judgement:
Appeal No. 1869 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated August 12, 1968 of the Rajasthan High Court in Election Petition No. 16 of 1967.
section V. Gupte, M. M. Tiwari, H. K. Puri, Bishamber Lal, M. K. Garg, K. K. Jain and section P. Vij, for the appellant.
M. C. Chagla and section M. Jain, for respondent.
Niren De, Attorney General, G. C. Kasliwal, Advocate General.
Rajasthan and K. B. Mehta, for the State of Rajasthan.
The Judgment of section M. SiKRi, A. N. RAY and P. JAGANMOHAN REDDY, JJ.was delivered by SIKRI, J., M. HIDAYATULLAH, C.f. and G. K. MITTER, J. gave a separate opinion.
Hidayatullah, C.J. We regret our inability to agree that the appellant Mrs. Kanta Kathuria was not holding an office of profit under the Government of Rajasthan when she stood as a candidate for election to the Rajasthan Legislative Assembly from the Kolayat Constituency.
Mrs. Kathuria is an advocate practicing at Bikaner.
She contested the above election held on February 18, 1967 against seven other candidates.
She was declared elected on February 22, 1967.
One of the defeated candidates filed the election petition, from which this appeal arises, questioning her election on several grounds.
We are concerned only with one of them, namely, that on the date of her nomination and election she was disqualified to be chosen to fill the seat as she held the office of Special Government Pleader, which was an office of profit under the Government of Rajasthan.
838 Article 191 of the Constitution, which is relevant in this connection, reads : "191 : Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; Mrs. Kathuria was appointed by the Government of Rajasthan as Special Government Pleader to conduct arbitration cases between the Government and Modern Construction Company arising out of the construction of Rana Pratap Sagar Dam and Jawahar Sagar Dam.
The order was passed on June 26, 1965 (exhibit 1).
The order reads: "ORDER Sub: Construction of R.P.S. Main Dam Contract of M/s.
M.C.C. (Pvt.) Ltd., Arbitration in disputes arising out of.
In pursuance of Rule 8 (b) of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 read with clause (7) of Section 2 of the Code, the Governor is pleased to appoint Smt.
Kanta Kathuria, Advocate Bikaner as Special Government Pleader to conduct the above noted case on behalf of the State of Rajasthan alongwith Shri Murali Manohar Vyas, Government Advocate, Jodhpur.
By order, Sd.
D. section Acharya 26 6 65 (D. section Acharya) Joint Legal Remembrancer".
By subsequent orders, which we do not consider necessary to quote here, her remuneration was fixed at Rs. 1501 per day for each date of hearing, Rs. 75/ per day for days of travel and dates on which the case was adjourned, and days spent on preparation of the case.
Mrs. Kathuria began appearing in the case from March 27, 1965.
It is an admitted fact that she was paid for work between that date and November 28, 1966 a sum of 839 Rs. 26,325/ and again from February 26, 1967 to March 2, 1967 a sum of Rs. 900/ and that the arbitration proceedings were continuing on the date of the filing of the election petition.
Therefore for over two years she was employed as Special Government Pleader and was still employed when her election took place.
It is also admitted by her that prior to this employment, she had never paid income tax in excess of Rs. 1200/ in any year.
On these facts, the High Court held that Mrs. Kathuria was disqualified.
Before this appeal came on for hearing before us, the Governor of Rajasthan by Ordinance 3/68 (December 24, 1968) removed the disqualification retrospectively.
The Ordinance was followed by Act V of 1968 (April 4, 1969).
The operative portions of the Act which are the same as of the Ordinance read "Prevention of disqualification of membership of the State Legislative Assembly (1) It is hereby declared that none of the following offices, in so far as it is an ' office of profit under the State Government, shall disqualify or shall be deemed ever to have disqualified the holder thereof from being chosen as, or for being, a member of the Rajasthan Legislative Assembly, namely (a) the office of a Government Pleader or Special Government Pleader or Advocate for the Government, appointed specially to conduct any particular suit, case or other proceeding by or against the State Government, before any court, tribunal, arbitrator or other autho rity; (b) the office of a Government Pleader, a Special Government Pleader or Advocate for the State Government, appointed specially to assist the Advocate General, Government Advocate or Pleader, or Special Government Pleader, or Advocate for Government, in any particular suit, case or other proceeding by or against the State Government before any court, tribunal, arbitrator or other authority; (c) the office of a panel lawyer if the holder of such office is not entitled to any retainer or salary, by whatever named called; (4) the office of a Pradhan or Pramukh as defined in the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (Rajasthan Act 37 of 1959).
840 (2) Notwithstanding any judgment or order of any Court or Tribunal, the aforesaid offices shall not disqualify or shall be deemed never to have disqualified the holders thereof for being chosen as, or for being, members of the Rajasthan Legislative Assembly as if this Act had been in force on the date the holder of such office filed his nomination paper for being chosen as a member of the Rajasthan Legislative Assembly.
" The Ordinance and the Act seem to have been passed to nullify the decision in this case.
One of the contentions of the answering respondent is that the Legislature of Rajasthan could not remove the disqualification retrospectively since the Constitution contemplates disqualifications existing at certain time in accordance with the law existing at that time.
We shall deal with this matter later.
When the Government of Rajasthan appointed Mrs. Kathuria it bad two courses open to it.
Firstly, Government could have engaged Mrs. Kathuria to conduct the particular arbitration case or cases, or even to assist the Government Advocate in those cases.
Alternatively Government could create a special office of Special Government Pleader and appoint Mrs. Kathuria or any other lawyer to that office.
It is obvious that Government did not choose the first course.
There were as many as 26 arbitration cases then pending and more were likely to arise.
Government thought that they should be conducted by the Government Advocate but as the work involved was too much as additional office had to be created and given to a lawyer.
An office was therefore, created and given to Mrs. Kathuria.
In a recent case (Civil Appeal No. 1832 of 1967 Mahadeo vs
Shantibhai &, Others s decided on October 15, 1968), we held that a panel lawyer engaged to watch cases on behalf of the Central & Western Railway Administrations, held an office of profit.
The duty of the panel lawyer was to watch cases coming up for hearing against the Railways at Ujjain and to appear in court and ask for an adjournment.
The lawyer was paid Rs. 51 for each such adjournment if he was not entrusted with the case later.
In dealing with this matter reliance was placed by us on the meaning to the word 'office ' given in the Statesman (P) Ltd. vs H. R. Deb & Ors(1) In the Statesman case, this Court approved of the observations of Lord Wright in Mcmillan vs Guest(2) to the following effect : "The word 'office is of indefinite content.
Its various meanings cover four columns of the New English (1) ; (2) 841 Dictionary, but I take as the most relevant for purpose of this case the following 'A position or place to which certain duties are attached, especially one of a more or less public character.
" Our brother Sikri has also relied upon the same case and has referred to the observations of Lord Atkin where he approved of the observations of Rowlatt, J. in Great Western Railway Co. vs Baler(1).
Justice Rowlatt said thus : "Now it is argued, and to my mind argued most forcibly, that shows that what those who use the language of the Act of 1842 meant, when they spoke of an office or employment which was a subsisting permanent, substantive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders, and if you merely had any man who was engaged on whatever terms, to do duties which were assigned to him, his employmen t to do those duties did not create an office to which those duties were attached.
He hereby was employed to do certain things and that is an end of it, and if there was no office or employment existing in the case as a thing, the so called office or employment was merely an aggregate of the activities of the particular man for the time being".
We say with profound respect for this most succinct exposition, that we entirely agree.
The distinction that we are making is precisely the distinction which has been brought out by Rowlatt, J. If Mrs. Kathuria had been briefed as a lawyer and given all the Government litigation in Rajasthan to conduct on behalf, of the Government she could not have been described as holding an office of profit.
The aggregate of her work and her activities could not have created an office nor could she have been described as anything but an advocate.
What happened here was different ' An office was created which was that of a Special Government Pleader.
Now it is admitted that the office of a Government Pleader is an office properly so called.
Therefore an office going under the names 'Additional Government Pleader ', 'Assistant Government Pleader ', 'Special Government Pleader ' will equally be an office properly so called.
It matters not that Mrs. Kathuria was to conduct a group of arbitration cases and against the same party.
For that matter Government is always at liberty to create offices for special duties.
They might have even created another office of Special Government Pleader for Land Acquisition cases (1) 8 Tax Cases 231, 235.
842 or a group of cases or Railway cases or a group of cases arising out of a particular accident and so on and so forth.
What matters is that there was an office created apart from Mrs. Kathuria.
It is in evidence that it was first held by Mr. Maneklal Mathur another advocate.
It is likely that if Mrs. Kathuria had declined some one else would have been found.
