Bhuneshwar Prasad Yadav Vs Badridhar Diwan

Chhatisgarh High Court (Single Judge)

EP->ELECTION PETITION, 07 of 2015, Judgment Date: Jun 15, 2015

HIGH COURT OF CHHATTISGARH AT BILASPUR
E.P. No. 07 of 2014
PETITIONER : Bhuneshwar Prasad Yadav
VERSUS
RESPONDENT : Badridhar Diwan
SB: Hon’ble Shri Goutam Bhaduri, J.
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Present:
Dr. N.K. Shukla, Sr. Advocate with Miss. Mukta Tripathi, Advocate
for the Petitioner.
Mr. Abhisek Sinha, Advocate for Respondent.
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ORDER
(15/05/2015)
1. The order shall govern the disposal of I.A. No.3, which is an
application under Order 7 Rule 11 (a) & (d) of C.P.C. read with
Section 86 (1) of the Representation of People Act, 1951 (herein
after referred to as 'the Act of 1951'), filed by the respondent, the
returned candidate.
2. The election petition is preferred challenging the election of
respondent, Badridhar Diwan on the ground that the respondent,
Badridhar Diwan, who was elected candidate from 31 Beltara
Legislative Constituency in the election held in the year 2013 was
disqualified to contest the election under Article 191 of
Constitution of India. The prayer made in the petition is as under :-
“It is, therefore, prayed that this Hon'ble Court may
kindly be pleased to allow this petition and setaside
the election of the respondent on account of
his disqualification under Article 191 of the
Constitution of India, in the interest of justice.”
3. The petitioner lost the election and respondent was declared as
returned candidate. After notification of result, the instant petition
is filed under Section 80, 80-A and 100 of the Act of 1951, wherein
predominantly it is alleged that the respondent was disqualified for
membership of the State Legislative Assembly on account of the
fact that he was holding the office of profit under the government
of Chhattisgarh other than the office. It is further pleaded at Para-9
that the respondent has received his remuneration against the
post of Chairman of the Chhattisgarh State Industrial
Development Corporation Limited (CSIDC) for the period
commencing from the date of notification of election till the date of
rejection. The pleading is also to the effect that if the respondent
being the chairman of CSIDC was holding the office of profit under
State Government, consequently, he was disqualified for the
election. Other averments have also been made in the petition
that the respondent used official vehicle and the official position
being the Chairman of CSIDC, consequently, he was disqualified.
4. After service of notice of the election petition, the application is
preferred by the returned candidate under Order 7 Rule 11 (a) &
(d) of C.P.C. read with Section 86 (1) of the Act of 1951. In the
said application, the respondent has contended that by virtue of
power conferred under Article 191 (1) (a), the State Government
has declared certain offices not to disqualify its holder as office of
profit. The effect of Act promulgamated is under name and style of
Chhattisgarh Vidhan Mandal Sadasya Nirarhata Nivaran
Adhiniyam, 1967, which includes the holder of office of Chairman,
Chhattisgarh State Industrial Development Corporation Limited,
within its schedule. Therefore, the respondent was not disqualified
for being chosen as member of Chhattisgarh Legislative
Assembly. It was further contended that since the entire petition is
based on disqualification as would be evident from the prayer as
petitioner has confined his prayer to the disqualification under
Article 191 of the Constitution of India, as such the election
petition is without any cause of action.
5. Learned counsel for the respondent would submit that
Chhattisgarh Vidhan Mandal Sadasya Nirarhata Nivaran
Adhiniyam, 1967 came to be amended by an Act of 30 of 2006 as
Chhattisgarh Vidhan Mandal Sadasya Nirarhata Nivaran
(Sansodhan) Adhiniyam, 2006, wherein Section 3 & 3-A came to
be amended which reads as under :-
“3. Certain offices of profit not to disqualify :- It
is hereby declared that none of the offices specified
in the Schedule, in so far as it is an office of profit
under the Government shall disqualify or shall be
deemed ever to have disqualified the holder thereof
for being chosen as, or for being, a member of the
Chhattisgarh Legislative Assembly.
3-A. Prevention of disqualification of certain
offices - Subject to the provisions of Section 3 no
person holding the office of Chairman and Vice
Chairman or President and Vice President or
Director or Member of any committee shall be
disqualified at any time for being chosen as or for
being, a member of the Chhattisgarh Legislative
Assembly by reason only of the fact that he holds
such office.
Provided that the holder of any such office is not in
receipt of any remuneration other than
compensatory allowance.”
6. It was therefore, contended that Section 3 provides absolute
protection to the office enumerated in the schedule, wherein at
Sr.No.33, Chhattisgarh State Industrial Development Corporation
Limited is find place. Therefore, the office having been entirely
exempted under the C.G. Act, the cause of action do not accrue in
favour of the petitioner. Reading of Section 3-A would show that it
is subject to main Section - 3 and since it is subject to Section 3,
Section 3-A will be subordinate the main Section -3.
7. Reference was made to the statutory of interpretation, G.P. Singh
12 addition Page 364-365 and foot notes and it was submitted that
phrase 'subject to', is a simple provisions which merely subjects
the subject -sub-section to the provision of master of sub-section.
