Patna High Court
Radha Shyam Datta And Ors. vs Patna Municipal Corporation on 3 January, 1956
Equivalent citations: AIR1956PAT182, AIR 1956 PATNA 182
JUDGMENT Rai, J.
1. This application by Radha shyam Datta and others is for issue of an appropriate writ, order or direction restraining the Patna Municipal Corporation from making any demands under Section 204 or Section 205 or realising by distress warrant under Section 206 of the Patna Municipal Corporation Act any amount by way of tax, fee or penalty from the peti-tioners and other members of the Ratepayer's Association.
2. In order to appreciate the points canvassed in this case, it is necessary to narrate some relevant events which are as follows. The area originally included in Patna City was administered under the Bengal Municipal Act. In the year 1915 the Patna Administration Act (Bihar Act I of 1915) was passed. This Act was meant to apply to a particular area which was called the Patna Area as distinct from the Patna City area which continued to be administered by the Bengal Municipal Act.
In the year 1922 the Bihar and Orissa Municipal Act, 1922, replaced the old Bengal Municipal Act. By notification No. 4594 L.S.G., dated 25-4-1931, Sections 93, 105, 114 and 115 to 124 of the Bihar and Orissa Municipal Act, 1922, were made applicable to the Patna Area, that is to say, to the area administered by the Patna Administration Committee. On 11-4-1951, by notification No. 3645 L.S.G., a number of villages including the villages in which the holdings of the petitioners lie were included within the Patna area.
By notification No. 4063 L.S.G., dated 23-4-1951, in exercise of the powers conferred by Clause (f) of Sub-section (1) of Section 3 of the Patna Administration Act, 1915, the Governor of Bihar was pleased to apply to the Patna Area the following section of the Bihar and Orissa Municipal Act, 1922, in the modified form shown below :
"Section 104 -- Assessment of Tax -- When the Patna Administration Committee Act, 1915, (Bihar and Orissa Act I of 1915) is first extended to any place, the first tax on holding, latrine or water may be levied from the beginning of the quarter next to that in which the assessment of the tax has been completed in the area to which the Act is extended."
In October 1951 the Patna Administration Committee assessed taxes on- the holdings of the petitioners. Objections under a. 116 of the Bihar and Orissa Municipal Act were filed by some of the Assessees resulting in the appointment of a sub-committee under Section 117 of the Bihar and Orissa Municipal Act to hear and decide the said objections. On 6-3-1952, the Patna Administration Committee issued notice of demand under Section 123 of the Bihar and Orissa Municipal Act to the, petitioners. On 15-8-1952, the Patna Municipal Corporation Act, 1951, (Bihar Act XIII of 1952), hereinafter called the Act, came into force.
By virtue of Section 2 of the Act after its enforcement the provisions of the Bihar and Orissa Municipal Act, 1922, were withdrawn from the local area comprised within the Patna City Municipality, and the Patna Administration Act, 1915 stood repealed. This section further provided that the said withdrawal or repeal would not affect "the validity of anything done or suffered or any right, title, obligation or liability accrued thereunder, before the commencement of this Act". Section 3(2) of the Act provided as follows :
"Every appointment, rule, bye-law, form, notification, notice, tax, fee, scheme, order, licence or permission made, issued, imposed, sanctioned or given under the Bihar and Orissa Municipal Act, 1922, or the Patna Administration Act, 1915, shall, so far as it relates to the areas administered by the Patna City Municipality or the Patna Administration Committee and so far as it is in force at the commencement of, and is not inconsistent with, this Act, be deemed to have been made, Issued, imposed, sanctioned or given under the provisions of this Act, and shall, unless previously altered, modified, cancelled, suspended, surrendered or withdrawn, as the case may be, under this Act, remain in force for the period, if any, for which it was so made, issued, imposed, sanctioned or given."
Section 3(3) of the Patna Municipal Corporation Act, 1951, provided that "all rates, taxes, fees and sums of money due to the Patna City Municipality or to the Patna Administration Committee, as the case may be, when this Act comes into force, shall be deemed to be due to the Corporation."
3. After coming in force of the Patna Municipal Corporation Act, 1951, the Patna Administration Act, 1915, came to an end, and the Bihar and Orissa Municipal Act, 1922, was withdrawn with the result that the committee with Mr, Naqui Imam (now Mr. Justice Naqui Imam) as its Chairman, which had been appointed to hear the objections filed by some of the petitioners to the assessment of taxes, became functus officio. On 14-3-1953, the Administrator of the Patna Municipal Corporation issued a letter to the Assistant Administrator on the subject of disposal of the petitions filed by the residents of the locality administered under the former Patna Administration Act against the assessment made on their holdings.