Therefore, there was an office which could be successively held; it was independent of Mrs. Kathuria who filled it was a substantive position and as permanent as supernumerary offices are.
Every one of the tests laid down by Rowlatt, J. is found here.
We would, therefore, hold that the High Court was right in its conclusion that Mrs.,Kathuria held an office.
Since there is no dispute that it was for profit and under the State, the election of Mrs. Kathuria must be held to be void as she was disqualified to stand for the election.
This brings us to the next question.
Does the Act of the Rajasthan Legislature remove the disqualification retrospectively, in other words; can such a law be passed by the Legislature after, the election is over ? The first question is whether the new law is remedial or declaratory.
If it was declaratory then it would be retrospective; if remedial only, prospective unless legally made retrospective.
That it has been made expressly retrospective lends support to its being remedial.
Its retrospective operation depends on its being effective to remove a disability existing on the date of nomination of a candidate or his election.
Of course, there is no difficulty in holding the law to be perfectly valid in its prospective operation.
The only dispute is in regard to its retrospective operation.
Our brother Sikri has cited an instance of the British Parliament from May 's well known treatise when the Coatbridge and Springburn Elections (Validation) Bill was introduced to validate the irregular elections.
Halsbury 's Laws of England (3rd Edn.
14 p. 5) has the following note : "If a person is elected when disqualified, his dis qualification for being a member of Parliament may be remedied or he may be protected from any penal consequences by an Act of Validation or indemnity.
" The position of the British Parliament is somewhat different from that of the Indian Parliament and the Legislatures of the States.
British Parliament enjoys plenary sovereignty and the7 Acts of the British Parliament no court can question.
In India the sovereignty of the Indian Parliament and the Legislatures is 843 often curtailed and the question, therefore, is whether it is in fact so curtailed.
At the hearing our attention was drawn to a number of such Acts passed by our Parliament and the Legislatures of the States.
It seems that there is a settled legislative practice to make validation laws.
It is also well recognised that Parliament and the Legislatures of the States can make their laws operate retrospectively.
Any law that can be made prospectively may be made with retrospective operation except that certain kinds of laws cannot operate retroactively.
This is not one of them.
This position being firmly grounded we have to look for limitations, if any, in the Constitution.
Article 191 (which has been quoted earlier) itself recognises the power of the Legislature of the State to declare by law that the holder of an office shall not be disqualified for being chosen as a member.
The Article says that a person shall be disqualified if he holds an office of profit under the Government of India or the Government of any State unless that office is declared by the Legislature not to disqualify the holder.
Power is thus reserved to the Legislature of the State to make the declaration.
There is nothing in the words of the article to indicate that this declaration cannot be made with retrospective effect.
It is true that it gives an advantage to those who stand when the disqualification was not so removed as against those who may have kept themselves back because the disability was not removed.
That might raise questions of the propriety of such retrospective legislation but not of the capacity to make such laws.
Regard being had to the legislative practice in this country and in the absence of a clear prohibition either express or implied we are satisfied that the Act cannot be declared ineffective in its retrospective operation.
The result, therefore, is that while we hold that Mrs. Kathuria held an office of profit under the State Government, we hold further that this disqualification stood removed by the retrospective operation of the Act under discussion.
As regards the supplementary point that the petition was bad for non joinder of Mr. Mathura Das Mathur against whom cor rupt practices were alleged in the petition, we are of opinion that section 82 of the Representation of People Act, 1951, in its clause (b) speaks of candidates at the same election and not persons who are candidates at other elections.
As Mr. Mathur was a candidate from another constituency he need not have been made a party here.
For the above reasons we would allow the appeal but make no order about costs since the election of the appellant is saved 844 by a retrospective law passed after the decision of the High Court.
Sikri, J.
This appeal arises out of an election petition filed under section 80 of the Representation of the People Act, 1951, hereinafter referred to as the 1951 Act, by Shri Manik Chand Surana, a defeated candidate, challenging the election of Smt.
Kanta Kathuria, before the High Court.
The High Court (Jagat Narayan, J.) allowed the election petition on the ground that the appellant held an office of profit within the meaning of article 191 of the Constitution on the day on which she filed the nomination paper and was thus disqualified for being chosen as a member of the Rajasthan Legislative Assembly.
This judgment was given on August 12, 1968.
An appeal was filed in this Court on August 20, 1968.
During the pendency of the appeal, the Rajasthan Legislative Assembly Members (Prevention of Disqualification) Act, 1969 (Act No. 5 of 1969) (hereinafter referred to as the impugned Act), was passed, which received the assent of the Governor on April 4, 1969.
The impugned Act inter alia provides : "2. Prevention of disqualification of membership of the State Legislative Assembly.
(i) It is hereby declared that none of the following offices, in so far as it is an office of profit under the State Government shall disqualify or shall be deemed ever to have disqualified the holder thereof from being chosen as, or for being, a member of the Rajasthan Legislative Assembly, namely : (a) the office of a Government Pleader or Special Government Pleader or Advocate for the Government, appointed specially to conduct any particular suit, case or other proceeding by or against the State Government, before any court, tribunal, arbitrator or other authority; (b) the office of a Government Pleader, a Special Government Pleader or Advocate for the State (Government appointed specially to assist the Advocate General, Government Advocate or Pleader, or Special Government Pleader, or Advocate for Government in any particular suit, case or other proceeding by or against the State Government before any court, tribunal, arbitrator or other authority; 845 (2) Notwithstanding any judgment or order of any Court or Tribunal, the aforesaid offices shall not disqualify or shall be deemed never to have disqualified the holders thereof for being chosen as, or for being, members of the Rajasthan Legislative Assembly as if this Act had been in force on the date the holder of such office filed his nomination paper for being chosen as a member of the Rajasthan Legislative Assembly.
" We may note another fact on which an argument is sought to; be made by the learned Counsel for the appellant.
It was alleged in the election petition that the appellant was a close friend of one Shri Mathura Dass Mathur who was a Minister in the Slate of Rajasthan at the time of the election, who contested elections as a candidate in a constituency different from that of the appellant.
Shri Mathur visited the constituency during the election very frequently and during these visits the appellant accompanied by Shri Mathur visited several places in the Constituency where.
Shri Mathur in the presence of the appellant offered and promised to get several works done in those areas if the electors were to cast votes for the appellant at ' the said election.
In spite of these allegations of corrupt practice, Shri Mathur was not made a party to the petition.
The learned Counsel for the appellant, Mr. Gupte, contends that the High Court erred in holding that the appellant held an office of profit within the meaning of article 191 of the Constitution.
In the alternative he contends that the Rajasthan Act No. 5 of 1969 is retrospective and the disqualification if it existed, cannot now be deemed to have existed because of this Act.
The last point raised by him is that the petition was not in accordance with law as the respondent, Shri Surana, had not impleaded Shri Mathur as respondent to the petition.
The facts relevant for appreciating the first point are these The appellant was an advocate at all material times.
Disputes arose between M/s. Modern Construction, Company Private Ltd. and the State of Rajasthan in connection with some works relating to the Rana Pratain Sagar Dam.
These disputes were referred to arbitration.
Shri Murli Manohar Vyas, Government Advocate in the High Court of Rajasthan at Jodhpur was appointed by the Government to represent it in these arbitration proceedings.
The Government Advocate wanted one more advocate to assist him.
On his suggestion, Shri Manak Lal Mathur advocate was appointed to assist the Government Advocate.
As there was a possibility that Shri Manak Lal Mathur may not be available to 846 help the Government Advocate, the appellant was, on the suggestion of the Government Advocate, appointed to assist him in the ,absence of Shri Mathur.
proposal was approved by the Rajasthan Law Minister on March 30, 1965 and on June 26, 1965, and the Government issued the following order : "Sub : Construction of R.P.S. Main Dam Con tract of M/s M.C.C. (PVT) Ltd. Arbitration in dispute arising out of In pursuance of rule 8 (b) of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 read with clause (7) of section 2 of the Code, the Governor is pleased to appoint Smt.
Kanta Kathuria Advocate, Bikaner, as Special Government Pleader to conduct the above noted case on behalf of the State of Rajasthan along with Shri Manohar Vyas, Government Advocate Jodhpur.
" Later, on Sept. 3, 1965, the Government laid down the fees payab le to the appellant.
It was stated in the order dated Sept. 3, 1965 that" Smt.
Kanta Kathuria who has been appointed to assist the Government advocate in the absence of Shri Mathur will get her share of fee in proportion to the assistance rendered by her out of the daily fee of Rs. 150/ to Shri Manak Lal Mathur." As Shri Manak Lal Mathur was not able to appear in the case, on Nov. 18, 1965 the Governor sanctioned the payment of daily fee of Rs. 1501 to the appellant instead of Shri Manak Lal Mathur, for days of actual hearing.
