Bal Gobind Yadav vs Ramchantra Dubty and Others

S.B. Sinha, J.—This writ petition is directed against an order, as contained in Annexure-1 to the writ petition, dated 15.4.82 passed by the respondent No. 2 in Mutation Case No. 148 of 1980-81, whereby and whereunder the name of respondent No. 1 was mutated in respect of holding No. 341 ward No. 7 situated in the Bihar Municipality in the District of Nalanda. The facts of this case lie in a very narrow compass and are not very much disputed. The name of the Nawal Kishore Tiwary was entered in the registers of the municipality after the death of his father. He was the respondent No. 2 in this writ application but by order dated 15.10.82 his name was permitted to be expunged. The petitioner purchased the property by a registered sale deed dated 30th October, 1981, from the respondent No. 2.

It is stated that the respondent No. 1 filed an application before respondent No. 3 sometimes in 1965-1966 and on production of a bogus and fabricated sale deed of 1920 allegedly executed the grand-father and grand-uncle of Nawal Kishore "Tiwari in favour of the father of respondent No. 1 and got his name mutated in the register maintained by the Municipality. Nawal Kishore Tiwary having come to learn of the same filed an application and by order dated 31.3.81 and after hearing the parties, the respondent No. 3 directed that the name of the respondent No. 2 in the assessment list in respect of the aforementioned holding be mutated in place of the respondent No. 1. The aforementioned order is contained in Annexure-3 to the writ application.

It appears that the respondent No. 1 thereafter filed an application before the respondent No. 3 who without giving any notice to the petitioner reviewed his order dated 31.3.81, as contained in Annexure-3 thereto, and again directed mutation of the name of the respondent No. 1.

The learned counsel appearing on behalf of the petitioner submitted that the impugned order is without jurisdiction in as much as the respondeat No. 3 was not legally empowered to review his earlier order. Learned counsel has further submitted that in any event as before passing the said order the petitioner was not given an opportunity of hearing, the same is vitiated in law.

The learned counsel appearing on behalf of the respondent No. 1, on the other hand, submitted that the other, as contained in Annexure-1 to the writ application, cannot be quashed, in view of the fact that the order passed by the respondent No. 3 dated 31.3.81. as contained in Annexure-3 to the writ application, is also illegal and without jurisdiction. Learned counsel, has in the alternative, submitted that this Court if quashes Annexure 1 to the writ application, should also quash the order as contained in Annexure 3 thereof.

It is now well settled that power of substantive review must expressly be conferred upon the Court or Tribunal by reason of Statute, Such a power can be exercised only when the same is conferred by law either specifically or by necessary implication. Reference in this connection may be made to Gurdit Singh and Others Vs. State of Punjab and Others, .

It is a common ground that Commissioners of Municipality do not have power of review and in that view of the matter the order as contained in Anncxure-1 to the writ petition must be held to be bad in law.

A question, therefore, arises is as to whether the order passed by the respondent No. 3, as contained in Annexure 3 to the writ petition, should also be quashed by this Court or not.

The power to enter the name of any person in the assessment list of a Municipality is contained in section 107 of the Bihar and Orissa Municipal Act, 1922. The relevant provision of section 107 of the said Act reads as follows:--

Amendment and duration of list. -- (1) The Commissioner may, from time to time alter or amend the assessment list in any of the following ways:--

(a) 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 u/s 115;

(b) by substituting 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;

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So far as order contained in Annexure 3 to the writ petition is concerned, the same was evidently done by the respondent No. 3 in exercise of his power conferred upon him u/s 107(1)(a) of the said Act. The very fact that the commissioners have got powers to alter or amend the assessment list and also enter therein the name of any person, is suggestive of the fact that the same included the power to amend or alter the name of any person liable to taxation after the publication of the assessment list u/s 115 of the said Act. If it is held that the name of any person other than the name of the person, whose name already is in the list, cannot be altered, in such as a situation no effective or purposeful meaning can be assigned to the word ''alter'' or ''amend'' as mentioned in section 107(1) of the aforementioned Act. The power to ''alter'' or ''amend'' the assessment list, in my opinion, is a comprehensive power whereby and whereunder the commissioners are entitled to alter the name of any person In terms of aforementioned provision. In my view if any other construction to the aforementioned provision is put, the same will result in absurdity. In that view of the matter, the order, as contained in Annexure-3 to the writ petition, cannot be held to be bad in law particularly in view of the fact that before passing the said order respondent No. 3 gave an opportunity of hearing to both the petitioner as also respondent No. 1. Consequently the order, as contained in Annexure-3, became final by and binding between the parties thereto.

In such a situation respondent No. 3 could not have entered the name of respondent No. 1 on the basis of any other application filed on his behalf. It is a well settled principle of law that in absence of any power of substantive review, statutory authority or judicial authority has no power to review his earlier order.

Learned counsel appearing on behalf of the respondents have failed to bring to my notice any such power under the provisions of the said Act. Further the respondent No. 3, in any event, ought to have complied the minimal requirements of the principles of natural justice before passing the impugned order as contained in Annexure-1 to the writ petition. In the result, this writ petition is allowed and the order, as contained in Annexure-1 is quashed. However, there shall be no order as to costs.