The Administrator had also empowered a number of persons to hear and decide such objections by memo. No. 4032, dated 14-3-1953. The objections to the assessment were thereafter heard and disposed of accordingly. During the course of argument we had occasion to look into the file dealing with the objection filed by Radha Shyam Datta from which it appeared that in his case the proposed tax of Rs. 120/- a quarter was reduced to Rs. 45/- a quarter, and he had put his signature at the relevant place on the file of that proceeding.
Thereafter One Raj Narain Singh filed a miscellaneous judicial case under Art, 226 of the Constitution which ultimately went before their Lordships of the Supreme Court. The judgment of their Lordships is reported in -- 'Rajnarain Singh v. Chairman, Patna Administration Committee', AIR 1954 SC 569 (A). By this judgment the notification dated 23-4-1951, referred to in the earlier part of this judgment was held to be ultra vires. On 12-8-1954, the Patna Municipal (Extension of Jurisdiction and Taxation) Validating Ordinance IX of 1954 was issued.
This Ordinance purported to validate, amongst other things notification No. 4063 L.S.S., (wrongly printed as 4663 L.S.G.) dated 23-4-1951, and also notification No. 3345 L.S.G., dated 11-4-1951. This Ordinance was succeeded by the Patna Municipal (Extension of Jurisdiction and Taxation) Validating Act, 1954 (Bihar Act XXIII of 1954). This Act came into force on 16-10-1955. Sections 2 and 3 of this Act run as follows :
"2. Validation of notifications regarding inclusion of areas in, and application of certain sections of the B. & O. Municipal Act 1922, to Patna.
Notwithstanding the failure to comply with the provisions of Sections 4, 5 and 6 or any other section of the Bihar and Orissa Municipal Act, 1922 (B. & O. Act VII of 1922) (hereinafter referred to as the said Act), the orders of the State Government contained in--
(i) the notifications specified in column 2 of the First Schedule appended hereto including the areas specified in column 3 thereof within Patna; and
(ii) the notifications specified to column 2 of the Second Schedule appended hereto applying to Patna certain sections of the said Act as specified in column 3 thereof, subject to such modification and restrictions (if any) as were considered necessary by the State Government, shall be deemed to have been validly made."
"3. Validation -- All actions taken, orders passed, proceedings commenced, taxes imposed or liabilities incurred in pursuance of the notifications "specified in the two Schedules appended hereto before the commencement of this Act shall be deemed to be as effectual and valid in law as if this Act were in force on the day on which actions, orders, proceedings, taxes or liabilities were taken, passed, commenced, imposed or incurred."
Thereafter Sidheshwar Singh, Chandrama De, Krishna Chandra Neogy, Rampavitar Singh and Bipin Bihar Chandra filed in this Court applications under Article 226 of the Constitution which were numbered as Miscellaneous Judicial Case No. 245 to 248 of 1955 and Miscellaneous Judicial Case No. 250 of 1955. In all those miscellaneous judicial cases prayer was made for issue of a writ against the Patna Municipal Corporation restraining it from proceeding in any manner with the realization of holdings, latrines or water taxes from the members of the Rate-payers' Association or in any manner enforcing the provisions of notification No. 4063 L. S. G., dated 23-4-1951, and notification No. 4594 L. S. G., dated 25-4-1931.
All these miscellaneous judicial cases were dismissed by this Court and they are at present pending in appeal before their Lordships of the Supreme Court in Supreme Court Appeals Nos. 58 to 62 of 1955. Thereafter followed the present application.
4. When this case was called out for hearing, Mr. Mahabir Prasad, who appeared for the Patna Municipal Corporation, raised an objection that the application of 297 persons, who were added as petitioners by the order dated 21-11-1955, passed by this Court without issue of any notice to his-client and without hearing his objection should be rejected in limine.
He pointed out to us that the application filed by these 297 persons simply contained the names of the applicants without disclosing their parentage, residence etc. which was essential according to the High Court Rules. He also pointed out that the Vakalatnama filed on their behalf was nothing but a list of persons prepared on a plain paper without even indicating whether the person had signed in his own pen or somebody else had signed for him or her. He urged that in absence of a valid vakalatnama their defective application should be thrown out.
5. In reply Mr. B. C. Ghose submitted that the relief can be granted to all the members of the Rate-Dayers' Association only on the application of Radha Shyam Datta who is the President of this Association. He also pointed out that their Lordships of the Supreme Court also had granted relief to all the members of the Association simply on the application of Raj Narain Singh, the Secretary of the Association in the case reported in AIR 1954 SC 569 (A).
