Rameshwar S/O Ramaji Rewatkar And ... vs Dilip S/O Tulsiram Rewatkar And ...
2006 Latest Caselaw 693 Bom

JUDGMENT R.M.S. Khandeparkar, J.

1. Heard finally by consent.

2. This appeal arises from the order passed by the learned Single Judge on 28-2-2006 in W.P. No. 838 of 2006. By the impugned order the learned Single Judge has dismissed the said writ petition which was filed challenging the orders dated 30-5-2005 and 27-1-2006 passed by the Additional Collector Nagpur and Divisional Commissioner, Nagpur, respectively, allowing the application under Section 14(1)(h) of the Bombay Village Panchayats Act, 1958 (hereinafter called as the said 'Act') filed by respondent No. 1 herein and thereby had declared the appellants to have been disqualified to continue to be the members of Gram Panchayat Dodki.

3. Few facts relevant for the decision are that the appellants were elected in November 2003 as members of Dodki Gram Panchayat. The bills relating to the Panchayat taxes came to be issued on 1-8-2004 and the same were served upon the appellants on 3-8-2004. In terms of the bills, the last date for payment of taxes was 31-8-2004. The appellants herein paid the taxes payable under those bills on 8-11-2004. The respondent No. 1 herein on 17-11-2004 filed an application under Section 14(1)(h) of the said Act contending that the appellants stood disqualified to continue to be the members of the Gram Panchayat for having failed to pay the taxes within the period of three months from the date of demand of the tax by the Panchayat. After the necessary enquiry and after hearing the parties, the Additional Collector upheld the contention sought to be raised by the respondent No. 1 and declared that the appellants herein to have been disqualified to continue to be the members of the said Gram Panchayat. In the appeal carried against the said order, the Divisional Commissioner confirmed the said decision of the Additional Collector. Aggrieved by the same, the appellants herein preferred W.P. No. 838 of 2006 which came to be dismissed by the impugned order.

4. Apart from an application for amendment to raise additional grounds having been filed by the appellants, the learned Advocate appearing for the appellants, while specifically giving up all other grounds which have been mentioned in the memo of appeal, submitted that the orders passed by the authorities below cannot be sustained considering the provisions of law comprised under Section 14(1)(h) read with Section 129(1) of the said Act. He sought to raise the said point, being purely a question of law without any requirement of any further facts being placed on record. According to the learned Advocate for the appellants, the Section 129 of the said Act requires a bill to be issued specifying the amount and the date on or before which the said amount is to be paid by the tax payer. On such bill being issued, if a member of the Panchayat fails to pay such dues within a period of three months from the date of demand, as specified in the said bill, he can be said to have incurred disqualification in terms of the provisions comprised under Section 14(1)(h) of the said Act. Drawing our attention to clause (h) of Section 14(1) of the said Act, he submitted that the period of three months is to be counted from the date of demand and the date of demand is to be understood as the last date of demand as specified in the bill issued in terms of the provisions of law comprised under Section 129 of the said Act. According to the learned advocate, in the case in hand, since the bill dated 1-8-2004 was served upon the appellants on 3-8-2004 and as the bill specified the last date of demand to be 31-8-2004, the period of three months was required to be counted from the said 31st day of August 2004 and having so counted it would have expired on 30-11-2004. Undisputedly, the tax was paid on 8-11-2004 and, therefore, it was paid within the period of limitation prescribed under Section 14(1)(h) and, therefore, the appellants could not have been declared as having incurred disqualification under the said provision of law. Both the authorities below having totally ignored this aspect and having proceeded to count the period of three months from the date of service of the bill, have acted contrary to the provisions of law comprised under Section 14(1)(h) read with Section 129 of the said Act and the same was totally ignored by the learned Single Judge while rejecting the writ petition.

