SUMAN K SHRIVASTAVA
Ranchi, May 17: The raging debate over the office-of-profit involving a mining lease granted to Chief Minister Hemant Soren has led legal experts to dig out various court judgments, delivered since 1950 to defend as well as oppose him.
Since the term ‘Office of Profit’ is not defined in the Constitution, its definition has evolved over the years with interpretations made in various court judgements and various circumstances.
But, an office of profit has largely been interpreted to be a position that brings to the office-holder some financial gain, or advantage, or benefit. The amount of gain is immaterial.
No wonder, Ghatwals, who are now struggling to get the Scheduled Tribe status in Jharkhand, had once been not allowed to contest elections for holding an office of profit!
Literally, a ghatwal means a guard of the passes and the term ‘ghatwali tenure’ was applied by the Moghuls to lands assigned at a low rent or free of rent for guarding the mountain passes and protecting the villages near the hills from the depredations of hill tribes.
These ghatwali tenures are to be found for the most part on the western frontier of Bengal and particularly in the areas known as Kharagdiha, Gidhaur, Birbhum, Kharagpur, Bhagalpur and the Santal Parganas. The ghatwals varied in rank and the incidents of their tenure varied in different places. In some cases, they were owners of large estates, some of these estates being more or less of the nature of semi-military colonies.
It happened way back in 1962 when one Man Mohan Deo filed his nomination as a candidate for election as a member of the Bihar Legislative Assembly from the Deoghar constituency.
The returning officer rejected his nomination on the ground that he was a Ghatwal of the Rohini Estate which was a Government Ghatwali. He was thus the holder of an office of profit within the meaning of Article 191 (1) (a) of the Constitution and as such he was disqualified to be a candidate. His nomination was accordingly rejected under Section 36 (2) (a) of the Representation of the People Act, 1951.
Deo filed an election petition in the Patna High Court stating that his estate had already vested in the State of Bihar under the Bihar Land Reforms Act, 1950, and as such he had ceased to be a Ghatwal. The Election Tribunal, however, dismissed the election petition following a decision of this Court in Badri Narain Singh v. Kamdeo Prasad Singh, AIR 1961 Pat 41 In which it was laid down that even after the notification under the Bihar Land Reforms Act taking over the estate of the Ghatwal, the office of profit would continue; and as such, under Art. 191 of the Constitution, the Ghatwal would be disqualified from offering himself as a candidate for a seat in the Legislature.
A Division bench of the Patna High Court, in 1964, referred the issue to a larger bench on the arguments of Deo’s counsel. Still, he did not get relief as the court found that the Returning Officer rejected his nomination paper not merely on the ground that he was a Government Ghatwal but that he did not make over charge of the estate to the State of Bihar in spite of the notification and filed a Civil Suit in the court of the Subordinate Judge at Deoghar and the latter issued an injunction restraining the State from taking over charge from him. In the circumstances, it could not be said that Man Mohan Deo had ceased to be the Ghatwal, the court said.
