T.V.S. Chakapathi Rao and Another vs J. Dakshinamuthy and Others

Viswanatha Sastri, J.—These appeals, have been preferred against the orders of Bhimasankaram J quashing the orders of the District Judge, Krishna, holding that the Respondents in these appeals ceased to hold office as councillors of the Municipal Council of Vijayawada.

Writ Appeals 33 and 35 of 1055 preferred against Writ Petitions 57 and 58 of 1955 raise common questions and may be dealt with together. They, arise out of petitions filed by the Appellants before us u/s 51 of the Madras District Municipalities Act (V of 1920) (hereinafter referred to as "the Act"), for a declaration that the Respondents had ceased to hold office a councillors of the Vijayavada Municipal Council u/s 50, Sub-section (1), CI. (hh) of the Act by reason of default in payment of electric charges due to the Municipality.

In one of these two cases then: was an allegation that there was default in payment of house-tax also, but this allegation was found not to have been established by the District Judge, and is not pressed before us.

The Municipality, a licensee under the Electricity Act, supplies electricity to house-owners who pay the Municipality charges for consumption of electric energy at rates fixed in the agreements entered into between the consumers and the Municipality. Respondents are consumers of electrical energy supplied by tin: Vijayawada Municipality.

The Respondent in Writ Appeal No. 33 of 1955 owns two houses supplied with electricity and had to pay the Munieiuulity Rs. 17-3-ff for February, 1953 and. Rs. 30-7-6 for March, 1953, as electric charges.

On 28th April, 1953, a consumption bill showing the unfits of electricity consumed, the rates at which the consumption was chargeable, the meter rent and the total amount payable in respect of one of the houses of the Respondent was sent by registered post to him. This bill was paid on. 22t;d-September, 1953.

A similar bill in respect of his M-her house was scoot by registered post to the Respondent on 7th May. 1953 and was paid on 20th September, 1953.

A consumption bill in the .same form as stated above was sent to the Respondent in Writ Appeal No. 35 of 1955 by registered post and was paid by him more than three months after the bill was received by him.

The question is whether the Respondents in these two cases have ceased to hold office as municipal councillors by reason of the non-payment of electric charges due from them within three months of the service of the bills upon them.

Section 50, Sub-section (1), CI. (hh) of the Act runs thus:

50 (1). Subject to the'' provisions of Section 51, a councillor shall cease to hold his office, if he-

(hh) fails to pay arrears of any kind due by him (otherwise than fit a- fiduciary capacity) to the municipality, within three months after a bill or notice has been served upon him under this Act, or where in the case of any arrear this Act does not require the service of any bill or notice, within three months after a notice requiring payment of the arrear (which notice it shall be the duty of the executive authority to serve at the earliest possible date) has been duly served upon him by the executive.'' authority.

It is argued by '' Sri P. Somasundaram, learned Counsel for the Appellants, that the present case falls within the first part of the above clause and that the arrears of electric charges due according to the bills served upon the Respondents not having been paid by them within three months of., the service of the bills, they ceased to be councillors. Reference was made to Section 38-A of the Act which provides for control over municipal electrical undertakings but this section has no bearing on the point now under discussion.

It is stated that the bills setting out the amount of electricity consumed and the charges payable therefore by the Respondents were issued to them under the Act within the meaning of the first part of CI. (hh) of Section 50, Sub-section (1). The bills for electric charges were sent by the Municipality not under any provision of the Act nor under any of the rules framed under Sections 303 and 305 of the Act. There were bills sent in the ordinary manner in which a seller or supplier of electric energy sends'' bills to his customers.

The contract between the consumers and the Municipality governed their rights and liabilities and neither the Act nor the rules framed there under require or authorise a bill for the simply of electric energy to be served by the Municipality on the consumers- The first part of CI. (hh) of Section 50. Sub-section (1) requires that the bill or notice should have been served (upon the councillor ''under this Act''. This provision applies only where the Act itself requires the service of a notice; as for instance Sections 95, 102, Sub-section (3) and 108, or the rules framed under the Act provide for the service of, a bill, as for instance, schedule IV, Rule 29, which, by virtue of Section 124 of the Act, applies to property-tax, profession-tax, tax on carts, etc.

Reliance was placed on Section 344 of the Act which provides that sums which under the Act or any other law or rules or bye-laws made there under, are due by any person to the municipal council, may be demanded by bill as provided in the rules in schedule IV. It was argued that charges due for consumption of electricity fell under this section and therefore the electricity hills issued to the Respondents in this case satisfied the first part of CI. (hh) of Section 50, Sub-section (1).

