{"id":175672,"date":"2003-07-07T00:00:00","date_gmt":"2003-07-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rai-vimal-krishna-ors-vs-state-of-bihar-ors-on-7-july-2003"},"modified":"2016-04-07T18:58:38","modified_gmt":"2016-04-07T13:28:38","slug":"rai-vimal-krishna-ors-vs-state-of-bihar-ors-on-7-july-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rai-vimal-krishna-ors-vs-state-of-bihar-ors-on-7-july-2003","title":{"rendered":"Rai Vimal Krishna & Ors vs State Of Bihar & Ors on 7 July, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rai Vimal Krishna & Ors vs State Of Bihar & Ors on 7 July, 2003<\/div>\n
Bench: Ruma Pal, B.N.Srikrishna.<\/div>\n
           CASE NO.:\nAppeal (civil)  8263 of 2001\n\nPETITIONER:\nRai Vimal Krishna & Ors.\t\t\t\t\t\n\n\nRESPONDENT:\nVs.\n\nState of Bihar & Ors.\t\n\n\nDATE OF JUDGMENT: 07\/07\/2003\n\nBENCH:\nRuma Pal & B.N.Srikrishna.\n\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
RUMA PAL, J\t<\/p>\n
This case relates to the assessment of the appellants’ <\/p>\n
holdings in Patna under the Patna Municipal Corporation Act, <\/p>\n
1951 (hereinafter referred to as the Act).<\/p>\n
A brief survey of the relevant provisions of the Act is <\/p>\n
necessary before considering the facts of the case since the <\/p>\n
appellants’ grievances are that the provisions of the Act have <\/p>\n
not been followed in assessing the appellants’ properties to tax.<\/p>\n
        The Act, which came into force on 15th August 1952, was <\/p>\n
passed to consolidate and  amend the law relating to the <\/p>\n
municipal affairs of the town and suburbs of Patna.  Section <\/p>\n
123 of the Act allows the Corporation, with the previous <\/p>\n
approval of the State Government, to impose various taxes and <\/p>\n
fees.  We are concerned with clauses (a), (b) and (c) of section <\/p>\n
123 which provide for the imposition of property tax, water tax <\/p>\n
and latrine tax on holdings situated within Patna – the tax being <\/p>\n
assessed on the annual letting value.  Section 130 provides <\/p>\n
that the annual value of a holding shall be deemed to be the <\/p>\n
gross annual rental at which the holding may reasonably be <\/p>\n
expected to let.  This however is subject to rules that may be <\/p>\n
prescribed by the State Government.  Any tax which is <\/p>\n
assessed on the annual value of a holding, other than the <\/p>\n
latrine  tax or drainage tax, is payable by the owner of the <\/p>\n
holding within the Corporation.  The latrine or drainage tax is <\/p>\n
payable by the persons in actual occupation of  such holdings.   <\/p>\n
(Section 132 (1), (2)).\n<\/p>\n
Section 133 provides for the preparation of a Valuation <\/p>\n
List in four stages: — (I) determination to impose a tax to be <\/p>\n
assessed on the annual value of holdings (II)  inquiry to be held <\/p>\n
by the Chief Executive Officer (III) the determination of the <\/p>\n
annual value of all holdings and (IV) the entry of the value in a <\/p>\n
valuation list.  The percentage at which tax is payable is fixed <\/p>\n
under section 136 by the Corporation on the basis of reports <\/p>\n
submitted by the Chief Executive Officer and the Standing <\/p>\n
Committee.  This relates to stage (I) of section 133.       For the <\/p>\n
purposes of stage (II) the Chief Executive Officer may require <\/p>\n
owners or occupiers, or both, of holdings to furnish him with <\/p>\n
returns of the rent or annual value thereof and such other <\/p>\n
particulars as he may require for the preparation of the <\/p>\n
valuation list.  The Chief Executive Officer is also empowered to <\/p>\n
inspect or cause any holding to be inspected and measured, if <\/p>\n
necessary,  after giving notice to the occupier.  (Section 134).              <\/p>\n
The preparation of the Assessment List follows  the Valuation <\/p>\n
List.  This is done under section 137 which also sets out the <\/p>\n
particulars which must be contained therein namely:<\/p>\n
(a)\tthe name of the street in which the <\/p>\n
holding is situated.\n<\/p>\n<\/p>\n
(b)\tthe number of the holding on the <\/p>\n
register;\n<\/p>\n<\/p>\n
(c)\ta description of the holding;\n<\/p>\n<\/p>\n
(d)\tthe annual value of the holding;\n<\/p>\n<\/p>\n
(e)\tthe name of the owner and occupier;\n<\/p>\n<\/p>\n
(f)\tthe amount of tax payable for the year;\n<\/p>\n<\/p>\n
(g)\tthe amount of quarterly instalment; and<\/p>\n
(h)\tif the holding is exempted from <\/p>\n
assessment, a notice to that effect.\n<\/p>\n
  Both the Valuation and the Assessment Lists should <\/p>\n
ordinarily be prepared once in every five years under section <\/p>\n
138 (1).  In terms of the proviso to section 138 (1) “in between <\/p>\n
the two general assessments, the State Government may, on <\/p>\n
the recommendation of the Corporation, authorise it  to prepare <\/p>\n
a fresh assessment list in respect of any specified area within <\/p>\n
the Corporation”.  Every valuation and assessment list is, under <\/p>\n
Section 138(2), valid “from the date on which the list takes <\/p>\n
effect in the Corporation and until the first day of the quarter <\/p>\n
next following the completion of a new list”.  This is subject to <\/p>\n
any alteration which may be made under Section 139 and to <\/p>\n
