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2015 DIGILAW 3524 (ALL)

Sazid Khan v. State of U. P.

2015-11-06

RAN VIJAI SINGH

body2015
JUDGMENT Ran Vijai Singh, J. – Heard Sri Govind Krishna, learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 31.12.2014 passed by District Magistrate, Kanpur Nagar and order dated 12.8.2011 passed by the Chairman, Nagar Panchayat, Bithoor, Kanpur Nagar. Vide order dated 12.8.2011, the Chairman, Nagar Panchayat has made assessment of a house; whereas vide order dated 31.12.2014, the appeal filed by the petitioner under section 160 of the U.P. Municipalities Act, 1916 (in short, 'the Act') against the order dated 12.8.2011 has been dismissed by the Collector. 3. While assailing the impugned orders, learned counsel for the petitioner submits that the Collector has erred in not considering the procedural part of the matter as the Chairman, Nagar Panchayat has no power to pass assessment order; that too, on the instance of Member of the Municipality (sabhasad). Learned counsel for the petitioner submits that the power of assessment of tax is vested with the Executive Officer or the Officer authorised by him in this behalf in accordance with the provisions contained under sections 141-B, 142, 145 and 144 of the Act, whereas in this case, the tax has been assessed only on an application by a unconcerned person, to the Chairman, Nagar Panchayat considering the report of member of the Nagar Panchayat. 4. I have heard learned counsel for the parties and perused the impugned orders. 5. So far as the legal submission of learned counsel for the petitioner regarding challenge to these orders is concerned, that appears to be correct as in view of the provisions contained under sections 141-B, 142, 145 and 144 of the Act, which reads as under: "141-B. Submission of the details of houses or lands for assessment of tax -(1) For the purposes of annual rental value, the owner or the occupier of every house or land shall submit a return thereof upto a date as may be prescribed. (2) Any person failing to submit the return referred to in subs-section (1) without proper reasons shall be liable to pay penalty as may be prescribed. (3) The penalty referred to in sub-section (2) may be compounded by the Executive Officer. 142. (2) Any person failing to submit the return referred to in subs-section (1) without proper reasons shall be liable to pay penalty as may be prescribed. (3) The penalty referred to in sub-section (2) may be compounded by the Executive Officer. 142. Publication of list - The Municipality or the Executive Officer authorised by it in this behalf shall publish the list prepared under section 141 in accordance with the manner prescribed in the rules. 143. Objections on proposed rates and list - The Municipality or the Executive Officer authorised by it in this behalf shall dispose of the objections in accordance with the manner prescribed in the rules. 144. Authentication and custody of list - The Executive Officer or an Officer authorised by him in this behalf, shall authenticate by his signature the area wise rental rates and the assessment list of municipal area or any part thereof, as the case may be. (2) Every list so authenticated shall be deposited in the office of the Municipality. (3) As soon as the list for the entire municipal area is so deposited, it shall be declared by public notice to be open for inspection." the assessment of the tax cannot be directly made by the Chairman of the Nagar Panchayat and the Collector has erred in not considering the procedural part of the assessment of tax against respondent no. 4 while deciding the appeal. 6. Looking into the facts and circumstances of this case, in my opinion, the moot question would be as to who is the petitioner and whether on the instance of the petitioner, appeal could be filed and the petitioner can maintain this writ petition against such an assessment being person aggrieved. The tax has been assessed upon the respondent no. 4 and the petitioner claims that the land on which tax has been assessed is in his possession for a long time, although in the revenue record part of the land has been recorded as Navinparti, which was allotted to him for residential purpose. 7. The tax has been assessed upon the respondent no. 4 and the petitioner claims that the land on which tax has been assessed is in his possession for a long time, although in the revenue record part of the land has been recorded as Navinparti, which was allotted to him for residential purpose. 7. The controversy as to who will be the person aggrieved is no more res integra as the Apex Court as well as this Court in a catena of decisions, while considering as to who could be said to be the "person aggrieved", observed that although the meaning of expression "person aggrieved" may vary according to the context of the Statute and facts of the case nevertheless normally, a person aggrieved must be a man who has suffered a legal grievance; a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused something, or wrongfully affected his title to someone. 8. In M.S. Jayaraj v. Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552 , the Supreme Court considered the matter at length and placing reliance upon a large number of its earlier judgments including the Chairman, Railway Board & Ors., v. Chandrima Das (Mrs.) & Ors., AIR 2000 SC 988 ; held that the Court must examine the issue of locus standi from all angles and the petitioner should be asked to disclose as what is the legal injury suffered by him. 9. The term "person aggrieved" was also considered and defined in Re: Sidebotham, (1880) 14 Ch. D. 458, wherein it has been observed as under : - "The words ''person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something." 10. In K. Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi & Ors., AIR 1974 SC 2177 , the Supreme Court examined the case of a resident of a locality where a cinema hall was to be constructed contrary to the Building Town Planning Scheme. In K. Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi & Ors., AIR 1974 SC 2177 , the Supreme Court examined the case of a resident of a locality where a cinema hall was to be constructed contrary to the Building Town Planning Scheme. The resident was held to be entitled to maintain writ on the ground that the residential area would stand spoiled by the construction in violation of the statutory provisions and the municipal authorities owed a public duty and an obligation under the Statute not to allow the construction of a cinema hall in a residential area. The Supreme Court observed as under: - "... The question whether an individual who is one of a class for whose benefit such an obligation is imposed can or cannot enforce performance by an action must depend on the purview of the legislature in the particular statute. Injury may be caused either by the fulfilment of the duty cast by statute or by failure to carry it out or by negligence in its performance. In order to succeed in an action for damages for breach of statutory duty the plaintiff must establish a breach of a statutory obligation which, on the proper construction of the statute was intended to be a ground of civil liability to a class of persons of whom he is one. He must establish an injury or damage of a kind against which the statute was designed to give protection." 11. In the Nagar Rice and Flour Mills & Ors., v. N. Teekappa Gowda & Bros. & Ors., AIR 1971 SC 246 , the Supreme Court rejected the claim of an existing Mill owner that in case any other Mill is shifted to the locality wherein his Mill is situated, he would be adversely affected, therefore, has a locus standi to maintain the suit/writ. The Supreme Court held that the right to carry on business being fundamental right guaranteed under Article 19 (1) (g) of the Constitution, its exercise is subject to reasonable restrictions imposed by the law in the interest of general public under Article 19 (6) (i) of the Constitution. 12. The "person aggrieved" means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. 12. The "person aggrieved" means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. "Person aggrieved" means a person who is injured or he is adversely affected in a legal sense. Vide K.N. Lakshminarasimaiah v. Secretary, Mysore S.T.A.T., (1966) 2 Mys. L.J. 199. 13. Whether a person is injured in strict legal sense, must be determined by the nature of the injury considering the facts and circumstances involving in each case. A fanciful or sentimental grievance may not be sufficient to confer a standi to sue upon the individual. There must be injuria or a legal grievance, as the law can appreciate and not a stat pro ratione valuntas reasons. 14. In the case of R.V. London Country Keepers of the Peace of Justice (1890) 25 QBD 357, the Court held as under: "A person who cannot succeed in getting a conviction against another may be annoyed by the said findings. He may also feel that what he thought to be a breach of law was wrongly held to be not a breach of law by the Magistrate. He thus may be said to be a person annoyed but not a person aggrieved, entitle to prefer an appeal against such order." 15. In Messrs. Swami Motor Transport (Private) Ltd. v. Messrs. Raman & Raman (Private) Ltd. & Ors., AIR 1961 Mad. 180 , a Full Bench of Madras High Court, while considering the provisions of Madras Motor Vehicles Act, considered the issue and approved the law laid down in The King v. Richmond Confirming Authority, (1921) 1 KB 248; and The King v. Groom & Ors., 1901 (2) KB 157, and laid down the principle as under: - "The true principle is to determine whether the applicant has an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered." 16. As would appear from the narration of fact that there is no legal injury to the petitioner's right by assessment of tax upon respondent no. As would appear from the narration of fact that there is no legal injury to the petitioner's right by assessment of tax upon respondent no. 4 by the Chairman, Nagar Panchayat and in my opinion, the petitioner will not fall in the ambit of person aggrieved, therefore, he had no locus standi either to file appeal or to challenge the tax assessment order and appellate order under Article 226 of the Constitution of India and the writ petition deserves to be dismissed as not maintainable. 17. Learned counsel for the petitioner, in the last, has submitted that respondent no. 4 is the grabber of the land and the order passed by the Chairman, Nagar Panchayat and dismissal of the appeal by the Collector may give him a lever to establish his possession and claim a right over the land and he may also try to encroach upon the land which is in possession of the petitioner. 18. Taking note of the fact that in the submission of learned counsel for the petitioner, the land is recorded as Navinparti in the revenue record and respondent may take advantage of the tax assessment order in establishing his possession and right over the same, it is provided that the petitioner can initiate proceeding under section 122B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Act') as the provisions contained in the aforesaid Act are still applicable in the area, although the land in dispute has fallen in the local limit of the Nagar Panchayat, but under section 122B of the Act, any local authority or the person aggrieved by such encroachment may also ask for initiation of proceeding under section 122B of the Act, as has been held by the Division Bench of this Court in the case of Rama Shankar v. State of U.P. and others reported in 2012 (10) ADJ 734 . The petitioner may also file suit, in case the other side tries to make encroachment upon the land which is in possession of the petitioner. 19. The writ petition is dismissed as not maintainable. Petition dismissed.