Babu Ram vs The State of Punjab and Others

Daya Krishan Mahajan, J.—This is a petition under Article 226 of the Constitution of India directed against the order of the Deputy Commissioner rejecting the nomination papers of Babu Ram on the ground that he was in arrears of house-tax at the date when the nomination papers were filed.

The Deputy Commissioner published the election programme for the Rohtak Municipal Committee on the 31st of May, 1961, and in that programme he fixed the date of filing the nomination papers as the 20th June, 1961. The date of scrutiny was the 27th of June, 1961, and the election date had been fixed therein as the 16th July, 1961. Babu Ram and Respondents 5 to 8 filed their nomination papers within the period prescribed for the filing of the nomination papers. On the date of the scrutiny of the same, before the scrutiny officer, Shri B. D. Thapar, Revenue Assistant Rohtak exercising the powers of the Returning Officer, objection was raised by Respondent No. 5 Ragho Ram to the effect that Babu Ram was in arrears of house-tax at the date of the filing of the nomination papers and, therefore, his nomination papers should be rejected under Rule 7(g) of the Punjab Municipal Election Rules, 1952. It is not disputed that before the date of the scrutiny, Babu Ram had cleared up the arrears of tax. This objection prevailed with the Returning Officer, who rejected the nomination papers on the 27th of June, 1961. A revision to the Deputy Commissioner also met with the same fate and was dismissed on the 3rd of July, 1961. Against this order, the present petition, as I have already said, is directed.

A number of contentions have been advanced by the learned Counsel for the Petitioner, and they are:

(1) That according to Rule 7(g) no notice of special demand was made upon Babu Ram and, therefore, Babu Ram could not be deemed to be in arrears of house-tax. In the alternative, it is contended that u/s 80 of the Punjab Municipal Act (No. III of 1911)--hereinafter called the Act--read with Rule 7(g) of the Rules, there has to be a demand u/s 80(2) before there can be a special demand under Rule 7(g) of the Rules;

(2) that the material date on which the qualifications of a candidate are to be judged is the date of the scrutiny of the nomination papers and not the date of the filing of the same;

(3) that while publishing the election programme ten clear days did not elapse as required by Rule 3(3) of the Rules before the election programme was to start; and

(4) that the Deputy Commissioner did not validly delegate his powers to the Additional District Magistrate as the revisional authority.

I now propose to deal with each one of these contentions in the order in which they have been enumerated. Before taking the first contention, it will be proper to set out the relevant provisions of the Statute as well as the Rules. Section 80 of the Act deals with the recovery of house-tax and is in these terms:

(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.

(3) The amount of every such arrear, besides being recoverable in any other manner provided by this Act, shall subject to any claim on behalf of Government, be a first charge on the property in respect of which it is payable, and shall be recoverable, on application made in this behalf by the Committee to the Collector as if the property were an estate assessed to land revenue and the arrear were an arrear of such revenue due thereon;

Provided that nothing in this Sub-section shall authorise the arrest of a defaulter.

(4) If any tax or sum leviable under this Act from the owner is recovered from the occupier, such occupier shall, in the absence of any contract to the contrary, be entitled to recover the same from the owner and may deduct the same from the rent then or thereafter due by him to the owner.

Rule 7(g) of the Rules, which is the rule which requires consideration, is in these terms:

