Mohd. Akram Ansari vs The Chief Election Commissioner ...
2006 Latest Caselaw 1361 Del

JUDGMENT

Vikramajit Sen, J.

1. This Petition has been filed under Section 81 of the Representation of the People Act, 1951 ('RP Act' for brevity) assailing the election to the Legislative Assembly of Delhi of Respondent No. 4, namely Shri Haroon Yusuf. It is not in dispute that Shri Yusuf was, at the material time and continues to be the Chairman of the Delhi Wakf Board (DWB). This Objection had been raised at the time when the Nomination Papers had been filed by Mr. Yusuf on the grounds that in his capacity as Chairman of the DWB he was holding an Office of Profit.

2. Article 191 of the Constitution of India proclaims that a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State 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. Section 15 of the Government of National Capital Territory Act, 1991 (for brevity NCT Act) similarly prescribes that a person shall be disqualified from being chosen as, and for being, a member of the Legislative Assembly if he holds an Office of Profit under the Government of India or the Government of any State or Government of any Union Territory other than the Office declared by law made by Parliament or by the Legislature of any State or by the Legislative Assembly of the Capital or of any other Union Territory not to disqualify its holder. By virtue of Section 100 of the RP Act the High Court is duty-bound to declare the election of Shri Yusuf as void if it is of the opinion that on the date of his election he was disqualified to be so elected.

3. The Parliament (Prevention of Disqualification) Act, 1959 had been enacted to declare that certain Offices of Profit under the Government shall not disqualify the holders thereof from being chosen as, or for being, Members of Parliament. Twenty-seven similar enactments appear to have been passed by different State Legislatures enumerating Offices of Profit which would not disqualify Members of its Legislative Assemblies on the grounds of their holding such offices.

4. At the initiation of this Petition Section 31 of the Wakf Act, 1995 (Wakf Act for short) declared that the Office of the Chairperson shall not be disqualified and shall be deemed not to have been disqualified for being chosen as, or for being, a Member of Parliament; this declaration did not include a Member of the Legislative Assembly. If Shri Yusuf, whilst being the Chairman of the DWB, had successfully contested elections as a Member of Parliament, there could have been no debate or doubt that he did not stand disqualified. Differently stated, Chairmanship of the DWB could not be viewed as an "Office of Profit" under Article 191 of the Constitution of India or Section 15 of the NCT Act and/or Section 101(a) of the RP Act.

5. The Petitioner has examined himself as a Witness. In his Examination-in-Chief he had stated that Shri Yusuf had been Chairman of the DWB for a period of five years at the time when he filed his Nomination Papers and that he enjoyed the services of an official driver, use of an official car and use of official premises. He has been duly cross-examined. Although opportunity was duly made available, the Defendant No. 5 chose not to enter the witness-box which event has resulted in Mr. Lekhi contending that the petition should be allowed without more, inter alia because of the view in Wali Mohammad v. Mohammad Baksh .

6. Mr. Lekhi, learned Senior Counsel appearing for the Petitioner, has relied on the observations contained in Lalit Mohan Pandey v. Pooran Singh to contend that if a purposive construction of Section 31 of the Wakf Act is carried out, it would be abundantly clear that Shri Yusuf would have been insulated from being disqualified only upon being elected to Parliament. Since mention of a Member of the State Legislature is conspicuous by its absence, there is no ambiguity in the statute justifying the extension of this provision in favor of Shri Yusuf. The opinion of the Hon'ble Supreme Court in Lt. Col. Prithi Pal Singh Bedi v. Captain Dharam Pal Kukrety is also topical and has been justifiably followed by the Division Bench in Pandurang Dagadu Parte v. Ramchandra Baburao Hirve . Mr. Lekhi has also drawn attention to Shri Bhagwandass Sehgal v. State of Haryana . Reference has also been directed to Shibu Shoren v. Dayanand Sahay which contains the following discussion on the meaning of the word "profit":

