Duni Cand vs Punjab State and Others

R.S. Narula, J.—The under-mentioned three questions of some immortance relating to the interpretation and scope of Rule 7(g) of the Municipal Election Rules, 1952 framed by the Punjab Government, under Sections 240 and 258 of the Punjab Municipal Act, 1911, arise in this petition under Articles 226 and 227 of the Constitution:

(1) Whether the making of a "special demand" mentioned in the rule is a condition precedent for incurring disqualification from eligibility for election as a member of Municipal Committee ?

(2) Whether the "special demand" is necessary only in relation to demands for arrears of house-tax and other taxes referred to in Sub-section (2) of Section 80 of the Act, or the making of such a demand is also necessary for other outstanding dues to the Municipal Committee, such as, recoveries to be made from a municipal contractor under audit objections after the completion of the work?

(3) What is the point of time at which the candidate should be in arrears and by which time the ''special demand'' should have been made on him in order to iustify the rejection of his nomination papers on account of ineligibility under Rule 7? The other auestions raised by the learned Counsel for the parties in this petition are mostly peculiar to the case. ''Rule 7(g) reads as under:

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

(g) is an undischarged insolvent or is in arrears of anv 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....

The facts leading to the filing of this petition are these:

In occordance with the election programme for elections to the Municipal Committee, Jagraon, the Petitioner as well as Respondents 5 to 9 filed their nomination papers for contesting the election to that muncipalitv from Ward No. 11 thereof. The nomination paper of the Petitioner was filed on August 25, 1967. On the date of scrutiny, i.e. September 2, 1967, Joginder Singh, Respondent No. 5 raised an objection to the effect that the Petitioner owed some dues to the Municipal Committee of Jagraon on account of a ''work contract'' which he had undertaken in the past. Joginder Singh produced before the Sub-Divisional Officer, who was the Returning Officer (hereinafter referred to as Scrutiny Officer), and was scrutinising the nomination papers, an unsigned copy of a memorandum, dated September 1,1967 (copy Annexure ''A''). which was in the following terms:

Dated 1-9-67.

To

Shri Diini Chand. Mori Gate, Jagraon. Settlement of objection.

There are audit objections in respect of work of construction of Drain on Raikot Road. and repair to Kaluwal Dehran Road which involves certain recoveries from you in this account. You are, therefore, requested to attend this office within a week so that cases are settled after necessary payment.

(Sd.) Manmohan Kaura. Secretary, M.C. Jagraon.

The Scrutiny Officer found that though the securities, etc., had been refunded to the Petitioner, some dues were still outstanding against him. As the copy of Annexure ''A'' which was produced before him was not signed by any one, the Sub-Divisional Officer called the Secretary of the municipality from whose statement (as per Affidavit of the Secretary filed in this Court), he was satisfied that some amount was in fact due from the Petitioner to the Municipal Committee. The nomination piper of the Petitioner was, therefore, rejected by his order, dated September 2, 1967 (Annexure B). The Petitioner went up in revision against the order of the Scrutiny Officer. The aspect ofthe case, with which we are concerned, was dealt with by the Revising Authority, in his order, dated September 8, 1967 (Annexure C) in the following words:

The main ground taken up by the Petitioner is that no demand notice was issued to him and where the Petitioner was not served with "Special Demand" notices as contemplated by Section 80 of the Punjab Municipal Elections Rules, 1952, it was held by the Punjab High Court (Punjab Law Reporter 1965, page 760-762) that the Petitioner was not ineligible for election as a member of the Municipal Committee, even if, it be held that he was in arrears on the date of the nomination and the prescribed authority was in error in setting aside his election. In view of this ruling the learned Counsel for the Petitioner has argued that the nomination paper of the Petitioner was illegally rejected by the Returning Officer. On the other hand the learned Counsel for the Respondents has pointed out that this ruling pertains to the arrears of tax as mentioned in Section 80 of the Punjab Municipal Act, and not to the arrears on account of a work contract. I entirely agree with the learned Counsel for the Respondent. It was a liability on the Petitioner to prove that he does not owe anything to the Municipal Committee as provided in Sub-Section 7(g) of the Punjab Municipal Elections Rules, 1952. The notice issued by the Municipal Committee clearly shows that some recovery was to be made from the Petitioner by the Municipal Committee which is a disqualification under Rule 7 of the rules ibid. I am, therefore, of the opinion that the Returning Officer has rightly rejected the nomination papers of the Petitioner. There is nothing to interfere with this order. The revision petition is, therefore, dismissed.

