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2001 DIGILAW 618 (PAT)

Sri Kedar Singh v. State Of Bihar

2001-07-20

RADHA MOHAN PRASAD

body2001
Judgment Radha Mohan Prasad, J. 1. This writ petition is directed against the order dated 4.9.1990, contained in Annexure-1, passed by the Special Officer, Bihar Municipality (respondent no. 2) in Mutation Case No. 12/1990-91 by which the eariier order dated 7.1.1969 passed by his predecessor in Case No. 416/220 of 1967-68 has been reviewed and recalled and has accorded the approval for recording the name of respondent no. 3 in the register of Municipality with respect to Holding Nos. 514 and 515 of Ward No. 5. 2. In short, the case of the petitioner is that his name has been entered in Municipal register of the Bihar Municipality Bihar Sharif as occupier and holder of Holding Nos. 514 and 515 in Ward No. 5 of Mohalla Laheri, Town Bihar Sharif and is coming in possession since last several decades. According to the petitioner, in the assessment register of the Municipality of the year 1943-44 joint name of Smt. Laxmi Devi and Smt. Sheo Kumari Devi, both daughters of Gopi Singh was entered and Laxmi Devi is the aunt of the petitioner. In the register of assessment year 1960-61, Holding No. 514 was recorded in the name of Kedar Singh, the petitioner. The petitioner and his aunt Laxmi Devi got a notice with regard to Holding No. 314 (old) and 514 (new) and annual rental was fixed after final assessment was made in their favour. 3. On 6.2.1988 Ramdeo Singh (respondent no. 3) alongwith his brothers Fakira Singh and Heera Singh and Ishwar Singh, S/o Late Ghutan Singh filed a petition for mutation of their name with regard to the said Holding Nos. 514 and 515 which was numbered as Mutation Case No. 416/220 of 1967-68. After registering said mutation case the Special Officer issued a show cause notice against the petitioner on 5.7.1968, vide Annexure-4. On 29.10.1968 the petitioner filed his show cause and thereafter on 22.11.1968 the Special Officer inspected holdings in question and recorded the statement of witnesses in presence of both the parties, and their lawyer and prepared a report. According to the petitioner, the statements of Mostt. Laxmi Kuer, Most. Sanmukhi Kuer (mother of respondent no. On 29.10.1968 the petitioner filed his show cause and thereafter on 22.11.1968 the Special Officer inspected holdings in question and recorded the statement of witnesses in presence of both the parties, and their lawyer and prepared a report. According to the petitioner, the statements of Mostt. Laxmi Kuer, Most. Sanmukhi Kuer (mother of respondent no. 3), Sri Bisheshwar Bhagat, son of Late Sri Karo Mahto of Mohalla Laheri, Sri Jagannath Prasad Gupta, Son of Sri Ramji Sah of Holding No. 510, Ward No. V and Shri Ram Nath Prasad, Son of Sri Bhagwan Das occupier of Holding No. 315, Ward No. V, were taken. In course of enquiry, he also recorded the statement of Sri. Barmeshwar Nath Verma and Sri Arjun Prasad, who stated before the Special Officer that used to pay rent to Mostt. Sheo Kumari Kuer in her life time and after her death they paid certain amount towards rent to the petitioner. It is stated that the name of the petitioner was entered in the Municipal register as far back as in the year 1960-61 and also in the year 1965- 66 his name was entered in respect of the above holdings, On 7.1.1969, Sri C.P.Mandal, the then Special Officer, held that so far title in respect of Holding No. 514 is concerned, it is already recorded in the Municipal register as far back as 1960-61 and even in the assessment during 1964-65, the title of the petitioner was not challenged and ultimately his name was recorded in the Municipal register. Even after the final publication of the assessment roll, no challenge was preferred by respondent no. 3 Ramdeo Singh and by order dated 7.1.1969 the prayer for mutation of Ramdeo Singh and others was rejected and they were directed to file civil suit if so advised. The petitioner has also annexed photo copies of rent receipts granted to him upto 1990 as Annexures 7 series and also photo copies of the receipts in respect of water connection and electric disconnection have been annexed as Annexures 8 series. It is also stated that the Municipality filed a suit against the petitioner for realisation of rent from the year 1967-1981 and rent was realised from him by the Municipality. However, after a lapse of 21 years all on sudden respondent no. It is also stated that the Municipality filed a suit against the petitioner for realisation of rent from the year 1967-1981 and rent was realised from him by the Municipality. However, after a lapse of 21 years all on sudden respondent no. 3 filed a fraudulent petition which is vexatious in nature, on 5.4.90 before the successor-in-office the Special Officer, Bihar Sharif Municipality, for the same relief alongwith his brother Fakira Singh and two others, namely, Heera Singh and Ishwar Singh which was rejected vide order dated 7.1.1969 earlier. On 20th August, 1990 another petition was filed by respondent no. 3 for mutation of his name on which the impugned order has been passed. 