# KANTA KATHURIA v. MANAK CHAND SURANA

- **Citation:** [1970] 2 S.C.R. 835
- **Court:** Supreme Court of India
- **Decided:** 1969-10-16
- **Case number:** Civil Appeal No. 1869 of 1968
- **Bench:** M. Hidayatullah, S. M. Sikri, G. K. Mitter, A. N. Ray, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kanta-kathuria-v-manak-chand-surana-4953
- **Pages:** 19

## Headnote

Constitution of India, 1950, Art, 191(1)-0ffice of profit-Of]lce of
Special Government Pleader if such office.
Retrospective /egls/atlon~andidate held to be disqualified becauu
of holding office of profit-Stare Legls/aturt enacting that such ofjice not
an C>f!ice of profit and validating electlo,..-EOect of,
Repmentatlon of th1 Peopl1 Act (43 of 1951), s. 82(b)-'Any othtr
candldatl' aralnst whom corrupt practlc11 ar1 al/111d, lo b1 mad1 p111ty,
-Scop' o/.
Di1_Put11 between the State of Rajasthan and a company were referred
to arbitration and the Oovernment Advocate was appO!nted to represent
the State. Another advocate was appointed to 111111 the Government
Advocate but as the advocate was -not able to appear, the appellant was
appointed under 0.27, r., SB of the Civil Procedure Code, as Special
Oovernment Pleader.
The appellant then stood for election to the State
Legislative Assembly and
was
declared
elected.
The election
was
challenged and one of the grounds of challenge was that the appellant
held an office of profit within the meaning of Art. 191 of the Constitution.
The High Court set aside the election. While the appeal was pending in
this Court, Rajasthan Act 5 of 1969 wao passed declaring among othero
that the holder of the office of a Special Qovernment Pleader was
not
disqualified from being chosen or fo1- being a member of the State Legis·
lative As'lembly; and by s. 2(2), the Act was made retrospective remov·
ing the appellant's disqualification retrospectively.
On the questions : (I) Whether the appellant was holding an office
of profit and hence was disqualified; (2) Whether the disqualification was
removed by Act 5 of 1969; and (3) Whether the election petition was in
accordance with law, because, another candidate from
another
consti~
tuency, aga,in'st whom co'rrupt practices were aUeged, was not impleaded ,
as a party,
·
HELD: (I) (Per Sikri,
Ray and Jaganmohan Reddy, JJ.) : The
appellant was not holding an office of profit.
(a) Before a person becomes subject to the d;squalification in Art.
191(1) there must be an office wbich exists independently of his being
the holder of the office. The word 'office' means an office or employment
which was a subsisting, permanent, substantive position which had an existence independent of the person who filled it, which went on and was
filled in succession by successive holders; but if a person was engaged on
H
whatever terms to do the duties which were assigned to him, his employment to do those duties did not create an office to which those duties
were attached. Hence an office does not come into existence every time
a pleader is asked by the Government to appeal in a case on its behalf.
[847 F; 848 A-B; 850 G-H]
,
LSSup.CI/70-8
836
SUPREME COURT REPORTS
[1970] 2 S.C.R.
(b) A reading of s. 2(7) and 0.27, r. 8B of the Civil Procedure Code
A
shows, that even an advocate who is acting under the directions of the
Government Ple~der could be deemed to be
a
Government
Pleader.
Therefore, the notification of t.he appellant's name under r. 8B as Special
Government Pleader did not amount to the creation of an office.
[850
F·GJ
( c) Assuming that a Government Pleader is an agent of the GovernB
rnent for purposes of receiving processes against the Government, the fact
that processes couid be served on an advocate, would not mean that the
advocate was holding an office under his client.
[851 A-BJ
( J) It is not necessary to give a wider meaning to the word 'office'
because, if Parliament thinks that a legal practitioner who is being paid
fees in a case by the Government should not be qualified to stand for an
election as a momber of the Legislative Assembly, it can make that proviC
sion under Art. I9I(l)(c) o'f the Con3titution.
[851 C·D]
Great Western Railway Co. v. Bater, 8 Tax Cases 231 and McMillan
v. Guest (II. M. Inspector of Taxes) 24 Tax Cases 190, applied.
Mahadeo v. Shantibhoi & Ors. [I 969]2 S.C.R. 422 distinguished.
Sakhawat Ali v. Stale of Orissa, [1955] I S.C.R. 1004

## Text

_Characters 0–39,947 of 46,224. This is a partial read: ask again with offset=39947 for what follows._

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KANTA KATHURIA
v.
MANAK CHAND SURANA
October 16, 1969
835
(M. HIDAYATULLAH, C.J., S. M. SIKRI, G. K. MITTER, A. N. RAY,
AND P. JAGANMOHAN REDDY, JJ.j
Constitution of India, 1950, Art, 191(1)-0ffice of profit-Of]lce of
Special Government Pleader if such office.
