Manmal vs Basantilal

V.R. Newasker, J.—This is a petition under Articles 226 and 227 of the Constitution seeking to challenge the election of one Basantilal Sogani as a Councilor to the Municipality at Mahidpur.

The Petitioner had filed earlier an election petition under Chapter VIII of the Nagar Palika Parshad (Nirvachan Evam Chunav) Niyam framed under Madhya Bharat Municipalities Act No. 1 of 1954 before the District Judge; Ujjain. In this petition he had assailed Basantilal Sogani''s election inter alia on the ground that he was disqualified for being a councilor by reason the provision contained in Section 14(1)(i) of the Madhya Bharat Municipalities Act as he had such tax or dues to which Section 94 of the Act applies standing against his name for a period exceeding one year. The tax dues referred to by the Petitioner were (1) Octroi duty for importing a Tractor, a Trolley and an air compressor within the limits of Mahidpur municipality amounting to Rs. 562-0 nP (2) Tax, charges or rent for keeping these articles on the Municipal road or land in front of his house for a period exceeding six months amounting to Rs. 22.87 nP.

The learned District Judge dismissed the election petition holding as regards octroi dues that Section 94 was inapplicable to them by reason of the provision contained in Section 94(1)(b) and as regards tax, rent or charges for keeping these articles on Municipal land in front of his house, that the certificate Ex. D-1 dated 27-3-1961 purporting to be issued under the signature of the Mukhya Karya Palik Padadhikari (Chief Administrative Officer) in the name of the said Basantilal Sogani disclosed that there were no dues outstanding against him on that date and that the said certificate stood unrebutted.

The Petitioner in this petition initially assailed the findings of the learned District Judge on both these points but his earned counsel finally confined his arguments only on the second point. The learned Counsel in this connection has referred to the Petitioner''s affidavit para No. 3 wherein he has staled, ''the alegations in the petition para 20 are true to my personal knowledge''. He also filed at the stage of hearing Notification No. 611 18-6-53 whereby the President of the Mahidpur Municipality had notified that the Rules framed u/s 45 Jha of the Madhya Bharat Nagar Palika Vidhan, 1954 had been made applicable to Mahidpur Municipality as per letter of the Inspector General of Municipalities dated 10-5-1955. A copy of the rules 13, 14 and 15 of the aforesaid rules was also filed to indicate at what rate the tax was livable. On the strength of these documents it is urged that the view taken by the learned District Judge was untenable and that the opponent Sogani was clearly disqualified to become a councilor. He pressed that his election be declared void and that the Petitioner be declared as duly elected to Ward No. 2 for which both he and Basantilal had stood.

Basantilal Sogani who war joined as opponent has not appeared before us. The matter was accordingly heard ex parte.

In our opinion the contention is clearly untenable. In the first place whether Basantilal Sogani was liable to pay for keeping the tractor, trolley and air compressor on the Municipal land in front of his house was a question of fact. The Petitioner was bound to satisfy the learned District Judge who was the Tribunal appointed by the legislature for the purpose that such tax was outstanding. The opponent Basantilal Sogani had placed before him material in the shape of a letter Ex D-1 dated 27-3-1961 under the signature of the Mukhya Karyapalik Padadhikari (Chief Administrative Officer) containing admission that nothing was due against his name in the office of the Municipality till 27-3-1961. The Petitioner did not produce any material to show that this letter did not represent the true state of facts. The learned District Judge therefore was justified in acting upon the prima facie evidence produced before him and holding that there were no dues outstanding against him including those relating tax amounting to Rs. 22-87 nP. This finding was judicially reached. It could not accordingly be said that the finding was illegal or the learned District Judge did not act within the bounds of his authority in reaching that finding. This Court when moved either under Articles 226 or 227 of the Constitution does not become a Court of appeal to review findings of fact or even of law and can not interfere as long as the lower Tribunal has not stopped beyond the bounds of his power. The Petitioner cannot be allowed to take shelter under a material in the shape of a notice of demand which was neither brought to the notice of the learned District Judge nor was in existence when the election petition must have been filed. His affidavit moreover is too vague and contains no averment that the impugned tax amounting to Rs. 22-87 nP was outstanding for a period of more than one year against the opponent. All that is stated in the affidavit is that paras 1 to 20 are true to his personal knowledge. Material paragraph is 9 (a) and it contains and refers to his ground ''that there were arrears of tax, dues standing against'' the name of the opponent for a period exceeding one year. Nothing is mentioned as the source of the Petitioner''s knowledge or the particular tax to which he wanted to refer. An affidavit such as this can hardly be taken as the basis for upsetting an election which is duly declared and upheld even after an election petition. Their Lordships of the Supreme Court in AIR 1961 SC 976 Shri Ambica Mills C.V.S.B. Bhati have referred to the observations of Denning, L.J., in Rex v. Northumberla Compensation Appeal Tribunal 1952 1 K. B. 338, affirming the view expressed by Lord Chief Justice of England in that case that a writ of certiorari can be used to correct errors of law which appear on the face of the record even if they do not go to jurisdiction. Their Lordships however referred to the observations of Venkatarama Ayyar, J., in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, , that the error of law must be self evident.

