place of his father after the land is mutated in his name, that he was permitted to render service by Ex. 5 and hence it should be decided that he was holding an office.
In our opinion, this argument does not advance the appellant's case any further. The respondent had certainly asked for permission to render the service and that permission was given to him by Ex. 5 on 31-1-47, but that was only a formality which had to be undergone. It was his right to render service to save the payment of land revenue in cash. He was under no liability to render personal service or even to give a substitute if he paid the land revenue at the rate referred above. We are, therefore, satisfied that from whatever point of view the case of respondent No. 1 be looked at, he was not holding any office under the Government of Rajasthan at the time of his nomination and so he was not disqualified to stand for election under Article 191 of the Constitution of India.
15. There is no force in this appeal and it istherefore dismissed with costs.