Gangubai Laxman Bansode And Ors. vs State Of Maharashtra And Ors.
2007 Latest Caselaw 905 Bom

JUDGMENT

S.B. Deshmukh, J.

1. This petition takes an exception to the order passed by the learned Additional Divisional Commissioner in Appeal No. CR/55/2006, dated 14-9-2006.

2. The facts necessary for consideration of this writ petition, may be summarised as follows:

(A) The elections of Gram Panchayat Asarkheda, Tq. Badnapur, District Jalna took place on 23-10-2005. Nominations were to be filled in on 8- 10-2005. The date of nominations is important. In the said elections, seven members were declared elected, including the petitioners.

(B) Respondent No. 7 - Dagduba Sakharam Hiwale - addressed a communication to the learned Collector, Jalna dated 22-11-2005. By this communication, declaration was sought that the petitioners election is illegal and further relief of quashing and setting aside the election was sought.

(C) Learned Additional Collector, Jalna by communication dated 30-11-2005 informed respondent No. 7 that his request cannot be acceded to. He was advised to file appropriate proceeding under Section 15 of the Bombay Village Panchayats Act, 1958 ("said Act") before the competent Civil Court. It was also added in the said communication that the file with the office of Additional Collector stands closed.

(D) Respondent No. 7, thereafter, again filed an application under Sections 14 read with 16 of the said Act on 20-12-2005. In this application, he sought reopening of the proceeding and disqualification of the petitioners under Sections 14 read with 16 of the said Act.

(E) Learned Additional Collector, Jalna after issuing notices to the parties, held an enquiry. After hearing the parties, it was declared that the petitioners have attributed the disqualification and three posts of members of the village panchayat have fallen vacant. Tahsildar, Badnapur was directed to take appropriate steps in accordance with the provisions of the said Act.

(F) This order of the learned Additional Collector, dated 18-3-2006 was subject matter of an appeal before the learned Additional Commissioner, Aurangabad being Appeal No. 55 of 2006 and after hearing the parties, it came to be dismissed on 14-9-2006. These two orders are subject-matter of the present writ petition.

3. Initially, after hearing the petitioners, the respondents were put on notice for final hearing of the writ petition at the stage of admission itself. In this view, I heard the parties at length. R and P from the authorities was also called for, which has been made available.

4. Learned Counsel for the petitioners has invited my attention to the communication addressed by respondent No. 7. From the file, it appears that the said communication is of 22-1-2005. It is under the signature of respondent No. 7. According to Learned Counsel for the petitioners, this communication was heard, considered, decided and disposed of by the learned Additional Collector. He referred Annexure "A", communication addressed to respondent No. 7 by learned Additional Collector, dated 30-11-2005. His contention is two fold. First, grievance raised by respondent No. 7 was considered, rejected and the file was closed. Learned Additional Collector, therefore, does not have power and jurisdiction to entertain another similar grievance raised by respondent No. 7 by the application dated 20-12-2005. Secondly, the communication dated 30-11-2005 under the hands of Additional Collector operates as res judicata and therefore, subsequent application filed by respondent No. 7 should not have been entertained by the Additional Collector. Learned Counsel for the petitioners has also addressed the Court on merits.

He has invited my attention to no dues certificates alleged to have been issued by the Village Development Officer, at the time of submission of nomination papers by the petitioners. According to him, findings of the authorities against the petitioners regarding default in payment of house tax factually is incorrect. He, therefore, seeks quashing and setting aside the orders passed by the authorities, impugned in the writ petition.

5. Shri Salunke, learned Advocate for respondent No. 7 submits that Annexure "A" dated 30-11-2006 is merely a communication and it is not the judgment delivered by the competent authority i.e. learned Additional Collector, Jalna. He placed reliance on the judgment of the Apex Court in the matter of Pandurang Ramchandra Mandlik v. Smt. Shantabai Ramchandra Ghatge .

