Judgment:
ORDER
R.C. Mishra, J.
1. As a common question of law has arisen in both the trials, this order shall govern disposal of interim applications (registered as I.A. No.48/2009 in Election Petition No. 27/2009 and I.A. No. 14/2009 in Election Petition No. 29/2009) under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for brevity 'the Code') read with Sections 86 and 87 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') for rejection of respective election petitions on the ground of non-disclosure of cause of action or a triable issue.
2. Incidentally, none of the petitioners is an unsuccessful candidate but each one of them was entitled to vote at the elections in question. The respondent in E.P. No. 27/2009 namely Vishwas Sarang is declared elected to M.P. Legislative Assembly Constituency No.151, Narela whereas the respondent in E.P. No. 29/2009 viz. Dhruv Narayan Singh is the returned candidate to M.P. Legislative Assembly Constituency No. 153, Bhopal.
3. For the sake of convenience, the respondents shall be referred to by their respective names only. On the date of filing of the nomination papers -
VishwasSarang was working as Chairman of RajyaLaghuVanopaj (VyaparAvamVikas)SahakariSanghMaryadit, Bhopal, which is a cooperative society wholly controlledand managed by the State Government and this office is placed at Serial No.86in the list of offices of profit under Government as described in theSchedule to the Adhiniyam as amended by M.P. Vidhan Mandal SadasyaNirhataNivaran (Sanshodhan) Adhiniyam, 2006[deemed to have been brought into force w.e.f 5th December,2003], exempted from the operation of the disqualification under Article 191(1)(a)of the Constitution.
DhruvNarayan Singh was working as Chairman of M.P. StateTourism Development Corporation, Bhopal, which is a statutory corporation andthis office is placed at Serial No.63 in the list of offices of profit underGovernment as described in the Schedule to the Adhiniyamas amended by M.P. Vidhan Mandal SadasyaNirhataNivaran (Sanshodhan) Adhiniyam, 2006 [deemed to have been brought into force w.e.f 5th December, 2003], exempted from the operation ofthe disqualification under Article 191(1)(a) of the Constitution.
4. In each one of the petitions, preferred under Section 80 read with Section 80A of the Act, the validity of the election of the returned candidate has been challenged solely on the ground that the respondent was disqualified for being chosen as MLA as he was not only holding an office of profit within the meaning of Article 191(1)(a) of the Constitution of India under the State Government but was also receiving remuneration other than allowances admissible under the M.P. Vidhan Mandal Sadasya Nirhata Nivaran Adhiniyam, 1967 (for short, 'the Adhiniyam').
5. Prayer for rejection of the petitions has been made on the following grounds -
(i) Both the petitions are based on the provisions of unamended Adhiniyam.
(ii) By virtue of Sub-section (1) of Section 3 of the Adhiniyam, the respondent in each case, being holder of an office of profit included in the Schedule, was not disqualified for being chosen as MLA.
(iii) The pleadings as to receipt of remuneration or misuse of office are vague and, therefore, leave things to chance.
6. In opposition, it has been submitted that each one of the returned candidates, being the holder of the office of profit, drawing pecuniary gains other than the compensatory allowance was disqualified from contesting the election.
7. The common ground raised in the election petitions falls under Section 100(1)(a) of the Act. It reads as under-
100. Grounds for declaring election to be void.-
(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion -
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963);
8. Relevant provisions of the Constitution of India are in the form of Article 191 that may be reproduced thus -
Article 191. Disqualifications for membership.-(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State-
(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;]
(b) ....;
(c) ....;
(d) ....;
(e) ....;
Explanation.-For the purposes of this clause,] a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.
9. The Adhiniyam, passed by the State Legislature under Clause (1)(a) and amended by Madhya Pradesh Act No. 1 of 2007, contains only four sections. However, for the purpose of this discussion, it is necessary to refer to Sections 2(a), (b) & (c) and 3 only. These provisions are couched in the following terms-
2. Definitions.-In this Act, unless the context otherwise requires,-
(a) 'Committee' means any committee, council, board or any other body of persons whether a statutory body or not set up by the Central Government or any State Government.
