# MAULANA ABDUL SHAKUR v. RIKHAB CHAND AND ANOTHER

- **Citation:** [1958] 1 S.C.R. 387
- **Court:** Supreme Court of India
- **Decided:** 1957-01-31
- **Case number:** Civil Appeal No. 335 of 1957
- **Bench:** S.R. Das C. J, Venkatarama Ayyar, B.P. Sinha, J. L . Kapur, A.K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maulana-abdul-shakur-v-rikhab-chand-and-another-1468
- **Pages:** 10

## Headnote

Electio11
Dispute,-Disqualification for Election-"Office of
Profit unier Government"-Manager of Durgah Khwaja Saheb
School, if holds office of profit under Govemment-Durgah Klnmja
Saheb Act, 1955 (XXXVI of 1955), ss. 4 (1), 5, 6, 9, 11, 20-
·Constitution of India, Art. 102(1) (a).
The appellant was the manager of a school run by a
·Committee of mangcment fonned under the provisions of the
.Ourgah Khwaja Saheb Act, 1955. He was appointed by the
.administrator of Durgah Kilwaja Saheb
and was
being paid
Rs. 100 per month. He was elected to the Council of States by
the Electoral College of Ajmer and the unsuccessful candidate,
the first respondent, challenged the election on the ground that
the appellant was holding an office of profit under the Government
:at the time of the election an:d was, therefore, disqualified to be
.chosen as a member of Parliament in view of Art.
102 (I) (a) of
the Constitution of India.
It was contended for the first
respondent i11ter ulia that as under ss. 5 and 9 of the Act the
Government of India had the power of appointment and removal
of members of the committee of management as also the power to
appoint the administrator in consultation with the committee,
the appellant was under the control and supervision
of the
Government
and that therefore he was holding
an office
of profit under the Government of India. But the appellant was
neither appointed.by the Government of India nor removable by
it nor was his salary fixed by the Government and it was paid aut
of the funds of the Durgah Endowment.
Held, that the appellant was holding his appointment under
:a committee which was a statutory body and could not be
.considered as the holder of an office of profit under the
Govern~
ment of India within the meaning of Art. 102 (I) (a) of the
Constitution of India. Accordingly, the election of the appellant
was valid.
Shivnandan Sharma v. The Punjab National Bank Ltd., (1955)
J S.C.R. 1427, distinguished.
CIVIL
APPELLATE
JURISDICTION:
Civil Appeal
No. 335 of 1957.
Appeal by special leave from the judgment and
order dated
January 31, 1957,
of the Election
fribunal, Ajmer, in Election Petition No. 2 of 1956.
50
1957
September 12
1957
Maulana Abdul
Shakur
v.
Rikhabchand and
Another
Kapur J.
388
SUPREME COURT REPORTS
[19581
Mukat Behari Lal Bhargava and Naunit Lal, for the
appellant.
Respondent No. 1. in person.
1957. September 12. The following Judgment of the
Court was delivered by
KAPUR, J.-This is an appeal frQm the order of the
Election Tribunal dated January
31, 1957, setting
aside the election of the appellant,
Maulana Abdul
Shakur, who was elected to the Council of States by
the Electoral College of Ajmer which consisted of 30
members constituting the State Legislature of Ajmer.
He received 19 votes as against 7 polled in favour of
the other candidate who is respondent No. l in this
appeal. The total number of valid votes polled was
26 and there were 3 invalid votes. The result of the
election was published in the Official Gazette on March
31, 1957, declaring the election of the appellant. The
unsuccessful candidate, the present first respondent,
filed his election petition on May 2, 1956. It is not
necessary to set out all the allegations in the petition
because the main controversy between the parties is
whether the successful candidate, the present appellant.
held an "office of profit" under the Government. The
impugned election was held
on March 22, 1956.
By a notification issued on February 17, 1956, the
nominations for candidature were to be filed between
February 28, 1956, and March 1, 1956. The date for
scrutiny was March 5, 1956, and for the polling March
22, 1956. The appellant filed two nomination paper5
on February 28, 1956, and a third one on March 1,
1956. The respondent Rikhab Chand Jain also filed
his nomination papers on March 1, 1956. On March
1956, the respondent Rikhab Chand Jain raised certain
objections to the validity of the appellant's nomination, the main ground being that the ap

## Text

S.C.R.
SUPREME COURT REPORTS
387
MAULANA ABDUL
SHAKUR
v.
RIKHAB CHAND AND ANOTHER
(S.R. DAS C. J., VENKATARAMA AYYAR,
B.P. SINHA, J. L . KAPUR and A.K. SARKAR JJ.)