41. The word "profit" for the purpose of Article 102(1)(a) or Article 191"connotes an idea of pecuniary gain", though neither the label under which it is paid nor the quantum of the amount may always be material to determine the issue. In the instant case, the appellant on his own admission was to receive Rs. 150 per day as allowance for performing work of the Interim Council outside the headquarters and Rs. 120 per day for the days of sitting of the Council. These amounts, in our opinion, were intended to meet out-of-pocket expenses of the appellant and were in the nature of compensatory allowances and were not a source of profit. Payment of Rs. 1750/- per month as honorarium was in addition to the aforesaid allowances. In Karbhari Bhimaji Rohamare case this Court opined that a person receiving an honorarium of Rs. 25 per day besides traveling and daily allowances could not be said to be making any pecuniary gain nor could it become a "source of profit" for the person concerned, unless he stays "with some friends or relatives or stays in a dharmashala". Indeed, those observations were made taking a realistic view of the matter based on the fact situation in that case. In the present case, besides the receipt of daily allowances and honorarium, the appellant had, as admitted by him, also been provided with rent-free accommodation besides a car with a driver at State expense. Keeping in view these facilities, the payment of an additional amount of Rs. 1750 per month as an honorarium was, under the circumstances, clearly in the nature of giving some pecuniary gain to the appellant and was not intended to compensate the appellant for his out-of-pocket expenses. In various precedents relied upon by learned Counsel for the parties before us and referred to by us in an earlier part of this judgment, the element of providing rent-free accommodation and a chauffeur-driver car at the State expense in addition to "honorarium" and other allowances to the person concerned was not involved. These are relevant factors. The grant of honorarium of Rs. 1750 per month besides other perquisites, granted by the State Government to its own nominee, in addition to the payment of daily allowances, to meet out-of-pocket expenses, does bring in an element of granting "profits" to the appellant. He certainly can be said to have made pecuniary gain out of the payment of honorarium of Rs1750 per month. It is not possible to construe the payment of Rs. 1750 per month, to be payment in the nature of "compensatory allowance". While construing the true nature of "honorarium", the grant of other perquisites cannot be overlooked or ignored. The honorarium receivable by the appellant at the rate of Rs. 1750/- per month, besides other "allowances" and "perquisites" was surely not in the nature of gratuitous payment, voluntary donation or compensation to meet any out-of-pocket expenses. It was in the nature of "remuneration" and was a source of "pecuniary gain". The receipt of honorarium at the rate of Rs. 1750 per month, besides daily allowances, rent-free accommodation and a chauffeur-driven car at the State expense, to the appellant was a benefit capable of bringing about a conflict between the duty and interest of the appellant as a Member of Parliament - the precise vice to which Article 102(1)(a) is attracted.

7. Shri R.K. Anand, learned Senior Counsel for Shri Yusuf, has contended that the Chairmanship of the DWB cannot be construed as an Office of Profit under the Central or State Government. Otherwise, an anomalous position would be arrived at since some of the Board Members have to be Muslim Members of Parliament or Muslim Members of the State Legislature, as per Section 14 of the Wakf Act. So far as the Central Wakf Council is concerned the Union Minister in-charge of Wakf is to be the Ex-Officio Chairperson. Once again a contradictory and anomalous position would be reached if these appointments are to be treated as Offices of Profit. It is in this context that Shri Anand has relied on K. Prabhakaran v. P. Jayarajan to argue that the Preamble to the Wakf Act clarifies that the objective is to provide for better administration of the Wakf, the corpus of which is not derived from the Government but from private donations. Hence, any post which is filled-up under the Wakf Act would not be a post under the Central Government or the State Government and, therefore, could not legitimately be construed as an Office of Profit.

8. There is no need to discuss these contentions in much detail, or to appreciate the evidence on record owing to the following statute which has been published in the Delhi Gazette, Thursday, April 27, 2006:

THE WAKF (DELHI AMENDMENT) ACT, 2006

(DELHI ACT 3 OF 2006)

24th April, 2006

(As passed by the Legislative Assembly of the National Capital Territory of Delhi on the 8th March, 2006.

An Act to amend the Wakf Act, 1995 in its application to the National Capital Territory of Delhi.

Be it enacted by the Legislative Assembly of the National Capital Territory of Delhi in the Fifty-Seventh Year of the Republic of India as follows:

1. Short title, extent and commencement--

(1) This Act may be called the Wakf (Delhi Amendment) Act, 2006.

(2) It extends to the whole of the National Capital Territory of Delhi.

(3) It shall come into force on the date of its publication in the Official Gazette.

2. Insertion of new Section 31A.-- In the Wakf Act, 1995 (43 of 1995), in its application of the National Capital Territory of Delhi, after Section 31, the following section shall be inserted, namely:

31A. Prevention of disqualification for membership of Legislative Assembly of National Capital Territory of Delhi. It is hereby declared that the offices of the Chairperson or Members of the Board constituted for Union territory of Delhi shall not be disqualified and shall be deemed never to have been disqualified for being chosen as, or for being, a member or the Legislative Assembly of National Capital Territory of Delhi.

The effect of this amendment is the creation of parity between Members of Parliament and the Delhi Assembly against possible disqualification for holding an "Office of Profit.

