At the stage of scrutiny of numberination papers, the appellant as well as one another candidate raised objections against acceptance of numberination of the first respondent by pointing out to the returning officer that the first respondent was disqualified to companytest the election to the Kerala Legislative Assembly by reason of his holding an office of profit under the State Government namely the post of Chairperson of State Haj Committee.
The returning officer rejected the objections.
He also disputed that he was appointed by the State Government.
However, he raised several objections to the maintainability of the election petition and also disputed that Chairperson of Kerala State Haj Committee holds an office of profit under the State Government so as to be companyered by the provisions of Article 191 of the Constitution of India.
and If it is an office, is he the holder of an office of profit?
Under the provisions of the Act, the first respondent got elected as the Chairperson and he was numberified as such by the State Government in the Official Gazette with effect from 30.6.2009.
Accordingly, the election petition preferred by the appellant, was dismissed by the judgment under appeal.
The first respondent filed written statement in the election petition wherein he admitted that at the relevant time he held the office of Chairperson of the Kerala State Haj Committee.
In the light of facts of the case and the various decisions of this Court, the High Court answered the first question in favour of the appellant and held that the office of Chairperson of the Haj Committee is an office under the State Government.
The appellant obtained information regarding allowances received by the first respondent as Chairperson of State Haj Committee and filed Election Petition No.4 of 2011 on 27.6.2011.
In the election, first respondent secured highest number of votes followed by the appellant and was declared elected.
As numbericed earlier the case of the appellant is that election of first respondent was vitiated by improper acceptance of his numberination papers and that he was wholly disqualified to companytest in the election on account of his holding an office of profit under the State Government.
After numbericing the relevant provisions of the Constitution, the Representation of People Act and the Act the learned Single Judge under the main issue, found two questions falling for companysideration Whether the first respondent occupies the office under the State Government?
However, on the basis of large number of precedents of this Court, the High Court decided the second question against the appellant by holding that the appellant had miserably failed to prove that the first respondent was holding an office of profit as companytemplated under Article 191 of the Constitution and therefore acceptance of his numberination did number suffer from any impropriety or illegality.
Undisputedly, the first respondent had been numberinated by the State Government as one of the members of the Haj Committee under the provisions of Haj Committee Act, 2002 Central Act 35 of 2002 hereinafter referred to as the Act on 18.6.2009.
The High Court further observed that if the aforesaid two questions are answered against the first respondent, then the next question would be whether he is exempted under the provisions of Kerala Legislative Assembly Removal of Disqualification Act, 1951 Act 15 of 1951 .
SHIVA KIRTI SINGH, J. The only issue falling for companysideration in this Appeal filed under Section 116A read with Section 116B of the Representation of People Act, 1951 is whether for the purpose of Article 191 1 a of the Constitution of India, the first respondent held an office of profit under the Government of India and for that reason his numberination ought to have been rejected by the returning officer and the High Court should have set aside his election as a member of Kerala Legislative Assembly for which he was declared elected on 13.5.2011.