It was in that situation that this petition was filed on September 13, 1967 for setting aside the impugned orders of the Scrutiny Officer and the Revising Authority (Annexures ''B'' and ''C respectively). Separate written statements have been filed by the Scrutiny Officer (Respondent No, 4), by the Revising Authority (Respondent No. 3), by the Secretary of the Municipal Committee on behalf of the State (Respondent No. 1) and by Joginder Singh (Respondent No. 5). Respondents 6 to 9 have not appeared to contest the petition in spite of service. In paragraph 5 of the written statement of Respondent No. 5, it has been stated that the Petitioner knew before the date of scrutiny that a "No Demand Certificate" had been refused to him, whereas the same had been granted to the answering Respondent (Respondent No. 5), and other candidates, before August 25, 1967, which was the last date for filing the nomination papers. It has been further added that the notice in question was sent to the Petitioner through a municipal peon as well as by registered post, but that the Petitioner had declined to receive the same when tendered to him by the peon. In the return of the Scrutiny Officer (Shri Santokh Singh, Respondent No. 4), it has been stated that the unsigned memorandum [Annexure A.) was placed on the nomination papers and the Secretary was summoned and examined, who stated that the Petitioner owed dues to the municipality on account of certain works executed by him in the past and that the Petitioner could not give any evidence in rebuttal and could not satisfy the Scrutiny Officer that he did not owe any dues to the Committee. In the affidavit of the Secretary, Jagraon Municipality, it has been admitted that the Petitioner had been finally paid for other works carried out by him except for the repairs of certain roads and that the securities of other works had been released. There was some audit objection pending with the Jagraon Municipality against the Petitioner which involved certain recoveries from him. Correctness of the copy of Annexure ''A'' produced by Joginder Singh has also been testified in the Secretary''s affidavit. A copy of the notice in question along with copies of the reports thereon, has been filed with the affidavit of the Secretary. The copy of the notice is according to Annexure ''A'', which has already been reproduced in an earlier part of this judgment. Below the notice, there is an endorsement in Urdu by a Municipal peon (Beldar) to the effect that he had gone to the house of the Petitioner thrice but had not succeeded in effecting service on him, as the Petitioner had refused to take the notice. The report is dated September 2, L967. Below the report, there is an order of the Head Clerk (H.C.) bearing the same date, directing that the notice be delivered to the Petitioner by registered post. Then there is an endorsement by the Secretary of the municipality dated September 4, 1967, approving of the procedure suggested by the Head Clerk and directing service of the notice on the Petitioner under registered cover. The last endorsement on the copy of the notice produced by the Secretary of the Municipality is about the notice having been despatched by registered post on September 7, 1967. A copy of the audit objections has also been filed with the affidavit of the Municipal Secretary. Reference is made in the objections to certain excess measurements and it is stated at the end that "The excess should be approved before final payment is made". It is really in the nature of a usual audit objection requiring approval for certain payment and does not, by itself, suggest recovery of any amount being effected from the Petitioner. I am, however; not concerned with this aspect of the case as I have to presume for the purposes of deciding this writ petition that the municipality did decide to make certain recoveries from the Petitioner on account of the aforesaid audit objections. Though the amounts of relevant vouchers mentioned in the audit objections were Rs. 2,887.96 Paise under item 20 and Rs. 240.25 Paise under the other item, no particular sum was mentioned as due from the Petitioner. No definite amount was claimed from the Petitioner in the notice of demand dated September 1, 1967. I will similarly have to assume without myself deciding about the matter that Annexure ''A'' is a true copy of the notice, which was in fact sent to the Petitioner on September, 2, 1967; and that he refused to accept the same and further that this should be deemed to be sufficient service of the notice on him on September 2. It is on the above-said assumptions that I proceed to decide the questions of law raised by the learned Counsel for the Petitioner as I do not find my way to embark upon any enquiry in these proceedings about some amount having in fact been due from the Petitioner to the Jagraon Municipality or not.

