V.R. Kingaonkar, J.
1. Rule. Rule made returnable forthwith and heard finally by consent of the parties.
2. Both these petitions are being disposed of together inasmuch as identical questions of law and facts are involved therein. All these petitioners were members of village panchayat. They have been declared as disqualified from membership under Section 14(1)(h) of the Bombay Village Panchayats Act, 1958, on the ground that they failed to pay the property taxes due from them within the prescribed period. So, they were held as ineligible to remain in the office of the village panchayat as members.
3. The respondent No. 5 Narendra raised dispute about eligibility of in all 8 members of the village panchayat, Hol. The application of respondent No. 5 Narendra was duly enquired into by the Additional Collector, Dhule. Consequent upon verification of facts, it was noticed that the petitioners had committed defaults in payment of house property tax which was due from them, inspite the demand notices served on them, within the stipulated period. The petitioners were heard during the enquiry. They offered various explanations. Their contentions were considered by the Additional Collector. The explanations furnished by the petitioners were found to bedis-satisfatory. The Additional Collector, eventually, held that the petitioners were disqualified and cannot therefore continue to be members of the village panchayat in view of specific provision under Section-14(1)(h) of the Bombay Village Panchayats Act, 1958 (for short 'the Act'). The petitioners preferred appeal which was dismissed by the Divisional Commissioner, Nashik. Hence these petitions.
4. Heard counsel for the parties and learned A.G.P. Shri Umakant Patil for the State and learned counsel Shri Bagul for the village panchayat.
5. Though various contentions are raised in both the petitions yet the learned counsel have not disputed the legal position that the requirement of Section 14(1)(h) would mandate payment of any tax or fee due to the panchayat or the Zilla Parishad within three months from the date on which the amount of such tax or fee is demanded. The relevant sub Clause (h) was amended in 2003. There is no dispute about the fact that the petitioners were required to pay the amounts of taxes if they were legally liable to pay the same. It is well settled that this Court in the exercise of its supervisory jurisdiction cannot entertain the questions regarding disputed facts. However, it is necessary to find out as to whether the petitioners have been disqualified in accordance with the provisions of Sub-section (h) of Section 14 of the Act. There cannot be duality of opinion about the proposition that the disqualification is rather a harsh action. The duly elected members are thereby deprived of making representation in the office for which they are supposed to work and contribute for betterment of the Electorate. Obviously, the disqualification may be ordered only when there is strict proof regarding infringement of the mandatory legal provisions in this behalf.
6. Before I proceed to consider the individual cases of the petitioners, it would be useful to tabularize the information regarding the date of service of the demand notice and the date on which the demanded taxes or any other part thereof waspaid:
________________________________________________________Sr Name of the Date of Date on which No petitioner service the property of demand of tax or notice there any part was paid ______________________________________________________1. Ramrao Chuda- 21/8/2004 16/11/2004 man Patil ______________________________________________________2. Pramilabai 11/8/2004 31/03/2005 Fakira Patil_______________________________________________________ 3. Ramanbai 21/8/2004 31/3/2005 Jagan Shimpi________________________________________________________4. Bhursing 21/8/2004 29/11/2004 Garbad Bhil________________________________________________________ 5. Bhaskar 21/8/2004 09/02/2005 Sahadu Shewale _________________________________________________________6. Shravan 21/8/2004 07/01/2005 Gangaram Patil__________________________________________________________This tabular information is extracted from the order passed by the Additional Collector, Dhule
7. So far as the liability to pay tax is concerned, some of the petitioners alleged that the house properties were not recorded in their names and hence they cannot be held liable.
Explanation No. 2 appended below Section-14 of the Act is significant in this behalf. The Explanation 2 given below Section 14(1)(h) reads as follows:
Explanation 2.-For the purpose of Clause (h)-
(i) a person shall not be deemed to be disqualified if he has paid the amount of any tax or fee due, prior to the day prescribed for the nomination of candidates;
(ii) failure to pay any tax or fee due to the panchayat by a member of an undivided Hindufamily, 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 my be all the members of such group or unit.
8. A bare perusal of Explanation 2 would indicate that failure to pay any tax by a member of undivided Hindu family would cause disqualification of other members. Therefore a member of the village panchayat cannot escape the disqualification only on the ground that the property stands in name of any other member of the joint Hindu family.
