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1971 DIGILAW 26 (PAT)

Ram Prasad Yadav v. Jagdish Prasad

1971-02-22

N.L.UNTWALIA, S.SARWAR ALI

body1971
JUDGMENT : N.L. Untwalia, J. 1. The petitioner's case in this writ application is that he is the adopted son of one Janki Gowala. Janki was the owner of the house bearing old holding no. 26 (present holding no. 21/22), Circle no. 175, Ward no. 27, and plot no. 114 situated within Patna City Municipality. Janki Gowala's name stood recorded in the assessment and demand registers of the said municipality since the year 1951. After his death, his widow Basantia came in possession of the said holding and her name was recorded in the assessment and demand registers of the municipality. After the death of Most. Basantia, the petitioner came in possession of the said holding and his name was recorded in the assessment and demand registers of Patna Municipal Corporation from 1950-51. He has been paying municipal taxes. The case of the petitioner further is that he had let out the house on rent to Jagdish Prasad, respondent no. 1, as kerayadar, on a monthly rent of Rs. 15/-. For realisation of rent, he filed Small Cause Court Suit No. 267/152 of 1968 on the 10th of August, 1958. Being enraged by this, respondents 1 to 4 filed a petition on 22-8-68 under Clauses (a) and (b) of Sub-section (1) of Section 139 of the Patna Municipal Corporation Act, 1951 (Bihar Act 13 of 1952), hereinafter called the Act, for mutation of their name after removal of petitioner's name. The Assistant Administrator of the Patna Municipal Corporation by his ORDER :dated 19-12-68, a copy of which is Annexure 12 to the writ application, has ORDER :ed the mutation of the names of respondents 1 to 4 in place of that of the petitioner. He has, therefore, obtained a rule against the four respondents as also the Assistant Administrator, respondent no. 5, to show cause why the said ORDER :be not quashed by grant of an appropriate writ. 2. Cause has been shown on behalf of respondents 1 to 4 by filing an affidavit as also at the time of hearing by their learned counsel. Mr. B.P. Gupta appeared to show cause on behalf of respondent no. 5. 3. It is not necessary for me to go into the question of possession or title of either party nor would it be legitimate to do so in this writ case. Mr. B.P. Gupta appeared to show cause on behalf of respondent no. 5. 3. It is not necessary for me to go into the question of possession or title of either party nor would it be legitimate to do so in this writ case. The Assistant Administrator also was not quite justified in going into the disputed question of title or possession. I shall rest my JUDGMENT : on a short question. It is not disputed in this case--rather it seems to be tacitly admitted--that Janki Gope's name was entered in the assessment and demand registers of the Municipality since the year 1915. Basantia's name was entered thereafter. The name of the petitioner has been entered from the year 1950-51. In that year the last general assessment was there, and it's not clear when the revised assessment was made after 1950-51. Be that as it may, the name of Janki Gope was there in the municipal papers for a large number of years and that of the petitioner was there for about slightly less than two decades when the application was filed by respondents 1 to 4 for mutation of their names after removal of the petitioner's. Question, therefore, arises whether the Municipal authorities had power to rectify their records and substitute the names of respondents 1 to 4 after removing the name of the petitioner; if so, whether this was a fit case where such a power could not be legitimately exercised. 4. I do not propose to enter into any question of fact said to have been wrongly decided by the Assistant Administrator nor is it necessary to point out some errors of record which are said to have been committed by him. One such error is obvious: no title suit was filed by the petitioner; the suit was a Small Cause Court suit filed for realisation of the alleged arrears of rent. 5. There does not seem to be any express provision in the Act for rectification of the assessment list, the assessment register or the demand register maintained in a Municipality. None of the clauses of Sub-section (1) of Section 139 of the Act expressly empowers the Chief Executive Officer to rectify a wrong entry. 5. There does not seem to be any express provision in the Act for rectification of the assessment list, the assessment register or the demand register maintained in a Municipality. None of the clauses of Sub-section (1) of Section 139 of the Act expressly empowers the Chief Executive Officer to rectify a wrong entry. Clause (a) empowers the Chief Executive Officer from time to time to alter and amend the assessment list 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. The second part of this clause deals with a fresh entry being made if any property has become liable to taxation after the publication of the assessment list. Reading in that context it would appear that the first part refers to entering therein the name of any person who ought to have been entered but was not entered or entering any property which ought to have been entered but was not entered. 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 due to his fraud. Clause (b) empowers the Chief Executive Officer to alter or amend the assessment list "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". The present case is, undoubtedly, not covered by Clause (b). If at the time of the preparation of the assessment list wrongly, fraudulently or collusively, say, the name of A is entered whereas the property belonged to B, it ought to have been provided in Section 150 of the Act that a person like B has a right to file a review application for entry of his name in the assessment list after removal of the name of A. Section 150(1), however, does not cover such a case. It gives a right only to a dissatisfied person to file a petition for review. It gives a right only to a dissatisfied person to file a petition for review. If he is dissatisfied with the amount assessed upon him or the valuation or assessment of any holding or his liability to be assessed, in such a case he may file an application to review the amount of assessment or valuation or to exempt him from the assessment or tax. But a person whose name ought to have been entered and has not been entered whereas in his place the name of a wrong person has been entered has not been given any right under Section 150 to file an application for review. In such a situation, although Clause (a) of Sub-section (1) of Section 139 also is not clear, on interpretation it may be possible to say that the name of B which ought to have been entered, if it has not been entered, may be entered by alteration or amendment of the assessment list; necessarily, by removing the name of A.I. however, do not propose to decide this question finally in this case. I shall assume in favour of respondents 1 to 4 that the assessment list could be corrected in exercise of power under Clause (a) of Section 139(1) of the Act, but, in my opinion, it is manifest that the exercise of the power by the Assistant Administrator in this case after a lapse of such a long time, as has been pointed out above, in the eye of law and on the facts and in the circumstances of this case, was a misuse of power or the power was exercised mala fide in law. If at all there is a power of rectification of the assessment list under Clause (a) of Subsection 139, it must be done within a reasonable time; it can never be done after lapse of several, several years. In this case it will bear repetition to say that not only Janki Gowala, the adoptive father of the petitioner, was entered from the year 1915 in the Municipal registers but the name of the petitioner himself also was entered from 1950-51. In that view of the matter, the Assistant Administrator took upon himself a task of deciding the question of title or possession, which he had no power to do. In that view of the matter, the Assistant Administrator took upon himself a task of deciding the question of title or possession, which he had no power to do. He himself has said at the fag end of his ORDER :that the name of the petitioner was entered in the year 1950-51 and, perhaps, as his ORDER :indicates, he proposed to correct that entry in the year 1968. On the face of it, the ORDER :is wholly wrong in law and fit to be set aside by this Court. Undoubtedly, the power under Section 139(1)(a) of the Act, if it affects the interest of any person--as in this case, it did affect the interest of the petitioner, is of a quasi-judicial nature. 6. Mr. Gupta submitted that the Assistant Administrator had power under Clause (a) of Sub-section (1) of Section 139 to rectify the assessment list. Firstly, as I have said above, it is doubtful whether he has such power. Even assuming he had, the power was exercised in a most arbitrary manner. No satisfactory explanation could be given to us on behalf of respondent no. 5 as to why he exercised the power after a lapse of so many years. For the reasons given above, I allow the application and set aside the ORDER :dated 19.12.68 of respondent no. 5 (Annexure 12) by grant of a writ of certiorari. In the circumstances, there will be no ORDER :as to cost.