The only ground on which the nomination paper of the Petitioner was rejected was the one covered by Clause (g) of Rule 7. Rule 7 must be construed strictly as it takes away from citizens their democratic right of seeking election to a Municipal Committee. A plain reading of the relevant Clause (already quoted above) shows that two conditions precedent must be satisfied before a person is held to be ineligible for election as a member of the municipal committee in the Punjab under that clause, viz., (1) that the Petitioner is in arrears of any kind of dues to the Municipality and (2) that a special demand in that behalf had been made upon him by the Committee. The Scrutiny Officer and the Revising Authority had found that the Petitioner was in arrears and it is neither necessary nor proper for me to go into the question of correctness or otherwise of the said finding for the purposes of deciding this case. All that is, therefore, to be decided, is whether the second condition precedent had in fact been satisfied in this case or not. The learned Advocate-General frankly conceded that the special demand referred to in Clause (g) of Rule 7 must be made in case of arrears of any kind whatsoever and the requirement ot such a demand being made is not restricted to arrears of house tax and other taxes referred to in Sub-section (2) of Section 80 of the Act. That section is in the following 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 suficient 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 my 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 Corn-mil tee 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 authorize 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 rent then or thereafter due by him to the owner.

Mr. Sodhi, learned Counsel for Respondent No. 5, did not admit this position to be correct in so many words. While dealing with that matter, Mr. Sodhi had to admit that the requirement of the special demand is related to all the arrears on account of non-payment of which the disqualification is incurred under Rule 7(g) but he emphasised that it is not necessary to make the demand by written communication and that if the candidate concerned is aware of the fact that some amount is outstanding against him, this should be deemed to be a sufficient demand. It was further submitted on behalf of Respondent No. 5 that the Petitioner was presumed to have been aware of the demand, and, therefore, presumed to have had notice of it when he could not obtain the "No Demand Certificate" from the municipality though such certificates are alleged to have been filed by the other candidates. The alleged approach of the Petitioner to the Municipality for obtaining such a certificate and the alleged refusal of the Municipality to give one to him, it is argued by Mr. Sodhi. amounts to a special demand having been made on him. The question thus boils down to this. "What is the meaning of the expression ''Special Demand''?" I have no hesitation in holding that whatever may be the scope and meaning of the expression ''Special Demand'', such a demand must have been made before the relevant time in connection with the arrears for the non-payment of which the disqualification referred to in Clause (g) of Rule 7 is claimed to have been incurred. I do not think that if a person goes to the Municipality and asks for a ''No Demand Certificate'' and the same is refused to him, this can amount to a demand having been made by the Municipality on the person concerned. A demand is necessarily not a negative thing but a positive Article The phraseology used in Clause (g) of Rule 7 itself shows that the candidate concerned being merely aware of his being indebted to the Municipality is not "enough to incur the disqualification in question, but that in addition to the arrears being due, a special demand must have been made on the candidate by the Municipality itself. The sense in which the word "Demand" has been used in Clause (g) is to claim, to ask peremptorily or authoritatively, or to call for, or to ask for what is due." No demand is made unless claim is made for the amount. I would go to the extent of holding that if a Municipal Committee was to write to a person that something was due from him but not to make any claim for the same in the communication, it would not amount to a "Demand", but a mere intimation of the outstanding. It would, however, depend upon the circumstances of each case, as no particular form of the requisite demand has been prescribed under the rules.