5. The learned advocate for the respondents, on the other hand, submitted that the appellants are not entitled to raise the point which was not raised before the authorities below and even before the learned Single Judge and, therefore, the appellants are not entitled to raise the said point in this appeal for the first time, as the same was never raised earlier. Without prejudice to he submissions, the learned advocates for the respondents have submitted that the period of three months contemplated under Section 14(1)(h) is to be counted from the date of service of bill demanding the tax. In that regard attention has been drawn to the concluding portion of the said provision of law. According to the learned advocates, Section 129 undoubtedly specifies that the bill to be issued should disclose the amount due and the period within which such amount is to be paid by the tax payers. But in case of issue relating to disqualification of the members of the Gram Panchayat, the legislature has prescribed the specific period of limitation of three months for the payment of such taxes by such members and the provision in that regard under Section 14(1)(h) specifically provides that the amount should be paid within three months from the date of demand and the date of demand has to be necessarily from the date of bill which has been served. According to the learned advocates though discretion is given to the Panchayat to fix the period for payment of tax by the tax payers, the statute specifically provides three months period to be counted from the date of service of the bill for the purpose of payment of tax by the Panchayat member.

6. The learned advocate for the appellants has sought to rely upon the decision in Raddulal v. Wasudeo reported in 1964 Mh.L.J. Note 50, whereas the learned advocates for the respondents have sought to rely upon the decisions in the matter of Tarabai Krushnadas Mathankar v. State of Maharashtra reported in 1990 Mh.L.J. 158 and Suvarna Prakash Patil v. Anil Hindurao Powar reported in 2004(1) Mh.L.J. 1062.

7. It is not in dispute that the point which is sought to be raised to challenge the order of disqualification was not raised at any point of time either before the lower authorities or even before the learned Single Judge. However, the law in this regard is well settled that when the party seeks to raise a purely question of law based on the facts which are already on record and not disputed by the parties, merely because there was omission on the part of such party to raise such point of law at the original stag, will not be a justification to refuse such party to raise such point of law at the appellate stage. As already seen above, the argument sought to be advanced on behalf of the appellants in relation to the ground which is sought to be raised, is based purely on the undisputed facts on record. Being so, merely because the appellants had not raised the said point either before the Additional Collector or before the Divisional Commissioner or even before the learned Single Judge, it would not be just and fair to the appellants not to allow to raise the said point in appeal. Besides, the principle behind Order 41, Rule 33 of the Code of Civil Procedure is clearly to the effect that the appellate court should exercise the appellate power for an appropriate order to be passed on undisputed facts in the matter. Once in the case in hand, the fact that the bill dated 1-8-2004 was served on the appellants on 3-8-2004, the last date for payment of tax was disclosed in the bill as 31-8-2004, and the appellants had paid the tax on 8-11-2004, are not in dispute then the law applicable in such undisputed facts will have to be applied. Merely because there was lapse on the part of the appellants to avail best possible legal advice and on that count to raise such relevant issue before the lower authorities, that by itself cannot come in the way of the appellants to seek proper and fair justice from this Court by drawing attention of this Court to those provisions of law which clearly apply to the matter in issue. Viewed from this angle, therefore irrespective of the fact that the ground was not raised before the Courts below, we are inclined to allow the appellants to raise such point in this appeal. Indeed, the matter was heard extensively on such point itself.

7A. Section 129(1) of the said Act provides that--

when any tax or fee has become due, a panchayat shall, with least practicable delay, cause to be presented to the person liable for the payment thereof a bill for the amount due from him, specifying the date on or before which the amount shall be paid.

(2) If any person fails to pay any tax or fee or any other sum due from him to a panchayat under this Act or the rules on or before the specified date of payment, the panchayat shall cause a writ of demand in the prescribed form to be served on the defaulter.

(3)...

(4) If the sum for which a writ of demand has been served is not paid within thirty days from the date of such service, the panchayat may levy such sum by distraint and sale of the movable property of the default in the prescribed manner.

8. Plain reading of the above provision of law, which deals with the subject of recovery of tax and other dues of the panchayat, would disclose that whenever any amount of tax is due and payable by the tax payer to the panchayat, it is the duty of the panchayat to serve a bill for such amount specifying therein either the period or the date by which the said amount has to be paid. The provision of law clearly requires the panchayat not only to disclose the amount due but to specify the date by which the amount is to be paid by the tax payer to the panchayat. In other words, the bill in relation to the tax to be paid by the tax payer should be clear in respect of two things--one, the amount due from the person to whom the bill is issued and secondly the date by which the said amount is to be paid.