The appellant appeared from March 27, 1965 to November 28, 1966, but she did not appear from Nov. 29, 1966 to Feb. 25, 1967.
She again started appearing in the case from February 26, 1967.
The appellant claimed travelling allowance, incidental charges and daily allowance, but the Government decided that the appellant was not entitled to any travelling allowance or daily allowance in addition to the fees.
By a notification, the Election Commission of India called upon the electors of the Kolayat Assembly Constituency of the Rajasthan Legislative Assembly to elect a member to the Rajasthan Legislative Assembly and invited nomination papers for the elections to be held on February 18, 1967.
The appellant was declared duly elected by the Returning officer on, February 22, 1967, the appellant having secured 11926 and the respondent having secured 8311 votes.
847 The relevant portion of article 191 reads as follows 191.
(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (e) if he is so disqualified by or under any law made by Parliament.
(2) For the purposes of this article, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.
It seems to us that the High Court erred in holding that the appellant held an office.
There is no doubt that if her engagement as Special Government Pleader amounted to appointment to an office, it would be an office of profit under the State Government of Rajasthan.
The word 'office ' has various meanings and we have to see which is the appropriate meaning to be ascribed to this word in the context.
It seems to us that the words 'its holder ' occurring in article 191 (1 ) (a), indicate that there must be an office which exists independently of the holder of the office.
Further, the very fact that the Legislature of the State has been authorised by article 191 to declare an office of profit not to disqualify its holder, contemplates existence of an office apart from its holder.
In other words, the Legislature of a State is empowered to declare that an office of profit of a particular description or name would not disqualify its holder and not that a particular holder of an office of profit would not be disqualified.
It seems to us that in the context, Justice Rowlatt 's definition in Great Western Railway Company vs Bater(l) is the appropriate meaning to be applied to the word 'office ' in article 191 of the Constitution.
Justice Rowlatt observed at page 235 "Now it is argued, and to my mind argued most forcibly, that shows that what those who use the (1) 8 Tax Cases 231. 848 language of the Act of 1842 meant, when they spoke of an office or an employment, was an office or employment which was a subsisting, permanent, substantive position, which had an existence independent from the person who filled it; which went on and was filled in succession by successive holders; and if you merely had a man who was engaged on whatever terms, to do duties which were assigned to him, his employment to do those duties did not create an office to which those duties were attached.
He merely was employed to do certain things and that is an end of it; and if there was no office or employment existing in the case, as a thing the so called office or employment was merely an aggregate of the activities of the particular man for the time being.
And I think myself that is sound.
I am not going to decide that, because I think I ought not to in the state of the authorities, but my own view is that the people in 1842 who used this language meant by an office, a substantive thing that existed apart from the holder.
" This definition was approved by Lord Atkinson at page 246.
This language was accepted as generally sufficient by Lord Atkin and Lord Wright in McMillan vs Guest (H.M. Inspector of Taxes) (1).
Lord Atkin observed at page 201 : "There is no statutory definition of 'office '.
Without adopting the sentence as a complete definition, one may treat the following expression of Rowlatt, J., in Great Western Railway Co. vs Baler, [1920] 3 K.B., at page 274, adopted by Lord Atkinson in that case, [1922] 2 A.C., at page 15, as a generally sufficient statement of the meaning of the word : an office or employment which was a subsisting, permanent, substantive position, which had an existence independent of the person who filed it, which went on and was filled in succession by successive holders.
" Lord Wright at page 202 observed "The word 'office ' is of indefinite content; its various meanings cover four columns of the New English Dictionary, but I take as the most relevant for purposes of this case the following : A position or place to which less public character.
This, I think, rough corresponds with such approaches to a definition as have (1) 24 Tax Cases 190.
849 been attempted in the authorities, in particular Great Western Railway Co. vs Abater, [1922] 2 A.C. I. where the legal construction of these words, which had been in Schedule E since 1803 (43 Geo. 111, c. 122, Section 175), was discussed.
" In Mahadeo vs Shantibhai & Ors.(1) Mitter J. speaking for this Court, quoted with approval the definition of Lord Wright.
In our view there is no essential difference between the definitions given by Lord Wright and Lord Atkin.
The Court of Appeal in the case of Mitchell vs Ross(2), thought that both the noble and learned Lords had accepted the language employed by Rowlatt J. as generally sufficient.
In Mahadeo 's case(1), this Court was dealing with a panel of lawyers maintained by the Railway Administration and the lawyers were expected to watch cases.
Clause (13) of the terms in that case read as follows : "You will be expected to watch cases coming up for hearing against this Railway in the various courts at UJB and give timely intimation of the same to this office.
If no instructions regarding any particular case are received by you, you will be expected to appear in the court and obtain an adjournment to save the ex parte proceedings against this Railway in the court.
You will be paid Rs. 51 for every such adjournment if you are not entrusted with the conduct of the suit later on." That case in no way militates against the view which we have taken in this case.
That case is more like the case of a standing Counsel disqualified by the House of Commons.
It is stated in Rogers [on Elections Vol.
[1] at page 10 : "However, in the Cambridge case (121 Journ.
220), in 1866, the return of Mr. Forsyth was avoided on the ground that he held a new office of profit under the Crown, within the 24th section.
In the scheme submitted to and approved by Her Majesty in Council was inserted the office of standing counsel with a certain yearly payment (in the scheme called 'salary ') affixed to it, which Mr. Forsyth received, in addition to the usual fees of counsel.
The Committee avoided the return.
It is urged that there can be no doubt that the Government Pleader holds an office and there is no reason why a person who assists him in the case should also not be treated as a holder of 1) (2) 850 office, specially as the notification appointed the appellant as Special Government Pleader.
We see no force in these conten tions.
Rule 8B. of Order 27, C.P. Code reads as follows :7 "In this Order unless otherwise expressly provided 'Government ' and 'Government leader ' mean respectively (a) in relation to any suit by or against the Central Government or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order; (c) in relation to any suit by, or against a State Government or against a public officer in the service of a State, the State Government and the Government pleader, as defined in Clause 7 of Section 2 or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order." This rule defines who shall be deemed to be a Government Pleader for the purpose of the Order. 'Government Pleader ' is defined in Sec. 2 of Clause (7) C.P. Code thus "(7) 'Government Pleader ' includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader :" It follows from reading Order 27 rule 8B and Clause (7) of Sec.
2 C.P. Code together that even if a pleader who is acting under the directions of the Government Pleader would be deemed to be a Government Pleader for the purpose of Order 27.
Therefore, no particular significance can be attached to the notifica tion made under rule 8B appointing the appellant as Special Government Pleader.
We cannot visualise an office coming into existence, every time a pleader is asked by the Government to appear in a case on its behalf.
The notification of his name under rule 8B, does not amount to the.
creation of an Office '.
Some reliance was also placed on rule 4 of Order 27 C.P. Code, which provides that "The Government Pleader in any Court shall be the agent of the Government for the purpose of receiving 851 processes against the Government issued by such Court.
" This rule would not apply to the facts of this case because the appellant was appointed only to assist the Government Advocate in a particular case.
Assuming it applies, it only means that processes could be served on the appellant, but processes can be served on an Advocate under Rule 2 of Order XLV of the Supreme Court Rules, 1966.
This does not mean that an Advocate on Record would hold an office under the client.
The learned Counsel for the respondent, Mr. Chagla, urges that we should keep in view the fact that the object under lying article 191 of the Constitution is to preserve purity of public life and to prevent conflict of duty with interest and give an interpretation which will carry out this object.
It is not necessary to give a wide 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 Member of Legislative Assembly, it can make that pro vision under article 191 (1) (e) of the Constitution.
The case of Sakhawat Ali vs The State of Orissa(1) provides an instance where the Legislature provided that a paid legal practitioner should not stand in the municipal elections.
In view of the above reasons, we must hold that the appellant was not disqualified for election under article 191 of the Constitution.
But assuming that she held an office of profit, this disqualification has been removed retrospectively by the Rajasthan Legislative Assembly by enacting the impugned Act.
Mr. Chagla, learned Counsel for the respondent, contends that the Rajasthan State Legislature was not competent 'to declare retrospectively ' under article 191 (1) (a) of the Constitution.
It seems to us that there is no force in this contention.
It has been held in numerous cases by this Court that the State Legislatures and Parliament can legislate retrospectively subject to the provisions of the Constitution.
Apart from the question of fundamental rights, no express restriction has been placed on the power of the Legislature of the State, and we are unable to imply, in the context, any restriction.
Practice of the British Parliament does not oblige us to place any implied restriction.
