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1956 DIGILAW 124 (PAT)

Jameel Ahmad v. Anant Singh

1956-08-27

RAJ KISHORE PRASAD, V.RAMASWAMI

body1956
Judgment Raj Kishore Prasad, J. 1. The petitioner has moved this Court, under Articles 226 and 227 of the Constitution of India, and asked for a writ in the nature of certiorari to call up and quash the decision of the District Judge, Patna, opposite party no 1, passed under Sec. 544, Clause (2), of the Patna Municipal Corporation Act. 1951 (Bihar Act XIII of 1952), hereinafter referred to as "the Act". He has also prayed to quash the election of opposite party no. 2 as a councillor, elected by ward No. 24, of the Patna Municipal Corporation, under Section 8(1) (b) of the Act. 2. The Patna Municipal Corporation Act came into force on the 15th August, 1952. The State Government, under Sec. 540 of the Act, framed rules, for election of councillors, which were published in the Gazette on the 28th July, 1953. These rules were called the Patna Municipal Corporation Preparation of Electoral Bolls and Conduct of Elections Rules, 1953, hereinafter referred to as "the Rules". Under Rule 2, Clause (n). the District Magistrate, Patna, was appointed the returning officer. The Government of Bihar notified; on the 31st October, 1953, that the election of the councillors, by the different Wards, of the Patna Municipal Corporation, as required by Section 8(1)(b), of the Act, would take place on the 14th January 1954, and, fixed the last date for making nominations to be the 18th December 1953. On the 18th December, 1953, however, the date of election was extended by the Government to the 24th March, 1954, and, the date for making the nominations was also extended to the 4th March, 1954. On the 4th March, 1954, the petitioner and opposite party No. 2 filed their nomination papers, from ward No. 24. The scrutiny of the nomination papers of these two candidates was taken up on the 4th March, 1954, when the petitioner made objections to the nomination of opposite party no, 2, on the ground that he had not paid the corporation tax due from him in respect of his various holdings and, therefore, he was not eligible for election in view of the provisions of Clause (J) of Sec.14 of the Act. The returning officer, however, on the 5tn March, 1954. The returning officer, however, on the 5tn March, 1954. disallowed the objection of the petitioner, on a report from the Patna Municipal Corporation that all dues had been paid by opposite party No. 2 -in respect of his holdings. 3. The polling for ward No. 24, thereafter, took place on the 24th March, 1954, at three polling stations, including Sadargali Urdu U. P. School. Opposite party No. 2 having secured the large number of votes was declared by the returning officer under Rule 69(a) of the Rules. The election was published in the Bihar Gazette, as required by Sec.15 of the Act, on the 5th January, 1955. 4. The petitioner on the 9th April, 1954, filed an election petition under Section 544(1) of the Act, but, subsequently, he withdrew it on the 6th May, 1954. The present election petition was filed on the 18th January, 1955, after the notification under Sec.15 of the Act. 5. The petitioner questioned the election of opposite party No. 2 on various grounds in his election petition. The learned District Judge, who lathe authority authorised under Sec. 544(1) of the Act to hear such election petitions, after hearing the parties and considering the evidence of both sides, dismissed the election petition of the petitioner by an order dated the 12th August, 1955. 6. Such an order of the District Judge has been declared "conclusive" under Section 544(3) of the Act. The petitioner, therefore, moved this Court under Articles 226 and 227 on a previous occasion also, but it was dismissed on the 2nd September, 1955. on account of certain defects. The petitioner, therefore, presented the present application under Articles 226 and 227 of the Constitution, on the 20th September, 1955, for quashing the impugned order of the District Judge, Patna, and the election of opposite party No. 2. 7. Before this Court, Mr. Basudeo Prasad, appearing for the petitioner, has taken only two grounds in support of his application. His two contentions are: (1) that opposite party. 7. Before this Court, Mr. Basudeo Prasad, appearing for the petitioner, has taken only two grounds in support of his application. His two contentions are: (1) that opposite party. No. 2 was not eligible for election, because he had not paid the taxes due by him to the Corporation as required by Sec.14(j) of the Act; and, (2) that the election was invalid because the polling took place also at the Sadargali Urdu U. P. School, for Ward No. 24, which had not been notified as one of the polling stations as required by Rule 45 of the Rules. I shall consider these two objections in the order, in which, they are stated above. 