R.M.S. Khandeparkar, J.
1. Heard.
2. Perused the records.
3. The petitioners challenge the notifications dated 16-1-2003 and 21-10-2004 issued by the respondent No. 1 to the extent it appointed the respondent No. 4 either as the Member or the President of the Committee for the administration and management of the institution called the Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib (hereinafter called as 'the Gurudwara') on account of being appointed as the Hon'ble Governor of the State of Bihar since November last. The challenge is on the ground that Article 158(2) of the Constitution of India does not permit the Governor of a State to hold any other office of profit and that the office of member and/or president of the said Gurudwara, is an office of profit and therefore, the respondent No. 4, having been appointed as the Honourable Governor of the State of Bihar, is not entitled to continue to be a Member or the President of the Committee appointed for the administration of the Gurudwara and hence, on account of failure on the part of the respondent No. 4 to get himself disassociated from the said office, the respondent No. 1 ought to have taken necessary steps to delete the name of the respondent No. 4 from being the member and president of the said committee for the Gurudwara.
4. Placing reliance in the decisions of the Apex Court in the matter of (1) Abdul Shakur v. Rikhab Chand and Anr. reported in : [1958]1SCR387 , (2) Shiv Murthy Swami Inamdar v. Agadi Sanganna Andanappa, reported in : (1971)3SCC870 and (3) Pradyut Bordoloi v. Swapan Roy reported in (2001)2 SCC 19 and the drawing our attention to various provisions of the Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib Act, 1956, hereinafter called as 'the said Act', the Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib Rules, 1958, hereinafter called as 'the said Rules' and Takhat Shri Hazur Sahib Bye-laws, 1975, hereinafter called as 'the said bye-laws', Shri R. S. Deshmukh, the learned Advocate for the petitioners submitted that it is an undisputed fact that the respondent No. 4 was appointed as the Member of the Committee for the Gurudwara under the notification dated 16-1-2003 and further entrusted with the duties of the person presiding over the said committee by the notification dated 21-10-2004. The respondent No. 4 came to be appointed as the Hon'ble Governor of the State of Bihar sometimes in November last. Consequently, according to the learned Advocate for the petitioners, applying the provisions of Article 158(2) of the Constitution, the respondent No. 4 should have ceased to hold the said office of Member or President of the said Committee for the Gurudwara as it is an office of profit. He has further submitted that being a member of Gurudwara Committee, the respondent No. 4 is entitled to claim allowance and remuneration for every day he attends the meeting of the Committee. Apart from the travelling allowance, the respondent No. 4 is also entitled for honorarium for being the President of the committee. In this regard, a reference is made to Clauses 15 and 16 of the said bye-laws.
5. Sri Deshmukh has also submitted that the performance of duties and functions of the office of Hon'ble Governor by respondent No. 4 would certainly be in conflict with the duties and functions which are required to be performed by him as a Member as well as the President of the committee for the Gurudwara. As such, the performance of the duties attached to two offices would entail in conflict of interests inter se. He has also drawn our attention to the various provisions of the said Act and the said Rules in support of his contentions relating to overall control of the Government on the appointments of the members as well as the functioning and administration of the Gurudwara. Considering the overall control of the Government over the functioning and the administration of the Gurudwara as well as powers of appointment in relation to the members of the Gurudwara Committee as also pecuniary gain available under the provisions of the said Act, the said Rules and the said bye-laws to the Members and the President of the committee, he has submitted that the respondent No. 4, consequent upon his appointment as Hon'ble Governor of the State of Bihar could not continue to hold the office of Member and President of the said Gurudwara committee bearing in mind the provisions of Article 158(2) of the Constitution of India.
6. Shri U.K. Patil, learned Additional Government Pleader, on the other hand, placing reliance in the decision in Revanna Subanna v. G.S. Kaggeerappa reported in : AIR1954SC653 as well as referring to the decision in Abdul Shakur's case (supra) has submitted that the Gurudwara is an independent local entity and the functioning of the Gurudwara is not controlled by the Government. Apart from the Government, there are also other various bodies which appoint the members of the Gurudwara Committee for the purpose of management of the affairs of the Gurudwara and considering the same it cannot be said that the Government has overall control over the administration of the Gurudwara. He has further submitted that the honorarium or the allowance to which a President or a Member of the Gurudwara Committee, which is offered, is to compensate him for the daily expenditure incurred by him for attending the meetings or the performance of his duties attached to his office and being so, it cannot be said to give any pecuniary gain as such for being a Member or President of the Board. In any case, he has submitted that the petitioners have failed to plead and establish that the respondent No. 4 has in fact availed any pecuniary gain as such from the said office after he became the Governor of Bihar. He has further submitted that the respondent No. 4 has volunteered to give up any such monetary benefit attached to the said post of Member or President of the committee.
7. Shri P.V. Mandlik, the learned Advocate for the respondent Nos. 3 and 4 has sought to raise three preliminary objections - (i) no petition lies against the respondent No. 4 who is the Hon'ble Governor of the State of Bihar in view of the provisions comprised under Article 361(4) of the Constitution of India, (ii) that in any case, no petition can lie in the State of Maharashtra against the Hon'ble Governor of State of Bihar and (iii) the petitioners lack locus standi.