6. I have also heard learned Assistant Government Pleader appearing on behalf of State and its authorities.

An interesting question in this petition is in relation to the communication/order (Annexure "A") alleged to have been passed by the learned Additional Collector. It is, at this stage, apropos to refer to the provisions laid down under Sections 14(1)(h) Explanation 2 and Section 16 of the said Act. It reads as under:

Section 14. Disqualifications. (1) No person shall be a member of a panchayat, or continue as such, who-

(h) fails to pay any tax or fee due to the panchayat or the Zilla Parishad within three 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; or.

Explanation 2. - For the purpose of clause (h)-

(i) 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.

(ii) failure to pay any tax or fee due to the panchayat by a member of an undivided Hindu family, or by a person belonging to a group of unit, the members of which are by custom joint in estate or residence, shall be deemed to disqualify all members of such undivided Hindu family or as the case may be all the members of such group or unit.

Section 16. Disability from continuing as member.-

(1) If any member of a panchayat.-

(a) who is elected or appointed as such, was subject to any of the disqualifications mentioned in Section 14 at the time of his election or appointment, or

(b) during the term for which he has been elected or appointed, incurs any of the disqualification, mentioned in Section 14, he shall be disabled from continuing to be a member, and his office shall become vacant.

(2) If any question whether a vacancy has occurred under this section is raised by the Collector suo motu or on an application made to him by any person in that behalf, the Collector shall decide the question as far as possible within sixty days from the date of receipt of such application. Until the Collector decides the question, the member shall not be disabled under Sub-section (1) from continuing to be a member. Any person aggrieved by the decision of the Collector may, within a period of fifteen days from the date of such decision, appeal to the State Government, and the orders passed by the State Government in such appeal shall be final.

Provided that, no order shall be passed under this sub-section by the Collector against any member without giving him a reasonable opportunity of being heard.

Bare look to Section 14 of the said Act makes it clear that it refers to disqualification of a member of Gram-panchayat. Such disqualification is in respect of election or continuation as elected member of the village panchayat. In the case on hand, we are concerned with Clause (h) of the said section. It 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 or the Zilla Parishad within three 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. Clause (h) has to be read along with Explanation 2. This explanation is consisting of two clauses. First clause states 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 the nomination of candidates and the second clause states that, failure to pay any tax or fee due to the panchayat by a member of an undivided Hindu family, or by a person belonging to a group of unit, the members of which are by custom joint in estate or residence, shall be deemed to disqualify all members of such undivided Hindu family or as the case may be all the members of such group or unit.

Reading these clauses of Explanation 2 of Clause (h) of Sub-section (1) of Section 14 of the said Act, following can be said to be the ingredients:

(i) Failure of payment of tax or fee due to the panchayat or Zilla Parishad.

(ii) Such failure should be within a period of three months from the date on which the amount of such tax or fee is demanded by the Gram Panchayat.

(iii) Such failure in payment of house tax or fee shall be in relation to service of such bill of tax or fee to such person holding the office of gram panchayat.

(iv) In relation to election, such payment of house tax or fee has to be by the person/candidate concerned prior to the date prescribed for the nomination of candidates.

(v) Non-payment of tax and fee due to the panchayat by a member of undivided Hindu family or by a person belonging to group or unit shall operate against all and every member of the family.

(vi) Un-divided Hindu family contemplated is of members who are by customs joint in estate or residence.

