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Chandkhan and ors. Vs. W.N. Gound and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 528, 529 and 530 of 1970
Judge
Reported in1972MhLJ792
ActsBombay Village Panchayat Act, 1959 - Sections 14(4) and 129 (5); Constitution of India, Article 226
AppellantChandkhan and ors.
RespondentW.N. Gound and ors.
Appellant AdvocateR.N.Deshpande and ;N.K.Kherdekar, Advs.
Respondent AdvocateP.G.Palshikar. Asst. Govt. Pleader and ;V.R. Manohar, Adv.
Excerpt:
.....papers on the ground that the petitioners had failed to pay the amount of the fee of the writ of demand issued to each one of them in respect of which the demand was made by issuing the said writ. on the finding given by the tahsildar, for the purposes of this petition it must be accepted that the petitioners chandkhan babarao and sheshrao's father had failed to pay re. the crucial question which however has to be considered in this case is whether by non-payment of these fees for the writs of demand issued to the three petitioners they can be said to have failed to pay any tax or fee due to contemplated by section 14(h) of the act, so as to incur a disqualification with the consequence that their nomination papers were liable to be rejected. now on a plain reading of section..........but as we have already indicated the reference in clause (h) of section 14 is only to a bill served for the purpose of making a demand of the taxes or fees due to the panchayat. section 14 (h) does not refer to a writ of demand at all. it is contended on behalf of the contesting respondents that the latter clause in section 14 (h) must be so construed as to mean that a bill was required to be served on a person where it is necessary to serve it or it could be served; or, in the alternative a bill should also be said to include a writ of demand. it is difficult to accept any one of these constructions. the provisions of section 14 (h) are penal of construction of a penal statute that its language should be so construed that no case shall be allowed to fall within it which does.....
Judgment:

Chandurkar, J.

1. This judgment governs Special Civil Applications Nos. 528, 529 and 530 of 1970.

2. All the three petitioners in these petitions had submitted the nomination forms for election as panchas of the Gram Panchayat. Malegaon. Tahsil Washim, District Akola. The elections of panchas to the said Gram Panchayat under the Bombay Village Panchayat Act, 1950 (hereinafter referred to as the Act) were to be held on 24-5-1970. 6-5-1970 was the last date for filing of the nomination papers and the nomination papers of all the three petitions were rejected on 7-5-1970 on which date scrutiny was held. The circumstances under which these forms came to be rejected are as follows :-

Chandkhan, the petitioner in Special Civil Application No. 528 of 1970 was a candidate from ward No.2. An objection was raised to his nomination paper on the ground that on 8-9-1969 a bill for Rs. 32.35 P. on account of taxes payable tot he Gram Panchayat was given to him, but he having failed to pay that amount a write of demand for Rs. 32.85 was served on him on 18-11-1969. and in spite of this writ of demand he paid only Rupees 32.25 P. and failed to pay Re. 00.50 and thus he was in arrears of fee due from him in respect of the writ of demand issued to him.

Sheshrao. the petitioner in Special Civil Application No. 529 of 1970. had submitted a nomination form as a candidate from ward No.3 and the objection was that a bill for Rs. 320-00 on account of taxes due from his father was given to him on 21-10-1969. and since he had not paid the entire amount, a writ of demand for Rs. 158.25 P. was served on him for 27-12-1969. but Shesrao's father paid only Rs. 157.50 P. which was the amount of tax due. thus leaving a balance of Re. 00.75 on account of fee for the writ of demand unpaid.

Babarao, the petitioner in Special Civil Application No. 530 of 1970 was a candidate from wards Nos. 2 and 7. His nomination form was objected to on the ground that since he had not paid Rupees 180.50 P. though a bill was submitted to him on 13-9-1969, a writ of demand for Rs. 181.25 P. was served on him on 4-12-1969 and he had paid only Rs. 180.50 P., thus leaving a balance of Re. 00.75 on account of fee for the writ of demand unpaid.

3. When these objections were taken the Returning Officer found that the nomination papers of all the three petitioners were liable to be rejected in view of the provisions of Section 14 (h) of the Act. So far as Sheshrao was concerned, his case fell within Explanation 2 to Section 14, which provided that for the purpose of Clause (h) failure to pay any tax or fee due to the Panchayat by a member of an undivided Hindu family shall be deemed to disqualify all members of such undivided Hindu family. The result was that the Returning Officer, Malegaon, rejected the forms of all the three petitions on the ground that they were disqualified.

