SHEONATH MOOLCHAND SAHU v. KHALIFA CHHIDAMILAL — 1975 DIGILAW 83 (MP)

JUDGMENT : ( 1. ) THIS is a revision petition under sub-section (2) of section 441-F of the Madhya Pradesh Municipal Corporation Act, 1956 (hereinafter referred to as the Act ). ( 2. ) AT the election of councillors of the Municipal Corporation, Jabalpur held on 3-6-1973 the petitioner (hereinafter referred to as the appellant) was declared elected and the election was notified in the Government Gazette dated 29-6-1973. Subsequently his election was challenged by Khalifa Chhidamilal, non-applicant No. 1 who was also a contesting candidate; but had lost, on the ground, inter alia, that certain dues payable to the Corporation standing against the name of the petitioner had remained unpaid for a period exceeding one year and as such he was disqualified under clause (i) of sub-section (1) of section 17 of the Act. The petition was resisted by the applicant, but was ultimately allowed by the District Judge, Jabalpur on the aforesaid ground. Other grounds were not pressed in the trial Court and we are not concerned with them. Being aggrieved by the said decision, the applicant has filed this revision petition. ( 3. ) THE only point for consideration in this case is whether the election of the applicant is liable to be set aside on the ground specified in clause (a) of section 441-B of the Act on the ground that the applicant was disqualified to be a Councillor under clause (i) of sub-section (1) of section 17 of the Act. ( 4. ) CLAUSE (i) of sub-section (1) of section 17 of the Act reads as under: "17. General disqualification for becoming a Councillor.- (1) No person shall be a councillor, who- *** *** to *** *** (i) has any tax or dues, payable to the Corporation, standing against his name for a period exceeding one year. " ( 5. ) IT was not disputed before me that the applicant paid a sum of rs. 234. 14 on account of taxes on 28-4-1973 which was the last, date for filing the nomination papers. A sum of Rs. 355 was paid on account of conservancy tax on 30-4-1973 and a further amount of Rs. 148. 75 was paid on 25-7-1973. The fact that these amounts were due from the applicant on account of taxes was also not disputed before me. ( 6. A sum of Rs. 355 was paid on account of conservancy tax on 30-4-1973 and a further amount of Rs. 148. 75 was paid on 25-7-1973. The fact that these amounts were due from the applicant on account of taxes was also not disputed before me. ( 6. ) THE case of the applicant, however, is that on 28-4-1973 he had sent his nephew to the Municipal Office for clearing off all the arrears and he paid off whatever dues he was told by the tax authorities to be outstanding against the applicant. The witness on the point is Vinod Kumar Sahu (N. A. W. 2 ). He has testified that the applicant who is his uncle had sent him to the Municipal Office to pay off all the taxes due upto that date and for this purpose he approached the Tax Inspector Chandra Shekher Shukla (N. A. W. 3 ). Shukla took him to the Tax Collector; but, as the Tax Collector was not available in the office he was taken to another employee of the Corporation who after seeing the tax register, told him the amount due and he paid the amount then and there. He further testified that later on he met the Tax Collector and he also confirmed that the amount due was the same which had been paid vide Exs. D. 1, d. 2 and D. 3. ( 7. ) THE applicant Sheonath Sahu (N. A. W. 1) testified that on the date of the scrutiny, that is, on 30-4-1973 the Tax Collector informed him that some more tax was payable. He was informed that a sum of Rs. 355 was due and nothing else was due beyond that amount. Thereupon, on that very date, the said amount of Rs. 355 was paid vide Ex. D. 4. ( 8. ) THE applicant further stated that after the election he came to know that some more tax was due from him and as soon as he came to know, he again paid the amount of Rs. 148. 75 said to be due against him vide Ex. D. 5. Thus according to him, he had acted bona fide in clearing off all the arrears of taxes which were said to be due by the tax authorities. ( 9. 148. 75 said to be due against him vide Ex. D. 5. Thus according to him, he had acted bona fide in clearing off all the arrears of taxes which were said to be due by the tax authorities. ( 9. ) THE non-applicant did not adduce any evidence in the trial Court to contradict the evidence adduced by the applicant. His contention, however, is that it-is clear from the evidence adduced by the applicant himself that atleast part of the Corporation dues were paid on 25-7-1973. The last payment included a sum of Rs. 30 on account of water tax for the year 1968-69 and, therefore, the applicant was disqualified from being a Councillor on the date of the election and as such his election must be set aside. ( 10. ) BEFORE I proceed to deal with the aforesaid contention which prevailed in the lower Court, it is necessary to refer to section 441-B of the Act. The relevant clause of the said section is clause (a) which provides that if the Court is of the opinion that on the date of his election or selection a returned candidate was not qualified or was disqualified, to be chosen as a Councillor, the court shall declare the election of the returned candidate to be void. It seems in the lower Court there was some controversy as to what is meant by the expression "date of his election". Although the word election is sometimes used in a wider sense meaning the entire process of election culminating in the declaration of the result, date of election clearly means the date of the poll on which the election actually takes place by means of voting. The last date of filing the nomination or the date of scrutiny are, therefore, not material for the purposes of the aforesaid clause. The learned trial Judge also seems to have adopted the same construction as would appear from paragraph 17 of his judgment. In fact no arguments were addressed to me on this point and in the absence of any definition of the expression "the date of election" it must, in my view, be construed as the date of actual polling which, in the present case, was 3-6-1973. ( 11. ) IT has been noticed above that the applicant had paid a sum of rs. ( 11. ) IT has been noticed above that the applicant had paid a sum of rs. 234 *14 on account of arrears of taxes on 28-4-1974 and a further sum of rs. 355 on 30-4-1973 as soon as he came to know that the aforesaid amounts were due from him. He further paid a sum of Rs. 118. 