SIVADASA MENON Vs. SUNNA SAHIB

JUDGEMENT

(1.) Through this petition the petitioner challenges the election of the 1st respondent to the Lok Sabha from No. 7 Palghat Parliamentary Constituency in the elections that were conducted in March 1977. The petitioner was the candidate of the Communist Party of India (Marxist) and his symbol was "hammer, sickle and star" The Ist respondent was the candidate for the Indian National Congress and his symbol was "Calf and Cow". The 2nd respondent was an independent candidate to whom was allotted the symbol "Rising Sun". Poll was taken on 19-3-1977 and the counting which began on 20-3-1977 concluded on 21-3-1977. The 1st respondent obtained 207604 votes and the petitioner obtained 192733 votes. 22101 votes were declared as invalid. The 1st respondent was declared elected by the Returning Officer on 21-3-1977. According to the petitioner the 1st respondent was disqualified for being chosen as or for being a member of the Lok Sabha since be was and is holding an office of profit both under the Government of India as well as the Government of Kerala. The 1st respondent is disqualified in view of Art.102 of the Constitution. The 1st respondent was appointed as Official Receiver under S.59 of the Kerala Insolvency Act, Act 2 of 1956 as amended by Act 18 of 1957, by the Government of Kerala on 23-8-1976 as per G.O. Rt. 2359/76/Home dated 14-10-1977 and he is still holding the said statutory office under the State. The 1st respondent was appointed as Court Receiver under O.40 R.1 of the CPC. by the District Judge, Palghat in OS 1/1964. He was appointed as receiver in another case in respect of the properties of Keralassery L P. School. He is receiver is some other cases as well. The 1st respondent was appointed as Liquidator under S.448 of the Indian Companies Act (Act 1 of 1956) in respect of Narasimha Bank, Alathur (in liquidation) and he is still holding that office under the Central Government. The office of the liquidator is a statutory appointment made by the Central Government. The 1st respondent is thus holding an office of profit both under the Government of India as well as the Government of Kerala, and he is, therefore, disqualified under the Constitution of India and the Representation of the People Act, 1951. The prayer is to declare that the election of the 1st respondent is void on the ground of the disqualifications referred to above and also to declare that the petitioner has been duly elected from No. 7 Palghat Parliamentary constituency.

(2.) In answer to the summons issued by court, the 1st respondent alone entered appearance on 22-6-1977. In the written statement filed by the 1st respondent the material allegations in the petition are denied. His contentions are as follows: The petition is not maintainable because it has not been filed in conformity with S.81 of the Representation of the People Act 1951. The allegations in Para.4 of the petition overlooked Art.103 of the Constitution which lays down that if a member of either House of Parliament has become subject to a disqualification the question shall be referred for the decision of the President and his decision shall be final The Ist respondent is not disqualified from being chosen as a member of the Parliament because he has not held any office of profit under the Government of India or under the Government of Kerala. Under a G O. dated 14-10-1976 the 1st respondent was appointed as a part time official receiver attached to the District Court, Palghat, for a period of three years. The office of part time official receiver is not an office of profit The government does not pay any remuneration, and the functions discharged by the part time official receiver are not functions discharged for the Government. The Government does not exercise any control over the performance of the part time official receiver. That apart, the 1st respondent resigned the post of the part time official receiver by his letter dated 16-2-1977 and the Government by order G.O Rt. 423/77/Home dated 17-2-1977 accepted the resignation with effect from the fore-noon of 15-2-1977 The post of part time official receiver which the 1st respondent held was before the date of the election and not on the date of the election. It is admitted by the 1st respondent that he was appointed as a court receiver by the court of the District Judge of Palghat in O. S. 1/1964 and also in O.S. 1/1968. Receivership cannot be deemed to be an office of profit. The 1st respondent was appointed as receiver in other cases also under O.40 R.1 of the C.P.C. The averments in Para.7 of the petition are inaccurate and misleading. The Narasimha Bank, Alathur is not a company in liquidation Insolvency proceedings is pending in the court of the Sub Judge of Palghat in regard to the affairs of Narasimha Bank, which is a partnership firm. It is incorrect to state that the 1st respondent was appointed as official liquidator under S.448 of the Indian Companies Act 1 of 1956 and be is still holding that office. It was in the capacity as official receiver that the 1st respondent was functioning as the interim receiver in the insolvency proceedings in relation to the Narasimha Bank That receivership also came to an end with his resignation as official receiver. The 1st respondent is not thus holding any office of profit to incur disqualification. It is contended that this question of disqualification was not raised at the time of scrutiny of the nomination papers and as such the petitioner is not entitled to raise that question at this stage. The petitioner is hence disentitled to get any relief in this petition.

(3.) After discussing with both sides the following issues were raised: