P L D 1958 Dacca 103 (PLP)

(6) Is the assessment of the holding by the Municipality final and binding on the plaintiff ? (8) What relief, if any, is the plaintiff entitled to ? The learned Subordinate judge after consideration of the evidence on record came to a finding that there was no substance in the allegations of the plaintiff that there was no new construction on the disputed holdings or that there was no arrangement for supply of water and conservancy in the mill area. It was also found that notice had been served upon the plaintiff before the assessment was made and that the decision of the Appeal Committee being final, the Civil Court had no right to interfere in the matter. The suit was accordingly, dismissed with costs. Hence the appeal by the plaintiff. During the hearing of the appeal, two applications for amendment of the plaint were made and they being more or less of a formal nature have been allowed by us after giving opportunity to the respondent for filing additional written statement, if so advised. By the first amendment, the appellant sought to include in Schedule A to the plaint also the assessment for the second quarter 1952‑53 in respect of the holdings in suit and by the second amendment a consequential relief by way of permanent injunction has been added in order to meet an objection on the ground of section 42 of the Specific Relief Act. It appears that the respondent took a plea on this score in paragraph 5 of the written statement but either any issue was framed nor any decision was taken hereon in the trial Court. The appellant has put in the requisite additional Court‑fee required for the amended plaint as also for the memorandum of appeal. Mr. Asrarul Hussain, appearing for the plaintiff‑appellant, has pressed only two points before us. They are as follows (1) The defendant Municipal Board having failed to arrange for supply of water and conservancy service is not entitled to assess the holding with water rate and con servancy tax ; (2) The Appeal Committee having not been constituted according to law, the disputed assessment is illegal and without jurisdiction. In view of the evidence on record, he did not propose to contend that no new construction had been made. Mr. Sisirkumar Sen, appearing for the respondent, how ever, contends that there has been no failure on the part of the Municipality to provide for conservancy or for supply of water, and that there was no illegality in the constitution of the Appeal Committee or in the decision which has become final under section 149 of the Bengal Municipal Act. He also contends that the plaintiff Company having submitted to the jurisdiction of the Appeal Committee and reduction in the valuation having been made accordingly, the matter cannot be re‑agitated in the Civil Court. It appears on a reference to the evidence on record that D. W. 1 Rashik Lal Saha who is an employee of the Munici pality has proved that there are arrangements for conservancy in the area in which the Mill is situate, and that there are service latrines in the Bawa Jute Mills. The witness could not be shaken on this point in his cross‑examination. No local investigation also appears to have been taken out at the instance of the appellant Company in order to ascertain as to whether there is in fact no arrangement for conservancy it' the area where the Mill is situate. It is admitted by P. W. 1 in his cross‑examination that there are water taps on the municipal roads and that the mill area is very near to them. Reference has been made on behalf of the appellant to the letters dated 26th August 1952 and 29th October 1952, which have been marked as Exhs. 3 and 3 (a) respectively. They do not, however, indicate that the Municipality has refused independent, individual water connection to the holdings in question. Exh 3 is a letter addressed by the Vice‑Chairman to the plaintiff Company according sanction of water connec tion and Exh. 3 (a) is another letter addressed by, the same Vice‑Chairman informing him about the critical supply position in East Bank Water Works and consequent sus pension of the sanction for the time being. No material has, however, been placed before us to hold that the Municipal Board has levied water rate on the disputed holding contrary to the provisions of section 125 of the Bengal Municipal Act. It is not the case of the appellant that there is no provision for supply of water in the area concerned. The evidence of P. W. 1, as noted, proves that there has been no infringement of the conditions as laid down in section 125 of the Act. It has also been proved by D. W. 1, as stated above, that there is arrangement for conservancy service in the area where the Mill is situate. There is thus no material or evidence on record to, show that there has been any breach of the statutory conditions of section 126 of the Bengal Municipal Act. We do not think that the appellant has been able to establish that there is no conservancy service available to the mill area, or that there is no provision for supply of water in the area where the mill is situate. Nor have we any reason to think that in suspending the individual or special sanction. as per Exh. 3, the Vice‑Chairman has been actuated by any mala fide motives or that such suspension is anything but of a temporary nature. The holdings in suit would, therefore, be liable to be assessed with conservancy and water rates, although the amount of such rates would vary according to the annual valuation that might be determined from time to time. The validity of the new rate will, however, depend upon the validity or otherwise of the revised assessment of the annual valuation which we propose to consider in con nection with the second point raised by Mr. Hussain. The second contention is as to the illegal constitution of the Appeal Committee and consequent unauthorised assess ment of the holdings in question. The learned Subordinate judge has taken the view