Nalini Bihari Dutta vs The Executive Offices of Daltonganj Municipality

Shambhu Prasad Singh and A.N. Mukharji, JJ.—This application u/s 151 of the CPC has been filed by the defendant. It arises out of a suit for recovery of arrears of professional tax against the petitioner who resides within the limits of the Municipality of Daltonganj. An Executive Officer has been employed for the Municipality and the suit was instituted by him. An objection was taken by the petitioner in the court below that the suit by the Executive Officer was not maintainable. According to him such a suit could be instituted only by the Commissioners of the Municipality. The court below has overruled that objection and has held that the suit is maintainable. The petition it directed against that order. By Bihar Act 20 of 1965 the Bihar and Orissa Municipal Act, 1922 (hereinafter referred to as ''the Act'') was amended by inserting Sections 37-A to 37-E and two Schedules as Fifth and Sixth Schedules. Section 37-A empowers the State Government to employ an Executive Officer in any Municipality. Section 37-B lays down that in a Municipality for which an Executive Officer is employed the executive power for the purposes of carrying on the administration of the Muncipality shall, subject to the provisions of the Act and of any rules and bye-laws made thereunder and the general control of the Commissioners at a meeting, vested in the Executive Officer. It further provides that the powers, functions and duties vested in or imposed on the Chairman, Vice-chairman or the Commissioners, as the case may be, under the sections specified in the Fifth Schedule, not being powers, functions and duties vested in or imposed on the Commissioners at a meeting, and such other powers vested in the Chairman as the Chairman delegate to the Executive Officer with the approval of the Commissioners at a meeting shall be exercised, discharged and performed by the Executive Officer subject to the general control of the Commissioners at a meeting and the conditions and exceptions specified in the schedule; and references to the Chairman, Vice-Chairman, and the Commissioners in the provisions of this Act shall be construed accordingly. One of the sections specified in the Fifth Schedule is Section 130. The section reads as follows:--

"130. Commissioners may bring suits instead of distaining or on failure of distress--Instead of proceeding by distress and sale, or in case of failure to realize thereby the whole or any tax, the Commissioner may sue the person liable to pay the same in any court competent jurisdiction."

This section is in Chapter IV of the Act which deals with Municipal Taxation. The Chapter is divided into several parts and really Section 130 is under Part HI of that Chapter which deals with Recovery of Taxes. When any tax payer defaults in payment of taxes according to various provisions or Part III of Chapter IV the arrears may be realized either by distress or by sale of the property of the tax payer or as a public demand with the order of the Collector or by institution of a suit. Section 12 of the Act provides for Constitution and incorporation of Municipal Commissioner. It runs as follows :--

"12. There shall be established for each Municipality a body of Commissioners, who shall be a body corporate by the name of Municipal Commissioners of the place by reference to which the Municipality is known, having perpetual succession and a common seal, and may be that name sue and be sued".

It has been contended by Mr. S. Mukherjee appearing for the petitioner that Section 130 does not confer any power on the Commissioners to sue for realisation of taxes, as the power to sue is already there u/s 12 of the Act. According to him Section 130 merely provides for selection of one of the several methods for realization of taxes by the Commissioners. He has submitted that as Section 130 does not vest in the Commissioners any power to sue u/s 37 B(d) the Executive Officer cannot institute a suit for realization of taxes. In our opinion, there is no substance in the contention of Mr. Mukherjee that Section 130 does not vest a power in the Commissioners to sue for realization of taxes. True it is that Section 12 confers upon the Commissioners a general power to sue on behalf of the Municipality, but specific powers to sue for realization of taxes is conferred upon the Commissioner by Section 130 of the Act. It became necessary to enact Section 130 because Part III of Chapter IV provides for realization of taxes by distress, by sale of the property of the tax payer or as a public demand. If Section 130 would not have been there, it could have been contended that since Part III of Chapter IV provided for realisation of taxes by distress and a sale and as a public demand only taxes could not be realized by institution of a suit. Hence special provision had to be made for realization of taxes by instituting a suit. Section 12 confers a general power upon the Commissioners for instituting suits on behalf of the Municipality; whereas Section 130 confers special power on them to institute a suit on behalf of the Municipality for realization of taxes. When there are both general provisions and special provision, it is settled that special provision applies. Hence the power to sue for realization of taxes is conferred upon the Commissioners by Section 130 of the Act.

Section 37-B(d) makes it clear that the power vested in the Commissioners under the section specified in the fifth Schedule, if they are not powers imposed on the Commissioners at a meeting, shall be exercised by the Executive Officer. The power vested in the Commissioner u/s 130 is not one vested in the Commissioners at a meeting. Hence on the plain reading of Section 37rB(d) and Fifth Schedule introduced by the amending Act of 1965 and Sections 12 and 130 of the original Act, it has to be held that the Executive Officer is empowered to institute a suit on behalf of the Municipality for realization of taxes. Therefore, in our opinion, the court below hat not committed any error of jurisdiction in passing the impugned order rather it has not committed even an error of law. For the foregoing reasons, we find no merit in the application which must fail and is accordingly dismissed with costs. Hearing fee is assessed at Rs. 64/- only.