Sudhakar Shankarlal Naval vs Arunlal Govardhandas Gujrathi

B.N. Deshmukh, J.—This is a petition to quash the order of the Returning Officer, who was appointed at the elections of the Chopda Municipal Council, rejecting the nomination paper of the petitioner. This order was confirmed in appeal by the Assistant Judge, Jalgaon, and hence this writ petition. The facts leading to the present petition are few and simple. Under the provisions of the amended Maharashtra Municipalities Act, 1965, an election programme was declared for the Chopda Municipal Council by the Collector of Jalgaon. The petitioner filed his nomination paper for the purpose of contesting the post of the President of the Municipal Council. Respondents Nos. 2 to 9 were the other candidates along with him. The nomination papers were required to be filed between October 14 and October 21, 1974. Respondent No. 10. in this petition, is the Returning Officer. The date of the scrutiny for these nomination papers was October 22, 1974. It is the case of the petitioner that he made enquiries in the Municipal Office about the taxes due from him and on information received he deposited Rs. 494 in the treasury of the Municipality on the same day. Thereafter he filed his nomination paper on October 21, 1974, which came up for scrutiny on October 22, 1974.

At the time of the scrutiny respondent No. 1, the rival candidate, raised an objection to the petitioner''s candidature. The only ground was that the petitioner was in arrears to the extent of Rs. 28 as dues for the cycle tax. According to the respondent No. 1, a bill was served on the petitioner in this behalf and a certified copy was obtained by him on October 20, 1974. That bill or a certified copy of that bill along with the certificate of posting under which it is supposed to have been sent to the petitioner are produced in this petition at Exh. 3 at page 57 of the paper book. The bill is dated October 1, 1973. The main objection was that this was a bill despatched to the petitioner under certificate of posting through post and it must be presumed u/s 325 (5) of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the ''said Act'') that it was received by the petitioner on the next day. This bill is in confirmity with the requirements of section 150 of the said Act, and therefore the petitioner is disqualified, being in arrears of municipal tax on the date of the scrutiny in spite of the service of a notice u/s 150 of the said Act.

The petitioner denied before the Returning Officer that he was in arrears of the amount and also denied that he ever received a bill like Exh. 5 before us. According to him, he had a bicycle sometime before 1961. In 1970 he received a bill claiming cycle tax along with the arrears and he wrote a letter to the Municipality intimating them that nothing was due from him, as he did not own or possess a bicycle from 1961. His further case is that not only no further steps were taken as is required for non-payment of the amount but he never received any further bills for any subsequent years. He had therefore reason to believe that the Chief Officer was satisfied that nothing was due from him and the notice stood cancelled.

Having heard the rival contentions and after looking into the bill at Exh. 3, the Returning Officer held that this was a bill in accordance with the provisions of section 150 of the said Act and since it was posted under a certificate of posting as required by sub-section (5) of section 325 of the said Act, a presumption of service must be raised. Since he was admittedly in arrears as having not paid that bill, he was disqualified u/s 16 (1) (h) of the said Act.

An appeal carried to the District Court failed as the Assistant Judge, who decided it, also confirmed both the findings of the Returning Officer. Being aggrieved this petition is filed.

Only two points arise for our consideration. The first is whether the notice, Exh. 3, is in consonance with the provisions of section 150, and the second is whether a presumption of service is required to be raised in this case under the provisions of sub-section (5) of section 325 of the said Act. Before, however, we consider the merits of the petition, it would be appropriate to dispose of some of the technical objections raised by Dr. Naik on behalf of respondent No. 1,

