(1) The petitioner is a resident of Ward No. 6 at Katol, Tahsil Katol, District Nagpur. He contested the municipal election which took place on June 3, 1967. He was elected as a member and the election results were published in the Gazette on June 9, 1967. On June 19, 1967, respondent No. 2 filed an election petition in the Court of the District Judge at Nagpur. In that petition it was alleged that the petitioner was disqualified from becoming a member of the Municipal Council under the provisions of Section 16(1) (h) of the Maharastra Municipalities Act, 1965. It was also alleged that the petitioner had imported one tin of paint sometime in September 1965. A bill in that behalf was sought to be served on 29-8-1966 but he declined to accept it. Hence the same bill, which is now Exhibit 16, was sent under registered cover which he received on September 2, 1966. The dues under that bill were not paid during the entire period when the petitioner sought election and got elected. The bill has been paid on June 14, 1967. In view of these facts it was alleged that the petitioner was not qualified to become a councilor as provided by Section 16(1) (h) of the Maharashtra Municipalities Act.
(2) Most of the facts were not disputed by the petitioner. He admitted that a tin of paint was imported by him in 1965. Though the attempt to present the notice on 29-8-1966 was denied by him, he admitted the receipt thereof under a registered cover on 2-9-1966. Whether the notice was in fact tried to be presented on 29-8-1966 is of no consequence in view of the dates which are already mentioned. He further alleged that this notice was not a legal and valid notice under Section 150 of the Maharashtra Municipalities Act, 1965. It is a condition precedent to serve a proper notice under that section before a person becomes disqualified from contesting the election. The other defence was that assuming that that was sought to be a notice under Section 150, it does not satisfy the requirements of that section. The various ingredients, which should have been mentioned in such a notice, do not find place in Exhibit 16. The disqualification indicated in Section 16 (1) (h) is not attracted to the facts and circumstances of this case. It was also pleaded that the notice under Section 150 must strictly comply with all the requirements thereof and it cannot be accepted that substantial compliance would be enough.
(3) On these pleadings, the learned District Judge as Election Tribunal under the Municipalities Act came to the conclusion that Exhibit 16 must be deemed to be a notice under Section 150 of the Maharastra Municipalities Act. He held that Section 150 does not prescribe any form. In the absence of any form if there is substantial compliance with the provisions of Section 150, that would amount to a service of valid notice. Having come to that conclusion, the learned District Judge set aside the election of the petitioner. Being aggrieved, he has filed this petition.
(4) As pointed out by us earlier, most of the facts are not in dispute. The service of notice, Exhibit 16, on 2-9-1966 is accepted by the petitioner. It is also not challenged that the payment in respect of the imported contents relating to octroi dues was outstanding till June 14, 1967. This was long after the elections were over. In order that a person should be disqualified under the relevant provisions, it must be shown that the disqualification is clearly attracted under the provisions of the Municipalities Act. Section 16 (1) (h) is in these terms:
'16(1) No person shall be qualified to become a Councillor whether by election, co-option or nomination, who-
x x x x x x (h) is in arrears (otherwise than as a trustee) of any sum due by him to the Council after the presentation of a bill therefore to him under Section 150: or'.
(5) On reading the section it is obvious that the disqualification attaches to a person who is in arrears of a sum due by him to the Council. Such arrears must continue even after the presentation of a bill thereof to him under Section 150. It is, therefore, necessary on the prime facie reading of this section that a Municipal Council must claim some amount as due. It must present a bill under the provisions of Section 150. Inspite of such presentation, if the arrears continue, then the person is disqualified from becoming a Councillor, whether by election, co-option or nomination. If the arrears continue at the time when he has to become a Councillor, then he is disqualified.
