Patna High Court
Daroga Lal vs State Of Bihar And Ors. on 10 January, 1990
Equivalent citations: 1990(38)BLJR937
JUDGMENT
P.S. Mishra, B. Prasad, JJ.
1. Heard.
2. The petitioner herein has moved this Court for quashing the order dated 19-12-1988 passed by the Chief Executive Officer, Patna Municipal Corporation, Patna, The impugned order is one purportedly made in exercise of the appellate power by the Chief Executive Officer, who has set aside the order of the Executive Officer of the Corporation by which order he had allowed the application of the petitioner to remove the name of respondent No. 4 from the Municipal Assessment roll and to enter the name of the petitioner.
3. According to the petitioner, the land in question was purchased in an action through the process of the court on 10-12-1933 by the Peoples Cooperative Bank, Patna City. Bank's name was mutated in the Municipal records of the Patna City and so continued, although the Bank in turn sold the property is question by a public auction to one Jaisi Ram Marwari on 7-7-1940 the said Jaisi Ram Marwari sold the property in question to one Jamuna Prasad on 23424947. Jamuna Prasad sold the entire property to the petitioner, who got it purchased in the name of his friend, Sukhdeo Rai for a sum of Rs. 150/-vide the sale deed dated 21-6-1948.
4. The petitioner has alleged that to avoid any controversy, as to the title to the property, Sukhdeo Rai executed a Bazidawa on 13-2-1978 in favour of the petitioner. The petitioner there after applied for entering his name into the records of the Patna Municipal Corporation, as aforementioned. The case was heard by the Executive Officer, Patna City Municipality. The Executive Officer after completing all the formalities found that the petitioner's claim was genuine and accordingly ordered for mutation of his name, vide order dated 27-6-1988. It appears that respondent No. 4 also in the mean while applied for mutation of his name. His application also was heard by the Executive Officer alongwith the case of the petitioner. The Executive Officer rejected the application of respondent No. 4 by the same order. Respondent No. 4 thereafter filed an appeal before the Chief Executive Officer on 26-8-1988 alongwith a petition under Section 5 of the Limitation Act for condoning the delay in filing the appeal. The Chief Executive Officer, however, found merit in the case of respondent No. 4 and accordingly allowed the appeal, set aside the judgment and order of the Executive Officer and ordered for mutation of the name of respondent No. 4 instead of the name of the petitioner. The petitioner has come to this Court against the said order of the Chief Executive Officer.
5. Section 137 of the Patna Municipal Corporation Act (hereinafter referred to as the Act enjoins that after the percentage at which the tax is to be levied for the next year is determined under Section 136 thereof, the Chief Executive Officer shall cause to be prepared an assessment list which shall contain the particulars as enumerated therein. Section 138 says that new valuation and assessment list shall ordinarily be prepared, in the same manner as the original list, once in every five years. Section 139 states-
(1) The Chief Executive Officer may from time to time alter on 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 149.
(b) By substituting |therein for the name of the owner or occupier of any holding the name of other person who has succeeded by transfer or otherwise to the ownership or occupation of the holding.
XX XX XX XX (2) The Chief Executive Officer shall give at least one month's notice to any person interested and shall also cause a notice to be hung up at the office of the Corporation, of any alteration which he proposes to make under Clauses (a), (b)...and of the date on which the alteration will be made.
(3) The provisions of Sections 150, 151 and 152 applicable to objections shall as far as may be, apply to any objection made in pursuance of a notice issued under Sub-section (1) and to any application made under Clause (g) of Sub-section (1).
(4) Every alteration made under Sub-section (1) shall be signed by the Chief Executive Officer and subject to the result of an application under Section 150, shall take effect from the date on which the next installment falls due, but the Chief Executive Officer by such alteration shall not be deemed to have made a new or revised assessment list.
6. Section 150 is a provision for an application for review, Section 151 is a provision about investigation of objections by the Chief Executive Officer and Section 152 provides for appeal by any person dissatisfied with the order passed on his objection to the District Judge.
7. Section 64(4) of the Act says-
Any of the power, duties or function conferred or imposed upon or vested in the Chief Executive Officer by the Act may be exercised, performed or discharged under the Chief Executive Officer's contort and subject to his superintendence and to such conditions and limitations if any, as he may think fit to specify, by any municipal officer whom the Chief Executive Officer may generally or specially empower in writing in this behalf.