4. Against the order of the Returning Officer. the petitioners filed appeals to the Tahsildar, Washim, under the provisions of Rule 12 (4) of the Bombay Village Panchayats Election Rules, 1959, as it was then in force. Sub-rule (4) of Rule 12 has however been since deleted. Before the Tahsildar two main contentions were raised. One was that the petitioners could not be held to be disqualified for non-payment of the fee for the writs of demand issued to them under Section 129 (2) of the Act. The second contention was that the writs of demand could not be held to have been duly served on the petitioners because the service was made through the post office. According to the Gram Panchayat. the writs of demand were despatched under certificate of posting. Though before the Tahsildar, it was contended that the writs of demand were never received by the petitions, the Tahsildar came to a finding of fact that the writs of demand were served on each one of the petitioners. Very fairly the learned counsel for the petitioners did not challenge that finding before us. So far as the service by post is concerned., the Tahsildar came to a finding that service of the writs of demand was properly made. He also upheld the order of rejection of nomination papers on the ground that the petitioners had failed to pay the amount of the fee of the writ of demand issued to each one of them in respect of which the demand was made by issuing the said writ. He, therefore, confirmed the orders of the Returning Officer and dismissed the appeals filed by the petitioners by a common order. These three petitioners are directed against the orders of the Tahsildar and the Returning Officer rejecting the nomination papers of the petitioners.

5. It is contended on behalf of the petitioners that the fee for the writ of demand contemplated by S.129 (5) of the Act is not 'Tax or fee due' within the meaning of Section 14 (h) of the Act, and, therefore, according to the learned counsel, even though the petitioners have been held not to have paid the fee for the writs of demand which was demanded by the Gram Panchayat, along with the arrears of tax, they cannot be said to have incurred a disqualification within the meaning of Section 14 (h) of the Act. In order to decide this contention it is necessary to refer to Section 14(h) of the Act which is as follows :

'14. No persons hall be a member of a Panchayat, or continue as such who -

* * * * * * * * (h) fails to pay any tax or fee due to the Panchayat or the Zilla Parishad within three months from the date on which the amount of such tax or fee is demanded, and a bill for the purpose is duly served on him; or

* * * * * * * * It is also necessary to refer to the relevant provisions of the Act which deal with taxes or fees which are payable to a Panchayat. Under Section 124 of the Act it is provided that it shall be competent to a Panchayat to levy all or any of the taxes and fees enumerated in that Section at such rates as may be decided by it but subject to the minimum and maximum rates which may be fixed by the State Government and in such manner and subject to such exemptions as may be prescribed. How the taxes and other dues which are due to a Panchayat are to be recovered is provided for in Section 129 which is as follows :

'129 (1) When any tax or fee has become due, a Panchayat shall with the least practicable delay, cause to be presented to the person liable for the payment thereof a bill for the amount due from him, specifying the date on or before which the amount shall be paid.

(2) If any person fails to pay any tax or fee or any other sum due from him to a Panchayat under this Act or the rules on or before the specified date of payment, the Panchayat shall cause a writ of demand in the prescribed form to be served on the defaulter.

(3). The presentation of every bill under sub-section (1) and the service of every writ of demand under sub-section (2) shall be effected by an officer or servant of the Panchayat in this behalf -

(a) by giving or tendering the bill or writ to the person to whom it is addressed; or

(b) if such person is not found by leaving the bill or writ at his last known place of abode, if within the limits of the village or by giving or tendering the bill or writ to some adult male member or servant of his family; or

(c) If such person does not reside within the limits of the village, and his address elsewhere is known to the Sarpanch or other person directing the issue of the bill or writ, then by forwarding the bill or writ to such person by registered post, under cover bearing the said address; or

(d) if none of the means aforesaid be available, then by causing the bill or writ to be affixed on some conspicuous part of the building or land, if any, to which the bill or writ relates in the presence of at least two panchas.

(4) If the sum for which a writ of demand has been served is not paid within thirty days from the date of such service the Panchayat may levy such sum by distraint and sale of the movable property of the defaulter in the prescribed manner.

(5) Fees for -

(a) every writ of demand issued under sub-section (2).

(b) every distress made under sub-section (4).

(c) the costs of maintaining any live stock seized under sub-section (4). shall be chargeable at such rates as may be prescribed.

