LexSURYA KANT ROY versus IMAMUL HAI KHAN
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A B c D E F G H SURYA KANT ROY v. IMAMUL HA.I KHAN March 12, 1975 909· [A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.] Represe~llat!on of the People Act, 1951-Ho/ding an office of profit-Tests. f<Yr determrnallon-Chainnan of a statutory body-Whether an office of profit 1111der Government .. A /legations of corrupt practice should be proved beyond reasonable doubt. Under the Bihar and Orissa Mining Settlement Act, 1920 a Board called the Mines Board of Health may be established to provide for the control and sanitation of any area. The Board consists of members who are elected by mine owners, non-officials selected by the State Government and persons nomi- nated by Government. The Chairman of the Board is appointed by the State Government from among the members of the Board. The Boaird is a body corporate. A fund called "The Mining Settlement Fund" is created consisting of sums charged by the Board under the Act from land-owners as also sums allotted from the State revenues as well as sums borrowed by the Board under the Local Authorities Loans Act, grants received from local Authorities, associa. tiom and private persons. The respondent was appointed by the Government as Chairman of the Jharia Mines Board of Health. The .respondent was elected as a member of the State Assembly in the general elections. The election petition of the appellant (the unsuo~essful candidate)° against the respondent was dismissed by the High Court. On appeal to this Court it was argued that the respondent was disqualified from standing for the election as he held an office of profit under the StatC' Government. Dismissing the appeal, HELD : · ( I) The mere fact that the respondent was appointed as Chairman of the Board by the GovP.rnment would not make him a person holding ain office under the State Government. The fact that the Government and other local authorities might make grants to the Board did not mean that all the funds of the B_oard were Government funds or Government property. The provisions of the Act are enough to establish that the Board is a 'local authority' within the meaning of that expression as defined in cl. (31) of s. 3 of the General Clauses Act, 1897. (911 C; BJ (2) In determining whether a person is holding an office of profit under the Government the tests laid down by this Court were ( 1) Whether the Government makes the appointment; (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays the remuneration; ( 4) What are the functions of the holder? Does be perform them tor the Government, and (5) Does the Government exercise control over the performance of those functions ? [911 G] In the instant case the Government did not pay ·remuneration to the respondent nor did he perform his functions for the Government. The office held by him was held under a local authority. The holding of an office of profit in it did not bring about a disqualification, even i~ the local authority be under the control of the Government. The control exercised by the Government did not make the Board an organ of the Government nor did it make the respondent a person holding an office under the Government. [912 £..Fl Maulana Abd11/ Shakur v. Riklzabclumd & Anr. [1958] S.C.R. 387 at 394 and Slifram11rtliy Swami v. Agadi Sanganna Andanappa [1971] 3 S.C.C. 870, followed. :HO SUPREME (COURT REPORTS ll 9751 3 s.c.R. Gumilw11111ppa v. Abdul Khaddus A.l.R. 1969 S.C. 744-[1969] 3 S.C.R. 425, referred to. (3) An allegation of corrupt practice being a serious on~, kacling not merely to the consequence of the election of the successful. candidate bc1~g set aside, but also of his being disqualified to sta,nd for election for a certa~n period, should be proved beyond reasonable drubt. Such p.rool is lacking 111 this case. [913 CJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1116 cf 1973. Prom the judgment and order dated the 22nd January, 1973 of th~ Patna High Court in Election Petition No. 21 of 1972. J. P. Goyal and V. C. Parashar, for the appellant. D. Goburdhan, for the respondent. The Judgment of the Court was rielivercd by . ALAGIRISWAMI, J.-This appeal by one of the unsu~..:c>sful 1:andi .. dates in the election held to the Legislative Assembly of Bihar State .from the Baghmara constituency is against the dismissal of his electio•,11 petition questioning the rc:spoi1dcnt's election by the High Court at Patna
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