the result of any objection to the valuation or assessment by <\/p>\n
any person under section 150.\n<\/p>\n
       The next relevant provision is section 149.  Since the main <\/p>\n
plank of the appellants argument is based on this section it is <\/p>\n
quoted verbatim:\n<\/p>\n
“149. Publication of notice of assessment – <\/p>\n
(1)  When the assessment list mentioned in <\/p>\n
section 137 has been prepared or revised, the <\/p>\n
Chief Executive Officer shall sign the same, <\/p>\n
and shall give public notice, by beat of drum <\/p>\n
and by playcards posted in conspicuous <\/p>\n
places throughout Patna, or when any part of <\/p>\n
Patna has been assessed, then in that part of <\/p>\n
Patna, where the said list may be inspected.<\/p>\n
(2)  The Chief Executive Officer shall also in <\/p>\n
all cases in which any property is for the first <\/p>\n
time assessed or the assessment is increased <\/p>\n
give notice thereof to the owner of the <\/p>\n
property.”\n<\/p>\n
This section envisages that the assessment list which has <\/p>\n
been prepared or revised, must be signed by the Chief <\/p>\n
Executive Officer.  After this the Chief Executive Officer is <\/p>\n
required to give public notice of the Assessment List.  The <\/p>\n
mode of giving public notice is “by beat of drum” and “by <\/p>\n
placards”, the latter of which is required to be posted in <\/p>\n
conspicuous places throughout Patna.  It needs to be <\/p>\n
emphasised that the section also provides for  assessment of a <\/p>\n
part of Patna, in which case the placards are required to be <\/p>\n
posted in conspicuous places in that part.  The object of the <\/p>\n
publication appears from the last part of sub section (1) of <\/p>\n
section 149 and that is so that “the said list may be inspected”.<\/p>\n
  We may mention here that the question which arises for <\/p>\n
consideration in connection with this section is whether the <\/p>\n
mode of giving public notice of the assessment list is mandatory <\/p>\n
or directory.  According to the appellant the mode is mandatory. <\/p>\n
They have sought to buttress their argument by referring to <\/p>\n
section 150 which reads:\n<\/p>\n
“150. Application for review.- (1) Any person <\/p>\n
who is dissatisfied with the amount assessed <\/p>\n
upon him or the valuation or assessment of <\/p>\n
any holding, or who disputes his occupation of <\/p>\n
any holding, or his liability to be assessed, <\/p>\n
may apply to the Chief Executive Officer or an <\/p>\n
officer empowered in this behalf by the State <\/p>\n
Government to review the amount of <\/p>\n
assessment, or valuation, or to exempt him <\/p>\n
from the assessment or tax.\n<\/p>\n
(2)  All such applications containing objections <\/p>\n
shall be made in writing within thirty days after <\/p>\n
the publication of the notice referred to in sub-<\/p>\n
section (1) of section 149, or after receipt of <\/p>\n
the notice referred to in sub-section (2) of that <\/p>\n
section, if such notice is received after the <\/p>\n
publication of the notice referred to in sub-<\/p>\n
section (1) of the said section.\n<\/p>\n<\/p>\n
     Provided that the Chief Executive Officer <\/p>\n
may, if he thinks fit extend the said period of <\/p>\n
thirty days to a period not exceeding sixty <\/p>\n
days”.\n<\/p>\n<\/p>\n
         It is pointed out that the period of limitation for filing an <\/p>\n
application for review under this section is computed from the <\/p>\n
date of publication of the notice.  An owner gets an extended <\/p>\n
period of limitation provided he receives the notice under sub <\/p>\n
section (2) of section 149 after the publication.  Thus,  <\/p>\n
publication must take place.\n<\/p>\n
          If objections to the valuation and assessment lists are <\/p>\n
filed under Section 150, they are required to be disposed of by <\/p>\n
the Chief Executive Officer after giving the objector an <\/p>\n
opportunity of being heard under section 151.  Sub-section (3) <\/p>\n
of section 151 requires that when the objection has been <\/p>\n
determined, an order passed on such objection shall be <\/p>\n
recorded in the  register and, if necessary, an amendment <\/p>\n
made in the assessment list in accordance with the order <\/p>\n
passed on the objection.  This order of the Chief Executive <\/p>\n
Officer may be appealed from by any person who is dissatisfied <\/p>\n
with it, under section 152.  The appeal lies to the District Judge <\/p>\n
whose decision under section 152 (1) “shall be final”.  During <\/p>\n
the pendency of the appeal, the tax payable in terms of the <\/p>\n
order appealed against may be levied and realised.  However if <\/p>\n
ultimately the District Judge decides in favour of the objector,  <\/p>\n
the chief executive officer “shall refund to the person from <\/p>\n
whom the same has been levied or realised, the amount of  tax <\/p>\n
or instalment, or the excess thereof over the amount properly <\/p>\n
leviable in accordance with such final decision, as the case may <\/p>\n
be, or adjust such excess amount against any future demand”.<\/p>\n
         Every valuation made by the Chief Executive Officer  <\/p>\n
under section 153 is final subject to the provisions of sections <\/p>\n
