GANPAT SAMBHAJI PATIL Vs. EXTRA ASSISTANT JUDGE

JUDGEMENT

(1.) THE two petitioners are persons whose election to the Municipality of Islampur has been declared invalid on an application made by respondent No. 3 under Section 22 of the District Municipal Act. The ground on which the election of the petitioners has been held to be invalid is under Section 15(7)(ea) in that they had failed to pay arrears due by them to the municipality within three months after a special notice in that behalf had been served upon them.

(2.) THE two petitioners were members of the municipality in the years 1952 -53 also and during that year they and five other members of the municipality had been responsible for making unauthorised appointments of octroi clerks and peons. Under Section 42 of the District Municipal Act, these seven persons as Councillors were liable for the misapplication of the funds of the municipality since the said misapplication had happened through or been facilitated by gross neglect of their duty as Councillors. An objection with regard to these unauthorised appointments of octroi clerks and peons was taken by the Examiner of the Local Fund Accounts and he made a report that a sum of Rs. 846 -6 -3 was to be paid in the municipal treasury or municipal account by the Councillors who were responsible for making the appointment of octroi clerks and peons. Pursuant to this report of the Examiner of Local Fund Audit Account, on March 1, 1955, the General Body of the Municipality has resolved that the amount as per the audit objection should be recovered from the persons concerned. In pursuance of that resolution of the General Body, on January 4, 1956, the Managing Committee had passed a resolution resolving that the amount which was found due from the seven Councillors as per the audit note of the Examiner of Local Fund Accounts should be recovered from the said Councillors. On January 23, 1956, notices were issued to the petitioners that a sum of Rs. 846 -6 -3 was due from each one of them in respect of the pay and allowances of the octroi clerks and peons unauthorisedly appointed by them and that they should make the said payment forthwith in the municipal office. The petitioners, however, did not make the payment as required by these notices. The petitioners thereafter offered themselves as candidates for the municipal election from ward No. 3 and submitted their nomination papers. The date for the submission of the nomination papers was October 10, 1957. On October 11, 1957, opponent No. 3 raised an objection to the nomination of the petitioners, the objection raised being one under Section 15(1)(ea) that they had failed to pay the arrears due by them to the municipality. As against petitioner No. 2, the further objection was that in addition to this sum of Rs. 846 -6 -3 which he had not paid to the municipality, he was also in arrears to the extent of Rs. 228 -4 -0 which he had not paid to the municipality, although the same was demanded from him. These objections were rejected at the time of the scrutiny by the Returning Officer, and the nominations of the petitioners were accepted. Then at the election, which was held on November 5, 1957, and the result of which was declared on December 6, 1957, the petitioners were declared as duly elected Councillors from Ward No. 3 of the Islampur Municipality. Opponent No. 3 thereafter filed an application under Section 22 of the District Municipal Act to the District Judge of South Satara challenging the election of the petitioners on the ground amongst others that the petitioners were disqualified to be Councillors under Section 15(7)(ea) of the District Munici -pal Act and that the objections taken to the nomination of the petitioners by opponent No. 3 should have been accepted by the Returning Officer. There were other objections also raised in this election petition, but they have not been considered by the learned Assistant Judge who heard and decided this application, because he has upheld the objections that the petitioners were disqualified under Section 15(1)(ea) of the District Municipal Act and their election, therefore, was liable to be set aside. The learned Assistant Judge, therefore, by the final order which he has passed on August 12, 1959, has set aside the clection of the petitioners and has ordered a fresh election to be held in respect of Ward No. 3 of the Islampur Municipality. Aggrieved by the decision and order passed by the learned Assistant Judge, the petitioners have filed the present Special Civil Application.