8. In support of the first contention, strong reliance has been placed by Mr. Basudeo Prasad on Sec.14, Clause (j) of the Act. Sec.14(J) is in these terms: "14. No person shall be eligible for election, selection or appointment as a Councillor, if he- XX XX X (j) has not paid all taxes due by him to the Corporation at the end of the financial year immediately preceding that in which the election, selection or appointment is held or made; or " XXX XX X." 9. The election took place on the 24th March, 1954. Therefore, "the end of the financial year immediately preceding that in which the election" was held," would be, according to Sec.14(j), the 31st March, 1953. The contention of Mr. Basudeo Prasad, therefore is that the payment of tax due by opposite party No. 2 to the Corporation on the 15th December 1953, even assuming that all the taxes had been paid on that date, would not be a compliance of Sec.14 (J) of the Act. According to him, the words "all taxes due by him to the Corporation at the end of the financial year" should be read as "paid all taxes due at the end of the financial year immediately preceding that in which the election is held". He, therefore, contends that the proper interpretation of Clause (j) of Section 14 of the Act is that all the taxes, due from the intending candidate must be paid at the end of the immediately preceding financial year in which the election is held. He, therefore, contends that the proper interpretation of Clause (j) of Section 14 of the Act is that all the taxes, due from the intending candidate must be paid at the end of the immediately preceding financial year in which the election is held. In other words, his contention is that all the taxes due should have been paid by the 31st March, 1953, as required by Sec.14(j) of the Act, and this not having been admittedly done, and, the taxes having been paid, according to opposite party No. 2 himself, on the 15th December, 1953, was a clear violation of the mandatory provisions of Clause (j) of Sec.14 of the Act. I am unable to accept the interpretation sought to be placed upon Clause (j) of Sec.14 of the Act, by Mr. Basudeo prasad. The words "at the end of the financial year" qualify the word "due", and, not the word "paid", as contended for by the petitioner, in my opinion, therefore, the true interpretation of Clause (j) of Sec.14 of the Act is that all the taxes due, by the person seeking election as a councillor, up to the end of the preceding financial year, in which the election is held, should be paid up by such intending candidate. The time for payment is not mentioned in Sec.14, Clause (j) of the Act. Its reasonable interpretation, therefore, would be. in order to achieve the object of the Act, and, in accordance with the object intended to be achieved by Sec.14, Clause (j) of the Act, that such tax due from such a candidate must be paid at the latest before he files his nomination paper. If on the date of and before the filing of the nomination paper, the candidate has paid up all his taxes due from him to the Corporation up to the period mentioned in Clause (j), Sec.14 of the Act, he would be eligible for election as a councillor. In the present case, therefore, the admitted payment, of the taxes due from opposite party No. 2 to the Corporation up to the 31st March, 1953, on the 15th December, 1953 before he filed his nomination on the 4th March, 1954, was perfectly valid & in complete compliance of Clause (j) or Sec.14 of the Act, and, therefore, he. In the present case, therefore, the admitted payment, of the taxes due from opposite party No. 2 to the Corporation up to the 31st March, 1953, on the 15th December, 1953 before he filed his nomination on the 4th March, 1954, was perfectly valid & in complete compliance of Clause (j) or Sec.14 of the Act, and, therefore, he. was eligible for election as a councillor, if, however, no other tax is proved to be due from him on that date. 10. After the conclusion of the hearing of the case, Mr. Basudeo Prasad placed before us the Hindi translation of the Act which has also been published in the Hindi Language by the State Government. In this Hindi translation the words, "has not paid all taxes due by him to the Corporation at the end of the financial year immediately preceding....." occurring in Clause (j) of Sec.14 of the Act, have been translated in Hindi as follows: ^^ftlus] ml foÙkh; o"kZ--------ds Bhd iwoZorh foÙkh; o"kZ ds vUr esa fuxe dks vius }kjk ns; lkjs djksa dks kks/ku ugha dj fn;k gS** The word "at" in "at the end of the financial year etc." has been translated as ^^esa** instead of ^^rd** It was, therefore, argued that the contemplated tax under Sec.14 (j) of the Act has to be paid at the end of the financial year, and not thereafter. In my opinion, this contention cannot be accepted, firstly, because the correct equivalent of the word "at" is ^^rd** and not ^^esa**, and, therefore, the correct Hindi translation should have been ^^iwoZoÙkh foÙkh; o"kZ ds vUr rd dk fuxe**, instead of ^^vUr esa** , for "at" qualifies "due", and not "paid", and as such the Hindi translation is obviously wrong; and, secondly, because if there is a conflict between the Act in English, and the Act in Hindi, the former must prevail, in that, the Act was passed by the Legislature in English. There is nothing to show that the Act was passed by the Legislature !n Hindi, and not in English, or in both. There is nothing to show that the Act was passed by the Legislature !n Hindi, and not in English, or in both. It appears the Act was translated in the Hindi language also