151 and 152.  In other words until and unless an order is <\/p>\n
passed under section 151 (3) by the Chief Executive Officer or <\/p>\n
under section 152 by the District Judge, the valuation made by <\/p>\n
the Chief Executive Officer must prevail.  Finally when the <\/p>\n
objections have been determined, and appeals  disposed of, <\/p>\n
the assessment list shall be authenticated by the Chief <\/p>\n
Executive Officer in the manner specified.  The importance of <\/p>\n
the authentication lies in the fact that under subsection (2) of <\/p>\n
section 154, the assessment list shall be “conclusive evidence <\/p>\n
of the amount of holding tax leviable on each holding within <\/p>\n
Patna in the financial year to which the list relates”.                   <\/p>\n
This, in brief, is an overview of the provisions which are <\/p>\n
relevant for the disposal of this appeal.\n<\/p>\n
 The  undisputed factual situation is that an assessment <\/p>\n
list was prepared for the year 1978 — 79.  The appellants <\/p>\n
objected to the assessment list under section 150.  The <\/p>\n
objections were rejected by the Chief Executive Officer under <\/p>\n
Section 151. The appellants preferred appeals before the <\/p>\n
District Judge under section 152.  The appeals are pending.  <\/p>\n
During the pendency of the appeals, the Corporation has been <\/p>\n
realising or at least seeking to realise the taxes  from the <\/p>\n
appellants on the basis of the order of the Chief Executive <\/p>\n
Officer.\n<\/p>\n
   With effect from 13th October 1993, in exercise of <\/p>\n
powers conferred by section 227 read with sub-sections (1) and <\/p>\n
(2) of section 130 of the Act, the Government  of Bihar made <\/p>\n
the Assessment of Annual Rental Value Of Holding Rules, 1993 <\/p>\n
(hereinafter referred to as the Rules).  By the Rules, the method <\/p>\n
of determining annual rental value in connection with each <\/p>\n
holding separately was done away with.  Holdings in the <\/p>\n
Corporation were classified on the basis of situation, use and <\/p>\n
type of construction.  For the purpose of calculation of annual <\/p>\n
rental value of holdings, the method was simplified so that it <\/p>\n
was computable only on the measurement of the carpet area.  <\/p>\n
In addition  the percentage at which holding tax, water tax and <\/p>\n
latrine  tax is to be levied, has also been specified.  After the  <\/p>\n
publication of the Rules, the Corporation issued two <\/p>\n
notifications pursuant to Rules 3(2) and 5(1).  By the first <\/p>\n
notification, the Corporation classified the several roads in <\/p>\n
Patna city  into three categories.  It is not necessary for us to go <\/p>\n
into details of this notification or the second notification which <\/p>\n
was issued soon thereafter by the Corporation which specified <\/p>\n
the rates of rental value per sq ft depending upon the situation, <\/p>\n
use and nature of construction of the holdings.    These Rules <\/p>\n
and the two notifications were the subject matter of challenge <\/p>\n
under Article 226 before the High Court.  The Rules and the <\/p>\n
notifications were struck down by the High Court as being <\/p>\n
unconstitutional.  The decision of the High Court was reversed <\/p>\n
by this Court in State of Bihar V. S.K.P. Sinha: (1995) 3 <\/p>\n
Supreme Court Cases 86.  This Court while upholding  the <\/p>\n
constitutional validity of the Rules also upheld the two <\/p>\n
notifications.\n<\/p>\n
As a result of the 1993 Rules, the provisions of sections <\/p>\n
130 and 136 are no longer relevant for our purposes as they <\/p>\n
have laid down a different method of valuation and assessment.  <\/p>\n
There is no dispute that the Corporation followed the Rules and <\/p>\n
the notifications issued thereunder in preparing Valuation and <\/p>\n
Assessment Lists thereby revising the holding tax for the first <\/p>\n
time since 1978-79.  However, the process was not  completed <\/p>\n
in respect of the entire area covered by the Act at the same <\/p>\n
time, but in three phases.  According to the Corporation, this <\/p>\n
was because they were understaffed and were otherwise <\/p>\n
administratively handicapped.  Three notices were published <\/p>\n
under section 149 (1), not by way of “beat of drum” nor by <\/p>\n
posting placards at conspicuous places, but by publication in <\/p>\n
the newspapers.  Each of the three notices referred to separate<\/p>\n
 areas of Patna and were dated 26 December 1993, 1st  <\/p>\n
October 1995 and 30th December 1995 respectively.  In <\/p>\n
addition separate notices were issued to the owners of holdings <\/p>\n
as and when the area in which a particular holding was situated <\/p>\n
was notified.  The appellants also received notices under <\/p>\n
section 149 (2).  In 1995, they filed objections under Section <\/p>\n
150.  The objections have not yet been disposed of by the Chief <\/p>\n
Executive Officer.  However, the Corporation has continued  to <\/p>\n
realise tax from the owners  on the basis of the assessment list  <\/p>\n
as published.\n<\/p>\n
The appellants filed a writ petition in the High Court in <\/p>\n
which they claimed: first, that the provisions of sections 133,134 <\/p>\n
and 137 of the Act had not been followed by the Corporation in <\/p>\n