What is significant is that for purposes of incurring the penal consequences of Clause (g) of Rule 7, it is not a mere ''demand'' which is enough, but what is required is a "special demand". The word ''special" in its ordinary dictionary meaning signifies-"particular; peculiar; distinctive; exceptional; additional to ordinary; detailed, etc". (Chambers''s Twentieth Century Dictionary). Mr. Hans Raj Sodhi referred to the judgment of the Division Bench in Mohinder Singh v. Abhe Raj Singh and Ors. 1965 P.L.R. 141 wherein it was held that the word ''special'' in Rule 7(g) merely means that in the demand u/s 80(2) of the Punjab Municipal Act, it has to be specified under what particular head the demand was being made. In the instant case, we are not concerned with the demand under Sub-section (2) of Section 80 of the Act. Moreover; in Mohinder Singh''s case there was no dispute about the exact amount of the demand as it had been found as a fact that Mohinder Singh was a defaulter of the municipal dues amounting to Rs. 892.16 in respect of house-tax and Rs. 215.71 in respect of rent of certain tin-sheds. It was the common case of the parties in Mohinder Singh''s case that four demand notices u/s 80 of the Act had been issued to him in respect of the above-said arrears; and even a warrant for the recovery of one of the amounts had been issued u/s 81 of the Act. It was tried to be argued on behalf of Mohinder Singh that the special demand referred to in Rule 7(g) is something quite different from a notice under sectior 80(2) of the Act. That argument was rejected by the Bench. No such question arises in the instant case. On the other hand, reliance was placed by the learned Counsel for the Petitioner on the judgment of Pandit, J. in Amar Singh v. Sada Nand and Ors. 1965 P.L.R. 760. In that case it was held that Amar Singh was not ineligible for election as a member of the Municipal Committee, even if, he was in arrears on the date of the filing of his nomination papers as he had not been served with a special demand notice. On that basis the order of the prescribed authority passed in an election petition was set aside. The notices which had been sent by the Municipality concerned to Amar Singh were held by the learned Judge to be not special demand notices'' as envisaged by Rule 7(g).

Considering all the circumstances of the case and after carefully analysing the terminology of the notice (Annexure A), I am of the opinion, that the said notice does not amount to a ''special demand''. No definite amount has been demanded in the notice. The fact that on taking further oral evidence of the Secretary of the Municipal Committee, it could be found as to what was the approximate amount in fact due from the Petitioner, cannot be considered to be a valid substitute for the second requirement of Rule 7 (g). The said evidence may at best prove that the Petitioner was in fact in arrears to the Municipality. But the second condition precedent for invoking the said rule still remained to be satisfied. Error of law is apparent on the face of the order of the Revising Authority (Annexure C), wherein he has observed that the requirement of service of a special demand pertains only to arrears of tax mentioned in Section 80 and not to arrears due from a contractor on account of a work contract. The Revising Authority did not hold that a valid special demand had been made on the Petitioner. On the contrary, it appears to have been held that Rule 7(g) did not require any such thing in so far as the demand arose from a work contract as distinguished from a demand of arrears of taxes referred to in Section 80. The only sense in which the notice issued by the Municipal Committee (Annexure A) has been referred to in the impugned order of the Revising Authority is to support the finding that something was in fact due from the Petitioner to the Municipal Committee. The impugned order of the Revising Authority has to be set aside on the ground that it is vitiate''d by the above-said error of law apparent on its face. The question of the factum of making the special demand or its validity does not appear to have been dealt with by the Scrutiny Officer.

It is needless to go into the other questions raised by the learned Counsel for the Petitioner in view of the fact that the alleged special demand admittedly did not come into existence before September 1, 1967, the date of Annexure ''A'' and is not even claimed to have been served on the Petitioner on any day prior to September 2, 1967. Rule 16(1) (a) of the Municipal Election Rules is in the following terms:

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.

A mere reading of the above-quoted rule shows that the ineligibility of the candidate for election under the provisions of Rule 7 has to be determined as on the date fixed for the filing of nomination papers. It has been admitted in the return of Respondent No. 5 that 25th of August, 1967, was the last date fixed for filing the nomination papers. That indeed was the day on which the Petitioner filed his nomination paper. The jurisdiction of the Scrutiny Officer and of the Revising Authority to reject the nomination papers of the Petitioner under any of the clauses of Rule 7, was. therefore, restricted by or eration of Rule 16(1)(a) to the determination of qualification or disqualification of the Petitioner as on 25th August, 1967. Inasmuch as the making of a special demand is a sine-qua-non for incurring tie disqualification referred to in Clause (g) of Rule 7 and inasmuch as the notice was not even prepared before September 1, 1967. Respondents 3 and 4 had no jurisdiction to reject the nomination papers of the Petitioner on the ground mentioned in Clause (g) of Rule 7. Both the impugned orders (Annexure ''B'' and ''C'') are liable to be set aside on that ground.

