Full Judgment Text
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PETITIONER:
SMT. SHYAM KISHORI DEVI
Vs.
RESPONDENT:
PATNA MUNICIPAL CORPORATION & ANR.
DATE OF JUDGMENT:
04/02/1966
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
HIDAYATULLAH, M.
BACHAWAT, R.S.
CITATION:
1966 AIR 1678 1966 SCR (3) 466
ACT:
Bihar and Orissa Municipal Act, 1922 (B. & O. Act 7 of
1922), ss. 107(1)(c), 117(1) and 386-supersession of
Municipality- Notifications appointing officer to act as
Commissioners and as committee-Enhancement of municipal
taxes by such officer and sitting in review as Committee-
Validity-Incorrect assessment, burden of proof of.
HEADNOTE:
On supersession of the Patna Municipality, the State
Government by a notification directed an officer of the
Municipality to exercise and perform the powers and duties
of the Commissioner under s. 107 of the Bihar and Orissa
Municipal Act, 1922. Under s. 117 every application
presented to the Commissioners for review of an assessment
or valuation had to be heard and determined by a Committee
consisting of two Commissioners, two tax-payers and a Deputy
Magistrate as provided in the section. By a later
notification, the Government directed each of the three
persons mentioned therein one of whom was the aforesaid
officer, to exercise and perform the powers and duties
conferred and imposed on Committee constituted under s. 117
of the Act. Pursuant to these notifications, the said
officer enhanced the valuation of the holding of the
appellant and the assessment thereof under s. 107(1)(c) of
the Act and rejected the review petition under s. 117(1) of
the Act. The appellant filed a suit challenging the
validity of the order of the officer.
HELD : (i) The order of the officer rejecting the objections
filed by the appellant and enhancing the value of the
holdings was without jurisdiction.
By a later Notification, if it was intended to ’replace the
committee by one or other of the three persons mentioned
therein, it would be beyond the powers of the Government
conferred under the provisions of s. 386(1) (b) of the
Act. The effect of this clause is that all the powers and
duties of the Commissioners conferred and imposed on them
under the various sections of the Act whether acting in.
committees or individually would be exercised by such person
or persons as the State Government may direct. So, the
committee under s. 117 could have been constituted with one
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or more of the three persons nominated by the Government
under s. 386(1) (b) of the Act, and two tax-payers nominated
by them and a Deputy Magistrate nominated by the Government.
To say that when once the Commissioners vacated their office
on supersession it was impossible for them to nominate or
elect two other taxpayers to the committee within the
meaning of s. 117(1) would render inoperative all sections
whereunder powers were conferred or duties imposed on
Commissioners, and would make s. 117(1) unworkable leading
of the anomaly that the same officer who revised the
assessment would sit in judgment over it. [471 0; 472 A-D]
(ii) Under s. 107(1) (c) of the Act, the burden is upon the
Commissioners, before they could amend the valuation and
assessment already made, to establish that the previous
assessment was incorrectly made by reason, of fraud,
misrepresentation or mistake. [472 G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 812 of
1963.
467
Appeal by special leave from the judgment and decree dated
September 21, 1959 of the Patna High Court in Appeal
from.Appellate Decree No. 1766 of 1954.
Ramanugrah and Mohan Behari Lal, for the appellant.
S. P. Varma, for the respondents.
The Judgment of the Court was delivered by
Subba Rao. J. This appeal by special leave raises the
question of the true construction of sub-s. (1) of s. 117 of
the Bihar and Orissa Municipal Act, 1922 (B. & 0. Act 7 of
1922), hereinafter called the Act.
Shrimati Shyam Kishori Devi, the appellant, is the owner of
premises known as "Krishna Bhawan" situate on Fraser Road in
the Town of Patna. Originally it bore holding No. 239, but
after the Patna Municipal Corporation Act, 1952, was passed
it was given holding No. 264 in Circle No. 6 of the Patna
Municipal Corporation. On August 4, 1944, the Patna
Municipality was superseded by the Government initially for
a period of three years but the said period was extended
from time to time till the Patna Municipal Corporation Act,
1952, came into force. On March 29, 1946, the Government
issued a Notification directing that S. N. Sarkar, Assistant
Special Officer of the Patna City Municipality, shall also
exercise and perform the powers and duties which might be
exercised and performed by the Commissioners under s. 107,
among other sections, of the Act. On November 21, 1949, the
Government of Bihar issued another Notification directing
that each of the three officers mentioned therein shall
exercise and perform the powers and duties conferred and
imposed on a Committee constituted under s. 117 of the Act.
