Skip to content


Guru Gobinda Basu Vs. Sankari Prosad Ghosal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberSupreme Court Appeal No. 83 of 1962
Judge
Reported inAIR1963Cal364
ActsConstitution of India - Articles 102 and 133(1); ;Representation of the People Act - Section 116A; ;Code of Civil Procedure (CPC) - Section 109
AppellantGuru Gobinda Basu
RespondentSankari Prosad Ghosal and ors.
Appellant AdvocateR.C. Deb, ;Arun Kumar (Sr.), ;Birendra Nath Banerjee and ;Dwijendra Nath Lahiri, Advs.
Respondent AdvocateHari Prasanna Mookerjee and ;Jnanendra Mohan Dey, Advs. for Respondents Nos. 1 and 2, ;Bankim Chandra Roy and ;Shib Kumar Majumdar, Advs. for Respondent No. 3
Cases ReferredM. Ramappa v. Sangappa
Excerpt:
- .....the limits therein specified. article 136 gives the supreme court very wide powers to en-tertain appeals in civil, criminal or other causes or matters if it thinks fit to grant special leave for the purpose on the facts of the case. the constitution nowhere defines what 'civil proceedings' are and, therefore, we must examine the nature of the proceedings to find out whether it can be called a civil proceeding or not. in my view, if the proceeding is in aid of establishing a civil right or for disputing one, it would be a evil proceeding. the test, in my view, would be whether but for the provision ot any statute the right claimed or denied could be established in a civil court. broadly speaking, if the proceedings taken establish or negative a man's office or status or would affect his.....
Judgment:

Mitter, J.

1. This is an application for a certificate for leave to appeal under Article 133(1)(c) of the Constitution of India against the judgment of a division bench of this court in appeal from Original Decree No. 424 of 1962.

2. The matter arises out of a Parliamentary election held in February last. The petitioner was a candidate for a Parliamentary seat from 34 Burdwan Parliamentary constituency in West Bengal and was declared to have been elected as a member as a result of the election having polled the largest number of votes. The respondents 1 and 2 before us presented an election petition No. 111 of 1962 before the Election Commission challenging the election of the petitioner as void on several grounds. The respondent No. 3 before us is the unsuccessful candidate. It was alleged by the respondent that the petitioner, a partner of the firm of Messrs. G. Basil and Co., held several 'offices of profit' under the Government of India and the Government of West Bengal. The complaint is that the firm of Messrs. G. Basu and Co. are auditors appointed by the Life Insurance Corporation of India with the previous approval of the Central Government which has overall powers of control and management of the Corporation. The said firm are also auditors of Durgapur Projects Limited and Hindustan Steel Limited, two 'Government Companies' within the meaning of the expression in the Companies ACT of 1956 the appointment being under the Central Government. The petitioner was also nominated by the Government of West Bengal to be a member of the Board of Directors of the West Bengal Finance Corporation and was in receipt of remuneration and fees as such director.

3. The relevant provision of the Constitution is Article 102 which provides, inter alia, that a person shall be disqualified for being chosen as, and for being a member ot either House of Parliament, if he holds any office of profit under the Government of India or the Government ot any State, other than an office declared by parliament by law not to disqualify its holder, it is not the appellant's case that any of the offices held by him have been declared by Parliament not to disqualify the holder thereof from being chosen as a member of either House. Both me trial Court i.e. the election tribunal, and a division bench of this Court in appeal, have held that the offices held by the appellant are offices of profit under the Government of India and the Government of the State of West Bengal. No certificate was asked for from the division Bench of this Court that the case involved a substantial question of law as to the interpretation of the Constitution of India and the only question before us is whether we can grant a certificate under Article 133(1)(c) that the case is a fit one for appeal to the Supreme Court as involving a substantial question of law.

4. There is no decided case of the Supreme Court which has dealt with the offices held by the appellant, in relation to the question as to whether they are 'offices of profit under the Government of India or the Government of any State.' The question which engages our attention in this case may fall to be answered in the future as well. Besides it involves the interpretation of several Statutes bearing on the position of auditors like the appellant before us. To that extent certainly a question of law of some importance arises in this case. But it was argued on behalf of the respondents that the Supreme court has in more than one case laid down the test for determining whether an office is one held under a Government for the purpose of Article 102 of the Constitution, there being no dispute that the office of a director of the West Bengal State Finance Corporation and the office of an auditor ot the ether bodies are offices of profit. The respondents took further objection that the proceeding is not a 'civil proceeding' within the meaning of Article 133(1) of the constitution and as such no certificate can be given thereunder.

