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2012 DIGILAW 1242 (JHR)

Mahinder Singh v. Giridih Municipality

2012-08-23

APARESH KUMAR SINGH

body2012
JUDGMENT Heard learned counsel for the petitioners and respondents-Municipality as well as private respondent. 2. The order impugned in the present writ application is dated 09.02.2003 passed by the then Special Officer, Giridih Municipality whereby the assessment list containing the name of the petitioner has been directed to be amended on an application filed by the respondent no. 4, Mansoor Khan purportedly under the provision of Section 107 (1)(b) of the Bihar & Orissa Muncipal Act, 1922 (now adopted by the State of Jharkhand). The contention of the petitioner is that he purchased the said properties by a registered sale deed dated 08.01.1965 from one Jiwa Devi who had herself purchased the property in question by registered sale deed dated 18.05.1954 executed by the erstwhile owner Hari Jaiswal. The said piece of land was 8 decimals together with the Khapraposh structures standing therein comprised within old holding no. 97 new holding no. 117 of Giridih Municipality and comprised within 3. M.S. Plot No. 855 situate at Buxidih Road Bhandaridih, Giridih. The contention of the petitioner is that Jiwa Devi got her name mutated on such conveyance in her favour by filing an application before the respondent Giridih Municipality, who passed an order to open a demand in the register in the name of Jiwa Devi in the year 1957-58. It is further submitted that Jiwa Devi submitted a building plan for approval before the respondent municipality and the same was duly passed by the Giridih Municipality vide order dated 17.04.1963 (Annexure-2) and she constructed a pucca building and continued in possession and continued to pay Holding Tax to the Giridih Muncipality against which receipts were issued (Annexuere-3). Pursuant to the registered sale deed dated 8th January, 1965 the property in question was transferred to the mother of the present petitioners, who have been substituted on her death during the pendency of the instant writ application. Smt. Kulwant Kaur mother of the present petitioners got her name entered by mutation invoking provisions of Section 107 of the Bihar and Orissa Municipal Act, 1922 in place of the erstwhile owner Smt. Jiwa Devi and her name was duly entered in the demand register. It is the case of the petitioner that Kulwant Kaur became an assessee under the respondent municipality in the year 1967 in respect of property in question. It is the case of the petitioner that Kulwant Kaur became an assessee under the respondent municipality in the year 1967 in respect of property in question. The respondent-Municipality without any objection from anyone realised holding tax till an application was preferred by the private respondent before Special Officer, Giridih Municipality in the year 2002. It is submitted on behalf of the petitioner that as per the order impugned contained at Annexure-12 itself it would appear that the special Officer, Giridih Municipality had given only three days’ time to the petitioner to produce all documents in support of her claim and whereafter without giving adequate opportunity to the petitioner, proceeded to substitute the name of the petitioner by private respondent no. 4, Mansoor Khan. Learned counsel for the petitioner also submits that the exercise undertaken by the respondent-Special Officer, Giridih Municipality was without jurisdiction as the private respondent staked his claim over disputed question of title raised by him and provisions of Section 107 (1)(B) of the Bihar and Orissa Municipal Act, 1922 could not be available to him as the same is available to the person who succeeds by transfer or otherwise to the ownership or occupation of the holding in question for substituting his name in place of owner or occupier. 4. Learned counsel for the petitioner has relied upon a decision of the in the case Tetar Mandal Ors. Vs. Executive Officer & Ors. reported in 1978 BPSG 530. 5. It is submitted that the private respondent have made their claim upon certain documents which was very much in existence when the name of Jiwa Devi and subsequently the deceased petitioner Kulwant Kaur's was mutated in the year 1967 pursuant to the conveyance made in her favour by the Vendee Jiwa Devi. However, the private respondent did not object the same and in the year 2002 suddenly after almost 37 years the name of the deceased petitioner Kulwant Kaur has been substituted by the private respondent by the impugned order. 6. Learned counsel for the Municipality, however, taking into account the impugned order submits that the petitioner was granted opportunity by giving him three days’ time as it would appear from the Annexure-12 to produce the documents and on failure to do so the impugned order has been passed taking into account the documentary evidence produce by the private respondent. 6. Learned counsel for the Municipality, however, taking into account the impugned order submits that the petitioner was granted opportunity by giving him three days’ time as it would appear from the Annexure-12 to produce the documents and on failure to do so the impugned order has been passed taking into account the documentary evidence produce by the private respondent. The private respondent on notice has also appeared and filed his counter affidavit and documents stating that the petitioner was inducted as a tenant in their property, who was paying monthly rent to his father and she surreptitiously got her name introduced in the demand register behind back without his knowledge by an act of fraud. He submits that the Special Officer, Giridih Municipality took into account the documents including the demand register available in the office and came to a conclusion that the change in the names were made without the signature of any official and demand register was not authenticated by any authorized official of the Municipality. He has also questioned that the claim of the erstwhile owner Jiwa Devi being the owner of the said property is itself in dispute. 7. I have heard learned counsel for the parties and after going through the impugned order as well as the relevant materials brought on record, it appears that the demand in the name of the Jiwa Devi was opened in the year 1956-57, which was subsequently amended in the year 1967 by opening demand in the name of the deceased petitioner on the basis of the sale deed produced by her. Further an application was made by the private respondent in the year 2002 and an enquiry was initiated by the then Special Officer, Giridih Municipality and the petitioner was asked to produce all the relevant documents within a period of three days only. The petitioner submits that in the limited time he could not file the relevant documents before the then Special Officer, Giridih Municipality. However, he proceeded to decide the matter on merit by passing the impugned order in haste. Incidentally, the learned counsel for the respondents also submits that sale deed of the petitioner annexed as Annexure-4 to the writ application, could not be produced before the Special officer, Giridih Muncipality because of little time granted to him while deciding the issue. 8. However, he proceeded to decide the matter on merit by passing the impugned order in haste. Incidentally, the learned counsel for the respondents also submits that sale deed of the petitioner annexed as Annexure-4 to the writ application, could not be produced before the Special officer, Giridih Muncipality because of little time granted to him while deciding the issue. 8. Be that as it may, it appears that the impugned order has been passed without granting adequate and sufficient opportunity to the petitioner whereby the mutation done in the name of the deceased petitioner almost 37 years ago have been amended on the application of the private respondent no. 4 by the impugned order dated 09.02.2003. In the circumstances, I am of the view that the order impugned has been passed without giving proper opportunity to the petitioner and it needs to be reconsidered by the concerned authority now being the Executive Officer, Giridih Municipality where the matter is being remanded back. The Executive Officer, Giridih Municipality shall consider and decide the issue by giving adequate and sufficient opportunity to the petitioner and the private respondent in accordance with law by passing a reasoned and speaking order within a period 16 weeks from the date of appearance of the parties. The parties are directed to appear before the Executive Officer, Giridih Municipality on 11.09.2012 alongwith a copy of this order whereafter the Executive Officer, Giridih Municipality shall proceed and decide the issue afresh in accordance with law. 9. This writ petition is disposed of in the aforesaid terms. 10. It is, however, made clear that this Court while passing this order has not gone into the merits of the case and it will be open to the Executive Officer, Giridih Municipality to decide the controversy with an open mind without being prejudiced by any observation made hereinabove.