*1* wp.5461.10.922.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5461 OF 2010 Vilas Maruti Kardile and others. ..Petitioners -Versus- Vasudev Shrikisan Chavan and others. ..Respondents .......... Mr.Rahul S. Kate, for the Petitioners. Mr.Jaydeep S. Deo, for the Respondent No.1. Mr.S.R.Nargolkar, AGP, for the Respondent Nos.3 to 5/State. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 16th June, 2011. P.C.: 1 Heard. 2 Rule. The Respondents waive service. By consent of parties, heard forthwith. 3 At the stage of issuance of notice itself a detailed order has been made regarding the factual controversy. 4 By this Writ Petition under Articles 226 and 227 of the Constitution of India, the Petitioners have impugned the order passed by the Additional Commissioner, Pune Division, Pune dated 29.06.2010 and the order dated 24.01.2010 passed by the Collector, district : Pune. 5 The proceedings arise out of the disqualification of the Petitioners under Section 14(1)(h) of the Bombay Village Panchayats Act, 1958 (for short “the Act”). Before proceeding further it would be advantageous to reproduce the said section. *2* wp.5461.10.922.sxw Section 14(1)(h):- “(1) No person shall be a member of a Panchayat 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;” 6 It is the case of the Petitioners that they are elected members of the Gram Panchayat, Saradwadi, district : Pune. The elections of this Gram Panchayat were held on 16.03.2008. There were 09 members elected in the election. It is contended that even though they were elected on 16.03.2008, the first meeting of the newly elected members was held on 16.07.2008 and at this meeting the Petitioner No.1 was elected as Sarpanch and the Petitioner No.2 was elected as Up-Sarpanch. It is submitted that before taking charge as members of the Gram Panchayat, the then Sarpanch Mrs.Kamal Sarode and the Gramsevak Mr.Hanumant Chavan issued the bills to the Petitioners in the month of April, 2008. After setting out the details of the bills, it is contended that as far as the Petitioner Nos.3 and 4 are concerned, the bills were issued in the name of the wife of the Petitioner No.3 and the father-in-law of the Petitioner No. 4. The Petitioners claimed to have made payments as per the bills on 1.11.2008, 10.11.2008, and 26.11.2008, yet, on 08.12.2008 the Respondent No.1 made an application to the Respondent No.3 alleging therein that the Petitioners be disqualified in terms of the above statutory provision. A report of the Chief Executive Officer, Zilla Parishad, Pune was called for and after hearing both sides, an order dated 24.01.2010 was passed by the Respondent No.3 holding that the Petitioners became members from the first meeting i.e. 16.07.2008 and therefore, as per the Government Resolution dated 06.04.1996, they were not defaulters. *3* wp.5461.10.922.sxw 7 Aggrieved by this order of the Respondent No.3, the Respondent No.1 preferred an appeal before the Respondent No.4. On that appeal, the remarks of all Petitioners were called for. That appeal was heard by the Additional Commissioner, Pune and by the impugned order dated 29.06.2010, he set aside the order dated 24.01.2010. Thus, the order in favour of the Petitioners came to be set aside by the Additional Commissioner necessitating the filing of this Writ Petition. 8 As far as the contention which has been noted by the brother Justice A.S.Oka in detailed order, so also, by brother Justice R.V.More, namely, whether, the Gram Panchayat can issue bills for the whole year in advance or whether, it can only issue quarterly bills, a Reference was made to the Division Bench on account of conflicting views rendered in two decisions, namely, in the case of Anagha Ajit Bhatkar v/s State of Maharashtra, 2006 (6) Mh.L.J. 13 and in the case of Ajitsingh Bhimsingh Deore v/s Sahebrao Bhata Wagh & others, 2009(6) BCR 88, which conflict was noted by Justice A.S.Oka and he made certain prima facie observations in the order dated 15.09.2010. 9 In the light of this reference which had been made by Justice A.S.Oka, a Division Bench of this Court rendered its opinion on 18.04.2011. The questions referred were answered by holding that the bill demanding tax for the entire financial year is legal and Rule 8 does not contemplate that the tax liability is not yearly and that tax is payable on a quarterly basis for each year. 10 In my view, this order of the Division Bench is binding on me and it would settle the controversy at least to a greater extent, if not entirely as argued by Mr.Kate. However, Mr.Kate submits that this Writ Petition be adjourned or in any event admitted and kept pending because the Petitioners are challenging the opinion given by the Division Bench by *4* wp.5461.10.922.sxw approaching the Honourable Supreme Court of India. In my view, it would not be proper to keep the petition pending only because the Petitioners have decided to challenge the said opinion, even if the Special Leave Petition is filed that by itself does not mean that the opinion looses its binding character. Therefore, the request of Mr.Kate is rejected. 