We notice that the British Parliament in one case validated the election : [Erskine May 's Treatise on the Law, Privileges Proceedings & Usage of Parliament Seventeenth (1964) Edition] "After the general election of 1945 it was found that the persons elected for the Coatbridge Division of (1) SupCI 9 852 Lanark and the Springbourn Division of Glassgow were disqualified at the time of their election because they were members of tribunals appointed by the Minister under the Rent of Furnished Houses Control (Scotland) Act, 1943, which entitled them to a small fee in respect of attendance at a Tribunal.
A Select Committee reported that the disqualification was incurred inadvertently, and in accordance with their recommendation the Coatbridge and Springburn Elections (Validation) Bill was introduced to validate the irregular elections [H.C. Deb.
(1945 46) 414, c. 564 6].
See also H.C. 3(1945 46); ibid.
71 (1945 46) and ibid.92 (1945 46).
" We have also noticed two earlier instances of retrospective legislation, e.a., The House of Commons (Disqualification) 1813 [Halsbury Statutes of England p. 467] and Sec.
2 of the Re election of Ministers Act, 1919 (ibid.
p. 515).
Great t stress was laid on the word 'declared ' in article 191(1) (a), but we are unable to imply any limitation on the powers of the Legislature from this word.
Declaration can be made effective as from an earlier date.
The apprehension that it may not be a healthy practice and this power might be abused in a particular case are again no grounds for limiting the powers of the State Legislature.
It is also urged that by enacting the impugned Act the State Legislature has amended the 1951 Act.
We are unable to appreciate this contention.
The State Legislature has exercised its powers under article 191 to declare a certain office not to have ever disqualified its holder.
The impugned Act does not amend or alter the 1951 Act, in any respect whatsoever.
It is said that under the 1951 Act as it existed before the impugned Act was passed, the appellant was not qualified to be chosen for this particular election.
By enacting the impugned Act the appellant 's disqualification has been removed and the 1951 Act is, so to say, made to speak with another voice.
But that is what the State Legislature is entitled to do, as long as it does not touch the wording of the 1951 Act.
The answer given by the 1951 Act may be different but this is because the facts on which it operates have by valid law been given a different garb.
It is further urged that the impugned Act violates article 14 of the Constitution because the Central Government might have appointed Government Pleaders under rule 8B of Order 27 and the impugned Act nowhere mentions the alleged offices held by 853 them.
No material has been placed to show that any such offices exist.
We cannot, therefore, entertain this point.
In view of the above reasons We are of the opinion that the impugned Act is valid and removes the disqualification if it existed before.
There is force in the third point raised by the learned counsel for the appellant.
Section 82 of the Representation of the People Act, 1 of 1951, reads as follows "81.
A petitioner shall join as respondents to his petition (a) where the petitioner, in addition to claiming a ,declaration that the election of all or any of the returned candidates is void, claims a further declaration that be himself or any other candidate has been duly elected.
all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition.
In this context the words 'any other candidate ' plainly mean a candidate in the election for the constituency which is the subject matter of the petition.
In the result the appeal is allowed, the judgment of the High Court set aside and the petition dismissed.
In the circumstances of the case the parties will bear their own costs throughout.
V.P.S. Appeal allowed.

summary:
Disputes between the State of Rajasthan and a company were referred to arbitration and the Government Advocate was appointed to represent the State.
Another advocate was appointed to assist the Government Advocate but as the advocate was table to appear, the appellant was no appointed under 0.27, r. 8B of the Civil Procedure Code, as Special Government 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 article 191 of the Constitution.
The High Court set aside the election.
While the appeal was pending in this Court, Rajasthan Act 5 of 1969 was passed declaring among others that the holder of the office of a Special Government Pleader was not disqualified from being chosen or for being a member of the State Legislative Assembly; and by section 2(2), the Act was made retrospective removing the appellant 's disqualification retrospectively.
On the questions : (1) 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 constituency, again t whom corrupt practices were alleged, was not impleaded as a party, HELD : (1) (Per Sikri, Ray and Jaganmohan Reddy, JJ.) : The appellant was not holding an office of profit.
(a) Before a person becomes subject to the disqualification in article 191(1) there must be an office which 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 existence 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 whatever terms to do the duties which were assigned to him, his employment 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.
A B; 850 G H]
Cl/70 8 836 (b) A reading of section 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 Pleader could be deemed to be a Government Pleader.
Therefore, the notification of the appellant 's name under r. 8B as Special Government Pleader did not amount to the creation of an office.
[850 F G] (c) Assuming that a Government Pleader is an agent of the Government for purposes of receiving processes against the Government, the fact that processes could be served on an advocate, would not mean that the advocate was holding an office under his client.
[851 A B] (d) 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 member of the Legislative Assembly, it can make that provision under article 191 (1) (e) of the Constitution.
[851 C D] Great Western Railway Co. vs Bater, 8 Tax Cases 231 and McMillan vs Guest (H. M. Inspector of Taxes) 24 Tax Cases 190, applied.
Mahadeo vs Shantibhai & Ors.
[1969]2 S.C.R. 422 distinguished.
Sakhawat Ali vs State of Orissa, , referred to.
(Per Hidayatullah, C.J. and Mitter, J. dissenting) : The High Court was right in holding that the appellant held an office of profit.
[842 C] It was not a case of the appellant merely being briefed as a lawyer and given the Government litigation.
On the other hand an office, that of Special Government Pleader was created, and since the office of a Government Pleader is an office of profit, the office of Special Government Pleader will equally be an office of profit.
It was an office which could be successively held, it was independent of its holder, it was a substantive position and as permanent as other supernumerary offices.
[841 FG; 842B] Mahadeo vs Shantibhai & Ors.
and The Statesman (P.) Ltd. vs H. R. Deb & Ors. ; applied.
McMillan vs Guest, and Great Western Railway Co. vs Bater, 8 Tax Cases 231, 235, referred to.
(2) (By Full Court) : The Act 5 of 1969 has removed the disqualification retrospectively.
Per Hidayatullah, C.J. and Mitter, J. : It is well recognised that Parliament and the Legislature of a State can make their laws operate retrospectively subject to limitations, if any, in the Constitution.
Any law that can be made prospectively may be made with retrospective operation except those which cannot operate retroactively.
In article 191 itself, power is reserved to the State Legislature to make a declaration that the holder of an office shall not be disqualified and there is nothing in the words of the Article to indicate that such a declaration cannot be made with retrospective effect, therefore, whatever may be the propriety of such legislation regard being had to legislative practice and the absence of a clear prohibition, express or implied.
the Act must be declared to have retrospective effect.
[843 B C, D F] 837 Per Sikri, Ray and Jaganmohan Reddy, JJ. : Parliament and the State legislatures can legislate retrospectively subject to the provisions of the Constitution.
No limitation on the powers of the Legislature to make a declaration validating an election, effective from an earlier date, is expressly stated nor could it be implied in article 191(1). ]851 F G; 852 D E] The apprehension that it may not be a healthy practice and might be abused is no ground for limiting the powers of the State Legislature.
[852 B] The impugned Act does not amend or alter the Representation of the People Act, 1951, in any respect whatsoever.
By enacting the impugned Act, the disqualification if any, which existed in the 1951 Act has been removed, but that is what the State Legislature is entitled to do under article 191 so long as it does not touch the wording of the 1951 Act.
[852 F G] (3) (By Full Court) : The words 'any other candidate ' in section 82(b) of the Representation of the People Act, 1951, who should be impleaded, refers to a candidate in the election for the constituency which is the subject matter of the petition, and not to a candidate from another constituency.
[843 G H; 853 D E]


judgement:
Appeal No. 1406 of 1969.
Appeal from the judgment and order dated April 17, 1969 of the Delhi High Court in Civil Writ No. 611 of 1968.
The appellant appeared in person.
Jagadish Swarup, Solicitor General, R. L. Mehta and R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by Ray, J.
This appeal by certificate from the judgment of the High Court at Delhi challenges the order dated 5th July, 1968 placing the appellant under suspension.
The appellant canvassed two grounds : first, that the order of suspension was passed on a report which was made mala fide, and, therefore, the order of suspension was bad; secondly, the order of suspension was made under sub rule (1) of Rule 7 of the All India Service (Appeal and Discipline) Rules, 1955, and is, therefore, liable to be quashed.
The appellant was appointed to the Indian Police Service in the year 1935.
He was posted as Inspector General of Police of the State of Andhra Pradesh, on 1 November, 1956.
He was ,confirmed as Inspector General of Police, Andhra Pradesh in the year 1957.
On 14 May, 1966, he reached the age of 55 years. 'He, however, continued to work as Inspector General of Police, Andhra Pradesh up to 1 August, 1967.
He was then posted as Special Inspector General of Police for the revision of Police Standing Orders.
123 Some time in the year 1967 the Chief Minister of Andhra Pradesh ordered that the Chief Secretary should make an enquiry with regard to certain allegations against the appellant.