9. Mr. Lekhi, however, vehemently contends that this enactment does not ensure to the benefit of the Petitioner inter alia since it specifically came into force on April 27, 2006, that is, the date of its publication in the Official Gazette. Support has been garnered from the opinion in Robert Wigram Crawford v. Richard Spooner to the effect that the construction of any statute must be taken from the bare words used therein, and that attempting to fish-out the possible intention of the legislature would be impermissible. Mr. Lekhi has also drawn attention to Gwalior Ryons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, Palghat 1990 (Supp) SCC 785 where the Lordships held that reference to other statutes containing same words or expression would be improper. The following paragraph from this decision, however, runs counter to the case of the Petitioner:

8. This whole line of argument with respect, is hard to accept. As Felix Frankfurter, J. said : "Legislation is a form of literary composition. But construction is not an abstract process equally valid for every composition, not even for every composition whose meaning must be judicially ascertained. The nature of the composition demands awareness of certain presuppositions .... And so, the significance of an enactment, its antecedents as well as its later history, its relation to other enactments, all may be relevant to the construction of words for one purpose and in one setting but not for another. Some words are confined to their history; some are starting points for history. Words are intellectual and moral currency. They come from the legislative mint with some intrinsic meaning. sometimes it remains unchanged. Like currency, words sometimes appreciate or depreciate in value." The learned Judge further stated : "Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacy,to effect a change of policy, to formulate a plan of government. That aim, that policy is not drawn, like nitrogen, not of the air; it is evinced in the language of the statute, as read in the light of other external manifestations of purpose. That is what the judge must seek and effectuate.

10. In Illachi Devi (Dead) by LRs v. Jain Society, Protection of Orphans India the principle of statutory interpretation that has been reiterated is that all words employed by the legislature must be given their full meaning unless it results in an absurdity. Mr. Lekhi's contention is that Section 1(3) unequivocally spells out that the Amending Act 3 of 2006 would come into force on the date of its publication in the Official Gazette, that is, 24.4.2006. Hence, it would of no avail to Respondent No. 4. In my opinion, this sub-section cannot be read in isolation. It adverts to coming into force of the entire Act, that is, the introduction of Section 31A to the principle Wakf Act. Once this situation is arrived at, the language of Section 31A viz. "shall be deemed never to have been qualified" leaves no room for argument that the amendment would relate back to before the focal date, that is, the date of the election or the date of the scrutiny of the nomination of Respondent No. 4.

11. Mr. Lekhi has also referred to K. Prabhakaran v. P. Jayarajan in which it has been enunciated that the question of disqualification under Section 8(1), (2) and (3) of the RP Act must be determined, keeping the dates of election and scrutiny of nominations in focus; subsequent events which have the effect of wiping out the disqualification have to be ignored. A distinction must be drawn between factual occurrences and statutory events. Unlike in the Prabhakaran's case this Court is not called upon to take note of subsequent events relating to the candidate concerned, but to a change in an amendment in the law itself. The effect of 2006 Amendment Act is that Respondent No. 4 was not disqualified from being chosen as a Member of the Legislative Assembly of the NCT of Delhi merely because at the relevant time he was the Chairman of the Wakf Board.

12. A situation, similar to the one that has presented itself in the present Petition, arose in Srimati Kanta Kathuria v. Manak Chand Surana . The Appellant had been held by the Rajasthan High Court to be disqualified from election solely on the ground that she held the Office of Special Government Pleader under the Government of Rajasthan. However, during the pendency of an Appeal to the Supreme Court the Rajasthan Legislature passed the Rajasthan Legislative Assembly Members (Prevention of Disqualification) Act, 1969 which removed the disqualification with retrospective effect. The Supreme Court was of the opinion that while the Appellant did hold the Office of Profit under the State Government, her disqualification stood removed by the retrospective operation of the 1969 Act. The argument that the Rajasthan State Legislature was not competent to make a retrospective declaration was stoutly rejected.

13. Had Section 31A of the Wakf Act not been introduced into the statute, this Court would have had to consider the evidence on record in the light of the dissection of the meaning of the word "profit" as articulated in the Shibu Shoren case. This exercise, however, is no longer required since Section 31A of the Wakf Act clearly and unequivocally states that holding the office of Chairman, Wakf Board would not lead to disqualification of Respondent No. 4 as a Member of the Legislative Assembly of the NCT of Delhi. The amendment renders the Petitioner's Objections and contentions apodous. The Petition, therefore, has no merit and is dismissed.