Patna High Court
Padam Chand JainversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- ANIL KUMAR SINHA
Holding
The Court set aside the impugned mutation order and restored the original holdings to the petitioners.
Summary
The petitioners, descendants of auction purchasers of a 3½ Katha plot (holdings 163 and 163A), challenged a 5 May 2012 order by the Bhagalpur Municipal Commissioner that transferred part of their holdings to respondent No.6, Raman Kumar Singh, creating new holdings 163/1 and 163A/1. The petitioners discovered the illegal mutation through a Right to Information request and alleged that the process was mechanical, lacked proper notice, and was based on a partition decree from 1955 unrelated to their title. The Municipal Corporation admitted the irregularity but claimed it lacked power to recall the order. The Court examined the historical acquisition, partition, and continuous possession and tax payment by the petitioners, and found the mutation order to be unlawful. Consequently, the Court set aside the impugned order, directed restoration of holdings 160 and 160A (original holdings) to the petitioners, and ordered the Municipal Corporation to accept and issue receipts for holding tax from 2017‑18 onward.
Issues considered
- The validity of the Municipal Commissioner’s mutation order dated 5 May 2012 transferring part of holdings 163/1 and 163A/1 to respondent No.6.
- Whether the municipal authority had the power to recall or set aside the mutation order.
- Whether the petitioners are the rightful owners of holdings 163 and 163A based on auction purchase and subsequent partition.
Legislation cited
Subjects
- mutation
- municipal corporation
- holding tax
- property ownership
- illegal transfer
- Right to Information Act
- public grievance
- partition decree
- auction purchase
- civil writ jurisdiction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9849 of 2022
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1. Padam Chand Jain Son of Late Dharam Chand Jain Resident of Mohalla-
Naya Bazar, Mahabir Prasad Dwivedi Road, Police Station- Kotwali,
District- Bhagalpur and presently residing at Todar Mal Lane, Kanya
Pathshala Gali, Police Station- Kotwali, District- Bhagalpur.
2. Nirendra Kumar Jain Son of Late Shanti Lal Sarogi Resident of Mohalla-
Naya Bazar, M.P. Dwivedi Road, Police Station- Kotwali, District-
Bhagalpur and presently residing at Chitrakut Apartment, Marwari Tola
Lane, Police Station- Kotwali, District- Bhagalpur.
3. Rajeev Kumar Jain Son of Padam Chand Jain Resident of Mohalla- Naya
Bazar, Mahabir Prasad Dwivedi Road, Police Station- Kotwali, District-
Bhagalpur and presently residing at Todar Mal Lane, Kanya Pathshala Gali,
Police Station- Kotwali, District- Bhagalpur.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Housing and Urban
Development Department, Government of Bihar, Patna.
2. The Principal Secretary, Housing and Urban Development Department,
Government of Bihar, Patna.
3. Bhagalpur Municipal Corporation, through Municipal Commissioner,
Bhagalpur.
4. The Municipal Commissioner, Bhagalpur Municipal Corporation,
Bhagalpur.
5. Mr. Awnish Kumar, the then Municipal Commissioner, Bhagalpur Municipal
Corporation, Bhagalpur.
6. Raman Kumar Singh Son of not known Resident of Mohalla- Sukhpur,
Police Station and District- Supaul.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. P.N. Shahi, Sr. Advocate
Mr. Sanjeev Kumar, Advocate
Mr. Pravashankar Mishra, Advocate
Mr. Anand Bhushan, Advocate
Mr. Rajeev Shekhar, Advocate
For the Res. Nos. 3 & 4 : Mr. Manish Kumar, Advocate
For the Res. No. 6 : None
For the State : Mr. Yogendra Pd. Sinha (AAG-07)
Mr. Deepak Kumar, AC to AAG-07
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
ORAL ORDER
7 20-01-2026 Heard learned counsel for the parties concerned.
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2. The petitioners have challenged the order dated
05.05.2012 passed in AD case bearing no. 1293/2010-11 by
which part of holdings of petitioners have been transferred in
the name of respondent no. 6.
3. Mr. P.N. Shahi, learned senior counsel for the
petitioners submits that one Mr. Champa Lal Sarawagi (now
deceased) has two sons, namely, Mr. Shanti Lal Saragai (now
deceased) and Mr. Dharam Chand Jain (now deceased). The
area of 3½ Katha situated at holding no. 14, Ward No. 3, Circle
No. 6 was acquired by late Champa Lal Sarawagi in the auction
held by the Corporation and a Sale Certificate was issued in his
favour. The said plot was divided between two sons of late
Champa Lal Sarawagi. The half area admeasuring 1¾ Katha
was given to his son, namely, late Shanti Lal Sarawagi which
has been registered as holding no. 163 and the remaining area
admeasuring 1¾ katha was given to his second son, namely, late
Dharam Chand Jain which has been registered in the records of
the Corporation bearing holding number 163A. The petitioner
no. 1 is the son of late Dharam Chand Jain who is the rightful
owner of holding no. 163A whereas, the petitioner no. 2 is the
son of late Shanti Lal Sarawagi who is the rightful owner of
holding no. 163. The petitioner no. 3 is the son of petitioner
Patna High Court CWJC No.9849 of 2022(7) dt.20-01-2026
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no.1.