8. Referring to the contentions regarding applicability of Article 158(2) of the Constitution of India and placing reliance in the decisions of the Apex Court in S. Umrao Singh v. Darbara Singh and Ors. reported in : [1969]1SCR421 , Karbhari Bhimjai Rohamare v. Shankar Rao Genuji Kolhe and Ors. reported in : [1975]2SCR753 and Bhagwati Prasad Dixit Ghorewala v. Rajeev Gandhi reported in : [1986]2SCR823 , the learned Advocate for the respondent Nos. 3 and 4 has submitted that the provisions comprised under Clauses 15 and 16 of the said bye-laws of the Gurudwara are not at all attracted in the case in hand as they relate to the Members and the President of the Gurudwara and the Committee as constituted under Chapter n of the said Act, whereas, the Committee which has been constituted under the impugned notifications is in exercise of the powers under Section 53(2) of the said Act and therefore, those provisions of the said bye-laws are not at all attracted or applicable. Without prejudice to this argument and assuming that the said provisions are applicable, the learned Advocate for the respondent Nos. 3 and 4 has submitted that in no case the honorarium payable under Clause 15 or the allowance payable in terms of Clause 16 of the said bye-laws can be said to be 'profit' within the meaning of the said expression under Article 158(2) of the Constitution of India. Considering the quantum of honorarium and the fact that the allowance is equivalent to the expenditure incurred on travelling, according to the learned Advocate for the respondent Nos. 3 and 4, the payment of amount under Clause 16 of the said bye-laws is to compensate for day to day expenditure incurred by the member or the president and for performance of their duties attached to their office in terms of their appointments as Members or the President, as the case may be. He has also submitted that the petitioners have nowhere pleaded and established that the respondent No. 4 had, in fact, availed any pecuniary gain on account of being a Member or the President of the Gurudwara after becoming the Governor of Bihar. He has further submitted that the respondent No. 4 was appointed as Member or the President by the impugned notifications and the right to preside over the meetings accrued much prior to his appointment as Hon'ble Governor of the State of Bihar and by no stretch of imagination it can be said that the impugned notifications were either illegal or in colourable exercise of powers or there was any illegality in the said notifications at the time they were issued and therefore, there is no scope for challenging those notifications on the ground canvassed.
9. Before dealing with the controversy sought to be raised by the petitioners, it will be necessary to deal with the preliminary objections sought to be raised on behalf of the respondent Nos. 3 and 4. At the out-set, it is to be noted that at the time of issuance of Rule, though Rule was issued after hearing the parties, the respondents had not reserved their right to raise such objections at the time of final hearing of the matter. Being so, applying the rules of procedure, the respondents are not entitled to raise any such objection at this stage. However, in the peculiar facts and circumstances of the case and the controversy involved in the matter, we have permitted the respondents to raise the said objections. We would deal with the said preliminary objections before considering the matter on merits.
10. The first objection relates to non-maintainability of the petition on account of the provisions comprised under Article 361(4) of the Constitution. Article 361 deals with the subject of protection of the President and the Governor. As far as the Governor is concerned, the Clause (1) of Article 361 provides that the Governor of a State shall not be answerable to any Court for exercise of powers and duties of his office or for any act done or purported to have been done by him in exercise of performance of those powers and duties. Clause (2) assures immunity to the Governor of a State against criminal proceedings. Clause (3) prohibits issuance of process for the arrest or imprisonment of the Governor of a State by any Court during his term of office. Clause (4) to which reference is made in support of the preliminary objection provides that no civil proceedings in which relief is claimed against the Governor of a state shall be instituted during his term of office in any Court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the Governor or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.
11. Obviously the Clause (4) of Article 361 of the Constitution of India bar any civil proceedings for any relief against Governor of a State in relation to any act done by him in his personal capacity either before or after he enters the office of Governor of State, unless a period of two months is allowed to expire next after the service of notice in writing to the Governor disclosing the nature of the proceedings proposed to be initiated, cause of action therefor, the name, description and the place of residence of the party by whom such proceedings are sought to be instituted and the relief which he wants to claim. Perusal of the writ petition and considering the arguments canvassed on behalf of the petitioners evidently the petition relates to the grievance of the petitioner that the respondent No. 4 having entered the office of the Governor of State of Bihar cannot be continued as a Member or President of the Gurudwara Committee, which essentially relates to the failure to exercise of powers by and obligation of the State of Maharashtra, in that regard, in the absence of the respondent No. 4 himself taking proper steps to do the needful. The controversy which is sought to be raised on behalf of the petitioners does not relate to any act of the respondent No. 4 either as the Governor of State of Bihar or otherwise, but essentially it relates to the inaction on the part of the respondent No. 1 in terms of Section 53 of the said Act. Even the relief which has been claimed in the petition is not in the nature of any direction to the respondent No. 4, but the entire thrust of the arguments advanced and the tenor of the petition discloses that the respondent No. 1 has failed to take appropriate action under Section 53 of the said Act and thereby failed to comply with the mandate of Article 158(2) of the Constitution. The petition nowhere challenges any act on the part of any Governor as such. The petition essentially relates to the failure on the part of the respondent No. 1 which was required to take necessary action consequent upon the respondent No. 4 entering the office of Hon'ble Governor of State of Bihar since November last. Being so, there being no relief claimed against the respondent No. 4 and the relief being essentially in relation to the failure on the part of the respondent No. 1 to perform its duties in terms of Section 53 of the said Act read with Article 158(2) of the Constitution, the preliminary objection regarding non-maintainability of the petition in view of the provisions comprised under Article 361(4) of the Constitution of India is to be held as not tenable and hence rejected.
