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Jairam Panduji Maple Vs. D.K. Anwikar - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Petition No. 477 of 1956
Judge
Reported in(1957)59BOMLR1125
AppellantJairam Panduji Maple
RespondentD.K. Anwikar
DispositionPetition dismissed
Excerpt:
.....sub-section (2)-election of panch-whether non-payment of professional tax renders election void-'illegal practice', meaning of.; the applicant, who was a weigher, was elected as a panch to a gram panchayat. an election petition was filed challenging the election of the applicant on the ground that he was in arrears of professional tax for two years imposed under section 41, sub-section (3), of the c.p. and berar panchayats act, 1946. the assistant commissioner, who heard the election petition, declared the applicant's election as void, and set it aside. the applicant challenged the order setting aside the election under article 226 of the constitution:; that the expression 'illegal practice' must be given a meaning which will make the meaning of rule 2 of the rules regulating the..........appears, in the rules, whereby an objection can be taken to the nomination of a person for being a panch rules regulating nominations for elections under section 8 have been framed, and they are under the title,clause v, and one of the rules is rule 5, which provides thaton the date fixed for receiving the nomination papers the supervising officer shall, at 1 p.m., examine the nomination papers and may either accept or reject them. if he decides to reject any nomination paper, he shall immediately record in writing a brief statement of his reasons for so doing.therefore, by virtue of the provisions contained in rule 5, power is given to thesupervising officer to accept or to reject a nomination paper. there is a further safeguard provided in rule 6, which enables a person to file an.....
Judgment:

Dixit, J.

1. This petition raises an interesting question under the C.P. and Berar Panchayats Act, 1946 (I of 1947), and the facts necessary to understand the question are shortly these:

2. The applicant is a resident of a village called Saur, and resides in ward No. 3. An election of a Paneh to the Gram Panchayat from ward No. 3 was to be held, and at this election the applicant and opponents Nos. 5 and 6 were the contestants. The election was held on October 18, 1955, and it resulted in the applicant getting the highest number of votes, so that he was declared elected as a Panch, and this was published on November 17, 1955. On November 28, 1955, an election petition was filed whereby the applicant's election was challenged, and the Extra Assistant Commissioner, Amravati, who heard the election petition, declared the applicant's election void, and set aside the same. Pursuant to this order, he directed a fresh election to be held to elect a Panch from ward No. 3 of the Gram Panchayat, Saur. It is the correctness of this order which has been challenged by the applicant under Article 226 of the Constitution.

3. Now, in order to decide the question, it is necessary to refer to some of the provisions of the Act and the rules framed thereunder. Section 2(i)(ii) defines the expression 'Gram Panchayat' as meaning 'a Gram Panchayat established under this Act'. The expression 'Panch' is defined in Section 2(i)(v) as meaning 'a member of a, Panchayat other than a Sarpaneh or a Deputy Sarpaneh'. In order to enable a person to be a Panch, he must not be one having' incurred a disqualification under Section 14 of the Act. In this case, the disqualification attributed to the applicant is contained in Section 14(k), which says that:

a person shall be disqualified for election, nomination or appointment as a Panch, Deputy Sarpanch or Sarpanch if such person is in arrears for such period as may be prescribed of any tax, toll, fee or rate due by him to the GramPanchayat.

The applicant is what is known as a 'mapari', i.e. a weigher, and Section 41, by Sub-section (2), provides that

the Gram Panchayat shall require every person practising the calling of buyer, broker, commission agent, weigher, or measurer within the Gram Panchayat area to take out a licence so to practise and shall levy such fee therefor as may be prescribed.

So that, according to Section 41(2), the applicant, being a mapari, is what is called it weigher. Then Section 41, by Sub-section (3), provides that

the Gram Panchayat shall impose a tax at such rate (or rates) as may be prescribed on persons practising any profession, trade or calling within the Gram Panchayat area.

It is clear that the ambit of Section 41(2) is different from the. ambit of Section 4.1(3). Under Section 41(3) what is imposed iswhat can conveniently be described us a professional tax.

4. Now, in this particular case, according to the finding of the Extra Assistant Commissioner, the applicant was in arrears of professional tax for the years 1952-53 and 1953-54. It is found as a fact that the applicant had paid the taxes amounting to a sum of Rs. 2 for the years 1950-51 and 1951-52 on March 27, 1950, and November 18, 1951, respectively. He further found, upon an examination of the proceedings book, that on July 13, 1952, there was a resolution passed by the Gram Panchayat, directing action to be taken for the recovery of arrears from defaulters, and the learned Extra Assistant Commissioner concluded:

All this clearly shows that the respondent Jayaram was in arrears of Gram Panchayat tax due to Gram Panchayat, Saur, not only on the date of the nomination paper or at the time of the election, but even during the pendency of this election petition.