5. The second point should be taken up first because if the proceeding from which an appeal is sought to be preferred was not a civil proceeding within the meaning of Article 133(1) of the Constitution, the other question hardly arises. Appeals to the Supreme Court are governed by Articles 132, 133, 134 and 136 of the Constitution. Under Article 132 an appeal lies to the Supreme Court from any judgment, decree of final order of a High Court in India whether in a civil, criminal or other proceeding, if the Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution, under Article 133 appeals are restricted only to those from judgments, decrees or final orders in a civil proceeding or a High Court in India. Article 134 gives a right of appeal in criminal matters within the limits therein specified. Article 136 gives the Supreme Court very wide powers to en-tertain appeals in civil, criminal or other causes or matters If it thinks fit to grant special leave for the purpose on the facts of the case. The Constitution nowhere defines what 'civil proceedings' are and, therefore, we must examine the nature of the proceedings to find out whether it can be called a civil proceeding or not. In my view, if the proceeding is in aid of establishing a civil right or for disputing one, it would be a evil proceeding. The test, in my view, would be whether but for the provision ot any Statute the right claimed or denied could be established in a civil Court. Broadly speaking, if the proceedings taken establish or negative a man's office or status or would affect his right to property of any kind, it will be a civil proceeding. For instance, joint stock companies are creatures of Statutes so far as India is concerned. The com-panies Act clothe the shareholders with certain rights and obligations. Apart from some substantial grievances which can only be agitated in the manner laid down in the Companies Act a shareholder is free to file a suit in a civil Court for establishing his rights. It can hardly be disputed that rights of shareholders are civil rights which can be agitated in a civil Court.

6. Before I discuss the cases cited at the bar It would be useful to note the relevant provisions of the Representation of the People Act, 1951. The right to vote at a Parliamentary election and the right to be chosen as a member of either House at an election are creatures or Statute. The Act prescribes who can vote and who can be elected. More than that it also lays down how an election can be questioned. This is in accordance with Article 329 of the Constitution. Under Section 80 of the Act, an election can only be called in question by an election petition, presented in accordance with the provisions of part VI or the Act. Sections 82, 83 and 84 lay down who should be Joined as respondents, what averments the election petition should contain and what reliefs may be claimed by the petitioner. Under Section 86 the petition has to be referred to an election Tribunal for trial. Under Section 90(1) the procedure to be followed by the Election Tribunal is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits. By Sub-section (2) the Indian Evidence Act is made applicable in all respects to the trial of an election petition. Under Section 92 the Tribunal is vested with the powers possessed by a Court under the Code of Civil Procedure when trying a suit, in respect of matters like discovery and inspection, enforcing the attendance of witnesses, compelling the production of documents, examining witnesses on oath, granting adjournments, reception of evidence taken on affidavit and issuing commissions for the examination of witnesses. After the conclusioon of the trial the tribunal has to make an order under Section 98 of the Act dismissing the election petition or declaring the election to be void and granting other reliefs.

Sections 108 to 116 contain provisions for withdrawal and abatement of election petitions. Under Section 116-A(1) 'an appeal shall lie from every order made by a Tribunal under Section 98 or Section 99 to the High Court of the State, in which the Tribunal is situated.' Under Sub-section (2) 'the High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil Court situated within the local limits of its civil appellate jurisdiction. Sub-sec. (3) specifies the time within which an appeal can be filed and Sub-section (4) gives the High Court, on sufficient cause being shown, power to stay operation of the order appealed from. Under Sub-section (6) the High Court must intimate the substance of the decision to the Election Commission and the Speaker or Chairman, as the case may be, of the House of Parliament or of the state Legislature concerned. Section 116B provides that 'the decision of the High Court on appeal under this chapter and subject only to such decision the order of the Tribunal under Section 98 or Section 99 shall be final and conclusive.' Sections 117 to 120 make provisions for costs and security for costs. Reliance was placed on Section 116B of the ACT to show that the legislature did not contemplate any further appeal from the decision of the High Court on an election petition. The two important sections for our present purpose are Sections 116A and 116B of the Act. Under the former the jurisdiction and authority of the High Court, with respect to an appeal from a decision of an Election Tribunal, are the same as in the case of an appeal from an original decree passed by a Civil Court. In my view this leads to the corollary that a decision of the High Court in appeal is to have the same effect as an appellate decree, with the necessary result that an appeal therefrom may be preferred to the Supreme Court, if the other conditions as to such appeals are fulfilled. Section 116B Is aimed at putting a stop to other proceedings with respect to the decision of the Election Tribunal or of the High Court in appeal therefrom. Under Section 109 of the Code of Civil Procedure an appeal shall lie from any judgment, decree or final order passed on appeal, by a High Court or by any other Court or appellate final jurisdiction to the Supreme Court or from any judgment, decree or order which is certified to be a fit one for appeal to the Supreme Court. In my view, the effect of Section 116A of the Representation of the People Act of 1951 is to attract the provisions of Section 109 of the Code of Civil Procedure and Article 133(1) of the Constitution of India with regard to appeatability to the Supreme court.