His first technical objection was that the Municipal Council not having been made a party, the petition suffers from the non-joinder of necessary parties. We find no substance in this contention. At the moment the nomination of candidates alone is under scrutiny and examination. So far as the scrutiny of nomination paper is concerned, as provided by the Maharashtra Municipalities Election Rules, 1966, (hereinafter referred to as the ''Rules'') the scrutiny is to be conducted by the Returning Officer on the day fixed for that purpose. While examining the nomination papers he had to decide all objections which may be made to any nomination or has to take into consideration suo motu any objection that may occur to him and has to decide all such objections including those raised by him after such summary enquiry as he thinks necessary and thereafter either reject or accept the nomination papers. This is the function performed by the Returning Officer under sub-rule (2) of Rule 13 of the Rules when he passes an order on each of the nomination papers either accepting or rejecting the same. The order is appealable at the instance of any of the candidates who are contesting that post. This is provided by Rule 15. The appeal lies to the District Judge of the district in which the municipal area is situate. Who shall be made parties to this dispute is not specifically laid down by the Rules. It is obvious that so far as the scrutiny before the Returning Officer is concerned, the person who would remain present as laid down by the Act and the Rules arc the candidates themselves and two representatives of each of the candidates. It is the candidate who has to object to the nomination of his rival and it is the candidate who is given the right of appeal to the District Court. This decision is final and the decision of the Returning Officer subject to this right of appeal is also made final by sub-rule (10) of Rule 15 of the Rules.

Though there is no specific provision, it is clear that the candidates alone would be present along with their authorised representatives before the Returning Officer and it is the candidates alone who would be made parties in the appeal along with the Returning Officer as an authority who decided the objections. That has been done in this case. While filing the present petition, the petitioner joined all the rival candidates including respondents Nos. 2 and 6 who had subsequently withdrawn. In view of the fact that they had withdrawn from the elections their names were deleted from this petition. After joining the first nine respondents as his rival candidates, the petitioner has joined respondent No. 10 as the Returning Officer and respondent No. 11 the Judge who decided the appeal under Rule 15 as formal parties.

Even though the Rules do not give any specific guidance regarding the parties to be made in this dispute considerable light can be derived from the provisions of section 21 of the said Act which deals with disputes in respect of election, co-option or nomination of Councillors. Sub-section (1) of section 21 generally declares a right to challenge the elections. Sub-section (2) lays down the contents of the petition. Sub-section (3) deals with the reliefs or declarations that should be asked for by the petitioner in the election petition. There are three clauses to sub-section (3) of section 21. The first clause says that a petitioner can ask a declaration that the election of all or any of the returned candidates is void. Sub-section (4) which deals with the parties to be made when certain declarations are sought under sub-section (3) points out that the petitioner shall join as respondents to his petition the returned candidate or candidates in respect of whom such declaration is claimed. Under clause (b) of sub-section (3) the declaration claimable is that the election of all or any of the returned candidates is void and that he himself or any other candidate has been duly elected. When such a declaration is claimed, under clause (b) of sub-section (4) of section 21 all the contesting candidates other than the petitioner have got to be joined as party respondents. When we go to the provisions of clause (c) of sub-section (3) of section 21 when the co-option or nomination of all or any of the co-opted or nominated councillors is to be challenged as void, under clause (d) of sub-section (4) of section 21 all or any of the co-opted or nominated councillors in respect of whom such declaration is claimed and the Council who co-opted the councillor or the State Government who nominated the councillor, must also be added as party respondent. It therefore, appears that before the election process is completed and before the Council is really formed, which Council co-opts additional members, the Council does not seem to come in picture at all. When the co-option of the councillors is to be challenged, the Council must be made a party and when the nomination by Government is to be challenged, the State Government must be made a party. These provisions clearly indicate that at earlier stages when nomination is under challenge, the Municipality is nowhere in the picture and it need not be joined as a party respondent. We are therefore of the view that this technical objection raised by Dr. Naik has no substance and must be rejected.

