CENTRAL UNIVERSITY OF SOUTH BIHAR

CONSTITUTIONAL LAW -II

CASE STUDY:

Shibu Soren vs. Dayanand Sahay and Ors.

(AIR 2001 SC 2583)

SUBMITTED TO: SUBMITTED BY:

POONAM KUMARI SONAM KUMARI

ASSISTANT PROFESSOR B.A.LL.B (3rd SEMESTER)

SCHOOL OF LAW AND GOVERNANCE CUSB1813125103

 ACKNOWLEDGEMENT
I take my extreme pleasure in expressing my profound gratitude towards my faculty for inspiring
me and providing me with her constant support. I feel myself highly delighted as it gives me
incredible pleasure to present a project report on “CASE STUDY: SHIBU SOREN Vs.
DAYANAND SAHAY”.

I am indebted to my parents, siblings and friends for helping and motivating me all the time. I am
also thankful to my kith & kin. Last but not the least; I would like to thank each and everyone for
providing me with necessary material and showing their kind concern.

SONAM KUMARI

B.A.LL.B (3rd SEMESTER)

CUSB1813125103
 TABLE OF CONTENTS

Page no.

1. CASE DETAILS 2
2. INTRODUCTION 3
3. FACTS OF THE CASE 4
4. ISSUE BEFORE THE COURT 4
5. ARGUMENTS FROM APPELLANT’S SIDE 5
6. ARGUMENTS FROM RESPONDENT’S SIDE 6-7
7. JUDGEMENT 7-10
 Ratio Decidendi
 Obiter Dicta
8. CRITICAL ANALYSIS 11
9. CONCLUSION 12
10.BIBLIOGRAPHY 13
 1. CASE DETAILS: IN THE SUPREME COURT OF INDIA

CASE NAME: SHIBU SOREN

Vs.

DAYANAND SAHAY AND ORS

EQUIVALENT CITATIONS: AIR2001SC 2583, JT 2001(5) SC 504, (2001)3

MLJ 124(SC), 2001(II) OLR 620, 2001(4) RC R (Civil) 493, 2001(4) SC ALE395,
(2001)7SC C 425, [2001]3SC R1020

CIVIL APPEAL NO.: 3538 OF 2000.

DECIDED ON: 19.07 .2001.

APPELLANT: SHIBU SOREN.

RESPONDENTS: DAYANAND SAHAY AND ORS.

BEFORE THE BENCH OF HON’BLE

 DR. A.S.ANAND, C.J.
 R.C.LAHOTI
 SHIVRAJ V.PATIL, J.J.
LAWS DEALT:

 ARTICLE 102(1) (a) & ARTICLE 191(1) (a), CONSTITUTION OF

INDIA.
 SECTION 80 AND 81, THE REPRESENTATION OF THE PEOPLES
ACT, 1951.
 JHARKHAND AREA AUTONOMOUS COUNCIL ACT, 1994.
 SECTION 3, PARLIAMENT (PREVENTION OF DISQUALIFICATION)
ACT, 1959.

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 2. INTRODUCTION
The Constitution of India in its Part V; Art.102 (1) (a) recognizes “holding an office of profit
under the government” a ground for disqualification from continuing as a Member of Parliament
(MP) as well as contesting parliamentary elections to be chosen as MP. It basically aims at
eliminating or reducing the risk of conflict between duty and interest amongst the Members of
Parliament by disentitling a person to continue as a Member of Parliament 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. This principle is based on ensuring
impartiality and neutrality in the public services enabling him to carry on his duties freely and
fearlessly without subjected to any governmental pressure thereby maintaining the legislature.
The expression “office of profit” is not defined in the Constitution of India. In the absence of any
statutory expression "office of profit" must be given its ordinary meaning supported by judicial
interpretations. The meaning of office of profit was explained by the SC in the case of Jaya
Bachchan vs. Union of India (AIR 2006 SC 2119), “An office is deemed to be an office of profit
if it is capable of yielding an emolument, remuneration, profit or pecuniary gain, regardless of
whether the person exercises that ability in order to actually obtain the profit or not”. Moreover,
if the ‘pecuniary gain’ is ‘receivable’ in connection with office then it becomes an ‘office of
profit’, irrespective of whether such pecuniary gain is actually received or not. The nature and
function of the body that the member is a part of also plays a consequential role in determining
the competency of a person to be a member of the Parliament. If the body to which member
belongs only gets a regular salary the disqualification is not attracted but where the person
belongs to executive and financial body which can exert power and influence, the
disqualification is attracted. The President might decide that the disqualification of an MP will
not be necessary due to the facts and reasoning of that particular case under the provisions of
Parliament (Prevention of Disqualification) Act, 1959 (10 of 1959)which exempts certain posts
from disqualification despite holding an office of profit. The Parliament and the state legislatures
are, however, empowered to exempt any such office from entailing disqualification. In Section
6(1) (a) of the Jharkhand Area Autonomous council act, 1994 a person can be disqualified if he
holds any office of profit under the Union or State Government, local body, any board or
cooperative society other than an office declared by the Legislature of the State by law.

