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PETITIONER: SMT.  SHYAM KISHORI DEVI

       Vs.

RESPONDENT: PATNA MUNICIPAL CORPORATION & ANR.

DATE OF JUDGMENT: 04/02/1966

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. HIDAYATULLAH, M. BACHAWAT, R.S.

CITATION:  1966 AIR 1678            1966 SCR  (3) 466

ACT: Bihar  and  Orissa  Municipal Act, 1922 (B. & O.  Act  7  of 1922),   ss.  107(1)(c),  117(1)  and  386-supersession   of Municipality-  Notifications  appointing officer to  act  as Commissioners  and  as  committee-Enhancement  of  municipal taxes  by such officer and sitting in review  as  Committee- Validity-Incorrect assessment, burden of proof of.

HEADNOTE: On  supersession  of  the  Patna  Municipality,  the   State Government  by  a notification directed an  officer  of  the Municipality  to exercise and perform the powers and  duties of  the  Commissioner under s. 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  the  section.   By  a   later notification,  the  Government directed each  of  the  three persons  mentioned  therein one of whom  was  the  aforesaid officer,  to  exercise  and perform the  powers  and  duties conferred and imposed on Committee 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(1)(c)  of the Act and rejected the review petition under s. 117(1)  of the  Act.   The  appellant  filed  a  suit  challenging  the validity of the order of the officer. HELD : (i) The order of the officer rejecting the objections filed  by  the  appellant and enhancing  the  value  of  the holdings was without jurisdiction. By a later Notification, if it was intended to ’replace  the committee  by  one or other of the three  persons  mentioned therein,  it  would be beyond the powers of  the  Government conferred under the provisions of s. 386(1) (b)   of     the Act.   The effect of this clause is that all the powers  and duties  of the Commissioners conferred and imposed  on  them under  the  various sections of the Act whether  acting  in. committees or individually would be exercised by such person or  persons  as the State Government may  direct.   So,  the committee under s. 117 could have been constituted with  one

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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. To say that when once the Commissioners vacated their office on  supersession it was impossible for them to  nominate  or elect  two  other  taxpayers to  the  committee  within  the meaning  of s. 117(1) would render inoperative all  sections whereunder  powers  were  conferred  or  duties  imposed  on Commissioners,  and would make s. 117(1) unworkable  leading of  the  anomaly  that  the same  officer  who  revised  the assessment would sit in judgment over it. [471 0; 472 A-D] (ii) Under s. 107(1) (c) of the Act, the burden is upon  the Commissioners,  before  they could amend the  valuation  and assessment  already  made, to establish  that  the  previous assessment  was  incorrectly  made  by  reason,  of   fraud, misrepresentation or mistake. [472 G]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeal No. 812 of 1963. 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 Subba   Rao.   J. This appeal by special  leave  raises  the question of the true construction of sub-s. (1) of s. 117 of the  Bihar and Orissa Municipal Act, 1922 (B. & 0. Act 7  of 1922), hereinafter 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 Municipal  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 performed 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 exercise 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 premise$  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

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informing  her  that  the assessment  of  her  premises  was proposed  to  be filed as follows : House-tax  Rs.  262-8-0, Latrine-tax  Rs. 210/- and water-tax Rs. 210/-  per  quarter 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 468 Officer,  but  he rejected the  petition.   Thereafter,  the assessment  list was amended on January 10, 1952,  enhancing the valuation of the holding in question to Rs. 8,400/-  and the quarterly municipal 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 Patna  Municipality  was  made the, 1st  defendant  and  the Administrator  of  Patna, the 2nd  defendant.   The  learned Munsif  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 lay 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 prefer-red 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. 117(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  Court,  it should have held that the condition precedent for  reopening the 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, sought to take 469 a preliminary objection that the suit was not  maintainable. As this question was not raised in any of the Courts  below, we did. not permit him to do so.

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The  first  contention turns upon the  construction  of  the relevant-.  provisions  of  the Act  and  the  Notifications issued by the Government thereunder.  It will be  convenient at  the  outset  to gather the relevant  provisions  at  one place. Section  386.  (1) When an order of  supersession  has  been passed  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  pro-visions  of  this   Act,   be               exercised   and  ’  performed  by   the   Com-               missioners, 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               in exercise of the powers conferred by  clause               (b)  of sub-section (1) of section 386 of  the               said Act, the Governor of Bihar is 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, 1949, reads               Governor  of Bihar is pleased to  direct  that               each of the.,               following officers shall exercise and  perform               all  the  powers.and  duties,  conferred   and                             imposed   on  a  Committee  constitute d   under               sections  117 and 118 of the said Act for  the               purpose    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               Magistrate".               470 Section  116.  (1)  Any  person  who  is  dissatisfied  with the,  .amount  assessed upon him or with  the  valuation  or assessment  of’ any holding, or who disputes his  occupation of any holding or his liability to be assessed; may apply to the  Commissioners  to review the amount  of  assessment  or valuation, or to exempt him from the assessment or tax. Section 117. (1) Every application presented under the  last preceding    section    relating    to    assessment    made under............ section 107............ shall be heard and determined  by a Committee consisting of  two  Commissioners and two tax-payers of the municipality, nominated or elected in  the prescribed manner by the Commissioners at a  meeting and  one servant of the Government not below the rank  of  a Deputy  Magistrate nominated by the District  Magistrate  in

