JAYA BACHCHAN V.  UNION OF INDIA AND ORS, 2006

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FACTS: 

          The Government of Uttar Pradesh appointed Jaya Bachan (Petitioner) as the Chairperson of Uttar Pradesh Film Development Council and sanctioned to her the rank of a Cabinet Minister with the facilities. She was appointed by official Memorandum on 14^th of July, 2004. On 8^th May, 2006, a three Judges bench in this case rejected the writ petition filed by Ms. Jaya Banchan against her disqualification from the membership of Rajya Sabha for holding an “Office of Profit”.

The benefits that were provided to petitioner were as given follow:

1.  Honorarium of Rs. 5,000 per month; 
2. Daily allowance of Rs. 600 per day within the State and Rs. 750 outside the State. 

Rs. 10,000 per month towards entertainment expenditure.

3. Staff car with driver, telephones at office and residence, one Personal Secretary and one Personal Assistant and two class IV employees. 
4. Body Guard and night escort. 
5. Free accommodation and medical treatment facilities to her and family members. 
6. Free accommodation in government circuit houses/guest house and hospitality while on tour.

The challenge to the opinion rendered by the Election Commission to the Hon’ble President, under Article 103(2). The petitioner became disqualified under Article 102(1)(a) for being a Member of the Rajya Sabha. The petitioner also challenged the opinion of the Election Commission dated 2 March 2006, by filling Writ Petition under Article 32 of the Indian Constitution.

ISSUE:

Whether a person holds an “office of profit” is required to be interpreted in a realistic manner?

ARUGUMENTS:

The petitioner contends that in the absence of any finding by the Election Commission that she had received any payment or monetary consideration from the State Government, she could not be said to hold any office of profit under the State Government and, therefore, her disqualification was invalid. the petitioner has also referred to Biharilal Dobrav v. Roshanlal Dobrav, and contended that citing Divya Prakash (supra), with approval, it was held that when a candidate is appointed in an honorary capacity without any remuneration even though post carried remuneration, he cannot be said to be holding an office of profit and thus was not disqualified under Article 191 (1)(a) of the Constitution.

JUDGEMENT:

It is well settled that where the office carries with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive or draw such emoluments. What is relevant is whether pecuniary gain is “receivable” in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly. The question whether petitioner actually received any pecuniary gain or not is of no consequence, therefore petition dismissed.

REFERENCE:

https://indiankanoon.org/

https://main.sci.gov.in/

This case analysis is done by Miss. Rutuja Santosh Kokare of Ismailsaheb Mulla Law College, Satara, Legal Intern at Legal Vidhya.

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