The next general objection to the entertainment of the petition is that the Court shall not entertain a petition of the present type because the elections of the candidates can be challenged only once when the election process is complete. There are no two stages when the challenge is to be thrown as is sought to be thrown by the petitioner and thereafter by a general election petition. What is argued is that under the Rules the right to challenge nomination is given only to the rival candidates and the right of appeal is also confined to these candidates. These Rules seek to make the decision of the Returning Officer and the District Judge respectively as final under the provisions of sub-rule (10) of Rule 15. Dr. Naik wanted to argue that this provision is ultra vires the Maharashtra Municipalities Act, but could not support that argument any longer when his attention was drawn by the learned counsel for the petitioner to the provisions of section 17 of the said Act. Section 17 specifically empowers the State Government to make Rules generally to provide for or to regulate matters in respect of elections to be held under this Act. This is an additional provision besides the provisions of Chapter XXIV which speak of the Rules and by-laws making power of the State Government in relation to this Act. Sub-section (1) of section 17 generally authorises the State Government to make Rules in the matter of regulating elections; sub-section (2) thereof points out that without prejudice to the generality of the foregoing powers, the State Government may make Rules with regard to all or any of the following matters. Thereafter follows a list of several matters contained in clauses (a) to (g). Clause (d) of sub-section (2) of section 17 is relevant for our purpose. It permits Rules being made in the case of nomination of candidates, form of nomination paper, objections to nominations, scrutiny of nominations and appeals against acceptance or rejection of nomination papers. In view of this statutory provision permitting the State Government to make Rules for the regulation of the election, it is futile to argue that Rule 15 is ultra vires the Act.

He then argues that the normal approach to elections adopted under Article 329 of the Constitution, and the provisions of the Representation of the People Act, 1951, is that an election shall be challenged only once and that too after the candidates are returned and declared elected. He cited some of the judgments of the Supreme Court and also drew our attention to the provisions of section 80 in Chapter II of the Representation of the People Act. It is not necessary to enter into a detailed discussion in that behalf. Suffice it to say that so far as this Court is concerned, the point seems to be already concluded. The provisions of the Maharashtra Zilia Parishads and Panchayat Samitis Act (Maharashtra Act No. V of 1962) in the matter of the elections are pari materia with the provisions of the Municipalities Act, 1965. While interpreting some of the provisions of that Act it has been found that rights relating to the elections not being common law rights or fundamental rights, it is the provisions of the statute that determines the extent and the contents of that right. Some observations of the Supreme Court in the case of Jagan Nath Vs. Jaswant Singh and Others, have been relied upon to show that the general rule is well settled that the statutory requirements of election rules must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. The learned Judges of the Division Bench of this Court held that the right to challenge elections seems to have been divided into two parts, as if, so far as the nomination of candidates is concerned, the right is vested with the rival candidates and the remedy is through the provisions of the rules by filing an appeal to the District Court. That being so, the normal right of any voter to challenge the election seems to have been curtailed to the extent of challenging the validity of nominations. Barring this ground, the rest of the grounds are always open to any voter to urge against a successful candidate and challenge his election. Since we find that with minor difference in the language the provisions of this Act are similar to the provisions of the Zilla Parishads and Panchayat Samitis Act, which were dealt with exhaustively by the learned Judges in the case of Venkatrao Vithalrao Vs. Vithal Sambhaji, , and since we are in respectful agreement with the views expressed therein, we think; that there can be no technical objection to the entertainment of the present petition.

The third ground urged by him was that a litigant has no right to move the Court under Articles 226/227 of the Constitution, but this is a discretionary remedy. The Courts have always entertained petitions where there has been a failure of justice. However, where the effect of entertaining a petition and passing an order would be that injustice would be perpetrated or an unfair advantage would be gained by a petitioner, the Courts refrain from entertaining such petition. He relied upon the judgment of the Punjab High Court for making such general observation as also the judgment of the Supreme Court in A.M. Allison Vs. B.L. Sen, . There can be no quarrel with the general proposition that a special remedy afforded by the Constitution under Articles 226,227 should not lead to the perpetration of injustice. However, whether the factual situation is of that type, depends upon how one looks upon the facts and circumstances of the case.

In the petition before us for instance, a disqualification has been alleged against a person who has been described to be a leading medical practitioner and a property owner of Chopda. The total allegation of arrears against him is, so far as the record goes, that he has not paid cycle tax to the tune of Rs. 28. Apart from the fact that he is seriously disputing his liability to pay that tax at all, since he does not own a bicycle from 1961 onwards, the question is that mere existence of arrears of tax is not a disqualification under the Act.

