wp2458-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2458 OF 2011 Shankar G. Baruk ..Petitioner versus Anand B. Deshmane & Ors ..Respondents Mr.P.S.Dani for the petitioner. Mr.S.D.Rayrikar,A.G.P for respondent No.4. CORAM : S.C.DHARMADHIKARI, J. 12th July 2011. P.C.: . Heard Mr.Dani appearing for the petitioner. The petitioner has challenged an order passed by the Divisional Commissioner dated 12th April 2010, rejecting the application. The application was made by the petitioner to disqualify the 1st respondent as a member of the Zilla Parishad, Pune. 2 Two contentions have been raised before me in support of this writ petition. It is firstly contended that the order wp2458-11.doc 2 passed by the Commissioner is vitiated by non application of mind because at the relevant time, the 1st respondent was staying in joint family. One Mr.Balasaheb Deshmane is father of respondent No.1. The 1st respondent is staying in a house property alongwith his father and other members of the joint family. At the time of the elections, it was the case of the petitioner that as a resident of the house and a member of the joint family, he was equally liable to pay the house tax. The house tax has been remained unpaid. In such circumstances, the petitioner should have succeeded in disqualifying the 1st respondent. However, the Commissioner has erroneously concluded that the 1st respondent had moved out of the family and was residing separately. That conclusion is not based on any documents and particularly, when the ration card would show that name of the 1st respondent appears as a resident of the subject house alongwith his father. Secondly, the finding that the tax was not demanded from the petitioner as the bill was received by the brother of the 1st respondent, is also erroneous, because as a member of the joint family and wp2458-11.doc 3 residing together, each one of them has been held to be liable to pay the taxes. As to who receives the bill is immaterial when the liability is clear in law. For all these reasons, the order passed by the Commissioner deserves to be set aside. 3 It is not possible to accept these contentions. In the application that was made by the petitioner seeking to disqualify the 1st respondent and declaring his seat as vacant, it has been alleged that the 1st respondent is son of one Balasaheb Deshmane. He and his father together with other family members are residing and occupying House No.120, 132, 120C, 120A and 125, which stands in the name of said Balasaheb Deshmane. The father of the respondent No.1 has not paid property taxes for last several years. The demand made and the details to that effect have been given in para 6 of the application and they appear to be 5 in number. A specific case was that these bills are acknowledged either by the 1st respondent or his father. Likewise, House No.98A is in the name of respondent No.1 at village Velhe Budruk, Taluka wp2458-11.doc 4 Velhe, District Pune (respondent No.3-Gram Panchayat) and he has not paid property taxes of Rs.2430/- to respondent No.3. That property tax was demanded by issuing bills which are acknowledged by respondent No.1, but, failed to pay the dues. 4 The response to this by the 1st respondent was that although he was residing with his father as a member of joint family, subsequently, he separated. He relied upon a separate ration card and affidavit dated 14th December 2006 of his father. From a perusal of the record and particularly ration card, it is apparent that the deletion of the name of the 1st respondent was effected subsequently, but, there is nothing to indicate that he was aware of the outstanding property taxes in respect of house of joint family or that he continued to reside as member of the joint family. If the petition for disqualification itself seeks to disqualify the 1st respondent for defaulting payment of taxes pertaining to a house of a joint family and at the same time, alleging that in respect of the separate house which was owned wp2458-11.doc 5 by the 1st respondent as well, he is in arrears of property taxes, then, in my opinion, the petitioner cannot succeed. That apart, the Commissioner as a matter of fact recorded that the father of 1st respondent and 1st respondent are living separately, which is evident from the ration card issued by the Tahsildar. The 1st respondent has cleared the dues of Gram Panchayat as on 5th September 2008. The separate ration card was issued on 11th September 2008 and the name of the respondent No.1 is deleted from his father’s ration card. That may be subsequent to the election, but, as far as the bills are concerned, the bills have been served and received by respondent No.1’s father. The respondent No.1 had no knowledge of the bills. There is a finding of fact recorded that the 1st respondent has been residing separately. The Gram Panchayat Property No.98A stands in his name. In such circumstances, out of the property standing in the name of the 1st respondent’s father, only one bill is served and that too on respondent No.1’s brother, whereas, there is no proof of the other bills having been served at all on the family, then, the conclusion that the application is liable to wp2458-11.doc 6 be dismissed does not require any interference. 5 Even if assuming that property taxes were outstanding and further assuming that petitioner was part of joint family, yet, in absence of service of all bills on the family of the respondent No.1 at the family house, the disqualification cannot be incurred. Resultantly, there is no merit in the writ petition and the same is dismissed but without any orders as to costs. (S.C.DHARMADHIKARI, J)