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Jadumani Pradhan Vs. Sewaram Pansari and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 1720 of 1979
Judge
Reported inAIR1983Ori1; 54(1982)CLT352
ActsConstitution of India - Article 226; Orissa Municipal Act, 1950 - Sections 16(1) and 25
AppellantJadumani Pradhan
RespondentSewaram Pansari and ors.
Appellant AdvocateS.S. Basu, ;M.R. Panda and ;S.S. Rao, Advs.
Respondent AdvocateR. Mohanty, ;A.C. Mohanty, ;S. Mohanty, ;R.K. Kar, ;P.K. Ray, ;P.K. Mohanty, ;P.K. Padni, Advs. and ;B. Nayak, Addl. Govt. Adv.
DispositionPetition dismissed
Excerpt:
.....assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - this voucher was called for by the tribunal but the municipality failed to produce the same......on the ground that he suffered from the disqualification under section 16 (1) (vi) of the act. the election officer rejected the nomination paper of opp. party no. 1 recording his decision in that regard as follows:'under section 16 (1) (vi) of the orissa municipal act the candidate is in arrears of dues payable to the municipality without sufficient cause shown to the satisfaction of the election officer, for a period of one year immediately preceding the year in which the election is held relating to advance recoverable since 1960-61; therefore nomination paper of sri sewaram pansari is rejected.' (vide ext. 17).the election was held on 31-1-1979 and the petitioner was declared elected.3. opposite parties 1 to 43 filed an application under section 25 of the act before the election.....
Judgment:

P.K. Mohanti, Actg. C.J.

1. This writ application is directed against an order under Section 25 of the Orissa Municipal Act, 1950 (hereinafter referred to as the 'Act') passed by the Election Tribunal (District Judge, Sambalpur) declaring the petitioner's election to the office of the Chairman of Bargarh Municipality as invalid and directing the District Magistrate, Sambalpur to take measures for holding a fresh election.

2. The material facts are these: Petitioner and opp. party No. 1 were candidates for election to the office of the Chairman of Bargarh Municipality scheduled to be held on 31-1-1979. Opposite Party No. 1 presented his nomination paper on 12-1-1979. At the scrutiny, petitioner raised an objection to the nomination of O. P. No. 1 on the ground that he suffered from the disqualification under Section 16 (1) (vi) of the Act. The Election Officer rejected the nomination paper of opp. party No. 1 recording his decision in that regard as follows:

'Under Section 16 (1) (vi) of the Orissa Municipal Act the candidate is in arrears of dues payable to the Municipality without sufficient cause shown to the satisfaction of the Election Officer, for a period of one year immediately preceding the year in which the election is held relating to advance recoverable since 1960-61; therefore nomination paper of Sri Sewaram Pansari is rejected.' (Vide Ext. 17).

The election was held on 31-1-1979 and the petitioner was declared elected.

3. Opposite parties 1 to 43 filed an application under Section 25 of the Act before the Election Tribunal, Sambalpur praying for a declination that the election was invalid and for a direction to the District Magistrate to conduct fresh election. Their contention was that the nomination of opp. party No. 1 was improperly rejected thereby affording an advantage to the petitioner to win the election. The Election Tribunal, on a consideration of the evidence led by both the parties, came to the findings that opp. party No. 1 was not in arrears of any dues payable to the municipality; that his nomination paper was improperly rejected and that the result of the election was materially affected by such improper rejection. Upon such findings, the whole proceeding relating to the election was set aside and the Magistrate of the district and the prescribed authorities were directed to take measures for holding a fresh election for the office of the Chairman of Bargarh Municipality. Aggrieved by this decision, the petitioner has come up with this writ petition.

4. Before dealing with the precise point in controversy in this Court it is necessary to set out the facts leading to the disqualification under Section 16 (1) (vi) of the Act Opp. Party No. 1 was the Chairman of Bargharh Municipality in 1961. In pursuance of a Resolution dated 10-1-1961 of the Municipal Council he was paid an advance of Rs. 5,000/- from the municipal fund for the purpose of purchasing a tractor-cum-trailer for the municipality. The accounts of the municipality for the years 1962-63 were audited by the Assistant Examiner, Local Fund Accounts and in the audit report, a sum of Rs. 5,000/- was shown as outstanding advance against opp. party No. 1 (vide Ext. H). O. P. No. 1 admitted that he had taken the aforesaid amount but his case was that he purchased a tractor and a trailer and other machine parts from New Bharat Trading Co, at Calcutta for a sum of Rs. 4,500/-and the balance amount of Rs. 500/- was spent towards his T.A. and other miscellaneous expenses.

5. The main question for consideration before the Tribunal was whether opp. party No. 1 had incurred the disqualification under Section 16 (1) (vi).

6. The relevant parts of Section 16 of the Act read as follows:

'16. Disqualification of candidates for election:--(1) No person shall be qualified for election as Chairman or councillor of a municipal council if such person-

X X X X

(vi) is in arrears of any dues payable to the Municipality without sufficient cause shown to the satisfaction of the Election Officer, for a period of one year immediately preceding the year in which the election is held.'