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

(a)* * * * *

(b) * * * * *

(c) * * * * *

(d)* * * * *

(e)* * * * *

(f) * * * * *

(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; or

On the basis of Rule 7(g) the contention of the learned Counsel for the Petitioner is that no special demand notice to pay the tax was issued to the Petitioner as required by the rule and, therefore, he cannot be deemed to be a person in arrears of the tax and therefore, disqualified under the provisions of Rule 7(g). A person in arrears of any kind due from him to the Municipal Committee is disqualified from contesting a municipal election unless a notice of special demand in this behalf has not been served upon him by the committee. The learned Counsel contends that a bill u/s 80(1) or a notice of demand u/s 80(2) cannot be regarded as a special demand within the meaning of the expression ''special demand'' in Rule 7(g). So far as a bill u/s 80(1) is concerned, it is not even a demand. It is merely an intimation. If any authority is needed in this behalf, reference may be made to Governor-General-in-Council v. Municipal Committee Murtizapur AIR 1953 Nag. 297, and Hira Lal v. Municipal Committee Burhanpur 1960 M.P.L.J. (Notes) 141, wherein it has been held that a bill is merely an intimation and not a demand. This straightaway brings me to the consideration of the question as to what does the expression ''special demand'' in Rule 7(g) means. This phrase is not defined anywhere in the Act or the Rules. The object of this rule seems to be that a person, who does not pay his dues to the Municipal Committee is not a fit person to hold the office of a Municipal Commissioner. Be that as it may, the short question that requires determination in this case is whether a demand to pay tax u/s 80(2) of the Act can be held to be a notice of ''special demand'' within the ambit of Rule 7(g). I am of the view, it is. If Rule 7(g) is read in a reasonable manner, the key to the phrase ''special demand'' in it is furnished by the opening words of the rule, namely, "is in arrears of any kind due from him". If a reference is made to the Act and in particular to Sections 80, 81 and 82, one finds that besides house-tax and other taxes, there may be other dues, which a resident may be owing to the Municipal Committee. The use of the word ''special'' before demand in the rule indicates that for each different type of due a separate demand is to be made. A comprehensive notice of demand of all dues will not do. The resident must have been asked to pay what is due from him in each count for it may be that when he receives the demand notice he may be able to show that on a particular count no amount is due from him or only a part is due. In a comprehensive notice embracing dues on all counts without specification, he will be at sea and that is why the word ''special'' has been used before demand. If this meaning is not given to the rule, the rule will become meaningless for it cannot be countenanced that the object of the rule was to collect arrears of tax for the simple reason that the disqualification is only qua a candidate and not qua the elector. Thus in my view, a demand u/s 80(2) would certainly be a ''special demand'' under Rule 7(g) if it relates to a single count. I am not prepared to accept the contention that because u/s 80(2) the tax is in arrears only after such a demand has been made, therefore, it must be assumed for purposes of Rule 7(g) that until a notice u/s 80(2) is served, there is no special demand. Emphasis has been laid by the learned Counsel on the word ''special''. The contention is that it is something other than a mere demand, but as I read Rule 7(g), I have come to the conclusion that it was necessary to use the phrase ''special demand'' in Rule 7(g), for a notice of demand regarding all arrears together would be in the nature of a general demand and not a special demand. I am, therefore, of the view that where a demand u/s 80(2) has been made and that demand being only a demand regarding house-tax, it is a special demand for the purposes of Rule 7(g). In the instant case, however, no notice of special demand was sent. It is an admitted fact that no notice u/s 80(2) was sent and merely a notice u/s 80(1) was sent. As I have already held that notice u/s 80(1) is not a notice of demand and as such cannot be a notice of special demand for the purposes of Rule 7(g) the rejection of the nomination papers of the Petitioner was wholly illegal.

It is next contended that the house-tax can never be in arrears until a demand notice u/s 80(2) is issued and, therefore, the word ''arrears'' in Rule 7(g) should and must be interpreted with reference to Section 80. I am not inclined to accept this contention for the simple reason that Section 80(2) deems the house-tax to be in arrears after the notice of demand is served. This special provision is in the nature of a condition precedent before the house-tax can be recovered as arrears of land revenue. It cannot lead to the conclusion that for the purposes of Rule 7(g) any tax due is not in arrears unless a notice for its recovery has been issued. A person is in arrears of tax after it has become due and is not paid. Notice of demand has nothing to do with the tax being in arrears unless it is otherwise provided, as in the case of Section 80(2). The word ''arrears'' in Rule 7(g) should, therefore, be interpreted in its ordinary dictionary meaning and not with reference-to its special connotation in Section 80(2).