7. The point came up for consideration before a full Bench of the Patna High Court in Budhi Nath Jha v. Manual Jadav, : AIR1960Pat361 . There the proceeding before the High Court arose out of an application to It under the provisions of Article 227 of the Constitution, by which an election petition was ordered to be dismissed. The learned Chief Justice of the Patna High Court went elaborately into the question and took the view that the right of a person to stand for election was a civil right and an election petition challenging the election of a successful candidate raised an issue relating to a civil right between the parties. He referred to the judgment of the Madras High Court in Sriramarao v. Suryanarayanamurthi, : AIR1954Mad340 where Venkatarama Aiyar, J., had pointed our that 'the Courts which decided disputed rights between subjects or between a subject and the State, would be civil Courts as opposed to criminal Courts, where the State vindicates wrongs committed against the public, and that Courts constituted for deciding on purely civil questions between persons seeking their civil rights must be considered to be civil Courts, notwithstanding that they are created by a special statute and are mentioned in that statute as distinct from civil Courts.' Reliance was also placed on the definition of a 'Civil Proceeding' given in Stroud's Judicial Dictionary as a 'process for the recovery of individual right or redress of individual wrong; inclusive In its proper legal sense of suits by the Crown.' The learned Chief Justice noted the distinction between an ordinary civil Court and a Court constituted by statute for special purposes and observed

'in respect of the class of suits actually entrusted to the jurisdiction of special Courts they perform in relation to them functions which but for the special Act would have been performed by civil Courts and to that extent the special Courts can be said to be civil Courts in the different attire.'

8. Our attention was also drawn to the judgment of the Orissa High Court in the case of Kishore Chandra Deo v. Raghunath Misra, : AIR1960Ori1 where although both the Judges constituting the Division Bench agreed to grant leave to appeal to the Supreme Court, one of them entertained grave doubts as to whether the proceeding to set aside an election was a civil proceeding, specially in view of the observation of the Supreme Court in N.P. Ponhuswami v. Returning Officer, Namakhal Constituency, : [1952]1SCR218 that

'the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it and it is the sole right of the legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its hands and vests in a special Tribunal, an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.'

It may be pointed out however that although the rignt to vote or stand at an election may not be a civil right as known to the common law and although the legislature may in its wisdom have thought it best to refer the disputes in connexion with an election to a special Tribunal by enacting Section 116A the legislature laid down that in hearing appeals from Election Tribunals the High Court was to exercise the jurisdiction vested in it in hearing appeals from the original decrees passed by civil Courts and to that extent desired that the decision of the High Court on appeal should be treated as a decree in appeal from an original decree passed by a Civil Court. Incidentally, it may be noted that the Orissa case went up to the supreme Court and is reported in K. C. Deo Bhanj v. Raghunath Misra, : AIR1959SC589 . The Supreme Court did not decide whether the proceedings were civil proceedings but held that

'this was just the kind of case where the court would have granted special leave to appeal under Article 136 of the Constitution, because it raised a point of law of considerable public Importance.'

9. 'it is difficult to give a comprehensive definition or 'civil rights'. In my view, they are not limited to common law rights only and would include inter alia any right to property, reputation, status and office of a person, though these may be 'creatures of statutes.