9. Sub-section (2) of Section 129 further strengthens the view we are taking in respect of Sub-section (1) of Section 129, as Sub-section (2) of Section 129 clearly states that it is only upon the failure on the part of the person to whom the bill is issued to pay the amount within the time specified in the bill and that the panchayat can proceed to issue a writ of demand in respect of the tax due and payable. Further, subjection (4) specifies that even after issuing writ of demand, a period of 30 days is to be given to the tax payer to clear the dues. This period of 30 days is to be counted from the date of service of writ of demand upon the tax payer. It is only after failure to clear the dues within 30 days after the service of writ of demand that then panchayat can take recourse to coercive measure to recover the tax dues.

10. Section 14(1)(h) provides that no person shall be a member of a panchayat or continue as such, who fails to pay any tax or fee due to the Panchayat within three months from the date on which the amount of such tax or fee is demanded, and a bill for that purpose should be duly served on him. The provision is in relation to the disqualification of a member of a panchayat. It prescribes one of the eventualities under which a member of the panchayat can incur disqualification to continue to be the member thereof. The eventuality relates to the non-payment of tax or fee due and payable to the panchayat by such member. It prescribes a period of three months as the outer limit to avoid disqualification in case of failure on the part of the member of the panchayat to pay the tax or fee demanded from him as the tax or fee due to the Panchayat from him. The provision specifically refers to the date on which the demand of tax or fee is made as well as it refers to the bill to be served for the purpose of such demand. As already seen above, the entire controversy in the matter is in relation to the date from which the period of three months would commence for the purpose of incurring disqualification under the said clause. While according to the appellants, it would commence from the last date of demand disclosed in the bill for the purpose of payment of dues whereas it is the contention of the respondents that it would relate to the date on which the bill is served upon the member.

11. If one reads clause (h) of Section 14(1), it is at once clear that the expression "within three months" refers to "the date on which the amount of tax or fee is demanded" and not to the date of service of demand notice. Undoubtedly the said expression is followed by further expression "and the bill for the purpose is duly served on him." However, in between these two expressions there is a "coma" followed by a word "and" and these expressions clearly disclose that the period of three months specified in the said clause refers only to the date of demand and not to the date of service of the bill. The provision regarding the bill in the said clause refers to the mode or manner of demand. It does not refer to the date of demand. In fact, as regards the date of demand, there is separate provision in the said Act and that is comprised under Section 129. It is to be borne in mind that Section 129 of the said Act is to be found in Chapter IX which deals with the subject of taxation and recovery of claims. The said Chapter comprises of Sections 124 to 130. Those provisions primarily deal with the power of the panchayat to levy taxes as well as the methodology to be followed for recovery of taxes. In those provisions, Section 129(1) specifically provides the method of issuing the demand notes for recovery of the taxes. The first demand note is in the form of bill. In case of failure to comply with the said demand note, the second stage is of issuing a writ of demand. If after issuance of writ of demand, the tax payer fails to pay the tax, the panchayat is empowered to adopt coercive method as specified therein. In other words, as regards the period during which the demand should be made or demand for tax should subsist and the mode for making such demand is specified in Section 129 of the said Act.

12. For all the tax payers a uniform procedure is required to be prescribed in relation to the payment of tax. The persons who are at the' helm of panchayat, in order to enable them to continue to be in administration of the Panchayat, certain restrictions are imposed and those restrictions are in relation to their obligation to pay the tax irrespective of the fact that the tax due from the tax payers can be recovered even by adopting coercive measures, so that the person who is at the helm of administration of the Panchayat should be able to be held liable to penalty of losing the membership of the Panchayat if he fails to comply with his obligation to pay such tax promptly. Specific provision is made in Section 14(1)(h) of the said Act so that a proper check is maintained in that respect and the members of the panchayat do not commits default in payment of tax and in case they do so, they have to suffer disqualification to continue to be the members of the panchayat. In that regard a specific period of limitation is prescribed to clear the tax dues of the panchayat by such members and for that period of limitation of three months is prescribed under Section 14(1)(h) and it is specified that such period should be counted from the date of demand. However, what should be the date of demand is nowhere described under clause (h) of Section 14(1). It only states that the bill is required to be duly served on the tax payer by the panchayat. Needless to say that the bin has to be served in accordance with the provisions of law and the provisions of law in that behalf are comprised under Section 129. Being so, there was no need for the Legislature and the Legislature has not reiterated the provisions comprised under Section 129 in clause (h) in relation to the date of demand. In other words, to ascertain the date of demand one has to read Section 14(1)(h) with Section 129(1) of the said Act. The date of demand cannot be ascertained or fixed ignoring the provisions, of Section 129(1) of the said Act.