In the present case it is doubtful whether the finding of the learned District Judge as to the unpaid character of tax for the use of Municipal land by the opponent Basantilal Sogani involves an error of law. Much less can it be said that on the material produced before the learned District Judge it involved an error which was self-evident. The finding is as to a question of fact and that finding was reached on the basis of such material as had been produced before him. Even if it be assumed that while presenting this petition under Articles 226 & 227 of the Constitution the Petitioner was better equipped to prove that the tax for the use of Municipal land was payable by Basantilal and he had not paid it that would not justify him to seek the setting aside of the finding of the learned District Judge in a proceeding of this sort. Moreover it appears that the contention raised on behalf of the Petitioner that the said Basantilal Sogani had failed to pay rent Rs. 22-87 for keeping tractor, trolley and air compressor machine and thereby had incurred disqualification u/s 14(1)(i) involves an assertion that though the amount is styled as rent it is in fact an amount which by or under any of the provisions of this Act, is declared to be recoverable in the manner pro vided by Chapter VII as provided in Section 94(1)(a). It was contended on behalf of Basantilal Sogani before the learned District Judge that the amount such as one in question is not declared to be recoverable under Chapter VII and that therefore its non-payment does not create any disqualification. It was farther contended in the alternative that the same was no longer due. The learned District Judge held that the amount of Rs. 22-87 nP could have been claimed by the Municipality though not as license fee but at least as fees for permission impliedly granted by it to Basantilal by reason of the conduct of the officials of the Municipality in allowing these articles to stand on Municipal land from time to time for at least a period of six months and that consequently the amount had become payable in the manner provided by Chapter VII on presentation of the bill to Basantilal. However he held relying upon Ex. D/1 the certificate referred to above that the amount was no longer payable.

In our opinion apart from the latter finding the earlier finding that the amount of Rs. 22-87 nP demanded by the Municipality was an amount which by or under any provisions of the Madhya Bharat Municipalities Act, is declared to be recoverable in the manner provided by Chapter VII, is also not sustainable.

Basantilal Sogani never sought any license nor permission to allow him to keep these articles. It is therefore difficult to say that the Municipality was justified in charging fees in accordance with Rules framed u/s 45 ()(sic) of the Madhya Bharat Municipalities Act 1954. It was never asserted or suggested by the Petitioner in his election petition that there was an implied permission sought by Basantilal and it was granted to him for keeping these things on the Municipal land. Inaction of the officials of the Municipality did not necessarily mean that it was due to any implied permission. The Municipality ma be entitled to claim any amount for any alleged trespass upon Municipal land but in the absence of any specific pro vision entitling to recover compensation for so doing at a particular rate either as tax or due and that too in the manner provided by Chapter VII its non-payment could not be held to lead to a disqualification u/s 14(1)(i) of the Act

For these reasons petition is without force and is hereby dismissed with costs.