6. In my opinion, there is no force in the contention of Mr. Ghose. The Rate-payers' Association as a juridicial person has not been taxed and has, therefore, no right to apply to this Court for issue of an appropriate writ restraining the opposite party from realising the arrears of taxes by issue of Distress Warrant against its members. It may be also difficult for the opposite party to carry out the orders of this Court.
The membership of the Association may vary from time to time. The ground on which relief was granted to all the members of the Association :in the case of AIR 1954 SC 569 (A) is not available to the applicant in this case. In that case the notification dated 23-4-1951, itself, which was the basis of the assessment was held to be ultra vires with the result that all the residents of the locality could benefit by the judgment of their Lordships.
The present case has, however, been argued on the assumption that the Patna Municipal (Extension of Jurisdiction and Taxation) Validating Act, 1954, '(Bihar Act XXIII of 1954) is a valid one and there is no question of illegality of the provision of law, which if held illegal would benefit all sought to be hit by that illegal provision, whether they are applicants or not.
7. Tested in another light the weakness in the argument of Mr. Ghose will be further exposed. If Mr. Ghose's argument is right that the President or the Secretary of the Rate-payers' Association has right to file an application on behalf of all the members of the Association, then, in case such an application is disallowed, all the members of the Association should be bound by such an adverse deqision.
In my opinion, it would bring about great hardship on those who are not party to the application. Order 1, Rule 8, Civil P. C., which provides for one person suing or defending on behalf of all the persons having the same interest in the subject matter of the suit also contains several checks to the exercise of such a power. In my opinion, the opposite party cannot be restrained from realising the taxes from all the members of the Rate-payers' Association on the application of Mr. Radha Shyam Dutta alone.
8. Realising this difficulty a supplementary affidavit sworn by one Raj Narain Singh has been filed on behalf of the applicants disclosing the parentage, occupation and the place of residence of the said 297 persons who had applied for being added as applicants to the original application. The petitioners also filed on 8-12-1955, a duly executed vakalatnama on behalf of 59 persons out of the said 297 persons.
Thus in the absence of any duly executed vakalatnama the application of the remaining persons out of the said total number of 297 persons must be rejected as not maintainable apart from other reasons given on the merit of the same.
9. Now coming to the merit of the application Mr. Ghose contended that the Patna Municipal Corporation has no jurisdiction over the areas in which the holdings of the petitioners lie, and as such it has no jurisdiction to impose any tax in respect of those holdings. He further contended that in any event the Patna Municipal Corporation has no jurisdiction to realise the arrears of taxes by issue of distress warrant.
In support of his contention Mr. Ghose urged that as the areas in which the holdings of the petitioners lie will be deemed to have been validly brought within the control of the Patna Municipal Corporation on 16-10-1954, by virtue of the provisions of Bihar Act XXIII of 1954, all the taxation on such holdings prior to 16-10-1954, will become null and void as the same will be deemed to have been levied without jurisdiction.
He further urged that since after 13-10-1954, the petitioners may be liable to pay tax under Bihar Act XXIII of 1954, taut as there is no provision in Section 3 of the Patna Municipal Corporation Act, 1951, for vesting in the Corporation the tax due under Bihar Act XXHI of 1954, the opposite party has no jurisdiction to realise any tax in respect of the holdings of the petitioners. In my view, there is no substance in this contention of Mr. Ghose as well.
By virtue of the provisions of Sections 2 and 3 of Bihar Act XXIII of 1954 the areas within which the holdings of the petitioners lie will be deemed to have been validly included by April 1951 within the Patna area which was governed by the Patna Administration Act, 1915. On the same ground the various sections of the Bihar and Orissa Municipal Act, 1922, mentioned in column 3 of the Second Schedule of Bihar Act XXHI of 1954 will be deemed to have been validly extended to the Patna area.
The result is that the taxes will be deemed to have been imposed on the holdings of the petitioners in October, 1951, under those sections of the Bihar and Orissa Municipal Act, 1922, which had been validly extended to the Patna Area and not under any of the sections of Bihar Act XXIII of 1954. Now, by virtue of Section 3, Sub-section (2) of the Act those taxes will be deemed to have been imposed under this Act, and any arrears of these taxes will become the dues of the Corporation by virtue of Section 3(3) of the Act. Thus this contention of Mr. Ghose also fails and is rejected.
10. Mr. Ghose next contended that the objections filed by the petitioners in October 1951 in respect of the taxes imposed on their holdings during the regime of the Patna Administration Committee was still pending before the Committee which had been appointed to hear and decide those objections, and as long as that Committee does not decide those objections, no taxes can be realised from his clients.