4. It has further been submitted that the aforesaid
holdings have been running in the name of the petitioners for
about 60 years. From the holdings numbers 163 and 163A
another holding bearing 163/1 and 163A/1 have been culled out
vide order dated 05.05.2012. The petitioners did not come to
know about the illegal transfer of part of the holding in favour
of respondent no. 6 and the holding tax was being paid by the
petitioners to the Municipal Corporation and the receipt was
issued in the year 2016-17. When for the year 2017-18, the
holding tax was not being accepted, the petitioner inquired into
the matter and came to know about impugned order of transfer
of holding in the name of respondent no. 6 passed by the then
Municipal Commissioner. With great difficulty, the petitioners
got the information and knowledge about the impugned order
by virtue of Right to Information Act and finally the certified
copy was obtained by the petitioners on 08.06.2022. It has
further been argued that the inquiry was conducted by Secretary
to the commissioner under the Public Grievance Redressal Act,
2015 and a report thereof was submitted on 27.06.2019. It was
mentioned in the said inquiry that any case bearing no. 1293 of
2010-11 was initiated on 15.09.2010 by the then Municipal
Patna High Court CWJC No.9849 of 2022(7) dt.20-01-2026
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Commissioner directing the Tax Collector/Assistant Tax
Collector to submit an inquiry report with regard to present
holding in question. On 15.09.2010 it was directed by the
Municipal Commissioner to issue notice (aam Suchna) upon all
concerned parties. The report of Tax Collector was submitted on
05.05.2012 and services of notice and the service report of
notice (aam suchna) received in the records of A.D. case no.
1293-2010-11 pertained to another A.D. case bearing no.
2553/2010-11 and on the same day, i.e., 05.05.2012, the
Municipal Commissioner, Bhagalpur passed the order granting
mutation in favour of respondent no. 6, namely, Raman Kumar
Singh.
5. The entire proceeding of mutation was carried out
in a mechanical fashion in one sitting itself in connivance with
respondent no. 6. It has also been submitted by learned senior
counsel for the petitioners that mutation in the name of
respondent no. 6 was done on the basis of decree in partition
suit passed by learned Sub Judge, Saharsa in case no. 12 of 1955
by which the property in question was partitioned amongst the
family members of respondent no. 6 and others. The submission
is that after the partition decree, the auction of the property was
held by the Municipal Corporation in the year 1956.
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6. No-one appears for private respondent no. 6 despite
service of notice.
7. Mr. Manish Kumar, learned counsel appearing for
Bhagalpur Municipal Corporation referring to the counter
affidavit submits that the entire exercise of mutation was done
in mechanical manner by the then Municipal Commissioner.
The notice was allegedly issued under the signature of
Municipal Commissioner on 15.03.2011 whereas the date of
service of notice has been shown as 29.09.2010 which is logical
discrepancy. The petitioners and their family are in physical
possession of the property and the holding nos. 163 and 163A
had been running in their names since long. The irregularity in
the mutation process has been highlighted by the Secretary to
the Commissioner in his report and since the administrative
authority does not have power to review the order, Municipal
Commissioner is not in a position to recall the impugned
order.
8. I have heard learned counsel for the parties and
have perused the materials on record including the report of the
secretary of the Municipal Commissioner. It appears that the
predecessor in interest of the petitioners are auction purchasers
of the property in question situated at holding nos. 163 and
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163A and after purchase of the property in auction sale, the
partition was done between the family members of the
petitioners and one 1 ¾ Katha each was divided between
petitioner nos. 1 and 2. The holdings in favour of the petitioners
were created in AD Case No. 2 of 1963-64 on 29.06.1963 and
since then the holdings created in favour of the petitioners have
been continuing and the petitioners have been paying rent
continuously and the last holding tax paid and accepted by the
respondent corporation is in the year 2017. The respondent
Municipal Corporation in its counter affidavit has accepted that
mutation in the name of respondent no. 6 of the present property
and creation of new holding in his name having holding nos.
163/1 and 163A/1 was done in illegal and mechanical manner.
9. Considering the aforesaid discussion, the impugned
order dated 05.05.2012 annexed at Annexure 12 is set aside. The
Municipal Commissioner, Bhagalpur is directed to restore the
holding nos. 160 and 160A in favour of the petitioner nos. 1 and
2. Municipal Corporation is also directed to accept holding tax
from the petitioners and issue receipt of the same in favour of
the petitioners starting from the year 2017-18 up till now and
shall also continue to accept the holding tax from the petitioners
till further decision is taken in accordance with law regarding
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the mutation and creation of holding in favour of bonafide third
person, if any.
10. Accordingly, with aforesaid direction, the present
application stands disposed of.
(Anil Kumar Sinha, J)
Siwani/-
U
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