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3. FACTS OF THE CASE:
 The Election Commission released a notification for filling up seven seats of Rajya
Sabha. The nomination papers were filed by nine persons including appellant and seven
respondents which after scrutiny found to be valid. But on the last date of withdrawal of
nominations one candidate withdrew his nomination leaving behind eight candidates to
contest the elections for the seven seats.
 On 18th June, 1998 nominations took place and on counting result was declared on the
same date. Appellant secured the highest number of votes (43.74), and along with
Respondent no. 2 to 7 was declared elected. Respondent no. 1 was defeated.
 Respondent no. 1 thereupon filed an Election Petition under Section 80 and 81 of the
Representation of Peoples Act, 1951 against the election of appellant on the ground that
at the time of filling his nomination he was holding “an office of profit” under the
Jharkhand State as a Chairman of the Interim Jharkhand Area Autonomous Council set
up under the Jharkhand Area Autonomous Council Act, 1994 and thus disqualified to
contest election to Rajya Sabha.
 The appellant resisted the Election Petition and claimed that office of Chairman of the
interim JAAC was not an “office of profit” and the election petitioner was barred from
raising the challenge for not having raised at the time of scrutiny of nomination papers.
 Also, the appellant was only drawing honorarium and allowances to meet his ‘out pocket
of expenses’ under the State Government and his election must not be set aside.
 An additional plea was raised by appellant that if any disqualification stood must be
removed by Section 3 of the Parliament (Prevention of Disqualification) Act, 1959 since
he enjoyed the status of Minister while functioning as a Chairman of the Interim Council.
4. ISSUE BEFORE THE COURT:
1. Whether the appellant in the present case held an ‘office of profit’ under the State
Government on the date of scrutiny of nomination papers.
2. Whether that office has not been declared by the Parliament by law not to disqualify its
holder.

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 5. ARGUMENTS FROM APPELLANT’S SIDE:
1. The appellant contended that he was holding an office of Chairman of the Interim JAA
Council when he filed his nominations and also that he belonged to Scheduled Tribes and
nominated by State Government as a Chairman of the Council herein. The appellant held
his office ‘at the pleasure’ of the State Government.
2. The appellant admitted before the High Court that as a Chairman of the Interim Council
he was receiving:
i. An honorarium of Rs.1750/- per months;
ii. Daily Allowance at the rate of Rs. 150/- per day for the period spent outside the
headquarters besides travelling expenses as prescribed;
iii. Furnished rent free accommodation (quarters) and
iv. A car with driver.
3. The counsel submitted that payment of ‘honorarium’ may not be any pay, salary,
remuneration or emoluments it is a different concept than salary or remuneration and its
payment cannot constitute an “office of profit” unless there is some ‘pecuniary gain’.
4. The appellant in his additional plea contended that even if the office held by him as a
‘Chairman’ of the Interim Council was an “office of profit” under the state government
the disqualification if any stood removed by Parliament (Prevention of Disqualification)
Act, 1959 because of him enjoying the status of a minister.
5. The word 'profit' for the purpose of Article 102(1)(a) or Article 191"connotes an idea of
pecuniary gain", and in this case the appellant receives 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 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. Rs. 1,750/- per month was paid only as honorarium. The counsel further stated
the case of Karbhari Bhimaji Rohamare, in which this Court opined that a person
receiving an honorarium of Rs.25/- per day besides travelling and daily allowances could
not be a pecuniary gain nor could it become a 'source of profit' for the concerned person,
unless he stays "with some friends or relative or stays in a Dharamshala.."

