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Ramchand Hirachand Kothadiya and ors. Vs. District Deputy Collector, Baramati Division, Poona and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 1231, 1232 and 1233 of 1954
Judge
Reported inAIR1955Bom154; (1954)56BOMLR940; ILR1954Bom1404
ActsBombay Village Panchayats Act, 1933 - Sections 8, 21, 91(1) and 108; ;Bombay Village Panchayats Rules - Rules 10, 12 and 12A; Election Law
AppellantRamchand Hirachand Kothadiya and ors.
RespondentDistrict Deputy Collector, Baramati Division, Poona and ors.
Appellant AdvocateV.M. Tarkunde, Adv.
Respondent AdvocateV.S. Desai and ;R.B. Kotwal, Advs.
Excerpt:
.....a lenient view of failure to pay the tax because it has given a 'locus poenitentiae' to the candidate. failure to pay must be a continuing failure for three months and those three months must have expired at the date of the disqualification. if the candidate has failed to pay tax and the failure has been for a period less than three months, notwithstanding the failure he should not be disqualified. in this case there is no failure to pay tax at all and therefore no further question arises which the returning officer can decide. what the returning officer and the prant officer have determined is failure in the past although there was no failure at the date of the scrutiny. in our opinion, any failure to pay tax within three months in the past has no relevance to the determination of a..........paper on scrutiny was accepted by the returning officer. respondent no. 4 went in appeal to the prant officer and the prant officer has come to the conclusion that the petitioner is not qualified to be a member of the village panchayat and, therefore, ho rejected his nomination paper.3. now in the first place mr. tarkunde contended that there was no right of appeal given to any higher authority from the action of the returning officer in accepting a nomination paper. mr. tarkunde says that the right of appeal only arises if a nomination paper is rejected and that view is supported byrule 10 of the rules framed under section 108(c), village panchayats act, and rule 12 only gives a right of appeal against rejection of nominations to the collector or to any other officer appointed by the.....
Judgment:

Chagla, C.J.

1. These are three petitions by the residents of the village Nira, challenging the rejection 'of the nomination papers submitted by them offering themselves as candidates for the triennial election of the Nira Gram Panchayat scheduled to be held on 15-7-1954.

2. Dealing with the first petition which is Spl. C. A. No. 1231 of 1954, the nomination paper on scrutiny was accepted by the Returning Officer. Respondent No. 4 went in appeal to the Prant Officer and the Prant Officer has come to the conclusion that the petitioner is not qualified to be a member of the Village Panchayat and, therefore, ho rejected his nomination paper.

3. Now in the first place Mr. Tarkunde contended that there was no right of appeal given to any higher authority from the action of the Returning Officer in accepting a nomination paper. Mr. Tarkunde says that the right of appeal only arises if a nomination paper is rejected and that view Is supported byRule 10 of the rules framed under Section 108(c), Village Panchayats Act, and Rule 12 only gives a right of appeal against rejection of nominations to the Collector or to any other officer appointed by the State Government in that behalf. But Mr. Desai on behalf of the State has drawn our attention to a new rule which was subsequently framed which is Rule 12A which gives revisional Jurisdiction to the Collector or to an officer appointed by the State to revise an order passed by the Returning Officer accepting a nomination. Therefore, there was jurisdiction to revise the order of the Returning Officer.

Mr. Desai says that although this power was exercised by the Prant Officer and not by the Collector, he was duly appointed by the State Government in that behalf. Mr. Desai for the time being is not in a position to lay his hands upon the necessary notification, but he has promised to show it to Mr. Tarkunde. Mr. Desai concedes-that if there is no such authorisation by the Government, then the order of the Prant Officer would be without jurisdiction. If the notification is not found, this matter may be mentioned to us again. We will deal with this petition on the assumption that the Prant Officer was duly authorised.