In my opinion, this argument of Mr. Ghose is equally untenable. By virtue of Section 2(b) of the Patna Municipal Corporation Act, 1951, the Patna Administration Committee Act, 1915, stood repealed on 15-8-1952, and on repeal of the latter Act, the Committee which had been appointed in 1951 to decide the objections of the petitioners also ceased to exist. Now, by virtue of Section 3(2) of the Act the tax imposed under the Bihar and Orissa Municipal Act, 1922, or the Patna Administration Committee Act, 1915, was deemed to have been imposed under the provisions of the Act.
The objections filed by the petitioners were, therefore, properly heard and disposed of by the officer appointed to hear and dispose of those ob-jections in accordance with the provisions of the Patna Municipal Corporation Act, 1951, as if those objections related to the taxes imposed under this Act. The present petitioner 1 had in fact taken part in that proceeding and had got the tax on his holding reduced from Rs. 120/- per quarter to Rs. 45/- per quarter.
11. Mr. Ghose next contended that the Corporation has no jurisdiction to realise the arrears of taxes by issue of distress warrant under Section 206 of the Patna Municipal Corporation Act, 1951. According to him, distress warrant could be issued only in respect of current demands. In my view, this contention of Mr. Ghose is also without any substance. I do not agree with him that the provisions of Sections 206, 217 and 219 are exclusive of each other. Section 205 of the Patna Municipal Corporation Act, 1951, does not provide that the demand notice will not include or mention the past arrears due in respect of the holding; nor is the remedy provided by Section 206 of the Act confined to realisation of current dues only.
On the contrary, from the rules made by the Governor of Bihar which were published in the' Bihar Gazette dated 29-7-1953, Part II, pages 1912 to 1915 under notification No. 6036 L. S. G., dated 18-7-1953, it is quite clear that the demand notice issued under Section 205 of the Act was to include arrears as well as current dues payable to the Corporation. Mr. B. C. Ghose has not alleged any illegality or irregularity in the framing of these rules. Thus it is clear that the Patna Municipal Corporation is entitled to issue demand notice under Section 205 of the Act in respect of the arrears of taxes also, and the demand if unpaid within the time allowed can be realised by issue of distress warrant in accordance with the provisions of Section 206 of the Act. Thus, this contention of Mr. Ghose also must be rejected as untenable.
12. At this stage I want to deal with one more point, namely, the undesirability of filing successive applications on the same cause of action for the grant of the same relief on grounds which were all available on the date the original application was filed. As I have mentioned above, some of the present petitioners had filed on 12-4-1955, several applications for issue of an appropriate writ restraining the Patna Municipal Corporation from proceeding in any manner with the realisation of taxes in respect of the holdings of the petitioners in those cases.
Those applications were numbered as Miscellaneous Judicial Cases Nos. 245 to 248 and 250 of 1955 and were all dismissed by this Court. They are at present pending before their Lordships of the Supreme Court in Supreme Court Appeals Nos. 58 to 62 of 1955. Are those very petitioners entitled to claim the same relief in the present applications based on the same cause of action on grounds which could have been raised in their previous applications'? In my view, filing of successive applications on the same cause of action by the same person on grounds which could have been taken in the earlier application should be discouraged on general principle so that the opposite party may not be unnecessarily harassed on more than one occasion in respect of the same matter.
In this connection Mr. Ghose submitted that the principle of res judicata as enunciated in Section 11, Civil P. C., should not be applied to these proceedings. Even if one were to agree with Mr. Ghose that the provisions of res judicata, as incorporat-ed in Section 11, Civil P. C., may not strictly apply to successive writ applications, the general principle of res judicata, apart from Section 11, Civil P. C., can be made applicable to writ applications also. General principle of res judicata has been held to be applicable to other proceedings also such as execution proceedings (vide -- 'Rameshwar Kalyan Singh v. State of Rajasthan', AIR 1952 SC 54 (B). In my opinion, the present application of Sidheshwar Singh, Krishna Chandra Neogi, Ram Pavitra Singh and Bipin Biharj Chandra, who were also petitioners in Miscellaneous Judicial Cases 245, 247, 248 and 250 of 1955, respectively, is liable to be dismissed on this ground also.
13. In my opinion, the applicants have failed to substantiate any ground on which this Court should issue a writ under Article 226 of the Constitution. The result is that the application fails and is dismissed. The petitioners are liable to pay costs of this application to the opposite party. The hearing fee is assessed at Rs. 250/- only.
Sinha, J.
14. I agree.