The Chief Secretary recommended that the Vigilance Commissioner in the State of Andhra Pradesh might be requested to look into the matter.
The Vigilance Commissioner advised that the enquiry should be conducted by an independent agency like the Central Bureau of Investigation.
The Central Bureau of Investigation thereafter made an enquiry.
The appellant was given allegations to answer.
The appellant submitted explanation and was examined.
The Central Bureau of Investigation made a report on the enquiry.
On 1 1 July., 1968 the Government of India, Ministry of Home Affairs made an order placing the appellant under suspension.
The appellant alleged as follows.
The Chief Minister of the State of Andhra Pradesh was inimical and hostile to the appellant since the time of the General Elections in the year 1967.
The investigation by the Central Bureau of Investigation was conducted by persons who were hostile to the appellant.
The Ministry of Home Affairs ' Government of India, should not have relied on the report because the initiation and the conduct of the enquiry were motivated mala fide on the part of the Chief Minister of the State and other persons.
The other contention of the appellant was that under sub rule (1) of Rule 7 of the All India Service (Appeal and Discipline) Rules, 1955 the order of suspension could be made only if disciplinary proceeding was initiated and the Government was satisfied that there should be an order and in the present case the order did not satisfy the provisions of the rule, and therefore, the order is bad.
The pre eminent question in this appeal is whether the order of suspension is in infraction of Rule 7.
Rule 7 is as follows "(1) If having regard to the nature of the charges and the circumstances in any case the Government which initiates any disciplinary proceeding is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started that Government may (a) if the member of the Service is serving under it pass an order placing him under suspension, or (b) if the member of the Service is serving another Government, request that Government to place him under suspension, pending the conclusion of the inquiry and the passing of the final order in the case 124 Provided that in cases where there is a difference of opinion between two State Governments the matter shall be referred to the Central Government whose decision thereon shall be final.
(2). . . . . (3) A member of the Service in respect of or against whom, an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government under which he is serving, be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude".
Rule 7 sub rule (1) contemplates suspension when disciplinary proceeding is initiated and the Government is satisfied that it is necessary to place a member of the Service under suspension.
It was contended by the appellant that the order of suspension was made under sub rule (1) in the present case without any disciplinary proceedings.
The order does not have any reference to sub rule (1) of Rule 7.
The order recites first that there are ' serious allegations of corruption and malpractice against the appellant, secondly that the enquiry made by the Central Government revealed that there is a prima facie case and thirdly that the Government of India after considering the available material and having regard to the nature of the allegations against the appellant, the circumstances of the case is satisfied that it is necessary and desirable to place the appellant under suspension.
At the hearing of the appeal Mr. Solicitor General produced the correct copy of the First Information Report dated 17 August, 1967 under section 154 of the Code of Criminal Procedure.
It will appear from the report that the appellant was charged with offences under the Prevention of Corruption Act, 1947 and the time of occurrence was the period 1960 to 1967.
Sub rule (3) of Rule 7 states that a member of the Service in respect of, or against whom, an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government under which he is serving, be placed under suspension until the termination of all proceedings relating to that charge.
The appellant contended that the appellant was not suspended under sub rule (3) of Rule 7.
That is a contention The facts are that there was an investigation and the trial is awaiting relating to a criminal charge against the appellant.
The order of suspension has to be read in the context of the entire case and 1 2 5 combination of circumstances.
This order indicates that the Government applied its mind to the allegations, the enquiries and ;the circumstances of the case.
The appellant has failed to establish that the Government acted mala fide.
There is no allegation against any particular officer of the Government of India about acting mala fide.
The order or suspension was made under subrule (3) and does not suffer from any vice of infringement of Rule 7.
The appellant made allegations against the Chief Minister of Andhra Pradesh and other persons some of whose names were disclosed and some of whose names were not disclosed.
Neither the Chief Minister nor any other person was made a party.
The appellant filed an affidavit in support of the petition.
Neither the petition nor the affidavit was verified.
The affidavits which were filed in answer to the appellant 's petition were also not verified.
The reason for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of, rival parties.
Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records.
The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations.
In essence verification is required to enable the Court to find out as to whether 'it will be safe to act on such affidavit evidence.
In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence.
The affidavit evidence assumes importance in the present case because of allegations of mala fide acts on the part of the respondents.
The appellant alleged that the Union of India made the order of suspension because of the pressure of the Chief Minister of the State of Andhra Pradesh.
The appellant, however, did not name any person of the Union of India who acted in that manner and did not implied the Chief Minister as a party.
In order to succeed on the proof of mala fides in relation to the order of suspension, the appellant has to prove either that the order of suspension was made mala fide or that the order was made for collateral purposes.
In the present case, the appellant neither alleged nor established either of these features.
The appellant contended that the report of the Central Bureau of Investigation was made mala fide.
The appellant appeared before the investigation authorities.
We ate not concerned with the correctness and the propriety of the report.
We have only to examine whether the order of suspension was warranted by the rule and also whether it was in honest exercise of powers.
The order of suspension satisfied both the tests in the present case.
126 In view of the fact that the criminal case is pending, it is desirable not to express any opinion on the merits and demerits of the charges as also the rival contentions of the parties because such an opinion may cause prejudice.
The appellant raised a contention as to the vires of the and the validity of the investigation.
In view of the fact that sanction for the trial is pending pursuant to the investigation under the First Information Report dated 17 August, 1967 the appellant did not want a decision on this point in this appeal because the appellant would raise that contention in the criminal case.
We have, therefore, left open the contention as to the to enable the appellant to agitate that contention, if so advised, in the criminal trial.
The appeal, therefore, fails and is dismissed.
In view of the fact that there was no order as to costs in the High Court, we are of opinion that each party should bear its costs in this Court.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant was appointed to the Indian Police Service in 1935.
in November 1956 he was posted in Andhra Pradesh as Inspector General of Police and in August 1967 he was posted as Special Inspector General of Police for revision of Police Standing Orders.
In that year the Chief Minister of Andhra Pradesh ordered the Chief Secretary to make an enquiry with regard to certain allegations against the appellant.
The Chief Secretary recommended that the matter be referred to the Vigilance Commissioner who advised that the matter be investigated by the Central Bureau of Investigation.
Thereafter the said Bureau made an enquiry, considered the appellant 's explanations and made a report.
In July 1968 the Government of India, Ministry of Home Affairs placed the appellant under suspension.
The appellant filed a writ petition in the High Court at Delhi and failing there filed an appeal in this Court.
The appellant 's contentions that fell for consideration were (i) that under sub r.
(1) of R. 7 of the All India Service (Appeal and Discipline) Rules, 1955 the order of suspension could be made only if disciplinary proceeding was initiated and the Government was satisfied that there should be an order; in the present case the order did not satisfy this condition and was therefore bad; (ii) that the Chief Minister of Andhra Pradesh was hostile to him and the investigation by the Central Bureau of Investigation was conducted by persons hostile to him; the Ministry of Home Affairs should not have relied on the report since the enquiry was initiated and conducted mala fide.
HELD, : (i) The order in question had no reference to sub r.
(1) of R. 7, but was an order under R. 7(3) which states that a member of the service in respect of or against whom an investigation inquiry or trial is pending may, at the discretion of the Government under which he is serving be placed under suspension until the termination of all proceedings relating to the charge.
The appellant, as appeared from the First Information Report against him stood charged with offences, under the Prevention of Corruption Act and the time of occurrence was the period 1960 to 967.
There was an investigation and the trial was awaiting relating to the criminal charge against the appellant.
The order of suspension had to be read in the context of the entire case and the combination of circumstances.
This order indicated that the Government applied its mind to the allegations, the enquiries and the circumstances of the case.
The appellant had failed to establish that the Government acted mala fide.
There was no allegation against any particular officer of the Government of India about being mala fide.
The order of suspension, thus made under sub r.
(3) did not suffer from any vice of infringement of R. 7(1).
[124 D 125 B] (ii)The affidavits of the parties in the present case suffered from the mischief of lack of verification with the result that the affidavits should C.I./70 9 122 not be admissible in evidence.
The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations.
in essence verification is required to enable the court to find out as to whether it will be safe to act on such affidavit evidence.
[125 C E] The affidavit evidence assumed importance in the present case because of allegations of mala fide acts on the part of the respondents.
The appellant did not name any person of the Union of India who acted in that manner and did not implied the Chief Minister as a party.
In order to succeed on the proof of mala fides in relation to the order of suspension, the appellant had to prove either that the order of suspension was made mala fide or that the order was made for collateral purposes.
The appellant had neither alleged nor established either of these features.
[125 F G] The allegation of mala fide against the Central Bureau of Investigation did not arise for consideration because what was in question was not its report but the order of suspension which satisfied R. 7(3) and was in honest exercise of powers.
