Somnath v. Dwarka Prasad — 1962 DIGILAW 196 (RAJ)

Jagat Narayan, J.—This is an appeal under sec. 46 of the Rajasthan Municipalities Act 1959 (hereinafter referred to as the Act) by one Somnath against an order of the Civil Judge Sikar acting as a Tribunal under sec. 40 (1)(b) of the Act setting aside his election as a member of Sikar Municipality from ward No. 22 on a petition under sec. 34 filed by Dwarka Prasad respondent No. 1. The appeal was contested on behalf of Dwarka Prasad. 2. The general election at which Somnath was elected, took place on 8.10.61. He was elected in the previous general election also as a member of the Board and was subsequently elected as its Chairman. Later on a vote of no-confidence was passed against him and he ceased to function as such. During the period when he was Chairman he used the telephone in the municipal office for making private trunk calls from 1-5th July, 1960 onwards. When he ceased to be the Chairman of the Board he addressed a letter Ex. 1 dated 28.6.61 to the then Chairman of the Board asking him to send the details of private trunk calls made by him in order to enable him to make the payment. He mentioned the private trunk calls, which he made, in this letter. The Chairman sent a reply to him on 7.7.61 enclosing bills amounting to Rs. 82*62 and saying that other bills were being sorted out and would be sent later on. On 14.8.61 the Chairman sent him some more bills amounting to Rs. 37.60. From an affidavit filed before this Court by Somnath it appears that the Municipality had made payment of these bills on 9.2.61. The total amount of these bills came to Rs. 120.22 and Somnath paid this amount to the Municipal Board on 21.9.61. 3. For the general election held on 8.10.61, 19.9.61 was fixed for filing of nomination papers and 22.9.61 for scrutiny. Somnath filed his nomination paper on 19.9.61. An objection was taken before the Returning Officer that he was disqualified for being elected as a member under sec. 26 (xiv) of the Act which runs as follows :— , "General disqualifications for members.—A person, notwithstanding that he is otherwise qualified, shall be disqualified for! Somnath filed his nomination paper on 19.9.61. An objection was taken before the Returning Officer that he was disqualified for being elected as a member under sec. 26 (xiv) of the Act which runs as follows :— , "General disqualifications for members.—A person, notwithstanding that he is otherwise qualified, shall be disqualified for! being chosen as, and for being, a member of a board (xiv) who is, in arrears in the payment of any tax or other dues in excess of one years demand : Provided that— (e) the disqualification mentioned in clause (xiv) shall cease as soon as the arrears are paid." 4. The objection was rejected by the Returning Officer on the ground that the demand was made for the first time on 14.8.61 and the prescribed period of one year had not expired since the date when the demand was first made. The nominations of Somnath, Dwarka Prasad and Sugan Chand were accepted for ward No. 22 and they contested the election. As a result Somnath was declared duly elected from this ward. Dwarka Prasad filed an election petition challenging the election of Somnath on the ground that he was disqualified for being a member under sec. 26(xiv) of the Act. This election petition was allowed by the learned Civil Judge and the election of Somnath was set aside. In doing so the learned Civil Judge purported to rely on a decision of their Lordships of the Supreme Court in Mangoo Singh Vs. Election Tribunal(l) and a decision of the Calcutta High Court in Ahmed Hossain Vs. Aswini Kumar(2). 5. The main contention on behalf of the appellant is that the sum of Rs. 120.22 cannot be regarded as "tax" or "other dues" within the meaning of sec. 26(xiv) of the Act. It is argued that the other dues referred to in this provision must be ejusdem generis with "tax" and must be recoverable as a municipal claim under Chapter VIII of the Act. The sum of Rs. 120.22 was only recoverable by suit under sec. 69 of the Contract Act and this sum cannot be regarded as "dues" within the meaning of sec. 26 (xiv). Further it is contended that the sum could only be recovered under sec. 69 Contract Act after the Municipality had paid it. The sum of Rs. 120.22 was only recoverable by suit under sec. 69 of the Contract Act and this sum cannot be regarded as "dues" within the meaning of sec. 26 (xiv). Further it is contended that the sum could only be recovered under sec. 69 Contract Act after the Municipality had paid it. It follows that so far as the appellant is concerned it only "fell due" for payment by him on 9.2.61 when it was actually paid by the Municipality and became recoverable from him. It is argued that even if the term "other dues" is held to apply to this sum, it could not be regarded as being in excess of one years demand as the prescribed period of one year had not elapsed since the date when it "fell due." 6. The appellant relies on the observations made by their Lordships of the Supreme Court in Mangoo Singh Vs. Election Tribunal(I). It was a case under sec. 13-D of the U. P. Municipalities Act which corresponds to sec. 26 of the Rajas-than Act. The relevant portion of it runs as follows: — "13-D. Disqualifications for membership.