(6) It would then be relevant to see the provisions of S. 150 under which notice is required to be given S. 150 is placed in Chapter X relating to recovery of municipal claims. Section 149 onwards contained in Chapter X relates to general provisions of recovery of taxes and claims by the Municipal Council. Section 149, which is general in its terms, lays down the procedure prescribed for the recovery of amounts on account of taxes fees or penalties imposed or as may hereafter be imposed by or under this Act or rules or by laws made thereunder and all amounts on account of contract, auction, lease, or any money claimable under this Act or under the rules or by-laws made thereunder shall, save as otherwise provided be recoverable in the manner provided in this Chapter. Unless there is any other specific provision, all dues, which are claimed by the Municipality, could be recovered under the provisions of this Chapter.
(7) Section 150, which is the most relevant section requiring interpretation in this case is in the following terms:
'150(1) when any amount becomes due to the Council under this Act or the rules or by-laws made thereunder the Chief Officer shall, with the least practicable delay, cause to be presented to the person liable for the payment thereof, a bill for the sum claimed as due.
(2) Every such bill shall specify the period for which, and the property, occupation or thing in respect of which the sum is claimed and shall also give notice of the liability incurred in default of payment and of the time within an appeal may be preferred as hereinafter provided against such claim.
(3) If a person to whom such bill is presented pays within fifteen days from the presentation thereof, the whole sum claimed as due, then a discount equal to one per cent of such sum shall be paid by the Council to him in such manner and within such period as may be prescribed.'
(8) Sub-section (1) of Section 150 requires the Chief Officer to cause to be presented a bill to a person who is liable for payment of any amount which become due. The bill to be presented relates to the sum claimed as due Sub-section (2) lays down the contents of such a bill. It opens with the clause 'every such bill' which means the bill mentioned in sub-section (1). Such a bill has to specify the period for which, and the property, occupation or thing in respect of which the sum is claimed. This is the second requirement of such a bill. The first requirement is contained in sub-section (1) which relates to the sum that becomes due. The second requirement must specify the period and the property or thing in respect of which the sum claimed in sub-section (1) has become due. Further requirement of such a bill is that it shall give notice of two distinct things: one is the liability incurred in default of payment and the other is the time within which an appeal may be preferred as hereinafter provided by the provisions contained in Chapter X. Sub-section (3) merely refers to a facility that is provided to the tax-payer if he pays the entire amount of the bill within 15 days from the date of presentation of the bill. If the payment is not made within 15 days, what consequences should follow and what steps the Municipal Council can take are incorporated in Sections 151 and 152 and the following sections.
(9) On a plain reading of this section, it appears that a bill, which is required to be presented by the Chief Officer under Section 150 of the Maharastra Municipalities Act, has to contain the following particulars:
(1) Amount claimed as due.
(2) The period and the property, occupations or thing in respect of which the sum is claimed;
(3) It must indicate the liability which would be incurred in default of payment and
(4) It must specify the time within which an appeal may be preferred as provided by the other provisions of the Act.
On a plain reading of this section, therefore, it appears that in order that a bill should answer the description of being one under Section 150 of the Maharastra Municipalities Act it must contain all the above mentioned items as contemplated by that section.