It is submitted that when the provision A is made subject to the
provision B, a case falling under provision B is taken out of
provision A. Where there is no clash, the phrase does nothing, if
there is collision; the phrase shows what is to prevail.
8. A reference is also made in the case law reported in (2011) 9
SCC 1 between K.T. Plantation Private Limited and Another
Vs. State of Karnataka, in order to defined 'subject to', the
learned counsel has reproduced Para 64, 65 of the said judgment,
which reads as under :-
“64. Section 110 of the Land Reforms Act
empowers, the State Government to withdraw the
exemption granted to any land referred to in
Sections 107 and 108. Section 107 itself has been
made “subject to” Section 110 of the Act. The
words “subject to” conveys the idea of a provision
yielding place to another provision or other
provisions to which it is made subject.
65. In Black's Law Dictionary, 5th Edn. At
p.1278, the expression “subject to” has been
defined as under :-
“Subject to.- Liable, subordinate, subservient,
inferior, obedient to; governed or effected by;
provided that; provided; answerable for.”
9. The learned counsel further contended and placed his reliance in
case law reported in (2012) 4 SCC 463 between Union of India
Vs. Brigadier P.S. Gill, and made a reference to Para-18 so as to
word subject to , which reads as under :-
“18. In K.R.C.S. Balakrishna Chetty & Sons &
Co. v. State of Madras this Court was interpreting
Section 5 of the Madras General Sales Tax Act,
1939 in which the words “subject to” were used by
the legislature. This Court held that the use of
words “subject to” had reference to effectuating the
intention of law and the correct meaning of the
expression was “conditional upon”. To the same
effect is the decision of this Court in South India
Corpn. (P) Ltd. v. Board of Revenue where this
Court held that the expression “subject to”
conveyed the idea of a provision yielding place to
another provisions or other provisions to which it is
made subject.
19. In State of Bihar v. Bal Mukund Sah this
Court once again reiterated that the words “subject
to the provisions of this Constitution” used in Article
309, necessarily means that if in the Constitution
there is any other provision specifically dealing with
the topics mentioned in the said Article 309, then
Article 309 will be subject to those provisions of the
Constitution.
20. In B.S. Vadera v. Union of India this Court
interpreted the words “subject to the provisions of
any Act”, appearing in the proviso of Article 309
and observed: (AIR p.124, para 24)
“24. It is also significant to note that the
proviso to Article 309, clearly lays down
that 'any rules so made shall have effect,
subject to the provisions of any such Act'.
The clear and unambiguous expressions,
used in the Constitution, must be given
their full and unrestricted meaning unless
hedged in, by any limitations. The rules,
which have to be “subject to the
provisions of the Constitution”, shall have
effect, 'subject to the provisions of any
such Act'. That is, if the appropriate
legislature has passed an Act, under
Article 309, the rules, framed under the
proviso, will have effect, subject to that
Act; but, in the absence of any Act, of the
appropriate legislature, on the matter, in
our opinion, the rules, made by the
President or by such person as he may
direct, are to have [full] effect, both
prospectively and retrospectively.”
10. Further the submission made that the proviso to a main section do
not travel beyond the provision to which is it is a proviso. Reliance
was placed in case law reported in AIR 2009 SC 187 between
Nagar Palika Nigam Vs. Krishi Upaj Mandi Samiti and it was
submitted that as a general rule, a proviso is added to an
enactment to qualify or create an exception to what is in
enactment and ordinarily, a proviso is not interpreted as stating a
general rule normally a proviso does not travel beyond the
provision to which it is a proviso to. It carves out an exception to
the main provision to which it has been enacted as a proviso to
and no other.
11. On the basis of the aforesaid legal averments it is submitted that
when the words are clear, unambiguous they are reasonably
susceptible to one meaning, Courts bound to give that meaning
irrespective consequences. It was further submitted that statute
must be read as a whole keeping in mind the mischief that was
intended to be remedied. The reliance was placed in case law
reported in (2001) 4 SCC 139 between Union of India Vs.
Elphinstone Spinning and Weaving Co. Ltd.
12. On the basis of the above submission, it is contended that Section
3 of the Act of 1967, the offices described in schedule are as a
whole in their entirety has been exempted to term them as office
of profit. Therefore, by application of Section- 3, CSIDC, which is
included in the schedule of the amendment can not be held a
office of profit and the petition is deserves to be dismissed at
threshold as no cause of action exists.
13. Per contra learned counsel for the petitioner submits that
amended Section 3 is enabling section and Section 3-A is a
addition to Section 3, which prescribed that office of Chairman and
Vice Chairman or President and Vice President or Director or
Member of any committee can only be said not to be holding office
of profit provided that holder of any such office is not in receipt of
any remuneration other than compensatory allowance. He
referred to the petition and would submit that averments have
been made in the petition that respondent has received
remuneration being the Chairman of CSIDC from period
commencing from the date of notification of election till the date of
rejection, therefore, at this stage, the petition cannot be thrown as
threshold since it is a matter of evidence. He further submits that if
it is proved that respondent being the chairman of CSIDC had
received the remuneration then in such case, he would be
disqualified by virtue of Article 191 of Constitution of India. It is
submitted that in view of the pleadings made in the petition, at this
stage, it can not be stated that the petition is liable to be dismissed
as no cause of action exists.