(b) 'Statutory body' means any corporation, board, company, society or any other body of persons, whether incorporated or not, established, registered or formed by or under any law for the time being in force or exercising powers and functions under any such law.
(c) 'compensatory allowance' means any sum of money payable to the Chairman or Member of any committee or statutory body by way of travelling allowance, daily allowance not exceeding the amount to which a member of the Legislative Assembly of Madhya Pradesh or the Legislative Council of the Madhya Pradesh is entitled to receive under the Madhya Pradesh Vidhan Sabha Sadasya Vetan Bhatta Tatha Pension Adhiniyam, 1972 (No. 7 of 1973), conveyance allowance, house rent allowance or communication allowance for the purpose of enabling the Chairman or member of any committee or statutory body to recoup any expenditure incurred by him in performing the functions of that office.
'Section 3 'Removal of certain disqualifications-
(1) It is hereby declared that none of the offices of the profit specified in the Schedule shall disqualify or shall be deemed ever to have disqualified the holder thereof for being chosen as, or for being a member of the Legislative Assembly of Madhya Pradesh or the Legislative Council of Madhya Pradesh, as the case may be;
(2) Subject to the provisions of Sub-section (1), no person holding the office of the Chairman or Member of any statutory body or committee shall be disqualified at any time for being chosen as, or for being, member of the Legislative Assembly of Madhya Pradesh or the Legislative Council of Madhya Pradesh by reason only of the fact that he holds such office or is in receipt of any compensatory allowance in such office. Explanation ' For the purpose of this Sub-section, expression 'Chairman' shall include 'President'.
10. At the outset, it may be observed that mentioning of un-amended provisions of the Adhiniyam in the petitions would not be of any consequence simply because the corresponding election has been questioned on the ground contemplated in Section 100(1)(a) of the Act. Further, election petition is not a suit between two persons but is a proceeding in which Constituency itself is the principal party interested. Moreover, there is a marked difference between the requirements of pleadings as regards election petitions based on Section 100(1)(a) and (b) of the Act. Accordingly, the cause of action in the case on hand cannot be equated with 'cause of action' as is normally understood because of altogether different nature of the consequences that follow. A petition challenging election on the ground of corrupt practice is a serious matter in view of the fact that in case any such allegation is found proved, the returned candidate would not only suffer ignominy but also disqualification under Section 8(a) of the Act. This apart, as explained by the Apex Court in Mohan Rawale v. Damodar Tatyaba alias Dadasaheb 1994 AIR SCW 2028 -
A reasonable cause of action is said to mean a cause of action with some chance of success when only the allegations in the pleading are considered. But so long as the claim discloses some cause of action or raises some question fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are quite often more known than clearly understood. It does introduce another special demurer in a new shape. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars.
11. The point for consideration, therefore, is as to whether each one of the election petitions discloses a reasonable cause of action ?
12. Learned Counsel for the respondents have strenuously contended that Sub-section (1), which protects the respondent in each case, is independent of Sub-section (2) of Section 3 of the Adhiniyam (hereinafter referred to as 'Section 3' only). According to them, even otherwise, there is nothing on record to suggest that, at the relevant point of time, anyone of them was drawing remuneration other than the compensatory allowance. They are further of the opinion that any enquiry into the quantum of allowances drawn by each one of the respondents would be wholly unnecessary and irrelevant as the immunity granted to the corresponding offices by Sub-section (1) of Section 3 is absolute and unconditional.
