1. The Additional District Judge, 3rd, Court at Chaibassa, acting as an Election Commissioner, has, by his order dated the 13th September, 1971, passed in Miscellaneous (Election Petition) Case No. 1 of 1968, set aside the election of the petitioner as a Commissioner of Seraikella Municipality at the instance of the opposite party. The latter has also been declared as duly elected by the same order. The petitioner has obtained a rule from this Court under Section 115 of the CPC against the opposite party to show cause why the order aforesaid be not set aside. Cause has been shown on his behalf. A notification dated the 19th July, 1967 was issued by the Deputy Commissioner of Singhbhum under Rule 7 of the Bihar Municipal Elections and Election Petitions Rules, 1953, hereinafter called the Rules, notifying that the election of Commissioners in all the Wards of the Seraikella Municipality within the district of Singhbhum would be held on 19-9-67. A copy of this notification is Ext. J. According to the programme published, the petitioner as well as the opposite party filed their nomination papers to contest the election to the office of the Commissioner from Ward No. 2. The nomination papers of both were accepted by the Returning Officer on the 24th of August, 1967. The opposite party objected to the acceptance of the nomination paper of the petitioner on the ground that he was in arrears of municipal tax for his house situated in Ward No. 2 of the Seraikella Municipality and as such he was not eligible to be elected as a Commissioner under sub-clause (vii) of Rule 6(b) of the Rules. The Returning Officer overruled the objection and accepted the nomination paper of the petitioner. Poll was held on 19-9-67 at which the petitioner was duly elected; the opposite party was defeated at the election. Thereafter he filed the Election Petition in accordance with Rules 63 to 65 of the Rules. The election of the petitioner was challenged before the Election Commissioner only on two grounds— (i) that the petitioner was disqualified for the election and his nomination paper has been improperly accepted as a result of which the election has been materially affected and (ii) that the petitioner had indulged in corrupt or illegal practice, in that his voters had been taken to the booths in his conveyance.

2. The Court below has held that the allegation of corrupt practice could not be substantiated at all. But on the first ground it has declared the election of the petitioner void, and since the opposite party was the only candidate left thereafter in the field, he has been declared duly elected as Commissioner of Seraikella Municipality from Ward No. 2. The petitioner has come up in revision to this Court.

3. A preliminary objection was raised on behalf of the opposite party that the revision application is not maintainable since the learned Additional District Judge acting as an Election Commissioner is not a Court subordinate to the High Court within the meaning of Section 115 of the CPC. Learned Counsel for the petitioner pointed out that the application was one under Article 227 of the Constitution of India also. But that apart, in my opinion, the decision of this Court in Abdul Razak v. Kuldip Narain*, AIR 1944 Pat 147, holding that the Election Commissioner appointed under the Bihar District Board Electoral Rules is a Court subordinate to the Court within the meaning of Section 115 is still a good law and has not yet been overruled after the advent of the Constitution. The preliminary objection is, therefore, repelled.

4. The petitioner had a house in Ward No. 2 bearing holding No. 28. He and his brothers executed a registered sale deed on 6-10-59 and transferred the house to Marwari Dharmashala Society for a sum of Rs. 5,500/-. The sale deed is Ext. B. The Court below has found that the sale was a good sale, possession was transferred to the vendee on execution of the sale deed and the vendee became the owner of the house since then. But it has held that since the name of the vendee was mutated in the municipal papers on the basis of the mutation order dated 1-10-66, which, in terms, was based upon the information received for the first time on 28-8-66, the petitioner was liable to pay the municipal taxes till then and hence was disqualified under Rule 6(b)(vii) for being a candidate for the office of the Commissioner. It may be pointed out here that according to the case of the petitioner an information was given to the Municipality in the year 1960 that the house had been transferred. But the Municipality did not take steps to mutate the name of the transferee and illegally and wrongly continued the name of the petitioner as the assessee in its records. This case, however, has not been accepted by the Court below as correct on the ground that the original petition said to have been filed before the Municipality in the year 1960 was not found in the records of the Municipality. I shall, therefore, proceed in this case on the findings recorded by the Court below, and they are the following.