Retrospective /egls/atlon~andidate held to be disqualified becauu
of holding office of profit-Stare Legls/aturt enacting that such ofjice not
an C>f!ice of profit and validating electlo,..-EOect of,
Repmentatlon of th1 Peopl1 Act (43 of 1951), s. 82(b)-'Any othtr
candldatl' aralnst whom corrupt practlc11 ar1 al/111d, lo b1 mad1 p111ty,
-Scop' o/.
Di1_Put11 between the State of Rajasthan and a company were referred
to arbitration and the Oovernment Advocate was appO!nted to represent
the State. Another advocate was appointed to 111111 the Government
Advocate but as the advocate was -not able to appear, the appellant was
appointed under 0.27, r., SB of the Civil Procedure Code, as Special
Oovernment Pleader.
The appellant then stood for election to the State
Legislative Assembly and
was
declared
elected.
The election
was
challenged and one of the grounds of challenge was that the appellant
held an office of profit within the meaning of Art. 191 of the Constitution.
The High Court set aside the election. While the appeal was pending in
this Court, Rajasthan Act 5 of 1969 wao passed declaring among othero
that the holder of the office of a Special Qovernment Pleader was
not
disqualified from being chosen or fo1- being a member of the State Legis·
lative As'lembly; and by s. 2(2), the Act was made retrospective remov·
ing the appellant's disqualification retrospectively.
On the questions : (I) Whether the appellant was holding an office
of profit and hence was disqualified; (2) Whether the disqualification was
removed by Act 5 of 1969; and (3) Whether the election petition was in
accordance with law, because, another candidate from
another
consti~
tuency, aga,in'st whom co'rrupt practices were aUeged, was not impleaded ,
as a party,
·
HELD: (I) (Per Sikri,
Ray and Jaganmohan Reddy, JJ.) : The
appellant was not holding an office of profit.
(a) Before a person becomes subject to the d;squalification in Art.
191(1) there must be an office wbich exists independently of his being
the holder of the office. The word 'office' means an office or employment
which was a subsisting, permanent, substantive position which had an existence independent of the person who filled it, which went on and was
filled in succession by successive holders; but if a person was engaged on
H
whatever terms to do the duties which were assigned to him, his employment to do those duties did not create an office to which those duties
were attached. Hence an office does not come into existence every time
a pleader is asked by the Government to appeal in a case on its behalf.
[847 F; 848 A-B; 850 G-H]
,
LSSup.CI/70-8
836
SUPREME COURT REPORTS
[1970] 2 S.C.R.
(b) A reading of s. 2(7) and 0.27, r. 8B of the Civil Procedure Code
A
shows, that even an advocate who is acting under the directions of the
Government Ple~der could be deemed to be
a
Government
Pleader.
Therefore, the notification of t.he appellant's name under r. 8B as Special
Government Pleader did not amount to the creation of an office.
[850
F·GJ
( c) Assuming that a Government Pleader is an agent of the GovernB
rnent for purposes of receiving processes against the Government, the fact
that processes couid be served on an advocate, would not mean that the
advocate was holding an office under his client.
[851 A-BJ
( J) It is not necessary to give a wider meaning to the word 'office'
because, if Parliament thinks that a legal practitioner who is being paid
fees in a case by the Government should not be qualified to stand for an
election as a momber of the Legislative Assembly, it can make that proviC
sion under Art. I9I(l)(c) o'f the Con3titution.
[851 C·D]
Great Western Railway Co. v. Bater, 8 Tax Cases 231 and McMillan
v. Guest (II. M. Inspector of Taxes) 24 Tax Cases 190, applied.
Mahadeo v. Shantibhoi & Ors. [I 969]2 S.C.R. 422 distinguished.
Sakhawat Ali v. Stale of Orissa, [1955] I S.C.R. 1004, referred to.
D
(Per Hidayatullah, C.J. and Mitter, J. dissenting) : The High Court
was right in holding tha the appellant held an office of profit.
[842 CJ
It was not a case of the appellant merely being briefed as a lawye<
and given the Government litigation.
On the other band an office, that
of Special Government Pleader was created, and since the office of a
E
G<>vernment Pleader is an office of profit, the office of Special Govern·
ment Pleader will equally be an office of profit.
It was an office which
cou1rl be successively held. it was inaependent of its holder, it was a
substantive position and a() permanent as other supernumerary offices.
[841 FG; 842BJ
Mnhadeo v. Shantibhai & Ors. [1969]2 S.C.R. 422 and The Statesman
(P.) Ltd. v. H. R. Deb & Ors. [1968]3 S.C.R. 614 applied.
F
McMillan v. Guest, [1942J A.C. 561 and Great fVestern Railll'ay Co.
v. Bc.te·, 8 Tax Cases 231. 235, referred to.
12) (By Full Court) : The Act 5 of 1969 has removed the disqualifi·
cation retrospectively.
Per HidayatuJiah, CJ. and Mitter, J. : It is well recognised that Parlia~
ment and th.:: Leg~s!ature of a S~ate can make their laws operate retrosp!:ctively sub;ect to limil~tions, if any, in the Constitution. Any law that
can be made prospectively may be made with retrospective operation ex~
cept those which cannot op~rate retroactively.