4. Now, coming to the merits, a bill for paymerit of taxes under Section 91(1) was presented to the petitioner on 17-9-1953. The petitioner did not pay the bill and filed a suit challenging the tax and it is not disputed that on the day when his nomination paper was scrutinised, viz. 24-5-1954, he had not paid this bill. The Prant Officer has, therefore, taken the view that he was disqualified under. Section 8(i), Village Panchayats Act. Now, that section provides that

'No person may be a member of a panchayat or continue as such who

(i) fails to pay any tax or fee due to the panchayat within three months from the date on or before which the amount of such tax or fee is required to be paid in the bill presented to the person under Sub-section (1) of Section 91.....'

Mr. Tarkunde's contention is that he does not ' admit that this tax is due to the Panchayat. He has filed a suit challenging the imposition of the tax and, therefore, it was incumbent upon the Returning Officer to ascertain whether this tax was in fact due before he could be disqualified. According to Mr. Tarkunde the mere presentation of a bill by the local authority does not bring this Sub-section into play. In our opinion, that contention is entirely untenable. It is an established principle of election laws that all proceedings must be summary proceedings and there should be no delay in deciding points that arise in the course of elections. Now, if what Mr. Tarkunde says were to be accepted it would re-suit in this extraordinary situation that every time a candidate for election has not paid the bill and challenges its validity, the Returning Officer must solemnly sit clown and adjudicate upon the validity of the tax. That surely is not the function of the Returning Officer.

An that Section 8(i) means is that there must be a failure to pay a tax which is due not in law or legally but which is due under a bill which is presented by the Panchayat and which has not been paid by the candidate. Two conditions are necessary before a disqualification would result -under this Sub-section. There must be a failure to pay a bill presented under Section 91(1) and the default must have continued for a period of three months. If these two conditions are satisfied, then there is a disqualification. Mr. Tarkunde says that this may result in false claims for tax being made by local, authorities and an honest resident of a village being prevented from standing as a candidate. We apprehend no such difficulty. It is always open to a tax-payer to pay tax under protest and litigate his rights. But if he chooses not to pay tax in respect of which the local authority has presented a bill, it is but right that he should not aspire to become a member of that local authority. Therefore, in our opinion, the construction put upon this Sub-section In this case by the Prant Officer was the correct construction and, therefore, the nomination paper of the petitioner was rightly rejected.

5. Now, turning to petition No. 1232, there the position is different. In that case a bill was presented to the petitioner on 15-10-1953, and he paid the bill on 9-4-1954. Therefore, when the scrutiny took place on 24-5-1954, he was not in default; nothing was due by him to the Village Panchayat under any bill. But the view taken by the Returning Officer was that inasmuch as there had been a default in the past because he had paid the bill on 9-4-1954, more than three months after the due date of payment under the bill, that default must be looked at for the purpose of Section 8(i) and that default constituted a disqualification. This view has been upheld by the Prant Officer in appeal under Rule 12.

Now, when we look at Section 8 and the various disqualifications which the Legislature has prescribed, one thing is rather significant that with regard to certain disqualifications they may have taken place in the past or they may be the result of some act committed in the past or a certain change in the status which might have taken place in the past and which might be continued. With regard to other disqualifications they are from the point of view of the position obtaining at the date when the candidate applies to be a member of the local authority. Now, Section 8(a) deals with the age and obviously he must be 21 years of age at the date when he wishes to become a member. The second is with regard to residence, and if he does not ordinarily reside In the village, he is not entitled to become a member. Therefore, the residence must be at the date when he applies to be a candidate. If, for instance, he ceased to be a resident for 5 or 10 years and again comes back to the village and becomes an ordinary resident, he would be qualified because this sub-section does not take into account the past act on the part of the member.

Then Clause (c), (d) and (e) deal with conviction and adjudication of the person as of unsound mind and adjudication of the person as an insolvent. Now, these disqualifications may have arisen by what happened in the past and have, no reference to the conditions prevailing at the date of the scrutiny. But it is rather significant to note that some of these disqualifications are capable of being removed. A disqualification arising out of conviction can be removed by the State Government and a disqualification arisingout of adjudication can be removed when the insolvent obtains a discharge.