9. The next significant aspect is the period of service of the demand notice and the statutory outer limit to comply with the demand. A Division Bench of this Court in Rameshwar s/o-Ramaji Rewatkar and Ors. v. Dilip s/o-Tulsiram Rewatkar and Ors. 2006 (5) Mh.L.J. 292 has taken review of the case law in the context of Section 14(1)(h) of the Act. The Division Bench has set at rest the legal position. It has been held that the amount of tax or fee if is paid bythe member within three months from the last day of the demand period, then he cannot be disqualified. The defaulting member would get, therefore, a period of 15 days as indicated in each demand notice from the date of service of notice and the period of three months further as envisaged in Sub-clause (h) of Section 14(1) of the Act. If he/she would demonstrate that the payment was made within the aforesaid period then the disqualification cannot be held as legal and proper. Second important requirement of the law is that the due service of demand notice on such a member ought to be proved. Third important condition is that the member of the village panchayat must be liable to pay the demanded tax or fee, may be individually as owner of the property or as a member of the undivided Hindu family, as the case may be.
10. Mr Warma, learned Advocate appearing for the petitioners would submit that the demand bills indicate that the amount payable was for the year 2004-05 and therefore such tax could not be claimed as on the date of the service of the notice. He would submit that such property tax was not due for as on the date of the demandnotice because the year 2005 was yet to be over. I find it difficult to countenance such argument. Mr Bagul, learned Advocate appearing for the village panchayat has rightly invited my attention to the case of Annasaheb Sakharam Rajamane v. T.K. Kamble 1971 Mh.L.J. 749. Thought it was a case pertaining to the provisions of the Maharashtra Municipalities Act yet they are pari materia with the provisions under the Bombay Village Panchayats Act. The demand could be made for the current year and the only condition is that there must be legal liability to pay the same. The learned Advocate Mr Warma also invited my attention to the format of bill in order to show that the demand notices are not in accordance with the format of Form No. 1. This contention is not tenable. The expression used in Section 14(h) of the Act is clear. It does not speak of any warrant of demand. It reveals that the payment is to be made within three months from the date on which the amount is demanded. The demand notices ought to be complied with within the stipulated period if the disqualificatiion is to be avoided by the member who is liable to pay such tax/fees. Mr Warma, learned Counsel would rely on certain instructions enumerated in the Government Orderdated 6th April, 1996. The instructions are only for the purpose of ensuring the compliances of Section 14(1)(h) of the Act by the Sarpanch or Upsarpanch and the secretary of the village panchayat. These instructions do not give any right as such to the petitioners. The petitioners cannot take advantage of these instructions so as to over-come the difficulty caused due to non compliance of the provisions of the Act.
11. I have perused the record with the help of learned A.G.P. Shri Umakant Patil. On perusal of the relevant record, it is manifestly clear that the petitioners Ramanbai Shimpi, Bhaskar Shewale and Shravan Patil have no case. It is conspicuous that inspite of service of demand notice and the legal liability to pay the taxes, they failed to pay the same within the stipulated period of 3 and 1/2 months from the date of the service of the demand notice. The notices served on them indicated that 15 days period was available to them to make the payment. Thereafter three (3) months period was also avilable in accordance with the amended provision of Section 14(1)(h) of the Act. They incurred the disqualification due to the non compliance as has been found by theAdditional Collector. This finding of fact is also confirmed by the Additional Commissioner. These petitioners could not pin point any illegality in the impugned orders. Consequently I am inclined to hold that the disqualification of these three petitioners cannot be faulted with. The petition to the extent of aforesaid three petitioners will have to be, therefore, dismissed. 12. As regards peritioner Ramrao Patil, let it be noted that he relied on an unregistered partition deed dated 23rd January, 2001. The partition deed was produced before the learned Additional Collector. It also appears from the record that the voters list would show that he is not occupant of the house No. 118. The said house is allotted to the share of his father by name Chudaman Patil as shown under the unregistered partition deed. The consistent entries in the voters list are not taken into account by the Additional Collector as well as Additional Commissioner. Needless to say the material evidence has not been duly considered. The partition deed may be unregistered yet the continuous revenue entries as well as the entries in the voters list would indicate that there was a severance of status.