Electio11
Dispute,-Disqualification for Election-"Office of
Profit unier Government"-Manager of Durgah Khwaja Saheb
School, if holds office of profit under Govemment-Durgah Klnmja
Saheb Act, 1955 (XXXVI of 1955), ss. 4 (1), 5, 6, 9, 11, 20-
·Constitution of India, Art. 102(1) (a).
The appellant was the manager of a school run by a
·Committee of mangcment fonned under the provisions of the
.Ourgah Khwaja Saheb Act, 1955. He was appointed by the
.administrator of Durgah Kilwaja Saheb
and was
being paid
Rs. 100 per month. He was elected to the Council of States by
the Electoral College of Ajmer and the unsuccessful candidate,
the first respondent, challenged the election on the ground that
the appellant was holding an office of profit under the Government
:at the time of the election an:d was, therefore, disqualified to be
.chosen as a member of Parliament in view of Art.
102 (I) (a) of
the Constitution of India.
It was contended for the first
respondent i11ter ulia that as under ss. 5 and 9 of the Act the
Government of India had the power of appointment and removal
of members of the committee of management as also the power to
appoint the administrator in consultation with the committee,
the appellant was under the control and supervision
of the
Government
and that therefore he was holding
an office
of profit under the Government of India. But the appellant was
neither appointed.by the Government of India nor removable by
it nor was his salary fixed by the Government and it was paid aut
of the funds of the Durgah Endowment.
Held, that the appellant was holding his appointment under
:a committee which was a statutory body and could not be
.considered as the holder of an office of profit under the
Govern~
ment of India within the meaning of Art. 102 (I) (a) of the
Constitution of India. Accordingly, the election of the appellant
was valid.
Shivnandan Sharma v. The Punjab National Bank Ltd., (1955)
J S.C.R. 1427, distinguished.
CIVIL
APPELLATE
JURISDICTION:
Civil Appeal
No. 335 of 1957.
Appeal by special leave from the judgment and
order dated
January 31, 1957,
of the Election
fribunal, Ajmer, in Election Petition No. 2 of 1956.
50
1957
September 12
1957
Maulana Abdul
Shakur
v.
Rikhabchand and
Another
Kapur J.
388
SUPREME COURT REPORTS
[19581
Mukat Behari Lal Bhargava and Naunit Lal, for the
appellant.
Respondent No. 1. in person.
1957. September 12. The following Judgment of the
Court was delivered by
KAPUR, J.-This is an appeal frQm the order of the
Election Tribunal dated January
31, 1957, setting
aside the election of the appellant,
Maulana Abdul
Shakur, who was elected to the Council of States by
the Electoral College of Ajmer which consisted of 30
members constituting the State Legislature of Ajmer.
He received 19 votes as against 7 polled in favour of
the other candidate who is respondent No. l in this
appeal. The total number of valid votes polled was
26 and there were 3 invalid votes. The result of the
election was published in the Official Gazette on March
31, 1957, declaring the election of the appellant. The
unsuccessful candidate, the present first respondent,
filed his election petition on May 2, 1956. It is not
necessary to set out all the allegations in the petition
because the main controversy between the parties is
whether the successful candidate, the present appellant.
held an "office of profit" under the Government. The
impugned election was held
on March 22, 1956.
By a notification issued on February 17, 1956, the
nominations for candidature were to be filed between
February 28, 1956, and March 1, 1956. The date for
scrutiny was March 5, 1956, and for the polling March
22, 1956. The appellant filed two nomination paper5
on February 28, 1956, and a third one on March 1,
1956. The respondent Rikhab Chand Jain also filed
his nomination papers on March 1, 1956. On March
1956, the respondent Rikhab Chand Jain raised certain
objections to the validity of the appellant's nomination, the main ground being that the appellant was
holding an office of profit under the Government. The
Returning Officer by his order dated March 6, 1956,
rejected the two nomination papers of the appellant
filed on February 28, 1956, but accepted the third one,
i.e., of March l, 1956, because, according to that officer,
S.C.R. SUPREME COURT
REPORTS
389
under the provisions ot Uurgah Khwaja Saheb (Erner19s1
gency Provisions) Act, 1950 (XVII of 1950) which was
Maulana Abd 1
in force up to February 29, 1956, the appellant was
Shakur
"
holding an office of profit under the Government but Rikhabch"and and
on the coming into force of the Durgah Khwaja Saheb
Another
Act (XXXVI of 1955) on March 1, 1956, he no longer
Kapur J.
held such office under the Government. On May 3,
1956, the respondent filed an election petition· under
s. 81 of the Representation of the People Act, 1951, in
which he submitted that the third nomination paper
of the appellant should also
have been rejected as
even
under the provisions of Durgah Khwaja Saheb
Act (XXXVI of 1955), the appellant was holding an
office of profit under the Goverment and therefore his
~ase was covered by the provisions of Art. 102 (l)(a) of
the Constitution. He also prayed that he be declared
elected as the votes cast in the appelant's favour were
"thrown away" votes and the respondent . alone
received a majority o( valid votes.
