IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 398 (MS) OF 2004 Govind Ram Sahni S/o Late Malik Chand R/o House No. 8/123, Shiv Puri, Kaladhungi Road, Haldwani, District – Nainital. …………Petitioner. Versus 1. Chief Judicial Magistrate, Nainital. 2. Sri Inder Raj Sahni, Proprietor, M/s Malik Chand Govind Ram, A-67, New Sabji Mandi, Bareilly Road, Haldwani, District Nainital. 3. Municipal Board Haldwani, District Nainital, through its Executive Officer. …………Respondents. Sri Manoj Tiwari, Advocate for the petitioners. Standing Counsel for the respondents no. 1. Sri J.C. Belwal, Advocate for the respondent no. 2. & WRIT PETITION NO. 1022 (MS) OF 2004 Nagar Palika Parishad, Haldwani, Kathgodam, through Executive Officer. …………..Petitioner. Versus 1. Chief Judicial Magistrate, Nainital. 2. Govind Ram Sahni, S/o Sri Malik Chander, R/o 8/123, Shivpuri, Kaladhungi Road, Haldwani, District Nainital. 3. Indra Raj Sahni, S/o late Malik Chand, R/o A-67, New Sabji Mandi Bareilly Road, Haldwani, District- Nainital. …………Respondents. Sri Ashish Joshi, Advocate for the petitioners. Standing Counsel for the respondents no. 1. Sri J.C. Belwal, Advocate for the respondent no. 4. Dated: 08.05.2006 Hon’ble Rajesh Tandon, J. Heard counsel for both the parties at length. By the present writ petitions, the petitioners have prayed for a writ of certiorari quashing the order dated 06.05.2004 passed by the Chief Judicial Magistrate, Nainital. Both the petitioner as well as Nagar Palika has challenged the order dated 06.05.2004. Briefly stated, petitioner has claimed himself to be the lessee of the shops bearing No. 383, 384, 381 and 382, which have been leased out by the Municipal Board forty years back. According to the petitioner his name was duly recorded in the municipal record. The petitioner has submitted that the respondent no. 2 has got some signatures on the stamp paper and has written letter to the Executive Officer, Municipal Board for entering the name. The name of the respondent no. 2 was entered in respect of shop No. 383 and 384 as a tenant in the municipal records. Petitioner has further submitted that the municipal Board Haldwani without issuing any notice to the petitioner regarding the changing of the name expunged the name of the petitioner and entered the name of M/s Mallik Chandra Govind Ram as a tenant in respect of Shops No. 383 and 384 by means of order dated 22nd January, 2002. When the petitioner came to know about the said order on 30th April, 2002, they moved an application on 1st May, 2002 before the Executive Officer, Municipal Board, Haldwani, he never consented for the changing of name in the Municipal record and he never surrendered the tenancy rights over the shop in question to any one. The Executive Officer passed the order on 22nd May, 2002 whereby, the petitioner’s application was allowed and his name was restored in the municipal record and it was directed that any amount deposited by the respondent no. 2 shall be refunded. The operative portion of the order is quoted below:- “vr% mijksDr rF;ksa rFkk izHkkjh vf/kdkjh uxjikfydk ifj”kn gY}kuh dkBxksnke dh Lohd`fr fnukad 18-05-2002 ds vk/kkj ij mDr nksuksa nqdkuksa dh fdjk;snkjh iwoZ dh Hkkafr Jh xksfoUnjke lkguh ds uke fujUrj o lrr~ ¼dUVhU;w½ fu/kkZfjr dh tkrh gS rFkk vkids Lrj ls ikfydk dks esa tks /kujkf’k tek dh xbZ gS og vkids }kjk vkosnu djus ij rRdky okil dj nh tk;sxhA^^ Aggrieved by the said order, an appeal was preferred U/s 160 of the U.P. Municipalities Act by the respondent no. 2 The said appeal was allowed and the order dated 22.05.2002 passed by the Executive Officer was quashed. While quashing the order, the Chief Judicial Magistrate has recorded a finding that a perusal of the order i.e. 23-ga, 24-ga and 25-ga shows that in respect of property No. 393 and 384, the rent was paid by the respondent no. 2. Counsel for the petitioner Sri Manoj Tiwari has submitted that no appeal was maintainable under Section 160 of the U.P. Municipalities Act as the appeal lies only against the taxation against the order passed U/s 143 (3) of the U.P. Municipalities Act. Section 143(c) relates to the objection of the entries in the list. Clause (c) relates to the case of any amendment in accordance with the assessment list. Clause (c) of Section 143 of the Municipalities Act is quoted below: “143. Objections to entries in list. – (1) The [municipality] shall at the same time give public notice of a date, not less than one month thereafter, when it will proceed to consider the valuations and assessments entered therein, and in all cases in which any property is for the first time assessed or the assessment is increased, it shall also given notice thereof to the owner or occupier of the property, if known. (2) All objections to valuations and assessments shall be made to the [municipality], before the date fixed in the notice, by application in writing stating the grounds on which the valuation and assessment are disputed, and all applications so made shall be registered in a book to be kept by the [Municipality] for the purpose. (3) The [Municipality], or a committee empowered by delegation in this behalf, or an officer [or Government] or the [Municipality] to whom, with the permission of the [Prescribed Authority] the [Municipality] delegates, and it is hereby empowered so to delegate by resolution, powers in this behalf, shall, after allowing the applicant an opportunity of being heard in person or by agent. (a) investigate and dispose of the objections; (b) cause the result thereof to be noted in the book kept under sub-section (2); and (c) cause any amendment necessary in accordance with such result to be made in the assessment list. Similarly Section 147 of the U.P. Municipalities Act, 1916 relates to the amendment and alteration of the list. Clause (a) relates to entering any name of the person, which ought to have been entered or any property, which has become liable to be taxable after the authentication of the assessment list. Clause (a) of Section 147 of the Municipalities Act is quoted below: “(a) by entering therein the name of any person or any property which ought to have been entered or any property which has become liable to taxation after the authentication of the assessment list; or (b) by substituting