IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6526 of 2006 BRAHMDEO MANDAL, SON OF LATE BILAS MANDAL, RESIDENT OF MOHALLA-SAKHICHAND GHAT ROAD, NAYA BAZAR, P.S. KOTWALI, DISTRICT-BHAGALPUR……………………………………….........PETITIONER. Versus 1. THE STATE OF BIHAR, THROUGH THE DISTRICT MAGISTRATE, BHAGALPUR. 2. THE BHAGALPUR MUNICIPAL CORPORATION, THROUGH ITS ADMINISTRATOR, BHAGALPUR. 3. THE CHIEF EXECUTIVE OFFICER, BHAGALPUR MUNICIPAL CORPORATION, BHAGALPUR. 4. THE “BURHANATH GHAT BACHO SAMITI”, THROUGH ITS PRESIDENT SRI PHOOL JHA, SON OF SRI KESHAV JHA, RESIDENT OF MOHALLA-NAYA BAZAR, P.S. KOTWALI, DISTRICT- BHAGALPUR. …………………………………………………………………RESPONDENTS. ----------- For the Petitioner : Mr. Diwakar Upadhyaya, Advocate. For the State : Mr. Girijesh Kumar, A.C. To A.A.G. III. For the Respondent Nos. 2 & 3. : Mrs. Pravina Kumari (Rai), Advocate. For the Respondent No.4 : Mr. Bimlendu Shekhar Thakur, Advocate. ------------- 13. 21 .12.2009. The petitioner, by filing this writ application, seeks quashing of the order dated 28.12.2005, passed by the Respondent No.3, the Chief Executive Officer, Bhagalpur Municipal Corporation, as contained in Annexure-„1‟, whereby the order dated 14.10.2004 had been reviewed and a direction was given to delete the holding created in the name of the petitioner by his predecessor in office. 2 I have heard the parties and perused the records of this case. It had been submitted on behalf of the petitioner that the land in question originally belonged to one Pandit Chiranjivi Mishra, who had transferred the same in favour of Smt. Sarla Rani. The name of Smt. Sarla Rani was mutated in the records of the State of Bihar and rent was accepted from her and in acknowledgment thereof, the State of Bihar had issued rent receipt in her name. It is stated that khatiyan was finally published showing her raiyat. In support of submission, learned counsel had placed reliance upon a copy of the khatiyan, brought on record as Annexure-„2‟ to this application. It had further been submitted that the land in question had been purchased by the petitioner by a registered deed of sale executed on 24.10.2002 by one Vivek Narayan, son of aforesaid Smt. Sarla Rani. The copy of the sale deed has been brought on record as Annexure-„3‟ to this writ application. Thereafter, the petitioner filed an application before the Bhagalpur Municipal Corporation for mutation of his name in its B.M.C. record. A general notice was issued and inquiry report was also called from the Tax Collector concerned. It 3 had been contended that few persons filed objection in the aforesaid Mutation Case on the ground that the land actually belonged to “Burhanath Temple Trust”, however, no document could be produced on their behalf and on the basis of the records produced by the petitioner as well as the inquiry report of the concerned Tax Collector, the Chief Executive Officer passed the order dated 14.10.2004, as contained in Annexure-„5‟, whereby a direction was issued for creation of holding in the name of the petitioner. However, subsequently, the Respondent No.4, claiming to be the President of “Burhanath Ghat Bachao Samiti” had filed an application for review of the earlier order dated 14.10.2004, before the Chief Executive Officer, Bhagalpur Municipal Corporation. Petitioner appeared and raised his objection. It had been held by the Chief Executive Officer, Respondent No.3, that the land in question was not entered in the holding register of the Corporation and the price of more than 2 bighas of land could not only be Rs.59,500/-. It had also been found by the Chief Executive Officer, during his spot verification, that there were steps constructed over the concerned “Ghat” and there were evidence of performing “Puja” etc. Thus, he had reviewed the earlier 4 order and issued a fresh direction for deleting the holding, opened in the name of the petitioner. The aforesaid decision, as contained in Annexure-1, is under challenge in this writ application. Learned counsel for the petitioner submitted that the order is erroneous and is also without jurisdiction as the Chief Executive Officer did not have any power to review the order passed by his predecessor. It was submitted that by S.O. 571 dated 24th April 1981, all Sections of Chapter III to XXIX of Patna Municipal Corporation Act, 1951(hereinafter referred to as “the Act”) had been made applicable to the Bhagalpur Municipal Corporation. It was also submitted that from a perusal of the Act as well as Bihar and Orissa Municipal Act, 1922, it would be manifest that the statute concerned had not conferred any power upon the Chief Executive Officer to review any order passed either by himself or by his predecessor. The only power of review is contained under Section 150 of the Chapter X of the Act, however, the same is available to the persons who are dissatisfied with the amount of tax assessed upon him or the valuation or assessment of any holding, or who disputes his occupation of any holding, or his liability to be assessed. 