11 Mr.Kate submits that there are surviving points and contentions and they would be based on the conclusions that have been rendered by the learned Collector. According to Mr.Kate, the Additional Commissioner was in complete error in interfering with the order of the Collector. Inviting my attention to the observations and conclusions of the learned Additional Commissioner, it is urged by Mr.Kate that the Additional Commissioner has held that the term of the office of the Petitioners would commence from 16.07.2008 and not from the date when the election results were declared, namely, 16.03.2008, yet, the Additional Commissioner held that Section 28 will have to be read together with Section 14(1)(h). It would mean that when the members started functioning or when the term of their office commenced, is not of any relevance. Mr.Kate submits that the conclusion of the Additional Commissioner that both provisions will have to be read together, is erroneous. 12 The second submission of Mr.Kate is that the bill in this case was dated 18.04.2008 that was received on 27.04.2008. The entire amount was paid by 01.11.2008. The entire amount was paid before filing of the application by the Respondent No.1, that application was filed on 08.12.2008, therefore, the conclusion that the Petitioners are disqualified is erroneous. 13 On the other hand, it is submitted by Mr.Deo, learned counsel appearing for the contesting Respondent No.1 and Mr.Nargolkar, learned *5* wp.5461.10.922.sxw AGP that only conclusion that can be arrived at by the Additional Commissioner is the one arrived by him. His order does not suffer from any perversity or error apparent and it is in consonance with the legal principles. The Additional Commissioner was in no error in concluding that the Petitioners are disqualified under Section 14(1)(h) of the Act. 14 For properly appreciating the rival contentions, Section 14(1) (h) which has been reproduced above must be noted. A bare perusal of sub-section (1) indicates that no person shall be a member of a Panchayat continue as such. Even though the word “or” is absent, if the section is read in its entirety, it would indicate that the disqualification is from becoming a member or continuing as a member of the Panchayat. Explanation-2 below Section 14 would clarify this position, which reads thus:- “Explanation 2:- For the purposes 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 or 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.” 15 The explanation states that a person shall not be deemed to be disqualified if he has paid the amount prior to the day prescribed for the nomination of candidates. Sub clause (ii) thereof is not material for the present Writ Petition. Therefore, the disqualification can be incurred even during the term of office and the relevant date is the day prescribed for nomination of candidates. It would not be, therefore, possible for me to hold as contended by Mr.Kate that the Petitioners are not disqualified. *6* wp.5461.10.922.sxw Even if the bills are stated to be raised in April, 2008, that is after the election, but by virtue of Section 14(1)(h) of the Act, if the sum for which a writ of demand has been served is not paid within 90 days from the date of such service, the disqualification of the defaulter is provided. Thus, on the bills being raised this sum has to be paid or else the consequences will follow. Therefore, it would not be proper to hold that the provision in question is not attracted or that the Petitioners are not defaulters. The disqualification is incurred even sofar as the continuance of the Petitioners as members is concerned. Therefore, the Petitioners are disqualified as the bills raised on them in the month of April, 2008 were cleared as late in November, 2008. Prior thereto on 16.03.2008 the election results were declared, but the Petitioners did not pay the bills even till the meeting which was held on 16.07.2008 and they paid the bills thereafter. It is not their case that the bills were not received or the demand was made. They only contended that the provision is not attracted in their case because the first date of the meeting was 16.07.2008. The only argument was that the bill was raised prior thereto that is in the month of April, 2008. Therefore, they were yet to function as members of the Gram Panchayat. Hence, any bill that is served on them prior to such date of functioning, even if not cleared, will not attract any disqualification. 