P L D 1958 Dacca 47 (PLP)

(2) Whether the creation, valuation and assessment of holding No. 71‑A is illegal, ultra vires and void ? (3) What relief, if any, are the plaintiffs entitled to ? The trial Court held that the civil Court had jurisdiction to try the suit and that in the facts and circumstances of the case the entire dag No. 475 comprised of holdings Nos. 69 to 71 at the time of the amalgamation thereof into a single holding and hence the creation of holding No. 71‑A after the final publication of the. Quinquennial Assessment List was illegal and without jurisdiction, since this could not have been done by the Chairman, but only at a duly constituted meeting of the Commissioners of the Municipality in accordance with the provisions of section 138 of the Bengal Municipal Act, 1932. In this view of the matter, the trial Court also held that since the mandatory provisions of sections 138 and 147 of the said Act had not been followed, the assessment was alsp illegal and without jurisdiction. With regard to the contention that the assessees were bound to exhaust their remedies under the Municipal Act before coming to the civil Court, particularly, since their application under section 148 of the said Act was still pending before the Municipality, the learned Munsif took the view that the Municipality by indefinitely postponing the disposal of the said application could not deprive the Court of its jurisdiction to hear the matter and concluded that the assessees had, therefore, exhausted their remedies under the Act. The learned Munsif, therefore, decreed the suit and declared the. creation, .valuation and assessment of holding No. 71‑A ultra vires and restrained the defendant Municipality from realising the rates so assessed. On appeal before the learned Subordinate judge, it was conceded oil behalf of both the , parties that if holding No. 71‑A had really been carved out of the pre‑existing amalgamated holdings Nos. 69 to 71, its creation, valuation and assessment would be ultra vires and the civil Court would have the jurisdiction to declare them such. The learned judge, therefore, considered mainly the question as to whether the said holding had been carved out of the said amalgamated holding and, upon the consideration of the evidence, both oral and documentary, came to the view that holding No. 71‑A, having originally consisted of a ditch, never formed part of the amalgamated holdings Nos. 69 to 71 and hence it had not been carved out of the said amalgamated holding. The creation, therefore, of the disputed holding No. 71‑A was not, according to the learned Subordinate judge, ultra vires. Having held this, he went on to consider whether the valuation and the assessment thereof had been made in conformity with the provisions of the Bengal Municipal Act. He took the view that the learned Munsif was entirely wrong in thinking that section 138 of the said Act applied to this case. According to the learned Sub ordinate Judge, an assessment of this kind fell under sec tion 133 of the said Act and the powers under section 133 could be lawfully exercised by the Chairman under section 51 of the said Act. In this view' of the matter, he found that all the steps required to be taken for an assessment under sec tion 133 had been duly complied with by the Municipality and, therefore, the assessment and valuation were also legal. He accordingly reversed the decision of the learned Munsif and dismissed the suit. It is against this that one of the plaintiffs has now come up on appeal to this Court, The learned Advocate appearing for the appellant has frankly conceded that he cannot in second appeal challenge the finding of the lower appellate Court that holding No. 71‑A was not carved out of the pre‑existing amalgamated holdings Nos. 69 to 71 and, as that is a finding of fact, it cannot be disturbed by this Court in second appeal. Fie, therefore, directed his attack against the judgment of the lower appellate Court solely on the ground that the lower appellate Court had misconceived, misread and mis‑applied the provisions of the Bengal Municipal Act, According to the learned Advocate, the lower appellate Court was wholly wrong in thinking that a case of an assessment of a property or holding which has become liable to be assessed after the authenti cation of the Quinquennial Assessment List under sec tion 147 of the said Act or the assessment of a holding which escaped such assessment at the time could possibly be covered by sections 133 to 136 of the said Act. He has drawn my attention to the case of the Chairman of the Municipal Commossaoners of Kushtea v. Satish Chandra Saha and others (23 C W N 611), where Chitty and Panton JJ, had occasion to consider the corresponding provisions of the then Bengal Municipal Act of 1884. Their Lordships there observed with reference to section 108 of the said Act, responding to section 138 of the present Act that "that section does not provide for enhancement of valuation and rating of any holding except where it appears to have been insufficiently valued or rated through mistake, oversight or fraud, which is not the case here". From this, the learned Advocate argues that in the present case also, on the Municipality's own showing, it was a case where through mistake or oversight the valuation add assessment had not been made. It seems to ate that the contention of the learned Advocate is sound and section 133 cannot upon its plain reading have any manner of application to such a case, for, admittedly in the present case, the valuation and assessment was sought to be made after the Quinquennial List had been . finally published under section 147 of the said Act. Section 133 reads thus "When it has been decided to impose any rate to be assessed on the annual value of holdings, the assessor, after making such inquiries as may be necessary shall determine the annual value of all holdings within the municipality in the manner provided