One of the said officers was the said S. N. Sarkar, who was
also appointed under the earlier Notification dated March
29, 1946, to perform the duties and exercise the powers of
the Commissioners.
During the periodical revisional assessment of the year 1950
in regard to the said premises, the valuation thereof was
fixed at Rs. 1,800/- and its quarterly municipal taxes at
Rs. 146-4-0; but as some additions were made to the said
premises, on May 10, 1951, the valuation of the said
premise$ was raised to Rs. 2,400/. and its quarterly
municipal taxes were fixed at Rs. 195/-. On November 17,
1951, S. N. Sarkar, the Assistant Special Officer of the
Municipality, issued a notice to the owner of the premises
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informing her that the assessment of her premises was
proposed to be filed as follows : House-tax Rs. 262-8-0,
Latrine-tax Rs. 210/- and water-tax Rs. 210/- per quarter
under s. 107 of the Act. On December 20, 1952, the
appellant filed a petition against the proposed enhancement
of taxes before the said Assistant Special
468
Officer, but he rejected the petition. Thereafter, the
assessment list was amended on January 10, 1952, enhancing
the valuation of the holding in question to Rs. 8,400/- and
the quarterly municipal taxes to Rs. 682-8-0. Aggrieved by
the said order, the appellant filed Title Suit No. 60 of
1952 in the Court of the Third Munsif, at Patna for a
declaration that the alteration made by the Assistant
Special Officer in the assessment list was invalid and
without jurisdiction and that the Municipality was not
entitled to realise the enhanced assessment. She also asked
for a permanent injunction restraining the Municipality from
realising the said enhanced tax from her. To that suit the
Patna Municipality was made the, 1st defendant and the
Administrator of Patna, the 2nd defendant. The learned
Munsif held that the order passed by the Assistant Special
Officer was valid and dismissed the suit with costs. On
appeal, the learned Subordinate Judge, Patna, held that the
Assistant Special Officer had no jurisdiction to proceed
under s. 107(c) of the Act, as there was no fraud,
misrepresentation or mistake when the periodical assessment
was made and on that ground, he allowed the appeal and
decreed the suit. Thereupon, the respondents preferred a
second appeal to the High Court of Patna. A Division Bench
of that Court held that after the supersession of the
Municipality no committee could be constituted under s. 117
of the Act and that, therefore, the Special Officer, in the
absence of any specific machinery to deal with such an
application, had perfect jurisdiction to lay out his own
machinery to dispose of the same. After holding that the
Assistant Special Officer had jurisdiction to dispose of the
application for review, the High Court held that it had not
been established by the assessee that there was no mistake
in the earlier assessment. In the result, the appeal was
allowed, the judgment and decree of the learned Subordinate
Judge were set aside and those of the trial Court were
restored. The assessee has prefer-red the present appeal by
special leave against the judgment and decree of the High
Court.
Mr. Ramanugrah, learned counsel for the appellant, argued
that the High Court on a wrong construction of the relevant
provisions of the Act held that s. 117(i) of the Act had
become unworkable and that no committee thereunder could be
constituted after the supersession of the Municipality. He
further contended that the High Court had thrown the burden
of proof wrongly on the appellant but it should have held
that it was for the Municipality to establish that there was
a mistake, fraud or misrepresentation in making the
periodical revisional assessment and that, as there was no
material placed by the Municipality before the Court, it
should have held that the condition precedent for reopening
the earlier assessment had not been fulfilled.
Mr. S. P. Varma, learned counsel for the respondents, in
addition to the contentions accepted by the High Court,
sought to take
469
a preliminary objection that the suit was not maintainable.
As this question was not raised in any of the Courts below,
we did. not permit him to do so.
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The first contention turns upon the construction of the
relevant-. provisions of the Act and the Notifications
issued by the Government thereunder. It will be convenient
at the outset to gather the relevant provisions at one
place.
