Article 191 | Office in APMC Not an 'Office of Profit' Disqualifying Election Candidacy : Bombay HC

The Bombay High Court has clarified that holding an office in a local authority such as an Agriculture Produce Market Committee does not constitute an office of profit under Article 191 of the Constitution, thereby dismissing an election petition challenging the victory of a candidate on that ground. The judgment reinforces the narrow scope of disqualification for legislative candidates and underscores the high threshold for invalidating electoral outcomes based on technical or speculative allegations.

Background & Facts

The Dispute

The election petition challenged the victory of Arjun Panditrao Khotkar, the returned candidate, in the Jalna Assembly Constituency (101) during the 2024 Maharashtra Legislative Assembly elections. The petitioner, Kailas Kisanrao Gorantyal, contested the election as a candidate of the Indian National Congress and lost to Khotkar, who was fielded by Shiv Sena (Eknath Shinde). The petitioner alleged multiple grounds for invalidating the election, including that the respondent held an office of profit, submitted a defective nomination affidavit, and that the election process was marred by procedural violations.

Key Facts

• The general election schedule for Jalna Assembly Constituency was announced by the Election Commission on 22.10.2024.
• The date of polling was 20.11.2024 and the result was declared on 23.11.2024.
• Arjun Panditrao Khotkar secured 1,04,665 votes; the petitioner secured 73,014 votes, resulting in a margin of 31,651 votes.
• Khotkar was appointed as Chief Administrator of the Jalna Agriculture Produce Market Committee (APMC) by an order dated 22.05.2023, following removal of the prior Administrator.
• The Board of Administrators for Jalna APMC was constituted under the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963, and its term was extended until 05.12.2024.
• Khotkar received Rs. 5,775/- from APMC between 26.12.2023 and 03.12.2024, covering the entire election period.
• The APMC is a statutory body established under state law, functioning as a local authority with its own revenue and administrative structure, not directly under the control of the State Government.
• Khotkar’s nomination form (Part-III(A), Clause 12(2)) stated he was not holding any office of profit under the Government.
• The Form-26 affidavit submitted by Khotkar was in the pre-2017 format and did not reflect amendments introduced by the 2017 and 2019 Acts.
• Khotkar disclosed two pending criminal cases in Form-26 and stated he had informed his political party of these cases.
• Mock polls were not conducted in 321 of the 325 polling booths, contrary to the Election Commission’s 2023 Handbook.
• Electronic Voting Machines (EVMs) not used for voting were reportedly used during counting.
• Form 17-C records from some booths showed discrepancies in vote tallies.
• The petitioner sought recounting, which was rejected by the Returning Officer.
• The election petition was filed on 03.01.2025.

Procedural History

• 22.10.2024: Gazette notification issued for Jalna Assembly elections.
• 29.10.2024: Last date for filing nominations.
• 30.10.2024: Scrutiny of nominations; objections raised by petitioner and others.
• 20.11.2024: Polling conducted.
• 23.11.2024: Counting and declaration of results.
• 03.01.2025: Election Petition No. 03 of 2025 filed by petitioner.
• 15.01.2025: Respondent No.1 filed Application No. 158 of 2025 under Order VII Rule 11 CPC seeking dismissal.
• 13.02.2026: Arguments concluded; judgment reserved.
• 30.03.2026: Judgment pronounced.

The Parties' Positions

Petitioner (Kailas Gorantyal) contended:

• Khotkar held an office of profit under the Government by virtue of his position as Chief Administrator of APMC.
• The Form-26 affidavit was defective and non-compliant with the amended format.
• Mock polls were not conducted in 321 booths, violating Rule 49(e) of the Conduct of Election Rules.
• EVMs not used for voting were used in counting.
• Form 17-C records were incomplete or falsified.
• The petitioner was denied access to video recordings of polling until 18.12.2024.
• The nomination was improperly accepted despite these violations.
• The election result was materially affected.

Respondent (Arjun Khotkar) contended:

• APMC is a local authority, not an office under the State Government.
• Article 191 does not include offices of local authorities, unlike Articles 58(2) and 66(4).
• The Form-26, though in old format, contained all required disclosures and was not materially defective.
• No corrupt practice or substantial violation of law was established.
• The margin of victory was substantial (31,651 votes), and even if all disputed votes were reallocated, the result would not change.
• Objections raised by others cannot be adopted by the petitioner.
• The petition lacked specific, material facts and was based on suspicion.

Relief Sought

The petitioner sought:

• Declaration that the election of respondent No.1 was null and void.
• Declaration that the petitioner was duly elected.
• Costs.

The Legal Issue

The central questions were: (1) Whether holding the office of Chief Administrator of the Jalna APMC constitutes an office of profit under the Government within the meaning of Article 191(1)(a) of the Constitution; (2) Whether the alleged defects in Form-26, non-conduct of mock polls, and EVM irregularities constitute a substantial violation under Section 100(1)(d) of the Representation of the People Act, 1951, materially affecting the election result; and (3) Whether the election petition discloses a triable cause of action under Order VII Rule 11 CPC.

Arguments Presented

For the Petitioner

The petitioner’s counsel relied on Jaya Bachchan v. Union of India and M.V. Rajashekaran v. Vatal Nagaraj to argue that any remuneration received for an office, even if labeled as allowance, constitutes profit if it is not purely compensatory. He contended that the APMC, though a local body, operates under state supervision and its Administrator is appointed by the Chief Minister, making it an office under the State. He cited Shibu Soren v. Dayanand Sahay to argue that the nature of the office, not the amount of remuneration, determines disqualification. He further argued that non-conduct of mock polls and use of unused EVMs violated mandatory provisions under the Conduct of Election Rules and Section 100(1)(d)(iv), and that the defective Form-26 amounted to improper acceptance of nomination under Section 100(1)(c). He relied on Arun Dattatray Sawant v. Kisan Shankar Kathore to assert that improper nomination alone can vitiate the election, irrespective of material effect.