The provisions of section 16 (1) (h) of the said Act which creates disqualification lay down that no person shall be qualified to become a councillor whether by election, co-option or nomination who is in arrears (otherwise than as a trustee) of any sum due by him to the Council after the presentation of a bill therefore to him u/s 150. What is, therefore, required is that not only that a person must be in arrears but a bill must be presented to him u/s 150 of the Act. Three things therefore seem to be necessary. They are, arrears of the Municipal Council which are due, a bill as required by section 150 and the presentation thereof to the person concerned. When these things exist and still there is non-payment, the disqualification attaches and the nomination paper has got to be rejected.

The dispute in this case is confined to two important allegations. One is that no bill was ever presented to the petitioner. It is not the case of the objector that a bill was personally presented by an officer or a servant of the Municipal Council to the petitioner. The only allegation is that in accordance with the provisions of section 325 (5) of the Act a bill was sent under certificate of posting and the presumption required by that sub-section be raised and it be held that the petitioner is served. The next bone of contention is whether the so-called bill, of which a certified copy is made available to us, is as required by the provisions of section 150. Assuming that an inference of service is to be drawn, is the bill which is supposed to have been sent of a type which is required by section 150 -- One has to merely read the bill as is produced and draw an inference of law whether all the requirements of section 150 are satisfied. Both these are essentially questions of law and they are also points of general importance on which the view of this Court should be known, so that the Returning Officers and the District Judges, who are made the appellate Authority, should have guidance as to what inference should be drawn. If on both these points erroneous inferences are drawn, the provisions of the statute are not followed and a consequential decision is undoubtedly unjust to the petitioner. It is from this point of view that we are inclined to think that the petition should be entertained and the views of this Court on both these points of law should be made known. We may add that so far as the contents of a bill u/s 150 of the present Municipalities Act is concerned, there is already a reported judgment of this Court in the case of Kasturchand Kisanlal Chandak Vs. District Judge, Nagpur and Others, . That judgment is clear enough on the requirements of the contents of a bill u/s 150. However, the Returning Officer and the appellate Authority in the appellate Court have distinguished this judgment on facts, though in our view, the principle laid down in that case is attracted by the facts and circumstances of the present case.

We will now take up the two main points which arise in this case for our consideration. Is the present bill, exh. 3, in accordance with the provisions of section 150 -- Section 150 requires that when any amount becomes due to the Council under this Act or the rules or by-laws framed thereunder, the Chief Officer shall, with the least practicable delay, cause to be presented to the person liable for the payment thereof, a bill for the sum claimed as due. This is provided by sub-section (1). Under sub-section (2) every such bill shall (i) specify the period for which the sum is claimed, (ii) specify the property, occupation or thing in respect of which the sum is claimed, (iii) also give notice of the liability that would be incurred in default of payment within specified time, and (iv) give the time within which an appeal may be preferred as provided by the provisions of the said Act, So far as the bill u/s 150 is concerned, the section does not prescribe any pro forma. Dr. Naik tried to argue that the bill, exh. 3, is in a prescribed form and since the municipality has filed the prescribed form as laid down by the Maharashtra Municipal Accounts Code, 1971, the legality of that bill could not be challenged. We are unable to agree with Dr. Naik that any form has been prescribed for a bill u/s 150.

Dr. Naik took us through the provisions of Chapter VIII of the said Act relating to the budget and account, and particularly drew our attention to the provisions of section 102 relating to the Municipal accounts. He says that under sub-section (1) of section 102 accounts of the receipts and disbursements of every Council shall be kept in accordance with the rules contained in the Municipal Account Code prescribed by the State Government and shall be placed before the Council in the prescribed manner. He, therefore, says that the Maharashtra Municipal Accounts Code, 1971, of which a copy was made available to us, is the prescribed Code u/s 102. This Code contains two relevant Rules, viz. 76 and 77. Under Rule 76 demand register is dealt with and a form under which a demand register has to be prepared, maintained and entries made by the officers of the municipalities has been laid down. When such demands are posted in the demand register, under Rule 77 bills are to be prepared in Form 48 and presented to the tax payer. He therefore says that the present bill, Exh. 3, being in Form 48 prescribed by the Code, which itself is a prescribed Code u/s 102, the bill must be deemed to have been in a prescribed form.

