SUBASH CHAND JAIN Vs. COMMISSIONERS OF THE GIRIDIH MUNICIPALITY

JUDGEMENT

(1.) In this writ application the petitioner prays for quashing the order contained in Annexure 4 dated the 29th May. 1976 passed by the Chairman Giridih Municipality allowing the application for mutation filed by respondent No. 4 for mutation of his name along with his two brothers, namely, respondents Nos. 2 and 3. According to the petitioner holding Nos. 370 and 371 in ward No. 4 of Giridih Municipality was acquired by the joint family of Hazarimal Kishorelal in the name of one Mangi Lal, father of respondents Nos. 2 to 4 by a registered deed dated the 13th February, 1939. It is not disputed that after the aforesaid purchase the said Mangi Lal was mutated in the municipality and municipal taxes were paid. According to the petitioner the municipal taxes were paid by the joint family. It is also stated that with regard to the aforesaid property however the name of Ram Chandra Seth grand-uncle of the petitioner was entered in the Zamindari Sherista and rents were paid in his name and receipts were in the custody of the petitioner. The aforesaid Mangi Lal died some time in 1957 Thereafter, it appears that Tarachamd Jain, father of the petitioner filed an application for mutation of his name in place of the aforesaid Mangi Lal. It appears that respondents Nos. 2 to 4 who were sons of the deceased Mangi Lal also filed an application for mutation of their names in place of their father. The matter was heard and by the order contained in Annexure 1 dated the 27th May. 1,970 passed by the Executive Officer, Giridih Municipality the name of Tarachand Jain was mutated. Being aggrieved by the aforesaid order respondents Nos. 2 to 4 preferred a writ application before the High Court at Patna which was numbered as C. W.J. C. 1276 of 1970. The said writ application however was dismissed by the order dated 2nd July. 1970. A copy of the order has been made Annexure 5 to the supplementary affidavit filed in this case. The said copy shows that the application was summarily dismissed with the observation that the writ petitioner viz. Respondents 2 to 4 could institute a suit for establishing their right if such a suit would lie. It appears that thereafter respondents Nos. 2 to 4 did not choose to file any suit and kept silent in the matter Some time in 1971 the petitioner applied for mutation of his name in place of his father claiming title in the holdings in question by virtue of second partition held between the members of the families of the branch of Shri Tarachand Jain. This application was allowed by order dated the 4th April, 1973 by the Chairman of the Giridih Municipality, a copy of which has been made Annexure '2' to the writ application. After a lapse of more than one year respondent No. 4 filed an application for mutation of his name along with the name of his two brothers respondents 2 and 3 on the ground that previously his father was mutated with regard to the holdings in question till 1970 when his name was removed by the Municipality and the name of Tarachand Jain father of the petitioner was substituted. In the said petition he has stated that after the death of their father he along with other brothers have become owners and their names should be mutated in place of their father and the said application has been made Annexure 3 to the writ application. After the said application was filed the matter was heard, ultimately by order dated the 29th May, 1976, the Chairman of the Giridih Municipality directed mutation of the names of respondents 2 to 4 against holdings in question. Being aggrieved by the said order the petitioner has preferred the present writ application.

(2.) A counter-affidavit has been filed on behalf of respondent No. 1 Commr. of the Giridih Municipality through the Chairman. It appears on reading the said counter-affidavit that respondent No. 1 has supported the order contained in Annexure 4 dated the 29th May, 1976 and has stated that the Chairman rightly passed the said order on the materials and evidence available before the Chairman. Another counter-affidavit has been filed on behalf of respondents 2 to 4 challenging the allegations made in the writ petition. In that counter-affidavit they have taken the stand similar to respondent No. 1 that the impugned order contained in Annex. 4 is a valid order and cannot be set aside by this Court.

(3.) Mr. Brajkishore Prasad No. 2, learned counsel appearing on behalf of the petitioner contended that the impugned order contained in Annexure 4 dated 29-5-1976 having been passed by the Chairman of the Giridih Municipality is nullity and without jurisdiction, as the Chairman of the said municipality could not have passed the order of mutation on the application filed by respondent No. 4 in view of the fact that the Executive Officer of the Municipality has already been appointed under Section 37B of the Bihar and Orissa Municipal Act 1922 (hereinafter to be called as the Act) which enumerates the power of the Executive Officer of the Municipality. Under Clause (a) of the said section the Executive power for the purpose of carrying the administration of the municipality shall, subject to the provisions of this Act and of any rules and bye-laws made thereunder and the general control of the commissioners at a meeting, vests in the Executive Officer. It is not disputed at the Bar that now there is an Executive Officer for the Giridih Municipality and the said Executive Officer has power to correct any assessment list under Section 107 of the Act but the argument of Mr. Govind Pd. appearing on behalf of respondent No. 1, who also argued the case for respondents Nos. 2 to 4 on instruction received from the learned counsel appearing for the said respondents, is that the application by respondent No. 4 having been filed under Section 108 of the Act before the Chairman the same could be validly entertained and disposed of by the Chairman under that very section namely, Section 108. His farther argument is that the said section not having been mentioned in the 5th Schedule of the Act the Chairman did not cease to have the jurisdiction to entertain such application. In order to appreciate the argument raised by the learned counsel for the parties it will be relevant to quote the relevant portion of Section 107 of the Act which reads thus :