Tetar Mandal And Others v. Executive Officer And Others

S.K Jha, J.:— The petitioners in this application under Articles 226 and 227 of the Constitution of India have prayed for the issuance of a writ of certiorari or any other appropriate writ quashing the order passed by the Executive Officer, Bhagalpur Municipality, respondent no. 1, on 13-1-1975, a copy whereof has been marked as Annexure 3 to the writ petition. By the impugned order, the names of respondents 2 and 3 have been mutated in the Municipal Register in place of the petitioners whose names stood already entered therein after striking out their names from the Municipal records. The petitioners challenge this order as being without jurisdiction.

2. The relevant facts are short. The property in dispute is the premises on holding no. 8 on Rashbihari Lane in Muhalla Mundichak falling within Ward no. 2, but at present situate in Ward no. 11, circle no. 3 of the Bhagalpur Municipality. The land comprised in the holding originally belonged, according to the admitted case, to Mahanth Harinandan Das. According to the petitioners, they had been induced by him on this land more than 50 years ago presumably under a deed of settlement in perpetuity. The petitioners after having been put in possession of the land claimed to have constructed their houses on this holding long-long ago and they have been residing therein with their respective families ever since the houses were constructed. The name of Mahanth Harinandan Das, however continued in the assessment register of the Municipality even after the settlement made in favour of the petitioner, but the petitioners claim to have been paying rent, ever since they were inducted to the Municipality and rent receipts in respect thereof used to be granted in the name of Mahanth Harinandan Das through petitioner no. 1 Tetar Mandal. In the year 1960 admittedly Mahanth Harinandan Das died. Since after his death for some years no Municipal Taxes were paid. Later however, according to the petitioners' case, on being so advised they filed an application for mutation of their names in the Municipal records. The application was registered as case no. AD 456/1969-1970. On such an application filed by the petitioners, the Special Officer, Bhagalpur Municipality by his order dated 18-1-1970 directed their names to be mutated and accordingly their names were entered in the Municipal records in respect of the holding in question. A copy of the order dated 18-1-1970 has been annexed and marked Annexure 1 to the writ application. In the meantime, however, respondent no. 2 Lakshmi Narain Sah and Sitaram Sah (since dead), who was the father of respondent no. 2 and the husband of respondent no. 3 Prema Devi claimed to have purchased the land in question from one Mahanth Harinandan Das by a sale deed dated 11-6-1967 which was compulsorily registered on 2-8-1971 by the District Registrar as Mahanth Harinandan Das had denied execution of the document and had refused to get it registered. It may be mentioned here that the name of Mahanth Harinandan Das was never mutated in the Municipal records after the death of Mahanth Harinandan Das from whom he claimed to have succeeded to the property by virtue of being the Chela of Mahant Harinandan Das. In the meantime, Sitaram Sah, the father of respondent no. 3 died. Thereafter on 17-12-1971 respondents 2 and 3 filed an application for mutation of their names by striking out the names of the petitioners before the Special Officer. The case was registered as AD No. 874 of 1971-1972. The petitioners having been duly noticed filed an objection. After hearing the parties and examining all such materials as were produced before the Special Officer, he passed an order on 12-6-1972 rejecting the petition of respondents 2 and 3 and holding that the petitioners' names would continue in the Municipal records until there was an adjudication of title and a proper declaration by a Civil Court of competent jurisdiction. A copy of the aforesaid order of the Special Officer has been marked as Annexure 2 to the writ petition. Soon thereafter, it seems, the Special Officer was succeeded by an Executive Officer of the Bhagalpur Municipality. In the year 1973 again an application was filed by respondents 2 and 3 before the Executive Officer, respondent no. 1 for mutating their names. The case was registered as A.D No. 761 of 1973-1974 and by the impugned order dated 13-1-1975 (Annexure 3), respondent no. 1 has reviewed the order of his predecessor-in-office dated 12-6-1972 (Annexure 2). It is the admitted case of the parties that after the order of the Special Officer as contained in Annexure 2, there has been no adjudication of the respective right title and interest of the parties by any Civil Court in respect of the holding in question. On the contrary, the stand of the respondents is that respondent no. 2 and his father Sitaram Sah aforementioned had purchased the land from Mahant Harinandan Das who had succeeded as the spiritual heir of Mahant Harinandan Das and that in some civil suit not inter-parties nor in respect of the holding in question the name of Mahant Harinandan Das had been substituted in place of Mahant Harinandan Das and that, therefore respondents 2 and 3 were rightly Claiming to be mutated and their prayer had been rightly allowed by respondent no. 1.

3. On these facts, Mr. Rama Kant Verma, Learned Counsel for the petitioner raised two contentions. It was submitted in the first instance that impugned order had been purported to be passed by the Executive Officer under the provision of clause (b) of sub-section (1) of section 107 of the Bihar and Orissa Municipal Act, 1922 (Act VII of 1922), hereinafter to be referred to as ‘the Act’. This he had no jurisdiction to do. It is the common stand of all the parties concerned including that of respondent no. 1 that the impugned order has been passed in the purported exercise of powers under the aforesaid clause (b).