that the decision of the Appeal Committee is final and the Appeal Committee in respect of Ward No. 3 where the holdings are situate was constituted with the Chairman and 4 other Commissioners. Its finding cannot be disputed in view of the evidence of D. W. 1, who says that the, Appeal Committee was constituted of 5 Commissioners. Exh. D (1) which shows the relevant resolution of the said meeting of the Commissioners of the Narayanganj Municipality held on 11th April 1951 also supports this. The question raised before us is as to whether the decision of this Appeal Committee reducing the annual valuation from Rs. 54,000 to Rs. 45,000 only as per resolution dated 18th March 1952, can be said to have been final in view of the provisions of section 149 of the Bengal Municipal Act. Mr. Asrarul Hussain on behalf of the appellant contends that a resolution or decision of an Appeal Committee consti tuted under section 149 of the Bengal Municipal Act can be final only when it acts in conformity with the provisions of the Act and trot otherwise. He further contends that if the body of the Appeal Committee does not appear to have acted iii conformity with the provisions of the Bengal Municipal Act, theft the Civil Court's jurisdiction to interfere cannot be said to have been ousted. The learned Advocate for the respondent does not seriously dispute this proposition of law. In view of the provisions of section 9 of the Code of Civil Procedure, it may be stated here that, unless by any special enactment the jurisdiction of the Civil Court appears to have been expressly or impliedly barred, it may be presumed for all practical purposes that a Civil Court has jurisdiction over the subject‑matter of a suit of a civil nature. But then if the jurisdiction of the Civil Court to entertain a suit like this does not appear to have been barred or ousted, the further question remains as to whether the Civil Court will at all interfere in the facts and circumstances of the present case. The learned Subordinate judge, relying upon the decision in the case of Municipal Commissioners of the Pabna Munici pality v. Naba Gobinda Choudhury(46 C W N 830) has come to the con clusion that the Court has no right to interfere in the matter, In our view, the principle involved and decided in that case cannot be applied to the facts of the present case. In that case the main question was as to whether a suit was main tainable by an assessee for a declaration that the assessment was ultra vires and illegal on the ground (1) that the Munici pality had not followed the proper procedure laid down in section 138 (2) in altering or amending the assessment list or (2) that no notice under section 147 (2) was given to the assessee before enhancing the assessment. It was found by the Courts below 'that no notice under section 147 (2) was given to the plaintiff in that case and that as regards the corrections in the list the procedure laid down in section 138 of the Act was not followed and, in particular, no notice was given under section 138 (2) as well. It appeared in that case that while steps were being taken under section 525 of the Act, a petition was made to the Municipality on behalf of the assessee for reduction of the annual valuation of the holding in question. The plaintiff was merely concerned to have the valuation for the assessment reduced. He made no complaint about the corrections or alterations in the list. It was held that if there was any irregularity prior to the correction made by the Chairman, it was fully cured by the action taken under section 148 and that the objection being in regard to an error of procedure in one of the stages of assessment, it could be corrected by the procedure laid down under the Act. The plaintiff in that case was found to have made full use of such procedure in attempting to get the assessment corrected by a reduction in the annual valuation. A question as to whether all the formalities required by section 149 were duly carried out was raised but it was found, in view of the state of record, that it was useless for the plaintiff to contend that there was anything wrong in those proceedings or to ask the Civil Court to interfere on the ground that such proceedings were void for any illegality. It can hardly be disputed that if a statutory body like the Municipality does not act in accordance with the provisions of the relevant Act, the Civil Court is quite competent to pronounce that the action of the Municipality is tainted ors vitiated with illegality. Reference may be made in this connection to Chairman, Rajpur Municipality v. Tiagendra Nath Bagchi (29 C L J 379) and Municipal Committee, Montgomery v. Master Sant Singh (A I R 1940 Lah. 377 (F B)) In the present case, the principal grievance of the plaintiff is that the Appeal Committee was not properly constituted either on 8th March 1952 or on 18th March 1952, and that the resolution adopted on 18th March 1952, was wholly illegal as it was not in accordance with the requirements of section 149 of the Act. It is contended on behalf of the appellant that in the absence of any proof that a quorum has been fixed in terms of section 149 (3), it should be held that there could be no valid meeting of the Appeal Committee as formed under subsection (i) of section 149 unless all the 5 members including the Chairman attended the same. Alternatively, it is argued that even if it is claimed that in view of. rule 49 as framed under section 91 of the Bengal Municipal Act only 2 members would constitute a quorum, yet the number fall short of the requisite quorum on 9th March 1952, as also on 18th March 1952, when only the Vice‑Chairman and none else seems to have been present. The learned Advocate for the respondent, however, relied on the provisions of section 82 (3) of the Act and contended that irrespective of the question of quorum, the meeting that was due to be held on 8th March 1952, stood automatically adjourned to