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 6. ARGUMENTS FROM RESPONDENT’S SIDE
1. The counsel from respondent side contended that besides daily allowances and
honorarium, the appellant himself admitted that he had also been provided with rent free
accommodation, car with a driver at State expense and payment of an additional amount
of Rs. 1,750 clearly reflects some pecuniary gain to the appellant and was not in the
nature of out of pocket expenses. This contention was based on the precedents where rent
free accommodation and a chauffeur driven car at the State expense in addition to
“honorarium” and other allowances brings in an element of “profit”. The payment of Rs.
1,750 /- per month received by the appellant was not in the nature of gratuitous payment,
voluntary donation or compensation to meet any out of pocket expenses; rather it was
capable of bringing about a conflict between the duty and the interest of the appellant as a
Member of Parliament.
2. In the established facts and circumstances of the case it is clear that the Chairman of the
Interim JAA Council was receiving a pecuniary gain in the form of honorarium and held
an “office of profit”.
3. The respondents further contended that the term Interim Council has not been defined
under the JAAC Act; its provisions are based on clause (xix) of the Tripartite Agreement
in the Section 23 of the Act.
4. The respondents further JAAC Act was set up to replace Chotta Nagpur and Santhal
Pargana Development Authority, with a view to ensure accelerated plenary development
of the area through elected representatives. This council was to act as a limb or agency of
the State Government charged with the specific task and under the sub-section (2) of
section 23 of the JAAC Act, in which the State Government shall nominate 50 percent
members of the Council out of its total membership from the members of Lok Sabha and
the Legislative Assembly representing the Area and from the members of Rajya Sabha
and Legislative Council who are inhabitants of the area. Remaining 50 per cent to be
nominated by the State Government from amongst inhabitants of the area and having an
interest in its development. Thus, it is clear that interim JAA Council established by
JAAC Act, consisting only of nominees appointed by the State Government, to hold their
office ‘at the pleasure of the State Government’.

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 5. Further it was contended that under Section 23(3) of the JAAC Act the State Government
shall nominate the Chairman and Vice-Chairman of the Interim Council with a condition
that only a member of the Scheduled Tribes could be so nominated “at the pleasure of the
State” without any element of election. The State Government also has power and
jurisdiction to appoint and remove the Chairman of the Interim JAA Council. Section
6(2) of JAAC Act disqualifies a Member of Parliament, State Legislature or any other
specified bodies, to be a member of the council, unless he resigns from the membership
of the legislature or the local body; not necessarily within 21 days of his election. Thus
the State Government had the exclusive jurisdiction to appoint and remove the Chairman
as well as members of the Interim Council.
6. The provisions for the "vacancy, resignation and removal" of the Chairman of Regular
Council under Section 17, has no application to the nominated Chairman of Interim
Council, who holds office at the pleasure of the State Government under the specific
provision of Section 23(7) of the Act. The JAAC Act did not consider Chairman of
Interim JAA Council to be 'at par' with the Chairman of regular Council. Therefore, it
was satisfied that the appellant was holding his office under the State Government.
7. The honorarium of Rs. 1,750/- paid to the appellant as Chairman of Interim Council
inherently implies an element of “profit” and giving ‘pecuniary gain’ clearly shows that
he was holding an office of profit under the State Government.
8. The situation in Surya Kant Roy’s case and Shivamurthy Swami’s case are clearly
distinguishable and cannot come to aid to the appellant to hold that he did not hold the
office of profit under the State Government.

7. JUDGEMENT
A learned designated Judge of the Patna High Court On 10th May, 2000, allowed the election
petition filed by respondent and set aside election of the appellant. It was held that the office of
Chairman of Interim JAAC was an 'office of profit' under the State Government because the
payment of honorarium at Rs. 1750/- per month to the Chairman could not be construed as
compensatory allowance. It was also held that the Chairman of the Interim JAAC held hid office
under the State Government and, therefore, disqualification stipulated by Article 102(1) (a) of
the Constitution of India was clearly attracted to the appellant's election. It was further held that

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the said disqualification was not saved by the Parliament "Prevention of Disqualification Act,
1959" on the pleas raised in the additional written statement which inter alia included the plea
that as the Chairman of Interim council, the appellant enjoyed the 'status' and other privileges of
a Minister within the State and hence his disqualification stood removed by Section 3 of
Prevention of Disqualification Act, 1959. Consequently, the election of the appellant was
declared void and respondent No. 1 was declared duly elected to Rajya Sabha relying upon the
law laid down in Vishwanath Reddy vs. Konappa Rudrappa Nadouda1. This appeal is directed
against that judgement of the Patna High Court dated 19th May, 2000.