(10) If the bill Exhibit 16, which is the foundation of the alleged disqualification of the petitioner, is examined against these provisions it appears to be wanting in several particulars. The printed form used for issue Exhibit 16 admittedly relates to the old printed stationery when the present Council was a Municipal Committee under the provisions of the C. P. and Berar Municipalities Act, 1922. It is a notice under Octroi Rule No. 18. In this notice the petitioner is informed that he has imported certain goods within the Municipal limits without paying the octroi dues and without being noticed by the officers of the Municipality. He is, therefore informed that he should pay double the duty due within one week from the date of receipt of this notice. Exhibit 16 as originally issued refers to the date of import as being 26-9-1964. It bears the railway receipt No. 040856. The third column relates to the name of the importer. The fourth column relates to the place from where the goods have arrived. The next column relates to the description was three cases of paint and two drums. The weight shown is O. 51. In the three columns relating to the duty payable, double duty and the endorsement, there is a general remark that after showing the bills or vouchers, double duty should be paid off. This is the type of notice which is styled as demand notice, that has been issued against the petitioner. It may incidentally be noted that the son of the petitioner went to the Municipal Office on 14-6-1967 for making payment. He presented a written application which is on record. He pointed out to the municipal authorities that the original notice Exhibit 16 which was served upon him, is missing. He has, therefore, produced for the inspection of the municipal authorities the original vouchers of import. Looking to that voucher Exhibit 22, the municipal authorities made a report to the Chief Officer that there are several mistakes in the demand notice issued to the party. The date is wrong, the railway receipt number is wrong, the description of the articles was wrong and the weight was wrong. Below such a report, there is an order of the Chief Officer directing the officers of the Octroi section to correct the bill. Accordingly, Exhibit 16 as it is now presented in Court corrected on 14-6-1967 when payment was made by the son of the petitioner. At present the date is changed to 29-9-1965, the railway receipt number now appearing is 239708, the description of the articles is changed to one case of paint only and the weight is reduced to O. 22. Having made these corrections, a receipt was passed to the son of the petitioner for the adequate amount or the double of the original duty.
(11) Mr. Manohar, learned Counsel appearing for the petitioner urged that Exhibit 16 is not a notice under S. 150 at all. Unless there is a proper, legal and valid notice under S. 150, a disqualification enacted in clause (h) of sub-section (1) of S. 16 would not attach the petitioner. According to him, the service of notice under Section 150 was a condition precedent to the arising of the disqualification. It does appear that merely being in arrears of municipal dues, is not made the disqualification per section In order that such disqualification under S. 16(1)(h) should be attracted, there must be arrears and the Municipal Council must present a bill in respect thereof under S. 150. When these two conditions are satisfied, the disqualification at once arises and if it continues on the date when the party wants to become a Councilor, he would be declared unqualified because of the outstanding arrears.
(12) So far as this part of the approach is concerned, not much dispute is being raised on behalf of respondent No. 2. It is conceded that the mere fact of arrears without anything further is not declared a disqualification by this Act. It is also agreed that a notice under S. 150 has got to be given. However, the main contest between the rival claimants is centred round the nature and contents of a notice to be issued under S. 150 of the present Municipalities Act. Mr. Manohar conceded for the purpose of this election petition that the octroi dues remaining outstanding when the present Council was a Committee under the C. P and Berar Municipalities Act, may be taken as money recoverable under the provisions of S. 150. It is on that footing that it is necessary to examine the nature and contents of the notice that must be served on a party before he is disqualified under S. 16.
(13) In order to emphasize the fact that every one of the ingredients mentioned in sub-sections (1) and (2) of Section 150 must appear in the notice. Mr. Manohar took us to some decided cases under the provisions of prior existing Municipal Laws which are more or less pari materia with the present Ss. 150, 151 and 152. The first case on which he placed reliance is Surat City Municipality v. Chhabildas, 16 Bom LR 749=Municipality v. Chhabildas, : AIR1914Bom22 . The Surat Municipality recovered certain amounts of house-tax from the plaintiff by resorting to distress warrant. The distress warrant, which was issued under S 83 is required to be preceded by a notice under S. 82 which is analogous to the notice under S 150 of the present Municipalities Act. Even the wording of Ss. 82(1) and 83 is more or less similar to the wording of Ss. 150 to 152 of the present Act. On facts, it was found that the notice did not mention the period of appeal. Even then it was held that the plaintiff could claim a refund of the amount recovered on the ground that the proceedings for recovery were unlawful. A decree was granted to the plaintiff and, in the appeal by the Municipality to the High Court, a Division Bench of this Court held that the penal consequences of recovery by distress warrant are based upon a proper service of notice under S. 82. A valid notice complying with the provisions of S. 82 is the foundation of the authority of the Municipality in resort to distress proceedings . In that view the decree for refund passed by the Courts below was confirmed.
