1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6247 OF 2008
Shri. Ajitsingh Bhimsingh Deore }
Age : 50 Years, Occ. : Agriculture, }
R/o : Wadgaon Mulane, }
Tq. Pachora, Dist. : Jalgaon. } .... PETITIONER
V E R S U S
1.
Sahebrao Bhata Wagh }
Age : Major, Occ.: Agriculture, }
R/o : Wadgaon Mulane, }
Tq. Pachora, Dist. Jalgaon. }
2. Chief Executive Officer, }
Zilla Parishad, Jalgaon. }
Dist. : Jalgaon. }
3. Gramsevak }
Gram Panchayat, Wadgaon Mulane, }
Tq. : Pachora, Dist. : Jalgaon. } .... RESPONDENTS
Mr. G.V.Wani, Advocate for Petitioner.
Mr.M.S.Deshmukh, Advocate for Respondent no. 1.
Mr.K.M.Nagarkar holding for Mr. B.S.Mundhe,
Advocate for Respondent no. 2 and 3.
[ CORAM : S.S.SHINDE, J. ]
JUDGMENT RESERVED ON : 04/09/2009
JUDGMENT PRONOUNCED ON : 11/09/2009
::: Downloaded on - 09/06/2013 15:04:07 :::
2
JUDGMENT :
1. Rule. Rule returnable forthwith. Heard finally with the
consent of the parties.
2. This Writ Petition takes exception to the Judgment and
Order passed by the Additional Commissioner, Nashik Division, Nashik
in Gram Panchayat Appeal No. 43 of 2008 dated 6/9/2008 confirming
the Judgment and Order passed by the Additional Collector, Jalgaon in
Dispute No. 14 of 2008 dated 13/5/2008.
3. The back-ground facts of the case are as under :
The petitioner herein is an elected Member of Gram
Panchayat, Wadgaon Mulane, Tq. Pachora, Dist. Jalgaon and working
as Dy. Sarpanch. A Tax bill as contemplated under section 129 of the
Bombay Village Panchayat Act came to be issued to the petitioner for
house bearing No. 332 situated at Wadgaon Mulane, Tq. Pachora, Dist.
Jalgaon. According to the petitioner, the said bill has been prepared on
25/4/2007 and same is for the year 2007-2008. It is the case of the
petitioner that the said house stands in the name of Rajendra
Bhimsingh, who is brother of present petitioner. It is the case of the
petitioner that, in fact he is not the owner of the said house nor there is
any joint family. According to the petitioner, he resides at different
place and he is holding ration card issued in his favour, which shows
that he is not residing in the premises, for which tax bill has been
::: Downloaded on – 09/06/2013 15:04:07 :::
3
issued.
4. It is further case of the petitioner that on non payment of
the said bill within stipulated period, immediately an application for
dis-qualification was moved against him before the Collector under
Section 14-A of the Bombay Village Panchayat Act, 1958 ( for
short ‘ the Act ‘ ) bearing Dispute Application No. 14 of 2008. The
petitioner appeared before the Collector and after hearing the
petitioner, the Collector allowed the application and order of dis-
qualification under section 14-A of the Act has been passed against the
petitioner.
5. The petitioner being aggrieved by the Order of the
Collector, preferred Appeal before the Commissioner, Nashik Division,
Nashik bearing Gram Panchayat Appeal No. 43 of 2008. The said
Appeal came to be dismissed on 6/9/2008. Hence, this Writ Petition.
6. The learned counsel for the petitioner submitted that the
specific ground was raised before the Additional Commissioner that the
bill that had been issued, is not due on the date when it has been
issued. Learned counsel further submits that said bill pertains to the
current year and it does not amount to be a bill due as contemplated
under the law. Learned counsel further submitted that the house
belongs to his brother and they have joint family and petitioner is
::: Downloaded on – 09/06/2013 15:04:07 :::
4
residing at different place and, therefore, had no knowledge of the said
bill. Learned counsel further submitted that the proper procedure in
regard to dis-qualification proceedings under section 14-A of the Act
has not been properly followed. Learned counsel further submitted that
the State of Maharashtra has issued Circular on 6/4/2006 prescribing
the procedure and said Circular has not been followed by the parties
while dis-qualifying the present petitioner. Learned counsel further
submitted that the alleged bill had not been served on the petitioner as
required Under Section 129 (2) of the Act. It is further submitted that
the Order of dis-qualification has to be passed by the Collector as
required under section 16 (2) of the Act and in the instant matter, it has
been passed by the Additional Collector. It is further argued that the
Appeal is required to be heard by the learned Commissioner , however,
notice for hearing and actual hearing has taken place before the
Additional Commissioner and, therefore, the Order passed by the
Additional Commissioner is without jurisdiction. It is submitted that
the Additional Commissioner has not considered these important points
and the Appeal of the petitioner came to be dismissed. Learned counsel
further submitted that the alleged bill is not at all the amount due
towards village panchayat on the date of issuance of the bill. It is
further submitted that no proper opportunity of hearing was given to
the petitioner by the authorities.