The learned Counsel for the Respondents raised a technical objection as to the maintainability of this petition on the ground that the Petitioner has got an alternative remedy by way of filing an election petition after the election and this Court should not pronounce in advance on the questions which would obviously be within the jursiiiction of the Election Tribunal to adjudicate upon. A similar objection was repelled by Mahajan, J., in Babu Ram v. The Slate of Punjab and Ors. ILR (1962) 1 P&H 176 in the following words:

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, there is no reason why the High Court should not interfere and correct the error for otherwise the parties will be put to unnecessary expense and worry in the election.

I am not only bound by the above-quoted observations, but am in full and respectful agreement with the same. In as obvious a matter as the one involved in the instant case, it would be meaningless to drive the persons concerned to all the expense and botheration of an election and to unnecessarily postpone the decision on a question which is bound to be raised at a later stage. The cases relied upon by Thakur Prasad Vs. V.S. Mehta and Others, and Hariprasad Khadak Singh Vs. State of Madhya Pradesh and Others, do not lay down as a rule that no petition under Articles 226 and 227 can be granted to quash an order which is vitiated by an error of law on its face, merely because it would be possible to remove that error in an election petition after the elections have been completed. I have, therefore, no hesitation in over-ruling this objection of the learned Counsel. The learned Advocate-General then contended that the petition should be dismissed as the Petitioner has not impleaded the Municipal Committee, Jagraon as a Respondent in the case. I do not consider the Municipality to be a necessary party to this petition, though it could be argued that the Municipal Committee was a proper party. Had any of the Respondents raised this objection in his written statement, the Petitioner might as well have impleaded the Municipality. It appears to be unfair to the Petitioner to allow this objectirn to be raised during the hearing of the petition. I did not, therefore, allow this question to be raised for the first time during the middle of the hearing of the arguments in the case, when it was sought to be urged.

I would, therefore, hold (1) that making of a special demand mentioned in Rule 7(g) of the Punjab Municipal Election Rules, 1952, is a condition precedent for incurring disqualification from eligibility for election as a member of a Municipal Committee under the Punjab Municipal Act, 1911;

(2) that the making of such a special demand is necessary not only in relation to demand referred to in Sub-section (2) of Section 80 of the Punjab Muinicipal Act, but is a condition precedent for invoking the above-said disqualification in relating to arrears of any kind due to the Municipality;

(3) that the point of time at which the candidate should be disqualified under Rule 7(g), i.e., the date on which he should be not only in arrears, but by which the special demand should have been served on him, is the last date by which the nomination papers have to be filed according to the election programme issued by the Competent Authority under the rules;

(4) that the mere intimation of some outstandings either orally or by a written communication without mentioning the amount due and without requiring its payment does not satisfy the requirements of a "special demand'''' envisaged by Rule 7(g).

For the foregoing reasons, this writ petition is allowed and the impugned orders of Respondents 3 and 4 (Annexures ''C and ''B'' respectively) are set aside and quashed. I, however, make no order as to costs.

At this stage Mr. C.L. Lakhanpal, learned Counsel for the Petitioner, prays for a direction about telegraphic intimation of this order being sent to the Deputy Commissioner, Ludhiana and the Sub-Divisional Officer, Jagraon. Following the precedent of the case Babu Ram v. The State of Punjab and Ors. ILR (1962) 1 P&H 176, decided by Mahajan, J., I allow this reqi est and direct that a telegraphic intimation of the acceptance of this writ petition and the consequential acceptance of the nomination papers of Duni Chand, Petitioner, be sent to the Deputy Commissioner, Ludhiana and the Sub-Divisional Officer, Jagraon, at the Petitioner''s cost.