Clause (f) deals with a similar case where he has been removed from office under Section 21 of the Act, and in that case five years have got to elapse after the removal from office unless the disqualification has b.een earlier removed. Clause - (g) also is rather significant. That deals with the case of a person who holds any salaried office or place of profit in the gift or disposal of the Panchayat, while holding such office or place. That obviously deals with the position prevailing at the date of the scrutiny and not , something in the past. A man may have held office in the past, but that would not disqualify him. What would disqualify him would be the holding of the office at the date when he applies to be a member.

Clause (h) deals with the condition prevailing at the date of the scrutiny and that is directly or indirectly, by himself or his partner, the person has any share or interest in any work done by order of the Panchayat, or in any contract or employment with, or under or by, or on behalf of the Panchayat. Then we come to Clause (i) which in the first place uses the present tense 'fails' and not the present perfect as has been used in Section 8(c), (d), (e) and (f). Mr. Desai's and Mr. Kotwal's contention is that (i) deals with not only failure to pay but failure to pay within three months, and although at the date of the scrutiny he may have paid the amount, still the failure to pay within three months continues and the sub-section has application.

According to Mr. Kotwal if at any time in the past a resident of a village has failed to pay a bill submitted by the local authority within three months, it operates as a disqualification. The Prant Officer has not had the courage to go to the length to which Mr. Kotwal has gone because for some reason it is difficult to understand he says that failure must be limited to failure within the last year and not any time previous to that. It is difficult to understand how one can put that interpretation. Either one can accept the logical, although extreme, interpretation of. Mr. Kotwal or one can accept the more reasonable interpretation suggested by Mr. Tarkunde.

Now, another curious result will follow if we accept Mr. Kotwal's contention. Once a failure has taken place to pay a bill within three months, this disqualification can never be removed and must endure for all time. A man may commit an offence and go to jail. A. man may be adjudicated an insolvent. A man may be removed from office. All these acts can be condoned, but the terrible sin of not paying a bill submitted by a local authority within three months can never be forgiven by any authority under the Village Panchayats Act. Now, surely unless one is driven to that conclusion, one would not put such an interpretation upon Section 8(i).

6. In our opinion, it is possible even on a strict construction to take the view which Mr. Tarkunde ' wants us to take. The important words in Section 8 which are the key-words are 'fails to pay any tax'. Therefore, the Returning Officer must look at the nomination paper from' the point of view of what the position is at that date and the first question he must ask himself is, has there been a failure on the part of the candidate to pay any tax? If there is a failure, then a further question will arise. If there is no failure, no further question will arise. If there is a failure, then that by itself is not a disqualification. The Legislature has taken a lenient view of failure to pay the tax because it has given a 'locus poenitentiae' to the candidate. Failure to pay must be a continuing failure for three months and those three months must have expired at the date of the disqualification. If the candidate has failed to pay tax and the failure has been for a period less than three months, notwithstanding the failure he should not be disqualified. In this case there is no failure to pay tax at all and therefore no further question arises which the Returning Officer can decide. What the Returning Officer and the Prant Officer have determined is failure in the past although there was no failure at the date of the scrutiny.

In our opinion, any failure to pay tax within three months in the past has no relevance to the determination of a candidate's qualification which must be judged as far as this Sub-section is concerned at the date of the scrutiny and not by any act in the past.

7. In our opinion, therefore, both the Returning Officer and the Prant Officer were wrong in rejecting the nomination of the petitioner. The petition must succeed and we will set aside the order of the Prant Officer and direct that the Returning Officer will accept the nomination paper of the petitioner and allow him to stand as a candidate In the ensuing election.

8. The same order in Civil Application No.1233 as the same point arises in that applicationalso. No order as to costs in all the three petitions.

9. Petition allowed.


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