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this  behalf,  provided that no  Commissioner  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. The effect of the relevant provisions in the context of  the facts  of  the  case may be stated thus  :  Where  an  order superseding   a   municipality  has  been  passed   by   the Government, all the Commissioners of the Municipality  shall vacate their offices and their powers and duties, whether at a meeting or otherwise, shall be exercised and performed  by such  person or persons as the State Government may  direct. The  State Government accordingly issued  two  Notifications whereunder  S. N. Sarkar, Assistant Special Officer  of  the Patna  City  Municipality,  was appointed  to  exercise  and perform  the  powers  and duties under s. 107  of  the  Act, among .,others, and each one of the three persons  mentioned in the Notification dated November 21, 1949, to exercise the powers and .perform the functions of the Committee under  s. 117  of the Act.  Pursuant to the said Notifications, S.  N. Sarkar,  functioning  in  the place  of  the  Commissioner,% enhanced  the valuation of the holding of the appellant  and the  assessment  thereof under s. 107(c) ,of the  Act,  and rejected the review petition under s. 117(1) of the Act. The  question is whether he could have validly done so.   It is  not disputed that S. N. Sarkar had jurisdiction to  take action ,under s. 107(c) of the Act, but what is contended is that  he  had  no -jurisdiction to dispose  of  the  review petition under s. 117(1) of the Act.  If the Committee under s.  117 of the Act could have been validly constituted  even after the supersession of the Municipality, ,-S.  N.  Sarkar would not have jurisdiction to hear the review petition, for under  that section it was the function of the Committee  to do  so.   Mr.  Varma  contends  that  after  the  order   of supersession passed by the Government, all the Commissioners vacated their ,offices and thereafter it was impossible  for the Commissioners to 471 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(1)(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  ran thus:               "Every  application presented under  the  last               preceding section relating to assessment  made               under..........  s.  117 ..........  shall  be

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             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  impos- 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. M 10 Sup.Cl/66-17 472 By the Notification issued by the Government on November  21 1949, if it was intended to replace the Committee by one  or other  ,of the three persons mentioned therein, it would  be beyond  its,  powers conferred under the  provisions  of  s. 386(1)(b) of the Act. Under the said clause, the powers  and duties  which  may  under  the  provisions  of  the  Act  be exercised  and  performed  by  the  Commissioners  could  be exercised  and  performed by such person or persons  as  the State  Government may direct.  But it does not  empower  the Government  to  replace persons or  authorities  other  than Commissioners  by  persons nominated by it.   But  the  said Notification may be reasonably confined to the scope of  the authority  of the Government.  If so confined,  it  replaced only  the  two  Commissioners  by  the  person  or   persons mentioned therein. The argument of the learned counsel for the respondents,  if accepted,  would lead to an anomaly.  ’Section 117(1)  would become  unworkable  and  the same officer  who  revised  the assessment would :sit in judgment over it. For the foregoing reasons we hold that the order made by  S. N.  Sarkar rejecting the objections filed by  the  appellant and  enhancing  the  valuation of the suit  holding  to  Rs. 8,400/- and fixing the quarterly municipal taxes at Rs. 882- 8-0 was without jurisdiction. There  are  also  merits in the  second  contention  of  the learned   counsel   for  the  appellant.    The   periodical revisional  assessment of the premises was made in the  year 1950 after making the necessary enquiry.  It was altered  on January  10,  1951, under s. 107(1)(d) ,of the  Act  on  the ground that the value had increased by additions made by the owner  to  the premises.  The impugned revaluation of  the building and th assessment were made in the year 1952 ,under s. 107(1)(c) of the Act, which reads               "The Commissioner may from time to time  alter               or  amend  the assessment list in any  of  the               following ways :               (c)   by   enhancing  the  valuation  of,   or

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             assessment  on,  any holding  which  has  been               incorrectly  valued or assessed by  reason  of               fraud, misrepresentation or mistake." Under this section, the burden is certainly upon the Commis- sioners  before  they  could amend  the  valuation  and  the assessment  already  made  to establish  that  the  previous assessment  was  in-correctly  made  by  reason  of   fraud, misrepresentation or mistake.  The High Court said that  not a word had been said in the evidence adduced by the  parties that  the  rental taken into consideration  by  the  Special Officer while making the re-assessment in 1952 did not exist at  the time of the periodical revisional assessment.   This observation  was made on the assumption that the burden  was upon  the  assessee.   Indeed, when the  appellant  filed  a petition in                             473 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   periodical 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. 474