—A person, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as, and for being, a member of a board if he— (a) (b) (c) (d) (e) (f) . .................. (g) is in arrears in the payment of municipal tax or other dues in excess of one years demand to which sec. 166 applies: Provided further that in the case of (g) the disqualification shall cease as soon as the arrears are paid. Sec. 166 and 168 of the U. P. Municipalities Act run as follows: — "Sec. 166. Presentation of bill. — (1) As soon as a person becomes liable for the payment of— (a) any sum on account of a tax, other than octroi or toll or any similar tax payable upon immediate demand, or (b) any sum payable under cl. (c) of sec. 196 or sec. 229 or sec. 230 in respect of the supply of water, or payable in respect of any other municipal service or undertaking, or (c) any other sum declared by this Act or by rule (or bye-law) to be recoverable in the manner provided by this chapter, the board shall, with all convenient speed, cause a bill to be presented to the person so liable. (2) Unless otherwise provided by rule, a person shall be deemed to become liable for the payment of every tax and licence fee upon the commencement of the period in respect of which such tax or fee is payable. Sec. 168. Notice of demand —If the sum for which a bill has been presented as aforesaid is not paid in municipal office, or to a person empowered by a regulation to receive such payments, within fifteen days from the presentation thereof, the board may cause to be served upon the person liable for the payment of the sum a notice of demand in the form set forth in Sch. IV or to the like effect." 7. These correspond to secs. 147 and 149 of the Rajasthan Act which are reproduced below :— Sec. 147. Presentation of bill for tax.—When any amount— (a) which, by or under any provision of this Act, is declared to be recoverable in the manner provided by this Chapter, or (b) which, not being leviable under sub-sec. (1) of sec. 137, or payable on demand, on account of an octroi or a toll or claimable as an amount or instalment on account of any other tax which is now imposed or may hereafter be imposed in any municipality, shall have become due, or (c) which is due to the board on account of rent in respect of any building or land vested in it, the board shall with the least practicable delay cause to be presented to the persons liable for the payment thereof a bill for the sum claimed as due." "Sec. 149. Notice of demand.—If the sum for which any bill has been presented as aforesaid is not paid into the municipal office or to a person authorised by any rule in that behalf to receive such payment, within fifteen days from the presentation thereof, the board may cause to be served upon the person, to whom such bill has been presented a notice of demand in the form of the fifth schedule or to the like effect." 8. Their Lordships observed as follows in the above case "We are clearly of the view that the expression to which sec. 166 applies cannot bear the meaning sought to be given to it on behalf of the appellant. That expression merely describes the nature of the demand referred to in cl. (g). Their Lordships observed as follows in the above case "We are clearly of the view that the expression to which sec. 166 applies cannot bear the meaning sought to be given to it on behalf of the appellant. That expression merely describes the nature of the demand referred to in cl. (g). Sec. 166 refers to three types of dues; cl. (a) of sub-sec. (1) refers to any sum on account of a tax other than an octroi or toll or any similar tax payable upon immediate demand; cl. (b) refers to sums payable Under cl. (c) of sec. 196 or sec. 229 or sec. 230 in respect of the supply of water etc., and cl. (c) refers to any other sum declared by the Act or by rule or bye-law to be recoverable in the manner provided by Chapter VI. The demand to which sec. 166 applies must be a demand of the nature or type mentioned in one or other of the aforesaid three clauses, and the demand referred to in cl. (g) of sec. 13D must be of that nature Or type; this in our view, is the true meaning and effect of the expression to which sec. 166 