IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12916 of 2004 1.Smt.Hemlata W/o late Dr.Brahmanand Prasad 2.Shri Alok Kumar Prasad S/o late Dr.Brahmanand Prasad 3.Shri Vivekanand Prasad S/o late Dr.Brahmanand Prasad All are residents of ‘Ram Bhawan’ New Dak Bunglow Road, P.S.-Gandhi Maidan, Patna, Dist.-Patna ……. …….. Petitioners Versus Chief Executive Officer, Patna Muncipal Corporation. Patna ……. …….. Respondent ----------- For the petitioners: Mr. Alok Kumar Prasad (in person) For the Corporation: Mr.Sanjay Prakash Verma -------- 6. 28.6.2011. The prayer made in the writ petition is for quashing the order dated 9.7.2004 passed in Objection Case No.938 of 1996 as contained in annexure-5 to the writ petition by Chief Executive Officer, Patna Municipal Corporation whereby and whereunder the holding no.783/383 situated near Dak Bunglow Road in the town of Patna has been ordered to be assessed for the purpose of holding tax to be situated on main Dak Bunglow Raod. Further prayer of the petitioner is for directing the respondents for modification, correction and adjustment of tax already paid by them. It is worthy to mention herein that the petitioners had moved earlier before this court in C.W.J.C. No.12959 of 1996 against assessment order dated 29.4.1995 issued by the then Assistant Administrator, New Capital Division, Patna Municipal Corporation which was disposed of by order dated 27.7.1998 with a direction to the respondent to decide the Objection Case No.938 of 1996 within a period of three months from the date of production of a copy of this order. The aforesaid time limit had been fixed with the consent of the parties and, therefore, they were directed to co- operate in disposal of the objection within the said time frame. 2 The contention of the petitioner is that they were served with assessment order dated 29.4.1995 on 8.5.1995 issued by Executive Officer, New Capital Division, Patna Municipal Corporation wherein holding no.783/383 was classified as Prime Main Road. The petitioner disputed on the situation of holding and thus filed an objection which was numbered as Objection Case No.938 of 1996. According to the petitioner on 4.10.1996 a hearing was held in the said objection and the then Chief Executive Officer ordered to the Executive Officer, New Capital Division to inspect the site and give a report whether the holding in question is on the flank of the road or inside a lane. When no hearing was held even after submission of the said report dated 9.11.1996 then the petitioner filed the aforesaid C.W.J.C. No.12959 of 1996. The petitioner submits that thereafter in July, 1997 a distress warrant was issued for recovery of dues against these petitioners. It is further submitted that by order dated 29.9.1997 passed in C.W.J.C. No.12959 of 1996 petitioners were granted stay of distress warrant. As stated above, the writ petition was disposed of by order dated 27.7.1998. Further contention of the petitioner is that the petitioner filed a petition on 4th August, 1998 before the Administrator, Patna Municipal Corporation praying therein that the petition was being filed in continuation of other objection filed earlier and on the assessment of holding in question the order was to be made on the basis of category other than main road and prime main road. It is further submitted that when no hearing was held till December, 1998 the petitioner filed a fresh writ petition being 3 C.W.J.C. No.161 of 1999 on 6.1.1999 for expediting objection case. By order dated 3.7.2003 the said C.W.J.C. No.161 of 1999 was dismissed as withdrawn. The petitioner further submits that he had also filed M.J.C.No.1717 of 2002 for initiating a contempt against respondents for violating the order passed in first writ petition i.e. C.W.J.C. No.12959 of 1996. It is submitted at Bar that the said M.J.C. petition was dismissed by this court as respondents had already passed the impugned order as contained in annexure-5 to the present writ petition on 9th July, 2004. Mr. Alok Kumar Prasad appearing in person submits that the order dated 9th July, 2004 is bad for the following reasons. (a)The order impugned is a non-speaking order and evidence brought on record have not been considered. (b)Two invalid notices dated 6.7.2004 and 7.7.2004 as contained in annexures-6 and 7 were served upon him (c)The notices so issued upon petitioners were in violation of principle of natural Justice. Thus, according to petitioners on the aforesaid grounds the order impugned dated 9.7.2004 may be declared to be void. On the other hand, Mr.Sanjay Prakash Verma learned counsel appearing on behalf of the respondent-Corporation relied upon the statements made in the counter affidavit which has been filed in this case. He submits that notices were duly served upon petitioners of this case and they were having full knowledge of the proceeding of the case. Learned counsel for the respondent further submits that petitioners deliberately failed to participate in the 4 proceeding and the Chief Executive Officer himself made site inspection on 8.7.2004 by serving prior notice to petitioners and after giving proper opportunity to petitioners a reasoned order was passed by the Chief Executive Officer of the respondent-Corporation on 9.7.2004. Learned counsel for the respondent further submits that under the Patna Municipal Corporation Act, 1951 a provision of appeal has already been prescribed under section 152 of the Act. Hence, he submits that if petitioners were dissatisfied with the order passed on their objection they may file an appeal before the District Judge in terms of section 152 of the Patna Municipal Corporation Act, 1951. Learned counsel for the respondent further submits that with effect from coming into force of Bihar Municipal Act, 2007, Patna Municipal Corporation Act, 1951 has been repealed. He submits that even under the Municipal Act there is a provision for appeal before the District Judge under section 143 of the Act. Having heard learned counsel for the parties, I am of the view that when there is effective statutory remedy available to petitioners, they should have first availed remedy of appeal under the Act instead of challenging the same before this court. In that view of the matter, I decline to interfere with the dated 9.7.2004 as contained in annexure-5 to the writ petition. However, liberty is granted to petitioners to challenge the impugned order dated 9.7.2004 passed by the Chief Executive Officer, Patna Municipal Corporation in appeal before the learned District Judge concerned and if such an appeal is filed with petition for condoning delay within a period of one month, the learned District Judge would consider the same taking into 5 account the fact that the writ petition was preferred challenging the aforesaid order before this court in 2004 itself and the same remained pending for years together. With above observation and direction, the present writ petition is disposed of. Md.S. ( Ashwani Kumar Singh, J.)