For the Respondent

The respondent’s counsel argued that Article 191 deliberately omits the phrase "local authority," unlike Articles 58(2) and 66(4), indicating a conscious constitutional distinction. He cited D.R. Gurushantappa v. Abdul Khuddus Anwar and Abdul Shakur v. Rikhab Chand to show that offices under local authorities are not covered under Article 191. He emphasized that the APMC is autonomous, funded by its own revenues, and not under direct government control. He argued that the Rs. 5,775 received was a daily allowance for attending meetings, not salary or profit. He relied on Ajmera Shyam v. Kova Laxmi and Shambhu Prasad Sharma v. Charan Das Mahant to contend that technical defects in Form-26, without proof of material effect, cannot invalidate an election. He argued that the margin of victory was too large to be affected by the alleged discrepancies in 64 booths (5,797 votes). He also cited Mairembam Prithviraj v. Pukhrem Sharatchandra Singh to assert that even if nomination was improperly accepted, the election result must be shown to be materially affected.

The Court's Analysis

The Court undertook a detailed examination of constitutional provisions, statutory frameworks, and binding precedents. It began by analyzing Article 191(1)(a), noting the conspicuous absence of the term "local authority" in contrast to Articles 58(2) and 66(4), which explicitly include it. The Court held that this omission was intentional, as confirmed by Constituent Assembly debates cited by the respondent. The Court observed that the Parliament (Prevention of Disqualification) Act, 1959, and the Maharashtra Legislature Members (Removal of Disqualification) Act, 1956, only exempt offices under the State or Central Government, further indicating that local authority offices were never intended to be covered.

"The deliberate omission of the words 'local authority' in Article 191, while retaining them in Articles 58 and 66, demonstrates a clear constitutional intent to exclude such offices from the disqualification regime for State Legislatures."

The Court examined the nature of the Jalna APMC, noting it is a statutory corporation established under the Maharashtra Agricultural Produce Marketing Act, 1963, with its own revenue, management, and autonomy. The Chief Administrator is appointed by the State Government but does not function as a government servant. The remuneration received was characterized as a daily allowance for attendance, not a salary or profit, aligning with the reasoning in Gati Ravanna Subanna v. G.S. Kaggeerappa.

Regarding Form-26, the Court held that while the affidavit was in the old format, it contained all mandatory disclosures, including pending criminal cases and party notification. The Court relied on Shambhu Prasad Sharma and Ajmera Shyam to conclude that technical non-compliance with format, absent proof of material prejudice or corrupt practice, does not invalidate an election.

On the issue of mock polls and EVM irregularities, the Court noted that the petitioner failed to provide specific evidence of tampering or material impact. The margin of victory was 31,651 votes, while the disputed votes in 64 booths totaled only 5,797. Even if all those votes were reallocated to the petitioner, the result would remain unchanged. The Court emphasized that election petitions are not meant to be vehicles for general scrutiny of electoral conduct but require concrete proof of material effect under Section 100(1)(d).

"The mandate of the electorate cannot be overturned on the basis of suspicion, conjecture, or technical irregularities that do not demonstrably alter the outcome."

The Court also rejected the petitioner’s reliance on Arun Dattatray Sawant, distinguishing it on facts: in that case, there was deliberate suppression of substantial assets and loans, whereas here, the disclosure of pending cases was made and no material fact was concealed. The Court held that the petition failed to meet the threshold of material facts required under Section 83(1) of the R.P. Act and Order VII Rule 11 CPC.

The Verdict

The respondent succeeded. The Court allowed Application No. 158 of 2025 under Order VII Rule 11 CPC and dismissed Election Petition No. 03 of 2025. The Court held that the office of Chief Administrator of Jalna APMC is not an office of profit under the Government within the meaning of Article 191(1)(a). The alleged defects in Form-26, non-conduct of mock polls, and EVM irregularities did not constitute substantial violations materially affecting the election result. The petition was dismissed for failure to disclose a triable cause of action. No order as to costs was made. All pending applications stood disposed of.

What This Means For Similar Cases

Office of Profit Does Not Extend to Local Authorities

• Practitioners must now argue that disqualification under Article 191 applies only to offices under the State or Central Government, not to statutory local bodies like APMCs, Municipal Corporations, or Panchayats.
• Any claim of disqualification based on holding office in a local authority must be rebutted by citing the constitutional omission in Article 191 and the absence of such offices in the Maharashtra or Central exemption schedules.
• Remuneration in the form of daily allowances for attending meetings of local bodies does not automatically constitute "profit" if it is not a fixed salary.

Technical Defects in Affidavits Are Not Fatal

• Minor deviations in Form-26 format, without proof of deliberate suppression or voter deception, will not invalidate an election.
• Disclosure of pending criminal cases to the political party, even if not explicitly stated in the affidavit, satisfies the spirit of Section 33(A) and Clause 6-A of Form-26.
• Courts will not entertain election petitions based on technical non-compliance unless the defect is substantial and demonstrably affects the fairness of the election.

Material Effect Must Be Proven, Not Assumed

• A margin of victory exceeding 5,000 votes makes it extremely difficult to prove material effect from disputed votes in a few booths.
• Allegations of EVM or Form 17-C irregularities require specific, verifiable evidence - general suspicion or inference is insufficient.
• Objections raised by third parties cannot be adopted by the petitioner unless independently pleaded and proved.
• Courts will not permit election petitions to become tools for post-election audits; the burden remains on the petitioner to show how the result was altered.