In Art. 191 itself, power
is fesenred to the State Legislature to make a declaration that the holder
of an office shaJI not be '-UsquaJified and there is nothing in the words of
the Article to indicate that such a declaration cannot be made with retrospecth·e effect
The:.afore. 'vhatever mav be the proprietv of such JegisJ '.ltio1. re2ard b~Jn~ had to le~isl.'.ltive pra.crice and the absence of a clear
p•ohibiti'"'n. expri>-s;:; or implif"d, the Act must be declared to have retrospective effect.
[843 B-C, D-FJ
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KANTA v. MANAK CHAND (Hidayatullah, C.J.)
837
Per Sikri, Ray and Jaganmohan Reddy, JJ. : Parliament ar.d the State
legislatures can legislate retrospectively subject to the provisions of the
Constitution.
No limitation on the po\vers of the Legislature tO make a
declaration validating an election, effective_ from an earlier date, is ex~
pressly stated nor could it be implied in Art. 191(1). ]851 F-G; 852
D-E]
The apprehension that it may not be a healthy ptactice and might be
abused is no ground for limiting the powers of the State Legislature. [852
El
The impugned Act does not amend or alter the Representation of the
People Act, 1951, in any respect whatsoever.
By enacting the impugned
Act, the disqualification if any, which existed in the 1951 Act has been
removed, but that ii what the State Legislature is entitled to do under
Art. 191 so long as it does not touch the wording of the 1951 Act.
[852
F-G]
(3) (By Full Court) : The words 'any other candidate' in s. 82(b)
of the Representation 0f the People Act, 1951, who should be impleaded,
refers to a candidate in the election for the constituency ¥.:hich
is the
subject matter of the petition, and not to a candidate from another consti·
tuency.
[843 G-H; 853 D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1869 of
1968.
Appeal under s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated August 12, 1968
of the Rajasthan High Court in Election Petition No. 16 of 1967.
S. V. Gupte,
M. M. Tiwari.
H. K. Puri.
Bishamber Lal,
M. K. Garg, K. K. Jain and S. P. Vii, for the appellant.
M. C. Chagla and S. M. Jain, for respondent.
Niren De,
Attorney-General,
G. C. Ka</iwal,
AdvocateGeneral. Rajasthan and K. B. Mehta, for ;he State of Rajasthan.
The Judgment of S. M. SIKRI, A. N. RAY and P. JAG"-N·
.. MOHAN REDDY, JJ.was delivered· by S!KRI, J., M. HIDAYATULLAH,
C.J. and G. :K. MITTER, J. gave a separate opinion.
· Hidayatullah, C.J. We regret our inability to agree that the
appellant Mrs. Kanta Kathuda was not holding an office of
profit under the Government of Rajasthan when she stood as a
candidate for election to the Rajasthan Legislative Assembly
from the Kolayat Constituency.
Mrs. Kathuria is an advocate practising at Bikaner.
She
contested the above election held on February 18, 1967 against
seven other candidates.
She was declared elected on February
22, 1967.
One of the defeated
candidates filed the
election
petition, from which this appeal arises, questioning her election on
several grounds.
We are concerned only with one of
them,
namely, that on the date of her nomination and election she wa~
disqualified to be chosen to fill the seat as she held the office of
Special Government Pleader, which was an office of profit under
the Government of Rajasthan.
838
SUPREME COURT REPORTS
[ 1970] 2 S.C.R.
Article 191 of the Constitution, which is relevant in this conA
nee ti on, reads :
"191 : Disqualifications for membership :
( 1) A person shall be disqualified for being chosen
as, and for being, a member of the Legislative Assembly or Legislative Council of a StateB
(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office decl3red
by the Legislature of the State by law not to disqualify
its holder;
"
c
Mrs. Kathuria was appointed by the Government of Rajasthan as
Special Government Pleader to conduct arbitration cases between
the Government and Modern Construction Company arising out
of the construction of ~ana Pratap Sagar Dam and J awahar Sagar
Dam.
The order was passed on June 26, 1965 (Ex. 1). The
order reads :
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"ORDER
Sub : Construction of R.P.S. Main Dam-Contract
of M/s. M.C.C. (Pvt.) Ltd., Arbitration in
disputes arising out of.
In pursuance of Rule 8 (b) of Order XXVII of the
First Schedule to the Code of Civil Procedure, 1908
read with clause (7) of Section 2 of the Code, the
Governor is pleased to appoint Smt. Kanta Y.:uthuria,
Advocate Bikaner as Special Government Header to
conduct the above noted case on behalf of the State of
Rajasthan :iJongwith Shri Murali Manohar Vyas, Government Advocate, J odhpur.
By order,
Sd. D. S. Acharya
26-6-65
(D. S. Acharya)
Joint Legal Remembrancer''.
By subsequent orders, which we do not consider necessary to
quote here, her remuneration was fixed at Rs. 150/· per day for
each date of hearing, Rs. 75/ • per day for days of travel and
dates on which the case was adjourned, and days spent on preparation of the case. Mrs. Kathuria began appearing in the case
from March 27, 1965.