some future date and the adjourned meeting being accordingly in order, the validity of the resolution as adopted on 18th March 1952 could not be questioned. He does not like to take his stand either on rule 49 referred to above, or on any other rule framed under section 91 of the Act. He makes his submission on the footing that no quorum had been fixed as required under section 149 (3) of the Act. We do not think that the contention of the learned Advo cate for the respondent is very sound. The word 'quorum' as used in subsection (3) of section 82 should be understood by reference to the same word as used in subsection (2). If it were the intention of the Legislature to imply `quorum' in the same sense for the purpose of section 149, as indicated in section 82, it is not understood why it has been specifically provided in section 149 (3) that quorum should be fixed by the Commissioners at a meeting. It is also difficult to appreciate how a quorum which in relation to a committee of 4 members only is likely to be fixed under section 149 (3) at a number much below that figure can also be compatible with the statutory fixed number of 5 as indicated in section 82 (2) of the Act. In our view, the specific provision for quorum as indicated in section 149 (3) has been intended to be meant only for the purpose of the committee that is to be constituted under section 149 (1) and the word 'quorum' as used in subsection (3) of section 82 must be understood by reference to subsection (2) of the same section. We are further of opinion that the 2 sections are not intended for the same purpose. The word 'meeting' as used in section 82 (3) refers to a meeting of the Commissioners as implied in subsection (1) of the same section. The principle to be followed in a matter of fixation of quorum and eventual adjournment of meeting for want thereof as indicated in section 82 seems to have been laid down for the purpose of general body of the Commissioners of the Municipal Board and can by no stretch of imagination be intended for the purpose of conducting a business of the Appeal Committee in terms of section 149 of the Act. It is, therefore, not possible to contend that in the event of absence of quorum, a meeting of the Appeal Committee would automatically stand adjourned. The learned Advocate for the respondent could not place any material to show that any quorum was at all fixed in terms of section 149 (3) of the Act. It is needless to observe that if he cannot invoke the aid of section 82 (3) in support of his contention that the meeting of the Appeal Committee stood automatically adjourned, then he cannot also maintain that the resolution as adopted on 18th March 1952, was in conformity with the provisions of the Act. In view of what has been stated above, it cannot also be disputed that, only one member instead of five being present on 18th March 1952, the Appeal Committee was not, legally constituted and that there was no meeting of the Committee on such dates accord‑C ing to law and further that the impugned resolution was not protected under section 92 of the Act. This leads us to the conclusion that the Appeal Committee being not constituted according to law, the revised assessment purported to have been made on those dates was illegal and without jurisdiction. There being no legally constituted Appeal Committee the question of submission to its jurisdiction appears to be wholly immaterial. The objection of the appellant that was due to be considered by the Appeal Committee cannot be said to have been disposed of according to law and it must be deemed to be still pending before that body. It has been contended on behalf of the respondent that the review application as per Exh. C which was dated 13th March 1952, was filed beyond one month from the date of publication of the notice required under section 147 (1) and that, as such, it could not be received at all contrary to the provisions laid down in section 148 (2) of the Act. We do not think it necessary to examine in detail the merits of this contention of the learned Advocate for the respondent, as no such point was ever taken at any stage before this and the application in question was in fact received and has all along been claimed to have been properly disposed of by the Appeal Committee. It was also urged that the suit was brought more than 6 months after the date of the cause of action and that, as such, it was barred under section 535 of the Bengal Municipai Act. Apart from the fact that the suit appears to have been instituted on the 1st January 1953, which is within 6 months from 8th September 1952, the alleged date of cause of action as stated in paragraph 12 of the plaint, this point was also not agitated at any stage before this and we do not think there is any substance in either of these two contentions. Lastly it was argued that in view of the amendment of the plaint by inclusion of second quarter of 1952‑53, in Schedule A and by addition of a relief in the shape of permanent injunction the defendant‑respondent was entitled to a fresh notice of such amended plaint and the suit and the appeal could not proceed without it. Opportunities were given to the defendant‑respondent to file additional written statement and, in fact, one additional written statement has been filed. The learned Advocate for the respondent could not cite any authority for the proposition that the Court could not proceed further in the matter without service of a fresh notice of the amended plaint according to section 535 of the Bengal Municipal Act. This contention of the respondent must also, therefore, fail. In the result, the appeal is allowed and the judgment and decree of the trial Court are set aside. The suit will be decreed in terms of the prayer as formulated in the amended plaint. The respondent will pay the costs of this Court as also of the trial Court to the plaintiff‑respondent. ISPAHANI, J‑I agree. Z. A. S. Appeal allowed.