(i) That the petitioner had paid the municipal taxes for all the four quarters of 1959-1960.

(ii) That the petitioner's name continued in the assessment register, and demand notices were issued to him for all the subsequent quarters of the year 1960-1961 up to 1965-1966.

(iii) That he was also liable to pay the municipal taxes for the two quarters of 1966-1967 as the mutation order was passed on 1-10-66.

5. On the above findings, the learned Election Commissioner relying upon a Bench decision of this Court in Patna Municipal Corpn. v. Ladley Saran, 1963 BLJR 214 and distinguishing another Bench decision in Abrar Ali Khan v. Patna City Municipality, (1962) ILR 41 Pat 338, has held that the petitioner did not pay all taxes due from him to the Commissioners of Seraikella Municipality at the end of the financial year immediately preceding that in which the election was held and, hence, was disqualified for being a candidate for election as a Commissioner within the meaning of sub-clause (vii) of clause (b) of Rule 6 of the Rules.

6. Rule 6(b)(vii)- reads ??? follows:

“(b) A person shall be disqualified fa? being a candidate for election as a Commissioner, if—

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(vii) he has not paid all taxes duo by him to the Commissioners at the end of the financial year immediately preceding that in which the election is held.”

7. The question in this case is whether any tax was due by the petitioner in respect of the holding which he had transferred long ago. In Section 82 of the Bihar and Orissa Municipal Act, 1922, hereinafter called the Act, a tax is imposed on holdings situated within the Municipality assessed on their annual value. Such tax under Section 100 is payable by the owner of the holding. In the assessment list prepared under Section 105 the name of the owner is shown in accordance with clause (e). Revised assessment lists are prepared every 5 years under Section 106. Under Sec. 107 “The Commissioners may from time to time alter or amend the assessment list in any of the following ways:—

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(b) by substituting therein for the name of the owner or occupier of any holding the name of any other person who has succeeded by transfer or otherwise to the ownership or occupation of the holding;”

8. It would be noticed that the Commissioners have got power to amend the assessment list under clause (b) of sub-section (1) of Section 107 suo motu even without an application. They have to give at least one month's notice under sub-sec. (2) to any person interested in the holding. The provisions of Sections 116 to 119 are applicable to the proceeding of alteration and under sub-section (4) of Section 107 “Every alteration made under sub-sec. (1) shall be signed by the Chairman and, subject to the result of an application under Section 116, shall take effect from the date on which the next instalment falls due, but the Commissioners by such alteration shall not be deemed to have made new or revised assessment list.” Section 108 casts an obligation upon the transferor and transferee both to give notice in writing of the transfer to the Chairman of the Municipality, but on their failure to do so only a penalty has been provided in sub-section (4). It would thus seen that the scheme of the Act is to make the owner liable to pay the Municipal Tax. The alteration made under sub-section (1) takes effect from the date on which the next instalment falls due in accordance with Section 121 in so far as the amount of tax is concerned. To my mind, as soon as the alteration is made in regard to the name of the owner, the transferee becomes liable to pay the tax from the date of the transfer in his favour. In this particular case, the mutation order (Ext. I) clearly shows that the name of the petitioner was directed to be scored through in the municipal papers and the name of the transferee was mutated in place of the petitioners name. Exts. 6 to 6/6 clearly show such alteration. Previously the name of the petitioner was there but in pursuance of the order dated 1-10-66 his name was scored through and the name of the transferee was entered. All this happened much before the 31st of March, 1967. The election was held in September, 1967 and, hence, on 24-8-67 when the petitioner filed his nomination paper, it is difficult to agree with the view of the Court below that the petitioner had not paid the municipal tax due from him. In respect of the holding in question at the end of the financial year 1966-1967. Firstly, it is not quite clear to me that the petitioner had paid taxes for all the 4 quarters of 1959-1960, as Ext. 6 does not show that. But even assuming he had done so, as seems to be the view of the learned Election Commissioner, it is plain that he could not be made to pay the municipal taxes for the subsequent period, merely because he had paid taxes for 3 quarters in the year 1959-1960 even after the transfer of the holding.

