TETAR MANDAL Vs. EXECUTIVE OFFICER

JUDGEMENT

(1.) The petitioners in this application under Articles 226 and 227 of the Constitution of India have prayed for the issuance of a writ of certiorari or any other appropriate writ quashing the order passed by the Executive Officer, Bhagalpur Municipality, respondent No. 1, on 13-1-1975, a copy whereof has been marked as Annexure 3 to the writ petition. By the impugned order, the names of respondents 2 and 3 have been mutated in the Municipal Register in place of the petitioners whose names stood already entered therein after striking out their names from the Municipal records. The petitioners challenge this order as being without jurisdiction.

(2.) The relevant facts are short. The property in dispute is the premises on holding No. 8 on Rashbihari Lane in Muhalla Mundichak falling within ward No, 2, but at present situate in Ward No, 11, circle No. 3 of the Bhagalpur Municipality. The land comprised in the holding originally belonged, according to the admitted case, to Mahanth Harinandan Das. According to the petitioners, they had been inducted by him on this land more than 50 years ago presumably under a deed of settlement in perpetuity. The petitioners after having been put in possession of the land claimed to have constructed their houses on this holding long long ago and they have been residing therein, with their respective families ever since the houses were constructed. The name of Mahanth Harinandan Das, however, continued in the assessment register of the Municipality even after the settlement made in favour of the petitioners, but the petitioners claim to have been paying rent, ever since they were inducted to the Municipality and rent receipts in respect thereof used to be granted in the name of Mahanth Harinandan Das through petitioner No. 1 Tetar Mandal. In the year 1960 admittedly Mahanth Harinandan Das died. Since after his death for some years no municipal taxes were paid. Later however, according to the petitioners' case, on being so advised, they filed an application for mutation of their names in the municipal records. The application was registered as case No. AD456/1969-70. On such an application filed fay the petitioners, the Special Officer, Bhagalpur Municipality by his order dated 18-1-1970 directed their names to be mutated and accordingly their names were entered in the municipal records in respect of the holding in question. A copy of the order dated 18-1-1970 has been annexed and marked Annexure 1 to the writ application. In the meantime. however, respondent No. 2 Lakshmi Narain Sah and Sitaram Sah (since dead), who was the father of respondent No. 2 and the husband of respondent No, 3 Prema Devi claimed to have purchased the land in question from one Mahanth Garibanand Das by a sale deed dated 11-6-1967 which was compulsorily registered on 2-8-1971 by the District Registrar as Mahanth Garibanand Das had denied execution of the document and had refused to get it registered. It may be mentioned here that the name of Mahanth Garibanand Das was never mutated in the municipal records after the death of Mahanth Harinandan Das from whom he claimed to have succeeded to the property by virtue of being the Chela of Mahanth Harinandan Das. In the meantime, Sitaram Sah, the father of respondent No. 2 and the husband of respondent No. 3 died. Thereafter on 17-12-1971 respondents 2 and 3 filed an application for mutation of their names by striking out the names of the petitioners before the Special Officer. The case was registered as AD No. 874 of 1971-72. The petitioners having been duly noticed filed an objection. After hearing the parties and examining all such materials as were produced before the Special Officer, he passed an order on 12-6-1972 rejecting the petitions of respondents 2 and 3 and holding that the petitioners' names would continue in the municipal records until there was an adjudication of title and proper declaration by a civil court of competent jurisdiction. A copy of the aforesaid order of the Special Officer has been marked as Annexure 2 to the writ petition. Soon thereafter, it seems, the Special Officer was succeeded by an Executive Officer of the Bhagalpur Municipality, In the year 1973 again an application was filed by respondents 2 and 3 before the Executive Officer, respondent No. 1 for mutating their names. The case was registered as A. D. No. 761 of 1973-74 and by the impugned order dated 13-1-1975 (Annexure 3), respondent No. 1 has reviewed the order of his predecessor-in-office dated 12-6-1972 (Annexure 2). It is the admitted case of the parties that after the order of the Special Officer as contained in Annexure 2, there has been no adjudication of the respective right, title and interest of the parties by any civil court in respect of the holding in question. On the contrary, the stand of the respondents is that respondent No. 2 and his father Sitaram Sah aforementioned had purchased the land from Mahanth Garibanand Das who had succeeded as the spiritual heir of Mahanth Harinandan Das and that in some civil suit not inter partes nor in respect of the holding in question the name of Mahanth Garibanand Das had been substituted in place of Mahanth! Harinandan Das and that, therefore, respondents 2 and 3 were rightly claiming to be mutated and their prayer had been rightly allowed by respondent No, 1.

(3.) On these facts, Mr. Rama Kant Verma, learned counsel for the petitioner raised two contentions. It was submitted in the first instance that the impugned order had been purported to be passed by the Executive Officer under the provision of Clause (b) of Sub-section (1) of Section 107 of the Bihar and Orissa Municipal Act, 1922 (Act VII of 1922)--hereinafter to be referred to as 'the Act'. This he had no jurisdiction to do. It is the common stand of all the parties concerned including that of respondent No. 1 that the impugned order has been passed in the purported exercise of powers under the aforesaid Clause (b),