A majority of the Election Tribunal by their order
dated January 31, 1957, held that on March 1, 1956
the appellant was holding an office of profit under the
Government and therefore his nomination paper was
hit by Art.
102(1) (a) of the Constitution. They set
aside his election and accepting the contention as to
"thrown away"
votes
declared the
respondent
elected. Disagreeing with the majority, the Chairman
of the Election Tribunal held that on March l, 1956,
the appellant was no longer holding an office of profit
under the Government, his nomination paper was
rightly accepted and his election was valid and therefore the respondent could not be declared elected. On
the question whether the two nomination papers of the
appellant dated February 28 , 1956, were valid or not
the Tribunal unanimously held them to be invalid on
the ground that the appellant held an office of profit
under the Government on that date.
It is not necessary to go into the question whether
the two nomination papers filed by the appellant on
February 28, 1956, were valid or not because if the
nomination paper filed on March I, 1956, is valid the
question of their validity would not arise. It may
390
SUPREME COURT REPORTS
[1958}
1957
here be stated
that the argument
before us has
Maulana Abdul proceeded on the assumption that the appellant held
Shakw
an
office of profit. The controversy between the
Rikhabch'and and parties was therefore confined to whether this office of
Another
profit was held under the Government of India and
Kapur 1.
therefore the disqualification for membership under
Art. 102 (I) (a) applies to the appellant. In order to
resolve this controversy the important question of
construction that arises is : was the appellant holding
an office of profit under the Government of India and
does Art. 102 (1) (a) of the Constitution operate? This
article is as follows:
102(1) "A person shall be disqualified for being
chosen as, and for being, a member of either House
of Parliament-
( a) if he holds any
office of profit under the
Government of India or the Government of any State,
other than an office declared by Parliament by law not
to disqualify its holder;"
This article occurs under the heading Disqualifications
ofMembers. In the same part of the Constitution,
i.e., Part V, are given the disqualifications for election
to the offices of President and Vice-President. The
relevant part of Art. 58 which lays down the disqualification for the office of the President is:
Art. 58(1) "No person· shall be eligible for election
as President unless he-
(a) ....••....................................
(b) ........••................................
(c) ......................................... .
(2) A person shall not be eligible for election as
President if he holds any office of profit under the
Government of India or the Government of any State
or under any local or other
authority su~ject to the
control of any of the said Governments."
There is
a similar provision in regard to the
Vice-President in Art. 66 (4).
Counsel has rightly pointed out the difference in the
language between the two articles. Whereas in the
case of the President and Vice-President the holding
of an office of profit under an authority subject to the
S.C.R.
SUPREME COURT REPORTS
391
control of the Government is a disqualification, it is
1957
not so
prescribed in the case of members of the
Maulana Abdul
legislatures.
Slrakur
The Madarsa Durgah Khwaja Saheb Akbari in which Rikhab~hand and
the appellant held the appointment of a manager
Another
(mohatmin) is a school for teaching Persian, Arabic
,Kapur J,
and Muslim theology. Before 1961 it was managed
and run by the Government of the Nizam of Hyderabad. In 1951 this school was taken
over by the
Durgah· Committee. On February 28, 1955, the appellant was given an honorary appointment of mohatmin
(manager) of the school
by the Administrator of
Durgah Khwaja Saheb. He was to work under the
Administrator and was to hold charge of the management of the school. But from May 1955 he was being
paid Rs. 100 per month which has been variously
described as salary and honorarium.
Counsel for the appellant raised three questions of
construction that this appointment as manager of the
school amounted neither to an office nor to an office of
profit nor to an office of profit under the Government.
