Madras High Court
A. Rajangam vs A. Mohammed Hani And Another on 2 December, 1999
Equivalent citations: 2000(1)CTC215, (2000)IIMLJ51
ORDER
1. The petitioner was elected as the Chairman of the Vridhachalam Municipality in the year 1996. The first respondent filed a petition in O.P.No.15 of 1999 under Section 51(1) of the Tamil Nadu District Municipalities Act 1920 to decide about the disqualification of the petitioner, under section 50(1)(d) of the said Act. According to the 1st respondent, who is the Councilor of the said municipality, the petitioner's undivided son and his undivided brother are registered contractors of the said municipality on and from 25.10.1996 on which date the petitioner was elected as Chairman. On that basis it was alleged that the petitioner has acquired an interest in the subsisting contract with the Vridhachalam municipality and so he has to be disqualified, to hold the said post under section 50(1)(d) of the said Act.
2. The said petition was contested but the petitioner alleging that he did not acquire any interest in the subsisting contract with respect to the allegation regarding his son and brother. It is the case of the petitioner that they are divided brother and divided son, and so the averments made in the said petition with respect to his disqualification cannot be sustained, the learned District Judge in the order dated 4.10.99 found that Palanisami is the undivided son with whom the petitioner had common interest and the contract was subsisting during the time of office as Chairman, held by the petitioner. On the basis of the said finding the learned District Judge allowed that petition holding that he is disqualified from holding the post of Chairman if Vridhachalam municipality. Having aggrieved, the petitioner has filed the above writ petition, challenging the said order of the learned District Judge.
3. The learned Senior Counsel appearing for the petitioner has submitted that merely because a son is undivided son, it cannot be assumed that the petitioner is having interest in the business of his son, unless it is independently established. In support of his submission, the learned Senior Counsel has relied on the Division Bench decision in R. Selvaraj, v. R. Radhakrishna, AIR 1976 Mad. 156. According to him, the learned District Judge has found that the petitioner is having interest in the subsisting contract, merely because his son is the undivided son. The said approach, according to the learned Senior Counsel, cannot be sustained in law, in view of the above said decision.
4. The learned Senior Counsel appearing for the 1st respondent has submitted that the learned District Judge is correct in holding that the petitioner is disqualified in view of the admitted fact that the petitioner's undivided son was having with the municipality during the petitioner;s tenure of office as Chairman of the said municipality. He has also relied on the decision in Swarnam v. Sobaran Singh, , in support of his submission.
5. In this case, there is no dispute that during toe tenure of office of the petitioner as Chairman of the said Municipality, his son had the subsisting contract with the said municipality. The learned District Judge has decided the case only on the basis of the subsisting contract given to the petitioner's undivided son. In view of the factual finding of the learned District Judge that the petitioner's son is the undivided son, the learned Senior Counsel appearing for the petitioner has proceed with his argument only on that basis.
6. Now, it has to be decided whether, merely because the undecided son of the petitioner had the subsisting contract with the said municipality during the tenure of office of the petitioner as chairman of the said municipality, the petitioner is disqualified under section 49 of the said Act.
7. The learned District Judge in the order dated 4.10.1999 has simply proceeded on the basis that " we have already held that as undivided members of a Hindu joint family both the first respondent (the petitioner herein) and his son Palanisamy could naturally have common interest. Therefore, law and ethics require that in order to avoid suspicion in the public mind, one has to sever from the other hand and person holding the public office to act disinterestedly.