It is an admitted fact that she was paid
for work between that date and November 28, 1966 a sum of
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KANTA v. MANAK CHAND (Hidayatullah, C.J.)
839
Rs. 26,325/- and again from February 26, 1967 to March 2,
1967 a sum of Rs. 900/- and that the arbitration proceedings were
continuing on the date of the filing of the election petition.
Therefore for over two years she was employed as Special Government Pleader and was still employed when her election took
place.
It is also admitted by her that prior to this employment,
she had never paid income-tax in excess of Rs. 1200/-
in any
year.
On these facts, the High Court held that Mrs. Kathuria was
disqualified.
Before this appeal came on for hearing before us,
the Governor of Rajasthan by Ordinance 3/68 (December 24,
1968) removed the disqualification retrospectively.
The Ordinance was followed by Act V of 1968 (April 4, 1969). The
operative portions of the Act which are the same as of the Ordinance read:
"Prevention of disqualification of membership of the
State Legislative Assembly-
(!) It is hereby declared that none of the following
offices, in so far as it is an office of profit under the
State Government, shall disqualify or shall be deemed
ever to have disqualified the holder thereof from being
chosen as, or for being, a member of the Rajasthan
Legislative Assembly, namely :-
(a) the office· of a Government Pleader or Special
Government Pleader or Advocate for the Government,
appointed specially to conduct any particular suit, case
or other proceeding by or against the State Government,
before any court, tribunal, arbitrator or other authority;
(b) the office of a Government Pleader, a Special
Government Pleader or Advocate for the State Government, appointed specially to assist the Advocate General, Government Advocate or Pleader, or Special Government Pleader, or Advocate for Government, in any
particular suit, case or other proceeding by or against
the State Government before any court, tribunal, arbitrator or other authority;
( c) the office of a panel lawyer if the holder of such
office is not entitled to any retainer or salary, by whatever named called;
(4) Jhe office of a Pradhan or Pramukh a~ defined
in the Rajasthan Panchayat Samitis and Zila Parishads
Act, 1959 (Rajasthan Act 37 of 1959).
840
SUPREME COURT REPORTS
(1970] 2 S.C.R.
(2) Notwithstanding any judgment or order of any
Court or Tribunal, the aforesaid offices shall not disqualify or shall be deemed never to have disqualified
the holders thereof for being chosen as, or for being,
members of the Rajasthan Legislative Assembly as if this
Act had been in force on the date the holder of such
office filed his nomination paper for being chosen as a
member of the Rajasthan Legislative Assembly."
The Ordinance and the Act seem to have been passed to nullify
the decision in this case.
One of the contentions of the answering respondent is that the Legislature of Rajasthan could not
remove the disqualification retrospectively since the Constitution
contemplates disqualifications existing at certain time in accordance with the law existing at that time.
We shall deal with this
matter later.
When the Government of Rajasthan appointed Mrs. Kathuria
it had two courses opeti to it. ·Firstly, Government could have
engaged Mrs. Kathuria to conduct the particular arbitration case
or cases, or even to assist the Government Advocate in those
cases.
Alternatively Government could create a special office
of Special Government Pleader and appoint Mrs. Kathuria or any
other lawyer to that office.
It is obvious tl)at Government did
not choose the first course.
There were as many as 26 arbitration cases then pending and more were likely to arise.
Government thought that they should be conducted by the Government
Advocate but as the work involved was too much as additional
office had to be created and given to a lawyer.
An office was
therefore, created and given to Mrs. Kathuria.
In a recent case (Civil Appeal No. 1832 of 1967-M'lhadeo
v.Shantibhai & Others-decided on October 15, 1968), we held
th at a panel lawyer engaged to watch cases on behalf of the Central & Western Railway Administrations, held an office of profit.
The duty of the panel lawyer was to watch cases coming up for
hearing against the Railways at Ujjain and to appear in court and
ask for an adjournment.
The lawyer was paid Rs. 5/- for each
such adjournment if he was not entrusted with the case later. In
dealing with this matter reliance was placed by us on the meaning to the word 'office' given in the Statesman (P) Ltd. v. H. R.
Deb & Ors. ( 1 ) In the Statesman case, this Court approved of the
observations of Lord Wright in Mcmillan v. Guest<') to the following effect :
''The word 'office is of indefinite content.
Its various meanings cover four columns of the New English
{I) [1968] J S.C.R. 614.
(2) [1942] A.C. 561.
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KANTA v. MANAK CHAND (Hidayatullah, C.J.)
841
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Dictionary, but I take as the most relevant for purpose
of this case 'the following :
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'A position or place to which certain duties are
attached, especially one of a more or less public character."
Our brother Sikri has also relied upon the same case and has
referred to the observations of Lord Atkin where he approved of
the observations of Rowlatt, J. in Great Western Railway Co. v.
Bater('). Justice Rowlati said thus :
"Now it is argued, and to my mind argued most
forcibly, that that shows that what those who use the
language of the Act of 1842 meant, when they spoke of
an office or employment which was a subsisting permanent, substantive position, which had an existence independent from the person who filled it, which went on
and was filled in succession by successive holders, and
if you merely had any man who was engaged on whatever terms, to do duties which were assigned to him,
his employment to do those duties did not create ail office
to which those duties were attached.