We may point out that there is an obvious fallacy in this argument. Section 102 deals with the maintenance of the accounts in respect of receipt and disbursement and for that purpose provides a prescribed Code. Presentation of a bill precedes receipt but it is neither receipt nor disbursement Section 102 therefore does not specifically deal with the form of bills. Section 150 which speaks of the contents of a bill before it is presented does not say that the bill shall be prepared in a prescribed form. That section remains content by pointing out what particulars must be mentioned in a valid bill under it. The Government undoubtedly has right to make Rules u/s 321 of the said Act for carrying out the purpose of the Municipalities Act generally. For the sake of uniformity and as a matter of facility, the Code may include a form of bill that might make the task of the municipal auditors, who have to audit the Municipal accounts all over the State, easy. However, section 150 does not speak of a prescribed form in which the bill must be presented. A form of bill suggested under the Code which the municipalities may be bound to follow does not become a prescribed form of bill for the purpose of section 150. In the earlier judgment of this Court in the case of Kasturchand this question has been discussed at length and it is pointed out that section 150 does not prescribe any pro forma of a bill. It would be enough if all the requirements of that section find place in a bill, irrespective of the form in which it may be presented, the bill becomes valid one.

The only small question, therefore, that now remains is whether the bill, Exh. 3, contains all the four requirements of a valid bill u/s 150. Shri Hattangadi, counsel for the petitioner, attacked this bill by pointing out that it does not contain the period for which the Municipal Council claims the a mount as due. He referred us to the top line in the bill, which is as follows:

Bill for the tax ending with the period 31-3-1974

Shri Hattangadi relied upon one of the meanings of the word ''period'' noted in the Oxford Dictionary as being portion of time which has a starting point and terminal point. He says that the terminal point has been mentioned in this bill, but not the starting point. We are not much impressed with this argument. The description in the title of the bill is that "it is a bill for a period ending with......." The municipal taxes are always for a year and the period which is referred to here is undoubtedly a municipal year ending with March 31, 1974. Now the municipal year has been defined by the provisions of section 2, clause (31) of the said Act. The definition is ''official year'' or ''financial year'', and that is the year which commences on the first day of April It is important to note that in the definition in clause (31) of section 2, only one date is given, viz. beginning with April 1, which by necessary implication must end with March 31 that follows. If, therefore, the period of Municipal tax is the one ending with March 31, 1974, it is undoubtedly for a period which began on April 1, 1973. The bill at the top portion does describe that it is a bill for the current year 1973-74 and it purports to have been prepared on October 1, 1973.

This general reference in the top of the bill would not serve the purpose in the present case because the entire tax that is claimed is for arrears Now, what is described in the margin in the first column is in relation to the head of the tax for which the bill is prepared, the second column is for the arrears of tax, the third column is for the current dues and the fourth column is the total of the claim. In the bill in question, Exh. 3, Rs. 28 are claimed in the second column as arrears. Nothing is shown for the current year and Rs. 28 are again shown in the last column as the total dues. The wording of section 150 and the contents thereof require that the assessee must be apprised of the period for which the particular amount claimed is due. We might pointedly refer to the opening part of sub-section (2) of section 150 which says that every such bill shall specify the period for which the sum is claimed. What is therefore necessary is that the bill must show on the face of it that the demand made relates to a particular period.

