Gaikwad P.Ramchandra v. Bhalerao Arun Waman & Ors.

Mr.Shrishail Sakhare & Mrs. Nilambika Sakhare for petitioner Coram : V.C.Daga,J. Date : 21st August,2008 P.C. 1] 2] Heard learned counsel for the petitioner. Perused petition. This petition is directed against the order dated 3/5/2008 passed by the Civil Judge, S.D. Solapur in Election Petition no.2/2007 filed u/s 16(1) of the Bombay Provincial Municipal Corporation Act, 1949 (The Act for short) . The petitioner has pressed in to service only two submissions to challenge the findings . i] ii] That unathorised lottery center is run in the open space of the Municipal Corporation . That the elected candidate was in arrears of Rs.6,000/-and that the house taxes in respect of municipal corporation house no.271 were not paid by the elected candidate right from the year 2004 . 3] In order to appreciate the submissions advanced, it is necessary to quote the text of section 10(h) of the Act ,which reads as under.

2 Section 10(h) : fails to pay arrears of any kind due to the Corporation by him otherwise than as a trustee within three months after a special notice in this behalf has been served on him by Commissioner . The reading of the aforesaid sub clause (h) of section 10 4] castes obligation on the person to pay the arrears of any kind due to the Corporation after service of special notice on him by the Commissioner . Therefore , the service of 'special notice 'is a condition precedent for invoking disqualification u/s 10(h) . With this backdrop if one turns to the election petition, the pleadings incorporated therein reads as under : That ,the opponent no.1 is residing in House no.271 in the area of Sanjay Nagar Zopadpatti, North Sadar Bazar at Solapur .The Solapur Municipal Corporation charges taxes since long years. The opponent no.1 along with other persons had submitted application dated 6/11/2006 to Solapur Municipal Corporation through Republican Party of India for deduction of the said tax assessment.

On 8/1/2007 there were total arrears of tax assessment of the said was Rs.4157/- .The Solapur Municipal Corporation had asked the opponent no.1 about the tax assessment of the said house. Out of that the opponent no.1 has paid Rs.500/- on 8/1/2007 .But in Nomination Form he opponent no.1 had not given the information about the arrears of the tax assessment of Solapur Municipal Corporation. The said tax has not paid by the opponent no.1 till the scrutiny of the Nomination Form . Due to this reason the Nomination Form of opponent no.1 is liable to be cancelled. On this account, the election of the opponent no.1 is illegal. Reading of above pleadings go to show that in none of the paragraphs the date of service of special notice under the signature of the Commissioner has been pleaded . The pleading in this behalf is 3 deficit . As a matter of fact in absence of material facts and particulars the said issue could not have gone for trial.

Be that as it may whatever evidence is laid in this behalf is inadmissible for want of pleadings in view of the judgments of Apex Court (1) Ram Sarup Gupta (dead) by L.Rs.Vs.Bishun Narain Inter College and others ,AIR ,1987 ,Supreme Court,1242. (2) D.M.Deshpnade and others Vs.Janrdhan Kashinath Kadam)(dead) by L.Rs.and others ,AIR 1999 ,Supreme Court,1464. 5] The allegations must be specific with material facts and particulars as held by Apex Court in the case of Rishab Kumar & Sons Vs. State of U. P .and others , AIR ,1987 , Supreme Court, , 1576 . 6] The petitioner has also pressed in to service the argument leading to unauthorised lottery center being run in the open space of the municipal corporation. Pleadings in this respect reads as under. Para 3(d): That the opponent no.1 was disqualified for contesting Election of Municipal Corporation . Because the opponent no.1 had taken open space from opponent no.10 for the shop of Sale of Lottery Tickets on lease basis .The rent was Rs.125/- per month .Inspite of service of the Notices /Bills issued by the opponent no.10 has not deposited the said rent (Unauthorised loss amount).The opponent no.1 has filed Nomination Form wherein para D in the affidavit he has falsely stated on oath . At the time of scrutiny of Nomination Form the petitioner made complaint regarding the said arrears, therefore, opponent no.1 on 16/1/2007 at 4

5.15 p.m. paid rent of unathorised lottery center amount of Rs.6875/- vide Voucher No.39864 .Hence , Nomination form filed by the opponent no.1 was accepted wrongly and illegally. The opponent no.1 is disqualified for contesting Election as member of Solapur Municipal Corporation. So the Election of the opponent no.1 be cancelled. 7] So far as this ground is concerned there is absolutely no pleading in respect of unauthorised construction . Section (10)(1D) of the Act, thus does not get attracted. 8] No other contention is raised. The findings recorded on both issues cannot be faulted. They are based on evidence and facts available on record . It is thus not open for this Court to reappreciate evidence in exercise of writ jurisdiction under Article 227 of the Constitution not being court of appeal .This Court is not expected to substitute its own views in place of impugned order in exercise of writ jurisdiction . 9] The view taken by the Trial Court is reasonable and possible . No case is made out to entertain this petition . Petition stands dismissed in limini . No order as to costs. (V.C.Daga,J.)