Anil Buvasaheb Jagtap v. The State of Maharashtra

4. The Petitioner contends that the provisions of Section 16(1)(k) of the said Act is drastic, which seeks to take away the right 5 of 16 of a lawfully elected member to continue as a member of the Gram Panchayat in the local administration of a democratically elected body and therefore any inquiry contemplated should be strictly in accordance with the said provisions as also the provisions of the Maharashtra Village Panchayats Act, 1959 which are applicable in the present case.

5. Shri. Vishwajit Sawant, learned Senior Advocate appearing on behalf of the Petitioner has taken us through the pleadings and made the following submissions:-

(i) that admittedly the Petitioner was never served with the property tax bill in respect of House Nos. 1186;

(ii) that the provisions of Section 16(1)(k) of the said Act contemplate that a disqualification can incur only if there is a failure to pay property tax within the prescribed period from the date on which the amount of such tax or fee is demanded and a bill for the said purpose is duly served on the person; however in the present case, the bill was never 'duly served' on the Petitioner;

(iii) that Section 129(3) of the Maharashtra Village Panchayats

Act, 1959 provide the procedure for service of property tax bill by an officer or servant of the Panchayat to the 6 of 16 person liable to pay the property tax; that Respondent NO. 4 has not followed the prescribed procedure in respect of service and of the bill pasting on the house if the Petitioner is not available / found;

(iv) that though the Petitioner despite being an elected representative of the Gram Panchayat since 2017; the Respondent No. 4 - Gram Sevak has not made any effort to serve the property tax bill on the Petitioner and has instead alleged to have served the bill on a person called Shri. Dashrath Kadam described as a 'Driver' of the Petitioner in the acknowledgment list / office copy maintained by the Gram Panchayat; the said office copy bears the signature of Shri. Dashrath Kadam against the bill pertaining to the Petitioner's property i.e. House NO. 1186;

(v) that the Petitioner is completely unaware about any person by the name of Shri. Dashrath Kadam and has never employed such a person in his service as his 'Manager' or 'Driver' as alleged;

(vi) that the Petitioner has produced a certificate dated

08.12.2021 of the Sarpanch stating that after local enquiry and checking the electoral roll, no person by the name of Dashrath Kadam resides in village Kenjal; 7 of 16

(vii) that the provisions of Section 16(1) of the said Act, being punitive in nature entailing disqualification for failure to pay the property tax within the prescribed period after demand is effected, are required to be adhered to strictly which has not been done in the present case;

(viii) that the Respondent Nos. 2 and 3 being rival Members in the Gram Panchayat, in connivance with the Respondent No. 4 have colluded to remove the Petitioner from the Gram Panchayat on the ground of default in payment of taxes with an ulterior motive;

(ix) that assuming that the demand bill for the outstanding property tax was affixed on the door of the house of the Petitioner on 23.02.2019, the Petitioner has paid the entire outstanding property tax amount on 13.07.2019 i.e. within six months from the date of affixing of the demand notice and thus the Petitioner cannot be held to be ineligible to continue as Member of the Gram Panchayat and incur disqualification under the provision of Section 16(1)(k) of the said Act;

(x) that the Additional Divisional Commissioner, before passing the impugned order ought to have made appropriate enquiry and summoned the recipient of the 8 of 16 property tax bill on behalf of the Petitioner to confirm the veracity of the recipient;

(xi) that admittedly no such person by the name of Shri.

(xii) that the Petitioner is concerned with payment of property tax in respect of House No. 1186 in village Kenjal Gram Panchayat only and not in respect of House No. 237 or 850 as alleged by the Respondents in the Dispute Application;

(xiii) that the impugned order suffers from gross dereliction of the principles of natural justice and non-adherence to the provisions of the said Act strictly and therefore is unsustainable.

6. PER CONTRA, Shri. Ajit Kenjale and Shri. Pradeep Gole, learned Advocates appearing on behalf of Respondent Nos. 2 and 3, the private complainants have supported the impugned order and contended that the Petitioner has admittedly defaulted in the payment of property tax within the statutorily prescribed period of six months after the demand was made on him and therefore stands disqualified 9 of 16 and ineligible to continue as 'Member' of the Kenjal Gram Panchayat. They have drawn our attention to the office copy bearing the signature of the recipient of the property tax bills at page 32 of the Writ Petition wherein the bill is received by Shri. Dashrath Kadam, Driver of the

7. We have perused the pleadings, heard the submissions of the learned Advocates and considered the material on record.

8. The Petitioner's assertion that he has never been served with the bill for payment of property tax is at the center of the controversy. However due to non-payment of the demand within the statutory period of six months, the Petitioner is held to be ineligible to continue as the member of an elected body and disqualified. This disqualification is a very serious matter and it will not be just to presume anything leading to such a disqualification. Such disqualification provision, therefore, requires strict adherence and compliance to the rule of law.

9. Before we proceed to give our findings, it will be appropriate to refer to the relevant statutory provision which is applicable for the purpose of determining the present case.

9.1. Section 16(1)(k) of the said Act is the relevant provision 10 of 16 pertaining to disqualification of an elected member on his failure to pay the property tax due to any Panchayat within the prescribed period of six months from the date on which the amount of such tax or fee is demanded and a bill for the said purpose is duly served on him.