4. While admitting this writ petition on 14.2.1991 a Division Bench of this Court stayed operation of the impugned order contained in Annexure 1. 5. Mr. Shyameshwar Dayal, learned counsel for the petitioner, inter alia, contended that the impugned order is wholly without jurisdiction and bad in law as the Special Officer had no power to review the order passed by his predecessor-in- office. In support of this, he placed reliance on the decision of this Court in the case of Tetar Mandal & ors. V/s. Executive Officer & ors., reported in 1978 BCCJ 530. He has also placed reliance on the decision of the Apex Court in the case of Patel Narshi Thakershi & ors. V/s. Pradyuman Singhji Arjun Singhji, reported in AIR 1970 S.C. 1273 . 6. On the other hand, learned counsel appearing for respondent no. 3 has submitted that the writ petition is not maintainable as it involves disputed question of title and the proper remedy for the petitioner is before the civii court of competent jurisdiction. He submitted that the Special Officer also in the impugned order has directed the writ petitioner to file suit before the competent court for establishing his right and title. It has further been submitted by him that even otherwise there is no substance in the submission of the learned counsel for the petitioner as there is no question of review of the earlier order by the Special Officer. According to him, no application was ever filed by respondent no. 3 for mutation earlier in the year 1968 and the entire earlier proceeding was conducted on the basis of a so called application filed on behalf of respondent no. According to him, no application was ever filed by respondent no. 3 for mutation earlier in the year 1968 and the entire earlier proceeding was conducted on the basis of a so called application filed on behalf of respondent no. 3 who in fact never filed any such application for mutation or entry of his name in the municipal register. It is submitted that the claim of respondent no. 3 for mutation of his name is based on the fact that he was adopted by the original owner, namely, Mostt. Shiv Kumari Devi, wife of Paryag Singh, who did not have any issue and the Special Officer on consideration of the evidence and the report has allowed the application filed by respondent no. 3 for recording of his name in the assessment register of the Municipality with respect to Holding Nos. 514 and 515. 7. This Court is unable to appreciate as to how the Special Officer by the impugned order has gone into the question regarding mutation of the holdings in question afresh despite the fact that he has noticed about the earlier order passed in Mutation Case No. 416/220 of 1967-68. Bare perusal of the impugned order shows that he was aware of the earlier order against which no appeal was preferred and the same became final. However, he has tried to defend respondent no. 3 by stating that he had no knowledge about the earlier Mutation Case No. 416/220 of 1967-68. 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. In the case of Tetar Mandal & Ors. V/s. Executive Officer & Ors. (Supra) the Division Bench relying upon the Supreme Court decisions in the case of State of Bihar vs. Ram Dayal Missir and Patel Narshi Thakershi vs. Pradyuman Singhjo Arjun Singhji held that the Executive Officer could not sit in judgment over the order of a quasi judicial nature passed by his predecessor-in- office, the Special Officer and thus, the impugned order was held to be without jurisdiction. 8. 8. In the present case, if respondent no, 3 was aggrieved by the earlier order he could have challenged its validity before the appropriate forum but not before the Special Officer who was not vested with the power of review under the Statute. The Apex Court in the case of Devaraji Pillai V/s. Shellaya Pillai, reported in 1987 PLJR (S.C.) 63, has held that a Judge hearing the review application upsetting the judgment passed by another Judge is not proper as it virtually amounts to sitting in judgment over the earlier decision. The Apex Court held that the appropriate remedy was to file an appeal. 9. Accordingly, the writ petition is allowed. The impugned order, contained in Annexure 1, is set aside. However, respondent no. 3 will be at liberty to move the civil court of competent jurisdiction, if so advised, in the light of the earlier order passed by the Special Officer, contained in Annexure 6, alongwith an application for condoning the limitation, if any, which shall be disposed of in accordance with law without being prejudiced by the orders passed by the Special Officer or any observation made in this judgment.