therein for the name of owner or occupier of any property the name of any other person who has succeeded by transfer or otherwise to the ownership or occupation of the property; or (c) by enhancing the valuation of, or assessment on any property which [ has become incorrectly valued or assessed or which, by reason of fraud, misrepresentation or mistake, has been incorrectly valued or assessed]; or (d) by re-valuing or re-assessing any property the value of which has been increased by additions or alterations to buildings; or (e) where the percentage on the annual value at which any tax is to be levied has been altered by the [Municipality] under the provisions of Section 136, by making a corresponding alteration in the amount of the tax payable in each case; or (f) by reducing, up0n the application of the owner [or on satisfactory evidence that the owner is traceable and the need for reduction established, upon its own initiative], the valuation of any building which has been wholly or partly demolished or destroyed, or (g) by correcting any [Clerical, arithmetical or other apparent error:] (2) Provided that the [Municipality] shall give at least one month’s notice to any person interested of any alteration which the [Municipality] proposes to make Clauses (a), (b), (c) or (d) of sub-section 91) and of the date on which the alteration will be made. (3) The provision of sub-sections (2) and (3) of Section 143 applicable to the obligations thereunder mentioned shall, so far as may be, apply to any objection made in pursuance of a notice issued under sub-section (2) and to any application made under Clause (f) of sub-section (1). (4) Every alteration made under sub-section (1) shall be authenticated by the signature or signatures of the person or persons authorized by Section 144 and subject to the result of an appeal under Section 160, shall take effect from the date on which the next instalments falls due.” Thus as will appear from the aforesaid provisions that Section 143 as well as Section 147 both deals with the substitution of the name. Section 147 (b) relates to substitution the name of the owner or an occupier and as such 147 deals with the substitution of the name. Clause (c) of the Section 147 relates to the valuation or assessment of any property, which has been incorrectly valued or assessed. Clause (b) relates to revaluing and reassessing of the property, which has been increased by addition or alteration. Therefore, the argument of the petitioner that no appeal is maintainable against the order deleting or entering the name cannot be allowed and the appeal is maintainable before the Chief Judicial Magistrate against the orders passed under Section 143 (b) or 147(b) of the U.P. Municipalities Act. Counsel for the respondent no. 2 has referred the judgment of Zahid Husain Jafri Vs. Additional Commissioner Alld. And Municipal Board, Alld. 1958 ALJ Page 12, where it has been held that since Section 143 and 47 both refers with regard to substitution of names, therefore, the appeal lies under Section 160 of the U.P. Municipalites Act. The relevant observations are quoted below:- “It is true that, the heading appearing above Sec. 160 suggests that, appeals lie against taxation only. But subsec. (1) of Sec. 160 itself shows that, the scope of the section is wider. Sec 160 provides for appeals against an order passed under sub-sec. (3) of Sec. 147 of the Act. Sub-sec (3) of Sec. 147 refers to sub-sec. (2) of Sec. 147. Sub-sec (2) of Secc. 147 covers alterations falling under clause (a), (b) (c) and (d) of sub-sec. (1). We have seen that, substitution of names fallas under clause (b) of Sec. 14&(i). So a decision about substitution of names will be a decision under sub-sec (3) of Sec. 147 of the Act. Originally, there was no tax assessed against the Imambara. But the tax Superintendent noted in his report dated 31-10-1952/17-11-52 that, house No. 284 was assessed to municipal tax. This is, therefore, a case, in which tax was assessed upon annual value of a building and there was an order passed under su-sec (3) of Sec. 147 of the Act, an appeal under Sec. 160 of the U.P. Municipalities Act. The learned Additional Commissioner’s view that appeals are confined to taxation only is not correct.” Allahabad High Court in the case of Ram Bharose Lal vs. State of U.P. and others, R.D. 1990 page 72 where it has been observed as under:- “By now it is well settled that where the dispute is in mutation proceedings which do not adjudicate upon rights or title of the parties, this Court need not interfere under Article 226 of the Constitution. In such matters person aggrieved shall have rider to seek remedy in the appropriate court.” The Apex Court in the case of Smt. Sawarni Vs. Smt. Inder Jaur and others, 1997 (1) All. C.J. 126 has held that mutation does not extinguish or create title nor has presumptive value on the title. It entitles the person to pay land revenue only. The observations of the Apex Courts are quoted below: “Further the lower appellate court has not come to any positive finding that Index Kaur was the daughter of Gurbax Singh. He has been swayed away by the so-called mutation in the revenue record in favour of Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables presumptive value on the title. It entitles the person to pay land revenue only. The observations of the Apex Courts are quoted below: “Further the lower appellate court has not come to any positive finding that Index Kaur was the daughter of Gurbax Singh. He has been swayed away by the so-called mutation in the revenue record in favour of Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation ordered to pay land revenue in question.” Similar view has been taken in the case Bindeshwar Vs. Borad of Revenue and others [2002 (93) R.D. 134]. In view of the above, the appeal is maintainable against the impugned order. However, in view of the observations made above, petitioners have alternative remedy of suit before the Civil Court. Any findings recorded in the suit shall be binding on the parties. However, a suit is pending being Suit No. 34 of 2002 in the Court of Civil Judge, Haldwani. Subject to the aforesaid, both the writ petitions are dismissed. No order as to costs. (Rajesh Tandon, J.) 08.05.2006 Rathour