for the benefit of the public, ignorant of the English language, after the Act in English had been printed on the 25th October, 1952, after its publication in the Gazette on the 30th July, 1952, because the Hindi Act was printed on the 19th June, 1963, as the dates on the reverse of the printed Acts show. 11. Mr. Basudeo Prasad, however, contends alternatively, that even if the payment of the tax on the 15th December, 1953, be considered to be a compliance with Clause (j), Sec.14 of the Act, still a sum of Rs. 32/1/- was due from him in respect of holdings Nos. 110 and ill, which was a fee chargeable from opposite party No. 2 at the rate of -/1/- per-rupee under the prescribed rules, which was also payable under Sec.205, Clause (2) of the Act, and, as such, this amount not having been paid on the 15th December, 1953, or thereafter, till before the date of filing the nomination paper, opposite party No. 2 was disqualified from seeking election under Sec.14(j) of the Act. 12. in order to decide the above objection of the petitioner, it is necessary to know the scheme of the Act regarding municipal taxes, and, their payment, as provided under the. Act. Sec. 4(bb) defines "municipal tax" as meaning any impost levied by the Corporation under the provisions of the Act. Chapter XII of the Act deals with recovery of Corporations claims. Sec.203 provides that any tax on the annual value of holding shall be payable in quarterly instalments and every such instalment shall be due on the first day of the quarter in respect of which It is payable. Sec.204, Clause (1), requires that when any amount declared to be recoverable, or payable, on account of any tax shall have become due, the Chief Executive Officer shall, with the least practicable delay, cause to be presented to any person liable for the payment thereof a bill for the sum claimed as due. Sec.204, Clause (1), requires that when any amount declared to be recoverable, or payable, on account of any tax shall have become due, the Chief Executive Officer shall, with the least practicable delay, cause to be presented to any person liable for the payment thereof a bill for the sum claimed as due. Under Sec.204, Clause (2), such bill shall specify the period for which, and the holding, occupation, or thing, in respect of which, the sum is claimed, and shall also give notice of the liability incurred in default of payment. Section 205, Clause (1) lays down, that if the bill is not paid within fifteen days from the presentation of the bill, a notice of demand in the prescribed form shall be served upon the person to whom such bill has been presented. Sec.205, Clause (2), requires that for every notice of demand, a fee shall be charged at the rate which may be prescribed by rules, and, shall be payable by the said person, and the fee shall be included in the costs of recovery, Sec.206 requires that if the person on whom a notice of demand is served does not, within twenty-one days of the service of such notice, pay the sum demanded in the notice; or show cause to the satisfaction of the Chief Executive Officer why he should not pay the same, such sum with all costs of recovery may be recovered under a warrant in the prescribed form is one of the modes mentioned thereunder. Sec.206, Clause (3). provides that for every warrant issued under this section, a fee shall be charged at the prescribed rates, and, the said fee shall be included in the costs of recovery. Sec.207 is important for the purpose of the present case. It provides that the Standing Committee may in its discretion remit the whole, or any part of any fee chargeable under subsection (2) of Sec.205, or Sub-section (3) Of Section 206 of the Act. 13. It is admitted by the petitioner that this sum of Rs. 32/1/- was not on account of any tax, but on account of the fee leviable under Sec.205, Clause (2) of the Act. In support of this contention, he has relied on the demand notice, which is annexure A to his affidavit, in which the arrears of tax are mentioned at Rs. 32/1/- was not on account of any tax, but on account of the fee leviable under Sec.205, Clause (2) of the Act. In support of this contention, he has relied on the demand notice, which is annexure A to his affidavit, in which the arrears of tax are mentioned at Rs. 513/-, and, the current demand is also mentioned, and on the total of the two a sum of Rs. 40/1/- has been added without mentioning what it represented. This annexure-A is the demand notice under Sec.205 of the Act in respect of holding No. 110/118. In this demand notice, it is mentioned that on the 15th July, 1953, a bill as required by Sec.204 was sent to opposite party No. 2, to whom the demand notice was being issued, which was received on the 13th November, 1953. In this demand notice, it is further mentioned that opposite party No. 2 was asked to pay the bill within fifteen" days from the date of receipt, on failure of which a demand notice should be sent, and, under Sec.205, Clause (2) of the Act, on the arrears due, a fee at the rate of -/1/- per rupee would be charged which would be included in the cost of recovery. Accordingly, the demand notice is being sent on receipt of which within twenty-one days the tax with fee should be paid, otherwise a