12. The next preliminary objection relates to the lack of jurisdiction to this Court to entertain any petition against the acts of Governor of Bihar. The objection is totally devoid of substance. There is no relief asked for against the Governor of Bihar or for that matter against the respondent No. 4 and therefore, the objection is totally devoid of substance.
13. The third preliminary objection relates to the lack of locus standi to the petitioners. According to the learned Advocate for the respondent Nos. 3 and 4, the petitioners have not disclosed any locus to challenge the impugned notifications. The learned Advocate for the petitioners in that regard has drawn our attention to the pleadings in the petition and has submitted that they are very much interested in the welfare of the said Gurudwara and are and were closely connected with the administration and functioning of the said Gurudwara.
14. Perusal of the petition discloses that the petitioner No. 1 was appointed as a Member of the said Committee along with the respondent No. 4 under the notification dated 16-1-2003. The petitioner No. 2 was the Ex-Secretary of the Board of the said Gurudwara during the period from 1997 to 2000. The petitioner No. 3 was also the Ex-Secretary of the Board during the period of 1969 to 1971 and the Member of the Board during the period from 1969 to 1971. The petitioner No. 4 was the Ex-Member of the Managing Committee of the said Board during the period of 1977 to 2000. The Gurudwara is a place of worship for all Sikhs across the world. In 1708 The Granth Sahib at Nanded had been designated 'Shri Guru Granth Sahib. It is believed that Shri Guru Govindsinghji breathed his last at Nanded. The petitioners are Sikhs. All these specific averments in the petition have not been denied or controverted. Those averments obviously disclose the interest of the petitioners in the welfare of the Gurudwara. Evidently, therefore, the petitioners are certainly interested in the functioning and administration of the Gurudwara and all the questions related thereto which apparently disclose locus standi to the petitioners in the dispute sought to be raised before this Court in this petition. Hence, the third objection regarding absence of the locus standi to the petitioners is also not maintainable.
15. Reverting to the facts of the case, it is undisputed fact that in exercise of the powers under Section 53 of the said Act, a notification came to be issued on 13-3-2002 constituting a Committee comprising of 12 Members including the Collector of Nanded with specific directions that the Collector shall preside over the meetings of the said Committee for the purpose of administration of the said Gurudwara. Under further notification dated 16-1-2003, certain amendments were introduced to the earlier notification dated 13-3-2002 and thereby the name of Shri U.P.S. Madon, IAS, was included as a Member of the Committee in place of the Collector, Nanded and simultaneously five more Members were sought to be added to the Committee including respondent No. 4 as 14th Member of the said Committee. It was followed by another notification dated 21-10-2004 whereby further modifications to the earlier notifications were carried out, thereby the name of Shri U.P.S. Madon was deleted and in his place the name of the respondent No. 4 was substituted. Some other changes were also carried out but the same are not relevant for this case. Sometimes in November, 2004, the respondent No. 4 came to be appointed as the Hon'ble Governor of State of Bihar. All these facts are not in dispute.
16. Upon hearing the learned Advocates for the parties and perusal of the records, the point which arises for consideration is whether the office of Member or President of the Gurudwara Committee constituted by the notification dated 13-3-2002 and modified by the subsequent impugned notifications shall be an 'office of profit' within the meaning of the said expression under Article 158(2) of the Constitution and that therefore, the respondent No. 1 was under obligation to relieve the respondent No. 4 from the said office and to delete his name from the said Committee, in exercise of powers under Section 53 of the said Act? And as a prelude to this question, what is the meaning of the expression 'office of profit' in the Article 158(2) of the Constitution of India?
17. The expression of 'office of profit' with relation to Articles 102 and 191 of the Constitution of India had been subject-matter of adjudication in various cases and the law in that regard has been summarised by the Apex Court in Pradyut Bordolio's case (supra). After taking note of its earlier decisions in Abdul Shakur v. Rikhab Chand : [1958]1SCR387 , M. Ramappa v. Sangappa : [1959]1SCR1167 , Guru Gobinda Basu v. Sankari Prasad Ghosal : [1964]4SCR311 and Shivmurthy Swami Inamdar v. Agadi Sanganna Andanappa : (1971)3SCC870 , the Apex Court has laid down the following tests for ascertaining as to whether an office is an office of profit under the Government, within the meaning of the said expression under Article 102 or 191 of the Constitution of India (1) Whether the Government makes the appointment ; (2) whether the Government has the right to remove or dismiss the holder; (3) whether the Government pays the remuneration; (4) what are the functions of the holder? Does he perform them for the Government; and (5) does the Government exercise any control over the performance of those functions? Referring to the decision in Guru Gobinda Basu's case (supra), the Apex Court observed that several factors will have to be considered while determining the said question and those would include (i) the appointing authority, (ii) the authority vested with power to terminate the appointment, (iii) the authority which determines the remuneration, (iv) the source from which the remuneration is paid and (v) the authority vested with the power to control the manner in which the duties of the office are discharged and to give directions in that behalf. At the same time, it was also observed that the decisive test for determining whether a person holds any office of profit under the Government is the test of appointment; stress on other tests will depend on the facts of each case and the source from which the remuneration is paid is not by itself decisive or material.