13. Per contra, learned Counsel for the petitioners has pointed out that none of the respondents was qualified to contest the election as he was receiving pecuniary gains from the post in addition to compensatory allowance. He is of the view that Sub-section (1) of Section 3 provides protection to the offices of the Chairman of the Committee/Statutory Bodies indicated in the Schedule subject to the rider placed by Sub-section (2) thereof and, accordingly, any holder of such an office would be qualified to contest the election only when he is recipient of compensatory allowance as defined under Section 2(c) [supra]. In substance, the argument of learned Counsel for the petitioners is that Sub-section (2) of Section 3 is the provision governing the exemption to a Chairman of any Committee/Statutory Body. Attention has also been invited to the fact that under the unamended Adhiniyam also, entry 17 of the Schedule specifically declared that offices of Chairman and Vice-Chairman or President and Vice- President or Managing Director or Director of a statutory body, or a member of any committee by whatever name any of the aforesaid office be called, were not to disqualify holders thereof for being elected as MLAs.
14. Thus, in order to decide whether a cause of action is disclosed the crucial question to be answered is whether both the Sub-sections of Section 3 should be read separately ?
15. It is true that Sub-section (2) of Section 3 of the Adhiniyam begins with the expression 'Subject to the provisions of Sub-section (1)' but fact of the matter is that the first Sub-section only declares that certain offices of the profit would not disqualify their holders for being elected as MLAs. However these offices, described under as many as 98 entries of the Schedule, include offices of the Chairmen of statutory body or committee earmarked for the purpose whereas by way of Sub-section (2), it is provided that no Chairman of any statutory body or committee shall be disqualified at any time for being chosen as, or for being member of the Legislative Assembly of Madhya Pradesh by reason only of the fact that he holds such office or is in receipt of any compensatory allowance in such office.
16. Further, in the context, it would be propitious to dilate on the term 'office of profit' which is used in a number of national constitutions to refer to executive appointments. A number of countries forbid members of the legislature from accepting an office of profit under the executive as a means to secure the independence of the legislature and preserve the separation of powers. The English Act of Settlement 1701 and Act of Union 1707 are two early examples of this principle. The Act of Settlement provided that no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons; the framers of the US Constitution adopted a similar position. The US Constitution provides that 'no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.' Similarly, it provides that individuals holding an office of profit or trust under the United States are forbidden, without the consent of the Congress, from receiving any emoluments from the government of a foreign state, and that a person who holds an office of trust or profit under the United States cannot be an elector in presidential elections.
17. Clause (a) of Article 191(1) of the Constitution of India confers power on the Legislature of State to declare that any office of profit under the Government of India or the Government of any State would not disqualify its holder from being chosen as an MLA. In the words of H.K. Chainani, J -
The object of this provision is to secure independence of the members of the Legislature and to ensure that the Legislature does not contain persons, who have received favours or benefits from the executive and who, consequently, being under an obligation to the executive, might be amenable to its influence. Putting it differently, the provision appears to have been made in order to eliminate or reduce the risk of conflict between duty and self-interest amongst the members of the Legislature.' (Deorao v. Keshav : AIR 1958 Bom 314 referred to) However, the expression 'office of profit' is neither defined in the Constitution nor in the Act.
18. As explained by the Apex Court in Mahadeo v. Shantibhai : (1969) 2 SCR 422 an office means no more than a position to which certain duties are attached. It means a fixed position for performance of duties. A position or place to which certain duties are attached, especially one of a more or less public character.
19. The word 'profit' connotes the idea of pecuniary gain. If there is really a gain, its 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 deciding whether the office really carries any profit (See. Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa : (1971) 3 SCC 870. Accordingly, if a profit does actually accrue from an office, it is an 'office of profit', no matter how it accrues.
20. Thus, an office of profit is an office, which is capable of yielding a profit that means any pecuniary gain. As further elucidated by the Supreme Court in Jaya Bachchan v. Union of India : AIR 2006 SC 2119 -
the question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. Nomenclature is not important. In fact, mere use of the word 'honorarium' cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. Payment of honorarium, in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit. For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the 'pecuniary gain' is 'receivable' in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.
