P L D 1954 Dacca 42 (PLP)

The case of the plaintiff‑appellant before the Court below was that the Municipality was either aware or could have in the ordinary course of business come to know of the fact that in the suit filed by him against the heirs of Maniruddin his title to the holding in question has been declared. That being the case, the 1st defendant, Municipality's failure to issue notices to him constituted not only an irregularity in the procedure but also proof of collusion between the Municipality and the second defen dant who was its contractor. It was also his case that the notices and the advertisements that have to be published in accordance with section 525 of the Municipal Act were not actually published, but, on the other hand, there was suppression of these notices and this again constituted not only an irregularity in the sale but also proof of the alleged collusion. With regard to the date of his knowledge of sale, the plaintiff appellant contended that it was only when he addressed the Land Acquisition Collector with regard to the amount that had been deposited by the Military towards rent after the payment of the tax that he came to know of the sale, and that was on the 10th of July, 1944. In support of his version, besides himself he examined one Abdul Kader. P.W.2, who is said to be living in the neighbourhood of the holding his. own cousin P.W.3 who was acting on his behalf with regard to this property and a clerk of the Collectorate, P. W. 4, who is said to have lived in the house for sometime before the Military occupied it. The defence of the 1st defendant, Municipality was that it was not aware that the plaintiff had any title to or claim to possession in the holding the Municipal register showing it to have belonged only to the deceased Maniruddin Ahmed; that the Municipality had no notice of the claim of the plaintiff or of the suit which he is said to have filed nor was it under any obligation to enquire as to who the owner was. It was also its defence that the holding was requisitioned by the Government in May, 1943, and the amount of Rs. 93‑9‑0, representing the tax from that time till the end of the period for which the property was brought to sale was kept in deposit and not credited in respect of this house as there were previous arrears due, and that there was no collusion between the Municipality and the 2nd defendant. It was also pleaded that the requisite notices were served and that the suit was not in time as it had been filed beyond six months from the date of the sale. The main defence of the 2nd defendant was that he was a bona fide purchaser at a sale; that he did not contract work for the Municipality and that the holding was sold to him at a proper price. He also raised the question of limitation as well as questions about the competency of the suit which need not be detailed here. In support of their case the 1st defendant examined the Tax Collector D. W. 1, the peon of the Tax Collector who affixed the requisite notice D. W. 2, and the Law Clerk of the Municipality D. W. 3. whereas the second defendant examined himself. The learned Subordinate judge held that in view of the fact that the plaintiff admittedly had not informed the Municipality of the decree he had obtained in the suit, the action taken by the Municipality under section 525 of the Act was quite justified. He accepted the notice as regular and found that there was no proof of any collusion or fraud between the 1st and the 2nd defendant. He, however, found in favour of the plaintiff on the question of limitation, but as on the merits he was against him, he dismissed the suit. The declaration which the appellant has asked for in the suit under appeal is as already stated, to the effect that the sale was without jurisdiction, illegal and void; but Mr. Hasan appearing for the appellant was unable to satisfy us how there was no jurisdiction for the Municipality to bring this holding to sale. His argument was mainly directed towards establishing the case of collusion and fraud and also pointing out the irregularities in the service of the requisite notice. The only point put before us on the question of jurisdiction was the inclusion of Rs. 93‑9‑0 as part of the arrears, while, in fact, that amount had been realised by the Municipality and there was nothing preventing it from crediting it towards the tax due from the holding for the period for which the Military paid that amount. But he had to concede that besides this sum there was in fact an arrear of Rs. 62 and odd, and when we pointed out that as long as there was an arrear due in respect of a holding the Municipality has jurisdiction to bring it to sale, he was unable to cite any authority or provision of law under which be could support his contention. He, however, argued that section 525 of the Act would not apply to this case and in this respect he took us through the entire evidence to show that the plaintiff had established his version. We are unable to accept this contention. It is admitted that the plaintiff did not give notice to the Municipality of his claim to the property. The case in the plaint that the Municipality was aware of the plaintiff's claim is based on the circumstance that the plaintiff had examined in his suit against the heirs of Maniruddin one of the officers of the Municipality, but that by itself hardly justifies the conclusion that the