18.The Apex Court also took note of certain earlier decisions like the one in the matter of Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani : [1976]3SCR832 , wherein it was held that for holding an office of profit under the Government one need not be in the service of the Government and there need be no relationship of master and servant and one has to look at the substance and not the form. It was also clarified that the several factors stressed by the Apex Court in Guru Gobinda's case (supra) as determinative of the holding of an 'office' under the Government need not be conjointly present. It was further observed that 'the critical circumstances, not the total factors, prove decisive and a practical view, not pedantic basket of tests, should act as guide.'
19. Referring to the decision in Satrucharia Chandrasekhar Raju 's case, : AIR1992SC1959 , it was reiterated that the right to appoint and right to remove the holder of the office in many cases becomes an important decisive test.
20. The Apex Court further taking into consideration the decisions in D. R. Gurushartappa v. Abdul Khuddus Anwar : [1969]3SCR425 , Ashok Kumar Bhattacharyya v. Ajoy Biswas : [1985]2SCR50 and Aklu Ram Mahto v. Rajendra Mahto : [1999]2SCR362 laid down certain guidelines while ascertaining as to whether a person holds an office of profit under the Government and observed that 'The first and foremost question which had to be asked in such circumstances is whether the Government has powers to appoint or remove the person on and from the office,' And, held that 'If the answer is in the negative, no further inquiry is called for, the basic determinative test having failed. However, if the answer be a positive one, further probe has to go on finding answers to questions framed in Shivmurthy's case. In that regard it was held that the 'totality of the facts and circumstances reviewed in the light of the provisions of relevant Act, if any, would lead to an inference being drawn if the office held is under the Government. The inquisitive overview-eye would finally query; On account of holding of such office would the Government be in a position to so influence him as to interfere with his independence in functioning as a Member of Legislative Assembly and/or would his holding of the two offices one under the Government and the other being a Member of Legislative Assembly, would involve a conflict of interests inter se? This is how the issue has to be approached and resolved.'
21. Plain reading of the above referred decision, which takes stock of the earlier decisions of the Supreme Court on the issue relating to the meaning of the expression of 'holding the office of profit under the Government' would disclose that all these decisions relate to the said expression found either in Article 102 or Article 191 of the Constitution of India. It is pertinent to note that Article 102 which related to the disqualification of Member of Parliament, Clause (1) thereof provides that 'A person shall be disqualified for being chosen as and for being, a member of either House of Parliament - (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;' Similarly, Article 191 which relates to the subject of disqualification of member of the Legislative Assembly or Legislative Council of a State, Clause (1) thereof provides 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 - (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.'
22. The common factor in both the above provisions, namely Articles 102 and 191, in relation to an office of profit is that the same relates to an office 'under the Government' either the Central Government or the State Government, whereas, Article 158(2) of the Constitution of India with which we are concerned in the matter in hand, provides that the Governor shall not hold 'any other office of profit'. The provisions comprised under Article 158(2) nowhere refers to the office of profit either under the Central Government or the State Government which is in contradiction to the provisions relating to the office of profit under Article 102 or Article 191 of the Constitution of India. Obviously, the decisions delivered in relation to the expression 'office of profit under the Government of India or the Government of any State' which is to be found in Articles 102 and 191 of the Constitution of India cannot be directly applied to the expression 'any other office of profit' which is found in Article 158(2) of the Constitution, though those decisions would certainly provide the guidelines in ascertaining the meaning of the expression 'office of profit' under Article 158(2) of the Constitution of India.
23. As already observed above, the Apex Court while dealing with the phrase 'office of profit' in Pradyut Bordoloi's case has referred to various tests. Undoubtedly, those tests relate to the control of the Government or financial liability of the Government in relation to the activities of the office which can be the subject-matter of dispute. The tests essentially relate to the powers of the Government to interfere in the day to day activities of the office as well as Government's empowerment to appoint and remove the holder of such an office. Being so, those tests cannot be directly applied to understand the meaning of the expression 'any other office of profit' under Article 158(2) of the Constitution which has no relation whatsoever to the governmental control as such over any such office. On the contrary, the provisions comprised under Article 158(2) of the Constitution relates to 'any other office of profit' which means even an office other than one controlled by the Government either in relation to its activities or even in relation to source of remuneration could be an office of profit, In other words, an office spoken of under Article 158(2) would include an office which is not under the control of the Government.
24. Bearing in mind the above referred aspect of the matter, we will have to ascertain whether the office occupied by the respondent No. 4 in the said Gurudwara Committee can be said to be 'any other office of profit' within the meaning of the said expression in Article 158(2) of the Constitution.
25. According to the learned Advocate for the petitioners, Clauses 15 and 16 of the bye-laws clearly provide for honorarium, remuneration and allowance payable to the President and the Members. Clause 15 speaks of honorarium to the President, Chairman and the Secretary at the rate of Rs. 300/-, Rs. 150/- and Rs. 150/- per month, respectively. It is the contention of the learned Advocate for the petitioners that the Board has already proposed upward revision in the quantum of honorarium under the Resolutions dated 30-4-1994 and 1-5-1994.