75 paise on account of conservancy tax for the year 1972-73 and Rs. 30 as water-tax for the year 1968-69 on 25-7-1973 as soon as he was informed about it. The point for consideration, however, is whether he should be deemed to be disqualified on the date of the election within the meaning of clause (a) of section 441-B of the act, merely because a part of the arrears was paid after the date of election. ( 12. ) THE main argument advanced by Shri R. S. Dabir, learned counsel for the applicant, was that a distinction should be made between the tax being due and the tax being payable for the purposes of clause (i) of sub-section (1) of section 17 of the Act and he urged that the tax cannot be said to be payable unless either a bill for the same is sent to the person concerned or a notice of demand is sent to him in accordance with the provisions of section 173 of the act. Section 173 of the Act provides that the Commissioner shall with the least practicable delay cause to be presented to any person liable for the payment of taxes, a bill for the sum claimed as due and that such a bill shall specify the period for which it is due and the time within which an objection may be preferred against such claim and certain other particulars specified therein. Section 174 of the Act lays down that if a bill is not paid within 15 days of its presentation, the Commissioner may serve upon the person to whom such a bill has been presented, a notice of demand. Other sections in the Chapter deal with the process of recovery of the dues, it is an accepted position that in the instant case no bill was presented to the applicant and no notice of demand was served. Other sections in the Chapter deal with the process of recovery of the dues, it is an accepted position that in the instant case no bill was presented to the applicant and no notice of demand was served. There is, therefore, much force in the contention of the applicant that he had no idea what amount of tax or other Corporation dues were outstanding against him. ( 13. ) THE learned Judge of the lower Court has dealt with the question whether the conduct of the applicant was bona fide and he was of the view that it could not be said to be bona fide because he could very well ascertain the amount due from his own account books in which the taxes which were paid were entered from time to time. In the first place the question of bona fide is not at all relevant in this context. Moreover, even though a person may have an idea that some amount is due from him on account of taxes, it is difficult to say what is the exact amount outstanding against him at the relevant time because the taxes are recovered under various heads and are also revised from time to time. ( 14. ) AS pointed out above, it is the duty of the Commissioner to present a bill to a person liable to pay taxes or other dues specifying the amount due from him under section 173 of the Act. If this statutory duty is performed, the person concerned can have notice of the amount due from him and he can be adjudged guilty of non-payment if he fails to pay the amount even after the presentation of such a bill; but where no such bill is presented a person is bound to be in dark about the exact amount due from him even though he may have some vague idea that certain amount is due from him on account of taxes etc. This aspect of the matter has a bearing on the construction of section 17 (1) (i) of the Act. ( 15. ) THERE can be no doubt that clause (i) of sub-section (1) of section 17 of the Act must be construed as it stands according to the grammatical meaning of the words used therein. This aspect of the matter has a bearing on the construction of section 17 (1) (i) of the Act. ( 15. ) THERE can be no doubt that clause (i) of sub-section (1) of section 17 of the Act must be construed as it stands according to the grammatical meaning of the words used therein. The distinction between the tax being due and the tax being payable sought to be made out by the learned counsel cannot be accepted because there is nothing in the Act to suggest that a tax does not become payable unless a bill for the same is presented to the person liable to pay the same. Section 173 no doubt casts a duty on the Commissioner to send a bill to the person liable to pay; but that does not necessarily mean that tax does not become payable until the presentation of the bill. Section 134 of the act makes it clear that presentation of a bill is a necessary step to be taken by the Municipal authorities for the recovery of taxes ; but a tax becomes payable as soon as it is imposed under the Act. ( 16. ) I am, therefore, unable to accept the contention that a tax does not become payable unless a bill for the same is presented to the person concerned and this contention was rightly rejected by the learned District Judge. However, for incurring a disqualification under clause (i) of sub-section (1) of section 17 of the Act, it is not sufficient that some amount of tax may be payable to the Corporation. It is also essential that the amount of tax payable to the corporation should be standing against the name of the person concerned for a period exceeding one year. The expression "standing against his name" appears to have been introduced purposely to avoid any hardship for want of knowledge of the actual amount due at the particular point of time as in the present case. One of the dictionary meanings of the word "stand" is "to be or remain in a printed or written form". ( Vide Websters new world dictionary page 1387 ). It would, therefore, appear that it is necessary that the amount of tax that remains due should be recorded in the register of taxes as due from the person concerned. One of the dictionary meanings of the word "stand" is "to be or remain in a printed or written form". ( Vide Websters new world dictionary page 1387 ). It would, therefore, appear that it is necessary that the amount of tax that