A decision favourable to the appellant on the last
question, i.e., office of profit under the Government,
would render the decision of the other two questions
wholly unnecessary and therefore assuming that the
appellant held an office of profit, the question remains:
was it an office of profit under the Government and
therefore fell within Art. 102 (l)(a) of the Constitution
In order to determine this we have to examine the
provisions of the Statute under which the appointing
authority came into existence and its powers under
the statute. Before and up to 1936 the
Durgah
K.hwaja Saheb Endowment was administered by a
committee which was constituted by the Chief Commissioner of Ajmer under s. 7 of the Religious Endowments Act (XX of 1863). In 1936 the then Central
Legislature enacted the Durgah Khwaja Saheb Act
(XXIII of 1936). By the provisions of that Act the
management and administration was vested in Durgah
Committee constituted under s. 4 of the Act. It was
a body corporate with perpetual succession and common seal having the right to sue and be sued in the
392 SUPREME COURT REPORTS
[1958]
1957
name of the president of the Committee. Under s. 5
Maulana Abdul which dealt with the constitution of the Committee it
Shakur
was to consist of 25 members some of whom were
Rikhabc'l;,,,,,i and elected and some nominated. Section I l(f) of the Act
Another
gave to the Committee the power to appoint all its
Kapur J.
servants.
The Act of 1936 was replaced by the Durgah Khwaja Saheb (Emergency Provisions) Ordinance 3 of 1949,
which in turn was replaced by the Durgah Khwaja
Saheb (Emergency Provisions) Act (XVII of 1950).
By s. 3 of that Act the Durgah Committee constituted
under the Act of 1936 was superseded and the management was vested in an Administrator appointed by
the Central Government who under s. 7 was to be
under the control of the Central.Government and had
all the powers, of the committee constituted under the
Act of 1936.
That Act continued to be in force up to
February 29, 1956, and it ',\1as during its continuance
that the appellant filed two nomination papers on
February 28, 1956, which were rejected by the Returning Officer.
.
The Act of 1950
was replaced by the Durgah
Khwaja Saheb Act (XXXVI of 1955) which received
the assent of the President on October 14, 1955, but
came into force on March 1, 1956. Unders.4(1) of
this Act the administration, control and management
of the Durgah Endowment came to be vested in a
Committee, which is a body corporate having perpetual
succession and common seal and which can sue and
be sued through its President.
Under s. 5 the Committee is to consist of not less than 5 and not more
than 9 members of the Hanafi Muslim faith all of
whom are to be appointed by the Central Government.
Section 8 gives power to the Central Government to
supersede the Committee. Under s. 9
the Central
Government in consultation with the Committee can
appoint a Nazim (administrator) of the Durgalz who is
an ex-officio secretary of the committee. His salary
is to be fixed by the Central Government but is to be
paid out of the revenues of the Durgah Endowment
funds.
The Committee exercises its power of administration, control and management through the Nazim.
S.C.R.
SUPREME
COURT
REPORTS
393
The powers and duties of the Committee are given in
1957
s. l l of the Act; clause (i) of this section which is Ma11la11a
Abtlw
relevant for the purpose of this case when quoted runs
Sh::ur
as under: .
Rikhabc/1a11d am/
A11other
s. 11 "The powers and duties of the Committee
shall beKapur J.
• • • • • • ' • •· • • • ' • • • • • • • • • .,. •r• • • • • • • • • • • • • • • • • •.- • •· • • •
(i) to appoint, suspend or dismiss servants of the
Durgah Endowment."
Under s. 20 the Committee has the power to make
bye-laws to carry out the purposes of the Act, and the
respondent emphasised clause (i) of sub-s. 2 which
provides :
s. 20 (2) "In particular and without prejudice to
the generality of the foregoing power such bye-Jaws.
may provide for-
..................................... •· ......... .
(i) the duties and powers of the employees of the
Durgah."
Sub-section 5 of this section is as follows:
"(5) The Central Government may, after previous
publication of its intention, cancel any bye-law which
it has approved and confirmed, and thereupon the
bye-Jaw shall cease to have effect."
The respondent contended that because under the
Act of 1955, the Committee of Management is to be
appointed by the Government who also appoint the
Nazim (administrator) through whom the Committee
acts and because under s. 6 (2) the Government has the
power of removal from office of any member of the
Committee and because the Committee can make byelaws prescribing the duties and powers of the employees of the Durgah, the appellant was under the control and supervision of the Central Government and
therefore he was holding an office of profit under the
Government of India. It is significant to note that
in laying down the disqualifications of the President
and the Vice-President the Constitution 'has expressly
provided the disqualifications which include not only
an office of profit under the Government of India or
394
SUPREME COURT REPORTS
[1958]
1957
the Government of any State but also an office of profit
Maulana Abdul under any local or other authority subject to the conShakur
trol of any of the said Governments. This last disRikhabc~and and qualification the Constitution does not make applicable
Another
to the members of the legislatures.
KapurJ.