[125 H]


judgement:
Appeal No. 2373 of 1966.
Appeal from the judgment and order dated September 1964 of the Bombay High Court Nagpur Bench in Special Civil Appli cation No. 471 of 1964.
178 C.B. Agarwala, G., L. Sanghi, P. N. Kukde and A. G. Ratna parkhi, for the appellants Nos. 1, 2 and 4 to 6.
R. M. Hazarnavis and A. G. Ratnaparkhi, for appellant No.3.
section T. Desai, M. section Gupta and section K. Dhingra, for respondent No. 1.
N. section Bindraand section P. Nayar, for respondents Nos. 2 and 3.
The Judgment of the Court was delivered by Shah, J.
Gendalal hereinafter called 'the mortgage ' filed Suit No. 11 of 1939 for recovery of the amount due under a deed of mortgage of proprietary rights in certain villages executed in 1929 by Prahlad father of the appellant.
A preliminary mortgage decree was passed declaring that Rs. 2,16,309/11/9 were due on the mortgage.
The decree was made absolute for sale.
The mortgage commenced in 1948 proceedings for executing the decree.
On March 31, 1951, the Madhya Pradesh Abolition of Pro prietary Rights (Estates, Mahals, Alienated Lands) Act 1 of 1951 was brought into force.
By virtue of section 3 of that Act the proprietary rights of holders of estates, mahals, alienated villages.
and alienated lands stood vested in the State.
Chapter IV of the Act provided for "determination of debts".
The mortgagor Prahlad applied on April 26, 1951 to the Claims Officer under section 19 of that Act for "determination of the debt" due to the mortgagee and for scaling down the debt.
The mortgagee contended that the debt had, by adjudication of the Court, been merged into a decree and there was no "secured debt" which could be determined or scaled down.
The Claims Officer held that there was a debt due to the mortgagee, that it was a secured debt, and that he had jurisdiction to "determine the debt".
On November 19, 1951 the Claims Officer directed the mortgagee to submit a statement of the claim under section 22 of the Act.
Against the order of the Claims Officer, the mortgagee appealed to the Board of Revenue.
Following the judgment of the Nagpur High Court in Ramkishan vs Board of Revenue, Madhya Pradesh(1), the Board of Revenue set aside the order holding that the Claims Officer had no jurisdiction to decide the question Whether there was a secured debt, and that the Civil Court alone was competent to decide that question.
In the execution application filed by the mortgagee the Additional District Judge held that there was a secured debt within the meaning of section 19 read with section 17(1) of the Act due to the mortgagee under the mortgage, notwithstanding the decree passed by the Civil Court.
(1) I.L.R 179 On October 3, 1955, the High Court of Nagpur in Jethalal Bhawanji vs Prabhakar Sadashiv(1) overruled the Judgment in Ramkrishna 's case (2 ) , and held that the Claims Officer had jurisdiction to decide whether a debt was a secured debt.
The mortgagee then filed on January 23, 1958, a statement of his claim.
On March 26, 1958, the appellant son of the original mortgagor Prahlad contended that the debt stood discharged because the mortgagee had failed to file a statement of his claim as ordered on November 19, 1951 by the Claims Officer.
By order dated December 24, 1962 the Claims Officer upheld the contention of the appellant.
Against that order the mortgagee preferred an appeal to the Commissioner, Nagpur Division.
At the hearing of the appeal, the appellant contended that the Commissioner had no jurisdiction to hear the appeal.
The Commissioner rejected the contention of the appellant and set aside the order of the Claims Officer discharging the debt.
A petition moved by the appellant in the ' High Court of Bombay at Nagpur challenging the order passed by the Commis sioner was summarily dismissed.
With certificate granted by the High Court, this appeal has been preferred.
Counsel contended that the mortgagee failed to file a state ment of account pursuant to the order dated November 19, 1951 by the Claims Officer, and by virtue of section 22 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1 of 1951 the debt stood discharged.
But the order of the Claims Officer holding that there was a secured debt was set aside in appeal by the Board of Revenue.
Any proceeding consequent upon that adjudication was, in view of the judgment of the Board of Revenue, unauthorised.
That decision of the Board of Revenue became final between the parties.
It cannot be contended that because in another proceeding the High Court of Nagpur expressed the view that the judgment on which the Board of Revenue relied was erroneous, the direction of the Claims Officer requiring the mortgagee to file his statement of account was revived, and if the directions of the Claims Officer word not complied with, the debt due to the mortgagee was discharged.
The order of the Claims Officer was reversed by the Board of Revenue, and all directions given by the Claims Officer, pursuant to his order calling upon the mortgagee to file a statement of his claim, stood annulled.
The Nagpur High Court in Jethalal Bhawanji 's case(1), it is true, decided that the Claims Officer was competent under section 23 of M.P. Act 1 of 1951 to determine whether a debt is a secured debt.
But the first order of the Claims Officer was annulled by order of the Board of (1) I.L.R. (2) I.L.R. (19541 Nag.
180 Revenue and thereafter that officer did not pass any order under section 22 of Act 1 of 1951 directing that the proceeding shall continue, and further directing that a notice shall issue calling upon the mortgagee to file a statement of the claim.
Until a notice, valid in law, directing that a statement be filed was served upon the mortgage and he failed to comply with it, the debt could not be discharged.
Section 22 enacts a penal provision and unless the conditions precedent are satisfied, the debt could not by operation of the statute be discharged).
The High Court was right in dismissing the petition.
The appeal fails and is dismissed with costs.

summary:
A mortgagor applied to the Claims Officer under section 19 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals and Alienated Lands) Act 1 of 1951 for determination of the debt due to the mortgagee and for scaling down the debt.
The mortgagee contended that the debt, by adjudication of court, had been merged into a decree and there was no secured debt which could be determined or scaled down.
The Claims, Officer held that there was a debt due to the mortgagee, that it was a secured debt and that he had jurisdiction for "determining the debt" and directed the mortgagee to submit a statement of the claim under section 22 of the Act.
On appeal by the mortgagee, the Board of Revenue, following the judgment of the High Court in Ramkishan vs Board of Revenue, Madhya Pradesh I.L.R. , held that the Claim Officer had 'no jurisdiction to decide whether the debt was a secured debt.
Upon the High Court overruling Ramkrishna 's case in Jethalal Bhawanji vs Prabhakar Sadasiv I. , the mortgagee field a statement of his claim before the Claims Officer.
The mortgagor contended that the debt stood discharged under section 22 of the Act as the mortgagee had failed to file a statement of his claim as originally directed by the Claims Officer.
The Claims Officer upheld the contention.
The Commissioner in appeal set aside the order of the Claims Officer discharging the debt and a petition in the High Court against the Commissioner 's order was summarily dismissed.
Dismissing the appeal to this Court, HELD : Section 22 enacts a penal provision and unless the conditions precedent are satisfied, the debt could not by operation of the statute be discharged.
In the present case the order of the Claims Officer was reversed by the Board of Revenue, and all directions given by the Claims Officer, pursuant to his order calling upon the mortgagee to file a statement of his claim, stood annulled.
Thereafter the Claims Officer did not pass any order under section 22 of the Act 1 of 1951 directing that the proceeding shall continue and further directing that a notice shall issue calling upon the mortgagee to file a statement of the claim.
Until a notice, valid in law, directing that a statement be filed was served upon the mortgagee and he failed to comply with it, the debt could not be discharged.
[179 G 180 B]


judgement:
iminal Appeal No. 72 of 1952.
Appeal by Special Leave from the Judgment and Order dated the 30th November, 1950, of the High Court of Judicature at Nagpur (Dev and Rao JJ.) in Contempt of Court Proceedings Miscellaneous Petition No. 16 of 1950.
Dr. Bakshi Tek Chand, (Hardyal, Hardy, B. R. Mandlekar, B. D. Kathalay, Ganpat Rai and K. L. Arora, with him) for the appellant.
C. K. Daphtary, Solicitor General for India (T. P. Naik and I. N. Shroff, with him) for respondent No. 1.
T. L. Shevde, Advocate General for the State of Madhya Pradesh, (T. P. Naik and I. N. Shroff, with him) for respondent No. 2.
B. Sen and I. N. Shroff for respondent No. 3. 1954.
October 15.
The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J.
This appeal by special leave arises out of contempt proceedings taken against two very senior members of the Nagpur Bar and one of their clients.
Shri Shareef, one of the appellants, at one time was Minister for Law and Justice in the State.
Dr. Kathalay, the second appellant, is a Doctor of Laws and an author of legal works.
The matter which resulted in the issue of the show cause notices for contempt took a protracted course and has to a certain extent resulted in embittered feelings.