9.2. Section 16(1)(k) is reproduced below:- "16.(1) Subject to the provisions of sub-section (2), a person shall be disqualified for being chosen as, and for being, Councillor- (a).......... (b).......... (c).......... (d).......... (e).......... (f).......... (g).......... (h).......... (i).......... (j).......... (k) if he has failed to pay any tax or fee due to any Panchayat in the District or to the Zilla Parishad within six 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."

9.3. From the above, it is clear that disqualification is incurred if: (a) property tax bill is raised / demanded by the Panchayat; (b) the said property tax bill is duly served on the person;

(c) after duly serving the bill, if within six months from

9.4. Thus, it is seen that all the aforesaid three conditions are required to be qualified for incurring disqualification of an elected member.

9.5. The Respondents' case is that the property tax bill in the present case was demanded and served upon Shri. Dashrath Kadam, the driver / servant of the Petitioner, however as opposed to this the Petitioner's case is that he is unaware of any person by the name of Shri. Dashrath Kadam and has never employed any such person as his driver / servant.

9.6. At the time of hearing the Dispute Application, the Petitioner in his reply statement dated 24.09.2021, in paragraph No. 4 has categorically stated that the Petitioner or his family members have never received the property tax bill; that Shri. Dashrath Kadam has never been employed as 'Driver' by the Petitioner at any point of time; the bill / notice for demand of property tax has not 12 of 16 been duly served on the Petitioner as required by the statute and the office copy does not bear his acknowledgment and signature. No enquiry is conducted on this crucial aspect before passing the impugned order of disqualification

9.7. It is seen that though the property tax bill is raised in respect of the Petitioner's property, the demand notice / bill has not been 'duly served' on the Petitioner as required under the provisions of Section 16(1)(k) of the said Act.

9.8. The consequences of such non-payment of the property tax has led to the Petitioner being disqualified as an elected member of the Gram Panchayat. The office copy / acknowledgment copy at page 32 of the Writ Petition makes an interesting reading. Property tax bills are served upon 22 house owners who have received the bills and signed or given their acknowledgments in person, save and except the Petitioner, in whose case the bill is received by Dashrath Kadam, the alleged Driver of the

10. We may note that if the property tax is due from the 13 of 16 Petitioner, the provisions of the said Act require issuing a demand notice / bill of tax payable and presentation of the bill to the Petitioner. What has to be established by the Respondents thereafter is that there is a failure on the part of the Petitioner to pay the property tax to the Gram Panchayat within six months from the date on which the demand notice / bill is presented to the Petitioner and is duly served on him and received by him. The consequences of default in the event of non compliance are drastic as observed above. Therefore a sort of locus poenitentiae is given to the defaulter to clear the arrears before he is so exposed to the penal consequences of disqualification. In the present case it also cannot be ruled out that due to rivalry between the Respondent Nos. 2 and 3 on the one hand and the Petitioner, the present situation may have arisen as the Petitioner has pleaded fraud and fabrication of the acknowledgment receipt / office copy.

11. On examination of the material on record, it is clear that the property tax bill has not been duly served on the Petitioner; the Additional Divisional Commissioner has not established the veracity of the recipient of the bill or examined the said Dashrath Kadam, the contesting Respondents have also failed to establish the identity of Dashrath Kadam and thus it cannot be said that the property tax bill was duly served upon the Petitioner by the Gram Panchayat. The 14 of 16 Sarpanch of the Gram Panchayat has issued a certificate after conducting local enquiry and after checking the electoral roll of village Kenjal that no person by the name of Dashrath Kadam resides in village Kenjal.

12. From the above, it is clear that the demand notice for payment of property tax cannot be held to be duly served on the Petitioner in accordance with the provisions of Section 16(1)(k) of the said Act, as such the Petitioner cannot be said to have knowledge of the outstanding demand of property tax being duly served on him. Respondent's failure to prove this is evident from the facts presented before us; therefore the Petitioner cannot be said to have incurred disqualification as the member of the Respondent No. 4 - Gram Panchayat. The statutory provisions for seeking disqualification must be strictly construed, not only must there be a proof of the presentation of the property tax bill alongwith the proof of receipt by the person, but the date of such presentation must also be proved to ascertain if there has been a failure to pay the amount within the prescribed period of six months from the date of demand. In the present case, the case of the Respondents therefore fails at the first instance namely that the Gram Panchayat has not duly served the bill on the Petitioner in accordance with law. 15 of 16

13. In view of the above discussion and findings, the service of notice of demand upon the Petitioner being the defying aspect in the instant case and since this aspect has not been proved by the Respondents, on this ground alone the impugned order dated 01.11.2021 needs to be interfered with. Hence, we pass the following order:

(i) The order dated 01.11.2021 passed by the Additional

Divisional Commissioner, Pune Division, Pune Panchayat Samiti / Wai / Dispute Application / Satara 2019 disqualifying and holding the Petitioner as ineligible to hold office as member of the Panchayat Samiti Wai due to non-payment of property tax under the provisions of Section 16(1)(k) of the said Act is hereby quashed and set aside;

(ii) Petitioner is restored to the post of 'Member' of Wai

14. In view of the above directions, the Writ Petition stands disposed of. However, there shall be no order as to costs. [ MILIND N. JADHAV, J. ] [S.J. KATHAWALLA, J.] 16 of 16 TRAMBAK UGALMUGALE