GAJANAN SAMADHAN LANDE versus SANJAY SHYAMRAO DHOTRE

Citation: [2011] 13 S.C.R. 395 · Decided: 30-11-2011 · Supreme Court of India · Bench: RAJENDRA MAL LODHA · Disposal: Dismissed

Judgment (excerpt)

[2011] 13 (ADDL.) S.C.R. 395 
GAJANAN SAMADHAN LANDE 
. v. 
SANJAY SHYAMRAO DHOTRE 
(Civil Appeal No. 7923 of 2010) 
NOVEMBER 30, 2011 
[R.M. LODHA AND H.L. GOKHALE, JJ.] 
Representation of People Act, 1951: ss.10, 100(1)(a) 
A 
B 
-
Disqualification from contesting elections -
State C 
Government having more than 25% share in a Corporation 
-
Returned candidate was an elected Director of the 
Corporation - Since returned candidate was neither managing 
agent nor manager nor secretary in the Corporation, s. 10 of 
the Act is not attracted - Returned candidate is, therefore, not 
disqualified u/s .. 1 O of the Act. 
D 
Constitution of India, 
1950: Article 
102 -
Disqualification for membership - Held: For attracting the 
disqualification provided in Article 102, a person must be 
holder of 'office of profit' under the Government of India or the 
E 
Government of any State - Returned candidate was elected 
Director of Corporation - He was holding an elected office and 
not an office by appointment - He did not hold an office of 
profit under the Government -
One of the essential 
necessities in determining the question whether the office is 
F 
an 'office of profit' or not is whether such office carries 
remuneration in the form of pay or commission - As an 
elected Director, the amount paid to the returned candidate 
was by way of allowances not 'remuneration' - It is only a sort 
of reimbursement of the expenses incurred by the returned 
G 
candidate - Returned candidate was neither disqualified to 
be member of Parliament either u/Article 102 or uls.10 of the 
1951 Act - Representation of People Act, 1951. 
395 
H 
396 
SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R. 
A 
The 
respondent was 
elected 
from 
Akola 
Constituency for the 15th Lok Sabha. The appellant, a 
voter in the constituency challenged the election of 
respondent under Section 100(1)(a) of the Representation 
of People Act, 1951 on the ground that the returned 
s candidate was disqualified to contest the election as he 
was holding the 'office of profit' under the Government 
company being a Director of the Maharashtra Seeds 
Corporation. The High Court held that the returned 
candidate was not disqualified to be a member of 
c Parliament either under Article 102(1 )(a) of the 
Constitution or under Section 10 of the 1951 Act. The 
instant appeal was filed challenging the order of the High 
Court. 
D 
Dismissing the appeal, the Court 
HELD: 1.1. Section 10 of the Representation of 
People Act, 1951 refers to category of persons who shall 
be disqualified from contesting election, inter alia, of 
either House of Parliament. These persons are, managing 
E agent, manager or secretary of any company or 
corporation (other than a co-operative society) in the 
capital of which the appropriate Government has not less 
than twenty-five per cent share. The Government of 
Maharashtra admittedly has more than 25 per cent share 
F in the Corporation. The Corporation is, thus, covered by 
Section 10. However, the returned candidate is an elected 
Director from the Growers constituency on the Board of 
the Corporation. He is neither .managing agent nor 
manager nor secretary in the Corporation. Section 10 of 
G the 1951 Act is, therefore, not at all attracted in the instant 
case. [Para 10] [400-F-G; 401-A] 
1.2. Article 102 of the Constitution provides for 
disqualifications for membership. For attracting the 
disqualification provided in Article 102 of the Constitution, 
H a person must be holder of 'office of profit' under the 
GAJANAN SAMADHAN LANDE v. SANJAY 
397 
SHYAMRAO DHOTRE 
Government of India or the Government of any State. The 
A 
returned candidate is not the holder of any office of profit 
under the Government of India. He is neither the holder 
of the office under the Government of Maharashtra, 
reason being in the first place that the returned candidate 
was holding an elected office and not an office by 
B 
appointment. The test of appointment is decisive. The 
Government had nothing to do in the election of Director 
from the Growers constituency. Moreover, being an 
elected office, the Government has no power to remove 
the returned candidate from that office. On this ground C 
alone, it must be held that the returned candidate did not 
hold an office much less an 'office of profit' under the 
Government. Secondly, one of the essential necessities 
in determining the question whether the office is an 
'office of profit' or not is whether suc

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