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Biridi Chanda Mada Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax;Constitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 5 of 1956
Judge
Reported inAIR1958Ori159
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151; Orissa Municipal Act, 1950 - Sections 156 and 156(2)
AppellantBiridi Chanda Mada
RespondentState of Orissa and ors.
Appellant AdvocateA. Das, Adv.
Respondent AdvocateAdv. General, ;S. Misra and ;D.N. Singh, Advs.
DispositionPetition allowed
Cases ReferredLawrence v. Hodgson
Excerpt:
.....de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - but such a construction would go against the well known maxim of 'actus curiae neminem gravabit' (an act of court shall prejudice no man). the first review petition was filed as early as the 4th april 1955. the additional district magistrate had nearly two months time to pass final orders on that petition. i perfectly understand the principle upon which courts have permitted parties to enter up judgment after the period in which they could legally have done so, has elapsed where the delay originates in the court and but for which delay the judgment might have been regularly entered......favour with the additional district magistrate who on the 20th august 1955, rejected both the review petitions saying that he had no jurisdiction to pass any orders as the period of three months had expired.3. on a literal construction of the said proviso there is some room for argument that the order of the prescribed authority on a review petition must be passed within three months from the date of the appellate order. but such a construction would go against the well known maxim of 'actus curiae neminem gravabit' (an act of court shall prejudice no man). the first review petition was filed as early as the 4th april 1955. the additional district magistrate had nearly two months time to pass final orders on that petition.but for some reason or other there was delay and once the.....
Judgment:

R.L. Narasimham, C.J.

1. This is an application under Article 226 of the Constitution by an assessee residing within the limits of Cuttack Municipality, against an order dated the 20th August 1955, passed by the Additional District Magistrate, declining to review his previous appellate order.

2. The petitioner was the owner of two-houses in holding Nos. 1637/718 and 1640/722 of Ward No. 24 of Cuttack Municipality. The two holdings were assessed to Municipal tax and the petitioner filed two appeals, Nos. 2172 and 2173 against the assessment order, under Section 153 of the Orissa Municipal Act, before the Additional District Magistrate. The appellate authority dismissed both the appeals by his order dated the 11th March 1955. The petitioner then filed two petitions before the Additional District Magistrate, for review of his appellate order, one on the 4th April 1955 an respect of Appeal No. 2172 and the other on the 2nd June 1955 in respect of Appeal No. 2173. These petitions for review were filed under the proviso to Sub-section (2) of Section 156 of the Orissa Municipal Act which is as follows:

'156(2) The order of appellate authority confirming, setting aside, or modifying an order in respect of an assessment or valuation, or liability to assessment or tax, shall be final and binding.

Provided that it shall be lawful for the appellate authority upon application or on his own motion, to review any order passed by him in appeal by a further order passed within three months from the date of his original order.'

Both the review applications were admitted and the Additional District Magistrate as the reviewing authority made a local inspection on several dates. He was under the impression that so long as the review petition is filed within three months from the date of the appellate order it was maintainable and that the actual date on which he might pass the final order on the review petition was immaterial. The period of three months prescribed in the second proviso to Section 156 (2) of the Act expired by the 11th June 1955. Sometime later, however, it was urged before him that on a strict construction of the said proviso the actual order on the review petition should be passed within three months from the date of the appellate order and that as the said period had expired long ago he had no jurisdiction to exercise his powers of review. This argument seems to have found favour with the Additional District Magistrate who on the 20th August 1955, rejected both the review petitions saying that he had no jurisdiction to pass any orders as the period of three months had expired.

3. On a literal construction of the said proviso there is some room for argument that the order of the prescribed authority on a review petition must be passed within three months from the date of the appellate order. But such a construction would go against the well known maxim of 'actus curiae neminem gravabit' (an act of Court shall prejudice no man). The first review petition was filed as early as the 4th April 1955. The Additional District Magistrate had nearly two months time to pass final orders on that petition.

But for some reason or other there was delay and once the period of three months from the date of his appellate order expired that Officer thought that he had no jurisdiction in the matter. Similarly, though the second review petition was filed on the 2nd June 1955 and the Additional District Magistrate should have passed orders on it before the 11th June 1955 assuming that his interpretation of the second proviso to Section 156 (2) of the Act is correct. In both the instances, the delay is directly attributable to the action of the Court.

The Additional District Magistrate has frankly admitted in his counter-affidavit filed before us and also in his orders on the review petitions, that the delay was mainly due to his being under the wrong impression that the limitation of three months applied only to the date of filing of the review petitions and not to the date on which the final order on those petitions was passed by him. Thus, on his own wrong interpretation of the proviso the period of limitation was allowed to expire and the Court cannot take advantage of its own mistake to the prejudice and rights of a party.

4. There is an old English decision reported in Lawrence v. Hodgson (1827) 148 ER 713 (A) where the principle underlying the aforesaid maxim was reiterated, and Garrow J. observed:

'I perfectly understand the principle upon which courts have permitted parties to enter up judgment after the period in which they could legally have done so, has elapsed where the delay originates in the court and but for which delay the judgment might have been regularly entered. Where a case stands over for argument from term to term on account of the multiplicity of business in the court or for judgment from the intricacy of the question, a party ought not to be prejudiced by that delay but should be allowed to enter up his judgment retrospectively to meet the justice of the case'.

The observations, I think, would apply with full force in the present case especially as there is absolutely nothing on record to show that the petitioner was guilty of any laches which contributed to the delay in the absence of the final order by the Additional District Magistrate.

5. We would therefore set aside the order of the Additional District Magistrate, dated the 20th August 1955 and direct him to re-hear the two review petitions and dispose of them according to law. There will be no order for costs.

S. Barman, J.

6. I agree.


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