10. Our attention was drawn by the learned advocate for the respondents to various judgments, wherein it has been laid down that an appeal is a creature of statute and no appeal would lie to the Privy Council or the supreme Court unless tin statutes give a right of appeal. The first case cited was Rangooon Botatoung Co. Ltd. v. collector of Rangoon, 39 Ind App 197 (PC) which arose out of land acquisition proceedings and an appeal was preferred from an award made by the Rangoon High Court on a reference from the Collector of Rangoon under the provisions of the Land Acquisition Act of 1894. In Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, Delhi, 54 Ind App 421 (PC) the Judicial Committee pointed out that the petitioners before His Majesty in Council for special leave to appeal, had no statutory power of appeal from the decision of the High Court. Reference was also made to the judgment of the Madras High Court in M. S. Krishnaswami v. Council of the Institute of Chartered Accountants of India, : AIR1953Mad79 where the court held that the jurisdiction conferred by Section 21 of the Chartered Accountants Act was in the nature of disciplinary jurisdiction and a proceeding thereunder was not a civil proceeding.

11. Our attention was drawn to the judgment of the Supreme Court in Hanskumar Kishan Chand v. union of India, : [1959]1SCR1177 , where it was pointed out that a reference, under Section 19(1) (b) of the Defence of India Act, was to an arbitrator and although appeals from awards were provided for under Section 19 (1) (f), the decision of the High Court in appeal was really an award and consequently not appealable under Sections 109 and 110 of the Code of Civil Procedure. In my view, these judgments can be distinguished on the ground that in none of these cases was the jurisdiction of the High Court the same as in the case of an appeal from an original decree passed by Civil Court.

12. In the result, I hold that the proceeding before the High Court should be treated as a civil proceeding within the meaning of Article 133(1) of the Constitute.

13. The question then arises as to whether there is asubstantial question of law involved to render the appeala fit one for hearing by the Supreme Court. As alreadynoted, it was not disputed that the point is one of considerable public importance and the only argument advancedwas that as the Supreme Court has already laid downtests to determine whether an office is an office of profit.under the Government, these tests must be applied tothe facts of the present case. If the facts of this casepresent no difficulty in the application of the principleslaid down by the Supreme Court, no certificate ought tobe granted.

14. With regard to the Life Insurance Corporation, the position is that under Section 25 of the Life Insurance Corporation Act of 1956 -- 'the accounts of the corporation-shall be audited by auditors duly qualified ***** and the auditors shall be appointed by the Corporation with the previous approval of the Central Government and shall receive such remuneration from the Corporation as the Central Government may fix.' The capital of the Corporation was, under Section 5 of the Act, provided by the Central Government. Under Section 3 the Corporation was to be a body corporate having a perpetual succession and a common seal, with power to hold and dispose of property and sue or be sued in its corporate name. The Division Bench of this Court has held that by virtue of Section 25, the appointment of auditors rests with the Government and his remuneration also is to be fixed by the Government.

15. Durgapur Projects Limited and Hindustan Steel Limited are 'Government Companies' within the meaning of Section 2(18) read with Section 617 of the Indian companies Act, 1956. Under Section 619(2) of the Act, the auditor of a Government company shall be appointed by the central Government on the advice of the Comptroller and Auditor General of India, who under Sub-section (3) snail have power to direct the manner in which the accounts shall be audited and to give such auditor instructions in regard to any matter relating to the performance of his functions as such. In this case, the Comptroller and Auditor General of India, who is himself an officer appointed by the President of India under Article 148(1) of the Constitution, is given wide powers to control the auditors of Government Companies.

16. The West Bengal Finance Corporation is a body corporate established under Section 3 read with Section 2(b) of the State Finance Corporation Act, 1951, having perpetual succession and a common seal. The appellant was nominated as a Director by the State Government under Section 10A of the Act and the Division Bench has held that the appellant held this office, at the pleasure of the State Government under Section 11(1) of the Act. Thus, according to the Division Bench the power of appointment or of nomination and the dismissal were vested in the State Government and this was sufficient to make the appellant the holder of an office under the State Government.

