SK SANDU SK NATHU Vs. PRIJADE IQBALUDDIN ZIAUDDIN

JUDGEMENT

(1.) A short question that arises for consideration in this writ petition relates to the interpretation of Clause (ii) of Explanation 2 to section 14 of the Bombay Village Panchayat Act. The question arose in an election petition filed under section 15 by the first respondent challenging the election of the petitioners to the Village Panchayat of Mehrun, a Village in Jalgaon district, inter alia on the ground that his own nomination paper was wrongly rejected.

(2.) The petitioners, respondent No.1 and respondent Nos. 4 to 6 filed their nomination papers for the election held on 28-3-84 for Ward No. 1 of Village Mehrun. The nomination paper of the 1st respondent, who is a Muslim, was rejected on the ground that his father was in arrears of Grampanchayat tax to the tune of Rs. 577/- and in spite of demand notice No. 282503 dated 12-7-83 having been duly served on him, the tax remained in arrears till the last date of the filing of nomination papers which was 13th March, 1984. The elections were held and the petitioners were declared elected as members of the Village Panchayat of Mehrun representing Ward No. 1. The first respondent therefore filed an election petition under section 15 of the Village Panchayat Act in the Court of the Second Joint Civil Judge, Junior Division, Jalgaon. At the hearing of this election petition the petitioners led some oral and documentary evidence to show that the first respondent was residing jointly along with his father and other members of the fathers family in the same house, the taxes in respect of which were in arrears. Strong reliance was placed, in support of the contention that the first respondent was a member of the fathers family, on the application Exhibit 47 submitted by the first respondents father for getting a ration card mentioning therein that the first respondent was a member of his family. Reliance was also placed on the voters list in which the first respondent was shown to be residing in the same house in which his father resided along with other members of his family. The learned trial Judge did not attach much significance to these documents and observed that it was natural to presume that the first respondent, who was a Muslim, had separated from his father on attaining majority. He also held that mere joint residence did not give rise to joint liability and that Clause (ii) of Explanation 2 to section 14 required some thing more than mere joint residence. He laid stress on the word custom and proceed to hold that joint residence which is not supported by custom would not attract disqualification contemplated by Clause (h) of section 14 read with Explanation 2 to the said provision. Consequently, he allowed the election petition on that ground alone, set aside the election of the petitioners and directed the returning officer to hold repoll after due compliance of the rules regarding holding of election by recording the name of the first respondent as a candidate. It is this order which is sought to be quashed by the petitioners.

(3.) As rightly held by the learned trial Judge the first respondents father was in arrears of the panchayat taxes and that in spite of the writ of demand contemplated by sub-section (2) of section 129 he failed to pay the tax within three months from the date on which the amount of such tax or fee was demanded and the bill for that purpose was duly served on him. As a matter of fact the panchayat tax remained in arrears even till the last date of filling of nomination papers which as mentioned above was 13th March 1984. But it is nobodys case that the first respondent has interest in the property or that the is a joint owner there of along with his father. It is true that the is one of the occupiers of the house in question and hence the tax in question was leviable on him also by virtue of sub-section 141 of section 124 of the Bombay Village Panchayat Act. But no bill nor a writ of demand contemplated by sub-section (2) of section 129 was served on the first respondent personally and, therefore, he cannot be said to have failed to pay within the meaning of section 14(h) of the Village Panchayat Act.