warrant under Sec.206 will be issued. The contention of the petitioner, therefore, is that it is clear from the demand notice dated the 4th December, 1953, which purported to have been Issued in respect of holding No. 110/118, which. was Ext. 7 in the case, that Rs. 32/1/-, which is the amount of fee payable on the arrears of tax, was demanded from opposite party No. 2, and, which was not paid on the 15th December, 1953, or thereafter by opposite party No. 2, and, as such, he incurred the disqualification provided in Sec.14, Clause (j) of the Act. 13a. The learned District Judge has considered this objection of the petitioner in para 9 of his order, and, after a consideration of the materials placed before him, and also Sec.207 of the Act, he found that there was no evidence that the demand. 13a. The learned District Judge has considered this objection of the petitioner in para 9 of his order, and, after a consideration of the materials placed before him, and also Sec.207 of the Act, he found that there was no evidence that the demand. notice for payment of the fee as contemplated by Sub-section (2) of Sec.205 of the Act was ever presented to opposite party No 2, and, therefore, this fee will not be deemed to be due from opposite party No. 2. 14. The above objection was taken also at the time of the scrutiny of the nomination paper before the returning officer on the 4th March, 1954, by the petitioner. The opposite party no. 2 then rebutted this objection by saying that he had cleared all dues, and asked for time to produce an account of clearance of dues. The Returning Officer under the proviso to Rule 37(4) of the Rules allowed him time to produce the account on, the 6th March, 1954. On the 5th March, 1954, the Corporation reported to the Returning Officer that all taxes due from opposite party No. 2 had been paid up by him The Returning Officer, therefore, disallowed the objection of the petitioner on the 5th March, 1954. The order-sheet dated the 4th March, 1954, and, the 5th March 1954 of the District Magistrate whs was the Returning Officer, was filed in the present case and exhibited as Ext. 8, The learned District Judge, therefore, held relying also on Ext. 8 that no tax was due from opposite party No. 2 to the Corporation. 15. Mr. Basudeo Prasad challenged the finding of the learned District Judge on the ground that he committed two errors of record apparent on the face of the record inasmuch as he mentioned about a "report" having been sent by the Corporation to the Returning Officer, although no such report was on the record; and, secondly, that the learned District Judge wrongly mentioned that no demand notice for payment of the fee, as contemplated by Sec.205(2), was ever presented to opposite party No. 2. In my opinion, there is no substance in either of these contentions. 16. The learned District Judge referred to the order of the Returning Officer in which there was a mention about the report having been sent by the Corporation to him. This order-sheet of the District Magistrate is Ext. In my opinion, there is no substance in either of these contentions. 16. The learned District Judge referred to the order of the Returning Officer in which there was a mention about the report having been sent by the Corporation to him. This order-sheet of the District Magistrate is Ext. 8 in the case, as I have stated before. The District Judge further said that there was no evidence that the demand notice (Ext 7), which is annexure A, was actually presented to and, served on opposite party No. 2. In such circumstances, it cannot be said that the learned District Judge has committed any error of record in coming to the conclusion that no tax was due from opposite party No. 2 to the Corporation in respect of the holdings Nos. 110 and 111. 17. For the reasons given above, I hold that the finding of the learned District Judge does not disclose any error of law apparent on the face of the record, which can entitle this Court to interfere on this writ application. This objection, therefore, is overruled. 18. Mr. Basudeo Prasad has further argued that the taxes for other holdings also, namely, holdings Nos. 145/130, 112/119, 215/207, and 228/220 had also not been paid. 19. As regards holdings Nos. 145/130 and 112/119, the learned District Judge has found that these two holdings stand recorded in the name of the Patna City Municipality which purchased them in execution of its decree, and, therefore, no tax was payable by opposite party No. 2 in respect of these buildings. 