26. The Clause 16 of the bye-laws provide that a member shall be paid an allowance of rupees ten, if he be a member of the Board and of rupees five, if he be a member of the Committee, for every day he attends the meeting and if he is not a resident of Nanded, he shall in addition be entitled to claim travelling allowance and daily allowance at the rates specified thereunder for the journeys that he has to perform for attending the meeting. Accordingly, for all journeys performed by railway, he would be entitled for the first class single fare if he be a member of the Board and second class single fare if he be a member of the Committee, provided that, such allowance shall not exceed the fare of the class by which the member has actually travelled, further provided that the Board may by resolution pay air fare to a member of the Board, who is a member of Parliament for travelling by air to attend the Board meeting when Parliament is in session, on the production of the concerned air ticket in case of the journey by other means, entitlement would be according to the actual fare paid by the member. Besides, he will also be entitled for a daily allowance at the rate of rupees ten per day for a member of the Board and Rs. 7-50 per day for a member of the Committee for each day or part thereof in respect of the days of journey to and from the place of the meeting excluding the days for which allowance is drawn for attending a meeting. The said clause further explains that whenever any journey is performed from or to a place other than the place of normal residence, the charges at the above rates shall be claimed for the journeys to and from the place of residence of the member and similarly, whenever any journey or part of a journey is performed by a route other than the shortest route charges claimed shall not exceed those payable for the journey by the shortest route.
27. Referring to the said provisions of the said bye-laws, it was strenuously argued on behalf of the petitioners that same disclose pecuniary gain to the President as well as members and therefore, the persons holding any such office would be holding the office of profit within the meaning of the said expression under Article 158(2) of the Constitution. The learned Advocate for the respondent Nos. 3 and 4, on the other hand, referring to the decisions of the Apex Court particularly in 5. Umrao Singh's case and Karbhari's case submitted that payment of such allowance or remuneration cannot be held to be a profit within the meaning of the said expression either under Article 158(2) or Article 102 or Article 191 of the Constitution and same is well settled by the law laid down by the Apex Court in those decisions.
28. In S. Umrao Singh's case (supra), the Apex Court had ruled that the allowance paid under Rules 3 to 7 of Punjab Panchayat Samities and Zilla Parishads Non-official Members (Payment of Allowances) Rules, 1965, do not convert the office of Chairman of Panchayat Samities into an office of profit and such person is not disqualified from being elected to the Legislative Assembly. The Rule 3 of the said Rules reproduced in the said decision reveals that in terms thereof, Chairman of Panchayat Samiti and that of the Zilla Parishad was required to be paid a monthly consolidated allowance in lieu of all other allowances for performing all official duties and journeys concerning Panchayat Samities or Zilla Parishads, as the case may be, within the district including attending all the meetings, supervising plans, projects, schemes and other works and also in connection with the discharge of other lawful obligations and implementation of the Government directives. Considering the said provision, the Apex Court had observed that 'Consequently, under Rule 3 of the Rules provision was made for this monthly allowance of Rs. 100/- as a consolidated amount in lieu of the travelling allowance daily allowance or any other allowances to which he might have been entitled in order to compensate him for expenses incurred in connection with the discharge of his official duties.' It was also observed that 'So far as Rules 4 to 7 are concerned they only provide for payment of travelling allowance and daily allowance when a Chairman performs a journey in connection with his official duties outside the district. Clearly, these allowances are also meant to ensure that he does not have to incur expenditure from his own pocket for the purpose of discharging his official duties.'
29. Referring to the above ruling it was sought to be argued on behalf of the respondents that the allowances which can be paid to a member in terms of Clause 16 of the said bye-laws are in fact for reimbursement of the actual expenditure which a member may incur for attending the meetings of the Board and therefore, it cannot be said to be pecuniary gain which can be termed as profit within the meaning of the said expression under Article 158(2) of the Constitution of India. Being so, according to the learned Counsel for the respondent Nos. 3 and 4, applying the law laid down by the Apex Court in S. Umrao Singh's case, the contention sought to be raised on behalf of the petitioners about the allowance to be profit within the meaning of the said expression under the said article is to be rejected.
30. At this stage, one cannot overlook the decision of the Apex Court in Shivmurthy's case (supra) wherein it was clearly observed that:
The word 'profit' connotes the idea of pecuniary gain. If there is really a gain, in quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in dealing whether the office really carries any profit.
31. As regards Clause 16 of the said bye-laws, Sub-clause (1) thereof undoubtedly refers to the entitlement for reimbursement of the expenditure incurred for travelling for the purpose of attending the meetings of the Board. But the main part of Clause 16 in addition to such travelling allowance, speaks of entitlement to Rs. 10/- per day allowance payable to a member of the Board and Rs. 5/- for the member of the Committee for attending the meeting. In addition thereto, under Sub-clause (ii) the member of the Committee is entitled for daily allowance at the rate of Rs. 7.50 per day for the period such member is in travelling to attend the place of meeting. Even assuming that the provisions regarding reimbursement of the expenditure incurred for travelling cannot be said to be resulting in any pecuniary gain as such to a member but the fact remains that in addition to such reimbursement of actual expenditure incurred by the member on travelling, he is also entitled for allowance for attending the meetings as well as daily allowance. The decision of the Apex Court in S. Umrao Singh 's case specifically refers to the amount of allowance being related to reimbursement for the expenses incurred in connection with the discharge of official duties. Neither the said bye-laws nor Clause 16 on the face of it disclose that the allowances for attending the meeting or the daily allowance is in any way related to reimbursement of the expenses incurred in connection with the discharge of his official duties as a member, nor the respondents have been able to point out any other provision either in the said bye-laws or in the said Act or in the said Rules from which it can be gathered that the said allowance spoken of under Clause 16, in addition to the reimbursement of the actual expenditure, would be towards the actual expenses incurred by the members for discharge of his official duties in his capacity as a member. Being so, one fails to understand how the decision of the Apex Court in S. Umrao Singh 's case could be of any help to the respondents to contend that the allowance spoken of under Clause 16 cannot be said to be a 'profit' within the meaning of the said expression under Article 158(2) of the Constitution. As already stated above, in Shivmurthy's case the Apex Court had in clear words stated that 'profit' connotes idea of pecuniary gain and the quantum of money receivable by a person is immaterial. Merely because the allowance for attending the meetings is Rs. 10/- or daily allowance is Rs. 7.50, it cannot be said that there is no pecuniary gain therefrom, unless it is the case of the respondents, to be disclosed and established from the facts and/or the statutory provisions, that such payment is in relation to the expenses incurred or to be incurred by the member in discharge of his official duties. The allowance payable under Clause 16 has nothing to do with any expenditure towards the discharge of duties of the members, but it is rather an amount payable to him on account of he having attended the meeting or having spent on a day in travelling to attend the meeting. That by itself does not amount to saying that such amount was actually spent by the member for discharge of his official duties and that, therefore, he was sought to be reimbursed.