(14) Mr. Phadke, learned Counsel appearing for respondent No. 2, tries to distinguish this judgment on the ground that it relates to distress proceedings. He says that so far a similar recovery under S. 151 and onward of Chapter X is concerned, it may require a strict compliance with the provisions of S. 150. However, the approach in matters relating to elections has got to be different than the approach when the Court is called upon to construe the effects of penalties, like recovery by distress warrant. According to him, S. 16(1)(h) has been advisably enacted by the Legislature in a certain manner. The disqualification is incurred as soon as a mere bill is presented. The recovery proceedings could not be started by the Municipality until the period of appeal was over. The right to appeal was a substantive right so far as challenging of the bill was concerned and to avert the distress proceedings. That consideration is not relevant when the Legislature makes the presentation of a bill itself a disqualification in a candidate. This is based, according to him, on the sound principle of avoiding a conflict between private interest and public duty. The interpretation made by this Court in the Surat Municipality's case is not relevant according to him, for construing S. 150 in relation to the disqualification under S. 61. We will presently examine the validity of that argument after referring to the other cases relied on by Mr. Manohar.
(15) The next case on which reliance is placed is Raipur . v. Ahmedabad Municipality, 31 Bom LR 1224 =AIR 1930 Bom 145. The earlier judgment quoted above was followed in this case where some provisions, namely, Sections 82 and 83 were required to be interpreted. It was observed that in the case of penalties, the requirements of the law before the penalty is incurred must be strictly complied with. Mr. Phadke's comment on this case is the same which he made earlier in respect of the judgment discussed above. Mr. Manohar also relied upon a recent judgment of this Court in Raddulal v. Wasudeo, 1964 Mah LJ 50 where the election of a Sarpanch of the Village Panchayat was sought to be set aside. The Sarpanch was in arrears which he had not paid. Section 14 of the Village Panchayats Act lays down disqualifications. One of the disqualifications is that a person who does not pay the amount of the bill within three months after the date of service, is disqualified from becoming a member of the Village Panchayat. This case is not relied upon so much for the facts as for general observations which related to the penal consequences following upon the observance or non-observance of certain statutory duty. It was sought to be argued that the Sarpanch was also a member of the previous Panchayat and knew that he was in arrears. He failed to serve a notice upon himself and, in the circumstances, being fully aware of the arrears, he should be declared disqualified. It is pointed out by a Division Bench of this Court that there can be various reasons for not serving a notice. Mere non-payment of taxes is not made a disqualification. The disqualification flows from the fact that a valid notice is served and in spite of that notice within the statutory period, the arrears of taxes are not paid. Mr. Manohar relied upon this judgment for the purposes of showing that wherever penal consequences flow from non-observance of certain provisions, those provisions must be strictly construed. In order to support the reasoning of the learned District Judge, Mr. Phadke relied upon some general observations of the Supreme Court in Pratap Singh v. Shri Krishna Gupta, : 2SCR1029 . The facts of that case were entirely different, where a nomination paper was rejected for a technical flaw. Mr. Phadke points out the general observations of the Supreme Court for the purpose of Interpreting statutes relating to elections. The relating observations on which he relies appear in Paragraph 3 of the report: They are as follows:
'We do not think that is right and we deprecate this tendency towards technicality it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the Legislature does not itself state which is which Judges must determine the matter and exercising a nice discrimination, sort out one class from the other along broad based, commonsense line.'