7. The provisions laid down under Section 16 of the said Act creates a disability from continuing as a member. Clause (a) of Sub-section (1) of Section 16 provides that, a member of a panchayat, who is elected or appointed as such, was subject to any of the disqualifications mentioned in Section 14 at the time of his election or appointment, suffers such disabilities. Clause (b) of Sub-section (1) of Section 16 provides that, during the term for which he has been elected or appointed, incurs any of the disqualification, mentioned in Section 14, he shall be disabled from continuing to be a member, and his office shall become vacant. In other words, the date relevant for avoiding such disability is prior to date of filling in nomination by a such a person/candidate and the position has to be maintained by the person concerned or the member concerned during entire term of holding the position as elected member of the gram panchayat. In the interregnum, if it is established that the elected member or such person suffers such disqualification under Section 14 of the said Act, he stands disqualified under Section 16 of the said Act. Section 16(2) refers to the jurisdiction vested with the Collector to decide any question whether vacancy has occurred under this section. Section 16 has to be read with Section 14 for the reason that the disqualification has been enlisted in Section 14. Section 16(2) confers powers on the Collector for deciding such a question. Such power can be exercised by the Collector suo motu under Section 16(2) or on the application made to him by any person in that behalf. The time limit is imposed on the Collector to decide such question as far as possible within sixty days from the date of receipt of such application, if the application is filed by any person under Section 16(2) of the said Act. Safeguard in the interest of person holding the elective office as member of gram panchayat is also in built in Section 16(2) of the said Act. It provides that unless the Collector decides the question, member shall not be disqualified under Section 16(1) from continuing to be a member. Further remedy of an appeal is also made available by Section 16(2), to be filed within the period of fifteen days from the date of such decision by the State Government. The orders passed by the State Government in such appeal are made final. Powers are delegated to the Divisional Commissioner. Section 16(2) also contains a proviso that no such order shall be passed under Section 16(2) by the Collector against any member without giving him a reasonable opportunity of being heard. Thus, Section 16(1), in short, provides a disability from continuing as a member and Section 16(2) provides for a mechanism for deciding a question, as to whether vacancy has occurred under Section 16 of the said Act.

Thus, disqualification of a person holding the elective office of gram panchayat and vacancy therein is a question which has to be decided by the Collector after affording reasonable opportunity of being heard to a member concerned. Section 16 also contemplates impliedly hearing to the applicant, for the reason this section gives power to the Collector to decide such question suo motu or on an application made to him by any person in that behalf.

8. After considering the provisions laid down under Section 14 and Section 16 of the Act, I have considered the submissions on behalf of Learned Counsel for the respective parties. From R and P, it appears that application dated 22-11-2005 was addressed by respondent No. 7 to the Additional Collector. This was registered as Gram Panchayat Appeal No. 40 of 2005. Original proceeding shows an endorsement on this application as; "Direction to file appropriate proceeding under Section 15 to Civil Court. File closed. - dated 23-11-2005." This application shows that it was filed by respondent No. 7. Village Development Officer, Gram Panchayat Asarkheda and petitioners are shown as non-applicants. This application seems to have been filed under Sections 14 and 16 of the said Act. This application is branded as an appeal since beginning till the end. Prayer was made for allowing this appeal and declaration of election of the petitioners as illegal and for quashing and setting aside the said election. From the file, it is vivid that issuance of notice of this application/appeal was not directed by the Additional Collector. Not only petitioners herein but respondent No. 7 was also not heard by the Additional Collector before passing this order dated 23-11-2005. In view of the provisions laid down under Section 16(2) of the said Act, in my considered opinion, such an endorsement made by the Additional Collector cannot be said to be a decision of a question of disqualification and occurring vacancy within the meaning of Section 16(2) of the said Act. This endorsement cannot be said to be an order under Section 16(2) of the said Act. Obviously, therefore, it cannot be said that the application filed by respondent No. 7 on 20-12-2005 could not have been entertained by the Collector. In my view, since there was no adjudication on merits in relation to Gram Panchayat Appeal No. 40 of 2005, there is no question of application of Section 11 of the Code of Civil Procedure. No issue was framed, no evidence was led and the parties were not heard and therefore, endorsement on this application/appeal No. 40 of 2005 cannot be said to be a judgment. At this stage, judgment relied upon by Shri Salunke, learned Advocate can be justifiably referred to.

In the case of Pandurang (supra), the Apex Court has held that the expression heard and finally decided in Section 11 means a matter on which the Court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter. It is essential that it should have been heard and finally decided. What operates as res judicata is the ratio of what is fundamental to the decision but it cannot be ramified or expanded by logical extension.