8. It cannot be assumed that every business conducted by a joint family members is the business of the joint family business, and the other members of the joint family are also having right in the said business. The contribution of Labour, service or money by one members of the joint family, to the other should be so conspicuous and impressive that on a prima facie examination of such material, reasonable and prudent person should gain the impression that two members were so associated with a common object of exploring a commercial activity to the advantage of the joint family as a whole and in general. It is well settled that if members of the joint family by the joint labour or in the joint business acquire property, their property, in the absence of a clear intention of a contrary intention, would be owned by them as a general family property, and mate issues would necessarily acquire a right by birth in the said property. It is well settled principle laid down by the decision of the Apex Court and this Court that there is no presumption that a business conducted by a member of a joint family is a joint family business. The person alleging such state of affairs should prove the same by acceptable and clinching evidence. This view of mine is supported by the decision of the Division Bench in R. Selvaraj, v. R. Radhakrishna, AIR 1976 Mad. 156, cited by the learned Senior counsel appearing for the petitioner, in which it is held as follows:-
"If there is satisfactory evidence of an intention on the part of the acquirer of such property to treat it as his own, but not as joint family property, the presumption which ordinarily arises, according to the personal law of Hindus that such property would be regarded as joint family property, will not arise. Certain incidents may be cited to prove that the 1st defendant not subordinate his individuality or gave up his right as owner of the acquired property so as to raise a presumption that he desired to treat these properties as joint family properties".
9. Even in G. Narayana Raju v. Chamaraju, , the Apex Court has held as follows:-
" It is well established that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the co-parcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. Therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact".
10. Now, we have to decide whether section 50(1)(d) of the said Act will apply to the case of the petitioner so as to disqualify him, even though the subsisting contract given to the petitioner's son cannot be treated as a contract of the petitioner himself. Section 50(1)(d) does not contemplate a subsisting contract in favour of the Chairman or a Councilor but, even if there is any interest in such contract, the said provision will apply. So, it has to be decided whether the petitioner was having any interest in the said subsisting contract.
11. The word 'interest' has got a very wide import and should be construed very liberally and it need not be on the basis of a right in a property or in any activities. But it also certainly not sentimental or sympathetic interest. 'Interest' must be something more than a sentimental interest, which arises from such natural love and affection of a father for his son. It need nor be only the possibility of a pecuniary advantage. It may be equally to be the likelihood of a peuniary loss. Accruing benefit need not be direct. The possibility or even probability of actual resulting benefit will be sufficient. This view of mine is supported by the decision in Promode Lal v. Additional Dist. Magistrate, .
12. Though the finding of the learned District Judge that when the petitioner is the undivided member of the joint family with his son Palanisamy, in whose favour the contract was given, the petitioner is having right in the said contract cannot be sustained. But, it cannot be said that he is not having any interest in the said contract given to his son, that too, during his tenure of office as Chairman of the said municipality. While considering the scope of Section 7(d) of the Representation of the People Act, 1951, the Apex Court in Chatturbhuj Vithaldas v. Moreshwar Parashram, , while taking into consideration the necessitate to provides such a restriction regarding qualification to be elected, has held as follows:-
" The purpose of the Act is to maintain the purity of the legislature and to avoid a conflict between duty and interest. It is obvious that the temptation to place interest before duty is just as great when there is likely to be some difficulty in recovering the money from Government (for example, if Government were to choose not to ratify the contracts) as when there is none".
13. In the subsequent decision of the Apex Court in Konappa v. Vishwanath, , following the above said decision, it has been held as follows:-
" In our opinion the High Court has taken the right view of the matter. The law requires that a candidate should not have any interest in any contract with Government and even a partner has an interest sufficient to attract the provisions of Section 9A".
14. Though the learned District Judge is not correct in proceeding on the basis that the petitioner is having right in the subsisting contract, in view of the fact that the petitioner's son is a member of the undivided Hindu joint family, the order disqualifying the petitioner can be sustained, as the petitioner is having interest in the subsisting contract. When a person like the petitioner is discharging public duty, he should avoid granting contract to his blood relations that too to his undivided son, especially when the son is having a common kitchen with the father, and, it cannot be said that the petitioner is not having any interest in the business, though not moneterily.
15. For the foregoing reasons, the order of the learned Principal District Judge, Cuddalore, dated 4.10.99 is confirmed, though on different ground, and this writ petition is dismissed accordingly. No costs. Consequently, W.M.P. No.24407 of 1999 is also dismissed.