applies. Nor do we think that the word "demand" attracts the operation of sec. 168. It may be readily conceded that the word demand ordinarily means something more than is due; it means something which has been demanded, called for or asked for. But the meaning of a word must take colour from the context in which it is used. In cl. (g) the context in which the word demand is used has a very obvious and clear reference to the amount of arrears or dues on which the disqualification depends ; therefore, the expression used is arrears in the payment of municipal tax or other dues in excess of 1 years demand. The word demand in that context and in the collocation of words in which it has been used can only mean in excess of one years municipal tax or other dues." 9. On the basis of the above observations it was contended on behalf of the appellant that the expression "other dues" can only refer to municipal claims recoverable under Chapter VIII. 10. On the basis of the above observations it was contended on behalf of the appellant that the expression "other dues" can only refer to municipal claims recoverable under Chapter VIII. 10. On behalf of the contesting respondent it was argued that the above decision cannot be applied to the interpretation of the expression "other dues" occurring in sec. 26(xiv) of the Rajasthan Act as it is not qualified by adding the words "to which sec. 147 applies" as the similar expression used in sec. 13-D(g) of the U. P. Municipalities Act is qualified by adding the words "to which sec. 166 applies." I am unable to accept this argument. The addition of the words "to which sec. 166 applies" to sec. 13-D(g) in the U.P. Act only makes explicit what is already implicit in the language used namely "tax or other dues in excess of one years demand" It is a rule of construction that where there are general words following particular and specific words in a section, the general words must be confined to things of the same kind (ejusdem generis) as those specified. The "other dues" must therefore be analogous to "tax". Further the use of the expression "in excess of one years demand" which qualifies the expression "other dues" also connotes dues which are recoverable by coercive process. I am accordingly of the opinion that dues referred to in sec. 26 (xiv) of the Rajasthan Act can only mean dues which are recoverable under Chapter VIIl. Sec. 147 of that Chapter enumerates the dues which are so recoverable as follows:– (a) any amount which, by or under any provision of this Act, is declared to be recoverable in the manner provided by this Chapter, or (b) any amount which, not being leviable under sub-section (1) of sec. 137, or payable on demand, on account of an octroi or a toll or claimable as an amount or instalment on account of any other tax which is now imposed or may hereafter be imposed in any municipality, shall have, become due, or (c) any amount which is due to the board on account of rent in respect of any building or land vested in it. The heading of the Section is "presentation of bill for tax". "Tax" is defined under sec. 3(33) as including any toll, rate, cess, fee or other impost leviable under the Act. The heading of the Section is "presentation of bill for tax". "Tax" is defined under sec. 3(33) as including any toll, rate, cess, fee or other impost leviable under the Act. What taxes can be imposed under the Act is dealt with in Chapter VII. Sec. 104 gives a list of obligatory taxes and sec. 105 of other taxes that may be imposed. All the dues mentioned in sec. 147 are not taxes under the Act. Those that are not "tax" fall under the description "other dues" mentioned in sec. 26(xiv). Although they do not amount to tax, yet they are recoverable by coercive process under Chapter VIII. 11. The amount which Somnath appellant owed to the Sikar Municipality on account of private trunk calls which he made from the telephone installed in the municipal office does not fall in any of the above three categories. It is therefore not a due within the meaning of sec. 26(xiv) of the Act. 12. As has already been mentioned above the amount in question was recoverable under sec. 69 of the Contract Act by suit only after the Municipal Board had paid it. The payment was made on 9.2.61. A period of one year from that date had not elapsed, when the nomination papers were filed. 13. I accordingly allow the appeal and set aside the order of the Tribunal. The operation of that order had already been stayed when this appeal was admitted. No further order is therefore necessary as Somnath is continuing to function as Chairman of the Municipal Board Sikar. 14. In the circumstances of the case, I direct that parties shall bear their own costs of these proceedings throughout.