Amar Singh vs Sada Nand and Others

P.C. Pandit, J.—This is a petition under Articles 226 and 227 of the Constitution filed by Amar Singh challenging the legality of the order dated 28th September, 1964 passed by Shri Sada Nand, I.A.S., Election Commission, Fatehabad, district Hissar, respondent No. 1.

The general election to the Municipal Committee, Fatehabad, was held on 16th July, 1961. For the said election from Ward No. 2, the petitioner and Bir Chand and others, respondents 4 to 12, filed their nomination papers. Later, on, however, all of them barring Dwarka Dass, respondent No. 5, withdrew from the contest, leaving him and the petitioner in the field. As a result of the poll, the petitioner was duly elected as Member of the Committee from this Ward. He secured 432 votes as against 300, which were obtained by respondent No. 5. Bir Chand, respondent No. 4, being one of the candidates, then filed an election petition challenging the election of the petitioner mainly on the ground that the nomination paper of the petitioner was improperly accepted because he was not eligible for election as he was in arrears of Municipal dues on the date of nomination, namely, 20th June, 1961, in spite of the fact that a special demand in this behalf had been served upon him by the Committee. This contention prevailed with respondent No. 1, who accepted the election petition and recommended that the election of the petitioner be held void. This led to the filing of the present writ petition.

Learned counsel for the petitioner has submitted that the order of respondent No. 1 was contrary to law, because it had not been proved that the petitioner was in arrears or any special demand in this behalf had been served upon him by the Municipal Committee and, as such, there was no contravention of Rule 7(g) of the Municipal Election Rules, 1959. He contended that the Election Commission was in error in holding that the various notices issued by the Committee, viz., Exhibits P. 1, P. 9 to P. 13, were special demand notices. Rule 7(g) reads thus-

R. 7. No person shall be eligible for election as a member of a Municipal Committee, who-

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(g) is an undischarged insolvent; or is in arrears of any kind due from him (otherwise than as a trustee) to the Committee when a special demand in this behalf has been served upon him by the Committee;

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This rule was the subject of a Bench decision of this Court in Mohinder Singh v. Abhe Raj Singh (1965) 67 P.L.R. 141, wherein it was held that the demand referred to in Rule 7(g) of the Punjab Municipal Election Rules meant only the demand u/s 80(Z) of the Punjab Municipal Act and the word "special" in the Rule merely meant that in the demand u/s 80(2) it had to be specified under what particular head the demand was being made. The relevant portion of section 80 of the Punjab Municipal Act is in the following terms :

S. 80. (1) When any sum is due on account of a tax payable under this Act in respect of any property by the owner thereof, the committee shall cause a bill for the amount, stating the property and the period for which the charge is made to be delivered to the person liable to pay the same.

(2) If the bill be not paid within ten days from the delivery thereof the committee may cause a notice of demand to be served on the person liable to pay the same, and, if he does not, within seven days from the service of the notice, pay the sum due, with any fee leviable for the notice, or show sufficient cause for non-payment, the sum due, with the fee, shall be deemed to be an arrear of tax.

A reading of these provisions would show that, firstly, the Committee has to issue a bill to a person whenever any sum is due from him and in case the bill is not paid within ten days from the delivery thereof, the Committee will issue a notice of demand. If the person concerned does not pay the a Count within 7 days from the service of this notice or fails to show any sufficient cause for non-payment, then he shall be deemed to be in an ears of tax. With regard to the arrears due from the petitioner on the relevant date, that is, 20th June, 1961 the finding of the Election Commission is-

(1) Arrears relating to Messrs. Atma Singh-Amar Singh, which were paid by him on 22nd June, 1961 two days after the riling of nomination papers:

(2) Arrears with regard to the rent which was to the tune of Rs. 78 pertaining to year 1959-60 and 1960-61, out of which Rs. 52 were paid by him on 22nd June, 1961 and the balance of Rs. 26 was written off as the very allotment had been cancelled; and

(3) Arrears of dues with regard to Messrs. Ram Ditta Mal-Amar Singh, Proprietors Bharat Ice Factory, Fatehabad, amounting to Rs. 101 and paid by the respondent on 22nd June, 1961.

Learned counsel for the petitioner submitted that even if the finding with regard to the arrears being a finding of fact may not be open to challenge in these proceedings, the subsequent requirement of the law that a special demand notice had been served upon the petitioner by the Committee had not been complied with in the present case. The finding of the Election Commission on this point was erroneous in law on the lace of it, because the five notices (Exhibits P. 1 and P. 9 to P. 13) relied upon by him could under no circumstances he held to be ''special demand notices", as contemplated by section 80 of the Punjab Municipal Act. Exhibit P. 1, which is. annexure ''L'' in the present petition, is a notice dated 25.6.1959 issued to the petitioner in which it was stated that he was dealing in the auction and sale of the fcodgrains in contravention of the bye-laws and that he should obtain a license under the Rules, otherwise action would be taken against him. Exhibit P. 9, annexure F to the petition, is a notice dated 13.4. 1960 issued to the petitioner u/s 121 of the Punjab Municipal Act to the effect that the petitioner was running an Ice Factory without a license and asking him to appear in the office of the Committee to explain as to why action should not be taken against him on that account. Exhibit P. 10, annexure ''G'', is another notice dated 14.4.1960 issued u/s 121 of the Punjab Municipal Act in the same terms as Exhibit 9 Exhibit P. 12, annexure ''H'' is a notice dated 3.5.1961 issued by the Committee regarding unauthorised construction made by the petitioner and asking him to appear In the office of the Committee to explain as to why action should not be taken against him. Exhibit P. 13, annexure ''J'', is another notice dated 1.5.1961 like Exhibit P. 12. All these notices are obviously not special demand notices as contemplated by section 80 of the Punjab Municipal Act, The learned Advocate-General and the counsel for the other respondents could not seriously urge that these were the special demand notices as Envisaged by Rule 7 (g). That being so, it cannot be said that the petitioner was served with a special demand notice, even if it be held that he was in arrears on the date of the nomination. Consequently, he could not be held to be ineligible for election as a Member of this Committee under Rule 7 (g). The Prescribed Authority was thus in error in setting aside his election.

The result is that this petition succeeds and the impugned order is hereby quashed but with no order as to costs.