Patna High Court
Chairman And The Municipal ... vs Bishwanath Jagatramka on 7 November, 1974
Equivalent citations: AIR1975PAT158, AIR 1975 PATNA 158
JUDGMENT S.N.P. Singh, C.J.
1. This application in revision under Section 25 of the Small Cause Courts Act has been filed by the Chairman and the Municipal Commissioners of the Chakradharpur Municipality and it is directed against the judgment and decree passed by the Munsif of Chaibassa exercising Small Cause Court Power in Small Cause Court suit No. 1 of 1969. The Chakradhapur Municipality brought the small cause court suit for recovery of Rs. 285-80 p. from the defendant on account of holding tax in respect of holding No. 2 in Ward No. 1 of the Chakradharpar Municipality for the fourth quarter of 1965-65, first and fourth quarters of 1966-67, first to fourth quarters of 1967-68 and first to third quarters of 1968-69. The defendant denied his liability on the sole ground that he was not the owner of the holding in question, inasmuch as that holding had been transferred to Mewawati Devi by a registered deed of gift dated the 8th of June 1957 by his father. It was alleged by the defendant that after the execution of the deed of gift an application for mutation was duly made, but the same was not acted upon. It was further alleged that Mewawati Devi, the wife of the defendant, had served a notice on the plaintiff's by registered post through hear lawyer for mutation of her name, but that application was also not acted upon. According to the defendant he and his wife had both filed applications against the assessment, but they were neither heard nor were the applications disposed of and so the entire assessment proceeding was void ab initio, and, therefore, the defendant was not liable to pay the tax claimed against him. The learned Munsif upon consideration of the evidence came to the finding that the defendant had proved that his wife Mewawati Devi was the owner of the holding in question and not the defendant. The learned Munsif further held that the holding tax and the Education cess were assessments on the annual value of the holding and were payable by the owner of the holding and, as such, the defendant was not liable to pay the taxes for the period claimed in the suit. Accordingly, he dismissed the suit with costs.
2. When this case was placed before a learned Single Judge of this Court it was contented on behalf of the petitioners that since the defendant's name stood in the municipal register as the owner, the trial court erred in dismissing the suit. Reliance was placed on a Bench decision of this Court in Patna Municipal Corporation v. Ladley Saran, 1953 BLJR 214. The learned Single Judge referred the case to a Division Bench as it appeared to him that there was some conflict between the decision in the case referred To above and that in Abrar Ali Khan v Patna City Municipality, (1962) ILR 41 Pat 338
3. Mr, Sudhir Chandra Ghose, learned counsel appearing for (the petitioners, contended before us that the application filed by Mewawati Devi for mutation of her name was not in accordance with the provisions of Section 108 of the Bihar and Orissa Municipal Act, 1922 (hereinafter referred to as the Act) and as such it was not entertainable. Section 108 rends as under :
"108. (1) Whenever the title to any holding is transferred both the transferor and the transferee shall within three months after the execution of the instrument of transfer, or, if no such instrument is executed, within three months after the transfer is effected, give notice in writing of such transfer to the chairman.
(2) In the event of the death of the person in whom such tide vests, the person to whome, as heir or otherwise, the title of the decessed is transferred, by descent or devise, shall, within one year from the death of the deceased, give notice in writing of such transfer to the Chairman.
(3) Every notice under Sub-section (1) op (2) shall be accompanied by a fee calculated at the rate of one per centum on the annual value of the holding subject to the maximum of five rupees in any one case.
(4) Whoever contravenes the provisions of Sub-section (1) or (2) shall be liable to a fine not exceeding ten rupees."