Rule 29 of Schedule. IV provides that a bill issued under that rule should contain (1) a statement of the period and a description of the thing for which the tax is charged, and (2) a notice of the liability incurred in default of payment. The electricity consumption bills issued in this case did not comply with the second of the above requirements. Consequently the bills could not be said to have been served on the Respondents under the Act. In this view it is unnecessary to consider whether a booklet handed over to us by Sri Somasundaram stated to contain the bye-laws of the Municipal Council, Vijayawada, regarding the conditions and rates of supply'' of electricity really contained any bye-laws framed by the Municipality under the Act.

The booklet merely sets out the terms and conditions of the contract subject to which the consumers could get supply of electricity from the licensee, namely, the Municipality. It is by no means clear that Section 306 of the Act authorises the making of the bye-laws regulatinf; the liability of consumers of electricity to the licensee which in this case happens to be the Vijayawada Municipal Council. Section 306, CI. (4) of the Act provides for the making of bye-laws for ''the maintenance and protection of the lighting system''. This has to be read with Section 136 of the Act which provides that the Municipal Council shall, so far as the funds at its disposal permit, cause that public streets to be lighted and for that purpose, shall provide such lamps and works as it thinks necessary.

The supply of electricity to consumers appears from the booklet produced before us to be a matter of contractual arrangement between the consumers and the municipality and the form of the agreement printed in the booklet provides that payment for energy supplied shall be made by the consumer on delivery of a bill therefore by the licensee. This is not a bill or notice served on the consumer under the Act within the meaning of the first part of CI. (hh) of Section 50, Sub-section (1).

The further contention of Sri P. Soma-sundaram for the Appellants is that the second part of CI. (hh), of Section 50, sub (T) would apply as the bills for electricity served upon the chair Respondents amounted to notices that satisfied the requirements of that, provision. The second, part of the CI. (hh) of Sub-section (1), requiredue service by the executive authority on the councillor of notice requiring pine of the arrear."

The consumption bills served upon the councillors in the present case do not require payment of the arrears of electricity charges but merely give the units of electric energy consumed, the rate of charge per unit, the meter rent and the total amount due in respect of the consumption of electricity during the month While the first part of CI. (hh), of Section 50 Sub-section (1) refers to the service of "a bill or notice'', the second part of the clause requires the service of a notice requiring payment of the arrear. It may be, as pointed out .by the learned advocate for the Appellants, that the bills for electric charges served upon the councillors implied a request for payment according to the usage of traders and businessmen.

There is, at the same time, a tendency on the part of people to postpone payment of bills till a demand is made. This may be due to reluctance to part with money till payment becomes absolutely necessary or to forgetfulness, pressure of work or other causes. The Legislature was apparently alive to these circumstances and specifically provided that a notice requiring payment of the arrears should be duly servedey the executive authority before a councillor could be charged with default under the second part of CI. (hh) of Section 50, Sub-section (1).

The bills served upon the Respondents did not call upon them to pay the amounts charged for the supply of electricity and cannot therefore be regarded as "notices requiring payment", within the meaning of the second part of CI. (hh) of Section 50, Sub-section (1). Even if the bills are in conformity with the terms and conditions of the contract entered into between the consumers and the Municipality, they cannot be regarded as notices under the second pan Clause (hh), of Section 50, Sub-section (1) inasmuch as payment by the consumers is not required to be made.

We need hardly point out that before visiting a councillor with so serious a penalty as the forfeiture of his office, every formality required by the law should be strictly complied with and the conditions entailing such forfeiture should, be fully satisfied. The councillor who is sought to be disqualified has a right to insist on compliance with the letter of the law Bo far as it makes provision on his behalf or in his favour. It is idle for the Appellants to contend that the Respondents got something just as good as the notice which 01. (hh) of S. 50, Sub-section (1), requires to be given.

For these reasons we are of the opinion, agreeing with the learned Judge, that the Respondents are not hit at by CI. (hh) of Section 50, Sub-section (1) of the Act and have not ceased to hold their office by reason of delay in payment of electric charges.

Writ Appeals Nos. 33 and 35 of 1955 are therefore dismissed with costs. Advocate''s fee Rs. 150 in each of the cases.

