CHAIRMAN AND THE MUNICIPAL COMMISSIONERS OF THE CHAKRADHARPUR MUNICIPALITY Vs. BISHWANATH JAGATRAMKA

JUDGEMENT

(1.) This application in revision under Section 25 of the Small Cause Courts Act has been filed by the Chairman and the Municipal Commissioners of the Chakradharpur Municipality and it is directed against the judgment and decree passed by the Munsif of Chaibassa exercising Small Cause Court Power in Small Cause Court suit No. 1 of 1969. The Chakradhapur Municipality brought the small cause court suit for recovery of Rs. 285-80 p. from the defendant on account of holding tax in respect of holding No. 2 in Ward No. 1 of the Chakradharpar Municipality for the fourth quarter of 1965-65, first and fourth quarters of 1966-67, first to fourth quarters of 1967-68 and first to third quarters of 1968-69. The defendant denied his liability on the sole ground that he was not the owner of the holding in question, inasmuch as that holding had been transferred to Mewawati Devi by a registered deed of gift dated the 8th of June 1957 by his father. It was alleged by the defendant that after the execution of the deed of gift an application for mutation was duly made, but the same was not acted upon. It was further alleged that Mewawati Devi, the wife of the defendant, had served a notice on the plaintiff's by registered post through hear lawyer for mutation of her name, but that application was also not acted upon. According to the defendant he and his wife had both filed applications against the assessment, but they were neither heard nor were the applications disposed of and so the entire assessment proceeding was void ab initio, and, therefore, the defendant was not liable to pay the tax claimed against him. The learned Munsif upon consideration of the evidence came to the finding that the defendant had proved that his wife Mewawati Devi was the owner of the holding in question and not the defendant. The learned Munsif further held that the holding tax and the Education cess were assessments on the annual value of the holding and were payable by the owner of the holding and, as such, the defendant was not liable to pay the taxes for the period claimed in the suit. Accordingly, he dismissed the suit with costs.

(2.) When this case was placed before a learned Single Judge of this Court it was contented on behalf of the petitioners that since the defendant's name stood in the municipal register as the owner, the trial court erred in dismissing the suit. Reliance was placed on a Bench decision of this Court in Patna Municipal Corporation v. Ladley Saran, 1953 BLJR 214. The learned Single Judge referred the case to a Division Bench as it appeared to him that there was some conflict between the decision in the case referred To above and that in Abrar Ali Khan v Patna City Municipality, (1962) ILR 41 Pat 338

(3.) Mr, Sudhir Chandra Ghose, learned counsel appearing for (the petitioners, contended before us that the application filed by Mewawati Devi for mutation of her name was not in accordance with the provisions of Section 108 of the Bihar and Orissa Municipal Act, 1922 (hereinafter referred to as the Act) and as such it was not entertainable. Section 108 rends as under :