9. The principle of law decided by it Bench of this Court, of which I was a member, in (1962) ILR 41 Pat 338 is applicable to this case. There a suit was filed by the Municipality for realisation of taxes from a person who had transferred the holding. The transferee had applied for mutation. The Municipality refused to mutate his name on the ground that arrears were not being paid. The name of the transferor continued in the municipal records. The suit was decreed by the trial Court and the decree was maintained in second appeal by a learned single Judge of this Court. But the letters Patent appeal was allowed and the suit was dismissed in this connection at page 344 it has been said.

“The liability of the defendants to pay the taxes is determined not by the entry of their names in the assessment list but by virtue of Section 100(1), read with Section 82 of the Bihar and Orissa Municipal Act. The liability of the defendants to pay the taxes is dependent upon the provisions of these taxing sections and not upon the provisions of Sections 105, 106 and 107 which deal with the preparation of assessment list and the qualification of the tax liability.”

10. It was further said at p. 345.

“Even in the absence of an application for mutation under Section 108 of the Bihar and Orissa Municipal Act it was a duty imposed upon the plaintiff-respondent to alter or amend the assessment list under Section 107(1)(b) of the Act after following the procedure mentioned in sub-sections (2), (3) and (4) of Section 107”.

11. It would be noticed that at p. 346 there is a reference to certain decisions of this Court, which would indicate that the fact of liability is a jurisdictional fact. If the municipal authority wrongly holds a person to be the owner of the holding, the matter can be successfully agitated in a Civil Court. In the instant case, however, the holding had been transferred long ago, no tax in respect of any period before the date of transfer was due from the petitioner and the Municipality was not claiming any tax from him in respect of the subsequent period. And, yet by taking an erroneous view on the question of the petitioners liability, the learned Election Commissioner has non-seated him. The Bench decision in 1963 BLJR 214 has not been correctly appreciated by the Court below. There with reference to the specific provision of law contained in Section 109 of the Act, it was held that the respondent was the owner of the holding. Admittedly he was owner of the old holding, and upon a piece of land he had allowed his lessee to make certain constructions. Under Section 109 the Municipality could treat the old owner as the owner of the new structures also unless they were separately recorded. In such a situation, it was said at p. 217.

“In my opinion, the word ‘owner’ in this section means only the person who is recorded as such by the Municipality. It will be noticed that under sub-section (1) of that section, it is in the discretion of the municipal authorities to value the house and land together and to impose a consolidated tax; but they are not bound to do so. If, however, a consolidated tax is imposed, sub-section (2) comes into play; and the tax is to be realised from the owner of the house. It is obvious that before imposing the consolidated tax, the authorities must know who is the owner; and the municipal records are the only materials in their possession for the purpose at the time of assessing the tax, unless the law requires the authorities to make further inquiry, of their own motion, about the actual ownership of the house or the land at the time or the assessment. No such law has been brought to our notice.”

12. The present case is not covered by Section 109 of the Act. The view of the Court below that the petitioner was disqualified under sub-clause (vii) of clause (b) of Rule 6 of the Rules for being a candidate for election as a Commissioner of Seraikella Municipality is erroneous. Under Rule 75 of the Rules, the election of the returned candidate can be held to be void under clause (c) if he was disqualified for election and if his nomination was improperly accepted. The Election Commissioner gets jurisdiction to declare the election void only if a correct finding is recorded in law. If the finding recorded is erroneous in law then the Election Commissioner has no jurisdiction to declare the election void. In this connection reference may be made to a decision of the Privy Council in Joy Chand Lal Babu v. Kamalksha Chaudhury, AIR 1949 PC 239. In the result, the application in revision is allowed with costs—hearing fee Rs. 100, the judgment and order of the Court below are set aside and the election petition filed by the opposite party is dismissed. There will be no order as to cost in the Court below.

13. Revision allowed.