It is possible to look at the bill from two different points of view. It there is only one item claimed and that is mentioned in the third column of current demand, it is possible to say that by looking at the bill as a whole one may come to the conclusion that this being the bill for the current year and only that year''s taxes are claimed, it would be a bill for the current year which began on April I and ended on March 31 of the following year. However, when a bill like Exh. 3 is before a Court or an assessee, it gives him an information that the municipality is claiming Rs. 28 for the cycle tax and the entire tax is for the arrears. We may concede for argument''s sake that an assessee who knows that the cycle tax is Rs. 2 per year may calculate and imagine that this is a tax for fourteen years. The question, however, is not yet solved. Which fourteen years in the past are those for which this is a bill? The wording of section 150 (2) requires that ''the period for which a particular bill is claimed'' must be specified. The intention of section 150 (2) is that it must give a clear information to the assessee of the four requirements of this section, so that nonpayment of that tax will lead to the penal consequences like a notice of demand and a distress warrant.

Dr. Naik drew our attention to the provisions of section 332 of the said Act which declares that any informality, clerical error, omission or other defect of form in any assessment made or in any distress levied or in any notice, bill, summons or other document issued under this Act will not render the assessment, distress, notice, bill or any other document as invalid or illegal provided there has been a compliance in substance with the provisions of the Act or the Rules or the bye-laws. This section, which seems to be new in the Municipalities Act is relied upon by him to show that substantial compliance with the provisions of the Act or the Rules or bye-laws may be enough. According to him, the bill, Exh. 3, has substantially complied with the provisions of section 150, We think that so far as the present bill Exh. 3 is concerned, it is not possible to say that it complies with the provisions of section 150 even in the manner laid down by section 332. Service of a bill u/s 150 is a mandatory provision. While preparing that bill, as one of the documents enumerated in section 332, the particulars which are required to be incorporated in such a document may find place though not exactly in the manner required by the section, but substantially those particulars must appear. In that case, it will be possible to say that in framing a particular bill or assessment order there has been substantial compliance and want of pro forma or the strict manner in which the particulars are to be written would not render the bill or the document concerned illegal or invalid. For instance, taking into consideration the bill which is only for arrears and not for current demand, it might have been enough to say that the arrears of Rs. 28 are from or for that period beginning with one year and ending with the other year. It is not enough to give particulars of each year''s assessment or each year''s liability, as composite period clubbed together with the requisite amount would give sufficient information to the assessee of his liability. This might be a substantial compliance but not a mere entry with the amount due as for the past arrears. We are thus satisfied that Exh. 3 does seem to contain all other particulars, but does not contain the particulars regarding the period for which the bill is being claimed. The bill made in the current year and the top line which we have quoted above, will not be relevant when the bill has to indicate the period for which the amount is claimed. The top line quoted above only shows the period during which the claim is being made. In other words, in the year 1973-74 the present demand is made for the past arrears of which no particular period has been mentioned. The bill also mentions that the assessee has to pay the amount within fifteen days or has to satisfy the Chief Officer as to why he should not be made liable to pay the bill within the period of fifteen days. It also mentions that if the assessee does not want to pay and is unable to satisfy the Chief Officer he may file an appeal as provided by section 150 within the period of fifteen days. If none of these things are done a notice of demand will be issued. It, therefore, appears that out of the four particulars, one particular regarding the period for which the arrears are claimed is not mentioned in the bill in the manner required by section 150 read with section 332. Thus the bill is defective in one important particular and renders the bill Exh. 3 as no proper notice u/s 150 of the said Act.

We find that there is another infirmity in the procedure adopted by the Municipal Council. The petitioner has disputed the receipt of the bill. According to him, he never received such a bill. The evidence for the receipt of the bill by him is not direct but is again a matter of inference to be drawn from the provisions of section 325 (5). Chapter XXV deals with service of notices, execution of works on default and compensation. Section 325 normally conceives of any notice under the Act being served upon the assessee by giving or tendering the notice to him at his address, or alternatively if he is not found at his address by giving or tendering it to some adult member or servant of his family. If none of these modes are available and the person to whom the notice sent refuses to accept it, then by causing the notice to be affixed on some conspicuous part of the building to which the notice relates. These are clearly modes by which any notice under the Act is required to be served upon an assessee.