Municipality was aware either of the suit or its result. We have not been shown any provision of law under which the burden of ascertaining the owner of a property before taking action to realise its dues is thrown on the Municipality. On the other band the learned Advocate appearing for the Municipality has drawn our attention to section 144-A, under which when there is a change of ownership due to inheritance, notice of that change has to be given by the person concerned to the Municipality. The house was registered in the name of Maniruddin and it is not disputed that even permission to build was obtained by Maniruddin. It is common ground that Maniruddin died in 1939, and it is also not disputed, as already indicated, that neither the heirs of Maniruddin nor the plaintiff reported to the Municipality any change in the ownership. In these circumstances, it appears to us that this is a case coming under section 525 which states "If money be due under this Act in respect of any holding from the owner thereof, on account of any tax, expenses or charges recoverable under this Act, and if the owner of such holding is unknown or the ownership thereof is disputed, the Commissioners may publish ... . So, we see no reason to reject the contention that the registered owner Maniruddin, having died, it was not known to the Municipality at the time it took action that the appellant was the owner. Even if it is considered that the Municipality had knowledge of the suit filed by the appellant that knowledge could have been only this that the ownership was disputed, because at the time the sale was held an appeal filed by the heirs of Maniruddin against the plaintiff was pending in the High Court. Therefore, section 525 is applicable. The learned Advocate for the appellant then contends that even if section 525 applies the Municipality should have followed the procedure mentioned in section 156 of levy by distress on failure to pay, but we accept the contention of the learned Advocate for the Municipality that the procedure laid down in that section obviously applies to cases where the owner is known or where the ownership is not disputed. We have not been shown any provision in the Act or any authority of any of the Courts that even in cases of section 525 the procedure prescribed in section 156 ought to be followed. It is then pointed out on behalf of the appellant that the evidence of D. W. 2 read with the endorsement made by him on Exhibit indicates that there was no regular service of the notice, that this peon did not go to the holding in question and that therefore even the procedure laid down in section 525 has not been followed. In support of this contention, reliance is placed on the evidence of D. W. 2, who stated that as he was living in the neigbbourhood of the holding, he should have come to know of the affixture of notices if they had been affixed but in fact he was not aware of it. The statement in the evidence of the peon on which reliance is placed is this: D. W. 1 Monoranjan told me in the Municipality that the house would be pointed out by anybody if any mention be made of the name of Manir Ahmad. I do not recollect the names of the persons from whom I made enquiry and thus selected the house . In the endorsement on Exhibit C the house is mentioned as in Jamal Khan Moballa whereas in the proclamation it is stated again Enayet Bazar Moballa and the same description is given in the sale deed which the Municipality executed in favour of the purchaser. We have considered this evidence but we are unable to agree with the learned Advocate for the appellant. It is true that nothing has been elicited against D. W. 2 to show that he is interested, but he did not say that he went to the house and did not find the notices hanging by the door or affixed to it. His evidence is only this: "Had there been any service of notice I would have known of it". Though it is not established that be is interested in the plaintiff, yet he does not seem to be quite reliable, for he deposed in his examination‑in‑chief that the 2nd defendant was a contractor of the Municipality but in cross‑examination he had to admit that he did not know the 2nd defendant. It is difficult to place any reliance on a witness of this kind. As regards the evidence of the peon, it is no doubt clear that he himself did not know the house, but his statement that the Tax Collector told him that anyone in the locality would show it if he says that the house was of Manir Ahmed indicates that that house was well‑known. As a matter of fact, it is the case of the plaintiff himself that Maniruddin was a Sub‑Deputy Collector in Chittagong and that that was the reason why the plaintiff had this house built through Maniruddin and Maniruddin lived in that house after it was built. It is no doubt true that in the endorse ment on Exhibit C the Mohalla is mentioned as Jamal Khan Mohalla and not Enayet Bazar Mohalla, but the peon has not been cross‑examined in this respect. In the absence of any cross‑examination of the peon on this point, we decline to draw any inference adverse to the peon, for, it is quite possible, if not probable, that this locality is known under both the names. Some criticism is offered by the learned Advocate of the evidence of the Tax Collector also. It is stated that his evidence that there was no occupant of the holding in 1943, when he sent the report to the Municipality‑Exhibit A‑is belied by the evidence of the Clerk of the Collector, P. W. 4, but the evidence of this witness does not appear to us to be quite definite. He says: "We left it at the time of Military occupation in 1943". In fact, he was not the person who took the house on rent. According to him, it was his brother who arranged for the house and it was his brother who used to pay the rent but that person was not examined. The report of the Tax Collector shows that on the 2nd April. 