13. The contention that the date of demand should be construed from the service of the bill is totally devoid of substance. Firstly, there is no such specific provision in the said Act to that effect. In case of liability to pay the tax when the statutory provision comprised under Section 129 imposes a duty on the panchayat to make it known to the tax payer the period within which the tax liability is to be cleared, to assume that the service of the bill itself should be considered as the date of demand would clearly be contrary to the provisions: of Section 129 itself. Being so, the mere date of service of bill cannot be construe 1 as the last date of demand.

14. Once the bill issued specifying a particular period for payment of the tax, thereby communicating the tax payer that his tax liability can be cleared on any day during the period prescribed including the last date mentioned therein, it would clearly disclose that the demand for the tax would be on each day of the period mentioned in the bill including the last day of such period.

15. Therefore, it would be the last date of the period that has to be construed as the last date of demand, whenever a period is prescribed for payment of the amount. It would be the last date of demand that would be the date for the purpose of complying the liability in respect of the demand. Bearing in mind the same, clause (h) which specify the period of three months from the date of demand, it will have to be construed as the period from the last date of demand in the bill. For example, if a bill is issued on the first day of the month specifying that that the tax is to be paid by 30th of the said month, the period of three months will have to be counted from the 30th day of that month.

16. In Raddulal's case, the Division Bench of this Court has held that Section 129(3) of the said Act requires a demand of the amount due by presentation of a bill to the defaulter and specifying the date by which the tax is to be paid, and in case of the further failure to pay, to cause a writ of demand to be served on the defaulter, and it is only when there is failure to pay the amount within three months from the date on which the amount of tax or fee was required to be paid in pursuance of the bill presented to such person that will incur disqualification under Section 14(h).

17. The decision of Division Bench in Tarabai's case was on the point as to whether the petitioner therein as a member of an undivided joint Hindu family who was found to be in arrears of Gram Panchayat taxes in the village Khapri for which there is a separate Gram Panchayat, could be held to be disqualified from contesting the election of Gram Panchayat Chikni. The issue as to from what date the period of three months to be counted or what date should be considered as the date of demand for tax of the issuance of the bill were not the subject-matter of decision in the said case. Similarly, in Suvarna Patil's case the requirement of Section 14(h) was fully complied with because the factum of lemand having been made and service of bill as well as failure to pay for more than three months from the date of service and that the amount was not paid till the date of the application filed under Section 14(h) was clearly established. It was held that rigours of Section 14(h) was clearly attracted and therefore the members had incurred disqualification. While in Tarabai's case, it was on totally different issue, in Suvarna Patil's case the facts clearly established the case under Section 14(h). In both these decisions, the issue as to from what date the period of three months should be counted and what should be date of demand were not under consideration. The ratio of the decision has to be understood with reference to the facts of case, the points for consideration and the decision delivered thereon after considering the rival contentions in the matter. The law in that regard is well settled in view of the decision of the Apex Court in Union of India v. Dhanwanti Devi . Considering the ratio laid down in those decisions, both the decisions are of no help to the respondent in the case in hand.

18. Reverting to the facts of the case, once it is not in dispute that the Panchayat had issued the bills dated 1-8-2004 which were served upon the appellants on 3-8-2004, clearly requiring the payment of the tax on or before 31-8-2004, it is apparent that the appellants were at liberty to pay the tax dues latest by 31-8-2004 and, therefore the demand for tax in terms of the said bill continued till 31-8-2004. It is also undisputed fact that the appellants paid the tax on 8-11-2004. Needless to say that the period of three months from 31-8-2004 had expired on 30-11-2004. The tax dues having been paid much prior to expiry of the said period, there was no occasion for the authorities to declare the appellants having incurred disqualification under Section 14(1)(h) of the said Act.

19. For the reasons stated above, therefore, the appeal succeeds. The impugned orders are hereby quashed and set aside and it is declared that the appellants have not incurred disqualification under Section 14(1)(h) of the said Act. There shall be no order as to costs.