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2009 Supreme(Bom) 1159
IN THE HIGH COURT OF BOMBAY
B. P. Dharmadhikari and F. M. Reis, JJ.
SANTOSH CHANDANSINGH RAWAT
Versus
DIVISIONAL COMMISSIONER, NAGPUR
L. P. A. No. 336 in W. P. No. 2819 of 2009
Decided On : SEPTEMBER 9, 2009
A.S.KILOR, P.C.MADKHOLKAR, S.P.Dharmadhikari
Headnote:Maharashtra Zila Parishad and Panchayat Samitis Act, 1961 - Section 16(1)(i) - Disqualification of councillor - Appellant elected as councillor - He was awarded contract by Zila Parishad - Payment not received by him - Liberty given to file fresh petition - Appellant was interested in getting payments - Section 16(1)(i) mandates only interest and share not on work done - Section 16(1)(i) clearly attracted - There is always possibility of liability being disputed before actual payment is made - No merit in appeal - Appeal dismissed. - It cannot be said that the moment a contract is fully executed on one side and all that remains is to receive payment from the other, then the contract terminates and a new relationship of debtor and creditor takes its place. Therefore is always a possibility of the liability being disputed before actual payment is made and the vendor may have to bring an action to establish his claim to payment. The existence of the debt depends on the contract and cannot be established without showing that payment was a term of the contact. It is true the contractor might abandon the contract and sue on ’quantum merit’ but if the other side contested and relied on the terms of the contact, the decision would have to rest on that basis.
The submission is without any substance mainly because after termination of the contract, fresh contract is executed by Mallikarjun Khande for carrying out remaining work. Further Section 7(d) as it stood prior to its amendment in 1958 inter alia provided if the work is carried out "by himself or for any person or body of persons in trust for him or for his benefit or on his account," then such person was disqualified and in such situation, the question of benamidar or carrying out on behalf of appellant might require some consideration. After substitution of Section 7(d) by Section 9-A, there must be subsisting contract by the contesting candidate for execution of any works undertaken by him with the Government. The essential ingredient of the section is that the contract for the execution of any works undertaken by the Government should be substituting on the date of scrutiny of nomination.
( 1 ) CHALLENGE in this Letters Patent Appeal is to the judgment dated 29-7-2009 delivered by the learned Single Judge of this High Court in Writ Petition No. 2819/2009 dismissing it. In that Writ Petition, present Appellant had challenged order dated 1-7-2009 passed by respondent no. 1 Divisional Commissioner, Nagpur disqualifying him as a Councillor of the zilla Parishad, Chandrapur under section 16 (1) (i) of the Maharashtra Zilla parishad and Panchayat Samitis Act, 1961, (hereinafter referred to as "the 1961 act" for short ). The challenge raised can be briefly stated here for convenience. According to Appellant when work was already executed and he was only to receive amount therefor from the Zilla Parishad, the fact that such amount due prior to election was paid after election without anything more, was not sufficient to hold that he was having any interest in work done to bar him from continuing as a Councillor. It is further urged in the alternative that such ground of disqualification may at the most be relevant in election petition, but same cannot in these circumstances be viewed as incurred during term of his office as councillor. Lastly locus of Respondent No. 3 to move for declaration of disqualification under section 40, is also assailed.
( 2 ) IN view of the challenge narrated above, we find it appropriate to mention relevant legal provisions before adverting to facts of the matter.
"16. Disqualifications (1) Subject to the provisions of sub-section (2), a person shall be disqualified for being chosen as, and for being, a Councillor (a ). . . . . . . . . . . (b ). . . . . . . . . . . (c ). . . . . . . . . . . (d ). . . . . . . . . . . (e ). . . . . . . . . . . . (f ). . . . . . . . . . . . (g ). . . . . . . . . . . (h ). . . . . . . . . . . (i) if he has directly or indirectly by himself or his partner any share or interest in any work done by order of the Zilla Parishad or in any contract with, by or on behalf of, the Zilla Parishad or;"
"40. Disqualification of Councillor during term of office - (1) Subject to the provisions of sub-section (2) of section 62, if any councillor during the term of his office a) becomes disqualified under sub-section (1) of section 16, or. . . . . . . (2) If any question whether a vacancy has occurred under this section is raised either by the Commissioner suo motu or on an application made to him by any person in that behalf, the Commissioner shall decide. . . . . . . . . . . . . . . . . . shall be final. Until the Commissioner. . . . . . . . . . . . . . . . . . . . . . from containing to be Councillor: provided that,. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . of being heard. "
Section 27 insofar as relevant for present purposes, reads as under :-"27. Determination of validity of elections; inquiry by Judge: procedure :- (1) If the validity of any election of the Councillor or the legality of any order made or proceedings held under section 26 is brought in question by any candidate at such election or by any person qualified to vote at the election to which such question refers such candidate or person may, at any time within 15 days after the date of the declaration of the result of the election or the date of the order or proceedings apply to the District Judge of the district within which the election has been held, for the determination of such question. (2) to (8)not reproduced. "
( 3 ) APPELLANT has been declared elected on 12-3-2007 as Councillor from 36 kelzar Chinchala constituency of Respondent No. 2 the Zilla Parishad in election held on 12-3-2007. He has been further elected as President of said the Zilla parishad on 21-3-2007. Earlier he was awarded contract of road asphalting by the zilla Parishad on 27-9-2005 and 17-3-2005 and though the contract work was over, payment was not received by him because of lack of funds with Zilla parishad. It is admitted position that, these amounts have been paid to him on 30-3-2007
