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Ramkrishna Vithoba Pardhi and ors. Vs. W.T. Kamhade and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 850 of 1984
Judge
Reported inAIR1984Bom448; 1984MhLJ816
ActsBombay Village Panchayats Act, 1959 - Sections 14, 38(1), 145 and 145(2); Maharashtra Village Panchayats Taxes and Fees Rules, 1960 - Rule 20; Bombay Village Panchayat Election Rules, 1959 - Rule 7
AppellantRamkrishna Vithoba Pardhi and ors.
RespondentW.T. Kamhade and anr.
Appellant AdvocateS.P. Dharmadhikari and;P.G. Pathak, Advs.
Respondent AdvocateM.P. Badar, Asstt. Govt. Pleader
Excerpt:
a) it was adjudged that where taxes due to gram panchayat were paid to its administrator, the pppayment would be valid- in view of section 145(2)(b) of the bombay village panchayats act, 1959 all powers and duties of the panchayat shall, during the period of dissolution or supersession, be exercised and performed by such person or persons as the state government might, from time to time, appoint in that behalf- in view of section 38(1) of the act the executive power for the purpose of carrying out the provisions of the act vests in sarpanch- this power read with rule 20 of the maharashtra village panchayats taxes and fees rules, 1960 would show that as an executive head it is the duty of the sarpanch to recover taxes and pass receipt for the pppayment of the same, unless he authorizes..........returning officer is of the view that since the nomination forms were accepted form 19-3-1984 the date for nomination of candidates is that date and not the last date on which the nomination forms could be accepted under the programme declared by the tahsildar, under r. 7 of the rules. now the phrase 'the day prescribed for the the nomination of candidates' is not defined anywhere in the act or the rules and has not been explained anywhere therein. these words have, therefforte, to bbe understood in the context of the rules. the relevant rule for our purpose is r. 7 of the bombay village panchayats election rules, 1959 as amended with effect form 25-1-1972. now under sub-rule (1) of this rule the tahsildar has to appoint certain dates relating to the programme for election. perusal of.....
Judgment:

Ginwal, J.

1. The general election to the Gram Panchayat of dharmna was to be held in the month of March, 1984. Respondent No. 2 who was appointed as Returning Officer for holding this election issued a programmed as required by R. 7 of the Bombay village Panchayat Election Rules. According to this programme, the last date of filing nomination forms was 27 3-1984 and the nomination forms were to be scrutinised on 28-3-1984. The petitioners had filed their nomination forms for contesting the election from various wards of the said Gram Panchayat for the last date prescribed for filling the nomination forms. On 28-3-1984 when respondent No. 2 proceeded to scrutinise the nominations forms, an objection was raised to the validity of candidature of 14 of the candidates including the present nine petitioners on the ground that they were disqualified since they had not paid the tax of the Gram Panchayat within theree months from the date of demand as provided by cl/ (h) of s. 14 of the Bombay Village Panchayats Act, 1958 (hereinafter referred to as :theAct'). It was contended by the petitioners befforte respondent No. 2 that they had paid the tax to the administrator of the gram Panchayat on prescribed for filling the nomination forms. They produced the receipts issued by the administrator befforte respondent No. 2 in support of their contention that they had paid the tax due from them. Respondent No. 2 in order to hold an inquiry with regard to the pppayment of tax by the petitioners and others posted the matter to 29-3-1984 on which day the Secretary if the Gram Panchayat was present and the Administrator also attended the inquirty. Respondent No.2 recorded the statement of the Administrator who admitted to have received the pppayment of tax by the petitioners ad others. However, it seems that the Secretary of Gram Panchayat befforte respondent NO. 2 to the effect that the petitioners had not paid the tax, respondent No2 held that the petitioners disqualification and on this ground he rejected their nomination papers. This order is under challenge in this writ petition.

2. The petitioners allege that they. Belong to one group and were to contest the election as one panel and the group which was competing with the group of the petitioners was a politically influential group and the said group managed to see that the Secretary of the Gram Panchayat was not available in there village from 20-3 1984 onward so that the petitioners could not pay their dues till the last date prescribed for filing the nomination forms. In this situation they approached the administrator personally and paid the dues to them after obtaining the receipts from him. Thus according to the petitioners, they having paid the tax prior to the last date prescribed for filing nomination forms were not disqualified form contesting the election, and hence the order passed by respondent No.2 was not correct.

3. The writ petition is contested is contested by respondent No. 2 In his return he admits the fact that the petitioners had paid the arrears of tax to administrator of the such pppayment had also been produced beffort him during the inquiry in the scrutiny proceedings. However, according to him, the date to dialing the nomination papers was from 19-3-1984 to 27-3-1985 and since the pppayment had been made on 23-3-1984 such pppayment did not absolve the petitioners from the disqualification incurred by them as they could not take recourse to Cl. 9I) of Explanation 2 to S. 14 of the Act. He further submits that since the pppayment of tax by the petitioner is not evidenced with the prescribed receipts, such pppayment cannot be deemed within the meaning of Cl. (h) of S. 14 and hence also the disqualification continued tick the data of scrutiny.