The application filed by Mewawati Devi has been marked as Exhibit E It appears from Exhibit E that it was signed by Mewawati Devi In that application the defendant has made an endorsement to the effect that the statement contained in the application is correct, and he also made a prayer that the mutation be made in the name of his wife Mewawati Devi after removing his name The registered deed of gift had been annexed with the application for mutation According to learned counsel, there was non-compliance with the provision of Section 108 because the application for mutation was not filed both by tie transferor and the transferee. It was further submitted that the requisite fee calculated at the rate of one per cent on the annual value of the holding had not been deposited along with the application. No doubt, the application for muation was not filed by the transferor, but there is no material on the record to show that the requisite fee, as required under Sub-section (3) of Section 108, was not paid along with the application. There is also no material to show whether the father of the defendant was alive or dead when the application for mutation dated the 16th of October, 1958 was filed Even if it be assumed that he was alive and as such the application was not strictly in accordance with the provision of Section 108 of the Act, in my opinion, it was the duty of the municipality to mutate the name of the real owner of the holding when the matter was brought to their notice. I am fortified in the above view by the Bench decision of this Court in the case of Abrar Ali Khan, (1962) ILR 41 Pat 338 referred to above. In that case it was held :
"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 10! (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 1% and 107 which deal with the preparation of assessment list and the quantification of the tax liability"
In that case the defendants had transferred the holdings in question to their wives in lieu of dower debt by a registered baimokasa deed, dated the 16th of November 1939 The transferees had made an application for mutation of their names to the Chairman of the Patna City Municipality and for entering their names in the assessment list under Section 10? of the Act, The Municipality, however, refused to mutate the names o!' the transferees on the sole ground that neither the transferees nor the defendants had paid the arrears of municipal taxes. It was held in that case that there was no legal ground on which the plaintiff respondent could have rejected the application for mutation because the payment of arrears of taxes was not made a condition precedent by Section 108 of the Act for mutation of the holding in the names of the transferees Therefore, the action of the plaintiff respondent in keeping the application for mutation pending and in demanding the payment of arrears of taxes from the transferees was illegal It was further held in that case as follows:--
''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. It is, therefore, not open to the plaintiff-respondent in the present case to take advantage of its own laches or negligence in not entering the mutation of title in its assessment list. As we have already pointed out, the defendants are not liable to pay Municipal taxes for the period in question because they are not 'owners' within the meaning of Section 3 (18) of the Act, read with Section 100 (1) of the Act."
The above observation fully lends support to the view which I have taken that it was the duty of the municipality to mutate the name of Mewawali Devi in place of the defendant and to alter or amend the assessment list under Section 107 (1) (b) of the Act after following the prescribed procedure when it was brought to their notice that she was the real owner. Mr. Ghose submitted that the above observation made by the Division Bench is obiter dictum, inasmuch as the Bench had held that the application for mutation was rejected not on a legal ground, because payment of arrears of tax was not made a condition precedent by Section 108 of the Act. In my opinion, the observation made by the Bench cannot be held to be mere obiter dictum. I may point out that Untwalia, J. (as he then was), who was one of the members of the Division Bench, while considering the question whether there was any conflict between the decisions in the cases of 1963 BLJR 214 and (1962) ILR 41 Pat 338, referred to the above observation made in that case in Sarat Kumar Acharya v Mahesh Prasad Sahu, AIR 1972 Pat 377 as a point decided in the latter case It cannot, therefore be said that the observation quoted above was a mere obiter dictum 4, In my opinion, there is no conflict in the aforesaid two Bench decisions. In the case of 1963 BLJR 214 it was held that the word 'owner' in Section 109 meant only the person who was recorded as such by the Municipality, and it was observed as follows :
"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 of the assessment. No such law has been brought to our notice."
IN the case of Abrar Ah Khan. (1962) ILR 41 Pat 338 the point which fell for consideration before the Bench was whether the liability to pay the taxes is to be determined by the entry of the names In the assessment list or it is dependent upon the taxing sections, namely. Section 100 (1) read with Section 82 of the Act or upon the provisions of Sections 105, 106 and 107, which deal with the preparation of assessment list and the quantification of the assessment list It was held that since the defendants were not the owners of the holding in question within the meaning of Section 100 (1) read with Section 3 (18), they were not liable to pay the municipal taxes, but the liability to pay the taxes was upon the wives of the defendants to whom the holding was transferred. In that case the Bench had not to consider the scope of Section 109 of the Act.
5. In course of argument, learned counsel referred to the decisions in the cases of Chairman, Municipality, Arrah v. Ramkumar Choudhury, AIR 1938 Pat 177 and Satyadeo Narain Lal v. Municipal Commissioners, Bhagalpur Municipality, AIR 1960 Pat 84. In my opinion, the decision in neither of the cases supports the contention which has been raised on behalf of the petitioners.
6. For the reasons stated above, I find it difficult to interfere with the judgment and decree passed by the court below, In the result, this application is dismissed with costs.
S.K. Jha, J.
I agree.