SMT. SHYAM KISHORI DEVI

PATNA MUNICIPAL CORPORATION & ANR.

February 4. 1966

(K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACHAWAT, JJ.]

Bi/uJr and Orissa Municipal Act, 1922 (B. & 0. Act 7 o/ 1922), a. 107(l)(c). 117(1) and 38&-suptrsersion of Municipaliry-No1ific01/ons appointing ofjicr to act as Commissioners and as commJttt~Enhancenz1m of municipal taxts by such officer and si11i11g in uview 4' Committtt-V alidiry-Incorrtct a.rstssmmt, burdt" o/ proof o/.

On supersession of the Patna Municipality, the Stale Oo\-emment by a notification directed an officer of the Municipalily to exercise and perform tile powers and duties of tho Commissioner under a. 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 tbe section. By a later notiftcation, the Government directed each of tho three per.ons

mentioned therein-one of whom was the aforesaid officer, to exercise and 11erform the powers and duties conferred and imposed on Comminee 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(l)(c) of the Act and rejected the re'l'!ew petition under a. 117(1) of the Act.

Tho appellant llled a auit challenging the validity of the order of the officer.

HELD : (i) The order or the officer rejecting the objections filed by the appellant and enhancing the value of the holdings was without jurisdiction.

By a later otification, if it was intended to replace the committee by one or other of the throe persons mentioned therein. it would be beyond the powers ot the Government conferred under the provision• or •. 386(1)

(b) of !he Act. The effect of this clause is that all the powers and duties of the Commissioners conferred and imposed on them under the vario111 sections of the Act whether act:ng in oommittees or individually would be exercised by such person or per.tons as the Slate Government may direct.

So, the committee under s. 117 could have been constituted with one or more of the three per.; ons nominated by the Government under s. 386( I)

(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 vaca1ed their office on superaession it was impossible for them to nominate or elect two other tax-payers to the commitee within the

meaning of s. 117(1) would render inorerative all sections whereundor powers were conferred or duties imposed on Commissioners, and would make s. 117 (I) unworkable leading to the anomaly that the same officer wbo revised the assessment would sit in judgment over It. [471 O; 472

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(ii) Under s. 107(1 )(c) of the Act, the burden ia upon the CommD- 1ioners, before they could amend the valuation and assessment already made, to establish that the previous assessment was incorrectly made by

r-ason. of fraud. mis-rcprcscntaion or mistake.

(472 G] C!vn. A.Pl'el.UTB JURISDICTION : Civil Appeal No. 812 or 1963.

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SHYAM KISHORI v. MUNIC. CORP. (Subba Rao, I.) 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

Sobba Rao. J. This appeal by special leave raises the question of the true construction of subs. (!) of s. 117 of the Bihar and Orissa Municipal Act, 1922 (B. & 0. Act 7 of 1922), herein after 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 Munici pal 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 performec! 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 exer

cise 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 premises 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 informing her that the assessment of her premises was proposed to be fixed as follows : House-tax Rs. 262-8-0, Latrine-tax

Rs. 210/· and water-tax Rs. 210/· per qarter 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

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(1966)3 S.C.R.

Officer, but he rejected the petition. Thereafter, the asseasmcnt list was amended on January 10, 1952, enhancing the valuation of the holding in question to Rs. 8,400/- and the quarterly munici-. pal 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 Patm1 Municipality was made the 1st defendant and the Administrator of Patna, the 2nd defendant.

The learned M unsif 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 Jay 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 preferred 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. ll 7(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 C<iurt, it should have held that the condition precedent for reopening tlie 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, souglit to take

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SHYAM KISHO!ll v. MUNIC. CORP. (Subba Ran, I.) 469"

a preliminary objection that the suit was not maintainable. & this question was not raised in any ©f the Courts below, we did_ not permit him to do so.

The first contention turns upon the construction of the relevantprovisions of the Act and the Notifications issued by the Govern-. ment thereunder. It will be convenient at the outset to gather the - relevant provisions at one place.

Section 386. (!) When an order of supersession has. beenpassed 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 provisions of this Act, be exercised and performed by the Commissioners, 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 : > ••

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in exe; i;~ -f th; p~~~;~ -~~~~~;~; i by. ~I~~~. (b). f ~b:~~ti~~ (I) of section 386 of the said Act, the Governor of Bihar is E 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 F 1949, reads : '

.. the G~~~;~~; -f.Blh~;· is' 'pi~sd i~· di~ci' tht e~h -f th~.

followin~ officers shall execise and perform all the powers. and duties, conferred and imposed on a Committee constituted under sections 117 and I I 8 of the said Act for the parpose 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 Magist~ rate".

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SllYAM KISHORE v. MUNIC. CORP. (Subba Rao,!.) 47 l

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{l){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 run thus:

"Every application presented under the last preceding section relating to assessment made under ....••.... s. I 17 .......... shal be 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 imp')S 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. ' MlOSup.CI/66-17

SHYAM KISHORE v. MUNIC. CORP. (Subba Rao, J.) 473

A 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 periodi- 8 cal 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.