What happened was this: Shri Zikar who was charged along with the two appellants for contempt made an application under article 226(1) of the Constitution for enforcement of his fundamental right, alleging that he was a citizen Of Bharat and that the Custodian of Evacuee Property and the police were taking wrongful action against him and treating him as a national of Pakistan which he never was.
He prayed for an interim order of prohibition against the State from deporting him after the expiry of the permit.
The High Court granted the interim order of prohibition against the action complained.
At the hearing of the case on 11th August, 759 1950, a preliminary objection was raised on behalf of the State that Zikar had suppressed material facts in the petition filed by him and that the petition was therefore liable to be dismissed without going into the merits.
Shri Shareef, who was counsel for Zikar, combated this contention and further submitted that the preliminary objection could not be adequately dealt with without going into the merits of the case.
On behalf of the State another affidavit was filed on 17th August, 1950, stating certain facts, and Zikar was also directed to file an affidavit in reply by the 21st August, 1950, and this be did by that date.
The relevant proceedings of that date are recorded in these terms: " Shri Shareef for the petitioner.
Shri Naik for the respondent.
He files an affidavit and copies of applications dated 25th February, 1949 and 19th January, 1950.
Shri Shareef files a statement and an affidavit.
His attention was drawn to paragraph 4 of the affidavit and he was asked whether his client has really understood the contents which are in English adding that he might change in the Supreme Court and say that he had not understood them.
Shri Shareef then said that he has explained the contents to his clients.
Paragraph 6 of the statement and the affidavit is uncalled for as the appellant only desired to file an affidavit with reference to paragraph 10 of the affidavit of the non applicant: Vide order sheet dated 17th August, 1950.
A remark was made by one of us " Whether paragraph 6 was inserted for founding an argument before the Supreme Court.
" Shri Shareef replied he has stated facts. . .
Thereafter Shri Naik continued his arguments on the preliminary point till we rose for lunch.
When we reassembled Shri Shareef informed us that he wants time to apply for transfer of this case to another Bench because of the observations made by us regarding paragraphs 4 and 6 of his affidavit.
Case is therefore adjourned to 25th August, 1950 to enable Shri Shareef to make an application in the meanwhile.
" On the 23rd August, 1950, an application for the transfer of the case from the Bench hearing it to 760 another Bench of the High Court was made on the following grounds: 1 "The observations and references to the Supreme Court by Rao and Deo JJ.
created a bona fide belief in the applicant 's mind that they were prejudiced against him and had made up their minds and indicated that he shall have to go in appeal to the Supreme Court.
The observations and references to the Supreme Court were absolutely unnecessary and left no doubt in the applicant 's mind that he would not receive justice at the hands of the Hon 'ble Judges.
Prayer: In the interest of dispensation of impartial justice, the case be transferred to another Civil Division Bench for disposal.
" This application was not only signed by Zikar but also by the two appellants as counsel for the applicant and was rejected in due course and with that matter we are no longer concerned.
The preliminary objection raised by the State was upheld and the petition under article 226 was dismissed.
The learned Judges then ordered notices to issue to the applicant and his two counsel to show cause why they should not all be committed for contempt for scandalizing the Court, with a view to perverting the due course of justice by making statements in the transfer application impeaching the impartiality of the Judges.
Dr. Kathalay filed his written statement in reply to the show cause notice, on the 4th October, 1950.
He averred that he could not honestly admit that he scandalized the Court and committed contempt either in fact or in law and contended that in his whole career at the Bar for forty years he observed the highest traditions of this learned profession, upholding always the dignity of the Courts and that he had no animus against the Judges of the Division Bench.
He asserted that by signing the application he did not scandalize or intend to scandalize the Court and that he bona fide thought that an application could be made for transferring a case in the High Court from one Bench to another and that the question did not concern him alone but 761 the Bench and Bar generally and a question of great principle emerged, viz., whether a counsel was guilty of contempt in signing such an application, or whether it was his professional duty to do so if his client was under that bona fide impression.
In the last paragraph of the reply it was stated " Whatever the circumstances, I do see how much this application for transfer dated the 23rd August, 1950, has hurt the feelings of the Hon 'ble Judges and I very much regret that all this should have happened.
" Shri Shareef also put in a similar written statement.
He asserted that when the transfer application was made he did not know or believe the law to be that it could not be made, and rightly or wrongly he was always under the impression that an application could be made for transferring a case in the High Court from one Bench to another.
He also expressed similar regret for what had happened.
Further written statement was filed by Shri Shareef on 16th October, 1950.
In paragraph 7 of that statement he said as follows: ' "I was grieved to know that the accusation against me in these proceedings should be of malice and mala fides for my taking up Zikar 's brief in connection with his application for transfer, dated the 23rd August, 1950.
If I am thus defending the proceedings, I am doing so for vindicating my professional honour and personal self respect, and it would be a misfortune if this was all going to be construed as aggravating the contempt, as hinted by the Hon 'ble Court during my counsel 's arguments, though remotely.
But even as I am making my defence, it is, I admit, quite likely that I committed an error of judgment in acting as I did, causing pain to the Hon 'ble Judges, which I deeply regret, as I have already done before and so has my counsel on my behalf in the course of his arguments." (The Judges in the Judgment under appeal have taken exception to the last sentence of this paragraph.) Dr. Kathalay also put in a similar reply.
The High Court in a very lengthy judgment in which very large number of authorities were considered and 762 discussed, held that the application for transfer constituted contempt because the Judges were scandalized with a view to diverting the due course of justice.
The two advocates who signed and prosecuted the application were found guilty of contempt.
As regards the plea of error of judgment, this is what the learned Judges said: " The attitude of defiant justification adopted by them in spite of our pointing out at a very early stage in these proceedings that we would be prepared to consider any mistake on their part renders it difficult for the court to accept the belated plea of an error of judgment.
Even the expression 'error of judgment ' was not so much mentioned in the argument until the last day of the argument.
We have already shown in para.
100 how it was introduced in the two statements on 16th October, 1950, quite contrary to fact.
If the two advocates felt that there was an error of judgment on their part, it would have been more appropriate to make a candid and clear admission of that and make reparation for the injury done by an adequate apology.
We cannot treat the expression 'I very much regret that all this should have happened ' as an apology at all.
Nor were we ever asked to treat it as such.
What is it that the two advocates regret ? So man things have happened since 21st August, 1950.
Any expression of regret to merit consideration must be genuine contriteness for what the contemners have done.
" In the result the learned Judges passed the following order : " We accordingly sentence Shri M. Y. Shareef to pay a fine of Rs. 500 or in default to undergo simple imprisonment for two weeks and we Sentence Dr. D.W. Kathalay to pay a fine of Rs.
1000 or in default to undergo simple imprisonment for one month.
We are not sure if the sentences we have awarded are adequate to the gravity of the offence, but on this occasion we refrain from being stern and bringing the full power of the court into play considering the misconceptions about the advocate8 ' responsibility that seem to have so far prevailed at any rate in a section of the Bar." 763 Leave to appeal to this Court was refused but was granted here.
On the 12th May, 1954, when the appeal was heard by this Court, we recorded the following order: "The appellants have tendered an unqualified apology to this court and to the High Court, and they are prepared to purge the contempt for which they have been convicted.
In our opinion, the apology is a sincere expression of their regret for what happened in court at the time the transfer application was made and for the allegations made therein.
We therefore adjourn this appeal for two months and direct that the apology tendered here be tendered to the Division Bench before which the contempt is said to have been committed.
We are sending it to the High Court with the full confidence that the learned Judges will consider the apology in the spirit in which it has been tendered and they will pass appropriate orders and send an intimation to this court as to what orders they pass.
" When the case went back to the High Court, it again took an unfortunate turn.
The learned Judges posed the question that they had to consider in this form " The question is whether remission of the punishment awarded is called for in view of the statement now filed by the contemners," and it was answered thus: " We are constrained to observe that the spirit in which the apology was tendered here is not much different from that originally shown.
The idea of the contemners is that because they have filed the apology as directed, they have a right to expect the acceptance of it by the court.
How else can the absence of any prayer or what the contemners desire be explained ? We record that there was hardly anything apologetic the way the apology was tendered. . . .
We neither gave the extreme penalty which we might well have given, nor did we give the maximum of the lesser penalty.
But for the manner of justification and the contumacy, there might not have been a sentence of fine at all." 764 Having approached the matter thus, the learned Judges referred to a large number of cases for the admitted proposition of law that a " sincere apology does not entitle a contemner as of right to a remission of the sentence.
" It was further thought that acceptance of apology would lead to an invidious distinction being made in the case of two advocates and Zikar.
In the result the apology was not accepted and the report concluded with the following observations : " If in the circumstances of this case the apology were to be accepted, we would be encouraging the notion that it is the contemners 's right to get his apology accepted when he chooses and in whatever manner he tenders even in a case where he has aggravated the original offence.