the matter of preparation of the valuation and assessment list; <\/p>\n
second, that publication of notice of assessment had not been <\/p>\n
done in the manner prescribed by section 149 (1) of the Act;  <\/p>\n
third,  that the assessment list could not be prepared piecemeal <\/p>\n
at different times for different properties in a discriminatory <\/p>\n
manner and, fourth that the new rate of tax could take effect <\/p>\n
only after the objections under section 150 had been decided <\/p>\n
by the Chief Executive Officer.  They accordingly prayed, inter <\/p>\n
alia, for a direction on the Corporation to prepare an <\/p>\n
assessment list in accordance with the provisions of sections <\/p>\n
133,137,138, 149,150,151 and other provisions of the Act and <\/p>\n
to levy, assess and recover the tax only after the disposal of the <\/p>\n
objections under section 150.  The appellants also sought the <\/p>\n
quashing of notices dated 26th  December 1993, 1st  October <\/p>\n
1995 and 30th December 1995.\n<\/p>\n
As far as the first submission was concerned, the High <\/p>\n
Court rejected it saying, “\u2026. It is not disputed that those steps <\/p>\n
are now required to be taken as per provisions laid down in the <\/p>\n
1993 Rules and such steps have been taken by the Corporation <\/p>\n
accordingly”.\n<\/p>\n
The High Court accepted the second contention of the <\/p>\n
appellants  that the mode of publication of the assessment list <\/p>\n
prescribed under section 149 (1) of the Act was mandatory.  <\/p>\n
Nevertheless, since the appellants had admittedly received <\/p>\n
notices under section 149 (2) and had filed applications for <\/p>\n
review under section 150, the  High Court held “in the facts of <\/p>\n
the case the irregularity in publication of notice under section <\/p>\n
149 (1) of the Act is not of any consequence so far as the <\/p>\n
petitioners are concerned, so as to warrant any interference in <\/p>\n
the matter by this Court and at this stage.” <\/p>\n
 The third submission was not accepted as  the High <\/p>\n
Court held that section 149 (1) itself provided for area-wise <\/p>\n
assessments in respect of parts of Patna.  The High Court also <\/p>\n
accepted the explanation given by the Corporation that they <\/p>\n
had given different publications for different areas since they <\/p>\n
did not have sufficient working hands and because of other <\/p>\n
administrative difficulties.  Further, it held that since there was <\/p>\n
no allegation of any mala fides, “the action of the respondents <\/p>\n
is saved in this case but keeping in view the spirit of Article 14 <\/p>\n
of the Constitution of  India in any view they would be well <\/p>\n
advised to take prompt steps in advance so that a general <\/p>\n
assessment for the entire area under the Corporation may be <\/p>\n
made effective from one date”.\n<\/p>\n
  The fourth submission of the appellants was not <\/p>\n
considered.  However the High Court directed “the concerned <\/p>\n
authority “to dispose of the petitioners’ applications <\/p>\n
expeditiously and in any case within three months from the date <\/p>\n
of production\/communication of a copy of this order”.<\/p>\n
Each of the four submissions made by the appellants <\/p>\n
before the High Court have been reiterated before us.<\/p>\n
          The submission of the appellants that the Corporation <\/p>\n
was bound to comply with the provisions of the Act for valuation <\/p>\n
and assessment before publishing the assessment list is <\/p>\n
unacceptable in view of the promulgation of the 1993 Rules, <\/p>\n
and the notifications issued thereunder, the validity of all of <\/p>\n
which has been upheld by this Court.  It is not in dispute that <\/p>\n
the valuations have been made and assessments have been <\/p>\n
prepared strictly in accordance with the procedure prescribed <\/p>\n
by the 1993 Rules read with the two notifications.<\/p>\n
The next submission of the appellants that the <\/p>\n
Corporation does not have the power to issue separate <\/p>\n
assessment lists in respect of different kinds of properties in <\/p>\n
different areas is also not tenable.  The 1993 Rules and the <\/p>\n
notifications issued thereunder clearly provide for assessment <\/p>\n
based on the localities as well as different kinds of properties, <\/p>\n
classified according to its user and the type of construction.  <\/p>\n
Additionally, the proviso to section 138 (1) expressly indicates  <\/p>\n
that assessment lists may be prepared in respect of a specified <\/p>\n
area within the Corporation. Finally, Section 149 sub-section (1) <\/p>\n
itself shows that  assessment lists may be made in respect of <\/p>\n
“any part of Patna”.\n<\/p>\n
The decision of this Court in Shibji Khestshi Tacker v. <\/p>\n
The Commissioner of Dhanbad Municipality and Others<\/a> <\/p>\n
1978 (2) SCC 167 has taken a similar view while interpreting <\/p>\n
Section 106 of the Bihar and Orissa Municipalities Act, 1922 <\/p>\n
which has been replaced by Section 138 of the present Act.  <\/p>\n
Section 106 of the 1922 Act provided:\n<\/p>\n
“(1)  New Valuation and assessment list shall <\/p>\n
ordinarily be prepared, in the same manner as <\/p>\n
the original lists, once in every five years.<\/p>\n