However, another mode of service is available in case of ''A'' or ''B'' class Councils by sending a bill for any municipal tax to a person who is liable therefore by post. The requirements of this service are that the bill must be sent by post with a prepaid letter under certificate of posting addressed to such person at his "last known place of abode or place of business in the municipal area". When the communication answers this description it is permissible under the Act to raise a presumption that the bill must have reached the party on the next day. This is a deeming provision contained in sub-section (5) of section 325. Reliance is placed in this case upon this mode of service even though the petitioner has denied from the beginning receipt of any such bill by him.

In order to prove the service of this bill a certified copy of the certificate of posting is produced. From the central column of this certificate, it appears that the municipality has despatched three different letters under the same certificate of posting on November 1, 1973. So far as the petitioner is concerned, the total address written is ''Shri Dr. S. S. Nawal, Chopda." There are no other particulars of address. The provisions of sub-section (5) of section 325 which enable a presumption to be drawn that a communication sent through post must have or must be deemed to have been received by the asses-see concerned, in our view, must be strictly construed.

The last clause of sub section (5) of section 325 further makes it clear that in such a case it will be sufficient to prove that the letter was properly addressed and posted under a certificate of posting. What must be proved, therefore, in a case of dispute primarily is that the letter was properly addressed, as conceived of by the sub-section and it was also properly posted under a certificate of posting. The certificate of posting produced along with Exh. 3 might be evidence that the letter was posted. It is argued before us that there is no compliance with the provisions of writing proper address as required by that sub-section, and therefore even the presumption which can be raised does not arise in this case. However, it is open to a party concerned to show that there has been no compliance with the requirements of sub-section (5) in the matter of address or proper posting and therefore the presumption need not be raised.

When we examine the address mentioned on the certificate of posting we find that from the instructions contained on the reverse of the form of certificate of posting that the sender should enter in ink the class of articles, viz., post card, letter etc., the exact address on the article and the total number of articles in places provided on the face of this form. No other information is to be entered. We will assume that the postal instructions were normally followed by the municipal servants and what they wrote on the postal certificate as address was the same as was mentioned on the letter concerned. The total address therefore is "Dr. S. S. Nawal, Chopda" and there is no mention of the place where he resides. What is required by the provisions of sub-section (5) of section 325 is that the letter must be addressed to the person "at his last known place of abode or place of business in the Municipal area." "Place of abode" as the dictionary meaning shows is a dwelling house. The address of the house where the person concerned is residing or staying must be mentioned on the postal communication. When the address is so written the presumption required by that sub-section can be raised and not otherwise.

So far as the postal certificate accompanying Exh. 3 is concerned, it makes no reference to the residential house of the petitioner at all. Neither the lane or the locality nor the house where he is residing has been mentioned. Dr. Naik argued that the petitioner is a leading medical practitioner and a famous person of Chopda. It may, therefore, be assumed that the mention of his name as Dr. S. S. Nawal, Chopda, is enough. He also relies upon an assertion in the affidavit of respondent No. 1 that the petitioner is the only Dr. Nawal in the town. We do not think that such consideration can be allowed to creep in when a presumption is to be raised which can lead to penal consequences.

At any rate when the provisions of section 325 (5) are being construed it is not relevant at all to consider whether the person to whom letter is addressed by the municipality is a famous one or an insignificant person in the village or town. These are considerations which are not at all relevant and cannot be allowed to creep in while construing the provisions of law. The provisions of law appear to be the same, whether the man is a famous man or an insignificant person in the town. Since strict compliance of section 325 (5} can raise a presumption in regard to the service of the bill from which penal consequences can follow, we are of the view, that whether a letter with insufficient or no details of address at all can reach a particular person is not a consideration which should induce a Court in holding compliance with the provisions of section 325 (5).

