Bombay High Court
Arun Vaman Kane vs The State Of Maharashtra And Others on 8 January, 1997
Equivalent citations: AIR1997BOM374, 1997(4)BOMCR220, (1997)3BOMLR554, 1997(2)MHLJ756, AIR 1997 BOMBAY 374, (1997) 3 ALLMR 575 (BOM), 1997 (3) ALL MR 575, (1997) 2 MAH LJ 756, (1997) 2 MAHLR 579, (1997) 4 BOM CR 220, 1997 (99) BOM LR 554
ORDER
1. Heard both sides at length.
Perused the papers and affidavit-in-reply filed by Respondent No.4.
The petitioner is a member of Village Panchayat of Gorsai Village. By order date 17-5-1996 passed by the Collector. Thane District, it was held that he is disqualified as a Member in view of Section 14(h) read with Section 16(2) of Bombay Village Panchayats Act. 1958. The said order came to be challenged on behalf of the petitioner and the Additional Commissioner, Konkan Division, Mumbai by order dated 18-9-1996 dismissed the same. The same is under challenge in this petition.
2. Admittedly the petitioner was served with a bill demanding an amount of Rs.108/- towards the house tax etc. on 7-12-1995. The said bill is dated 27-7-1995. It seems that writ of demand under Section 129(2) also came to be affixed at the resident premises of the petitioner on 30-12-1995.
3. It was the case of the petitioner that he had gone to the Village Panchayat on 25th-26th March,1996 for making payment, but the same was not accepted on the ground that printed receipts were not available. However on 30-3-1996 the payment was accepted and kachha receipt was given and receipts printed came to be given on 1-4-1996.
4. According to respondent No. 5 who had filed the application for declaring petitioner as disqualified, the bill of demand was served on 7-12-1995, but the petitioner has failed to pay the said amount within 3 months thereof and hence he was disqualified. The contention of the petitioner is that writ of demand came to be affixed at his residential place on 30-12-1995 and he has made payment on 30.3.1996. Therefore he has made payment within 3 months and not disqualified.
5. The contention raised on behalf of the petitioner was not accepted by both the authorities.
6. The learned Counsel for the petitioner contended that Section 14(h) of the Bombay Village Panchayats Act,1958, which deals that disqualification provides that it is not suficient that merely bill making demand to be served upon a member, but a writ of demand as contemplated by section 129(2) should be served and the date of service of writ of demand should be taken as the date for counting 3 months and not service of the bill.
7. Section 14(h) reads as follows:-
14 No person shall be a member of a panchyat continue as such who
(h) fails to pay 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, and a bill for the purpose is duly served on him.
Section 14(h) contemplates that amount of tax or fee is to demanded and a bill for that purpose is to be served upon the Member. Therefore, Section 14(h) lays down two conditions -- (1) a member must have failed to pay the tax or fee due to the panchayat or Zilla Parishad within 3 months from the date on which the amount of such tax or fee is demanded, and (2) a bill, for the purpose of demanding the tax or fee which is in arrears must be duly served on him. The bill which is at Exh.B. to the petition clearly mentions that Rs.108/- are due and payable to Gram Panchayat and petitioner was requested to make the said payment within 15 days.
8. The learned Counsel for the petitioner submitted that this was a mere request and not a demand. It cannot be accepted. Demand is only couched in courteous terms.
9. Section 129 falls in Chapter IX of Bombay Village Panchayats Act, 1958 which deals with taxes and recovery of claim. Section 129 specifically deals with recovery of taxes and other dues. Section 129(1) and (2) provides as under:-
129(1) When any tax or fee has become due, a Panchayat shall with the least practicable delay, cause to be presented to the person liable for the payment thereof a bill for the amount due from him, specifying the date on or before which the amount shall be paid.
(2) If any person fails to pay any tax or fee or any other sum due from him to a panchayat under this Act or the rules on or before the specified date of payment. The panchayat shall cause a writ of demand in the prescribed form to be served on the defaulter.
It is further provided by sub-section (4) of Section 129 that it writ of demand has been served and is not paid within 30 days from the date of such service, the panchayat at may levy such sum by distraint and sale of the moveable property of the defaulter in the prescribed manner.
It is also provided by sub-section (7) of Section 129 that it a panchayat is unable to recover a tax or fee or other sun due to it as aforesaid, it may furnish to the Mamlatdar, Trahsildar statement to recover the same as arrears of land revenue.
Therefore, sub-section (1) of Section 129 contemplates service of bill of demand. While sub-section (2) contemplates writ of demand. The bill of demand is to initially served and if the arrears of tax etc, are not paid within the period prescribed in the bill, a writ of demand is to be issued. A bill which is referred to in Section 14(h) is the one which is contemplated by Section 129(1). The bill cannot be read as including a writ of demand as contemplated by Section 129(2), Writ of demand is to enable the Panchayat to follow further procedure prescribed for recovery by force. Writ of demand has nothing to do with the provision contained in Section 14(h), Section 14(h) only provides for service of bill of demand and a Member has to make the payment within 3 months thereof.
10. In the present case the bill of demand was served on 7-12-1995 and payment was not made or even attempt was not made to make the payment within 3 months thereof. Even it was not the case of the petitioner that demand was wrongly made. So both the conditions mentioned above contemplated by section 14(h) are complied with and therefore, the petitioner was rightly disqualified.
Hence there is no merit in this petition. The petition is rejected.
11. Petition dismissed.