JUDGMENT
Binod Kumar Roy, J.
1. The grievance of the petitioner in this Civil Revision is that while admitting his appeal under Section 152 of the Patna Municipal Corporation Act, 1951, (hereinafter called ‘the Act’), the learned District Judge has been pleased to reject his prayer of stay made through a separate application by the impugned order without assigning any reason.
2. Mr. Chittranjan Sinha, learned Counsel for the petitioner submits that the impugned order being a non-speaking order is vitiated as some reason should have been aassigned while rejecting the prayer of petitioner to stay the realisation of taxes and that in view of the fact that the construction of Hotel in question was not complete and the order of enhancement of tax was made without giving any adequate opportunity of hearing, the entire action of the Municipal authority was void and, thus stay should be granted by me.
3. Mr. Sri Nandan Singh, learned Counsel for the Corporation argues that in view of Section 152(6) of the Act, the learned District Judges lacked jurisdiction to stay further proceeding and that since there is no question of “any irreparable injury to the petitioner in view of the fact that in the event of success, he would be entitled to refund of taxes from the Chief Executive Officer; and that adquate opportunity was given to the petitioner to have his say in the matter, but he himself refused to accept notice of hearing (vide Annexure-C), thus no stay should be granted by me.
4. It is a settled law vide Siemns Engineering and Manufacturing Co. of India Ltd. v. The Union of India and Bhagat Raja v. The Union of India , that on order even in a quasi-judicial proceeding must be speaking one. No reason at all having been assigned, while passing the impugned order in my view it suffers on account of a jurisditional error.
5. Section 152(6) of the Act runs as follows:
(6) The pendency of an appeal under this section shall not operate to delay or prevent the levy and realisation of any tax or instalment thereof payable in respect of any holding according to the order of assessment under appeal, but if by the final decision in the appeal it is determined that such tax or instalment ought not to have been levied or realised in whole or in part, the Chief Executive Officer shall refund to the person from whom the same has been levied or realised, the amount of tax or instalment, or the excess thereof over the amount property leviable in accordance with such final decision, as the case may be or adjust such excess amount against any future demand.
Section 503(1) of the Act runs as follows:
(1) For the purposes of any appeal, inquiry or proceeding under this Act, the High Court and the District Judge, Patna, may exercise all the powers conferred on them by the Code of Civil Procedure, 1908, and shall observe the procedure prescribed in the said enactment so far as it is not inconsistent with the provisions of this Act.
Order XLI, Rule 5(1) of the Code of Civil Procedure runs as follows:
(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
From a bare perusal of the aforesaid provisions it is clear that a District Judge can exercise the same jurisdiction which is vested in an Appellate Court under Order XLI, Rule 5 of the Code of Civil Procedure and may stay execution of relisation of high municipal taxes and I do not see any inconsistency between Section 152(6) of the Act and Order XLI, Rule 5(1) of the Code of Civil Procedure. The Supreme Court had to consider somewhat a similar question in Income Tax Officer v. M.K. Mohammad Kunhi AIR 1969 SC 430 and in Paragraph 8 of its judgment it held “the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction when under the provisions of the Income Tax Act, 1961 or the Income Tax Appellate Tribunal Rules, 1963, powers have not been expressly conferred upon the Appellate Tribunal to stay proceedings relating to recovery of penalty or tax due from an assessee in an appeal by him.” In holding so it also relied upon the following statement occurring in the Eleventh Edition of “Maxwell on Interpretation of Statutes:
When an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as an essentially necessary to its execution. Cui jurisdiction date est, ea quoqe concessa esse vindentur sine guibus jurisdictio explicari non-potuit.
Accordingly, I reject the contention of Mr. Singh that the learned District Judge lacked jurisdiction to grant stay.
6. I may indicate that the Supreme Court in the aforesaid decision had also proceeded to lay down the manner in which the power of stay is to be exercised which runs as follows:
It is needless to point out that the power of stay by the Tribunal is not likely to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue laws. It will only be when a strong prima facie case is made out that the Tribunal will consider whether to stay the recovery proceedings and on what conditions and the stay will be granted in most deserving and appropriate cases where the Tribunal is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue during the pendency of the appeal.
7. There is some dispute as to whether in fact the construction of the alleged Hotel has been completed or not. The learned Counsel for the petitioner contends that for lack of funds the construction of Hotel has not yet been completed and that other Hotels, which are centrally located, (mentioned in Paragraph 9 of the Revision Petition) have been assessed at a much lower valuation which is being disputed by the learned Counsel for the opposite party.
8. Sitting in revision, I am not in a position to adjudicate these questions. The question of irreparable injury is also a question of fact. Be that as it may, in the interest of justice. I feel that the question of stay requires re-consideration by the learned District Judge himself and accordingly, I set aside the impugned order and remit back the case for its reconsideration taking into the dictum laid down by the Supreme Court referred to above. The learned District Judge, may dispose of the Miscellaneous Appeal itself along with the stay matter.
9. With the aformentioned observations and directions, this Civil Revision application is allowed but without costs.