9. As noted above, the Collector is vested with the power and jurisdiction under Section 16(2) to decide a question whether a vacancy has occurred and a member is suffering disability under Section 16(1) of the said Act. Since there was no decision on merits, in relation to Gram Panchayat Appeal No. 40 of 2005, it cannot be said that the Additional Collector does not have power and jurisdiction to entertain subsequent application by respondent No. 7 filed on 20-12-2005. I have also perused this application. It appears that based on this application, notices were issued to the respondents therein and the Additional Collector proceeded with hearing of the application filed by respondent No. 7.

10. Learned Counsel for the petitioners has invited my attention to no dues certificates alleged to have been issued by Village Development Officer. First of such certificate is Annexure "C" in relation to petitioner No. 2 Satish. If this certificate is read and understood in its proper perspective, it clarifies that petitioner No. 2 was not in arrears of house tax so far as houses which were standing in his name on the date of issuance of certificate. Here catch is that Section 14(1)(h) read with explanation 2 speaks about disqualification in respect of non-payment of house tax by member of the joint Hindu family. It may be a case that petitioner No. 2 was not having any arrears in relation to houses or house standing in his name on the date of issuance of this certificate but that cannot be a good certificate in view of Section 14(1)(h) explanation 2 on the premises that the Additional Collector and Additional Commissioner have recorded a finding in relation to arrears of house tax of houses/house standing in the name of member of joint family of Satish. Same is the case with another petitioner No. 3 - Narayan. A certificate of petitioner No. 1 Gangu is also annexed with the petition. This certificate also gives a clean chit in relation to payment of house tax by petitioner No. 1 in her personal capacity. These certificates, therefore, in my view, are not helpful to the petitioners to record a finding that the petitioners are not defaulters in view of Section 14(1)(h) read with explanation 2 of the said Act.

Apart from these alleged no dues certificates, I have perused the finding of the Additional Collector as well as Additional Divisional Commissioner. The Additional Collector while deciding the issue has considered the cases of the petitioners separately and individually. He has recorded a finding that petitioner No. 1 is a member of joint family and Shri Bapu, her father in law, is in arrears of tax to the tune of Rs. 2886/- as mentioned in the certificate. Status of petitioner No. 1 as daughter in law of Bapu has also been considered by him and on this premise, the finding has been recorded against petitioner No. 1. Same is the case in relation to petitioners 2 and 3. Status of a person as a member of joint Hindu family is a question of fact. Such question of fact is decided by the authorities below on the basis of material on record. On my query, Learned Counsel for the petitioners fairly concedes that no material was produced before the Additional Collector regarding status of the petitioners as a member of joint Hindu family. The default in payment of house tax and certificates of bill has been considered by the Collector. Date of certificates of bill is referred to 21-4-2005. The material on record accepted by the Additional Collector and Additional Commissioner shows that the payment of house taxes in relation to joint Hindu family was still due towards gram panchayat till the decision of the application.

After consideration of the submissions on behalf of the petitioners and material on record, in my view, view taken by the Additional Collector in relation to default and/or payment of arrears of house tax against the petitioners cannot be said to be perverse.

11. Learned Counsel for respondent No. 7 submits that so far as disposal of earlier application by communication dated 30-11-2005 was not the ground raised by the petitioners before the Additional Collector. The petitioners have participated in the proceeding before the Additional Collector without raising such a ground. Advocate for the petitioners, however, submits that such a ground was raised before the Additional Divisional Commissioner. He is justified in his submissions. Apart from this aspect, I have, in foregoing paragraphs, has recorded a finding that the communication dated 30-11-2005 cannot be said to be an order or decision of question under Section 16 of the Act. I see no grounds to interfere in extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India.

12. In the result, writ petition stands dismissed. Ad-interim relief, if any, earlier granted stands vacated. No order as to costs.

R and P is returned to learned Assistant Government Pleader across the table.