8. Learned counsel for the petitioner has produced before us a notification delegating some of the powers and duties and functions conferred upon the Chief Executive Officer by the Act including the power to substitute the name of the owner or occupier of the holding, by the name of any other person, who has succeeded by transfer or otherwise to the ownership or occupation of the holdings. According to the petitioner, the Executive Officer exercises power of the Chief Executive Officer in terms of the said delegation by the Chief Executive Officer of the power under Section 139(1)(b) of the Act. The Act has not contemplated any appeal to the Chief Executive Officer against an order passed by the Executive Officer as a delegate. Respondent No. 4 had no right to appeal against the order of the Executive Officer. Chief Executive Officer's order, by which he has set aside the order of the Executive Officer is, according to the learned Counsel for the petitioner, without jurisdiction.
9. Learned counsel for respondent No. 4 on the other hand has contended that the assessment which existed uninterrupted by any alleged transfer in favour of respondent No. 4 could not have been altered by the Executive Officer at the instance of the petitioner, who, if any title or ownership vested in him, remained silent for many decades, that is to say, since his purchase in the year 1948 and decided to apply for mutation only in the year 1978.
10. Learned counsel for the petitioner has supported his contention by an authority of this Court in M.A. Haider v. Farukh Jahan Begum 1960 PLJR 6, where a miscellaneous appeal as well as a civil revision against the order of the District Judge of Patna was disposed of by the court with the statement that Section 133 of the Act authorised the Chief Executive Officer to prepare a valuation list. Section 136 provides the procedure for determination of rate of tax on holding, Section 137 dealt with preparation of assessment list and Section 138 concerned revision and duration of the list, and thereafter quoting Section 139 and Section 150 in full, the Court said-
It has to be noticed that the application which could be filed under Section 150(1) is confined to the grievance of a person on there matters only: (1) "the amount assessed upon him." (ii) "the valuation or assessment of any holding" ; (iii) "who disputes his occupation of any holding; " and (iv) "his liability to be assessed". It does not cover the type of disputes and the orders passed under Clauses (a) and (b) of Sub-section (1) of Section 139. Sub-section (2) of Section 50 provides the mode in which applications under Sub-section (1) have got to be made. The argument on behalf of the opposite party is that in view of the provisions of Sub-section (3) of Section 139 read with Sub-section (2) of that section, an application for review is competent under Section 150. In my opinion, if Sub-section (3) be interpreted that way, it would be quite inconsistent with the provisions of Section 150 which limits the right of a person dissatisfied to apply for review only in regard to the four matters just mentioned by me above. In may opinion, Sub-section (3) means that the provisions of Sections 150, 151 and 152 would be applicable to objections and decisions thereon in pursuance of a notice issued under Sub-section (2) of Section 139 provided they are covered by one of the clauses in Section 150 because the modifying expression in Sub-section (3) is "so far as may be". A question then arose what was the necessity of a separate provision of Sub-section (3) of Section 139 when Section 150 is there? The answer, as given by the learned Government advocate is that on a strict interpretation of the provisions of Section 150, the case of re-valuation as envisaged by Clauses (c) to (e) of Sub-section (1) of Section 139 would not have been covered by the provisions of Section 150. In order to avoid that contingency this specific provision under Sub-section (3) has been made. In my opinion, if Sub-section (3) be interpreted like this, it becomes consistent with the provisions of Section 150 and at the same time it does not become redundant. One of the accepted cannons if interpretation of statute is to show interpret each provision of tie Act that it may not be inconsistent with the other and also to interpret it in a fashion as not to make it redundant either.
Speaking about Section 152 the Court has said-
...It is clear that Section 152 provides for appeals against the orders passed under Sub-section (3) of Section 151 and does not provide for an appeal directly against an order passed under Section 139. This is so on reading Section 152 as whole and especially Sub-section (4) of that section....
11. There cannot be any doubt, thus, that the order of the Executive Officer which was under Section 139(1)(b) of the Act was not appeasable. The Chief Executive Officer was/is not the appellate authority. There was no question also of review of the orders of the Executive Officer in exercise of the power conferred by Section 150 of the Act. Viewed in this way,| the impugned order of the Chief Executive Officer may be said to be without jurisdiction.
12. We, however, cannot miss the language of Section 139 as well as Sections 60 and 64 of the Act. The power to amend and alter the list has been conferred upon the Chief Executive Officer. It is this power of the Chief Executive Officer which has been exercised by the Executive Officer as a delegate of the Chief Executive Officer. While exercising the power under Section 139 of the Act Executive Officer, thus, discharged the duty of the Chief Executive Officer subject to such conditions and limitations.
13. "Control and Superintendence" are expressions to suggest that actions of the Executive Officer were subject to the directions that the Chief Executive Officer may issue from time to time and subject to his authority to modify, alter or rescind any order that the Executive Officer had made.