32. As regards Clause 15, which speaks of honorarium, undisputedly neither the said bye-laws nor the said Act nor the said Rules disclose any reference to such honorarium to be reimbursement for the expenses incurred by such members for discharge of his official duties. The learned Advocate for the respondent Nos. 3 and 4, however, drawing attention to the decision in Karbhari's case, has contended that the honorarium has been declared as not forming part of profit or pecuniary gain within the meaning of the said expression.
33. In Karbhari's case (supra), the Apex Court has held that a member of the Wage Board of Sugar Industry constituted by the Maharashtra Government under Section 86B of the Bombay Industrial Relations Act, 1946, satisfies all the tests laid down in Shivmurthy's case for determining whether a person holds an office but he cannot be said to be a holder of an office of profit within the meaning of the said expression under Article 191(1)(a) of the Constitution so as to disqualify him to stand for election. It is further held that the law regarding the question whether a person holds an office of profit should be interpreted reasonably having regard to the facts and the circumstances of the case and the times with which one is concerned as also the class of person whose case the Court is dealing with and not divorced from reality. The question has to be looked at in a realistic way. Merely because part of the payment made to the member is called honorarium and part of the payment daily allowance, the Court cannot come to the conclusion that the daily allowance is sufficient to meet his daily expenses and the honorarium is a source of profit. It was clearly observed that:
We are of opinion that the matter must be considered as a matter of substance rather than of form, of the essence of payment rather than its nomenclature.
It is therefore clear that it is not the nomenclature which is attached to the payment of amount made to the holder of an office that is relevant, but one has to ascertain as to whether such payment is by way of reimbursement of the expenses incurred or merely on account of being a holder of an office. In the first case, certainly it would not be a profit within the meaning of the said expression under Article 158 of the Constitution but that would not be a case in relation to the payment made merely because the person is the holder of the office. Same will have to be also ascertained bearing in mind the relevant statutory provisions, facts of the case and the class of persons whose case the Court is dealing with.
34. As already observed above, Article 158(2) specifically provides that the Governor shall not hold any other office of profit. Obviously, the said provision comes into force moment a person enters the office of Governor. If such a person has been holding any other office of profit he will have to take steps to cease to hold any such other office of profit. Undoubtedly, primarily it would be essentially for the person concerned to take such steps, failing which and even otherwise where such steps are required to be taken by some other body or institution under any statutory provision, it will be the duty of such institution to comply with the constitutional mandate under Article 158(2) read with the statutory obligation. It is also to be borne in mind that the office of Governor is the highest office in a State.
35. Considering the statutory provisions relevant for the decision in the matter, various decisions of the Apex Court referred to above, the law laid down by the Apex Court that the word 'profit' connotes an idea of pecuniary gain and does not include amount paid towards reimbursement of the expenses for discharge of official duties, if one peruses the provisions of Clause 15 of the said bye-laws, it relates to the payment of honorarium. It becomes, at once, clear that such honorarium is merely on account of being the holder of the office of the President of the Gurudwara Committee. It has nothing to do with the expenditure incurred in discharge of his official duties. Being so, merely because it is nomenclatured as 'honorarium', though it would not by itself decide whether it would be profit or otherwise, once it is revealed that such honorarium is not related to the expenses to be incurred for discharge of any official duty, that would certainly be the 'profit' within the meaning of the said expression under Article 158(2) of the Constitution. It is also to be noted that in the case in hand, it is nobody's case that such honorarium is in fact related to any expenditure towards discharge of any official duty.
36. The learned Counsel for the respondents, however, has submitted that it was primarily for the petitioners to plead that the respondent No. 4 had in fact availed the monetary gain on account of he being a member or President of the Gurudwara Committee. There is no substance in this contention. The grievance of the petitioners is that a constitutional mandate under Article 158(2) of the Constitution is not being complied with by the concerned authorities, inasmuch as, that once respondent No. 4 had assumed the office of the Governor of the State of Bihar, it was incumbent upon the respondent No. 1 to take appropriate steps to relieve the respondent No. 4 from the office of Member or President of the Committee which was formed under the impugned notifications. This being the plea which is sought to be raised by the petitioners and the contention being for enforcement of the statutory obligation comprised under the said Act read with constitutional mandate under Article 158(2), it was essentially for the respondents to come out with a case, if any, that the respondent No. 4 in spite of being a member or President is not entitled for any pecuniary gain from such office. Undoubtedly, in paragraph 5 of the affidavit filed on behalf of the respondent No. 1, it has been stated that:
5. In regard to the issue as to whether Shri Buta Singh can continue as president of the Board in view of his appointment as Governor of Bihar, Government is of the view that such appointment does not disqualify Shri Buta Singh to continue as President of the Board in the light of the provisions of the said Act. It communicated to the Secretary, Revenue and Forest Department, Government of Maharashtra by his letter dated 23-12-2004, is further submitted that Shri Buta Singh has that consequent upon his appointment as Governor of Bihar, he has not drawn any remuneration or any benefits from the Board, nor he intends to do the same in the future.