20. Regarding holdings Nos. 215/207 and 228/220, the learned District Judge has, after a consideration of the respective cases of the parties, and, the evidence adduced by them, accepted the case of opposite party No. 2, and, held that he was not liable for any municipal tax in respect of these two holdings also. 21. Mr. Basudeo Prasad placed strong reliance on certain decrees obtained by the Patna Municipal Corporation against opposite party No. 2 for arrears of municipal tax. He has contended that the learned District Judge has committed an error of record in observing that the particulars of the claim in these decrees are not mentioned, inasmuch as the decrees themselves show the particulars of the claim. He has contended that the learned District Judge has committed an error of record in observing that the particulars of the claim in these decrees are not mentioned, inasmuch as the decrees themselves show the particulars of the claim. In my opinion, there is no substance in this contention, because the learned District Judge has obviously meant the particulars of the holdings in respect of which these decrees were obtained. The decrees themselves do not show for which particular holding these suits were brought for recovery of the municipal tax, and the decrees obtained. The learned District Judge has further observed that opposite party No. 2, having transferred his interest in these two holdings, namely, holdings Nos. 215/207 and 228/220, by oral gift to his wife, these decrees cannot be conclusive to show that opposite party No. 2 was in arrears, even supposing that they were for arrears of tax for the relevant period, in respect of these two holdings. 22. After a consideration of all the objections of the petitioner, the learned District Judge summed up his findings on issue No. 3 in these words: "The net result is that the petitioner has failed to show that any tax was due from the respondent in respect of his holdings for the relevant period. This issue is, therefore, decided against the petitioner." 23. In my opinion, the finding of the learned District Judge on the question whether any tax was due for any holding of opposite party No. 2 from him was purely a question of fact, which depended for its determination on the evidence adduced by the parties, and as such, his finding is a finding of fact, which cannot be interfered with on this writ application, because it has not been shown that there is any error, either of law or of fact, apparent on the face of the record. The first objection of Mr. Easudeo Prasad is, therefore, overruled. 24. The next objection is the polling took place also at Sadargali Urdu U. P. School, for Ward No. 24, although it had not been notified, as required by Rule 45, as one of the polling stations for this ward Rule 45(a) is in the following terms: "45. The first objection of Mr. Easudeo Prasad is, therefore, overruled. 24. The next objection is the polling took place also at Sadargali Urdu U. P. School, for Ward No. 24, although it had not been notified, as required by Rule 45, as one of the polling stations for this ward Rule 45(a) is in the following terms: "45. (1) The Returning Officer shall select one or more polling stations for each ward of the Corporation and shall publish; in such manner as he thinks fit, a list showing the polling stations so selected, and the areas for which such polling stations have respectively been selected. XX XX X" 25. From the above, it will appear that the Returning Officer has to select one or more polling stations for each ward of the Corporation, and, he has also to publish a list of the polling stations so selected indicating the area for which such polling stations had been selected. In the present case, one of the booths announced was "Sadargali Urdu L. P. School". But, on the day of the polling, the booth was shifted from Sadargali Urdu L. P. School to the Sadargali Urdu U. P. School, both of which were situated in the same building. Sadargali Urdu U. P. School was one of the booths noticed for Ward No. 23, and, for Ward No. 24 one of the booths was Sadargali Urdu L. P. School. This objection, however was not taken in the election petition itself. This objection was taken for the first time at the trial, and, an issue on this question was raised at the time of the trial, as issue No. 4. The learned District Judge has considered this objection under issue No. 4. He has mentioned in his order that the petitioner was made aware three days before the polling date that the polling for Ward No. 24 was to be held at the Sadargali Urdu U. P. School. The petitioners own letter (Ext. J) in the case shows that he appointed one Syed Anwar Ahmad as his polling agent, as required by Rule 41, for that booth. This letter was dated the 21st March. 1954, and addressed to the Returning Officer, and, was signed by the petitioner himself. The petitioners own letter (Ext. J) in the case shows that he appointed one Syed Anwar Ahmad as his polling agent, as required by Rule 41, for that booth. This letter was dated the 21st March. 1954, and addressed to the Returning Officer, and, was signed by the petitioner himself. The learned District Judge has considered this aspect of the matter, along with the further question that the voters may not have been aware of the changed position. After a consideration of the entire evidence, documentary and oral on the point, he rejected the objection of the petitioner, and, found that this change in one of the booths did not appear to have affected the polling. No error of law has been shown by the petitioner in the above finding of the learned District Judge, and, therefore, it cannot be called in question on this writ application. The second objection of Mr. Basudeo Prasad also must, therefore, be rejected. 26. For the reasons given above, the application fails, the rule is discharged, and the application is dismissed with costs; hearing fee Rs. 100/-. Ramaswami, J. 27 I agree.