IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6898 of 2003 MD.HASIM S/o Md Quashim resident of Mohalla Shakmat Kalan P.S. Bihar Dist. Nalanda Petitioner Versus 1. THE STATE OF BIHAR through Commissioner, Urban Development, Govt. of Bihar, Patna 2. Nagar Parishad, Biharsharif (Nalanda) through its Executive Officer 3. The Executive Officer, Nagar Parishad, Biharsharif, Nalanda 4. Md Nasim 5. Md Hasib 6. Md Assim all sons of late Md Quashim resident of Mohalla Shakmat Kalan P.S. Bihar Dist. Nalanda Respondents ----------- For the petitioner: M/s Mahendra Pd. Bhartee S.K.Bhartee For the State: Kameshwar Pd. Gupta ,SC V ----------- 3 12.08.2009 Heard learned counsel for the petitioner and learned Standing Counsel V for the State. None appeared for respondent nos.4, 5 and 6 despite service of notice and though respondent nos. 5 and 6 have appeared by filing vakalatnama. It is made clear that the State has earlier received notice on behalf of respondent nos. 1 to 3 which includes Nagar Parishad, Biharsharif which is now a Municipal Corporation but no counter affidavit has been filed on behalf of the respondents till date. The writ petitioner is aggrieved by the order dated 5.5.2003 passed by respondent no. 3, whereby his petition for mutation of his name in place of his mother with regard - 2 - to portion of Holding has been refused. The property in question Holding no.924(old) 854 (new), ward no.7 (old) 12(new) originally belonged to one Rabina Khatoon who distributed the Holding through a Khangi Taksimnama between her four sons on 15.6.1999 itself. The petitioner filed a petition under section 108 (2) of the Bihar and Orissa Municipal Act, 1922 (hereinafter referred to as „the Act‟), wherein the Executive Officer has been empowered under section 107(i)(b) of the Act to pass order regarding mutation of holdings. It is submitted that one of the brothers supported the case while two of them opposed on the ground that the aforesaid partition was not actually affected upon and the petitioner was not in possession of the part of the property rather the same remained vacant one. The Executive Officer concerned had found that part of the Holding which had been given to the petitioner was completely vacant and was not in exclusive possession of the petitioner. Therefore, he refused to pass any order of mutation in favour of the petitioner and held that he may move before the court of competent jurisdiction for remedial measure. - 3 - Learned counsel for the petitioner submitted that the approach of the authority concerned was wholly mis- conceived inasmuch as once the authority had come to the knowledge that owner of the holding has died, it was duty bound to find out as to who, in his opinion, had succeeded the owner. The holding could not have been allowed to remain in the name of a dead person. It had also been submitted that the mutation of a person in the holding does not create any right, title or interest upon that property and such order is always subject to challenge before the civil court of competent jurisdiction. In support of his submission learned counsel placed reliance upon a decision in the case of Kamini Devi and another vs. Chairman of Buxar Municipality & another rendered by a Full Bench of this Court reported in AIR 1967 Patna 96. It would be appropriate to quote relevant passage there from under: “Lastly it was contended by Mr Ghosh that in view of the finding of the Chairman to the effect that all the three alleged heirs of Ramdhani Ram, namely, petitioner no.1,petitioner no.2 and respondent no.2 were in joint occupation of the holding in question, he had no jurisdiction to direct the mutation of the name of respondent no.2 only. This argument also is not sustainable. I have already referred to two sub-sections of Section 100. Sub- section (1) says that tax assessed on the annual value of the holding is payable only by the owner of - 4 - the holding, and sub-section (2) of that section says that latrine tax is payable by the person in actual occupation of the holding. If the assessment list had dealt only with the person liable to pay latrine tax, the finding of the Chairman as to who was in actual occupation of the holding would be relevant. But here it is not denied that the assessment list dealt with the liability to pay other taxes which were based on the annual value of the holding. These are payable only by the owner, and when the previous owner is dead, the Chairman by some sort of summary inquiry, has to ascertain who is in his opinion is the succeeding owner, either by inheritance or otherwise to whom the title of the deceased is transferred. The last portion of his finding quoted earlier shows that he was of the view that the claim of the daughter, Jasoda Devi, respondent no.2, was on a sound footing. Hence he directed mutation of her name. The question as to who is in occupation of the holding is not material for the purposes of this case.” On the basis of the aforesaid decision, it was urged that the authority must ascertain as to who had inherited the property after death of owner and should record a finding thereupon. It had not only to look into the fact as to who was in actual possession of the property but should also examine as to who had succeeded the previous owner. Learned counsel appearing for the State could not show as to how a holding could have been allowed to continue in the name of a dead person. In my opinion also respondent no.3 should have - 5 - examined the matter for the purposes of arriving at a definite conclusion as to who had really succeeded the owner with regard to the property in question and thereafter should have recorded a positive finding. In view of the above, I set aside the impugned order dated 5.5.2003 and remit back the matter to respondent no.3 to decide the matter afresh, after hearing the parties, in accordance with law. shahid (Dr. Ravi Ranjan, J)