CUTTACK MUNICIPALITY Vs. COMMISSIONER CUM SECRETARY

JUDGEMENT

(1.) CUTTACK Municipality is the petitioner against a reversing - judgment of the District Judge, Cuttack. Money Suit No. 253 of 1977 was filed against the Secretary, Wakf Board, Orissa, for realization of tax of holding No. 362A of Ward No. 19 amounting to Rs. 1203.24 paise in respect of the years 1974 -75, 1975 -76 and 1976 -77. Defendant denied the liability. The trial Court decreed the suit on the finding that the defendant was the owner but the same was reversed by the appellate Court.

(2.) THE assertion in the plaint is that the defendant as owner is liable to pay tax. The defendant has denied specifically the ownership of the holding. In order to be successful in the suit onus lies on the plaintiff to prove that the defendant is the owner. In discharge of the onus, the plaintiff has adduced evidence that Board of Wakf, Orissa, is the owner. The defendant is the Commissioner -cum -Secretary of such Wakf Board. The Board of Wakf being established under the Wakf Act, 1954 (Act XXIX of 1954) is a body corporate under section 9(2) which is to sue and be sued in the said name. This Court has held in I. L. R, (1977) 2 Cut. 236 : Municipal Council, Berhampur v. Rajani Kanta Padhi, : '...A corporate body must be sued qua a corporate body and no officer of that body can in law be regarded to be representing a corporate body...' Therefore, the suit not being against the Board of Wakf, any decree passed against the Commissioner -cam -Secretary of the Wakf Board cannot bind it. As the Municipality claims that the Wakf Board is the owner, suit against the Secretary is incompetent. On this ground, the decision of the appellate Court dismissing the suit cannot be interfered with.

(3.) IN view of the aforesaid findings, the other points raised by Mr. Rath, the learned counsel for the petitioner -Municipality, and Miss. Mira Ghose, the learned counsel for the defendant -opposite party need not be answered.