Smt. Anita W/O Siddarth Meshram vs Tahsildar, Kalmeshwar And Others

Heard learned counsel for the petitioner and learned A.G.P. for the respondent No.1.

This petition challenges the acceptance of nomination form of respondent No.3 to contest the election to the post of Sarpanch, Gram Panchayat

Lonara, Tq. Kalmeshwar, District Nagpur by the Returning Officer respondent No.2.

According to the petitioner, the respondent No.3 having not paid the dues to the Gram Panchayat is disqualified under Section 14(1)(h) read with

Explanation 2 of the Maharashtra Village Panchayat Act (in short, “M.V.P. Actâ€). Reliance is placed upon the view taken by the learned

Single Judge of this Court in the case of Taibai w/o. Tulshiram Damle vs. Additional Commissioner, Amravati Division and others, reported in 2008(6)

Mh.L.J. 369. According to the learned Asssistnt Government Pleader, the demand notice was of the date of 26.7.2018 and the failure to pay the

dues in terms of Section 14(1)(h) arises only when there is a failure to pay the taxe within the period of three months from the date on which there is a

demand for payment of dues and this period of time, in the present case would expire on 25th October, 2018.

Firstly, I am not inclined to entertain this petition as the controversy involved here could be appropriately dealt with by filing a regular election

petition, in view of the embargo placed on the power of the Court under Section 15 of the M.V.P. Act. This is a case in which there is no rejection

of the nomination paper but a case wherein there is an acceptance of the nomination paper and, therefore, if any interference is to be made, it would

amount to interfering with the elections. On this count alone, I would not be inclined to make any interference in the present matter. Â

In the case of Taibai (supra), the facts indicated that there was no dispute about the fact that there was a failure to pay the tax and the dispute was

about the day on which the failure to pay the tax was to be made good by paying the tax and in this context, it was held by the learned Single Judge

that the candidates were required to make the payment of the taxes before the commencement of the last day meant for making nomination and not

on the last day of making of the nomination. In the present case, the fact that there was a failure to pay the tax or dues is yet to establish itself. The

reason being that Section 14(1)(h) of the M.V.P. Act itself prescribes time of three months from the date of demand to pay the dues or the tax and

admittedly, this period of time as given by Section 14(1)(h) in the present case, is yet to expire, it would expired on 25th October, 2018. So, there

would be no question of failure of the person on whom the demand is raised to pay the tax or the dues till the time prescribed under the law expires or

in other words even before expiry of the period of time of three months, as laid down in Section 14(1)(h). This being the position here, it cannot

be said that there is a failure to pay the tax or the due as contemplated in law. It is only upon failure to pay the tax or the due that the deemed

disqualification would arise. Explanation 2 (ii) is clear on this aspect of the law. For the sake of convenience, it is reproduced as below :

“failure to pay any tax or fee due to the Panchayat by a member of an undivided Hindu family, or by a person belonging to a group or unit the

members of which are by custom joint in estate or residence, shall be deemed to disqualify all members of such undivided Hindu family or as the case

may be all the members of such group or unit.â€​

It is clear that this explanation tells us that whenever there is a failure to pay any tax or fee due to the Panchayat by a member of an undivided

Hindu family etc., that there shall be deemed disqualification of all the members of the family or as the case may be of the group or the unit

concerned. So, the case of Taibai (supra) would render no assistance to the petitioner in the present case. The time of three months given to the

concerned person by the respondent No.3 in law is yet to expire and till that time, the fact of failure to pay the due or tax cannot be established.

Learned Assistant Government Pleader for the State has also pointed out to me that Section 14 itself is not applicable to a candidate who is desirous

of filing or who has filed the nomination paper for getting elected as a member or Sarpanch of Gram Panchayat. He submits that the opening words

of Section 14 make it clear to us that it is applicable only to those persons who are members of a Panchayat. Learned counsel for the petitioner

submits that even though language of Section 14 on the face of it indicates that it is applicable to a member of a Panchayat, when the Section is read

with Section 13, it would show that resort to the provisions of Section 14 can also be made.

The opening words of Section 14 read thus :

14. Disqualification.Â​ (1) No person shall be a member of a Panchayat continue as such, who Â​

(a).......... toÂ

(k)..........

Section 13 also speaks about disqualification and it is reÂ​produced as below :

Persons qualified to vote and be elected.Â​

In section 13 of the principal Act, for subÂ​sections (1) and (2), the following subÂ​sections shall be substituted, namely :Â​

(1) Every Person whose name is in the list of voters shall, unless disqualified under this Act, or any other law for the time being in force, be qualified

to vote at the election of, a member for the ward to which such list pertains and, Sarpanch of panchayat to be elected directly.

(2) Every person whose name is in the list of voters and who is not less than 21 years of age on the last date fixed for making nomination for every

general election or byeelection shall, unless disqualified under this Act, or under any other law for the time being in force, be qualified to be elected for

any ward of the village and for Sarpanch of panchayat. No person whose name is not entered in the list of voters for such village shall be qualified to

be elected for any ward of the village and Sarpanch of panchayat.

(2A)Â Every person who is not less than 21 years of age on the last date fixed for making nomination for every general election or byeÂelection and

whose name is in the list of voters and who is born on or after 1st January 1995, and who is not disqualified under this Act, or under any other law for

the time being in force shall, unless possesses minimum 7th standard of school education passing certificate or acquired educational qualification

equivalent to 7th standard, as certified by the competent authority, be qualified to be elected as Sarpanch.

(3) Subject to any disqualification incurred by a person, the list of voters, shall be conclusive evidence for the purpose of determining under this Section

whether any person is qualified or is not qualified to vote, or as the case may be, is qualified or is not qualified to be elected, at any election.â€​

In the M.V.P. Act, there is no general eligibility criteria prescribed for being a member of a Panchayat or Sarpanch or UpSarpanch of a Gram

Panchayat. This would mean that the words such as “disqualifiedâ€​ or “disqualificationâ€​ used in subÂ​Sections 1,2 and 3 of Section 13 would

have to be understood by making a reference to the various kinds of disqualifications creating disability upon a member of Panchayat to continue as

such as are prescribed under Section 14 of the M.V.P. Act and, therefore, according to me, learned counsel for the petitioner is right in his submission

that the words “disqualified†or “disqualification†used in Section 13 cannot be ascribed any different meaning than the elucidation of the

concept of disqualification given under Section 14 of the M.V.P. Act. There are also other Sections which refer to disqualification and disability of

the members of Panchayat such as 14A, 14B and 16. These Sections would also have to be taken into consideration for understanding the meaning

of the terms “disqualified†and “disqualification†used in Section 13. This would necessarily mean that Section 14(1)(h) along with second

explanation of the M.V.P. Act would have to be considered for the purpose of ascertaining as to whether or not the nomination form submitted by the

respondent No.3 in the present case should have been accepted or rejected by the Returning Officer. The argument of learned Assistant

Government Pleader for State, is therefore, devoid of merit.

Coming back to the issue involved herein, I would say, I have already made a discussion at length on the issue involved in this petition and I have

also recorded a finding that there is no failure to pay the tax or dues to the Gram Panchayat on the part of the respondent No.3, as of date, as

contemplated by Section 14(1)(h). It would be a different matter if the dues are not paid after the expiry of the period of three months from the date

of demand. But, that occasion has not as yet arrived. This is another reason why this Court is of the opinion that the petition cannot be

entertained.

In the circumstances, I find no merit in this petition.

The petition stands dismissed.

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