He hereby was
employed to do certain things and that is an end of it,
and if there was no office or employment existing in the
case as a thing, the so-called office or employment was
merely an aggregate of the activities of the particular
man for the time being''.
We say with profound respect for this most succint exposition,
that we entirely agree.
The distinction that we are making is
precisely the distinction which has been brought out by Rowlatt, J.
If Mrs. Kathuria had been briefed as a lawyer and given all the
Government litigation in Rajasthan to conduct on behalf of the
Government she could not have been described as holding an
office of profit., The aggregate of her work and her activities
could not have created an office nor could she have been described .
as anything but an advocate.
What happened here was different. '
An office was created which was that of a Special Government
Pleader. Now it is admitted that the office of a Government
Pleader is an office properly so-called.
Therefore an office going
under the names 'Additional Government Pleader', 'Assistant
Government Pleader', 'Special Government Pleader' will equally
be an office properly so-called.
It matters not that Mrs. Kathuria
was to conduct a group of arbitration cases and against the same
party.
For that matter Government is always at liberty to create
offices for special duties. They might have even created another
office of Special Government Pleader for Land Acquisition cases
cri· 8 Tax Cases 231, 235.
842
SUPREME COURT REPORTS
[1970] 2 s.c.R.
or a group of cases or Railway cases or a group of cases arising
out of a particular accident and so on and so forth.
What matters
is that there was an office created apart from Mrs. Kathuria.
It is in evidence that it was first held by Mr. Maneklal Mathur
another advocate.
It is likely that if Mrs. Kathuria had declined
some one else would have been found.
Therefore, there was an
office which could be successively held; it was independent of
Mrs. Kathuria who filled it, it was a substantive position and as
permanent as supernumerary offices are.
Every one of the tests
laid down by Rowlatt, J. is found here.
We would, therefore, hold that the High Court was right
in its conclusion that Mrs, Kathuria held an office. Since there is
:q9 dispute that it was for profit and under the State, the election
of Mrs. Kathuria must be held to be void as she was disqualified
to stand for the election.
This brings us to the next question.
Does the Act of the
R'ajasthan Legislature remove the disqualification retrospectively.
in other words; can such a law be passed by the Legislature after
the election is over ?
The first question is whether the new law is remedial or declaratory. If it was declaratory then it would be retrospective; if
remedial only, prospective unless legally made retrospective.
That it has been made expressly retrospective lends support to its
being remedial.
Its retrospective operation depends on i•' being
effective to remove a disability existing on the date of nomination
of a candidate or his election.
Of course, there is no difficulty
in holding the law to be perftctly valid in its prospective operation.
The only dispt:te is in regard to its retrospective operaticn.
Our brother Sikri has cited an instance of the British Parliament from May's well-known treatise when the Coatbridge and
Springburn Elections (Validation) Bill was introduced to validate
the irregular elections. Halsbury's Laws of England (3rd Edn. Vol.
14 p. 5) has the following note :
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"If a person is elected when disqualified, his disG
qualification for being a member of Parliament may be
remedied or he may be protected from any ~nal consequences by an Act of Validation or indemnity."
The position of the British Parliament is somewhat different
from that of the Indian Parliament and the Legislatures of the
H
States.
British Parliament enjoys plenary sovereignty and the
Acts of the British Parliament no court can question.
In India
the sovereignty of the Indian Parliament and the Legislatures is
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KANTA v. MANAK CHAND (Hidaya1u1lah, C.J.)
843
often curtailed and the question, therefore, is whether it is in
fact so curtailed.
· At the hearing our attention was drawn to a number of such
Acts passed by our Parliament and the Legislatures of the States.
It seems that there is a settled legislative practice to make validation laws. It is also well-recognised that Parliament and the
Legislatures of the States can make their laws operate retrospectively.
Any law that can be made prospectively may be made
with retrospective operation except that certain kinds of laws cannot operate retroactively.
This is not one of them.
This position being firmly grounded \ve have to look for limitations, if any, in the Constitution.
Article 191 (which has
been quoted earlier) itself recognises the power of·the Legislature
of the State to declare by law that the holder of an office shall not
be disqualified for being chosen as a membet.
The Article says
that a person shall be disqualified if he holds an office of profit
under the Government of India or the Government of any State
unless that office is declared by the Legislature not to disqualify
the holder. Power is thus reserved to the Legislature of the State
to make the declaration.
There is nothing in the words of the
article to indicate that this· declaration cannot be made with retrospective effect.
It is true that it gives an advantage to those who
stand when the disqualification was not so removed as against
those who may have kept themselves back because the disability
was not removed.
That might raise questions of the propriety
of such retrospective legislation but not of the capacity to make
such laws.
Regard being had to the legislative practice in this
country and in the, absence of a clear prohibition either express
or implied we are satisfied that the Act cannot be declared ineffective in its retrospective operation.
The result, therefore, is that while we hold that Mrs. Kathuria
held an office of profit under the State Government, we hold further that this disqualification stood removed by the retrospective
operation of . the Act under discussion.