17. Two Supreme Court cases were cited before us as laying down tne principles which ought to be applied in finding out whether an office is one under the Government within the meaning of the expression used in Article 102 of the Constitution. In Abdul Shakoor v. Rikhab Chand : [1958]1SCR387 the question was whether the appellant was holding an office of profit under he Government having been appointed as mohatmin (manager) of a School by the Administrator of Durgah Khwaja sahib. He was being paid Rs. 100/- per month variously described as salary and honorarium. The Supreme Court examined various Acts beignning from the Durgah Khwaja Sahib Act (Act 23 of 1936) ending with an Act similarly intituted and passed in the year 1955. Under the last mentioned Act, the administration, control and management of the Durgah Endowment came to be vested in a committee which was a body corporate, having perpetual succession and a common seal and which could sue and be sued through its president. Under Section 5 of the Act the committee was to consist of not less than 5 and not more than 9 members to be appointed by the Central Government. Section 8 gave power to the Central Government to supersede the committee. Under Section 9 the Central Government in consultation with the committee could appoint a Nazim (administrator) of the Durgah whose salary was to be fixed by the Central Government but was to be paid out of the revenues of the Durgah Endowment Funds. Under Section 11 of the Act the powers and duties of the committee included the power to appoint, suspend or dismiss servants of the burgah Endowment. Under Section 20 the committee had power to make bye-laws to carry out the purpose of the Act. Under Clause (i) of Sub-section (2) of the section such bye-laws could provide for the duties and powers of the employees of the Durgah and under Sub-section (5) the Central Government was empowered to cancel any bye-law. The Supreme Court observed

'No doubt the committee of the 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 or the members of the committee are removable by the Government of India or the committee can make bye-laws prescribing the duties and powers of its employees (sic) 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 or 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 prow 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.' The court went on to add 'the power of appointment and dismissal by the Government or control exercised by the Government is an important consideration which determines in favour of the person holding an office of profit under the Government, but the fact that he is not paid from out of tne State revenue is by itself a neutral factor.'

18. The other Supreme Court case is that of M. Ramappa v. Sangappa, : [1959]1SCR1167 . There the question was whether Patels and Shanbhogs were offices of profit under the Mysore Government, mere was no dispute there that Patels and Shanbhogs were, village offices within the Mysore Village Offices Act of 1908 which recognised a hereditary right to these offices to some extent. Section 8 of the Act provided that filling up a vacancy occurring in the office of a Patel and shanbnog by enacting that certain person were not to be eligible for the office and laying down that succession in the case of a permanent vacancy would be regulated by the ordinary provisions of the personal law applicable to the last holder. Sarkar, J., who delivered the judgment of the Supreme Court, observed that the heir of the last holder did not get the office till he was appointed to it by the Government and it was the appointment by the Government that perfected his right to the office 'though it may be that the Government has under the statute no option but to appoint the heir to the office if he has fulfilled the statutory requirements.' The learned Judge went on to add 'the office is therefore held by reason of the appointment by the Government and not simply because of a hereditary right to it.' With regard to the power of dis-missal Section 7 of the Act provided that a prescribed officer of the Government would have power to suspend, dismiss or remove any holder of a village office on any of the grounds mentioned therein. With regard to the payment of remuneration the Court found that

'Government lands are allotted by it to the officers by way of emoluments for services to be rendered and the cash allowances are also fixed by the Government. It is true that under the rules cash allowances are not paid directly by the Government to the officers but the latter are authorised to deduct the amounts thereof from me revenue collected by them. This does not show that the cash remuneration is not paid by the Government.'

19. So far as Life Insurance Corporation Act of 1956 is concerned, the appointment of the auditor has to be by the approval of the Central Government and the remuneration also was fixed by the Government. The Act does not contain any special provision for dismissal of the officers by the Government and the remuneration, though fixed by the Government, does not come out of Government revenues,

20. In the case of the Government Companies, the auditor is appointed by the Central Government directly on the advice of the Comptroller and Auditor General. Again, there is no express provision for dismissal and the remuneration comes out of the till of the company, which is a separate legal entity by itself.

21. With regard to the West Bengal Finance corpora-tion the position is certainly clearer in that the powers of appoinment and dismissal were vested in the State Government although the Supreme Court cases mentioned above contain exposition of the relevant principles, the legal position of the appellant with regard to the different com-panies and corporation bearing on the question as to whether it amounts to an office of profit within the mean-ing of Article 102 of the Constitution, is one of general public importance and, as such, we feel that it would be just and proper to grant the appellant a certificate to the effect that the case involves a substantial question of law and is a fit one for appeal to the Supreme Court under Article 133(1) of the Constitution of India.

22. Let a certificate under Article 133(1)(c) be drawn up and issued expeditiosuly.

23. Costs of this application will be costs in the Supreme Court appeal. The hearing fee is assessed at five gold mohurs.

Bose, C.J.

24. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //