S.C.R. SUPREME COURT REPORTS. 1167
Court which tries him could ‘award for any one of such offences. The maximum sentence which could have been impgsed upon ‘the appellant for any one of the offences of.which he had been convicted was one ear’s*imprisonment. In other words, even if separate The State of Orissa ?
sentences were passed under.s. 9, sub-ss. (a) and (b), the sum total of these sentences should not éxceed one year’s imprisonment. In the present case, the sentence imposed upon-the appellant has been in all 6 months, 3 months’ imprisonment under each count. It would appear, therefore, that the séntence passed upon the appellant did not contravene the provisions of s. 71 of the Indian Penal Code. In our opinion, the appellant was rightly.convicted under s. 9 (a) and (b) of the Opium Act, and: there has been no illegality in thé sentence imposed upon him.’
It was strongly urged on behalf of the appellant that there might be a reduction in the. sentence. Instead of a sentence of imprisonment being imposed, the appellant may be sentenced to a substantial fine. In our opinion, offences against the Opium Act are serious ones, and we cannot, accede to the request made. A sentence of 6 months’ imprisonment cannot be considered as tinduly severe.
The appeal is accordingly dismissed. °
‘ + j ; - M. RAMAPPA | . vw SANGAPPA AND OTHERS
(VENKATARAMA Alvar, GAJENDRAGADKAR and ' A. K. Sankar JJ.) ' tion Dispute—Disqualification for being chosen as member of Mate Assembly—Hereditary, village office—Whether office of pro- under the Government— Mysore Village Offices Act, 1908 (Mysore
4. of 1908), ss. 6, 7, 8—Representation of the People Act, 195% (43 of r95r), s. L00(r}(c)—Constitution of India, Art. rz,
The nomination papers of threé candidates for election as merfibers of the State Assembly were rejected by the Returning
Puranmall Agarwalia v
Imam J,
August ar.
Sangapp.s
Sarkay J.
Officer on-the ground that the first two of them were Patels and the third, a Shanbhog, of their villages and as such they were holders of offices of profit under the Government and consequently disqualified from membership of the State Assembly under ‘Art. 191 of the Constitution of India. Thé validity of the election was challenged by some of the picctors of the constituency by an election petition under s. I00(1}(c) o the Representation of the People Act, 1951,-on the ground ast the nomination papers of the three candidates were wrongly rejected. It was contended for the petitioners that the candidates in question were not holders of offices of profit under- the Government. because (1) they were holding their officés by hereditary right and not 1under the Government, and (2) there was no direct payment of their dues by the Government. It was not disputed that village offices are governed by the Mysore Village Offices Act, 1908, and ‘it was found that Patels and Shanbhogs were holding their offices by reason of the appointment by the Government, though in certain cases the statute gave the heir of the last holder a right to be appointed if the statutory requirements were fulfilled, that they worked under the control and supervision of the Government and were removable by it, and that their remuneration was paid by it out of its funds and assets :
Held, that the holder of a village office though he may Rave a hereditary right, does not get the office till he is appointed by the Government under whom the office is held. Accordingly, Patels and Shanbhogs are hdlders of offices of profit under the Government and their nomination papers were rightly rejected by the Retugning Officer.
Crvin APPELLATE JuRisDiIcTION: Civil Appeal No. 251 of 1958.
Appeal from the judgment and order dated February 26, 1958, of the Mysore High Court in Mise. Appeal No. 142 of 1957.
R. Painatk, for the appellant.
S. K. Venkatranga Iyengar and N. Keshava Iyengar, for the respondents.
1958. August 21. The Judgment of the Court was delivered by
Sarkar J.—The question for decision in this ap is whether certain persons were holders’ of offices profit under the Government and were therefore disqualified under Art. 191 of the Constitution, for being chosen as ‘members, of a legislative asdembly. Tt a
8.C.R. SUPPEME COURT REPORTS 1169 arises out of a H-~rtion presented under the Representa- 1958 tion of the People Act, 1951, for a declaration that .the —_ election of the appellant was void. Ramappa ~ The election with which the case is concerned, was — sangappa held an March 8, 1957, for choosing members for the Mysore State Legislative Assembly. One of the Sarkar J. constituencies for the purposes of election to that
Assembly was known as Harihar. The nomination papers filed by three persons, namely, Hanumanthappa, Siddappa and Guru Rao for election frém that constituency were rejected by the Returning Officer on the ground that the first two of them were -Patels and the third a Shanbhog of certain villages in Mysore and as such they were all holders of offices of profit under the Mysore Government and consequently disqualified from membership ofthe Assembly under Art. 191. As a result of this rejection two candidates were left to contest the election and the appellant, who was one ofthem, wasdeclared elected as he obtained the larger number of votes at the poll. Six electors of the Harihar constituency then filed the election petition for adeclaration under s. 100(1)(c) of the Representation ofthe People, Act, 1951, that the election of the appellant was void on the ground that the nomination papers of Hanumanthappa, Siddappa and Guru Rao had been improperly rejected. ‘If the rejection was . improper the petition would have to be allowed. The appellant was the sole respondent to that petition. It was alleged in.the petition that Patels and Shagbhogs were hereditary village officers and therefore were not holders .of offices of profit under the Government. It was said that they were really representatives of the village community, and only acted as agents of that community or as liaisons between it and the Government, and that in any event they were not holders of offices of profit becgaee the amountof money receivable by them in fe of their offices was very small .and out ofall roportion to the work done by them. The petition was dismissed by the Election Tribunal by its order dated September. 10,1957. It held that the conditions ° of service of Patels and Shanbhogs were regulated by
Ramappa v Sangappa
Sarkar J].
1170 SUPREME COURT RF JRTS [1959]
the Mysore Village Offives Act, 1908, and that the mere fact that offices of Patels and ‘Shanbhogs were hereditary was not by itself sufficient to establish that they were not offices under the Government. It also held that Hanumanthappa, Siddappa and Guru Rae were in receipt of considerable -remuneration and were, therefore, holding offices of profit. The six petitioners then appealed to the High Court of Mysore. The High Court by its judgment, dated February 26, 1958, allowed the appéal and held that the offices ‘of Patels and Shanbhogs were not offices under the Government. Theelection ofthe appellant was thereupon declared void. It is from this judgment that the present appeal to this Court has been taken with a certificate granted under Art. 133(1)(c) of the Constitution. One of the six petitioners being dead, the remaining five are the respondents in this appeal.
There is no.dispute that Hanumanthappa and Siddappa held the offices‘of Patels.and as remuneration for their services lands had been allotted to them and -provision for cash allowances made. Likewike it is not disputed that Guru Rao was a Shanbhog. and had cash remuneration ‘provided to him for his services. It is also clearand not challenged that Patels and Shanbhogs have specific duties to perform and are holders of offices. The only point for determination in this appeal is whether they are holders of offices under the Mysore Government '
The contention of the learned Advocate for the respondents is that Patels and Shanbhogs are not ‘holders of offices under the Government. He said that their:offices were recognised by the old customary law and devolved by hereditary succession. According to him under that law these‘offices were held under the village community and the officers acted as agents of that community to pay the revenue of the village to tended that under'the Mysore Land Revenue Code} ‘1888, the‘ Government could appoint Patels and Shanbhogs orily } whére there were no hereditary Patels and Shanbhogs. He said that as Hanumanthapps and the authority entitled to it and formed the lmwgons between that community and the authority. oN
SGR. SUI E ;COURT REPORTS AL71
Siddappa .were admittedly hereditary Patels. and Guru Rao, a hereditary Shanbhog, thty could not have been holding ‘offices unden,the Government. ‘He contended that, the Mysore Village Offices Act was a consolidating Act and it did not alter the hereditary right to the offices’ but 'maintained the old- law. According to him heing hereditary, these offices were not held under the Government.
} Village Offices are now governed by the Mysore
Village Offices Act, 1908. The election petition proceeds_on this basis and both the Courts below have so held and the contrary hag indeed not tbeen contended jn this. Court. The Act itself mentions the offices of Patels and Shanbhogsas “ Village Offices”? within it and puts the matter beyond all doubt. The Act, no doubt, recognises a hereditary right to willage offices ta some extent and.a larger -hereditary right to the offices is not claimed’ for. Hanymanthappa,. Siddappa
* or Guru Rao. A consideration ofthe customary law of the Madras Land Revenue. Code is, therefore, unhecessary~ i.
‘ The question then i is, what is the effect of the provisions of the Mysore Village Offices Act dealing «with tle hereditary right .to the offices? First, there: is s..6 under which when two or more villages.or portions thereof are grouped together.or amalgamated to. form a new village, or one village is divided into 2 or more ° yillages, the. old. village ‘offices cease to exist and new offices have to be.created: In choosing persons to fill such new offices the Government has to select the best qualified“from among the last holders of the offices which have, ceased, to exist or the. members_of their families. In these cases obviously. no full hereditary right to. the -office is recognised, for, the offices which have ceased to exist may,have heey held by members of, different ,families. All that s. 6 says is thatthe new appointment ‘shall be made from amongst these fagffilies. So it,is possible under:‘this section to appoint an office a person who is not the heir of the last holder of, tle! office abolished. The, important section, however, for the- ‘purpose of a hereditary right to,the .
m9 + Poe ty
Sarkar i.
Ramappa v. Sangapha
Sarkar ’J.
office is s. 8 which provides ‘for filling up a vacancy ogéurring in the office of a Patel or a Shanbhog.
Sub-section (1) states that certain persons shall ‘not be eligible for the ‘office. It is there provided that a erson who has not attainéd majority or does not possess requisite physical or mehtal capability, ‘or the prescribed educational qualification, ‘or has been convicted by @ criminal court for an offence which, in the opinion of the prescribed officer, disqualifies him for holding the office, or has been, adjudged'by that offider after an enquiry as prescribed, to be of general bad ‘character, shall not be eligible for appointment. Sub-section (2) provides that succession in the case of a permanént vacancy shail be regulated by tHe ordinary provisions of the personal law applicable to'the last holder, provided that it shall devolve ona single heir and that 'where/there are more persons than one who would under tKe ordinary provisions of that law be entitled to succeed to the last holder of‘ the office, preference shall be given to the eldest meimber of the eldest branch among thosé persons. This would seem to create a right in the heir of the deceased hoider of an office to, succeed to him. This right, however, is not an’ absolute right for he cannot appointed if he is not eligible under sub-s. (1) nor where the ‘prescribed officer ‘has declared under s. 7 {v) in dismissing any holder of office, that the dismissal would entail a forefeiture of the right of succession of all the:undivided members of his family. This is all the hereditary right to. an office’ that is provided by the Act. *;
Let us, however, ignore the restrictions on the hereditary right to the office mentioned in the Act and assume that the eldest heir in the eldest branch of the last holder of it, is entitled te succeed to the office whén he vacates it. The question is, does this make the office dne not under the Government ?. The learnéd Advocate for the respondent contended thaWjt did and this contention has been accepted’by the Hig
Court. The learned Chief Justice in his judgment said “can the Government prevent him from succeeding to the permanent vacancy ? Such a person gets to
\ va
7 mir
8.C.R, SUPREME COURT REPORTS . 1173 that post not because he is ap ointed by the Government but by his own rights.” We also supported his view by referring to Mangal Sain v. State of Punjab (*) where jt had been held that the mere fact that the Government has under a statute a hand in the appointment and dismissal of the Executive Officer of a Municipality, does not make him its servant.
‘We think this view is untenable. It overlooks the fact thatthe heir of the last holder does not get the office til] he is appointed to it by the Government...
The statute, no doubt, gives him a right to be appointed by the Government in certain qases. None the less, it is the appointment by the Government that perfects his right to the office and makes him the officer; .without such appointment he does not hold the office. The Government makes the appointment to, the office though -it/may -be that it has under the statute no option but to appoint the heir ‘to the office if he has fulfilled the statutory requiremerits. The office is, therefore, held by reason of the appointment by’ the Government and -not simply because of a hereditary right to it. The fact that the Government cannot refuse to make the appointment does not alter the situation.
If this were not so, the result would be. curious, An office has to. be held under someone. for it ig ; impossible to conceive of an office “held, under no one. The appointment being by the Government, the office to which it is made must be held under it, for there is no one else under whom it can be held. The learned Advocate’ said that the office was held under the village community. But such a thing ' is an impossibility for village communities have since a very long time, ceased to have any corporate existence. The case of Mangal Sain v. The: State of Punjab (') does not assist for there, there was the Municipality under whig the offige could be held though appointment to
23 made by the Government.
The learned Advocatg for the respondent contended that there are certain other sections of the "Act which, support his contention. First, we were referred to . (t) ALR, 1952 Punj. 58. S .
, <
Ramappa Vv.
s:'1l which gives a ‘person entitled to an office under s.8 of thd Act aright te ‘sue before the ptescriibed authority for it or for the recovery of its emoluments:
- We are unable to’ see that ‘this section advances thé matter further. It only ‘shows that a person,has # right to be appointed. That; however, as we ‘have earlier stated, is not enough. The right alone does not make him the officer. He must actually be appointed +o the office 4nd updn’ such appointreht' he comes to hdld it under'the Governniént. We were also referred to s. 8, sub-s. (4) which provides that when the heir of ‘the last holder of an office who would: otherwise be entitled to succéed to it’is a minor, the prescribed officer shall register him ‘as! a successor'of the last holder and - ‘appoint some other qualified per-’ son to discharge the’ duties of the office during’ his
" mninofity. This provision is‘equally Gnhelpful. The minor is only régistered’as a successbr‘and on attains ment of majority or within three' years thereafter if he is qualified under the Act, he can be appointed to the office. Inthe méantime hé is not’ appointed to the office nor does he hold it. “Here again it is only on appointment after’ attainthent of majority that the erstwhile minor heir comes to hold the office: We, therefore, Géme to the conclusion that though there tnay be" a-hereditary right to-hold an office, it is not held till 4n appointment to it is‘made by the Government and th at ther’ iS nd one except the Government undér whom the offité can be held. ’ We have'so, far dealt with the provisions’ of the Avy concerning appointments. We'will now turn to thése dealing with dismissal from Office and other formiis ‘of punishnient. Section 7 of the Act gives the prescribed ofticer of the Government, power to suspéhd, dismiss or remove any ‘holder ‘ofa Village .office on any’ of the grounds mentioned ih it: Theré is no other’ powe? bf dismissal “given' by the Act, Itis sai this shows that the office is‘ndt held udder the ‘Gove ment for if it wereiso, the officer would be lixble to disissal at/the Sleasiréiof the Governéf under Art. 310 e of the’ Condtitition. This argumelit’ was actepted by the High Court but it seems to us to lack in shbstance.
S.C.R. SUPREME COURT REPORTS 1175
_ The argument assumes that because of s. 7 of the Act, the holder of a village office is not liable to be dismissed at the pleasure of the Governor. We think it unnecessary in this case to decide whether this assumption is justified or not and will proceed on the basis that it is the correct view of the position. But does it follow that because a village officer cannot be dismissed at the pleasure of the Governor, he does not hold office under the Government? It has been recognised that a statute may prevent an officer of the Government from being dismissed at its pleasure. That is what happened in Gould v. Stuart (‘) referred to by the Judicial Committee in k. Venkata Rao v. Secretary of State for India (*). In Gould v. Stuart (supra) it was said, that ‘It is the law in New South Wales as well as in this country that in a contract for service under ‘the Crown, civil as well as military, there is, except in certain cases where it is otherwise provided by law, imported into the contract a condition that the Crown has, the power to dismiss at its pleasure: Dunn v. Reg; De Dohse v. Reg (?). The question then to be determined is, Has the Civil Service Act, 1884, made an, exception to this rule?”’, and it was held that it had. In the result it was held that the respondent who had entered the service of the Government of New South Wales under and in accordance with the provisions of the Civil Service Act, 1884, was not liable to be dismissed at the pleasure of the Government because of these provisions. We do not say anything as to whether the principle of Gould v. Stuart () will apply to our country in view of the constitutional provision contained in Art. 310. Such a question has not been argued at the bar and does not require to be decided in this case. Ifthe principle of that case does not apply, then the village officer, if he is a servant of the Government, is liable spiissal at its pleasure, in spite of s. 7 of the Act if it does, then the fact that he is not liable to 1¢h dismissa! does not prove that he does not hold office under the Government. It would thus appear (tr) [1896] A.C. 579. {2) (1936) L.R. 64 LA. 55,
(3) [1896}+1 QB. 117, 1. (7)
Ramappa v. Sangappa
Savkay jf |
Sarkar jf.
1176 SUPREME COURT REP@RTS [1959]
that the fact that an officer is not liable to dismissal at the pleasure of the Government does not by itself establish that he does not hold office under the Government.
We now come to the question of the remuneration of a village officer. The High Court. in its judgment referred to the rules under the Act as to the mode of payment of the emoluments and held that there was no direct. payment of his dues by the Government. to a village officer. That, according to the High Court, also showed that the officer did not hold his office under the Government. This view also is, in our opinion, unfounded. Government lands are allotted by it to the officers hy way of emoluments for services to be rendered and the cash allowances are also fixed by the Government. I[t is true that under the rules cash allowances are not paid directly by the Government to the officers but the latter are authorised to deduct the amounts thereof from the revenue collected by them. This does not show that the cash remuneration is not paid by the Government. The revenue tollected belongs to the Government. The Rules provide that where an officer deducts the cash allowance from the revenue collected by him and deposits the balance in the Government Treasury, his receipt for the amount deducted shall be considered equivalent to the payment into the Treasury of an equal sum in cash: (see rule 75 NIJL of the Rules framed under the Act). The result, therefore, of this rule is as if the entire amount of the revenue collected had been deposited into the treasury and part of it paid back fo the officer on account of his cash remuneration. .In any event, it seems clear to us that the cash allowance to the officer concerned is, in spite of the procedure laid down in respect of its payment, a payment by the Government out of its moneys.
Lastly, we find that the duties of the village officers are fixed by the Government and these officers Wark under the direction, control and supervision of t Government. This is conceded.
We then come to this that Patels and Shanbhogs are officers, who,are appointed to their offices by the
S.C.R. SUPREME COURT REPORTS 1177
Government though it may be that the Government has no option in certain cases but to appoint an heir of the last holder; that they hold their office by reason of such appointment only; that they work under the control and supervision of the Government ; that their remunération is paid by the Government out of Government funds and’assets; and that they are removable by the Government, and that there is no one else under whom their offices could be held. All these clearly establish that Patels and Shanbhogs hold offices of profit under the Government. In this view of the matter it has to be held that the nomination papers of Hanumanthappa, Siddappa and Guru Rao were rightly rejected by the Returning Officer and the election petition is without substance.
The appeal, therefore, succeeds and is allowed. The judgment and order of the High Court are set aside, and those of the Election Tribunal restored. The election petition is dismissed. The respondents will pay the appellant’s costs throughout.
Appeal allowed.
HANSKUMAR KISHANCHAND v. * THE UNION OF INDIA (and connected appeal)
(VENKATARAMA AIYAR, GAJENDRAGADKAR and A. K. Sarkar JJ.) ,
Appeal to Supreme Court— Maintainability—Decision of High Court in appeal from an award—If and when a judgment, decree or ord est-——Defence of India Act, 1939 (No. XXXV of 1939), ssATG(r)(b), 19(z)(f)—Code of Civil Procedure (Act V of 1908), ss.
09, IIO. °
"These two appeals were preferred against the decision of the Nagpur High Court in an appeal under s. 19(z)(f) of the Defence of India Act, 4939, modifying an award of tompensation made
Ramuppa vo: Sangappa
—_—
August 22,