(16) We think that there can be no quarrel with the approach suggested by the Supreme Court. The only question will be of determining what is mere technicality and what is substantial compliance when the provisions of a particular statute in relation to a particular function are being examined. Coming not to the provisions of the Maharastra Municipalities Act, the broad fact that must be remembered, is that mere arrears of certain dues of the Municipality are not made a disqualification per section Mere knowledge of a party that he is in arrears is also not relevant. What is made a disqualification is a non-payment in spite of the presentation of a bill under S. 150. In order that a person is, therefore, disqualified, it must be shown that a bill under S. 150 was presented. What a bill under S. 150 should contain is quite plain from the obvious wording of that section. It is true that Section 150 does not prescribe a specific form. It may be, therefore, that a party would not be permitted to complain that a certain bill is not in a particular form. If, however, it is a bill in writing presented to him and contains all that S. 150 requires, then the mere form could not be a matter of dispute. To that extent, it is not possible to take any exception to the argument addressed on behalf of respondent No. 2. However, before a document could be called a bill under S. 150, it is necessary to determine what it must contain. We have already enumerated what such a bill should contain Sub-section (2) of S. 150 opens with the clause 'Every such bill shall specify........'. The use of the word 'shall' by the Legislature must prima facie be taken to be a mandatory provision, unless by examining the contents of that section and the other relevant provisions of the Act, it is possible to say that the requirements are merely directory. This has been pointed out by the Supreme Court in State of Uttar Pradesh v. Babu Ram, : 1961CriLJ773 . Their Lordships observed that when a statute uses the word 'shall', prima facie, it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute. They proceeded to point out the consideration which should be taken into account by Courts in finding out the real intention of the Legislature.
(17) While examining the provisions of S. 150 from that point of view, we find that it occurs in a Chapter which provides the general remedies of the Municipal for effecting recoveries. Chapter X deals with the recovery of Municipal claims and provides methods of recovery unless they were already provided by the other provisions of the Act. The provisions of S. 150 are, therefore general in their application. The second important point to be remembered is that the non-compliance with the bill by the party leads to certain consequence which are provided in S. 151 and onwards. The Municipal Committee, for instance, is authorised to issue a notice of demand after fifteen days after the presentation of the bill if the payment is not made by the party. What such notice of demand should contain is laid down by clauses (a) to (c) of S. 151. Section 152 further points out that a person not making payment of the bill within fifteen days even from the date of service of the notice of demand, is made liable for paying the costs of recovery and further liable to the issue of distress warrant and recovery proceedings by sale of moveable and immoveable property of that defaulter. These are, therefore, the consequences which follow if there is no compliance with the bill presented under S. 150. So far as these consequences are concerned, it is being said in terms of the judgment of this Court in 16 Bom LR 749= : AIR1914Bom22 that a strict compliance with the provisions of S. 150 may be necessary when the Municipality wants to resort to the distress proceedings provided by the sections following that section. It is, however, being argued that the approach for the purpose of construing the provisions of S. 150 should be different when the disqualification under S. 16 is to be taken into account. The obvious infirmity of this approach is that it requires the same section of the statute to be read in two different ways when the same section is made the basis for two different consequences. If it is an action by the Municipality by way of issuing of distress warrant then the same words of S. 150 become mandatory. However, when it is a question of disqualification under S. 16, then the provisions of S. 150 become directory and substantial compliance is enough. We think that such interpretation of a section, which is a part and parcel of the general scheme of this Act, is not possible.
(18) Every resident of the Municipality is not necessarily interested in contesting elections. Could it be said that the Chief Officer, whose duty it is to issue notice under S. 150, would issue one kind of notice when recovery under S. 152 is contemplated, and another kind of notice when a disqualification for election is attached to a party. If a notice has got to be under S. 150, then it will be only one type of notice which will comply with the requirement of S. 150. It may be that two different types of penal consequences are provided by not complying with such a valid notice. If a valid notice under Section 150 is served in the case of one citizen, it may lead to disqualification for the candidature in addition to the consequences of distress proceedings. In the case of another citizen, who is not interested in election mere consequence will be of distress proceedings. However, no distinction can be made between the tax-payers for whom a general notice under Section 150 is provided. We are, therefore, of the opinion that looking to the scheme of the Act and the place of Section 150 in Chapter X, the provisions of that Section are mandatory and a valid notice must specify all the particulars which are required to be mentioned in that section.