Learned counsel further submitted that on 6/9/2008 when
Additional Commissioner passed order, said order was without
::: Downloaded on – 09/06/2013 15:04:07 :::
5
jurisdiction. Learned counsel further invited my attention to Rule 8 of
the Maharashtra Village Panchayat Tax and Fees Rules, 1960 and
submitted that the tax shall be leviable for the year beginning on 1st
April and ending on 31st March and shall not come into force except on
the following dates, viz. 1st April, 1st July, 1st October or 1st January, in
any year and if it comes into force on any day other than the 1st April, it
shall be leviable by the quarter till the 1st April next following. Learned
counsel further submitted that the composite bill of one year can not be
issued. Learned counsel placed reliance on the reported Judgment of
this Court reported in 2006 (6) Mh. L.J. 13 Angha Ajit Bhatkar V/s
State of Maharashtra and others.
Therefore, learned counsel submitted that the Writ Petition
deserves to be allowed. Learned counsel relief on pleadings in the
petition and grounds therein in support of his contention.
7. Learned counsel appearing for the respondent submitted
that this Court in L.P.A. No. 154 of 2008 in case of Namdeo Pandhare
V/s state of Maharashtra, in paragraph 5 it has held that in the light of
Section 182 (1) of the Bombay Village Panchayat Act, the delegation of
power by the State Govt. either to the Commissioner or to any other
Officer to exercise any of the powers which may be exercised by the
State Government under the Bombay Village Panchayat Act can be
conferred. The Division Bench while hearing said L.P.A., has noticed
::: Downloaded on – 09/06/2013 15:04:07 :::
6
the Judgment of this Court in case of Atmaram Chapa Sandanshiv and
anr. V/s Shamshadbi Bashir Shah Fakir and Ors. Reported in 2008 (3)
Mah.L.J. 906 and the Judgment of the Supreme Court in case of Vijay
V/s State of Maharashtra reported in 2006 (5) Mh.L.J. 782 and after
hearing the parties, came to the conclusion that the Additional
Commissioner is competent to decide the case. Therefore, the learned
counsel would submit that the contention raised by the counsel for the
petitioner that the Additional Commissioner has no jurisdiction to hear
the Appeal filed by the petitioner, has no force.
8. Learned counsel appearing for respondent no. 1 further
invited my attention to the findings recorded by the Additional
Commissioner and submitted that the Additional Commissioner has
recorded the finding that the house No. 332 is joint family property and
the petitioner’s residence in voter’s list is shown as House No. 332.
Therefore, learned counsel would submit that once both the authorities
have come to the conclusion that House No. 332 is joint family
property, of which petitioner is a member and his address in the voter’s
list is shown as House No. 332, in that case, this Court may not
interfere in writ jurisdiction to up set the findings recorded by the
authorities below. Learned counsel further invited my attention to
Section 14 (1) (h) explanation of the Bombay Village Panchayat Act,
1958 and more particularly (ii), which reads as under :
::: Downloaded on – 09/06/2013 15:04:07 :::
7
” (ii) Failure to pay any tax or fee due to the
panchayat by a member of an undivided Hindu
family, or by a person belonging to a group of
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 may be all the members of such group or
unit “.
9.
Learned counsel for the respondent no. 1 further submitted
that Rule 8 of the Bombay Village Panchayat Tax and Fees Rules
provide that tax shall be leviable for the year beginning on 1st April and
ending on 31st March. Therefore, learned counsel invited my attention
to page 11, which is demand notice for tax, which in foot note at Sr.