(2)  Subject to any alteration or amendment <\/p>\n
made under Section 107 and to the result of <\/p>\n
any application under Section 116, every <\/p>\n
valuation and assessment entered in a <\/p>\n
valuation or assessment list shall be valid <\/p>\n
from the date on which the list takes effect in <\/p>\n
the municipality and until the first day of the <\/p>\n
April next following the completion of a new <\/p>\n
list”.\n<\/p>\n
The owner of the particular  holding in that case had been <\/p>\n
assessed to tax under an earlier assessment list.  In the <\/p>\n
subsequent list, the holding had not been mentioned.  It was <\/p>\n
contended that since  assessment lists have to be prepared <\/p>\n
once in every five years, the owner could not be assessed to <\/p>\n
tax on the basis of the old assessment list.  It was also <\/p>\n
contended that only one assessment list could be prepared in <\/p>\n
respect of the entire area covered by the 1922 Act.  The <\/p>\n
submission was rejected by this Court  holding that the owner <\/p>\n
continued to be liable under the earlier list and that:<\/p>\n
“The language of Section 106 is flexible <\/p>\n
enough to enable the Commissioners to leave <\/p>\n
out for some good reason, any holding from <\/p>\n
the revision of the valuation and assessment <\/p>\n
lists.  The word ‘ordinarily’ tones down the <\/p>\n
force of ‘shall’ which immediately precedes it, <\/p>\n
and indicates that the requirements with <\/p>\n
regard to revision of the assessment in every <\/p>\n
five years and to include all the holdings, are <\/p>\n
not absolute but only directory and can be <\/p>\n
departed from in extraordinary circumstances, <\/p>\n
or in the case of particular holdings for good <\/p>\n
reasons.  This being the correct import of the <\/p>\n
word ‘ordinarily’, it follows therefrom that in the <\/p>\n
case of a holding which is excluded from the <\/p>\n
quinquennial revision of assessment, the old <\/p>\n
valuation and assessment lists do not lapse <\/p>\n
but continue to remain in force till they are <\/p>\n
altered or amended in accordance with the <\/p>\n
procedure laid down in the Act.  This position <\/p>\n
of the law is clear from a reading of the last <\/p>\n
clause of sub-section (2) of Section 106, <\/p>\n
which provides that every valuation and <\/p>\n
assessment entered in a valuation or  <\/p>\n
assessment list shall be valid from the date on <\/p>\n
which the list takes effect in the municipality <\/p>\n
and until the first day of April following the <\/p>\n
completion of a new list.  The key word <\/p>\n
repeatedly occurring in the sub-section is ‘list’ <\/p>\n
which appears to have been advisedly used in <\/p>\n
singular, in contradistinction to ‘lists’ employed <\/p>\n
in plural, in sub-section (2).  Such distinctive <\/p>\n
use of the word ‘list’ in these sub-sections, <\/p>\n
puts it beyond doubt that in respect of a <\/p>\n
holding which, for some reason is not included <\/p>\n
in the five yearly revision, the old valuation or <\/p>\n
assessment list continues till a new list is <\/p>\n
completed and the 1st day of April following <\/p>\n
such completion is reached.”\n<\/p>\n
To put it differently, there could be several assessment <\/p>\n
lists operating in respect of different holdings in the municipal <\/p>\n
area.  The position has been clarified by the introduction of the <\/p>\n
proviso to section 138(1) of the present Act, as we have already <\/p>\n
noted.\n<\/p>\n
            The third submission of the appellants,  relates to the <\/p>\n
mode of publication of the assessment lists.  That the mode of <\/p>\n
publication is a procedural provision is self-evident.  But is it a <\/p>\n
mandatory provision? The High Court’s finding as to the nature <\/p>\n
of the provision for publication under sub section (1) of section <\/p>\n
149 is somewhat contradictory.  While holding that the manner <\/p>\n
of publication was mandatory and had to be complied with in <\/p>\n
terms thereof, in a subsequent  portion of the judgment, it was <\/p>\n
held that it was a mere irregularity which could be waived.  As <\/p>\n
we read sub-section (1) of section  149, the Chief Executive <\/p>\n
Officer is bound to give public notice of the assessment list.  <\/p>\n
The word “shall” makes that clear.  However the word “shall” <\/p>\n
does not qualify the next phrase which is separated from the <\/p>\n
words “public notice” by a comma. The phrase separated is “by <\/p>\n
beat of drum and by placards posted in conspicuous places <\/p>\n
throughout Patna\u2026\u2026\u2026.. \u2026”. Generally speaking  the object of <\/p>\n
giving a notice  is to draw the attention of the persons sought to <\/p>\n
be affected to the matter notified.    The purpose of specifying a <\/p>\n
particular mode of giving  notice is to raise a legal presumption <\/p>\n
against such person of knowledge  of the subject of the notice.  <\/p>\n
In other words, once the mode specified for giving notice is <\/p>\n
complied with, the onus is on the persons notified to prove that <\/p>\n
they were not aware of the subject matter of the notice.  There <\/p>\n
is otherwise no special sanctity given to the mode of service of <\/p>\n
notice.  The appellants have contended that even though <\/p>\n
