1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR LPA No.303/2008 in Writ Petition No.1510/2008 Ashok s/o Kisan Tandulkar Vs. Hasandas s/o Hiraman Sukhdeve and others. ----------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's order Judge's orders and Registrar's order ------------------------------------------------------------------------------------------------------------ Coram : A.P. Lavande & P.D. Kode, JJ. Order reserved on 04thMarch 2009. Order pronounced on 18.3.2009. Heard Mr. C. Kale, learned counsel for the appellant, Mr. N. Patil, learned counsel for respondent no.1 and Mr. A. M. Deshpande, learned AGP for respondent no.2. By this Letters Patent appeal, the appellant takes exception to the judgment and order dated 20.8.2008 passed by the learned Single Judge in Writ Petition No.1510/2008 dismissing the writ petition filed challenging the order dated 12.3.2008 passed by respondent no.2 disqualifying the petitioner under Section 16 (1) (K) of the Bombay Village Panchayats Act, 1958 (hereinafter referred to as “the Act”) for non- payment of house, electric and water taxes. 2 Respondent no.1 filed proceedings under Section 16 (1) (K) of the Act seeking disqualification on the ground that although the bill in the sum of Rs. 6100/- was served on the father of the petitioner towards house electric and water taxes, the same was not paid in time, but was paid on 20.3.2007 i. e. after six months from the date of receipt of bill and therefore, the petitioner had incurred disqualification. The proceedings were contested by the petitioner. The father of the petitioner had not paid the amount of Rs. 4580/- towards taxes due till the year 2005-06 and had also not paid the bill of Rs. 1580/- being taxes for the year 2006-07. Consequently, Divisional Commissioner -respondent no.2 by order dated 12.3.2008 disqualified the petitioner in terms of Section 16 (1) (K) of the Act. The Petitioner filed the above writ petition challenging the order dated 12th March 2008 passed by respondent no.2, on the following grounds :- (i) Respondent no.2 had not taken into consideration the report submitted by the Chief Executive Officer, Z.P. Nagpur, which created doubts about the bills. (ii) The bill was not properly served on the father of the petitioner. (iii) The petitioner was residing along with his 3 family members away from his father and, therefore, the petitioner could not have been disqualified; and iv) Respondent no.2 ought to have recorded the evidence of the parties. to find out the truth and since no evidence was recorded, the order passed by respondent no.2 was vitiated. The learned Single Judge considered the contentions advanced by the parties and held against the appellant. The learned Single Judge held that Voters' list has presumptive value and since the voters' list disclosed that the petitioner was staying with his father, the case set up by the appellant that he was residing separately could not be accepted in absence of any evidence having been led by the petitioner. The learned Single Judge further held that there was proper service of bill on the father of the appellant and the report of the Chief Executive Officer could not have been considered by respondent no.2 since the same could not be treated as evidence in the proceedings. The learned single Judge further held that since the petitioner had not led evidence, he could not be allowed to urge that the evidence was required to be led. Consequently, the learned Single Judge dismissed the writ petition. 4 In support of the appeal Mr. Kale has submitted that the report submitted by the Chief Executive Officer ought to have considered by respondent no.2 and the application filed by the respondent no.1 ought to have been dismissed. Learned counsel further submitted that the bill alleged to have been served on the father of the petitioner was not in terms of Section 129 of the Act and the same was not in the prescribed form. According to learned counsel, the demand made in the said bill for the period 2006-07 was not valid demand and, therefore, disqualification in terms of Section 129 of the Act was not attracted. In support of his submissions, learned counsel relied upon the judgment of the learned Single Judge in the case of Angha Ajit Bhatkar vs. State of Maharashtra : 2006(6) Mh.L.J. 13. Per contra, Mr. Patil, learned counsel appearing for respondent no.1 and Mr. Deshpande, learned AGP appearing for respondent no.2 supported the impugned order. Having considered the submissions made by learned counsel for the parties and having perused 5 the record, we find no ground to interfere with the impugned order passed by learned Single Judge dismissing the writ petition challenging the order passed by respondent no.2. Insofar as non-consideration of the report submitted by the Chief Executive Officer, Z.P. Nagpur is concerned, the learned Single Judge was right in holding that the same could not have been considered since it was not tendered in evidence and as such could not have been relied upon. Insofar as non-service of the notice on the father of the petitioner is concerned, the finding recorded by respondent no.2 against the appellant has been correctly arrived at and therefore, the learned Single Judge was right in holding that there was no merit in the submission. Insofar as the submission of Mr. Kale is that the bill was not in accordance with Section 129 of the Act is concerned, we are of the considered opinion that the same has no merit. Firstly, this point was not urged before the learned Single Judge and in the absence of any pleading before the learned Single Judge and the finding thereon having been recorded 6 in the order, we are not inclined to permit the appellant to urge this ground. If the appellant was to take such ground and invite finding by the learned Single Judge or by respondent no.2 we would have dealt with the same. Moreover, the bill in question pertains to arrears of taxes due for the period prior to 2006 and the period for 2006-07. Insofar as the taxes due for the period up to 2006 are concerned, there can be no dispute that the same were not paid in time. Insofar as the non-payment of taxes for the period 2006-07 is concerned, the appellant ought to have urged before respondent no.2 or before the learned Single Judge that the taxes due for the said period were not due as on the date of filing of the petition and invited the finding as to whether composite demand was illegal. In absence of any such challenge either before respondent no.2 or the learned Single Judge, we are unable to hold that the judgment relied upon by the appellant is of any help to the appellant. In the said judgment, the taxes demanded by the bill were not due in terms of Section 129 of the Act and, therefore, learned Single Judge held that disqualification was not attracted. In any case, in the present case, the taxes for the period up to 2006 were not paid within the prescribed time. Therefore, we are unable to hold that the ratio laid down in the judgment in the case relied upon by the appellant is 7 applicable in the present matter. In view of the above, we find no ground to interfere with the impugned order passed by learned Single Judge. Consequently, the Letters Patent appeal is rejected with no order as to costs. Interim order stands vacated. At this stage the learned counsel for the appellant seeks continuation of interim order for a period of eight weeks in order to enable to appellant to obtain appropriate orders from the Apex Court. The prayer has been opposed by the learned counsel appearing on behalf of the respondents. Since interim order has been in operation till date, we deem it appropriate to continue the interim order for a period of four weeks. JUDGE JUDGE Ambulkar.