We will be unsettling established principles, and setting a bad precedent.
Above all, we would be dealing a blow to the authority of the court, the consequence of which cannot be viewed with equanimity.
" When the appeal came back to us, we asked Dr. Tek Chand who appeared for the two advocates whether his clients were even now genuinely sorry for signing the transfer application and whether the expression of regret made in this Court was a genuine expression of their feelings, Dr. Tek Chand replied in the affirmative and emphatically said " Absolutely".
In this situation, the question for consideration in the appeal now is whether the two appellants have purged the contempt by tendering an unqualified apology in this Court as well as to the High Court, the genuineness of which has been again emphasized by their counsel before us, or whether the sentence of fine awarded to them by the High Court should necessarily be maintained for upholding the authority and dignity of the Court The proposition is well settled and self evident that there cannot be both justification and an apology.
The two things are incompatible.
Again an apology is not a weapon of defence to purge the guilty of their offence; nor is it intended to operate as a universal panacea, but it is intended to be evidence of real contriteness.
The appellants having tendered an 765 unqualified apology, no exception can be taken to the decision of the High Court that the application for transfer did constitute contempt because the judges were scandalized with a view to diverting the due course of justice, and that in signing this application the two advocates were guilty of contempt.
That decision therefore stands.
The fact however remains, as found by the High Court, that there was at the time these events happened considerable misconception amongst a section of the Nagpur Bar about advocates ' responsibilities in matters of signing transfer applications containing allegations of this character.
It cannot be denied that a section of the Bar is under an erroneous impression that when a counsel is acting in the interests of his client, or in accordance with his instructions he is discharging his legitimate duty to his client even when he signs an application or a pleading which contains matter scandalizing the Court.
They think that when there is conflict between their obligations to the Court and their duty to the client, the latter prevails.
This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that counsel who sign applications or pleadings containing matter scandalizing the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds there for, with a view to prevent or delay the course of justice, are themselves guilty of contempt of Court, and that it is no duty of a counsel to his client to take any interest in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications.
Once the fact is recognized as was done by the High Court here, that the members of the Bar have not fully realized the implications of their signing such applications and are firmly under the belief that their conduct in doing so is in accordance with professional ethics, it has to be held that the act of the two appellants in this case was done under a mistaken view of their rights and duties, and in such cases even a qualified apology may well be considered by a Court.
In border 98 766 line cases where a question of principle about the rights of counsel and their duties has to be settled, an alternative plea of apology merits consideration; for it is possible for a judge who hears the case to hold that there is no contempt in which case a defence of unqualified apology is meaningless, because that would amount to the admission of the commission of an offence.
In this case the learned judges themselves had to wade through a large volume of English and Indian case law before they could hold that the act of the appellants constituted contempt and thus it could not be said that the matter was so patent that on the face of it their act amounted to contempt.
Moreover, it appears from the proceedings that the counsel were genuinely under the belief that their professional duties demanded that, when their client was under a bonafide belief that the Court was prejudiced against him and decided to apply for transfer, the were bound to take his brief and sign the application.
We cannot help observing that the admitted reference by the judges to the Supreme Court in their remarks during the course of the hearing was unfortunate and seems to indicate an unnecessary and indecorous sensitiveness which may well have been misunderstood by the party and the advocates.
The counsel seem to have genuinely believed that they were right in what they did, though as a matter of fact if they had studied the law more deeply, they would not have done so.
In these circumstances it cannot be said that what they did was wailful and their conduct in getting the law settled in this matter by raising the defence that they did was contumacious.
The authorities relied upon by the High Court have no application to cases of this character.
How else is the validity of a defence of this kind to be settled, except by an argument that the counsel was entitled in the interests of his client to advise a transfer and give grounds for that transfer which were bona fide believed by the client.
Every form of defence in a contempt case cannot be regarded as an act of contumacy.
It depends on the circumstances of each case and on the general impression about a particular rule of ethics amongst the members 767 of the profession.
The learned Judges, as already said, have themselves said that such an impression was prevalent since along time amongst a section of the Bar in Nagpur.
It was thus necessary to have that question settled and any effort on the part of these two learned counsel to have that point settled cannot be regarded as contumacy or a circumstance which aggravates the contempt.
We think that the expression of regret in the alternative in this case should not have been ignored but should have been given due consideration.
It was made in the earliest written statement submitted by the counsel and cited above.
Once however the High Court found that they were guilty of contempt, they would have been well advised to tender an unqualified apology to that Court forthwith.
But perhaps they were still under the delusion that they were right and the Court was in error, and that by coming to this Court they might be able to have the q uestion of principle settled as they contended.
As soon as we indicated to the learned counsel that they were in error, they and their counsel immediately tendered an unqualified apology which, as already indicated, was repeated again in absolute terms at the second hearing.
We have not been able to appreciate why the learned Judges of the High Court should have doubted the genuineness of this apology.
It certainly was not the object and could not be the object of the learned Judges of the High Court to humiliate senior counsel and to expect something more from them than what they had already done in this Court.
While unhesitatingly deprecating very strongly the conduct of the appellants in scandalising the Court by becoming parties to an unnecessary and untenable transfer application, we still feel that in the matter of measure of punishment the High Court should have after an unqualified apology was tendered taken a different view.
We have no doubt that whatever the learned Judges of the High Court did in this case, they did in the firm belief that the dignity of the Court had to be maintained and the members of the Bar, howsoever big or learned, cannot be allowed to scandalize the judges or to divert the course of justice 768 by attempting to take a case out from one Bench to another Bench of the Court when they find that the Bench is expressing opinions seemingly adverse to their clients.
We have firm hope that this kind of conduct will not be repeated by counsel in any High Court in this country, and no more test cases of this kind would have to be fought out.
In the peculiar circumstances of this case and in view of the circumstance that the learned Judges themselves were of the opinion that there would not have been a sentence of fine at all if there was no plea of justification and there was no contumacy, we are of the opinion that the unqualified apology was sufficient to purge the contempt committed by the two appellants as we have reached the conclusion contrary to that arrived at by the High Court that the plea of justification in this case did not amount to contumacy.
It has also to be kept in view that condemnation for contempt by a High Court of senior members of the Bar is itself a heavy punishment to them, as it affects them in their professional career and is a great blot on them.
There has been nothing said in the lengthy judgment of the High Court that these counsel in their long career at the Bar have ever been disrespectful or discourteous to the Court in the past.
This one act of indiscretion on their part in signing the application should not have been viewed in the very stringent manner in which the High Court viewed it in the first instance and viewed it again after we had sent the case back to it.
It is not the practice of this Court in special leave cases and in exercise of our over riding powers to interfere with a matter which rests in the discretion of the High Court except in very exceptional cases.
After a careful consideration of the situation that arises in this case we have reached the decision that the dignity of the High Court would be sufficiently upheld if the unqualified apology tendered in this Court in the first instance and reiterated in absolute terms by Dr. Tek Chand again at the next hearing is accepted and that apology is regarded as sufficient to purge the contempt.
The matter has become very stale and the ends of justice do not call for maintaining the punishment of fine on two senior 769 counsel for acting wrongly under an erroneous impression of their rights and privileges.
For the reasons given above we allow this appeal to the extent that the sentence of fine passed on both the appellants is set aside, and the unqualified apology given by them to this Court and the High Court is accepted.
We also desire to issue a strong admonition and warning to the two counsel for their conduct.
There will be no order as to costs in these proceedings throughout.
Appeal allowed.

summary:
A section of the Bar seems to be labouring under an erroneous impression that when an advocate is acting in the interests of his client or in accordance with his instructions he is discharging his legitimate duty towards him even when he signs an application or a pleading which contains matter scandalizing the Court and that when there is conflict between his obligations to the Court and his duty to the client, the later prevails.
It should be widely made known that an advocate who signs an application or pleading containing matter scandalizing the Court which tends to prevent or delay the course of justice is himself guilty of contempt of Court unless he reasonably satisfies himself about the prima facie existence of adequate grounds there for and that it is no duty of an advocate to his client to take any interest in such applications ; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications.
It is well settled that in a matter relating to the contempt of Court there cannot be both justification and an apology.
The two things are incompatible.
An apology is not a weapon of defence to purge the guilty of their offence, nor is it intended to operate as a universal panacea but it is intended to be evidence of real contri teness.
In border line cases where a question of principle about the rights of an advocate and his duties has to be settled an alternative plea merits consideration, for it is possible for a judge who hears the case to hold that there is no contempt in which case a defence of unqualified apology is meaningless, because that would amount to the admission of the commission of an offence.
Every form of defence in a contempt case cannot be regarded as an act of contumacy.
It depends on the circumstances of each case and on the general impression about a particular rule of ethics amongst the members of the profession.
97 758