21. Learned Senior Counsel, while placing reliance on the decision of the Supreme Court in Kanta Kathuria v. Manak Chand Surana : AIR 1970 SC 694 has submitted that the word 'declared' in Articles 191(1)(a), does not imply any limitation on the powers of the Legislature. According to him, the Constitution has conferred wide powers as well as unfettered and unbridled discretion on the State Legislature to identify and protect/exempt any office of profit from disqualification irrespective of the quantum of emoluments, benefits and perks attached thereto. However, in a subsequent decision rendered in Bhagwandas Sehgal v. State of Haryana : AIR 1974 SC 2355 ambit of this power was explained in the following terms -
Article 191(1)(a) of the Constitution gives a wide power to the State Legislature to declare by law what office or offices of profit held under the Government shall not disqualify the holder thereof from being chosen or for being a member of the State Legislature. Classification of such offices for the purpose of removing disqualification has thus been left primarily to legislative discretion. So long as the Legislature exercises this exemptive power reasonably and with due restraint, in a manner which does not drain out Article 191 (1) (a) of its real content, or disregard any constitutional guarantee or mandate, the Court will not interfere with it.
Moreover, a designated election Judge of High Court can adjudicate upon validity of any laws subject to limitations placed by provisions of the Act. (Hari Shanker Jain v. Sonia Gandhi : (2001) 8 SCC 233 relied on).
22. In this context, learned Counsel for the respondents have submitted that inclusion of the offices of Chairman of Rajya Laghu Vanopaj (Vyapar Avam Vikas) Sahakari Sangh Maryadit and Chairman of M.P. State Tourism Development Corporation, in the list of offices of profit under Government not disqualifying their holders from contesting the election to the Legislative Assembly can not, in any way, be termed as an unreasonable exercise of the exemptive power conferred by Article 191(1)(a) of the Constitution. According to them, the petitions are apparently misconceived as Sub-section (1) of Section 3, being a complete code in itself, provides absolute exemption from the disqualification, under Article 191, to holders of the offices enumerated in the Schedule. Accordingly, it would not be possible to hold that the respondents were not qualified to be elected to the Legislative Assembly. To buttress the contention, reliance has been placed on decision of the Himachal Pradesh High Court in Leela Devi v. Rangila Ram Rao : AIR 1985 H.P. 22. In that case, it was held that Office of Chief Parliamentary Secretary was not 'office of profit' in view of Section 3(d) of H.P. Legislative Assembly Members (Removal of Disqualifications) Act, 1971, as reproduced below -
Section 3. A person shall not be disqualified for being chosen as, and for being, a member of the Himachal Pradesh Legislative Assembly by reason only of the fact that he holds any of the following offices of profit under the Government of India or the Government of any State:
(a) the office of a Deputy Minister or Minister of State;
(b) any office held by a Minister, Minister of State, or Deputy Minister whether ex-officio or by name;
(c) the office of the Speaker or the Deputy Speaker of the Himachal Pradesh Legislative Assembly or any other State ;
(d) The office of the Chief Parliamentary Secretary or Parliamentary Secretary ;
(e) ....
23. A bare perusal of Section 3 of the H.P. Act would reveal that it corresponds to Sub-section (1) of Section 3 only. In other words, it does not have any provision in pari materia with Sub-section (2) of Section 3. As such, the pronouncement in Leela Devi's case is not of much relevance.
24. Still, learned Counsel for the respondents, while emphasizing the fact that Sub-section (2) of Section 3 begins with the expression 'Subject to the provisions of Sub-section (1)', has strenuously contended that the general provision of Sub-section (2) has been made subordinate to Sub-section (1) and, therefore, offices of the Chairman or Member of any statutory body or committee enumerated in the Schedule would not attract Sub-section (2). To substantiate the argument, reliance has been placed on the following precedents -
(i) Kerala State Electricity Board v. Indian Aluminium Co. Ltd. : AIR 1976 SC 1031
(ii) Commissioner of Wealth Tax, A.P., Hyderabad v. Trustees of H. E. H. Nizam's Family : AIR 1977 SC 2103
(iii) Indu Bhusan Bose v. Rama Sundari Debi : AIR 1970 SC 228
(iv) Union of India v. Azadi Bachao Andolan AIR 2004 SC 1107.