owners were served with individual notices under section <\/p>\n
149(2), unless publication was made in the manner provided in <\/p>\n
section 149(1) the occupants who were liable to pay water tax <\/p>\n
and latrine tax would be seriously affected and would not have <\/p>\n
an opportunity of challenging the imposition of the tax on them.  <\/p>\n
Incidentally, in the objections filed by the appellants their <\/p>\n
contention is that the holdings owned by them were not liable to <\/p>\n
payment of latrine tax or water tax because neither of the <\/p>\n
services were available.   However, the matter has to be <\/p>\n
decided as a principle and not with reference to the appellants’ <\/p>\n
case.\n<\/p>\n
           Nobody disputes that publication and the giving of notice <\/p>\n
to persons likely to be affected by the assessment list is a must. <\/p>\n
The appellants have admitted publication of the assessment <\/p>\n
lists in three newspapers.  It is not their case that such <\/p>\n
publication did not serve the purpose of notifying those who <\/p>\n
might be affected by the assessment lists, of their existence. <\/p>\n
Indeed it appears to us that the requirement to notify people by <\/p>\n
beat of drum is an anachronism which appears to be <\/p>\n
inappropriate in the present day and age in a large city like <\/p>\n
Patna.  The High Court’s apprehension that “holding this <\/p>\n
provision as directory is likely to cause confusion and mischief <\/p>\n
in future and it is not for this Court to substitute the wisdom of <\/p>\n
the legislature with its own by holding that notice by newspaper <\/p>\n
will be sufficient in place of notice of the spot by beat of drum <\/p>\n
and placards” is  unfounded both in law and in fact.  It is an <\/p>\n
elementary principle of interpretation that words in statutory <\/p>\n
provisions take their colour from their context and object,  <\/p>\n
keeping pace with the time when the word is being construed.  <\/p>\n
When or where no other means of effective publication is <\/p>\n
available, no doubt, announcing the assessment list by beat of <\/p>\n
drum and by displaying  placards would have to be complied <\/p>\n
with.  Where equally efficacious,  if not better, modes of <\/p>\n
publication are available, it would be ridiculous to insist on an <\/p>\n
obsolete form of publication as if it were a ritual.  Had the High <\/p>\n
Court found that publication by newspapers was not effective <\/p>\n
enough to notify the public, the assessment list could not be <\/p>\n
given effect to unless publication were properly made. There is <\/p>\n
no such finding.  On the other hand publication through <\/p>\n
newspapers  is  now  an  accepted   form  of  giving general <\/p>\n
notice.   Therefore,  we  have  no  hesitation  in holding that the               <\/p>\n
portion of section 149 (1) which deals with the manner of <\/p>\n
publication, as opposed to the requirement for publication per <\/p>\n
se, is directory.  Since there has been sufficient compliance in <\/p>\n
effecting the intention of the legislature to give notice to the <\/p>\n
public at large in the city of Patna, we cannot hold that the <\/p>\n
assessment lists prepared on the basis of the 1993 Rules are <\/p>\n
required to be set aside.\n<\/p>\n
        This view finds support from the decisions of this Court, <\/p>\n
decisions which were, in our opinion, wrongly brushed aside by <\/p>\n
the High Court.  In the Municipal Council, Khurai Vs Kamal <\/p>\n
Kumar and another reported in (1965) 2 SCR. 653, on which <\/p>\n
the High Court has relied, there was no publication of the notice <\/p>\n
at all.  An assessment list had been prepared and published on <\/p>\n
6 March 1963.  There were several objections lodged against <\/p>\n
the assessment list.  The rate of assessment was however <\/p>\n
subsequently revised.  On the basis of the revision, a <\/p>\n
subcommittee appointed by the Municipal Council, considered <\/p>\n
the objections and completed its revision.  The final list was <\/p>\n
published.  There were further complaints.  The final list was <\/p>\n
suspended.  The Municipal Council then decided to amend the <\/p>\n
list.  This amendment was not published.  Nor was the final list <\/p>\n
as amended published.  This Court held that as no opportunity <\/p>\n
had been granted to the assessees to object to the  <\/p>\n
assessment lists as amended, the assessment list had not <\/p>\n
been prepared in accordance with law.  The decision is <\/p>\n
factually distinguishable. Since in that case there was no <\/p>\n
publication at all, the Court was not called upon to consider the <\/p>\n
question whether an alternative and equally effective mode of <\/p>\n
publication would have sufficed.\n<\/p>\n
This in fact was the exact question which had been <\/p>\n
decided by a bench of five judges in the case of Raza Buland <\/p>\n
Sugar Co.Ltd.   Vs. Municipal Board, Rampur  reported in <\/p>\n
1965 (1) SCR. 970.  In that case municipal water tax was <\/p>\n
sought to be levied under section 131 of the U. P. Municipalities <\/p>\n
Act, 1916.  In terms of section 131 (3), the Municipal Board was <\/p>\n
required to publish its proposal relating to the tax and the draft <\/p>\n