in this chapter, and shall enter such value in a valuation list." They very opening words of the section, in my opinion, clearly refer to a prior decision to impose a rate "on the annual value of holdings" and not a single particular holding. This obviously refers to the decision to impose a rate under section 135 and the provisions of section 133 are not attracted at all. Again, section 133 requires the assessor to determine "the annual value of all holdings within the municipality" and not the value of a particular holding. In this view of the matter, I think that section 133 of the said Act refers to and is attracted only when the general assessment is being made and not when the holding has escaped assessment and is subsequently sought to be assessed. In such circumstances, the learned Munsi was, in my view, quite correct in saying that the only section of the Bengal Municipal Act which was applicable was clause (a) of subsection 1 of section 138 which reads as follows "Section 138, (1). The Commissioners at a meeting may, at any time, direct alteration or amendment of the assess ment list‑ (a) by entering therein the name of any person or any property which in their opinion ought to have been entered, or any property which has become liable to taxation after the authentication of the assessment list under section 147." Therefore, if section 138 is the specific section applicable to the present case, then the assessment and valuation made by the Chairman and not the Commissioners at a meeting without following the provisions of section 138, subsection (1), was an illegal assessment. The Chairman could not in exercise of his powers under section 51 of the said Act make an assessment of this kind. Section 51 itself makes a distinction between the transaction of ordinary business of the Municipality and the powers which the Commissioners are under the said Act required to exercise at a meeting as under section 138 of the said Act. This distinction was clearly pointed out in the case of Chairman, Howrah Municipality v. Ramsarup Serougee (A I R 1926 Cal. 1073) where it was, held that similar authority given to the Chairman under section 44 of tile Act of 1884, corresponding to present sec tion 51, did not include the power to exercise the functions of the Commissioners which could only be exercised by them under the Act at a meeting. It may be pointed out here that there is no dispute with regard to the fact that the assessment in the present case was made by the Chairman without giving any notice under subsection (2) of section 138 of the said Act. Hence, having regard to my reading of the provisions of the Bengal Municipal Act, I must hold that the learned Subordinate Judge totally erred in the interpretation of and the appli cation of the said provisions and his decision cannot be maintained. There remains only one other question to consider, namely, whether the civil Court had jurisdiction to try the suit, particularly, in view of the fact that tile application for review was still pending at the date of the suit. By subsection (4) of section 149 of the said Act, it is provided that the decision of a committee of Commissioners appointed to hear such applications for review under section 148 or of a majority of the members of the said Committee shall be final. Then. sec tion 150 provides that no objection shall be taken to any assess ment or valuation in any other manner than the one provided under the Act. Neither section 148 nor section 149 of the said Act. however, fixes any time within which such applications must be disposed of although time has been fixed within which such an application should be made. According to tile well- accepted rules of interpretation that where a statute does not fix a specific period for the performance of a particular act, it must be taken that the act is to be performed within a reasonable time. In the present case, the application, as I have already pointed out, was made on the 31st of July 1945, but even up to the 3rd of October 1945, the Municipality did not take the trouble, either to appoint a committee or to dispose of the said application. Such failure on the part of the Municipality was sufficient, in my view, to indicate that the Municipality was not minded to dispose of or finally determine the said application filed under section 148 and that by itself not only amounted to a refusal to entertain it but was also a breach of a statutory duty provided by the Act which requires that every such application presented under section 148 shall be heard and determined. Again, it is now, I think, well‑established that these provisions of subsection (4) of section 148 and section 151 do not oust the jurisdiction of the civil Court where and assessment is not made in conformity with the law or is illegal or is ultra vires, as was held in the case of the Chairman of the Rajpur Municipality v. Nagendra Nath Bagchi (23 C W N 475). In that case, Chatterjee and Newbould, JJ., held that section 116 of tile Municipal Act of 1884, corresponding to the present section 150, does not take away the jurisdiction of civil Courts in a case in which it is alleged and established that the assessment the propriety of which is in controversy is open to objection on the ground that it is ultra vires ; in other words, it is only when the action of the Municipality has been exercised in conformity with the powers con ferred .upon it by the Act that the civil Court has no authority to interfere. In this view of the matter, the present suit, notwithstanding the pendency of the applica tion for review under section 146, was also triable by the civil Court. The result, therefore, is that this appeal is allowed, the judgment and decree of the Court of appeal below are set aside and that of the Munsif restored. Since no one has appeared on behalf of tile Municipality to oppose this appeal, there will be no order as to costs. Z. A. S. Appeal allowed.