This, according to us, is the second infirmity in the case. It is not possible to say in the face of clear denial of receipt by the petitioner of any such communication right from the beginning when the dispute was raised before the Returning Officer, that a presumption of receipt should be raised on the basis of postal certificate accompanying Exh. 3. It appears, therefore, that not only the bill is defective but it has not been served upon the petitioner, which is a condition precedent for the purpose of attachment of a disability u/s 16 (1) (b) of the said Act.

Dr. Naik then referred us to a part of the affidavit of his client wherein it is indicated that the petitioner is a defaulter in other respects also. In this Court for the first time earlier bills, for the cycle tax for the years ending with March 1971 and March 1973, are sought to be produced. Besides the production of these two bills, an allegation is made that the petitioner has avoided deliberately certain octroi taxes for which two prosecutions are pending against him. We may point out that this was not the objection raised by respondent No. 1 at all at the earlier stage before the Returning Officer. The provisions of the Maharashtra Municipalities Election Rules permit the Returning Officer to give some time to a candidate to make evidence available to defeat the objections that may be raised or to the objector to substantiate the objections, if the Returning Officer is satisfied that the time is necessary for that purpose. This was not done earlier.

This point was also not raised before the appellate Authority. For the first time such vague allegations are made about prosecutions. Since this was a new material included in the return by respondent No. 1, we allowed a counter affidavit of the petitioner to go on record. In that affidavit he has alleged that nothing at all is due from him to the municipality. The tractor in respect of which he is being prosecuted belongs to someone else. It is irrelevant that that someone else happens to be his brother. The petitioner has also said that he owns a car which he has registered at his residential address at Nandra in Jalgaon Taluka. Sometimes he brings that car to Chopda. However, that does not mean that the car is imported within the municipal limits or is subject to payment of octroi tax. He says that the interested parties in the municipality have prosecuted him on the assumption that he is bringing a new car in the municipal limits.

We need not enter into this controversy for we do not think that any additional disqualification is incurred. This is alleged for the first time in this Court and not before the Returning Officer, nor before the appellate Authority. We have, therefore, refused to look into any other allegations by respondent No. 1 and have confined ourselves to the liability under the bill, exh. 3, alone.

In the view we take since there is no service at all of a bill in law, and alternatively even assuming that there was any service, the bill is not in compliance with the provisions of section 150, the disqualification which arises only after a valid service of a proper notice is not available in this case. The Returning Officer and the appellate Authority both erred in rejecting the nomination paper of the petitioner. The petition thus succeeds and is allowed.

The result is that the petitioner will be treated as one of the valid candidates for the Presidential election. We are told that by the orders of this Court voting was allowed and counting has also been done, and the declaration of the counting in the Official Gazette by the Collector has been prohibited. The injunction will have to be made absolute. In view of that injunction making absolute, there may be no valid and legal declaration of the result of the election at all. However, since the petitioner is now to be treated as a valid candidate for Presidential election, we are satisfied that the so-railed election of the President of the Chopda Municipal Council will have to be set aside, and a direction will have to be given that a fresh election be held at which the petitioner will be allowed to contest the election as a validly nominated candidate. For that limited purpose the Collector, Jalgaon, will appoint a day for the scrutiny by the Returning Officer where the formality of accepting the nomination of the petitioner will be done by the Returning Officer and thereafter a date for voting will be notified and the elections completed accordingly. We, therefore, give a mandate to the Returning Officer to accept the nomination of the petitioner as a valid nomination and declare him as a validly nominated candidate amongst others whose nominations he has already accepted. We also direct that the elections be thereafter held according to the Rules.

Mr. Hattangadi made a prayer at this stage that a direction be given to hold elections within a specified time However, Mr. Salik, Assistant Government Pleader, makes a statement on behalf of the Collector and the Returning Officer that after taking into consideration the local situation, the elections to the office of President of the Chopda Municipal Council will be held within a reasonable time. In view of this statement no direction in that behalf seems to be necessary.

The petition is thus allowed. The petitioner will be entitled to the costs of this petition from respondent No. 1. However, there will be no order as to costs of the other respondents.