The cardinal principle of the Hindu law is that once the intention of severance is manifested from the act of the parties then the disruption of the joint status will have to be inferred. It was not an a adversial enquiry but the competent authorities cannot overlook the available record and the legal position. The separation from the family could be inferred when there are separate entries in the concerned record and as such when the demand bill for the house property No. 118 was served on the petitioner Ramrao then he could not be legally fasten with liability to pay the taxes for the said house property, prima facie, unless there was a tangible evidence to show that he was occupant of the same.
13. In this context it is worthy to be noted that the Maharashtra Village Panchayat Taxes and Fees Rules, 1960 provides for the procedure for levying tax or fee. The liability to pay the tax under the Rule 18 can be imposed on the person who is actually occupier of the building if he is the owner of such building or land. If he is not the owner himself then it can be recovered from the lessor if the property is let out. It can be recovered from the person in whom the right to letout the same is vested or the person to whom the land or building has been transferrred. In other words, the primary liability is clearly set out under the Rule 18 which appears to have been over looked by the competent authorities while considering the case of petitioner Ramrao. It appears that his statement was also recorded and he made it explicit that he is neither occupier nor owner of the house property No. 118. His statement was duly corroborated by the circumstances and the other record. Evenso, he has been wrongly disqualified. Needless to say, the impugned orders are required to be quashed to the extent of petitioner Ramrao.
14. The case of petitioner Pramilabai also deserves due consideration. She is not occupant of the house bearing village panchayat No. 161 and 162A. That house property stands in the name of her mother in law, namely Geetabai Khandu Patil. The report of the Block Development Officer revealed that the petitioner Pramilabai is residing separately in a tenanted premises. Her ration card also disclosed separate residence. The house property which stands in the name of her mother-in-law is not shown to be the property ofthe undivided Hindu family. Therefore, Explanation 2 appended below Section 14(1) (h) of the Act is not attracted in the case of the petitioner Pramilabai. The primary duty of the learned Additional Collector was to verify as to whether the house property in question was the property of Hindu joint family. For, the women members cannot be regarded as coparceners of the Hindu Joint Family. It is nobody's case that the house property is not owned by the mother in law of the petitioner Pramilabai but she is only a name lender. The payment of arrears of the taxes by petitioner Pramilabai will not per se make her liable for the disqualification. Secondly, it is not the finding of the learned Additional Commissioner that petitioner Pramilabai had accepted her liability to pay and herself had deposited the amount of taxes with understanding of such liability. The statement of her land-lord was also recorded and it was found that she is residing with hur husband in house No. 460B on rental basis. Consequently, it is difficult to say that she was liable to pay the arrears of property taxes and was a person primarily liable under Rule 18 of the Maharashtra Village Panchayat Taxes and Fees Rules, 1960.
15. Learned Counsel for the village panchayat has fairly conceded to the factual position that petitioner Bhursing Garbad Bhil had cleared his liability within the stipulated period after service of the demand notice and his case is covered by the Judgement of the Division Bench of this Court in 'Rameshwar s/o-Ramaji Rewatkar and Ors. (supra). Therefore, the order of disqualification of petitioner Bhursing Garbad Bhil is also unsustainable in the eye of law. Considering the foregoing discussion, I have no hesistation in holding that the impugned orders are legal and proper to the extent of petitioners Ramanbai Shimpi, Bhaskar Shewale and Shravan Patil who are at sr. No. 2, 4 and 5 in Writ Petition No. 2195 of 2006, whereas the same are unsustainable to the extent of petitioner Pramilabai Patil and Bhursing Bhil who are at sr. No. 1 and 3 in that petition. The impugned orders are unsustainable to the extent of petitioner Ramrao Patil in Writ Petition No. 2163 of 2006. Hence his petition will have to be allowed and the another petition will have to be partly allowed.
16. In the result, the Writ Petition No. 2163 of2006 is allowed and the impugned orders are quashed in respect of disqualification of petitioner Ramrao Chudaman Patil. The Writ Petition No. 2195 of 2006 is partly allowed and impugned orders to the extent of disqualification of petitioners Pramilabai Patil and Bhursing Bhil are quashed. The remaining part of the imugned orders to the extent of other petitioners is maintained. The Petition to their extent be deemed as dismissed. The original record is returned to the learned A.G.P. across the table. Rule made absolute accordingly. No costs.