RATIO DECIDENDI
A. Article 102(1) (a) of the Constitution of India deals with disqualifications for 'being
chosen as' and 'for being a member of either House of Parliament' and inter alia provides:
1. 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.
B. There were some relevant provisions of the JAAC Act 1994 on with the Hon’ble Court’s
judgement relied upon, which deals with the definitions of the terminologies used in the
same Act, Section 3 dealing with ‘The Constitution of Council’; Section 11 dealing with
‘Duration of the Council’; Section 12 dealing with ‘Dissolution of the Council’; Section
13 dealing with ‘Nomination of the Members to the Council’; Section 15 dealing with
‘The Chairman of the Council’; Section 17 dealing with ‘Vacany, resignation and
removal from the office of Chairman’; Section 23 dealing with ‘Constitution of Interim
Council and Interim Executive Council’; Section 26 dealing with ‘Honorarium and
Allowances to the Chairman, Vice- Chairman and Members’; Section 29 dealing with
‘Powers and Function of the Council’; Section 30 dealing with ‘Supervisory powers and
function of the Council’; Section 34 dealing with Financial powers of the Council’;
Section 36 dealing with ‘The powers and Functions of the Interim Council and Interim
Executive Council’ and Section 42 dealing with ‘Direction by the State Government’.

1
1969 AIR 447, 1969 SCR (1) 395

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 OBITER DICTA
1. In the case of Ravabba Subanna vs. G. S. Kaggerappa2 this court held that a person
holding the position of Chairman of Gubbi Taluk Development Committee and drawing a
fee of Rs. 6/- per sitting was to enable him to meet ‘out of pocket expenses which has to
incur for attending the meetings of the committee’ and could not be said to be “holding
any office of profit” under the Government.
2. In Maulana Abdul Shakur vs. Rikhab Chand and another3 a Constitution bench of this
Court observed in the case of a Manager of a School run by a Committee of Management
formed under the provisions of the Dargah Khwaja Saheb Act, 1955 that though the
appellant was holding his office under a statutory body appointed by the Government, he
could not be held to the holder of office of profit within Article 102(1)(a) of the
Constitution of India. The candidate not getting his salary out of the revenues of the
Government of India but out of the funds of Dargah Endowment, therefore, he could not
be said to hold an office of profit under the Government.
3. In Kanta Kathuria vs. Manak Chand Surana4, a Constitution bench of this Court observed
in the case of an Advocate, who held office of Special Government Pleader under the
Government of Rajasthan with her remuneration fixed at Rs. 150/- per day for date of
hearing and Rs. 75/- per day for days of travel and preparation of the case; for conducting
arbitration cases between the Government and the Modern Construction Company. On
contesting assembly elections in 1967 she declared elected to the Rajasthan Legislative
Assembly which was further challenged and stands disqualified by the High Court on the
ground of holding an office of profit under the State Government. This Court allowed the
appeal of Kanta Kathuria and judgement of the High Court was set aside and finally held
that the appellant was not disqualified to contest the election under Article 191(1)(a) of the
Constitution.
4. In Shivamurthy Swami vs. Agadi Sanganna Andanappa5 this court observed that a
Member of Koppal Taluk Development Board as well as a member of the District
Development Council could not be said to hold an office of profit under the Union or the

2
AIR 1954 SC 653
3
[1958]1 SCR 387
4
[1970]2 SCR 835
5
(1971)3 SCC 870

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 State unless there is a 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 indicating whether the office really carries any
profit...”
5. In Karbhari Bimaji Rohamare vs. Shankar Rao Genuji Kolhe & Ors.6 Election of
Respondent no.1 was in question, who was a member of Wage Board of Sugar Industry
constitute by the Government of Maharashtra under Bombay Industrial relations Act, 1946
and was held that the respondent in question did hold an ‘office under the Government’
but it was not ‘an office of profit’.
6. In Surya Kant Roy vs. Imamul Hai Khan7 this Court held that the mere control of
Government over the authority having the power to appoint, dismiss, or control the
working of the officer employed by such authority does not disqualify that officer from
being a candidate for election as a member of the Legislature.
From these cases we find that in order to attract disqualification contained in Article 102(1)
(a), a person must not only be holding “an office” but that office must be an “office of profit”
and should be under the Government. The court also held that it is the substance and not the
form which matters and even the quantum or amount of "pecuniary gain" is not relevant -
what needs to be found out is whether the amount of money receivable by the concerned
person in connection with the office he holds, gives to him some "pecuniary gain", other than
an 'compensation' to defray his out of pocket expenses, which may have the possibility to
bring that person under the influence of the executive, which is conferring that benefit on him.