What are the fees to be charged for a writ of demand are to be found in R.11 of the Bombay Panchayats (Recovery of Dues) Rules, 1960. Rule 11 provides as follows :

'11. Fee for writ of demand - The fee for every writ of demand issued under sub-section (2) of S.129 shall be chargeable at the following rate namely :

(1) When the amount demanded does not exceed Rs. 5.00 0.25 (2) When the amount demanded is Rs. 5 or exceeds Rs. 5.00 but does not exceed Rs. 25.00 0.25 (3) When the amount demanded is Rs. 24 or exceeds Rs. 25.00 but does not exceed Rs. 100.00 0.50 (4) When the amount demanded is Rs.100 or exceeds Rs. 100.00 0.75 For the first Rs. 100.00 and for everyadditional amount of Rs. 25.00 or thereof Rs. 0.25 P.' The rules also provide for a form in which the writ of demand is to be issued and that form is Form A which is to be read with Rule 3 which provides that the writ of demand to be served on the defaulter under sub-section (2) of S.129 shall be in form 'A'.

6. Now, the scheme of the provisions of Section 129 of the Act shows that first a demand for taxes or fees levied under Section 129 of the Act due from a person has to be made by presenting to him a bill for the amount due from him and the bill must specify the date on or before which the amount shall be paid. If he fails to pay the amount on or before the date specified in the bill the Panchayat has to cause a writ of demand in Form A to be served on the defaulter. The Panchayat is entitled to charge fees for every writ of demand issued under sub-section (2) of S.129 of the Act. It is under the provisions of Rule 11 of the Bombay Village Panchayats (Recovery of Dues) Rules that the several amounts were charged as fees for the writs of demand which were issued to the three petitioners. On the finding given by the Tahsildar, for the purposes of this petition it must be accepted that the petitioners Chandkhan Babarao and Sheshrao's father had failed to pay Re. 0.50, Re. 0.75 and Re. 0.75 respectively and these amounts were thus in arrears on the date on which the nomination papers were filed by the respective petitioners. The crucial question which however has to be considered in this case is whether by non-payment of these fees for the writs of demand issued to the three petitioners they can be said to have failed to pay any tax or fee due to contemplated by Section 14(h) of the Act, so as to incur a disqualification with the consequence that their nomination papers were liable to be rejected. Now on a plain reading of Section 14(h) it appears to us that the two conditions can be disqualified from becoming a member of a Panchayat are (I) that he must have failed to pay any tax or fee due to the Panchayat or the Zilla Parishad within three months from the date on which the amount of such tax or fee is demanded and (ii) that bill for the purpose Is duly served on him. Unless both these conditions are satisfied in a given case it will not be possible to hold that a person is disqualified to be member of a Panchayat. There must be failure to pay the tax or fee which must have been demanded and for the purpose of demanding that tax or fee which is in arrears. a bill must be duly served on him. It is obvious that the bill which is referred to in Section 14 (h) is the one which is contemplated by S.129 (1) of the Act. The word 'bill' is not defined anywhere in the Act but the only reference to the bill for the purpose of demanding any tax or fee which has become due to the Panchayat is to be found in Section 129 (1) of the Act. As contra distinguished from the bill which is contemplated by Section 129 (1). Section 129 (2) makes a reference to a writ of demand. The Legislature has clearly made a distinction between the bill which is to be initially presented and the writ of demand which is to be issued if payment of arrears of tax or fee due is not forth-coming within the period prescribed in the bill which is presented under Section 129 (1) of the Act. This distinction is maintained throughout the provisions of Section 129. Sub-section (3) of that section also refers to the presentation of a bill under sub-section (1) and the service of a writ of demand under sub-section (2). The two words 'bill' and 'writ' are used in contradistinction in Clauses (a). (b) and (c) of sub-section (3). The reference to the bill contemplated by Section 14(h) has to be read in the light of the provisions of Section 129. and reading the later clause of Section 14 (h), it appears to us that when the Legislature used the phraseology in that clause, it had reference only to the bill as contemplated by Section 129 (1) in respect of taxes or fees levied under Section 124 of the Act. If the bill referred to in Section 14(h) has reference only to the bill contemplated by Section 129 (1) then the intention of the Legislature which is apparent from the plain meaning given to the words in Section 14 (h) appears to be that the disqualification for being a member of a Panchayat was intended to be fastened upon only that person to whom a bill for the amount of tax or fee due from him is presented and such person has failed to pay the tax or fee due from him within three months from the date on which the tax or fee is demanded.