Section 386. (1) When an order of supersession has been
passed under the last preceding section, the following
consequences, shall ensue :-
(a) all the Commissioners shall, as from the
date of the. order, vacate their offices as
such Commissioners;
(b) all the powers and duties which may,
under the pro-visions of this Act, be
exercised and ’ performed by the Com-
missioners, whether at a meeting or otherwise,
shall, during the period of supersession, be
exercised and performed by such person or
persons as the State Government may direct;
The relevant part of the Notification dated
March 29, 1946. reads
in exercise of the powers conferred by clause
(b) of sub-section (1) of section 386 of the
said Act, the Governor of Bihar is pleased to
direct that Babu S. N. Sarkar, Assistant
Special, Officer of the Patna City
Municipality, shall also exercise and perform
the powers and duties which may be exercised
and performed by the Commissioners under the
provisions of sections 102, 105, 107, 111,
116, 122, 124, 125, 126........... The
relevant part of the Notification dated
November 21, 1949, reads
Governor of Bihar is pleased to direct that
each of the.,
following officers shall exercise and perform
all the powers.and duties, conferred and
imposed on a Committee constitute
d under
sections 117 and 118 of the said Act for the
purpose of hearing and determining
applications for review relating to assessment
presented by the tax-payers of the Patna City
Municipality, namely :-
1. Mr. Bhubneshwar Pd., Special Officer, I/C
Patna
City Municipalty.
2. Mr. S. N. Sarkar, Assistant Special
Officer, I/C of the Patna City Municipality.
3. Mr. Parmeshwar Dayal, Retired Deputy
Magistrate".
470
Section 116. (1) Any person who is dissatisfied with
the, .amount assessed upon him or with the valuation or
assessment of’ any holding, or who disputes his occupation
of any holding or his liability to be assessed; may apply to
the Commissioners to review the amount of assessment or
valuation, or to exempt him from the assessment or tax.
Section 117. (1) Every application presented under the last
preceding section relating to assessment made
under............ section 107............ shall be heard and
determined by a Committee consisting of two Commissioners
and two tax-payers of the municipality, nominated or elected
in the prescribed manner by the Commissioners at a meeting
and one servant of the Government not below the rank of a
Deputy Magistrate nominated by the District Magistrate in
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this behalf, provided that no Commissioner or tax-payer
shall be a member of the Committee appointed to hear
applications from the ward for which he was elected and that
three members shall form the quorum.
The effect of the relevant provisions in the context of the
facts of the case may be stated thus : Where an order
superseding a municipality has been passed by the
Government, all the Commissioners of the Municipality shall
vacate their offices and their powers and duties, whether at
a meeting or otherwise, shall be exercised and performed by
such person or persons as the State Government may direct.
The State Government accordingly issued two Notifications
whereunder S. N. Sarkar, Assistant Special Officer of the
Patna City Municipality, was appointed to exercise and
perform the powers and duties under s. 107 of the Act,
among .,others, and each one of the three persons mentioned
in the Notification dated November 21, 1949, to exercise the
powers and .perform the functions of the Committee under s.
117 of the Act. Pursuant to the said Notifications, S. N.
Sarkar, functioning in the place of the Commissioner,%
enhanced the valuation of the holding of the appellant and
the assessment thereof under s. 107(c) ,of the Act, and
rejected the review petition under s. 117(1) of the Act.
The question is whether he could have validly done so. It
is not disputed that S. N. Sarkar had jurisdiction to take
action ,under s. 107(c) of the Act, but what is contended is
that he had no -jurisdiction to dispose of the review
petition under s. 117(1) of the Act. If the Committee under
s. 117 of the Act could have been validly constituted even
after the supersession of the Municipality, ,-S. N. Sarkar
would not have jurisdiction to hear the review petition, for
under that section it was the function of the Committee to
do so. Mr. Varma contends that after the order of
supersession passed by the Government, all the Commissioners
vacated their ,offices and thereafter it was impossible for
the Commissioners to
471
function as members of the Committee or to nominate or elect
two other tax-payers to that Committee within the meaning of
s. 117(1) of the Act and that, therefore, the Government
validly appointed the Assistant Special Officer to exercise
the powers and perform the functions of the Committee under
the said section. If this construction be accepted all the
sections whereunder certain powers were conferred and
certain duties were imposed on the Commissioners would cease
to be operative after the order of’ supersession. Only to
avoid this contingency s. 386(1)(b) of the Act in express
terms says that all the powers and duties which may under
the provisions of the Act be exercised and performed by the
Commissioners, whether at a meeting or otherwise, shall be
exercised and performed by such person or persons as the
State. Government may direct. The effect of that clause is
that all the powers and duties of the Commissioners
conferred and imposed on them under the various sections of
the Act, whether to act in a body or in committees or
individually, would be exercised by such person or persons
as the State Government might direct thereunder. If that be
the interpretation of s. 386(1), the person or persons
appointed by the State Government thereunder would take the
place of the Commissioners in the various sections of the
Act. So too, in section 117(1) of the Act, which would ran
thus:
"Every application presented under the last
preceding section relating to assessment made
under.......... s. 117 .......... shall be
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heard and determined by a Committee consisting
of the person or persons appointed by the
Government and two tax-payers of the
Municipality nominated by the said person or
persons and one servant of the Government not
below the rank of a Deputy Magistrate
nominated by the District Magistrate in this
behalf, provided that no person or persons
nominated or tax-payer shall be a member of
the Committee appointed to hear applications
from the ward for which he was elected and
that three members shall form the quorum."