As regards the supplementary point that the petition was bad
for non-joinder of Mr. Mathura Das Mathur against whom corrupt practices were alleged in the petition, we are of opinion that
s. 82 of the ~resentation of People Act, 19Sl,. in its clause (b)
speaks of c
1dates at the same election and not persons who
~
candidatea at other elections. As Mr. Mathur was a candidate
from another constituency' he need no~ have been made a party
here.
For the above reasons we would allow the appeal but make
no order about costs since the election of the appellant is saved
844
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[1970]2 S.C.R.
by a retrospective law passed after the de9ision of the High Court.
Sikri, J.
This appeal arises out of an election petition filed
tinder section 80 of the Representation of the People Act, 1951,
hereinafter referred to as the 1951 Act, by Shri Manik Chand
Surana, a defeated candidate, challenging the election of
Smt. Kanta Kathuria, before the High Court.
The High Court
(Jagat Narayan, J.) allowed the election petition on the ground
that the appellant held an office of profit within ·the meaning of
Art. 19 I of the Constitution on the day on which she filed the
nomination paper and was thus disqualified for being chosen as
a member of the Rajasthan Legislative Assembly. This judgment
was given on August 12, 1968.
An appeal was filed in this
Court on August 20, 1968. During the pendency of the appeal,
the Rajasthan Legislative Asse:nbly Members (Prevention of
Disqualification) Act, 1969 (Act No. 5 of 1969) (hereinafter
referred to as the impugned Act), was passed, which ~eceived
the assent of the Governor on April 4, 1969.
The impugned Act inter alia provides :
"2. Prevention of disqualification of membership
of the State Legislative Assembly.
(i) It is hereby
declared that none of the following offices, in so far as
it is an. office of profit under the State Government
shall disqualify or shall be deemed ever to have disqualified the holder thereof from being chosen as, or
for being, a ·member of the Rajasthan
Legislati~e
Assembly, namely :-
.
(a) the office of a Government Pleader or Special
Government Pfoader or Advocate for the Government,
appointed specially to conduct any particular suit, case
or other pl'!JCeeding by or against the State Government, before any court, tribunal, arbitrator or other
authority;
(b) the office of a Government Pleader, a Special
Government Pleader or Advocate for the State Government appointed specially to assist the Advocate
General, Government Advocate or Pleader, or Special
Government Pleader, or Advocate for Government in
any particular suit, case or other proceeding by or
against the State Government before any court, tribunal.
arbitrator or other authority;
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KANTA v. MANAK CHAND (Hidayatullah, C.J.)
845'
(2) Notwithstanding any judgment or order of any
Court or Tribunal, the aforesaid offices shall not disqualify or shall be deemed never to have disqualified
the holders thereof for being chosen as, or for being,
rrembers of the Rajasthan Legislative Ass=mbly as if
this Act had been in force on the date the holder of
such otlice filed his nomination paper for being chosen
as a member of the Rajasthan Legislative Assembly."
We may note another fact on which an argu_ment is sought to·
be made by the learned Counsel for the appellant.
It was
alleged in the election petition that the appellant was a close
friend of one Shri Mathura Dass Mathur who was a Minister in
the State of Rajasthan at the time of the election, who contested
elections as a candidate in a constituency different from that of
ihe appellant.
Shri Mathur visited the constituency during the
election very frequently and during these visits the appellant
accompanied by Shri Mathur visited several places in the Consti- .
turn.:y where Shri Mathur in the presence of the appellant offered
and promised to get several works done in those areas if the
electors were to cast votes for the appellant at the said election.
Jn spite of these allegations of corrupt practice, Shri Mathur was
not made a party to the petition.
The learned Counsel for the appellant, Mr. Gupte, contends
that the High Court erred in holding that the appellant held an
office of profit within the meaning of Art. 191 of the Cunstitution.
Jn the alternative he contends that the Rajasthan Act No. 5 of
1969 is retrospective and •he disqualification if it existed, cannot
now be deemed to have existed because of this Act.
The last
point raised by him is that the petition was not in accordance
with law as the respondent, Shri Surana, had not impleaded
Shri Mathur as respondent to the petition.
The facts relevant for appreciating the first point are these :-
The appellant was an advocgte at all material times. Disputes
arose between M/s. Modern Construction· Company Private Ltd.
and the State of Rajasthan in connection with some works relating to the Rana Pratao Sagar Dam. These disoutes were referred
to arbitration. Shri Murli Marohar Vyas, Government Advocate
in the High Court of Rajasthan at Jodhpur was appointed by the
Government to represent it in these arbitration proceedings. The
Government Advocate wanted one more advocate to assist him.
On his 'suggestion, Shri Manak Lal Mathur advoc.ate was
appointed to assist the Government Advocate.
As there was a
possibility that Shri Manak Lal Mathur may not be available to
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'help the Government Advocate, the appellant was, on the suggestion of the Government Advocate, appointed to assist him in the
absence of Shri Mathur.