7. It is, however contended on behalf of the contesting respondents by Shri Manohar that the fee for a writ of demand was also covered by the provisions of Section 14 (h) and if there is a failure to pay tax or fee due to the Panchayat it must result in a disqualification. What is contended is that the words 'fails to pay any tax or fee' must take within its sweep the failure to pay also the fee for a writ of demand and even if a person fails to pay the fee for a writ of demand then he would be disqualified under Section 14 (h) of the Act. It does not seem to be open to dispute that amounts which are charged for every writ of demand issued under sub-section (2) of S.129. read with Rule 11 of the Bombay Village Panchayats (Recovery of Dues) Rules are fees. Indeed, these amounts are expressly referred to as fees by sub-section (5) of S.129. If the first part of Section 14 (h) had stood by itself without any further condition that 'and a bill for the purpose Is duly served on him,' then there could be no difficulty in coming to the conclusion that failure of a person to pay fees for a the writ of demand would result in a disqualification. But as we have already indicated the reference in Clause (h) of Section 14 is only to a bill served for the purpose of making a demand of the taxes or fees due to the Panchayat. Section 14 (h) does not refer to a writ of demand at all. It is contended on behalf of the contesting respondents that the latter clause in Section 14 (h) must be so construed as to mean that a bill was required to be served on a person where it is necessary to serve it or it could be served; or, in the alternative a bill should also be said to include a writ of demand. It is difficult to accept any one of these constructions. The provisions of Section 14 (h) are penal of construction of a penal statute that its language should be so construed that no case shall be allowed to fall within it which does not fall within a reasonable construction of the enactment. It will be unjust to read words into a penal stature or to infer meanings which are not to be found in the section itself. A distinction between a bill demanding taxes and fees and a writ of demand demanding arrears of taxes along with the fees for the writ of demand is made by the Legislature in Section 129 of the Act. Having maintained that distinction it is not possible to read the bill referred to in S.14 (h) as including a writ of demand. Since due service of a bill is one of the essential conditions which must be satisfied before a person is held to be disqualified for non-payment of taxes or fees that condition must be strictly fulfilled and the construction of Section 14 (h) canvassed on behalf of the respondents cannot be accepted. Reading the two conditions in Section 14 (h) together it appears to use clear that he Legislature contemplated that only non-payment of fees or taxes levied under Section 124 of the Act within the period specified in the bill in respect of which a bill has been duly served on a person was alone to result in disqualification under Section 14 (h) of the Act. Though therefore the among charged for a writ of demand is designated as fees by S.129 those are not categories of fees for non-payment of which a disqualification under Section 14 (h) can be incurred because no bill in respect of that was ever contemplated to be presented under S.129 (1) of the Act. We must, therefore, hold that both the Tahsildar and the Returning Officer were in error and had acted in excess of their jurisdiction in rejecting the nomination papers of the three petitioners on the ground that fees for writs of demand were not paid by the petitioners Chandkhan, Babarao and Sheshrao's father Shankarao.

8. It is, however argued on behalf of the contesting respondents that the petitioners had a remedy by way of an election petition that they should not be permitted to challenge the election of the successful candidates in these petitioners and therefore the petitions should be dismissed on the ground that they have an alternative remedy. It is no doubt true that under Section 15 of the Act the validity of an election could be determined in an election petition filed by any candidate or person who is qualified to vote at the election. The scope of Section 15 of the Act has been the subject matter of decision in Manohar v. G.S.Solanke. 164 Mah LJ 739 which was followed in Bhimaji v. C.N.Gite, 1969 Mah LJ 759 in which it was held by a Division Bench of this Court that in an election petition under Section 15 of the Act the order rejecting a nomination paper can be challenged. On the basis of these two decisions it is contended on behalf of the contesting respondents that the petitioners should have filed election petitions. We are not inclined to accept the objection to the maintainability of the petitions. The petitioners have approached this Court immediately after the nomination papers were rejected. The question whether the nomination paper of a candidate could be rejected on the ground that the fees for a writ of demand have not been paid by the candidate is of common occurrence and we have recently notice in matters that come to this Court that several nomination papers in several Gram Panchayat elections have been rejected on the ground that fees of writ of demand have not been paid. It was necessary therefore, to settle the legal position regarding the construction of Section 14 (h) of the Act and we therefore decline to dismiss these petitions merely on the ground that there was an alternative remedy. It is well established that an alternative remedy is not an absolute bar to the exercise of jurisdiction by this Court under Act, 226 of the Constitution of India.

9. In the view which we have taken the orders rejecting the nomination papers of the petitioners must be quashed. The consequence would be that the petitioners have been prevented as a result of wrong orders passed by the Returning Officer from contesting the elections for which they had filed the nomination papers. The elections from those wards must, therefore be held to have been vitiated. It is not disputed that all the necessary parties are joined in the petition. The elections from wards Nos. 2,3 and 7 of Malegaon Gram Panchayat must therefore be quashed and those elections are accordingly quashed. In the circumstances of the case there will be no order as to the costs of these three petitions.

10. Petitions allowed.


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