HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 28 Case :- WRIT - C No. - 4072 of 1996 Petitioner :- Hari Bhagwan Agarwal Respondent :- Nagar Palika Petitioner Counsel :- Vinod Prasad Respondent Counsel :- Sc Hon'ble Sudhir Agarwal,J.
The writ petition is directed against the judgment dated 18.9.1995 passed by the Additional District Magistrate, Badaun rejecting petitioner's appeal filed under Section 160 of the Municipalities Act, 1916 (hereinafter referred to as the Act).
It is contended that the appeal was preferred before the District Magistrate, Badaun, who is the competent appellate authority under Section 160 of the Act, but he illegally and exceeding his authority transferred appeal to the Additional District Magistrate, Badaun, who has rejected the same by means of impugned order. Relying on para 18 of Division Bench decision of this Court in State of Uttar Pradesh v. Ratan Shukla, 1956 Cr.L.J. 579 it is contended that the District Magistrate was not competent to transfer the appeal instituted in his court and, therefore, the impugned order is wholly without jurisdiction.
Learned counsel for the respondents, however, submitted that the District Magistrate was authorized to transfer the appeal and there is no error in the impugned order.
I have considered the submissions.
Section 160 of the Act reads as under: -
"160. Appeals relating to taxation. - (1) In the case of a taxed assessed upon the annual value of buildings or lands or both an appeal against an order passed under sub-section (3) of Section 143 or under sub-section (3) of Section 147, and, in the case of any other tax, an appeal against an assessment, or any alteration of an assessment, may be made the District Magistrate or to such other officer as may be empowered by the [state Government] in this behalf."
Nothing has been placed by the respondents before this Court to show that the Additional District Magistrate was one of such officer, who was empowered by the State Government to decide appeal preferred under Section 160 of the Act. In the case in hand, the appeal was filed before the District Magistrate, who is an authority mentioned in Section 160 of the Act. Being an appellate authority he ought to have decided the same unless empowered to transfer appeal to some other court. Nothing has been placed before this Court to show that the District Magistrate was authorized to transfer appeal to the Additional District Magistrate.
The question as to whether such transfer by District Magistrate to Additional District Magistrate is permissible has been specifically considered by a Division Bench in paragraph 18 of the judgment in State of Uttar Pradesh v. Ratan Shukla (supra). It reads as under: -
"18. But the matter is not quite simple; the appeals were not instituted in his court but were transferred to him by the District Magistrate. A District Magistrate has not been invested with any power to transfer appeals under Section 160 to an Additional District Magistrate. An Additional District Judge can also decide an appeal but it does not follow therefrom that a District Judge can transfer an appeal from his file to that of an Additional District Magistrate without any statutory provision authorising him to do. Whenever a court ha power to transfer a case to another court, it is expressly conferred upon it by enactment. It follows that there is no power of transfer in the absence of an enactment. The District Magistrate could not have, therefore, transferred the appeals to Sri S.M. Ifrahim."
Moreover, learned counsel for the respondents has not shown to this Court that State Government has issued any order authorizing Additional District Magistrate to decide appeal under Section 160 of the Act.
Reliance, however, is placed on Full Bench decision of this Court in Brahm Singh v. Board of Revenue U.P., Allahabad and others, 2008 (5) ADJ 331. A perusal thereof shows that the matter was considered by the Full Bench in the context of Sections 11, 14, 14 - A and 15 of U.P. Z.A. & L.R. Act vis-a-vis Section 198 (a) of the U.P. Z.A. & L.R. Act. The controversy, as in the present case, was not for consideration before Full Bench, therefore, the aforesaid judgment does not help the respondents. The provisions of the two statutes and their language is different.
In the result, writ petition is allowed. Impugned order dated 18.9.1995 (annexure 6) passed by the Additional District Magistrate, Badaun is set aside. The matter is remanded back to the District Magistrate, Badaun, who shall pass fresh order in accordance with law after affording opportunity of hearing to all the concerned parties. No costs.
Order Date :- 5.4.2011 Anupam