(3.) WE are not impressed by either of the two arguments raised before us by Mr. Jahagirdar. The provision of Section 15(7)(ea) is as follows: No person may be a Councillor -... who fails to pay any arrears of any kind due by him to the Municipality (otherwise than as a trustee) within three months after a special notice in this behalf has been served upon him.... The provisions speak of 'any arrears of any kind'. This expression, in our view, covers not only arrears which are recoverable under the provisions of Chap. VIII but other arrears also. What is required for this section to operate is that there must be arrears due from the person to the municipality. Now, tile meaning of the word 'arrears' would ordinarily be 'what is ascertained due and has remained unpaid or an outstanding debt'. The words 'any arrears of any kind' ins. 15(7)(ea) would no doubt include the arrears in respect of taxes, fees or other amounts claimable by the municipality under the provisions of the Municipal Act, but we do not think that the word 'arrears' mentioned in Section 15(1)(ea) is confined only to arrears claimable by way of taxes, cesses etc. under the provisions of the Act. Any ascertained sum due to the municipality which has not been paid would be an arrear within the expression 'any arrears of any kind' used in Section 15(7)(ea), Mr. Jahagirdar has then argued that the claim made by the municipality in the notices which it had served upon the petitioners cannot be regarded as an ascertained sum due from the petitioners to the municipality so as to constitute an arrear within the meaning of Section 15(1)(ea). The argument is that the claim made by the municipality is in respect of the liability for the misapplication of the municipal funds by reason of the alleged unauthorised act of the petitioners and other Councillors. This liability is not admitted by the petitioners; nor has it been determined by any competent Court or by any other competent authority. Mr. Jahagirdar, therefore, has argued that unless the claim of the municipality in respect of this liability is either admitted by the petitioners or it has crystallised into a decree of Court or an order of any competent authority, it would not be an ascertained sum of money which is due from the petitioners to the municipality. We do not think that the argument urged by Mr. Jahagirdar can be accepted. The arrears under Section 15(1)(ea) are arrears due in accordance with the notice which the municipality has served on the person. The arrears may not be due in law or the person against whom the claim is made may have a valid defence to escape liability in respect thereof. But the fact that the liability is disputed or that the validity of the claim is challenged will not make it a claim which is not for arrears within the meaning of Section 15(7)(ea). So long as the municipality is entitled to make a claim and has made a claim for an ascertained sum of money and has served a notice calling upon the person to make that payment, the failure to pay in accordance with this notice within the period of 3 months will be sufficient to constitute it a failure to pay the arrears within the meaning of Section 15(7)(ea). The view which we are taking receives support from a case decided under the Bombay Village Panchayats Act by a Division Bench of this Court, which is Ramchand v.Dist. Dy. Coll., Baramati. : AIR1955Bom154 . Section 8(i) of the Village Panchayats Act had provided a disqualification for a person contesting a Village Panchayat election if he had failed to pay any tax or fee due to the Panchayat within three months from the date on or before which the amount of such tax or fee was required to be paid by him in accordance with the bill presented to the person under Sub -section (4) of Section 91. The person who had offered himself as a candidate for the election had not paid the tax within three months of the date of bill presented to him, but had filed a suit challenging the imposition of the tax. The nomination paper filed by him was rejected by the Returning Officer on the ground that he had incurred a disqualification by reason of the provisions of Section 8(7). it was contended that he had not incurred the disqualification because he had not admitted that the tax was due from him but, on the other hand, had challenged it by filing a suit, and unless the amount of the tax which was claimed in the bill was proved to be legally and validily due from him, he could not be said to have inquired the disqualification. This argument was negatived and it was pointed out that in order to constitute a failure to pay a tax within the meaning of the provisions of Section 8(1) the failure must be to pay the tax which is due not in law or legally but which is due under a bill which is presented by the Panchayat and has not been paid by the candidate. It was pointed out that in order to see whether the disqualification was incurred under that provision, the Returning Officer was not required to embark upon an enquiry as to whether the tax was legally due and validly recoverable from the candidate. All that he had to see was whether there was a bill in respect of the tax by the Panchayat and whether payment had been made within the period specified in accordance with the bill or not. The same principle, according to us, will have to be applied in interpreting the provisions of Section 15(1)(ea). In our opinion, the Returning Officer in considering whether disqualification has been incurred under Section 15(7)(ea) has not to embark upon a judicial enquiry for the purpose of determining whether the arrears are legally due from the candidate and whether or not he has a valid defence to escape in respect of the amount claimed in the notice. The first contention, therefore, which Mr. Jahagirdar has raised, fails.