14. In the State of Punjab and Anr. v. Hari Khhan Sharma , the words "subject to the control of the Government" in Sub-section (2) of Section 5 of the Punjab Cinemas (Regulation) Act were considered, the Supreme Court has said-
It is, however, urged by Mr. Bhishen Narain for the appellants that Section 5(2) confers very wide powers of control on appellant No. 1 and this power can take within its sweep the direction issued by appellant No. 1 that all applications for licenses should be forwarded to it for disposal. It is true that Section 5(2) provides that the licensing authority may grant licenses subject to the provisions of Section 5(1) and subject to the control of the Government, and it may be conceded that the control of the Government subject to which the licensing authority has to function while exercising its power under Section 5(1) and (2) is very wide; but however wide this control may be, it cannot justify appellant No. 1 to completely oust the licensing authority and itself usurp his functions....
This expression fell for consideration more than once before this Court in connection with a similar provision in the Bihar Cinemas Regulation Act. In Smt. Bharti Singh v. The State of Bihar and Ors. 1982 PLJR 206, this Court has said-
The control of Government contemplated by Section 5(2) may justify the issue of general instructions or directions which may be legitimate for the purpose of the Act, and these instructions and directions may necessarily guide the licensing authority in dealing with applications for licenses. The said control may, therefore, take the form of the issuance of general directions and instructions, which are legitimate and reasonable for the purpose of the Act. The said control may also involve the exercise of revisional power after the order has been passed by the licensing Authority. It is true that Section 5(2), in terms, does not refer to the revisional power of the Government; but having regard to the schema of the section, it may not be unreasonable to hold that, if the Government is satisfied that in a given case, license has been granted unreasonably, or contrary to the provisions of Section 5(I), or contrary to the general instructions legitimately issued by it, it may sue motto exercise its power to correct the said order by exercising its power of control. In other words, in the context in which the control of the Government has been provided for by Section 5(2), it would be permissible to hold that the said control can be exercised generally before applications for license... are granted, or particularly by correcting individual orders if they are found to be erroneous.
15. A careful examination of the scheme of the Act and particularly caution taken in Section 64(4) of the Act that the Executive Officer or any other officer may perform or discharge duties of the Chief Executive Officer under the Chief Executive Officer's control and subject to his superintendence, in our view, is enough to concede that the Chief Executive Officer's power of control will extend over the orders passed by the Executive Officer as the provisional authority. Description of the application, which respondent No. 4 had filed against the order of the Executive Officer before the Chief Executive Officer, may not affect the jurisdiction of the Chief Executive Officer as the revisional authority over the exercise of power by the Executive Officer. That being the position in law, it cannot be said that the Chief Executive Officer acted without jurisdiction when he passed the impugned order.
16. Learned counsel for the respondents has drawn our attention to a Division Bench Judgment of this Court in Ram Prasad Yadav v. Jagdish Prasad and Ors. 1971 BLJR 781. This Court has held that power under Section 139(1)(a) of the Act is of a quasi-judicial nature and that if any rectification of the assessment list under Clause (a) of Sub-section (It of Section 139 was required, it had to be done within a reasonable time. If it is sought to be done after a lapse of several years, on the face of it, it may be wholly wrong in law. Power exercised after a long lapse of time, may be mala-fide in law. On analogy-learned Counsel for respondent No. 4 has submitted, this principle should apply to the orders passed under Clause (b) of Sub-section (1) of Section 149 of the Act also.
17. We do not, however, propose to say one way or the other about it at this stage. In our view an alteration of the name of the owner of the property in the assessment list may arise for variety of reason. No time limit can be fixed for the said purpose. Ordinarily, however, such assessment list, if required to be altered, should be altered at the earliest, so that the records are maintained in order. Delay made in the given case may give ground to reject the application for any such alteration. It may not, however, be a good reason to reject the application for alteration of the name of the owner in the assessment list, if plausible explanations are available for not applying for the correction within a reasonable time.
18. In the instant case, we are of the opinion that a serious contention as to the title of the petitioner vis-a-vis that of respondent No. 4 may arise. Proper course for either party will be to get the issue of title and possession determined by a competent court of law. Entry in the assessment list of the name of 'x' or 'y' as the owner will in no manner affect the title and possession of a person who is legally entitled to such property. Such entry at the best shall be a piece of evidence of possession and ownership without a ay presumption of its correctness.
19. For the reasons, aforementioned, we are not inclined to interfere with the impugned order in exercise of our writ jurisdiction. It shall be open to the petitioner, in the event of any interference in his title or possession, to move a competent court of law for appropriate relief. The application for the said reason is dismissed.