Rules in connection therewith along with the notice in the <\/p>\n
specified format. Section 94 (3) provided for the manner of <\/p>\n
publication of the resolution of the municipal board.  The <\/p>\n
method of publication prescribed was “in a local paper <\/p>\n
published in Hindi and where there is no such local paper, in <\/p>\n
such manner as the State Government may, by general or <\/p>\n
special order, direct”.  The publication was made in a local <\/p>\n
paper published in Urdu.  Wanchoo, J., speaking for the <\/p>\n
majority held that the provision for publication contained in <\/p>\n
section 131 (3) was mandatory but the mode of publication <\/p>\n
provided in section 94 (3) was not.  Therefore the publication in <\/p>\n
an Urdu newspaper was held to be sufficient and in substantial <\/p>\n
compliance with section 94 (3).  This conclusion was arrived at <\/p>\n
despite the use of the word “shall” in section 94 (3).  This is <\/p>\n
what the Court said:\n<\/p>\n
“The question whether a particular <\/p>\n
provision of a statute which on the face <\/p>\n
of it appears mandatory, inasmuch as it <\/p>\n
uses the word “shall” \u2013 as in the present <\/p>\n
case \u2013is merely directory cannot be <\/p>\n
resolved by laying down any general <\/p>\n
rule and depends upon the facts of each <\/p>\n
case and for that purpose the object of <\/p>\n
the statute in making the provision is the <\/p>\n
determining factor.  The purpose for <\/p>\n
which the provision has been made and <\/p>\n
its nature, the intention of the legislature <\/p>\n
in making the provision, the serious <\/p>\n
general inconvenience or injustice to <\/p>\n
persons resulting from whether the <\/p>\n
provision is read one way or the other, <\/p>\n
the relation of the particular provision to <\/p>\n
other provisions dealing with the same <\/p>\n
subject and other considerations which <\/p>\n
may arise on the facts of a particular <\/p>\n
case including the language of the <\/p>\n
provision, have all to be taken into <\/p>\n
account in arriving at the conclusion <\/p>\n
whether a particular provision is <\/p>\n
mandatory or directory.\n<\/p>\n
\u2026.. As we have said already the <\/p>\n
essence of s. 131 (3) is that there <\/p>\n
should be publication of the proposals <\/p>\n
and draft rules so that the tax payers <\/p>\n
have an opportunity of objecting to <\/p>\n
them, and that is provided in what we <\/p>\n
have called the first part of s.141(3); that <\/p>\n
is mandatory.  But the manner of <\/p>\n
publication provided by s.94(3) which <\/p>\n
we have called the second part of <\/p>\n
s.131(3) appears to be directory and so <\/p>\n
long as it is substantially complied with <\/p>\n
that would be enough for the purpose of <\/p>\n
providing the tax payers a reasonable <\/p>\n
opportunity of making their objections.\n<\/p>\n
We are therefore of the opinion that the <\/p>\n
manner of publication provided in <\/p>\n
s.131(3) is directory.”\n<\/p>\n
Again in 1996  this Court in State Bank of Patiala and <\/p>\n
others Vs S.  K.  Sharma (1996) 3 SCC. 364 had to interpret a <\/p>\n
regulation framed in connection with a departmental inquiry.  <\/p>\n
The regulation required that the inquiring authority “shall also <\/p>\n
record an order that the officer may for the purpose of preparing <\/p>\n
his defence :\n<\/p>\n
“(3) be supplied with copies of <\/p>\n
statements of witnesses, if any, <\/p>\n
recorded earlier and the inquiry officer <\/p>\n
shall furnish such copies not later than <\/p>\n
three days before the commencement of <\/p>\n
the examination of the witnesses by the <\/p>\n
inquiring authority”.\n<\/p>\n
Copies of the statements of the witnesses were not <\/p>\n
supplied to the charged officer.  However the officer had been <\/p>\n
permitted to inspect and take notes of the statements of the <\/p>\n
witnesses more than three days prior to the examination of the <\/p>\n
witnesses.  The entire inquiry was challenged by the charged <\/p>\n
officer as being vitiated, by reason of the non-supply of the <\/p>\n
statements in compliance with the regulation.  The challenge <\/p>\n
was rejected by this Court by holding that the provision was not <\/p>\n
of a mandatory character and that it had to be examined from <\/p>\n
the standpoint of substantial compliance and unless prejudice <\/p>\n
had been caused by the non-compliance, the action would be <\/p>\n
sustained.  (See also Venkataswamappa V. Special Deputy <\/p>\n
Commissioner (Revenue<\/a> 1997 9 SCC 128).\n<\/p>\n
With the greatest respect, we would adopt the reasoning <\/p>\n
of the aforesaid two decisions of this Court in rejecting the <\/p>\n
appellants’ submission that the mode of publication prescribed <\/p>\n
in section 149(1) as opposed to publication itself, was <\/p>\n
mandatory and hold that the publication in the newspapers was <\/p>\n
in substantial compliance with the requirements of the sub-<\/p>\n
section.\n<\/p>\n
Apart from any other consideration, it certainly did not lie <\/p>\n
in the mouth of the appellants to contend that adequate notice <\/p>\n
was not given.  They were admittedly given notice under <\/p>\n
section 149 (2) and they have also filed their objections under <\/p>\n
section 150 to the assessment list.\n<\/p>\n