In Writ Appeal No. 34 of 1955, the charge against the Respondent related to a sum of Rs. 6 payable as profession-tax. It was alleged that a bill relating to the profession-tax payable for the second half year 1952-53 was served upon the Respondent on 3-3-1953. Admittedly the payment was made on 19th February, 1954, that is to say, beyond three months of the date of the alleged service of notice. It was however contended for the Respondent that no notice calling for payment of the fax was in fact served upon him as required by Section 95 of the Act.

Section 331 of the Act prescribes four modes of serving such notices, and we are here concerned with Section 331, 01. (a), which provides that service may be effected by giving or tendering the notice to the persons concerned. The Appellants contend that personal service of the notice to pay profession-tax was effected on the Respondent on 3rd March, 1953, but the Respondent denied this allegation. Both sides adduced oral and documentary evidence in support of their respective pleas. The learned District Judge who heard the evidence concluded his discussion of the evidence in these terms:

Ex, A-15 is an entry in the Profession and Trade Tax Bill Book maintained by the Municipality. It shows that this particular notice for profession tax was served upon the Respondent on 3-3-1953 and the payment was made on 19-2-1954. That entry is also proved by P.W. 2 who wrote it and it was he who also served it personally upon the Respondent. Having regard to the endorsement on Ex. B-l that the notice was served upon the Respondent on 3-3-1953 and the entry Ex, A-15, I am unable to place reliance upon the oral evidence of R.W. 1 that he did not receive it on that date.

I must hold that the Respondent was duly served with a notice for payment of profession tax on 3-3-1953 and that he failed to pay the ''amount till 19-2-1954, and that therefore he was disqualified from continuing as councillor of the Municipality.

The learned Judge of this Court upset this decision and the manner in which he approached the matter will appear from the following extracts from his judgment;

The only evidence in the case to establish that such personal service was effected consists of two exhibits B-l and A-15 (documentary evidence) and the oral evidence of P.W. 2........ These two exhibits together with Paws. 2''s evidence have been taken by the learned District Judge as sufficient proof of the service of personal notice on the Petitioner. To say the least, it seems to me to fall far short of the quantum of evidence necessary in a case like this to convince any reasonable man of the fact which has got to be established, viz., that the Petitioner before me was served personally with notice of the demand of the arrears of six rupees now in question....

It is to he observed that except the evidence of P.W. 2 and these two documents initialed by him, there is no proof of the personal service of notice stated to have been made. The question is, when a statute requires notice to be served personally, it is enough to establish the service of such notice by the oral evidence of the person authorised so to serve, supported by some entries in the records which he is supposed to maintain?

The learned Judge examined the evidence at considerable length and pointed out the infirmities in the evidence adduced on behalf of .the Appellants. To also relied upon the circumstance that it was and likely that a petty sum of Rs. 5 would have been left in arrear if a notice had been served on the Respondent. He concluded his order thus:

For all these reasons I am clearly of opinion that there is no evidence on record sufficient in the view of a reasonable man to uphold the contention that the Petitioner before the is guilty of default of payment of the arrears in question.

The question for determination in this case is really on(c) of fact aioli there is some evidence to support the conclusion of the District Judge. If we were sitting as a Court of appeal over the District Judge, it is possible that We might have agreed with the conclusions arrived at by the learned Judge of this Court but our jurisdiction when hearing applications for writs is not that of an appellate Court. If there is some evidence in support of a finding of fact arrived at by the District Judge, we are bound by that finding even though we might have arrived at a contrary conclusion if We were trying the case for the first time. We need only refer to the latest pronouncement of the Supreme Court in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, at p. 243) (A) Where the law is stated thus:

The Court issuing a Writ of Certiorari acts In exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court of Tribunal, even if they be erroneous. This is on the principle that a Court which has Jurisdiction over subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence, and substitute its own findings in certiorari.

u/s 51 of the Act the Legislature has constituted a reasonable Judicial Order of the rank of a District Judge for deciding questions of disqualifications of councillors and has also constituted him as a persona designate. Section 51 stately provides that his decision shall be "final", that is to say, not subject to appeal. This provision does not, however bar petitions for writs u/s 226 of the Constitution. In hearing these petitions we cannot assume the powers of an appellate Court and decide whether the evidence is sufficient in quantity to support a finding of fact arrived at by the learned District Judge. This is not a case where there is no evidence in support of the finding.

For these reasons, we allow the appeal with costs and restore the order of the learned District Judge in O. P. No. 19. of 1954. Advocate''s fee before this Court Rs. 150 and before Mr. Justice Bhimasankaram Rs. 150.