In response, learned Counsel for the petitioners has submitted that Sub-sections of Section 3 must be harmoniously interpreted as parts of an integral whole and as being interdependent. For this purpose, he has drawn attention to the use of words 'no person holding the office of the Chairman or Member of any statutory body or committee' in Sub-section (2) and the fact that the Schedule comprises a number of other offices also e.g. those of Speaker and Deputy Speaker of the State Legislative Assembly, Advocate General etc. These decisions have been cited to fortify the contention -
(i) Allahabad Bank v. Cenara Bank : (2000) 4 SCC 406.
(ii) Printers (Mysore) Ltd. v. M.A. Rasheed : (2004) 4 SCC 460.
(iii) Sultana Begum v. Prem Chand Jain AIR 1997 SC 1006.
25. Before proceeding to examine the scope and effect of the provisions of Sub-section (2), it becomes necessary to understand import of the words 'subject to'. The expression 'subject to' means -
(i) conditional upon or on the assumption of (See. Oxford Dictionary)
(ii) affected by it or to be likely to be affected by it (See. Collins Dictionary).
(iii) 'Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for. (See. Black's Law Dictionary).
(iv) an expression whereby limitation is expressed See. Ashok Leyland Ltd. v. State of T.N. : (2004) 3 SCC 1.
26. Amongst the decisions referred to by learned Counsel for the respondents, only one rendered in the case of Kerala State Electricity Board is directly relevant to the issue under consideration. It is, therefore, not desirable to burden this order with discussion pertaining to the other pronouncements.
27. In Kerala State Electricity Board's case (supra), the provisions of Article 246 of Constitution of India came up for consider- ation before the Constitution Bench. For a ready reference, it may be reproduced as under -
Article 246. (1) Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List').
(2) Notwithstanding anything in Clause (3), Parliament and, subject to Clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the 'Concurrent List').
(3) Subject to Clauses (1) and (2), the Legislature of a State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in the Constitution referred to as the 'State List').
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.
The Court, per majority, held -
The words 'notwithstanding' in Clause (1) and 'subject to' in Clause (3) mean that where an entry is in general terms in List II and part of that entry is in specific terms in List I, the entry in List I takes effect notwithstanding the entry in List II. This is also on the principle that the 'special' excludes the 'general' and the general entry in List II is subject to the special entry in List. I.
Furthermore, the word 'notwithstanding' in Clause (1) also means that if it is not possible to reconcile the two entries the entry in List I will prevail. But before that happens attempt should be made to decide in which list a particular legislation falls.
28. However, the distinguishing feature here is that the first subsection of SECTION 3 is not prefaced with a 'non obstante' clause, which is used in contradistinction to the phrase 'subject to'. As such, decision rendered in Kerala State Electricity Board's case (above) is of no avail to the respondents. This apart, as observed by the Supreme Court in Raja Krushna Bose v. Binod Kanungo : AIR 1954 SC 202 -
it is usual, when one section of an Act takes away what another confers, to use a 'non obstante' clause and say that 'notwithstanding anything contained in section so and so, this or will happen', otherwise, if both sections are clear, there is a head on clash. It is the duty of courts to avoid that and, whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise.
29. In Sultana Begum's case (ibid), the Supreme Court applied rule of harmonious construction, which is also spoken of as 'ex visceribus actus' in resolving the apparent conflict between the provisions of Section 47 and Order XXI, Rule 2 of the Code of Civil Procedure. While rejecting the contention that since the provision of the substantive law i.e. Section 47 specifically provides that questions relating to the execution, discharge or satisfaction of the decree shall be determined by the executing Court, it would prevail over the provision of the procedural law viz. Order XXI, Rule 2 including Sub-rule (3) which prohibits the executing Court from recognising any payment or adjustment which has not been certified or recorded under Order XXI, Rule 2, the Court quoted with approval the following observations made by Lord Davy in Canada Sugar Refining Co. v. R. (1898) AC 735 -
Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject- matter.
