Kiran Kumar Sahni and Another vs Chief Judicial Magistrate and Others

Rajesh Tandon, J.—By the present writ petitions, the Petitioners have prayed for a writ of certiorari quashing the order dated 06-05-2004 passed by the Chief Judicial Magistrate, Nainital.

Briefly stated, Municipal Board, Haldwani leased out two shops bearing No. 381 and 382 at Mangal Parao in favour of Sri Inder Raj Sahni (Respondent No. 2) who is eider brother of Petitioner No. 1 and real uncle of Petitioner No. 2.

Sri Inder Raj Sahni transferred his tenancy rights over shop No. 382 in favour of Sri Jagmohan Lal Sahni (since deceased) (father of the Petitioner No. 2) for a consideration of Rs. 15,000/- by means of transfer deed dated 06-05-1991. Another deed was executed on 06-05-1991 in favour of Sri Kiran Kumar Sahni, whereby tenancy rights over shop No. 381 were transferred. In both the deeds, it was specifically mentioned that the transferee may get his name entered in municipal records as lessee.

In pursuance of the aforesaid transfer deeds, Petitioners applied for entering their names in municipal records as lessee in respect of shops No. 381 and 382 and their applications were ultimately considered by the Marketing Committee of the Municipal Board in its meeting dated 20-05-2000 and decided to enter the name of the Petitioners as lessee in municipal records.

Sri Inder Raj Sahni filed one suit on 12-08-2001 for permanent injunction, which was registered as Civil Suit No. 85 of 2001 in the Court of Civil Judge (Senior Division), Haldwani which is pending before the Additional District Judge, Haldwani. The relief sought in the said suit was that the order of mutation passed by Municipal Board in favour of the Petitioners be declared illegal and the Petitioners be restrained from taking possession of shops No. 381 and 382 situated at Mangal Parao, Haldwani. Subsequently, by way of an amendment, further relief of ejectment was sought against the Petitioners from shops No. 381 and 382 and the prayer for amendment was allowed by the trial Court on 15-04-2002.

Sri Inder Raj Sahni preferred appeal before the Chief Judicial Magistrate, Nainital u/s 160 U.P. Municipalities Act against the decision taken by Marketing Committee of Municipal Board on 20-05-2000, whereby the permission to change the name in the municipal records has been given.

Against the said appeal, the Petitioners have moved an objection before the Chief Judicial Magistrate on 09-05-2002 stating that the appeal is not maintainable. The learned Chief Judicial Magistrate vide judgment and order dated 06-05-2004 allowed the appeal filed u/s 160 of the U.P. Municipalities Act.

Counsel for the Petitioners Sri Manoj Tiwari has submitted that no appeal was maintainable u/s 160 of the U.P. Municipalties Act as the appeal lies only against the taxation and against the order passed u/s 143(3) of the U.P. Municipalities Act. Section 143(3)(c) relates to the objection of the entries in the list. Clause (c) aforesaid relates to the case any amendment necessary in accordance with state resolution to be made in the assessment list.

Section 143 of the U.P. Municipalities Act, 1916 is quoted below:

Objections to entries in list. - (1) The [municipality] shall at the same time give public notice of a date, not less than one month thereafter, when it will proceed to consider the valuations and assessments entered therein, and in all cases in which any property is for the first time assessed or the assessment is increased, it shall also give notice thereof to the owner or occupier of the property, if known.

(2) All objections to valuations and assessments shall be made to the [municipality] before the date fixed in the notice, by application in writing stating the grounds on which the valuation and assessment are disputed, and all applications so made shall be registered in a book to be kept by the [Municipality] for the purpose.

(3) The [Municipality], or a committee empowered by delegation in this behalf, or an officer [or Government] or the [Municipality] to whom, with the permission of the [Prescribed Authority] the [Municipality] delegates, and it is hereby empowered so to delegate by resolution, powers in this behalf, shall, after allowing the Applicant an opportunity of being heard in person or by agent-

a) investigate and dispose of the objections;

(b) cause the result thereof to be noted in the book kept under Sub-section (2); and

(c) cause any amendment necessary in accordance with such result to be made in the assessment list.

Similarly Section 147 relates to the amendment and alteration of the list. Clause (a) relates to entering any name of the person, which ought to have been entered or any property, which has to become liable to be taxable after the authentication of the assessment list.

Thus as will appear from the aforesaid that Section 143 as well as Section 147 both relate to the objection of entries in the list and thereafter amendment and alteration of the list.

Section 147(b) relates to substituting the name of the owner or an occupier and as such 147 deals with the substitution of the name.