16 To my mind, this argument has been rightly rejected by the learned Additional Commissioner. If the argument of Mr.Kate is accepted that would mean that the disqualification under Section 14(1)(h) of the Act would, as far as the person who is continuing as member, must be incurred on the date of commencement of term of office as prescribed in Section 28 of the Act. Section 28 which has been relied upon in this case, reads thus:- “28. Commencement of term of office:- (1) The term of office of the members elected at a general *7* wp.5461.10.922.sxw election or appointed under sub-section (3) of Section 10 shall be deemed to commence on the date of the first meeting of the Panchayat. The first meeting of the Panchayat shall be held on a day fixed by the Collector as soon as may be after the publication of the names of the elected members under Section 10; and such date shall not-- (i) in the case of first meeting after general election, be later than the day immediately following the day of expiry of the term of outgoing members; and (ii) in the case of election held after the dissolution of the Panchayat, be later than the date of expiry of the period of six months from the date of dissolution of the Panchayat.” 17 A bare perusal of this Section 28 indicates that it is providing for commencement of term of the office. The term of office of the members elected at a general election or appointed under sub-section (3) of Section 10 shall be deemed to commence on the date of the first meeting of the Panchayat. This is a provision dealing with the commencement of the term of office. The disqualification that is incurred in the instant case is incurred on account of non payment of taxes on receipt of the bill which has been raised and duly served. The law postulates that the bill has to be cleared within three months from the date on which the amount has been demanded provided the bill for the purpose is duly served on the member. The demand for payment of taxes is made in terms of Section 129 which enables recovery of taxes and other dues of the Village Panchayat. In such circumstances, if the default is for failure to pay the taxes or dues to the Village Panchayat within three months from the date on which such demand is made and the bill for this purpose is served on him, then, it will not be possible to whittle down the rigour of this provision and compare it with Section 28 which deals with the commencement of the term of office and covers distinct aspect. *8* wp.5461.10.922.sxw Therefore, the Additional Commissioner was in no error in rejecting the submission of applicability of Section 28 of the Act. 18 That the bill was not cleared within the period prescribed and that section 14(1)(h) is very clear, therefore, there is no substance in the second contention of Mr.Kate that the bills having been paid in November, 2008 and prior to the date of the application made by the Respondent No. 1, the Petitioners cannot be said to be disqualified. That is an argument which cannot be said to be based on any provision of the Act. The period of disqualification is provided in Section 14(1)(h) and upon expiry thereof, a member invites an action that is contemplated by section 16(2) of the Act. Therefore, the payment made by the Petitioners prior to the date of the application preferred by the Respondent No.1 is of no consequence and cannot assist the Petitioners in any manner. That payment is not made within three months from the date of the first meeting i.e. 16.07.2008. 19 Having found that the Additional Commissioner has acted in terms of the legal provisions in holding that the Petitioners are disqualified and his order is not suffering from any perversity or error apparent on the face of record, then, there is no alternative, but to dismiss this Writ Petition. Rule is, therefore, discharged but without any order as to costs. 20 At this stage, Mr.Kate submits that although the Special Leave Petition is filed in the Honourable Supreme Court, but to enable the Petitioners to obtain appropriate interim orders therein, ad-interim relief granted by this Court on 21.07.2010 be continued. 21 This request is opposed by the learned counsel appearing for the Respondents. 22 After having concluded that there is no substance in all *9* wp.5461.10.922.sxw contentions and submissions that have been placed for my consideration and the Petitioners being clearly disqualified; the ad-interim order as made cannot be continued. However, all that can be directed is that for a period of eight weeks from today, the vacancies caused by the disqualification of the Petitioners shall not be filled in. This order is without prejudice to the rights and contentions of all parties. 23 Writ Petition is dismissed. Rule discharged. No costs. (S.C. Dharmadhikari, J)