30. Corresponding principles were also reaffirmed in the following terms -
(i) It is the duty of the Courts to avoid a head on clash between two Sections of the Act and to construe the provisions, which appear to be in conflict with each other in such a manner as to harmonise them.
(ii) The provisions of one Section of a statute cannot be used to defeat the other provisions unless the Court, in spite of its efforts, finds it impossible to effect reconciliation between them.
(iii) It has to be borne in mind by all the Courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of 'harmonious construction'.
(iv) The Courts have also to keep in mind that an interpretation which reduces one of the provisions as a 'dead letter' or 'useless lumber' is not harmonious construction.
(v) To harmonise is not to destroy any statutory provision or to render it otiose.
31. Applying these principles to provisions of SECTION 3, it can easily be concluded that its constituent parts of the Act have to be construed together and not by taking detached Sub-sections. The obvious reason is that if the contention advanced on behalf of the respondents is to be accepted, then the result would be that on one hand, the Scheduled offices of the Chairman or Member of any statutory body or committee would stand unconditionally exempted from the disqualification rule and on the other, there would also be wholesale exemption of all the non-Scheduled offices of Chairman or Member of any statutory body or committee provided that the holder of any such office is not in receipt of or entitled to any remuneration other than the compensatory allowance. That would evidently be a result so bizarre that the legislature could not have intended. Even otherwise, it would be difficult to discover any reason or justification for treating the of- fices of Chairman or Member of any statutory body or committee at par with the constitutional offices of Speaker, Advocate General etc. Further, as explained by Honourable Mr. Justice G.P. Singh, formerly a Chief Justice of this Court, in his celebrated work 'Principles of Statutory Interpretation' (Tenth Edition at Page 125) -
If the language used is capable of bearing more than one construction, in selecting the true meaning regard must be had to the consequences resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results.
32. Thus, viewing SECTION 3 from all angles - in retrospect, the reasons for enacting it, the evils it was to end and the objects it was to sub-serve the correct meaning of the words 'subject to', which have been used in Sub-section (2) thereof to effectuating the intention of the law is 'conditional upon' and not 'liable to' as suggested by learned Counsel for the respondents (K.R.C.S. Balakrishna Chetty and Sons and Co. v. State of Madras : AIR 1961 SC 1152 referred to). The subsections thereof must be read together. The question posed in paragraph 14 (above) is, therefore, answered in the negative.
33. Keeping in view the criteria for distinguishing material facts from material particulars, as explained in Shri Udhav Singh v. Madhav Rao Scindia : (1977) 1 SCC 511 it can safely be concluded that each one of the petitions contains material facts in respect of the ground contained in Section 100(1)(a) of the Act pertaining to disqualification to fill the seat.
34. At this juncture, it would be appropriate to take note of a decision of Karnataka High Court, authored by Shivaraj Patil, J. (as his Lordship then was), in Ramakrishna Hegde v. State AIR 1993 Karnataka 54. In that case, no evidence was placed in the Court to show that any salary or pay scale was attached to the post of the Deputy Chairman of the Planning Commission held by him. In addition, the appointment order (Annexure-A) has spelt out clearly that he would draw no salary. On these facts, applying the tests indicated by the Apex Court in Umrao Singh v. Darbara Singh : AIR 1969 SC 262 and Divya Prakash v. Kultar Chand Rana : AIR 1975 SC 1067 it was held that he was not occupying an office of profit.
35. As an obvious corollary, if anyone of the petitioners is able to prove that, at the relevant point of time, the corresponding respondent was drawing any remuneration other than the compensatory allowance, the election in question would be liable to be declared as void. In other words, the petitions disclose a reasonable cause of action.
36. For these reasons, none of the petitions deserves rejection at the threshold.
37. In the result, the Interim Applications stand dismissed. A copy of this order be retained in the connected election petition.