KANTA KATHURIA versus MANAK CHAND SURANA

Citation: [1970] 2 S.C.R. 835 · Decided: 16-10-1969 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
D 
E 
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G 
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 exis-
tence 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 employ-
ment 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 Govern-
B 
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 provi-
C 
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< 
a

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