4. It was next contended by Mr. Verma that assuming that such a case could be covered by the provision of clause (b) of section 107(1) of the Act the order of the Special Officer dated 12-6-1972 (Annexure 2) being of a quasi-judicial nature was not amenable to any review by his successor-in-office, namely, the Executive Officer, respondent no. 1, as there was no power of review conferred by the Act on the Executive Officer either expressly or by necessary implication. In my view both these contentions of learned counsel for the petitioners are well founded for the reasons to be given hereinafter.

5. Apropos the first contention, it is worthwhile to examine the language of clauses (a) and (b) of section 107(1) of the Act which read thus:—

“(1) The Commissioner may from time to time alter or amend the assessment list in any of the following ways:—

(a) by entering therein the name of any person or any property which ought to have been entered, or any property which has become liable to taxation after the publication of the assessment list under section 115;

(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 of otherwise to the ownership or occupation of the holding.;”

6. There are thus two provisions in section 107 of the Act under which the name of one person can be entered in the municipal papers for the purpose of assessment. Clause (a) extracted above empowers the Commissioners from time to time to amend or alter the assessment list by entering therein the name of any person which ought to have been entered after the publication of the assessment list under section 115 of the Act. Clause (b) invests the Municipal Commissioners whose powers are for the instant case being exercised by respondent no. 1, to substitute in the municipal records for the name of the owner or occupier the name of any person succeeding by transfer or otherwise to the ownership or occupation of the holding whereas in clause (a) it will be noticed that the power of entering the name of any person in the municipal register is to be exercised where the name has not been entered after the publication of the assessment list under section 115 of the Act. That is for the purpose of fastening the liability of assessment to taxation of the owner or occupier of a property whose name has been left out. That is not the case here. Clause (b) on the other hand, authorises the Municipal Commissioner to alter or amend the municipal assessment list by substituting the name of any person, who claims to have succeeded to the holding in question either by transfer or in any other manner from the person whose name stands in the assessment list. The power of substituting in clause (b), therefore, can be exercised only where there has been a devolution of interest from the person whose name stands in the municipal records to the person who claims, by virtue of such devolution of interest from the former, to be substituted for the former owner or occupier. To take any other view on the language of clause (b) would be making the first part of clause (a) redundant and otiose. Under clause (a) after the assessment list has been published under section 115 of the Act and a person's name has been wrongly entered in the assessment list, there is a provision for the benefit of the person, who may feel dissatisfied with the amount assessed on him or with the valuation of the assessment of the holding or who objects to his name being so entered regarding any holding thereby denying his liability to be assessed to file an application for review under section 116(1) of the Act. It may be pertinent to notice here the provision as contained in section 116(1) of the Act which runs in these terms:—

“116. Application for review: (1) any person who is dissatisfied with the amount assessed upon him or with the valuation or assessment of any holding, or who disputes his occupation of any holding or his liability to be assessed may apply to the Commissioners to review the amount of assessment or valuation, or to exempt him from the assessment or tax.”