No. 1 shows that the Gram panchayat has demanded the outstanding
bills for 2005-2006 and further for the year 2006-2007. Therefore, the
learned counsel for respondent no. 1 submitted that in the light of
provisions of Rule 8 of said Rules, said demand notice for bill, is
perfectly sustainable. Learned counsel further invited my attention to
the reported Judgment of this Court in case of Gangubai Laxman
Bansode and others V/s State of Maharashtra and others reported
in 2008 (1) Mh.L.J. 619 and more particularly paragraph 11 of the
said Judgment and submitted that this Court has interpreted provisions
of Section 14 (1) (h) explanation (ii) and confirmed the view of the
::: Downloaded on – 09/06/2013 15:04:07 :::
8
Additional Collector in that case and, therefore, in this case also the
authorities below have correctly interpreted said Sections and under
Article 227 of the Constitution of India, interference by this Court is not
warranted.
10. I have heard learned counsels appearing for the respective
parties, also perused the petition, annexures thereto and impugned
Judgment and Order of the Additional Commissioner. The Collector as
well as the Additional Commissioner have recorded the findings of facts
that the house no. 332 situated within the limits of Gram Panchayat
Wadgaon Mulane, was owned by father of the petitioner/appellant.
After the death of the father of petitioner, only name of the brother of
the petitioner was recorded as owner of the said house. The present
petitioner filed complaint stating therein that since the house No. 332 is
joint family property and the petitioner has share in the said house and
his name should be entered in record. On an application filed by the
petitioner and since the names of all legal heirs of the father of the
petitioner were not entered in the record, house no. 332 again came to
be recorded in the name of father of the petitioner. It is also further
observed that the residential address of the petitioner in the voter’s list
is shown House No. 332 and in view of the fact that the petitioner
being member of joint family, though notice was issued to the members
of the family, no tax bill has been deposited within prescribed time limit
and, therefore, the petitioner is disqualified under section 14 (1) (h) to
::: Downloaded on – 09/06/2013 15:04:07 :::
9
continue as member of the Panchayat. Therefore, it appears that this
finding is concurrent finding on facts recorded by the authorities below.
11. So far first contention of the learned counsel for the
petitioner that the Additional Commissioner has no power or
jurisdiction to decide the Appeal, has no force in view of the Judgment
of this Court in L.P.A. No. 154 of 2008 dated 11/9/2008. So far second
contention of the learned counsel for the petitioner that he is resident
of Pachora and to that extent, ration card is issued in his name and,
therefore, he is not residing in house no. 332 and said house is the
property belonging to his brother, can not be accepted in view of the
concurrent findings on facts recorded by the Collector as well as
Additional Commissioner as stated herein above. The third contention
of the learned counsel for the petitioner on interpretation of Rule 8, has
no force since it clearly appears that the demand notice is in
consonance with provisions of Rule 8 of the Bombay Village Panchayat
Act and Rules. It clearly appears on perusal of Rule 8 of the said Rules
that the bill for whole year can be issued, that too, in advance. Though
the learned counsel has placed reliance on the reported Judgment of
this Court in case of Angha Ajit Bhatkar V/s State of Maharashtra and
others reported in 2007 (3) Bom. C.R. 865, it clearly appears that the
facts of that case are different. In that case, the tax bill served on
petitioner therein, were not lawfully due. In the instant case,
authorities below have clearly held that the tax amount was due
::: Downloaded on – 09/06/2013 15:04:07 :::
10
towards the joint family residing in house no. 332 of village Wadgaon
Mulane. I find considerable substance in the arguments advanced by
the learned counsel for the respondent that the present case squarely
falls under the provisions of Section 14 (1) (h) explanation (ii). The
reliance placed by the learned counsel for respondent no. 1 on reported
Judgment of this Court in Gangubai’s case (cited supra), in the facts of
this case, is also relevant.
12. Therefore, taking over-all view of the matter and in view of
the fact that the authorities below have taken a reasonable and
plausible view and have arrived at correct conclusion. Therefore,
interference under extra ordinary jurisdiction of this Court under Article
227 of the Constitution of India, is not warranted. Rule discharged.
Hence, Writ Petition is dismissed. Interim relief stands vacated. Civil
Application, if any, stands disposed of in view of disposal of main Writ
Petition.
[ S.S.SHINDE ]
JUDGE
knp/WP6247.08
::: Downloaded on – 09/06/2013 15:04:07 :::