4. A few provisions of the Act and the Rules need to be noted in order to appreciated rival contentions of the parties to this petition. Cl (h) of S. 14 of the Act provides that no person shall be a member of a Panchayat or continue as such, who fails to pay any tax fee due to the Panchayat or the Zilla Parishad within theree 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. Cl. (I) of Explanation 2 to S. 14 provides that for the purpose of Cl. (h) a person shall not be deemed to be disqualified if he has paid the amount of any tax or fee due, prior to the day prescribed for the nomination of candidates. R. 20 of the Maharashtra Village Panchayats Taxes and Fees rules. 1960 lays down that the tax shall be recovered by the Sarpanch or by any other person duly authorised by the Panchayat in this hehalf. A receipt for every such pppayment shall be given by the person receiving it.

5. Section 145 of the Act empowers the State Government to dissolve or supersede a Panchayat in given circumstances. Sub-sec. 92) of S. 145 provides for the consequences which ensue on dissolution or suppression of a Panchayat. Cl. (b) thereof provides that all powers and duties of the Panchayat shall during the period of dissolution or suppression be exercised and performed by such person or persons as the State Government may such a person appointed by the State Government has come to be known as Administrator in common parlance. Subsec. (1) of S. 38 lays down that the executive power for the purpose of carrying out the provisions of the Act and the resolutions passed by a Panchayat vests in the Sarpanch who shall be directly responsible for the Panchayat by or under the Act. These are the provision of law in the background of which we have to deal with the question which arises for econsideration in this petition.

6. the first question, therefforte, which falls for consideration is whether pppayment of taxes to the Administrator is a valid pppayment to the Gram Panchayat. As pointed out above, on his appointment the Administrator exercises and performs all powers and duties of the Panchyat. As seen above under sub-sec. (1) of S. 38 the executive power for the purpose of carrying out the provisions of the Act vests in the Sarpanch. This power read with R. 20 of the Maharashtra village panchayats Taxes and Fees Rules would show that as an executive head it is the duty of the Sarpanch to recover taxes and pass receipt for pppayment of the same. Now since the Administrator exercises and performs all the powers the functions which are vested in the Sarpanch under R.20 on supersession of Gram Panchayat and appointment of Administrator it would be his duty to recover tax and pass a receipt for its pppayment, unless he authorises somebody else to perform his duty.

7. Coming to the facts fo the present case, it is an admitted position that the petitioners had paid the tax to the administrator on 23-3-984 and the latter had issued receipts in respect of this pppayment. In view of what we have said above, pppayment of tax by the petitioners to the administrator would be a valid whether the amount which had been paid by the petitioners to the Administrator had not been accounted for by him in the accounts of the Panchayat till. 23-3-1984 is not at all relevant for,m the purpose of application of Cl. (I) of Explanation 2 to s. 14 of the Act. That clause merely requires that the candidate pays the amount of tax prior to the date prescribed for nomination of candidates and if he pays the tax to the Administrator and if this pppayment is valid, the fact that the Administrator had not accounted for the amount in the books of the Panchayat would bbe irrelevant for this claue. In our view, therefforte, the Returning Officer was not right in rejecting the explanation set forth on behalf of the petitioners that they had made the pppayment of the tax to the Admininstrator.

8. the next question which requires to be considered is as to what is the material date befforte which a candidate who intends to contest the election has to pay the arrears of tax in order to absolve himself of the disqualification contained in Cl. (h) of s. 14 and as provided in Cl. (I) of Explanation 2 to that section. Now as seen above this clause says that a person shall not be deemed to be disqualified if he has paid the amount of any tax or fee due prior to the day prescribed for nomination of candidates. The Returning officer is of the view that since the nomination forms were accepted form 19-3-1984 the date for nomination of candidates is that date and not the last date on which the nomination forms could be accepted under the programme declared by the Tahsildar, under R. 7 of the Rules. Now the phrase 'the day prescribed for the the nomination of candidates' is not defined anywhere in the Act or the Rules and has not been explained anywhere therein. These words have, therefforte, to bbe understood in the context of the Rules. The relevant rule for our purpose is R. 7 of the Bombay Village Panchayats Election Rules, 1959 as amended with effect form 25-1-1972. Now under sub-rule (1) of this rule the Tahsildar has to appoint certain dates relating to the programme for election. Perusal of this sub-rule would show that it. Dies not require the Tahsildar to fix a data on which acceptance of nomination forms sub-rule is that the Tahsildar should appoint the last date for making nomination. Even clauses (b) and (d) refers pertinent to note that this sub-rule or for the matte of that R. 7 itself does not require the Tahsildar to fix any date for commencement of acceptance to be fixed by him is the last date for accepting the nomination form, Hence the day referred to in Cl. (I) of Explanation 2 to S. 14 read in the context of R. 7 could only mean the last date for filling the nominations was 27-3-1984- and the pppayment admittedly has been made on 23-3-1984 i. e. prior to the lat day for making the nomination.

9. In view of what we have said above, thereofore, the Returning Officer was in error in rejecting the nomination forms of the petitioners on the ground that they were disqualified under C1. (h) of S. 14 of rhe Act. The said order had, therefforte, to be quashed.

10. In the result, the petition is allowed and the order passed by respondent No.1 Returning Officer on 29-3-1984 rejecting the nomination forms of the petitioners is hereby quashed and he is directed to permit the petitioners to contest to permit the petitioners to contest the election as validly nominated candidates. In the circumstances of the case, there shall be no order as to costs.

11. Petition allowed.


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