The statement has been verified by the deponent and same has been stated to have been based on official record which he believed to be true and correct. There is no affidavit-in-reply on behalf of the respondent No. 4.
37. A statement of fact by a deponent takes the colour of an affidavit when it is duly sworn being stated on oath and properly verified. Otherwise, it is a mere piece of paper having no evidentiary value. Every statement of fact in an affidavit is essentially to be verified disclosing the source of information unless the fact is to the personal knowledge of the deponent, and it is either to be stated so or revealed from the statement itself. Certainly whether the respondent No. 4, in future, would either draw remuneration or benefits from the Board or not, the same cannot be to the personal knowledge of the deponent who himself is not respondent No. 4. It is not the case of the deponent that any such directions had been given by the respondent No. 4 either to the Committee of Gurudwara or to the deponent. It is also not the case that the respondent No. 4 had informed to the deponent to make any such statement on oath before this Court. In such circumstances, one wonders as to what value can be given to the said statement by the deponent. Besides, whether one would actually claim and avail the remuneration or not is totally immaterial. The provision comprised under Article 158(2) of the Constitution speaks about holding of any other office of profit. It does not speak of actually enjoying or availing the profit attached to such office. Whether such profits or benefits are actually availed of or enjoyed or not by the holder of office is immaterial. Once the office is attached with such benefits or profits, it would be an office of profit. The decisive factor would be the attachment of such profit and not the actual enjoyment or actual availing of such profits by the holder of such office. Being so, merely because the affidavit is filed on behalf of the respondent No. 1 stating that no such remuneration would be claimed by the respondent No. 4, that will not make the office held by the respondent No. 4 as an office of 'no profit' or without profit.
38. The learned Assistant Government Pleader has, however, drawn our attention to the said statement by the deponent wherein there is a reference to the letter dated 23-12-2004 based on which the said statement has been made. Undisputedly, there is a reference to the letter dated 23-12-2004. In spite of the fact that it is a most relevant issue in the matter, the respondents have chosen not to place on record any copy of such letter. The statement does not disclose whether any letter is written under the signature of the respondent No. 4 or any other person under the instructions of the respondent No. 4. Besides, the statement is in the nature of submission and after referring to the letter dated 23-12-2004, it speaks of submission to the effect that 'by his letter dated 23-12-2004 is further submitted that Shri Buta Singh has consequent upon his appointment as Governor of Bihar, he has not drawn any remuneration or any benefits from the Board nor he intends to do the same in future.' It is not a statement of fact but a mere submission on the point in issue. The submission does not necessarily amount to a statement of fact. Once it is clear that the question is whether a holder of an office could enjoy pecuniary benefits or not and is most relevant factor and in that regard the respondents wanted to rely upon the letter in question in support of their contention, it was necessary for the respondents to place a copy of the said letter dated 23-12-2004 on record and thereafter to establish from the letter that there is an assurance as such from the respondent No. 4 in that regard. However, question would arise as to whether such assurance would amount to satisfactory compliance of the mandate of Article 158(2). In our considered opinion, such assurance to give up the claim would not decide the nature of the office being an office of profit or not. Merely because a person may voluntarily give up his claim for benefits, it would not cease to be an office of profit. An office would continue to be an office of profit once it is attached with such benefits, notwithstanding that the holder of such office may not actually avail or enjoy such benefits.
39. In the above circumstances, therefore, we do not find any substance in the grievance sought to be made on behalf of the respondents that the petitioners have failed to establish about the actual pecuniary benefit having been enjoyed by the respondent No. 4 and on that count the respondent No. 4 cannot be said to be holding the office of profit. As already observed above, it would not depend on the actual enjoyment or availing of such pecuniary benefits but attachment of such pecuniary benefits to the office, that itself would determine whether it is an office of profit or not.
40. It is also sought to be contended on behalf of the respondents that the petition is liable to be dismissed as not maintainable on the ground that when the impugned notification appointing the respondent No. 4 as Member of the Gurudwara Committee and subsequently to preside over the meetings was issued, the respondent No. 4 was not the Governor of the State of Bihar and therefore, at the time when the notifications were issued they were perfectly legal and valid. As regards the proposition that at the time of issuance of the impugned notifications, they were not hit by Article 158(2), there can hardly be any dispute or quarrel about the same. It is also not the contention of the petitioners that the impugned notifications were bad in law or void ab-initio. The grievance of the petitioners is that once the respondent No. 4 is appointed as the Hon'ble Governor of State of Bihar, he should cease to be the Member and the President of the said Committee and therefore, the respondent No. 1 should have taken the appropriate steps in terms of the provisions comprised under Section 53 of the said Act and the mandate of Article 158(2) of the Constitution.