7. Mr. R. Mohanty, the learned counsel appearing for opp. party No. 1 strenuously contended that the 'arrears' mentioned in the aforesaid provision is confined only to the arrears claimable by way of taxes, fees etc. under the provisions of the Act and not otherwise. We are unable to accede to this contention. The disqualification under Section 16 (1) (vi) is based on the salutary principle that the Chairman or a Councillor of the Municipal Council shall not be under pecuniary obligation to the municipality so that he can be expected to discharge his functions uninfluenced by any other considerations. The provision speaks of ''arrears of any dues payable to the municipality'. This expresion in our opinion, covers not only arrears which are recoverable under the provisions of the Act, but other arrears also. The meaning of the word 'arrears' would ordinarily be what is ascertained due and has remained unpaid. It pre-supposes a time fixed for payment of a sum of money and the lapse of time thereafter for payment --vide Stroud's Judicial Dictionary, Third Edition, Vol. 1. In the Jowitt's Dictionary of English Law, Second Edition, Vol. 1 by John Burke, arrears has been defined to mean money unpaid at the due time. Thus, it would appear that any ascertained sum due to the municipality which has not been paid at the due time is an arrear within the expression 'arrears of any dues payable to the municipality.' Whatever may be the basis or source of the liability the essence of the matter is that the liability has taken the shape of an ascertained sum of money payable to the municipality. We accordingly hold that an advance taken by a person out of the municipal funds which has not been adjusted or refunded at the due time would be an arrear within the expression 'arrears of any dues payable to the municipality'.

8. In the present case, the claim made by the municipality is in respect of liability for the advance of Rs. 5,000/- taken out of the municipal cash for purchase of a tractor-cum-trailor. The liability is not admitted by opp. party No. 1. His case was that he purchased the tractor-cum-trailor and other machine parts from the New Bharat Trading Co. at Calcutta for a sum of Rs. 4,500/- and spent the balance amount of Rs. 500/- towards his T. A. for journey to Calcutta and other miscellaneous expenses. During his evidence in Court he stated that he submitted a consolidated bill for Rs. 795.40 Which included his T. A., D. A. and other incidental charges and after adjustment of Rs. 500/- a sum of Rs. 295.40 was paid to him under voucher No. 194 dated 15-11-1962. This evidence is supported by the entry dated 15-11-1962 made in the cash book of the municipality (Ext. A-18). The entry shows that a sum of Rs. 295.40 as per voucher No. 194 was paid to O. P. No. 1 towards his T. A. bill. This voucher was called for by the Tribunal but the municipality failed to produce the same. It was not shown either by the petitioner or the municipality that the amount paid to O. P. No. 1 under Ext. A-18 was not for the purpose of journey to Calcutta for purchasing a tractor but for some other purpose. It is in the evidence of O. P. No. 1 that the tractor and the trailer were received and used by the municipality and were subsequently sold when they became unserviceable. It also appears from his evidence that the New Bharat Trading Co., at Calcutta submitted its bill to the Bargarh Municipality after deducting the sum of Rs. 4.500/- paid as advance and the municipality paid the amount of the bill after adjustment of the advance of Rs. 4,500/-. It appears that for the first time on 16-3-1978 O. P. No. I received a letter (Ext. 1) from the Executive Officer, Bargarh Municipality to the effect that the amount of Rs. 5,000/-taken by him as advance for purchase of tractor-cum-trailor had remained unadjusted in the accounts of the municipality and he sent a reply on 30-3-1978 vide Ext. 2. In reply he stated that as it was an incident which took place eighteen years back it was difficult for him to say anything definitely without inspection of the records of the municipality. After inspection of the connected records, he seat a reply on 29-9-1978 giving details of the expenditure. The matter was referred to Government by the municipality. Being called upon by the Government, O. P. No. 1 went with the Executive Officer of the municipality to the Secretariat for discussion. After discussion, the State Government in the Urban Development Department accepted his submission regarding adjustment of the dues and communicated their decision to the municipality by their letter (Ext. 6) which reads as follows:

ELECTION URGENT

Government of Orissa

Urban Development Department

No. AR-M-2/75. ----------/UD., Bhubaneswar

the January 1979.

From

Shri P. Mohanty,

Special Officer to Government.

To

The Executive Officer, Bargarh

Municipality.

Sub.:--Adjustment of advance given to Sri Sewaram Pansari, Ex-Chairman, Bargarh Municipality.

Sir,

I am directed to invite a reference to your letter No. 2702 dated 18-11-1978 on the above subject and to say that the Finance Department (L. F A.) has suggested that the stand taken by the Ex-Chairman has to be accepted by the Municipal Council and compliance to that effect reported to Audit after which the objection can be dropped.

Yours faithfully,

Sd/-Special Officer to Government.'

A copy of Ext. 6 was forwarded to O. P. No. 1 for his information. The Council had been dissolved by the time Ext. 6 was received from the State Government and the S. D. O., Bargarh was discharging the functions of the Council. Ext. 6 was put up before the S. D. O. but he did not take any action as suggested by Government. The S. D. O. who was also the Election Officer stated that to his knowledge there was no adjudication by any authority on the question of outstanding amount against opp. party No. 1. He admitted that no surcharge proceeding was started against O. P. No. 1 for realisation of the amount alleged to be outstanding against him.

9. The impugned order was passed by the Tribunal on the clear findings of fact that opposite party No. 1 was not in arrears of any dues payable to the municipality and that he did not suffer from the disqualification under Section 16 (1) (vi) of the Act. The findings of fact recorded by the Tribunal are based on appreciation of evidence and cannot be interfered with by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. In regard to a finding of fact recorded by a Tribunal a writ of certiorari can be issued only if in recording such finding the Tribunal has acted on evidence which is legally inadmissible or has refused to admit admissible evidence or if the finding is not supported by any evidence at all, because in such cages the error amounts to an error of law. The impugned order does not suffer from any such infirmity. The findings of the Tribunal are supported by the evidence as indicated above. This Court cannot re-appraise the evidence and substitute its own finding as long as the finding is based on relevant evidence and is not shown to be perverse.

10. In the premises aforesaid, the writ application is devoid of any merit and it is accordingly dismissed with costs, hearing fee being assessed at Rs. 200/- (two hundred). The stay of election ordered on 7-12-1979 on admitting the writ petition will now stand dissolved and election will proceed according to law.

B.N. Misra, J.

I agree.


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