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 comers 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 cannot in our opinion convert
the servants of the Committee into holders of office
of profit under the Government of India. The appellant is neither appointed by the Government of India
nor is removable by the Government of India nor is
he paid out of the revenues of India. The power of
the Government to appoint a person to an office of
profit or to continue him in that office or revoke his
appointment at their discretion and payment from out
of Government revenues
are important factors in
determining whether that person is holding an office
of profit under the Government though payment from
a source other than Government revenue is not always
a decisive factor.
But the appointment of the appellant does not come within this test.
A number of election cases reported in the Election
Law Reports were cited before us but they were
decided on their own facts and are of little assistance
in the decision of the present case. The test of the
power of dismissal by the Government or by an officer
to whom such power has been delegated which was
pressed in support of his case by the respondent is
equally inapplicable to the facts of the present case
because
the appellant cannot be dismissed by the
Government or by
a person so authorised by the
Government. He is a servant of a statutory body
which in the matter of its servants acts within the
powers conferred upon it by the statute.
The respondent then sought to fortify
his submissions by relying on Shivnandan Sharma v.
The
S.C.R.
SUPREME' COURT REPORTS
395
Punjab National Bank Ltd., (1) That was a case under
1957
the Industrial Disputes Act and the question for Maulana Abdul
decision was whether a cashier appointed by the Bank's
Shakur
treasurer on behalf of the Bank and paid by the Bank Rikhabc"hand and
was a servant of the Bank. It was held that he was.
Another
The rule of that case is that if the master employs a
Kapur J.
servant and authorises him to employ a number of
persons to do a particular job and to guarantee their
fidelity and efficiency for a cash consideration, the
employees thus appointed by the servant would be,
equally with the servant, servants of the master. But
that again
has no application to the facts of the
present case
because the appellant has not been
employed by a servant of the Government who is
authorised to employ servants for doing some service
for the Government nor is he paid out of Indian
revenues.
No doubt the non-payment from out of the
revenues of the Union is not always a factor of any
consequence but its
is of some importance in the
circumstances of this case.
A comparison of the different articles of the Constitution 58 (2), 66 (4) 102 (1) (a) and 191 (1) (a) dealing
with membership of the State Legislatures shows in
the case of members of the Legislatures unlike the
case of the President and the Vice-President of the
Union the gisqualifiatcion arises on account of holding
an office of profit under the Government of India or
the Governments of the States but not if such officer
is under a local or any other authority under the
control of these Governments. As we have said 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 the State revenues is by itself a neutral factor.
It has not been shown that the ;tppellant's appointment as a mohatmin (manager) of the school satisfies
any of the tests which have been discussed above.
On the other hand on March 1, 1956, he was holding
(1) [1965] I. S. C.R. 1427]
51
396
SUPREME COURT REPORTS
[1958)
1957
his appointement under a Committee which is a
Maulana Abdul statutory body and such appointment cannot be called
Shakur
an appointment by or under the control of the GovernRikhahc1and and ment of India nor is hi~ salary paid out of the revenues
Another
of the Government but out of the funds of Durgah
Kapur 1.
Endowment. In the. circumstances the majority of
the Tribunal has erred in holding that the appellant
held an office of profit under the Government and the
opinion of the Chairman to the contrary lays down the
correct position.
1957
')eptember 17.
In view of this finding in regard to the office of
profit under the Government, it is not necessary to go
into the question whether there were
any "thrown
away" votes or whether the respondent has been
rightly declared to have been elected.
We are of the opinion that the election of the
appellant has been wrongly set aside and we would
allow the appeal and set aside the order of the majority
of the Tribunal. The appellant will have his costs
in this court as also before the Tribunal.
Appeal al/01red.
MACHERLA HANUMANTHA RAO
AND OTHERS
v.
THE STATE OF ANDHRA PRADESH
(with connected petition)
(S.R. DAS C.J., VENKATARAMA AYYAR, B.P. SINHA,
J.L. KAPUR and A. SARKAR JJ.)
Sessions Tria/-Co1111nitment proceeding instituted 011 Police
report-Proeedure. if makes for inequality before law-Code of
Criminal Procedure (Act V of 1898) as amended by tire Code of
Criminal Procedure (Amendment) Act, 1955 (26 of 1955), ss., 207,
207A-Constitutin of India, Art. 14.
The point in controversy in this appeal was whether ss. 207
and 207 A inserted into the Code of Crimninal Procedure by the
amending Act 26 of 1955, violated the provision of Art. 14 of the
Constitution and were, therefore, invalid in law.
The appellants
were committed for trial to the Court of Session by the inquiring