(19) If we now examine the contents of Exhibit 16 against this conclusion, it is obvious that this notice does not contain several particulars which ought to find place in a valid notice under S. 150. We may not quarrel with the form of that notice as no specific form has been prescribed. The first requirement is to claim the sum due. Such sum has got to be a sum certain. In this bill, no sum at all is claimed. A mere direction is given that the petitioner shall produce his bill and pay the double amount that may be due on calculation by looking to the bill. To say the least, this is no claim for a sum due at all. Mr. Phadke, learned Counsel appearing for respondent No. 2 said that the petitioner had surreptitiously taken away the goods to his house. In the case of such a person, it is not possible to ascertain the amount of octroi tax that is due. The Municipality will have no alternative but to issue notice under Octroi Rule No. 18 directing the party to produce documents. Such a notice under Octroi Rule No. 18 is a part of the proceedings for the recovery of octroi. The notice of this type would itself amount to a notice under S. 150. We are unable to accept this reasoning. It is not true that, in the case of a person, who has surreptitiously imported the goods, there are no means of knowing the type of goods imported or the quantity thereof. In fact, the evidence of the Chief Officer shows that, in such cases, the officers of the Municipality go to the railway station, examine the records of railway receipts and obtain particulars for making bills. The bill Exhibit 16 in dispute is itself the result of such investigation. It has mentioned a date of import, the railway receipt number, the description of the goods and weight thereof. What has happened in this case is that the petitioner had imported two different consignments, one in his personal name and the other as a Chairman of the Cotton Seed Society. The information collected by the officers of the Municipality was originally correct, but in making the bills, the particulars relating to the import by the Cotton Seed Association came to be noted against the individual name of the petitioner. Apart from that clerical mistake there are means of knowing the correct information and on the strength of this information, the Municipality can make a claim and present a bill. We are unable to accept the argument of Mr. Phadke that, in the case of this type, there are no means of knowing the type of goods imported for claiming a definite amount. We are inclined to think that, for making a claim of the sum due, the information which is necessary, was available to the Municipality before presenting Exhibit 16 to the petitioner.
(20) Another important requirement which is not to be found is the mention of the period of appeal. If a party is not satisfied with the correctness of the bill, it has a substantive right of making an appeal against the bill. Sub-section (2) of S. 150 requires that, among other things, the time within which the appeal has to be preferred, must be mentioned and Exhibit 16 does not contain anything of this kind. It is true that it makes a reference to the period or the time of import and the article in respect of which the bill is being presented. That requirement is satisfied. The Chief Officer is also obliged to mention in the notice the liability that would be incurred in default of payment. In the notice Exhibit 16, there is a reference that in the absence of payment within eight days in the Municipal Officer, an action will be taken under the provisions of the Municipalities Act. This is all that is stated and no specific indication is gives as to what penal consequences would follow. The reference in the notice Exhibit 16 is too vague. What is obviously contemplated is in the absence of compliance with the notice within the time mentioned, a notice of demand or warrant would be issued. In the absence of any reference to the penal consequences we think that the notice is defective even on that count. In this manner, examining the contents of Exhibit 16, we find that out of the four important ingredients as many as three are missing. Such a notice could not be said to be even a substantial compliance with the provisions of S 150. In fact, according to us, this is not a notice under S. 150. If this conclusion is reached then it is obvious that the disqualification is incurred as soon as a valid bill under S. 150 is presented. Exhibit 16 is not a valid bill under S. 150 and sending Exhibit 16 is no presentation of the bill under Section 16(1)(h), and consequently there is no disqualification incurred by the petitioner.
(21) In this view of the matter, the writ petition is allowed. The order of the learned District Judge, dated 11-10-1967, setting aside the election of the petitioner is quashed. The original election petition of respondent No. 2 stands dismissed. Respondent No. 2 will pay costs of the petitioner in both the Courts.
(22) Petition allowed.