So far as the second contention is concerned, the complete answer to it is furnished by Rule 16(1) (a) of the Rules. This rule is in these terms:

16(1) On the date fixed for the scrutiny of nominations under the provisions of Rule 10, after facilities have been given for the examination of nomination papers under the provisions of Rule 15 the authority specified under Rule 10 shall examine the nomination papers of all candidates whose names are included in the list of candidates posted under the provisions of Rule 14, and shall decide all objections made to any nomination, and shall, either on such objections or on his own motion after such summary enquiry, if any, as he may deem necessary, refuse any nomination if he is satisfied;

(a) that the candidate was on the date fixed for the nomination of candidates ineligible for election under the provisions of Rule 7 or of any other rules or of the Act or of any other Act and had not before that date been exempted by the Punjab Government from any disqualification imposed upon him;

Thus it will be seen that the relevant date to judge the qualifications of a candidate is the date of nomination and not the date of scrutiny. If any authority is needed; reference maybe made to Mangoo Singh Vs. The Election Tribunal, Bareilly and Others,

As regards the third contention, the matter seems to be settled by a decision of this Court in Abdul Majid v. The State and Ors. (C.W. No. 1826 of 1960) decided by Tek Chand and Gosain JJ. on the 24th of April, 1961. This case relates to the Election Rules under the Gram Panchayat Act. The provision as to the publication of the election programme and the period to elapse between the publication and the commencement of the programme is almost analogous. The only difference is in the period prescribed. Under the Municipal Rules and the Gram Panchayat Rules the prescribed period is ten days and seven days, respectively. It was held in Abdul Majid''s case that the very fact that a clear period of seven days had not elapsed between the publication of the election programme and the commencement of the programme would be no ground for interfering with the election unless a material injury had resulted therefrom. No such material injury has been shown or as a matter of that it has not been shown if any prejudice "was caused to the Petitioner by this defective publication.

So far as the fourth contention is concerned, it is urged that the Deputy Commissioner could not delegate his revisional power to the Additional District Magistrate. The answer to this contention is iumished by Rule 45 itself, which is in these terms:

If on account of illness, absence from headquarters or any other reason, the Deputy Commissioner is unable to perform any of his functions under these rules, he may by order in writing appoint any Assistant Commissioner or Extra Assistant Commissioner to perform such functions on his behalf.

The sole judge of the question whether such power should or should not be delegated is the Deputy Commissioner himself and in the return he has stated that he was busy otherwise and, therefore, could not personally hear the revisions. In this view of the matter, there is no force in this contention.

Two other matters need be discussed at this stage, namely,--

(1) that an alternative remedy is available to the Petitioner, namely, an election petition ; and

(2) that the error is not apparent on the face of the record.

Both these matters are interconnected. If the matter is of such a nature that the mischief can be nipped in the bud and the error is apparent on the face of the record, I see no reason why this Court should not interfere and correct the error for otherwise the parties will be put to unnecessary expense and worry in the election. In the present case, the matter merely rests on the correct interpretation of Rule 7(g). It is no body''s case that Rule 7(g) is capable of two interpretations. ''According to the learned Counsel for the State it has one interpretation and according to the learned Counsel for the Petitioner it has the'' other. The question is which is the correct interpretation, because if the interpretation of the learned Counsel for the Petitioner is accepted, then obviously the interpretation put forward by the State counsel would be incorrect. I have already in the earlier part of the judgment stated what in my view is the correct interpretation and on that interpretation I see no reason why this Court should not interfere when the error is apparent on the face of the record. Moreover, the question that alternative remedy is available is merely a matter to be considered while the Court is exercising its jurisdiction under Article 226 of the Constitution, but is not an absolute bar for its exercise.

I accordingly allow this petition and direct that the nomination papers of Babu Ram be deemed to have been duly filed and he be permitted to contest the election. A telegraphic intimation to this effect be-sent to the Deputy Commissioner, Rohtak.

There will be no order as to costs.