This proposal was approved by the
Rajasthan Law Minister on March 30, 1965 and on June 26,
1965, and the Government issued the following order :-
"Sub :-Construction of R.P .S. Main Dam Contract of M/s M.C.C. (JVT) Ltd. Arbitration in dispute arising out ofIn pursuance of rule 8 (b) of ·)rder XXVII of the
First Schedule to the Code of Civil Procedure, 1908
read with clause (7) of section 2 of the Code, the
Governor is P.leased to appoint Smt.
Kanta Kathuria
Advocate, B1kaner, as Special Government Pleader to
conduct the above noted case on behalf of the State ol
Rajasthan along with Shrl Manohar Vyas,
Govern·
ment Advocate Jodhpur."
Later, on Sept. 3, 1965, the Government laid down the fees
·payable to the appellant. It was stated in the order dated Sept. 3,
1965 that" Smt. Kanta Kathuria who has been appointed to
. assist the Government advocate in the absence of Shri Mathur
will get her share of fee in proportion to the assistance rendered
by her out of the daily fee of Rs. 150/- to Shri Manak Lal
Mathur."
As Shri Manak Lal Mathur was not able to appear in the
case, on Nov. 18, 1965 the Governor sanctioned the payment of
·daily fee of Rs. 150/- to the appellant instead of Shri Manak Lal
Mathur, for days of actual hearing. The appellant appeared from
March 27, 1965 to November 28, 1966, but she did not appear
from Nov. 29, 1966 t<;> Feb. 25, 1967. She again started appearing in the case from Febraury 26, 1967. The appellant claimed
·travelling allowance, incidental charges and daily alolwance, but
the Government decided that the appellant was not entitled to
:any travelling allowance or daily allowance in addition to the
fees.
By a notification, the Election Commission of India called
upon the electors oC the Kolayat Assembly Constituency of the
Rajasthan Legislative Assembly to elect a meinber to the Rajasthan Legislative Assembly and invited nomination papers for the
elections to be held on February 18, 1967. The appellant was
declared,duly elect~ by the Returning officer on February 22,
1967;ihe appellant having secured q926 and the respondent
having se~ured 8311 votes.
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KANTA v. MANAK CHAND (Hidayatul/ah, C.J.)
847"
The relevant portion of Art. 191 reads as follows :-
191. ( 1 ) A person shall be disqualified for being
chosen as, and for being, a member of the Legislative
Assemblv or Legislative Council of . a State-
(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared
by the Legislature of the Seate by law not to disqualify
its holder;
( e) if he is so disqualified by or under any law
made by Parliament.
(2) For the purposes of this article, a person shall
not be deemed to hold an office of profit under the
Government of India or the Government of any State
specified in the First Schedule by reason only that he
is a Minister either for the Union or for such Stat~.
It seems to us that the High Court erred in holding that the
appellant held an office. There is no doubt that if her engagement as Special Government Pleader amounted to appointment
to an office, it would be an office of profit under the State Government of Rajasthan.
The word 'office' has various meanings
and we have to see which. is the appropriate meaning to be
ascribed to this word in the context. It seems to us that the words
'its holder' occurring in Art. 191 (l)(a), indicate that there must
be an office which exists independently of the holder of the office.
Further, the very fact that the Legislature of the State has been
authorised by Art. 191 to declare an office of profit not to dis·
qualify its holder, contemplates existence of an office apart from
its holder.
In other words, the Legislature of a State is empowered to declare that an office of profit of a particular descript~on or name would not disqualify its holder and not that a parucular holder of an office of profit wnuld not be disqualified.
G
I, seems to us that in the context, Justice Rowlatt's definition
in Great Western Railway Company v. Bater(') is the appro·
priate meaning to be applied to the word 'office' in Art. 191 of
.-
the Constitution.
Justice Rowlatt observed at page 235 :-
H
"Now it is argued, and to my mind argued most
forcibly, that that shows that what those who use the
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SUPREME COURT REPORTS
[1970] 2 S.C.R.
language of the Act of 1842 meant, when they spoke
of an office or an employment, was an office or employment which was a subsisting, permanent, substan-
.tive position, which had an existence independent from
the person who filled it, which went on and was filled
in succession by successive holders; and if you merely
had a man who was engaged on whatever terms, to do
.duties which were assigned to him, his employment to
.do those duties did not create an office to whkh those
duties were attached.
He merely was employed to do
certain things and that is an end of it; and if there was
no office or employment existing 111 the case as a thing,
'.he so-called office or employment was merely an aggregate of the activities of the particular man for the tin1e
being. And I think myself that that is sound. I am not
going to decide that, because I think I ought not to in
the state of the authorities, but my own view is that the
people in 1842 who used this language meant by an
office a substantive thing that existed apart from the
holder."
This definition was approved by Lord Atkinson at page 246.
This language was accepted as generally sufficient by Lord
Atkin and Lord Wright in-McMillan v. Guest (H.M. Inspector
.of Tqxes)('). Lord Atkin observed at page 201 :-
"There is no statutory definition of 'office'.