1943, the house was vacated and it is common ground that the Military started occupying it in May, 1943. We, therefore, consider that the procedure laid down in section 525 was followed. In this connection, the learned Advocate for the Municipality draws our attention to section 538 which says that no distress or sale made under this Act shall be deemed unlawful nor shall any person making the same be deemed a trespasser on account of any error, defect or want of form in the bill, notice, summons, warrant of distress, inventory or other proceeding relating there to His argument is that even if there was any error or defect in the sale it cannot be set aside on that ground, The learned Advocate for the appellant is unable to show any provision similar to the one in the Civil Procedure Code or in the Revenue Sales Act to the effect that an irregularity causing material prejudice would vitiate the sale. However, we do not find it necessary to discuss in this case, whether a sale under the Act can be set aside if the error or defect materially affects the person concerned as, for the reasons stated above, we are satisfied that there was no irregularity in the publication of the requisite notices. Even if it is assumed that the considerations that prevail in the sales under the Code or the Revenue Sale Law can be said to apply to sales under the Municipal Act also, we wish to make it clear that we do not hold that such provisions apply it cannot be said that there is any material prejudice caused in this case by the inclusion of Rs. 93‑9‑0 in the statement of arrears. This inclusion however, irregular it may be, could not have affected the sale price nor can it be said that the amount wrongly included was so large that the plaintiff could not find the money to pay the tax and avert the sale. It cannot of course be disputed that the Civil Court can interfere and set aside the sale if collusion or fraud is established, and as stated above the learned Advocate for the appellant addressed a major portion of his argument on this point, but having been through the evidence and having considered the facts of the case we are unable to accept his contention that there was collusion between the defendants. At first sight the inclusion in the statement of arrears of the amount which had been received from the Military may appear to be suspicious but the explanation given by the learned Advocate for the 1st defendant, namely, that as it was an amount paid by the Military after the property had been requisitioned and there were already previous arrears it was kept in deposit seems to be plausible, though, as the learned judge has pointed out, the Municipality should have credited that amount. But from that circumstance alone it is unreasonable to even suspect fraud. As a matter of fact, the learned Advocate for the appellant does not base his contentions about fraud on this one circumstance alone. He stressed the evidence of the plaintiff' that the 2nd defendant is a Municipal contractor but this portion of the evidence again is unsatisfactory. We have had occasion already to refer to the evidence of D. W. 2 on this point. Having stated that the 2nd defendant is a contractor, he had to admit in the cross‑examination that he did not know him at all. As far as the plaintiff is concerned, his evidence is that he did not know personally occasion already to refer to the evidence of D. W. 2 on this point. Having stated that the 2nd defendant is a con was in collusion with the 1st defendant in bringing about the sale, but curiously enough P. W. 3 himself does not say anything on this point. He does not even refer to the 2nd defendant as a Municipal contractor. The 2nd defendant definitely stated on oath that he was not a Municipal contractor and it is significant that it was not even suggested to the Tax Collector that the 2nd defendant was a Municipal contractor. It is also significant that paragraph 6 of the plaint which alleges collusion and fraud starts with the words "that it appears that defendant No. 2 is a contractor doing Municipal works". A perusal of the evidence on record has left this impression on our minds that the allegation of collusion and fraud, Mput at the highest amounts to a mere conjecture by the plaintiff. The learned Advocate for the appellant finally points out that his client had lost a valuable property, his title to which had been confirmed by the appeal of Maniruddin's heirs having been dismissed by the High Court; but this is hardly a consideration that can weigh with us in deciding the question before us. It is true that the amount of arrear really due was only Rs. 62 and odd, but the plaintiff has to thank himself for not having been diligent enough to pay the tax and avoid the sale. In the circum stances, we see no reason to interfere. The appeal is dismissed; but we make no order as to costs. AKBAR J.‑

I agree. A. H. Appeal dismissed.