41. Section 53 of the said Act deals with the power of the Government to supersede the managing body of the Gurudwara. It clearly provides that if the Government is of opinion that the Board is unable to perform, or Committee defaults in performance of its duty or abuses its powers, same can be superseded and new committee can be appointed. The Board would obviously include its member and if member is unable to perform, either on account of statutory restrictions or constitutional mandate and there is failure on the part of the holder of such office to vacate the same, certainly it will be the obligation of the Government to take recourse to the said provisions of law. In fact, the plain reading of the said section would disclose that it is the duty of the Government to take appropriate steps when a member is unable to perform his duties or for other reasons specified in the said provisions. Article 158(2), being a constitutional mandate, specifically prohibits the Governor from holding any other office of profit. The respondent No. 4 having been appointed as the Governor of State of Bihar, it was necessary for the Government to take appropriate steps in terms of Section 53 of the said Act, as the member of the Committee appointed under Section 53 of the said Act had been rendered unable to perform his duties of being a member on account of constitutional restrictions imposed under the Article 158(2) of the Constitution. It cannot be heard to say that the Government is not duty bound to comply with the constitutional mandate. Once the respondent No. 4 could not have held the office of profit after being appointed as the Governor of the State of Bihar and the office of Member or President of the said committee is an office of profit and since the respondent No. 1 had not taken steps to replace respondent No. 4 by some other member, certainly there was failure in discharge of its obligation on the part of the respondent No. 1, on account of non-performance of its duties, not only in failure to comply with the constitutional mandate under Article 158(2) of the Constitution, but also on account of inaction in spite of need to exercise the powers under Section 53 of the said Act.
42. Being so, the challenge in the petition and even the relief which is prayed for would apparently disclose that the interference of this Court is sought for to ensure due performance of the duties of the respondent No. 1 in relation to the statutory obligation under Section 53 of the said Act and the constitutional mandate of Article 158(2) of the Constitution. Hence, the contention about non-maintainability of the petition or non-availability of the reliefs asked for is totally devoid of substance.
43. It was also sought to be contended on behalf of the respondents that the present Committee is constituted under Section 53 of the said Act and therefore, the provisions which are applicable to the Board or the Committee constituted under Chapter II of the said Act would not be attracted and for the same reasons Clauses 15 and 16 of the said bye-laws relating to the members and the Committee constituted under Chapter II of the said Act would not also be attracted. The Section 53(2)(b) clearly provides that consequent upon the supersession of the Board in exercise of Sub-section (1) of Section 53 of the said Act, all the powers and duties which may by or under the provisions of the said Act be exercised and performed by and on behalf of the Board or the Committee shall during the period of supersession be exercised and performed by such a person or persons as the Government may direct. The notification dated 13-3-2002 which was issued in exercise of the powers under Section 53 of the said Act specifically provided that in exercise of the powers conferred under Section 53 of the said Act, the Government had directed that all the powers and duties to be exercised and performed by the said Board during the period of supersession, be exercised and performed by the Committee constituted under the said notification. Undisputedly the impugned notifications are in the form of addendum to the said notification dated 13-3-2002. Obviously, all the powers of the Board are vested in the Committee constituted under the said notifications. Clause 15 speaks of payment of money to the President and Clause 16 speaks of the payment of allowance to the members. Once the Government has allowed the Committee to perform all the functions of the Board including the powers and duties thereof, it is obvious that same would include the powers of the Board contemplated under Clauses 15 and 16 of the said bye-laws. The Government has also understood the same accordingly. This is apparent from the affidavit in reply filed on behalf of the Government. In the affidavit, the respondent No. 4 has been specifically referred to as the President of the Board and it has been stated that he would not claim necessary remuneration in his capacity as the President of the Board which obviously discloses the understanding of the Government about Clause 15 that the respondent No. 4 in his capacity as the President of the Gurudwara would be entitled for honorarium and allowances.
44. It is also sought to be contended on behalf of the respondent Nos. 3 and 4 that the notification nowhere points out the respondent No. 4 as President of the Board. It merely speaks of his membership. However, in that regard the learned Advocate for the petitioners is justified in drawing our attention to the notification dated 13-3-2002 wherein the Collector of Nanded was directed to preside over the meetings of the Committee and undisputedly the Collector was replaced by Shri U.P.S. Madon by the notification dated 16-1-2004 and further by respondent No. 4 by the notification dated 21-10-2004. Further affidavit in reply of the Government specifically refers to the respondent No. 4 as the President of the Board. The contention sought to be raised on behalf of the respondent Nos. 3 and 4 in that regard are, therefore, purely afterthought and devoid of substance.
45. For the reasons stated above, the petition succeeds. It is held that the office of member or the President of Gurudwara Committee is an office of profit within the meaning of the expression 'any other office of profit' under Article 158(2) of the Constitution, that it was obligatory on the part of the respondent No, 1 to take appropriate steps in terms of Section 53 of the said Act consequent upon the appointment of the respondent No. 4 as the Hon'ble Governor of State of Bihar since November, 2004 to relieve the respondent No. 4 of the said office and having failed to do so, the petitioners are entitled for the reliefs in the nature of prayer Clause (B). The rule is, therefore, made absolute in terms of prayer Clause (B) with no order as to costs.
46. At this stage, Shri P.V. Mandlik, learned Advocate for the respondent Nos. 3 and 4, prays for stay of the judgment and order. The prayer for stay is objected to on behalf of the petitioners. However, we are inclined to grant stay to our judgment delivered just now, for a period of six weeks from today. Order accordingly.