Without adopting the sentence as a complete definition, one
may treat the following expression of Rowlatt, J., in
Great Western Railway Co. v. Bater, [1920] 3 K.B., at
page 274, adopted by Lord Atkinson in that case,
[1922] 2 A.C., at page 15, as a generally sufficient statement of the meaning of the word : an office or employment which was a subsbting, permanent, substantive position, which had an existence independent of the
person who filled it, which went on and was filled in
succession by successive holders."
Lord Wright at page 202 observed :
"The word 'office' is of indefinite content; its various
meanings cover four columns of the New English Dictionary, but I take as the most relevant. for purposes of
this case the following: A position or place to w!1ic~1
CC'r~ain Cu!ies tire :i!tached. cspcciaJly <}ne of a n1on: (1r
less public character.
This, I think, roughly rorre.;-
ponds with stlch approaches to a definition as :iave
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KANTA V. MANAK CHAND (Hidayatullah, C.J.)
849
been attempted in the authorities, in particular Great
Western Railway Co. v. Bater, [1922] 2 A.C. 1 ..... .
where the legal construction of these words, which had
been in Schedule E since 1803 ( 43 Geo. III, c. 122,
Section 175), was discussed."
In Mahadeo v. Shantibhai & Ors.(' )-Mitter J. speaking for
this Court, quoted with approval the definition of Lord Wright.
In our view there is no essential difference between the definitions
given by Lord Wright and Lord Atkin.
The Court of Appeal
in the case of Mitchell v. Ross(2 ), thought that both the noble
and learned Lords had accepted the language employed by
Rowlatt J. as generally sufficient.
In Mahadeo's case\ 1 ), this
Court was dealing with a panel of lawyers maintained by the Railway Administration and the lawyers were expected to watch cases.
Clause ( 13) of the terms in that case read as follows :-
"You will be expected to watch cases coming up for
hearing against this Railway in the various courts at
UJB and give timely intimation of the same to this
office. If no instructions regarding any particular case
are received by you, you will be expected to appear in
the court and obtain an adjournment to save the
ex-parte proceedings against this Railway in the court.
You will be paid Rs. 5/- for every such adjournment
if you are not entrusted with the conduct of the suit
later on."
That case in no way militates against the view which we have
taken in this case. That case is more like the case of a standing
Counsel ilisqualified by the House of Commons. It is stated in
Rogers [on Elections Vol. 11]-at page 10 :-
"However, in the Cambridge case (121 Journ.
220), in 1866, the return of Mr. Forsyth was a•oided
on the ground that be held a new office of profit under
the Crown, within the 24th section. In the scheme submitted to and approved by Her Majesty in Council was
inserted the office of standing counsel with a certain
yearly payment (in the scheme ca!Ied 'salary') affixed
to it, which Mr. Forsyth received, in addition to the
usual fees of counsel.
The Committee avoided the
return . .. "
It is urged that there can be no doubt that the Government
Pleader holds· an office and there is no reason why a person who
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assists him in the case should also not be treated as a holder of
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(1) [1969] 2 S.C.R. 422.
(2) {19601 2 All E.R. 238 at 2"l-226.
8 50
SUPREME COURT REPORTS
[1970] 2 S.C.R.
office, specially as the notification appointed the appellant as
A
Special Government Pleader. We see no force in these contentions.
Rule 8B. of Order 27, C.P. Code reads as follows :-
"In this Order unless otherwise expressly provided
'Government' and 'Government leader' mean respectively-
(a) in relation to any suit by or against the Central Government or against a public officer in the
service of that Government, the Central Government
and such pleader as that Government may appoint
whether generally or specially for the purposes of this
Order;
( c) in relation to any suit by, or against a State
Government or against a public officer in the service
of a State, the State Government and the Government
pleader, as defined in Clause 7 of Section 2 · or such
other pleader as the State Government may appoint,
whether generally or specially, for the purposes of this
Order."
This rule defines who shall be deemed to be c. Government Pleader
for the purpose of the Order.
'Government Pleader' is defined
in Sec. 2 of Clause (7) C.P. Code thus-
"(7) 'Government Pleader' includes
any
officer
appointed by the State Government to perform all or
any of the functions expressly imposeQ by this Code on
the Government Pleader and also any pleader acting
under the directions of the Government Pleader :"
It follows from reading Order 27 rule 8B and Clause (7) of
Sec. 2 C.P. Code together that even if a pleader who is acting
under the directions of the Government Pleader would be deemed
to be a Government ~l.eader for the purpose of Order 27. Therefore, no particular significance can be attached to the notification made under rule SB appointing the appellant as Special
Government Pleader. We cannot visualise an office coming into
existence, every time a pleader is as)ced by the Government to
appear in a case on its behalf. The notification of his name under
rule SB, does not amount to the creation of an 'office'.
Some
reliance was also placed on rule 4 of Order 27 C.P. Code, which
provides that :
"The Government Pleader in any Court shall be the
agent of the Government for the purpose of receiving
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KAN'I:A v. MANAK CHAND (Sikri, /.)
851
processes against the Government issued by such
Court."
This rule would not apply to the facts of this case because the
appellant was appointed only to assist the Government Advocate
in a particular case.