This brings us to the last submission of the appellants that <\/p>\n
there cannot be any recovery of the tax on the basis of the <\/p>\n
assessment list so published unless the appellants objections <\/p>\n
were disposed of under section 151.  We were at first inclined <\/p>\n
to hold in the appellants favour.  But  a closer scrutiny of the <\/p>\n
provisions of the Act has persuaded us to reject the <\/p>\n
submission.  Once we have held that the assessment list had <\/p>\n
been properly prepared in the sense that there had been no <\/p>\n
legal flaw in its preparation and publication, the valuation as <\/p>\n
mentioned in the assessment list must be given effect to till the <\/p>\n
time it is revised or amended under sections 151 or 152. In <\/p>\n
Shibji Khestshi Tacker v. The Commissioners of Dhanbad<\/a> <\/p>\n
(supra) it was said that valuation and assessment lists remain <\/p>\n
in force  until they are altered or amended in accordance with <\/p>\n
the procedure laid down in the Act.  Alteration or amendment <\/p>\n
can take place pursuant to an order under sections 151 or 152.  <\/p>\n
This is also clear from section 153 which says that “every <\/p>\n
valuation made by the Chief Executive Officer — — shall, subject <\/p>\n
to the provisions of sections 151 and 152, be final”.  The phrase <\/p>\n
‘subject to’  means that until and unless the assessment list is <\/p>\n
revised or amended under section 151 or 152, the assessment <\/p>\n
list would continue to be final.  This reading is in keeping with <\/p>\n
sub section (2) of section 138  which provides that every <\/p>\n
valuation and assessment list shall be valid from the date on <\/p>\n
which the list takes effect in the Corporation  and until the first <\/p>\n
day of the quarter next following the competition of a new list, <\/p>\n
thus indicating that an assessment list is valid from the date of <\/p>\n
its completion.  Such an assessment list is subject to “any <\/p>\n
alteration or amendment made” and to the result of any <\/p>\n
application under Section 150.  What needs to be emphasised <\/p>\n
is that the assessment list as prepared is valid and is  <\/p>\n
unaffected by the mere filing of an application under Section <\/p>\n
150.  If the result  of the application is in favour of the owner, <\/p>\n
the assessment list must be amended to give effect to such <\/p>\n
result.  Unless the application of the appellants under Section <\/p>\n
150 ends in a result which is  different from the assessment list, <\/p>\n
the assessment list would continue to be operative, and the  <\/p>\n
respondent can recover  taxes on the basis of the assessment <\/p>\n
and valuation list despite the filing of objections under Section <\/p>\n
150.     Besides the reference to both sections 151 and 152 in <\/p>\n
Section 153 makes it clear that the same incidence relating to <\/p>\n
the recovery of taxes pending either the determination of the <\/p>\n
objections under section 151 or the adjudication of the appeal <\/p>\n
under section 152, would prevail.  If this construction is not put <\/p>\n
on section 153, it would mean that by merely filing  an <\/p>\n
objection, the objector would be able to effectively stop the <\/p>\n
realisation of tax on the basis of the assessment list until such <\/p>\n
time as his objection is heard and decided.  This could not have <\/p>\n
been legislatively intended. As has been seen in this case that <\/p>\n
although the appellants had filed their objections in 1995, they <\/p>\n
are still pending.  We, therefore, conclude that it is open to the <\/p>\n
Corporation to recover the tax as determined on the basis of <\/p>\n
the impugned assessment lists pending disposal of the <\/p>\n
appellants’ applications under Section 151, until and unless, by <\/p>\n
virtue of an order under Section 151 or 152 passed thereon, the <\/p>\n
assessment list is amended or altered.\n<\/p>\n
The appellants’ final grievance is in respect of the non <\/p>\n
disposal of the objections filed in respect of the assessment <\/p>\n
lists under the 1993 Rules.  As far as they  are concerned, the <\/p>\n
High Court has already directed the disposal of the same by the <\/p>\n
concerned authority within a time frame.  We see no reason to <\/p>\n
interfere with this direction.\n<\/p>\n
For the reasons aforesaid we dismiss this appeal and <\/p>\n
affirm the decision of the High Court, albeit for reasons which <\/p>\n
are different, with costs.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rai Vimal Krishna & Ors vs State Of Bihar & Ors on 7 July, 2003 Bench: Ruma Pal, B.N.Srikrishna. CASE NO.: Appeal (civil) 8263 of 2001 PETITIONER: Rai Vimal Krishna & Ors. RESPONDENT: Vs. State of Bihar & Ors. DATE OF JUDGMENT: 07\/07\/2003 BENCH: Ruma Pal & B.N.Srikrishna. JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-175672","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRai Vimal Krishna & Ors vs State Of Bihar & Ors on 7 July, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rai-vimal-krishna-ors-vs-state-of-bihar-ors-on-7-july-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rai Vimal Krishna & Ors vs State Of Bihar & Ors on 7 July, 2003 - 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