5 However, in the present case, the petitioner had not filed any review application being dissatisfied with the amount assessed upon him or for any reasons which were available under Section 150 of the Act. Learned counsel for the petitioner had placed reliance upon a decision of this Court rendered by a Division Bench of this Court in Daroga Lal Vs. The State of Bihar and others, reported in 1990(2) PLJR 706. It was contended that in the aforesaid decision it had been held that the Chief Executive Officer did not have any power to review the earlier order passed by the Executive Officer. Thus, such order was held to be without jurisdiction. Learned counsel for the petitioner had further placed reliance upon yet another decision of this Court rendered in Bauki Ram and others Vs. The State of Bihar and others, reported in 1999 (3) PLJR 667, to demonstrate that a statutory authority could not review its earlier order if no specific power to that effect has been provided in the statute. That apart, learned counsel also submitted that Respondent No.4, did not have any locus standi to seek review of the earlier order passed by the Chief Executive Officer. The impugned order had also been assailed on 6 account of the fact that the revisional authorities or Municipal Corporation could not question the sale deed in a Mutation Case and hold the same to be illegal on account of the fact that the consideration money was not proper and sufficient as had been held by the Respondent No.3. Apart from that, it was also stated that in the earlier order, the Chief Executive Officer had clearly stated that since the aforesaid land was included in the Municipal Corporation during the revisional survey of the year 1985 only, thus, the same could not be entered in the register of Bhagalpur Municipal Corporation, however, in the subsequent order, it was submitted, the Chief Executive Officer had stated that the land concerned did not seem to be entered in the register of the concerned Corporation as if he was sitting in appeal to the earlier order passed by his predecessor and was testing the legality of the findings recorded therein. It had further been submitted on behalf of the petitioner that in the khatiyan of the State Government itself, which has been brought on record as Annexure-„2‟ to this application, Nagar Palika, Bhagalpur, stands mentioned which would be sufficient to clear every doubt in this regard. Further, it had been contended that the Respondent No.4 and others have 7 also filed Title Suit No.383 of 2005 against the petitioner, his co-sharer and his vendors which is pending before the Sub Judge-IV, Bhagalpur, with regard to the same property, i.e. land appertaining to khata no.419, khesra nos.204 and 207 of Mouja Sakhichand Ghat, Bhagalpur, for declaration of the entry in the records of rights, holding and jamabandi created or transferred in favour of person or persons regarding the suit property are null and void and not binding upon the plaintiffs and also for restraining the defendants from interfering in the suit property. In view thereof, it was contended that the Chief Executive Officer concerned was not competent to question the legality of the sale deed and the same could only be decided in the aforesaid suit. Counter affidavit has been filed on behalf of the Respondent No.4. It had been submitted on behalf of Respondent No.4 that the land is a “public ghat” and no body has any right to transfer the same. It had also been submitted that the Respondent No.3 had found, during the local inspection, the evidence with regard to the “ghat” being utilized by public for performing “Puja” etc. It was further submitted that the petitioner had filed an appeal against the impugned order before the court of District 8 Judge but the same was dismissed for default. Thus, the petitioner could not raise his grievance before this Court in the present writ application. Learned counsel further contended that the Chief Executive Officer has power to review his earlier order under Section 150 of the Act, however, he had admitted that a Title Suit has been filed by the Respondent No.4 with regard to the self same properties for declaration that the entries and records of rights are null and void and not binding upon him and the same is pending. Learned counsel for the petitioner, in reply, had submitted that on wrong advice he had filed an appeal under