It is significant that the record does not give the date of the nomination paper, nor does it furnish the date about the preparation of the electoral roll. One of the points made by Mr. Abhyankar is that the lists whereby, the professional tax was imposed were not published; but the finding of the Extra Assistant Commissioner appears to be not that the lists were not published, but that the lists were not published according to the time schedule given in the rules. Mr. Abhyankar has, therefore, wisely not urged the point that the lists wore not valid on that ground.

5. But his principal contention is that the election of the applicant as ft Punch cannot be declared to be invalid, because the validity of the election cannot be attracted by Rules 1 and 2 occurring in Clause XL1I, which deals with rules regulating the settlement of election disputes under Section 144(2)(ii). It is necessary to quote the two rules here. Rule 1 runs as follows:

The election of any Panch or Sarpanch may be called in question by a petition presented to the Deputy Commissioner within 10 days from the date on which the result of the election is published in the Gazette. The Deputy Commissioner may transfer any such petition to any officer subordinate to him fordisposal.

Rule 2 is material, and it says:

If, after such inquiry as he considers necessary, the Deputy Commissioner or his subordinate as the case may be is of opinion that the election complained of has been procured or induced or the result of the election has been materially affected by corrupt or illegal practice, he may declare it to be void and order a fresh election.

And Mr Abbyankar's argument is that the result of the election has not been materially affected either by corrupt or illegal practice. Now, the expression 'corrupt practice' has been defined in Section 13 of the Act; but the expression 'illegal practice' is defined neither in the Act, nor in the rules. Another curious feature of the provisions dealing' with election petitions may be pointed out, and that is that the procedure for questioning the validity of elections is laid down by the rules, and is not regulated by any provision contained in the Act; and in order to determine the correctness or otherwise of the argument put forward, it is necessary to refer to some of the rules having a bearing upon the question raised. Rules regulating the publishing of electoral rolls under Section 10(2), (2) and (3) have been framed, and they are contained in Clause IX. These provisions show that claims and objections can be made and raised in respect of an electoral roll, and the officer appointed to hear the claims and objections has to decide a claim or an objection, and has to record his decision, and his decision is, by rules, made final. Now, in order to enable a person to be a voter, lie must be a person who has not incurred a disqualification as mentioned in the Act. Section 11 of the Act, by Sub-section 2(1), provides that

no person shall be included in the electoral roll for, or vote at, any election in a ward if such person is in arrears for such period as may be prescribed of any tax, toll, fee or rate due by him to the Gram Panchayat.

Therefore, if a person is in arrears for such period as may be prescribed, then he cannot be a voter. If, therefore, there is a person who cannot be a voter, an objection can be taken, and the officer has to hear and decide the objection, and the decision of the officer is, by rules, made final. Unlike the case of a voter, no machinery is provided, it appears, in the rules, whereby an objection can be taken to the nomination of a person for being a Panch rules regulating nominations for elections under Section 8 have been framed, and they are under the title,Clause V, and one of the rules is Rule 5, which provides that

on the date fixed for receiving the nomination papers the Supervising Officer shall, at 1 p.m., examine the nomination papers and may either accept or reject them. If he decides to reject any nomination paper, he shall immediately record in writing a brief statement of his reasons for so doing.

Therefore, by virtue of the provisions contained in Rule 5, power is given to theSupervising Officer to accept or to reject a nomination paper. There is a further safeguard provided in Rule 6, which enables a person to file an appeal to the Deputy Commissioner against an order rejecting a nomination paper, within the time prescribed. The provisions dealing with the electoral rolls and the provisions dealing with nominations may be contrasted, and there is one feature which strikes one as significant, and' that is that whereas in the case of a voter, a provision is made for raising an objection, no provision appears to have been made in the rules whereby an objection can be taken to the nomination of a person as a Panch. Mr. Abhyanknr has referred also to another set of rules, which may as well be referred to here. He has referred to a rule set out at page 11 under the title, Clause X, which is a rule prescribing further disqualifications under Sections 11(1)(f) and 14(k), and that rule says that

any person found is arrears for a period of one year or more of any tax, toll, fee or rate due to the Gram Panchayat within whose jurisdiction he resides at the time of the preparation of the electoral roll shall be disqualified from being an elector under Section 11(1)(f) and for election, nomination or appointment as a Panch, Deputy Sarpanch or Sarpanch under Section 14(k) of the Act.

