A. Seetharamachar and ors. Vs. the Town Municipal Council, Closepet - Court Judgment

Excerpt:
- karnataka panchayat raj act, 1993.[k.a. no. 14/1993]. sections 43 & 168: [mohan shantanagoudar, j] membership of gram panchayat- held, seat of member becomes vacant on expiry of fifteen days from date of receipt of such resignation, unless he withdraws resignation letter. where there is nothing on record to show that petitioner had withdrawn his resignation letter subsequently, petitioner had vacated his office as a member of gram panchayat within fifteen days from the date of his letter as prescribed under law. burden of proof heavily lies on one who files a petition for declaring the seat vacant. impugned order passed by state election commissioner declaring that seat of petitioner has become vacant based on assumptions and surmises is liable to be quashed. -- sections 167(2) & 168 (2): member of gram panchayat power of state election commission to declare seat as vacant on report made to it held, sections 167(2) and 168(2) of the act would indicate that the state election commission, on a report made to it, shall declare the seat of a person concerned is or has become vacant after giving reasonable opportunity of being heard to the person concerned is or has become vacant after giving reasonable opportunity of being heard to the person concerned. the word report found in the aforesaid sections cannot be read as official report. the act, furnishes a complete machinery in itself for the better administration and supervision of panchayats. if the word report is to be read as official report, them, the official before giving such report will have to conduct mini enquiry, inasmuch as he cannot send the report blindly without application of his mind and without hearing the parties. such mini enquiry is not contemplated under the act and the same is not the intention of the legislature also. the legislation consciously is silent about two tier enquiry. courts will not legislate under the garb of interpreting the existing law. the court has to interpret the word report in its ordinary popular sense, consistent with the context. viewed from popular sense of the term report, particularly in the context in which the said word, it is clear that the report simpliciter, which means anybody can approach by filing petition or by reporting to the state election commission. -- section 167(2): membership of gram panchayat dispute as to vacant seat complaint lodged by respondents with allegation that petitioner has not resigned within stipulated period from date of notification after getting himself elected as a member no allegation of corrupt practice or any criminal charge held, proceeding in question against petitioner is not quasi-criminal in nature. standard of proof required is not beyond reasonable doubt. matter has to be decided on the basis of preponderance of probabilities. -- section 168(2): election to panchayat adjudication of disputes arising between parties parties consenting for recording their statements on oath before state election commissioner held, state election commissioner has got jurisdiction to record statements on oath. though the commissioner is required to adjudicate disputes between parties judiciously, he cannot be termed as court for purpose of section 168 (2) of the act. there is no question of violation of principles of natural justice or mandatory requirement of law under section 168(2). plea that state election commissioner has no power to administer oath and record evidence, inasmuch as said power is not conferred expressly on him by act is not tenable. - 178, town municipalities act are not satisfied. the learned subordinate judge has also failed to notice this.1. these appeals arise from two suits filed against the town municipal council, closepet, for declaration that certain taxes levied by it were illegal and for refund of the amounts' collected as such taxes. the liability in refund any amount was denied and the levy was alleged to be quite legal. issues concerning these were framed and by consent of parties the suits were tried together with evidence common to both. the suits were dismissed on the ground that the requirements of s. 178, town municipalities act are not satisfied. the decision is confirmed in appeal. the plaintiffs in the two suits therefore appeal. 2. it is curious that although no objection is taken to the suits in the written statements on the ground of notices sent by plaintiff prior to the suits being defective, and no issue was framed about it, the learned munsiff thought it necessary to scrutinise the contents of the notices and hold that these do not satisfy the provisions of s. 178 of the act. further no finding has been recorded on the issues framed in the case in spite of the parties having adduced evidence about the same. if the court felt that the question of notice was such as had to be considered irrespective of defendant's plea, it should have been decided at the outset. having allowed the parties to lead evidence in the case the court should have properly given findings on all the issues instead of resting the decision on a point not covered by any issue. the learned subordinate judge has also failed to notice this. 3. the allegations in the plaint about issue of notices are not seriously controverted in the defence and parties joined issue only on matters pertaining to the legality of the levy, implying thereby that objection, if any, to the notices was waived. section 178, town municipalities act cannot be viewed as being stricter than s. 80, civil p. c. as regards the need for a proper notice before a suit is filed. the provisions are analogous and similar considerations apply for giving effect to these. with reference to s. 80, civil p. c., it was observed in -- 'vellayan chettiar v. govt. of the provinces of madras', 49 bom lr 794 (pc) that the authority concerned can waive the notice. see also -- 'charu chandra v. snigdhendu prosad' : air1948cal150 and 'secy of state v. sheoramjee', 1950-5 domlr (nag) 81. in the last case it is definitelystated that all objections regarding the main- tair.ability of the suit for want of notice areto be taken at the earliest opportunity. aparty will be deemed to have waived thenotice and may be estopped by his conductfrom pleading want of notice if the plea is notraised at the proper time. the notice is intended to give the authority concerned information sufficient enough to make out the basisof the grievance. it is not to be construedmeticulously and deemed to be invalid becausematters of detail which a court has to takeinto account are not found. the notices inthose cases substantially comply with the requirements of the section and it is not allegedthat there was any difficulty on the part ofthe defendant to understand the nature of theclaims, the grounds of complaint or the reliefssought. in my opinion the notices are not invalid and even if they are, defendant haswaived these. the decrees of the courts below are, therefore, set aside and the suits areremanded for disposal afresh in accordancewith law. the court-fee paid in the appealswin bo refunded. costs incurred so far willabide the result. 4. appeals allowed.