Commissioners of Patna City Municipality vs Bishambhardeo Narain

Varma, J.—This second appeal arises out of a suit instituted by Bishambhardeo Narain for a declaration that the assessment of the municipal tax of his house No. 108. B, Circle No. 6, within the Patna Municipality at the rental basis of Rs. 50 per month is excessive, illegal, ultra vires and without jurisdiction, and for an injunction restraining the municipality to realize tax from him at a rate higher than Rupees 17-12-6 per quarter which is the old rate of municipal tax payable for his house. The trial Court dismissed the suit. The lower Appellate Court has decreed the suit and passed a decree in the following terms:

That the suit is decreed and the appeal is allowed with costs at 6 per cent, per annum future interest; pleader''s fee Rs. 5 per cent, The judgment and the decree of the learned lower Court are herewith set aside. It is hereby declared that the re-assessment of municipal tax of plaintiff''s holding at the rental basis of Rs. 50 per month is illegal, ultra vires, and without jurisdiction, and the defendant is restrained to realize tax therefore at a rate higher than Rs. 17-12-6 per quarter, that is the old rate of municipal tax therefore from the plaintiff.

The chief point which was the subject matter of dispute between the parties was whether a notice u/s 107(2), Bihar and Orissa Municipal Act, was served on the plaintiff or not. A look at some of the exhibits in this case discloses a curious state of affairs. The defendant municipality claimed that a notice u/s 107(2) was issued by the municipality and it was intended by the municipality that a notice under that section should be issued. But looking at the two parts of the notice--the one that is kept in the office and the other that is served upon the assessee--it appears that whereas that part of the printed notice which was kept in the office shows that Section 115(2) has been changed into Section 107(2), the other part that was served upon the assessee does not show any such change, with the result that the notice received by the assessee is a notice u/s 115(2) of the Act. The lower Appellate Court has held that this was a fatal defect and that the enhancement could not be allowed because the provisions of Section 107(2) had not been complied with. On this point the learned Subordinate Judge is at variance with the judgment of the trial Court which held that at best it was an irregularity curable by Section 380 of the Act, and moreover that the plaintiff put in an objection before the committee appointed by the municipality but that was rejected and therefore, at any rate, the enhancement was not made without notice to the assessee.

Mr. Rai Guru Sharan Prasad, appearing on behalf of the municipality; has adopted the same line of argument as advanced by the trial Court and he has emphasised the fact that the assessee was before the municipality before the enhanced rate was actually demanded. He has also relied upon Section 380, Bihar and Orissa Municipal Act. A careful scrutiny of the terms of Section 380 will show that it is not all irregularities that are curable: it is only the irregularities mentioned in that section that are curable. I cannot do better than quote the section itself to point out what the type of mistakes are that are curable under that section. The section runs as follows:

No assessment list or other list, notice, bill, or other such document specifying, or purporting to specify, with reference to any tax, charge, rent or fee, any person, property, thing or circumstance shall be invalid by reason only of a mistake in the name, residence, place of business or occupation of the person or in the description of the property, thing or circumstance, or by reason of any mere clerical error or defect of form, and it shall be sufficient that the person, property, thing or circumstance is described sufficiently for the purpose of identification, and it shall not be necessary to name the owner or occupier of any property liable in respect of a tax.

I need not quote Clause (2) because it is not necessary for the purposes of this case. Now from this it will appear that the mistakes that are covered by this section are in the case of a notice in the name, residence, place of business or occupation of the person, or in the description of the property, thing or circumstance, or by reason of any clerical error or defect of form. The mistake in question here is a mistake which could be covered by the last two items, viz. clerical error or defect of form. Now the notice that was served upon the assessee cannot be said to contain any clerical error because it is on the face of it a notice u/s 115(2). If the municipality intended that it should be a notice u/s 107(2), the correction should have been made here. So from the assessee''s point of view there is no clerical error in the notice that was received by him. There is no defect in form either. Therefore, although certain types of irregularities are curable by Section 380, it cannot be said that a defect of this nature can be cured by that section, because it will amount to this that although you serve a notice which is to all intents and purposes a notice u/s 115(2), you want to take advantage of having, served a notice u/s 107(2). Then the question is whether the appearance of the assessee before the committee cures the non-service of notice u/s 107(2). I am of opinion that it does not, and I am supported in this opinion by the decision in Lachminarayan Das Vs. Chairman, Cuttack Municipality, . I agree with the lower Appellate Court that this was an illegality and I would dismiss the appeal with costs. Leave to appeal under the Letters Patent is refused.