If that be the effect of s. 386 on s. 117,the Committee
under s. 117 could have been constituted with one or more
of the three, persons nominated by the Government under s.
386(1)(b) of the, Act and two tax-payers nominated by them
and a Deputy Magistrate nominated by the Government. This
construction will give full effect to s. 117 of the Act,
whereas the construction suggested by the learned counsel
for the respondents and accepted by the High Court would
make it unworkable. It is a well-known rule of construction
that a court must construe a section, unless it is impos-
sible to do so, to make it workable rather than to make it
unworkable. In the words of Lord Bramwell, the words of a
statute never should in interpretation be added to or
substracted from, without almost a necessity.
M 10 Sup.Cl/66-17
472
By the Notification issued by the Government on November 21
1949, if it was intended to replace the Committee by one or
other ,of the three persons mentioned therein, it would be
beyond its, powers conferred under the provisions of s.
386(1)(b) of the Act. Under the said clause, the powers and
duties which may under the provisions of the Act be
exercised and performed by the Commissioners could be
exercised and performed by such person or persons as the
State Government may direct. But it does not empower the
Government to replace persons or authorities other than
Commissioners by persons nominated by it. But the said
Notification may be reasonably confined to the scope of the
authority of the Government. If so confined, it replaced
only the two Commissioners by the person or persons
mentioned therein.
The argument of the learned counsel for the respondents, if
accepted, would lead to an anomaly. ’Section 117(1) would
become unworkable and the same officer who revised the
assessment would :sit in judgment over it.
For the foregoing reasons we hold that the order made by S.
N. Sarkar rejecting the objections filed by the appellant
and enhancing the valuation of the suit holding to Rs.
8,400/- and fixing the quarterly municipal taxes at Rs. 882-
8-0 was without jurisdiction.
There are also merits in the second contention of the
learned counsel for the appellant. The periodical
revisional assessment of the premises was made in the year
1950 after making the necessary enquiry. It was altered on
January 10, 1951, under s. 107(1)(d) ,of the Act on the
ground that the value had increased by additions made by the
owner to the premises. The impugned revaluation of the
building and th assessment were made in the year 1952 ,under
s. 107(1)(c) of the Act, which reads
"The Commissioner may from time to time alter
or amend the assessment list in any of the
following ways :
(c) by enhancing the valuation of, or
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assessment on, any holding which has been
incorrectly valued or assessed by reason of
fraud, misrepresentation or mistake."
Under this section, the burden is certainly upon the Commis-
sioners before they could amend the valuation and the
assessment already made to establish that the previous
assessment was in-correctly made by reason of fraud,
misrepresentation or mistake. The High Court said that not
a word had been said in the evidence adduced by the parties
that the rental taken into consideration by the Special
Officer while making the re-assessment in 1952 did not exist
at the time of the periodical revisional assessment. This
observation was made on the assumption that the burden was
upon the assessee. Indeed, when the appellant filed a
petition in
473
the suit under Order XI of the Code of Civil Procedure for
the discovery of the relevant records of the three
assessments and though the learned Munsif made an order
directing the Municipality to do so, it failed to produce
them. In the circumstances we must hold that the
Municipality had not established the precondition for the
re-assessment, namely, that the original periodical
revisional assessment was vitiated by fraud,
misrepresentation or mistake.
In the result, the appeal is allowed, the decree of the High
,Court is set aside and the suit is decreed with costs
throughout.
Appeal allowed.
474