Amendment and alteration of list - (1) The [Municipality] may at any time alter or amend the assessment list-

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 authentication of the assessment list; or

(b) by substituting therein for the name of owner or occupier of any property the name of any other person who has succeeded by transferor otherwise to the ownership or occupation of the property; or

(c) by enhancing the valuation of, or assessment on any property which [has become incorrectly valued or assessed or which, by reason of fraud, misrepresentation or mistake, has been incorrectly valued or assessed]; or

(d) by re-valuing or re-assessing any property the value of which has been increased by additions or alterations to buildings; or

(e) where the percentage on the annual value at which any tax is to be levied has been altered by the [Municipality] under the provisions of Section 136, by making a corresponding alteration in the amount of the tax payable in each case; or

(f) by reducing, upon the application of the owner [or on satisfactory evidence that the owner is traceable and the need for reduction established, upon its own initiative], the valuation of any building which has been wholly or partly demolished or destroyed; or

(g) by correcting any [clerical, arithmetical or other apparent error.]

(2) Provided that the [Municipality] shall give at least one month''s notice to any person interested of any alteration which the [Municipality] proposes to make under Clauses (a), (b), (c) or (d) of Sub-section (1) and of the date on which the alteration will be made.

(3) The provision of Sub-sections (2) and (3) of Section 143 applicable to the obligations thereunder mentioned shall, so far as may be, apply to any objection made in pursuance of a notice issued under Sub-section (2) and to any application made under Clause (f) of Sub-section (1).

(4) Every alteration made under Sub-section (1) shall be authenticated by the signature or signatures of the person or persons authorized by Section 144 and subject to the result of an appeal u/s 160, shall take effect from the date on which the next installment falls due.

Clause (c) thereafter relates to the valuation or assessment of any property, which has been incorrectly valued or assessed. Clause (b) relates to revaluing and reassessing of the property, which has been increased by addition or alteration. Therefore, the argument of the Petitioner that no appeal lies against the order deleting or entering the name cannot be maintained and the appeal lies before the Chief Judicial Magistrate against the orders passed u/s 143(3)(c) or 147(1)(b) of the U.P. Municipalities Act.

Counsel for the Respondents has also referred judgment of Zahid Husain Jafri v. Additional Commissioner Alld. and Municipal Board Alld. 1958 AIJ 12, where this proposition has been explained that since Section 143 and 147 both refer substitution of names, therefore, the appeal lies u/s 160 of the U.P. Municipalities Act. The relevant observations are quoted below:

It is true that, the heading appearing above Section 160 suggests that, appeals lie against taxation only. But sub Section (1) of Section 160 itself shows that, the scope of the section is wider. Section 160 provides for appeals against an order passed under Sub-section (3) of Section 147 of the Act. Sub-section (3) of Section 147 refers to Sub-section (2) of Section 147. Sub-section (2) of Section 147 covers alterations falling under Clauses (a), (b), (c) and (d) of Sub-section (1). We have seen that, substitution of names falls under Clause (b) of Section 147(1). So a decision about substitution of names will be a decision under Sub-section (3) of Section 147 of the Act. Originally, there was no tax assessed against the Imambara. But the tax Superintendent noted in his report dated 31-10-1952/17-11-52 that, house No. 284 was assessed to municipal tax. This is, therefore, a case, in which tax was assessed upon annual value of a building and there was an order passed under Sub-section (3) of Section 147 of the Act. So an appeal lay u/s 160 of the U.P Municipalities Act. The learned Additional Commissioner''s view that appeals are confined to taxation only is not correct.

Allahabad High Court in the case of Ram Bharose Lal v. State of U.P. and Ors. R.D. 1990 72 where it has been observed as under:

By now it is well settled that where the dispute is in mutation proceedings which do not adjudicate upon rights or title of the parties, this Court need not interfere under Article 226 of the Constitution. In such matters person aggrieved shall have rider to seek remedy in the appropriate court.

The Apex Court in the case of Smt. Sawarni v. Smt. Inder Kaur and Ors. 1997 (1) All. C.J. 126 has held that mutation does not extinguish or create title nor has presumptive value on the title. It entitles the person to pay land revenue only. The observations of the Apex Court are quoted below:

Further the lower appellate court has not come to any positive finding that Inder Kaur was the daughter of Gurbax Singh. He has been swayed away by the so-called mutation in the revenue record in favour of Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question.

Similar view has been taken in the case Bindeshwar v. Board of Revenue and Ors. 2002 (93) R.D. 134.

In view of the above, the appeal is maintainable against the impugned order.

However, in view of the observations made above, Petitioners have alternative remedy of suit before the Civil Court. However, a suit is pending being Suit No. 85 of 2001 in the Court of Civil Judge, Haldwani. Any findings recorded in the suit shall be binding on the parties.

Subject to the aforesaid, both the writ petitions are dismissed. No order as to costs.