14. I have heard the learned counsel for the parties, perused the
pleadings.
15. The Act named Chhattisgarh Vidhan Mandal Sadasya Nirarhata
Nivaran Adhiniyam, 1967, M.P. Act of 1967 was adopted by the
Chhattisgarh, the Act was promulgated to declare certain office of
profit not to disqualify their holders for being chosen as or for
being the member of State Legislative Assembly. Initially the said
Act of M.P. was adopted by Chhattisgarh and the definition reads
as under :-
“Definition – In this Act, “Principal Act” means the
Chhattisgarh Vidhan Mandal Sadasya Nirarhata
Nivaran Adhiniyam, 1967 (No.16 of 1967)”
16. The said act was amended by Act No.30 of 2006, which reads as
under :-
“The Chhattisgarh Vidhan Mandal Sadasya
Nirarhata Nivaran (Sansodhan) Adhiniyam, 2006”
17. It is true that sub section 3-A of The Chhattisgarh Vidhan Mandal
Sadasya Nirarhata Nivaran (Sansodhan) Adhiniyam, 2006 begins
with the word “subject to” and reading of Section 3 purports that
certain offices specified in the schedule in so far as it is a office of
profit under the government would not disqualify their holders for
declaring as MLAs. In such schedule as many as 90 offices are
shown, wherein at schedule 33, Chhattisgarh State Industrial
Development Corporation finds place. Sub-section- 3-A, provides
that no person holding office of Chairman & Vice Chairman,
President and Vice President or Director or Member of any
Committee shall be disqualified at any time for being chosen as,
or for being, a Member of the Chhattisgarh Legislative Assembly
by reason only of the fact that he holds such office but qualifies
that the proviso that holder of any such offices is not in receipt of
remuneration other than compensatory allowance.
18. Therefore, reading of Section 3 and Section 3-A of the
Chhattisgarh Vidhan Mandal Sadasya Nirarhata Nivaran
(Sansodhan) Adhiniyam, 2006 together, will sub-serve the
meaning of “subject to”. If the submission of the learned counsel
for the respondent is accepted, then it would mean, the schedule
offices at the first instance by application of Section 3,
unconditionally exempted from the disqualification rule and further
Section 3-A would also give all person namely Chairman & Vice
Chairman or President & Vice President, or Director or Member
of non-schedule office provided the persons is not in receipt of any
remuneration other than the compensatory allowance. Therefore,
by applying rule of interpretation that if the language is used is
capable of bearing more than one construction, in selecting the
true meaning regard must be had to the consequences resulting
from adopting the alternative constructions. A construction that
results in hardship, serious inconvenience, injustice, absurdity or
anomaly or which leads to inconsistency or uncertainty and friction
in the system which the statute purports to regulate has to be
rejected and preference should be given to that construction which
avoids such results.
19. In case of U.C. Raman Vs. P.T.A. Rahim and Others, reported in
(2014) 8 SCC 934, the primary question which fell for
consideration was what is office of profit. The Supreme Court
have given categorical clarification on the office of profit and held
that “an office of profit” is an office which is capable of yielding a
profit or pecuniary gain. The word “profit” has always been treated
equivalent to or a substitute for the term “pecuniary gain”. The
very context, in which the word “profit” has been used after the
words “office of”, shows that not all the offices are disqualified but
only those which yield pecuniary gains as profit, other than mere
compensatory allowances, to the holder of the office.
20. The interpretation therefore, of Section 3-A in the opinion of this
Court would lead to that Section 3-A is further explanation of
Section 3. The application of Section 3 in the limited sphere and
not in the infinity in the sense that any person who is working in
the schedule office, can not be said to be holding office of profit by
virtue of application of Section 3 simplicitor. Therefore, in Section
3-A, the word 'subject to' is used to Section 3. If the Section 3-A is
read independently it will loss its efficacy for the word used in the
Section “subject to” which means subordinate or governed or
effected by. Therefore, Section 3 has to be read alongwith Section
3-A of the Amendment Act.
21. Reading of the petition, would show that the petitioner has made a
averments that respondent was holding office of Chairman of
CSIDC and was receiving remuneration, which means other than
the compensatory allowance. Therefore, at this stage, the
submission made by the learned counsel for the respondent can
not be accepted that no cause of action is made out. Reading of
averments in the election petition, discloses the cause of action
that the respondent was holding a position of chair person of
CSIDC and was deriving financial benefit from them. Therefore,
the averments made by the petitioner is a triable issue in a
election petition and the pleading if is taken as a whole clearly
shows that they constitute the material facts so as to go in far trial.
It is therefore, held that petition disclosed cause of action. The
petition can not be dismissed as threshold.
22. In a result the application under Order 7 Rule 11 is dismissed. The
respondent is given opportunity to file its written statement. List
the case on 30.06.2015 for written statement.
JUDGE