Section 152 of the Act, however, no application of review was preferred by the petitioner under Section 150 of the Act. From perusal of Section 152 of the Act, it would be manifest that the forum of appeal is only available to the person who is dissatisfied with the order passed on his objection filed under Section 150 and decided under Section 151 of the Act. Thus, the petitioner did not pursue the appeal which was ultimately dismissed for want of prosecution. Having heard the rival submissions of the parties, this Court is of the opinion that this writ application 9 can be disposed of on the question of law raised on behalf of the petitioner with regard to the power of Respondent No.3 to review either its own order or the order passed by his predecessor in office. It had been admitted on behalf of the parties including the learned counsel appearing for the Bhagalpur Municipal Corporation as well as the State of Bihar that as per the notification, mentioned above, the relevant provision of the Patna Municipal Corporation Act, 1981, would be applicable to Bhagalpur Municipal Corporation. The power of review has been conferred upon the authority under Section 150 of the Act which is quoted as under: “150. Application for review:- (1) any person who is dissatisfied with the amount assessed upon him or 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 Chief Executive Officer or an officer empowered in this behalf by the State Government to review the amount of assessment, or valuation, or to exempt him from the assessment or tax. (2) All such applications containing objections shall be made in writing within thirty days after the publication of the notice referred to in sub-section (1) of Section 149, or after receipt of the notice referred to in sub- section (2) of that section, if such notice is received after the publication of the notice referred to in sub-section (1) of the said section: Provided that the Chief Executive Officer may, it he thinks fit extend the said period of thirty days to a period not exceeding sixty days. 10 It is explicit from the aforesaid provision of law that the Executive Officer or an Officer empowered by the State Government in its behalf has a power to review the amount of assessment or valuation or to exempt a person from the assessment of the tax upon an application filed by him on being dissatisfied with the amount assessed upon him or valuation or assessment of any holding or if he disputes his occupation of any holding or his liability to be assessed. However, in the present case, such person has not filed any application for review. In the case of Daroga Lal (Supra), a Division Bench of this Court has held that even in the case of assessment of any holding also the Chief Executive Officer does not have any power to review the earlier order passed by the Executive Officer in purported exercise of its power under Section 150 of the Act. However, since he has a power of superintendence and control under Sections 60 and 64 of the Act, he can exercise the revisional powers. So far the present case is concerned, the earlier order was also passed by the Chief Executive Officer, i.e., his predecessor in office. Thus, the aforesaid revisional power considered in the case of Daroga Lal (Supra) was also not available to the Respondent No.3 as 11 revisional power can only be exercised by a superior authority not by the same authority. In the case of Bauki Ram (Supra) also, a Bench of this Court has held that the superior authority cannot review its earlier order if there is no specific power to that effect provided in the statute. Even if, it is assumed that this case is covered by Bihar and Orissa Municipal Act, 1922, in that case also, no such power of review is available. Thus, I am constrained to hold that the order passed by the Respondent No.3, as contained in Annexure-“1” is without jurisdiction as he being the statutory authority cannot review either his own earlier order or an order passed by his predecessor as no specific power to that effect has been conferred upon him or provided in the statute. Thus, the order as contained in Annexure-„1‟ is set aside. Accordingly, this writ application is allowed. However, since this writ application has been disposed of on the aforesaid question of law only, it is made clear that this Court has not formed any opinion with regard to the merit of the case. The factum of dismissal of this writ application as also the observations and directions made herein shall not prejudice the concerned court before 12 whom the Title Suit No.383 of 2005 is pending and is being heard. The Title Suit shall be decided upon its own merit in accordance with law. P.S./A.F.R. (Dr. Ravi Ranjan, J)