7. Clause (a) of section 107(1) of the Act, therefore, contemplates that by a wrong entry made in the list published under section 115 of the Act, a person who ought not to have been saddled with the liability to be assessed and yet whose name has been so entered in the municipal record may deny his liability to be assessed by filing an application for review under the provisions of section 116(1) of the Act. Clause (b) of section 107(1) of the Act, however, clearly contemplates that only such owner or occupier can be substituted in the Municipal assessment list as may be claiming any devolution of right, title and interest from the person whose name originally stood recorded in the municipal papers. Admittedly in the present case, the name of Mahanth Garibdnand Das through whom respondents 2 and 3 are claiming was never mutated in the municipal records. On the contrary, the name of the petitioners had already been recorded by an order dated 18-1-1970 (Annexure 1) and was again ordered to be continued in spite of a petition for substitution by respondents 2 and 3 by the order dated 18-12-1971. Respondents 2 and 3 do not claim to have derived any right, title or interest either as owners or as occupiers from the petitioners whose names stood recorded. There was thus no power conferred on the Executive Officer, respondent no. 1 by clause (b) of section 107(1) of the Act to substitute the names of respondents 2 and 3 who were claiming through Mahanth Garibanand Das, whose name, as already stated earlier, had never mutated in the municipal records by striking out the names of the petitioners through whom respondents 2 and 3 do not claim to have derived any interest either as owners or as occupiers. It is well settled that a public body interested with statutory power must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. To hold that the Executive Officers or the Municipal Commissioners are competent to do such a thing or pass an order like the impugned one would have pernicious consequence. For, in that event they would be at liberty to go on changing the name entered in the assessment list every now and then by usurping into themselves the power of adjudicating the right, title and possession of various parties over some property which is certainly not within their domain. This would result in utter confusion and a chaotic situation. The special officer in his order dated 12-6-1972 as contained in Annexure 2 had acted wholly in consonance with law in leaving the parties to have their right, title and interest adjudicated by a civil court of competent jurisdiction. In the absence of such adjudication, as there had been none between the parties with respect to holding in question the Executive Officer had no power to substitute the name of respondents 2 and 3 in place of the petitioners by striking out the names of the latter. The order of the Executive Officer, therefore, must be held to be beyond the perview of clause (b) of section 107(1) of the Act. In this connection, I may refer to a Bench decision of this court in Ram Prasad Yadav… v. Jagdish Prasad & Others…. . 1971 P.L.J.R 314.. In that case the provisions of sections 139(1)(a) and (b) of the Patna Municipal Corporation Act, 1951 (Act 13 of 1952) were being considered. I may immediately point out that the provisions of section 139(1)(a) and (b) of the Patna Municipal Corporation Act are for all practical purposes, the same as those of section 107(1)(a) and (b) of the Act. In that case it was held by Untwalia, J. (as he then was) speaking for the Bench that the wordings of clause (a) are not clear enough to cover a case of entering the name of any person whose name ought to have been entered but the name of some other person was entered either by mistake or fraud. In that case the facts for the purpose of the point at issue were similar to those in the instant case and it was held that the case was undoubtedly not covered by clause (b) of section 139(1)(b) of the Patna Municipal Corporation Act. While doubting whether such a case could even fall under clause (a) it was held, assuming that the case was covered by that clause that exercise of such power after lapse of a long time amounted to misuse of power or was a mala fide exercise of power in law. In that case, it seems, the point was not thought fit to be raised by either party that such a case could be covered by the provisions of clause (b) of section 139(1) of the Patna Municipal Corporation Act corresponding to clause (b) of section 107(1) of the Act. It was further held in Ram Prasad Yadav's case (supra) that even the provision of review in section 150(1) of the Patna Municipal Corporation Act corresponding to section 116(1) of the Act could not cover such a case as the provision for review was meant to give relief to a person, who denied his liability to be assessed and whose name had been entered wrongly therein or who challenged the quantum of tax assessed. The Bench decision in Ram Prasad Yadav's case (supra), therefore, in my view support both expressly and sub silentio the view that I have taken with regard to the true construction of clauses (a) and (b) of section 107(1) of the Act.

8. The second point of Mr. Verma is equally impressive. It is well settled that the exercise of such a power as in the instant case by the Municipal Commissioners or the Executive Officer exercising the power of the Municipal Commissioners affect the interest of one party or the other. Such an order must fall, as has also been held in Ram Prasad Yadav's case within the category of quasi-judicial orders. It is well settled that the power to review an order of a judicial or quasi-judicial nature is not an inherent power. It must be conferred by law either specifically or by necessary implications. The decisions of the Supreme Court in State of Bihar v. Ram Dayal Missir . 1962 B.L.J.R 385. and Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji . 1971 3 SCC 844, not to mutiply the case-law, are settlers on this point. The Executive Officer, respondent no. 1, therefore, could not sit in judgment over the order of a quasi-judicial nature passed by his predecessor-in-office, the special officer, in the order as contained in Annexures 1 and 2. The impugned order as contained in Annexure 3 must be held to be without jurisdiction even on this score.

9. S.C Ghose, learned counsel for respondent nos. 2 and 3, laid great reliance upon a Full Bench decision of this court in Kamini Devi v. Chairman of Buxar Municipality . 1966 B.L.J.R 943.. I shall presently show that the decision is wholly irrelevant for the present purpose. In Kamini Devi's case (supra) the Full Bench of this court was seized with the question as to whether any objection to mere mutation of the name of the owner of a holding either on the ground of inheritance or transfer or otherwise need be referred to the committee described in section 117 of the Act or could be disposed of by the Commissioner themselves. An earlier Bench decision of this court in the case of Narsingk Prasad v. Chairman, Gaya Municipality . 1958 B.L.J.R 43., had taken the view that any such objection could not be disposed of by the Commissioners themselves but must be referred to the committee described in section 117 of the Act. That decision on that particular point was overruled in Kamini Devi's case and it was said that on a construction of various clauses of sub-section (1) of section 107 and sub-sections (2) and (3) of that section and sections 116 and 117 of the Act, if must be held that any objection to a mere mutation of the name of the owner of a holding either on the ground of inheritance or transfer or otherwise need not be referred to the committee described in section 117 of the Act and could be disposed of by the Commissioners themselves. I do not see how this decision can lend support to the respondent's case. On the contrary, the decision, if at all relevant, runs counter to the submission of Mr. Ghose. It has been held in paragraph 4 of the judgment at page 946 that section 107 of the Act is a special section which deals with amendments and alterations to the assessment list in the interim period between the original general assessment and the revision of the same after the expiry of the statutory period as referred to in section 106. That is not the case here.

10. For the reasons aforesaid, I hold that the impugned order of respondent no. I as contained in Annexure 3 is wholly without jurisdiction and must be quashed. The application is accordingly allowed with costs payable by respondents 2 and 3 to the petitioners. Hearing fee assessed at Rs. 150/- only.

11. Uday Sinha, J.:— I agree.