6
[1975]2 SCR 753
7
[1975]3 SCR 909

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 8. CRITICAL ANALYSIS
The provisions regarding the disqualification of a person holding an office under the
Government of India or any State were incorporated with a view to eliminate or reduce the risk
of conflict between duty and interest and such provisions gives Government the plenary right to
remove or disqualify persons holding the “office of profit”. If the honorarium and allowances
paid to such persons amounts to pecuniary gain or the money receivable to such person defrays
his out of pocket expenses; attracts the provisions of disqualification enshrined in the
Constitution of India. The remuneration which the persons gets while holding the office must not
be compensatory in nature that it is not like that enabling him to carry out day to day expenses.
This sum should not be considered as accruing any profit to the holder.

The Court has rightly decided the situation in the case herein discussed in detailed manner. The
appellant Shibu Soren being Chairman of Interim Council under the State Government stands
disqualified from being chosen and for being member of either House of Parliament as he was
holding an “office of profit” under the State Government. The SC reiterated in this case that “If
there is really some gain, its label – ‘honorarium’ – ‘remuneration’ – ‘salary’ is not material –
it is the substance and not he form which matters and even the quantum or amount of
“pecuniary gain” is not relevant. What needs to be found out is whether the amount of money
receivable by the holder of the office, gives to him some “pecuniary gain”, other than an
‘compensation’ to defray his out of pocket expenses, which may have the possibility to bring
that person under the influence of the executive, which is conferring that benefit on him.” 8

The second report of the Joint Committee on office of profit of the 14th Lok Sabha, the
committee had clearly held that "the facilities of an office room with telephone/fax/Internet,
personal assistant and a staff car provided" to a MP are not covered under the "Compensatory
allowance" and as such the holder of office would entail disqualification for being chosen as or
for being a Member of Parliament. The upholding of disqualification of the appellant from being
chosen as the Member of either House of Parliament was sufficiently summarized by the Court
and disqualifying such holder of office of profit was an appropriate decision to ensure the
separation of power and fairness in duty demarcated from interest.

8
https://thewire.in/law/the-curious-case-of-no-profit-in-office-of-profit

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 9. CONCLUSION
In the light of above mentioned discussion it becomes clear that the true test to be applied to
determine whether a person holds an office of profit or not depends upon the extent of control
the government exercises, whether the government has power to appoint or dismiss, whether the
salary paid out of government fund or not, the salary which the person entitled to get must not be
compensatory in nature to bear out day to day expenses but it must confer some gain to the
person.
The rule of disqualification of holder of an “office of profit” under the Government of India or
State Government is founded on the imperative need for neutrality impartiality in the realm of
public services. Article 102(1)(a) and 191(1)(a) of the Constitution of India deals with such
disqualifications. Three conditions are to be satisfied for the removal of such holders- there
should be an office to which an appointment is made; it should be an office of profit and should
be one under the Government either Union or of State. The Parliament and the State legislatures
are, however, empowered to exempt any such office from entailing disqualification. The
compensatory allowance for membership of a public Committee has been accepted by statute,
namely, the Prevention of Disqualification Act (10 of 1959) which specifies certain provisions
which not come within the purview of the disqualification. Though our Constitution provides
that the legislature can exempt any post to come under the purview of ‘office of profit’ by
making laws retrospectively. By giving such a wide power to legislature it has constricted the
scope of art.102 (1) (a) and art.191 (1) (a). Further employees of statutory body cannot be said to
“hold office of profit under the Government”, since they are neither appointed nor removed by
the Government. Their employment do not require the sanction of Government. When a person
is appointed to a post by the State Government and holds that office during the “pleasure of the
State” is an office of profit under Government, since it means he could be dismissed at any time
though the office was erected by an Act of Legislative, i.e., Jharkhand Area Autonomous
Council; as it was noticed in the instant case.

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 10. BIBLIOGRAPHY

DATABASE:
 MANUPATRA
 JSTOR

BOOKS:
 V.N.Shukla; Constitution of India; 13th Edition; Eastern Book Publication.
 M.P.Jain; Indian Constitutional Law; 8th Edition; Lexis Nexis.

WEBSITES:
 https://thewire.in/law/the-curious-case-of-no-profit-in-office-of-profit
 https://indiankanoon.org/doc/592428/

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