remains due should be recorded in the register of taxes as due from the person concerned. Such a requirement has been made essential apparently to enable the person concerned to find out from the Corporation authorities the amount of taxes outstanding against him at a particular point of time. ( 17. ) IT would be here pertinent to refer to the provisions relating to disqualification of this nature in other enactments of a similar nature. In C. P. and Berar Municipalities Act, 1922, no such disqualification was recognised vide section 15 of the said Act. In the City of Jabalpur Corporation Act, 1948 also no such disqualification was recognised and there was no provision similar to clause (i) of sub-section (1) of section 17 of the Act in section 15 thereof. In the M. P. Municipalities Act, 1961 a disqualification of this nature was laid down in clause (j) of section 35 of the said Act but it was in the following terms: "35 No person shall be eligible for election or selection as a Councillor if he to *** *** *** (j) has not paid all taxes due by him to the municipality at the end of the financial year immediately preceding that in which the election or selection is held or made within thirty days of the receipt of a notice or demand made in this behalf by the Chief municipal Officer. . . . " *** *** ** thus, even though a disqualification of this nature was recognised it was specifically laid down that it would be incurred only if the tax due was not paid within a month of notice of demand. ( 18. ) IT would be here pertinent to mention that clause (d) of sub-section (2) of section 17 of the Act which deals with the disability of a Councillor to continue in that office, provides that such a disability would be incurred only if he fails to pay any arrears of any kind due by him to the Corporation within three months after a notice in this behalf has been served upon him. Thus, normally whenever the Legislature has provided for a disqualification to hold an elected office on account of non-payment of tax, it has generally been provided that the disqualification will be incurred only if the amount is not paid within a certain time after demand. It would, thus, appear that clause (i) of subsection (1) of section 17 of the Act is one of the most stringent provisions and must, therefore, be strictly construed in favour of the subject. It is clear from the language of the said provision that disqualification is incurred thereunder only if the following two conditions are fulfilled- (i) Some amount of tax or dues is payable to the Corporation ; (ii) and such amount has remained standing against his name for a period exceeding one year, that is, has remained entered against his name in the records of the Corporation for a period exceeding one year. ( 19. ) IN the instant case it no doubt appears that certain amount of taxes was due; but there is no evidence that such amount was duly entered in the register and was shown as outstanding against the name of the applicant. The evidence shows that the applicant sent his nephew to clear off all the arrears on the date of nomination and he did pay off whatever amount he was told as due by the Corporation authorities. It seems that the amount that was paid was the amount shown in the register as outstanding against him and that is why he was asked to pay such amount. ( 20. ) THE applicant has testified that subsequently on the date of scrutiny he was told by the Tax Collector that a further amount of Rs. 355 was outstanding against him, on account of taxes and he immediately paid the said amount on that date. It seems that the Corporation authorities again looked into their registers after the enquiry on the 28th for finding out the amount due from the applicant and could find only Rs. 355 as outstanding against him. In this connection the applicant examined 3 witnesses, namely, Vinod Kumar Sahu, chandra Shekher Shukla and Surendra Kumar Chaturvedi, employees of the corporation. There is nothing in their evidence to show that the amount of rs. 118. 355 as outstanding against him. In this connection the applicant examined 3 witnesses, namely, Vinod Kumar Sahu, chandra Shekher Shukla and Surendra Kumar Chaturvedi, employees of the corporation. There is nothing in their evidence to show that the amount of rs. 118. 75 which was paid on 25-7-1973 was actually entered in the register of taxes against the name of the applicant on 28-4-1973. ( 21. ) CHANDRA Shekher Shukla, Tax Inspector (N. A. W. 3) testified that he had seen the register and thereatter realised the tax which appeared to be due. He stated as under in paragraph 1: The witness further admitted in cross-examination that he did not find any arrears shown in the register. It would, therefore, appears that the amount of rs. 118. 75 was worked out as due from the applicant by the Corporation authorities after going through the records. If the said amount had been entered in the register as due from the applicant, the authorities would not have to found any difficulty in informing the applicant about it on 28-4-1973 when the applicant sent his nephew to clear off all the arrears. The burden of proving that the said amount was standing against the name of the applicant for a period exceeding one year was upon the non-applicant No. 1; but he has failed to discharge the same. ( 22. ) IT is, however, clear that whatever tax was subsequently stated to be due was paid by the applicant on 25-7-1973. Since it appears that the said amount was not shown as outstanding in the register of taxes against the name of the applicant on the date of nomination, the applicant cannot be said to have incurred the disqualification under clause (i) of sub-section (1) of section 17 of the Act and his election cannot be set aside on that ground. As the decision of the trial Court is vitiated by an error of law, it is liable to be set aside. No other point was pressed before me. ( 23. ) THE petition, is, therefore, allowed and the order of the learned district Judge dealing the election of the applicant to be void is hereby set aside and the petition filed by the non-applicant is dismissed. I make no order as to costs of the petition, in the circumstances of the case. Petition allowed.