And then, as regards the payment of professional tax, Mr. Abhyankar has referred to a rule set out at page 29, and that deals with what is called a tax on profession, trade or calling. It may be pointed out that the professional tax, if one may describe it as such, is a tax upon the persons falling under the categories mentioned in Rule 1, namely,Clauses (i) to (v), and there is a general category which is contained in. Clause (vi), which deals with 'Others'. Mr. Abhyankar has not disputed that the applicant, who is a mapari, would fall within the sixth category.

6. These being the relevant provisions of the Act, and the relevant provisions contained in the rules, the question which arises for decision is whether the result of the election has been materially affected by an illegal practice. There is no suggestion that the election has been, in any way, affected by what is called corrupt practice. There is equally no suggestion that there has been, in this case, anything like an inducement in the course of the election, or that the election has been produced in a way open to objection. Mr. Abhyankar argues that the expression 'illegal practice' should be read ejusdem generis with the expression 'corrupt practice'. As I pointed out, the expression 'corrupt practice' is defined in Section 13 of the Act, and the definition of the expression 'corrupt practice' renders the task of interpretation easy; but the task of interpreting the expression 'illegal practice' is by no means easy. It is urged by Mr. Abhyankar that in order to attract the expression 'illegal practice' something must be done by a candidate at the time of the election. In other words, his contention is that there must be, on his part, gome overt act, and if there is no overt act, then, the election cannot be declared to be invalid. He says that the expression 'illegal practice' means somethingwhich is prohibited by law, and also means failure to do something which is, by law, required to be done; and the fact of the applicant being a person who has incurred a disqualification under Section 14 of the Act is no reason for saying that the case is a case of an illegal practice. It is not possible to understand why the expression 'illegal practice' has not been defined in the rules; but, if one may guess, the reason seems to be plain. The expression 'illegal practice' may cover such a wide range of subjects that those who framed the rules thought that it would be better to leave the expression 'illegal practice' undefined in order to enable one interpreting the provisions to so define it as to make it consistent with the provisions of the rules and the Act. It is admitted by Mr. Abhyankar that if the applicant has incurred a disqualification under Section 14(k) of the Act, then he cannot be a Panch; but he says that in so far as the applicant has himself done nothing at the time of the election itself, the expression 'illegal practice' need not render his election void. There is, I must say, a catch in this argument; but, if one reflects upon what would happen if this argument is accepted, the result is a most extraordinary one. A Panch must be a person who must not be a defaulter, but the moment a person is declared elected as a Panch, his disqualification is, as though, purged, merely because he is elected a Panch. To arrive at such a conclusion would reduce an election to an absurdity. How can a person be a Panch, merely because he is declared elected as a Panch, when, initially, there was a disqualification, whereby he could not be elected as aPanch In our view, therefore, we must give the expression 'illegal practice' a meaning which will make the meaning of Rule 2 of the rules regulating the settlement of election disputes under Section 144(2)(ii), consistent with the provisions of the Act and the provisions contained in the rules. As I have already pointed out, there is no machinery whereby the nomination of a person to be elected as a Panch can he questioned at any particular stage, unlike the provisions which enables a person to challenge the ability of a person to be a voter in the electoral roll. If such is the situation, it is not difficult to give the expression 'illegal practice' a meaning which will make the provisions contained in Rule 2 sensible and consistent. Can it be suggested in this case that the result of the election has not been materially affected by allowing the applicant to be declared elected as a Panch, when, by statute, he could not be nominated as aPanch because of his having incurred a disqualification under Section 14? I am not, therefore, prepared to accept the argument of Mr. Abhyankar that we should give the expression 'illegal practice' a restricted meaning, as is suggested by him. Rather, we should give the expression 'illegal practice' a meaning which will make the rules relating to election petitions consistent and rational.

7. In our view, therefore, the Extra Assistant Commissioner rightly concluded that inasmuch as the applicant was a defaulter in the payment of professional tax, his election was void, and he was, therefore, right in directing a fresh election to be held in order to elect a Panch from ward No. 3. For the reasons given above, the decision of the Extra Assistant Commissioner is right. The petition must fail and is dismissed, but as none of the opponents has appeared at the hearing of the application, there will be no order as to costs. The amount of the security deposit made by the petitioner may be refunded to him after deducting the costs payable by him.


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