Krishna Kishore Mukherji vs Commissoners of the Naihati Municipality

Mitter, J.—The point involved is one of importance and is whether or not the Respondent Municipality has had power to split up the two holdings belonging to the Petitioners. The holdings concerned were Nos. 44 and 45. The Petitioners'' complaint is these two holdings have been illegally split up into four holdings numbered 46, 47, 48 and 49. It is also the Petitioners'' complaint that the Municipality has illegally valued these split up holdings. They, therefore, pray for appropriate reliefs including an injunction restraining the Respondents from realising rates and taxes on the basis of the newly-formed holdings.

The Respondents'' contention is that the two old holdings numbered 44 and 45 have been re-numbered 46, 47, 48 and 49 and not split up. As to valuation, the Respondents'' case is that they purported to act u/s 215 of the Bengal Municipal Act, 1932, and the Rules thereunder. It is common case that the Respondents did not act u/s 129.

Mr. Dutt appearing on behalf of the Respondents has contended that as the Petitioners submitted to the jurisdiction of the Assessment Review Committee of the Municipality, they are precluded from seeking reliefs under Article 226 of the Constitution. Mr. Dutt has also contended that the point as to jurisdiction on the part of the Municipality to re-number or to split up the old holdings not having been taken earlier, the Petitioners cannot be heard on the point.

Miss Chatterjee appearing on behalf of the Petitioners has contended that in view of Section 3(21) of the Bengal Municipal Act, neither of the two holdings concerned could be split up. In other words, according to Miss Chatterjee, there was no power in the Municipality to split up any holding. Mr. Dutt on behalf of the Municipality appears to me to concede that there is no express power in the Municipality to do so but that there is implied power to re-number the holdings. In support of his contention, Mr. Dutt has referred to Section 215 read with Section 134 of the Act. In this connection, I have also been shown the Rules made u/s 215.

As on the facts I have taken the view that the Municipality, in fact, split up the old holdings and not merely re-numbered them, it is not necessary for me to decide whether or not there was power in the Muicipality to re-number the holdings. Mr. Dutt was obliged to admit that notwithstanding the allegation that the old holdings were only re-numbered, there are at present four holdings instead of two. The area covered by the old holdings is equal to the area covered by the present four holdings. I accept Miss Chatterjee''s contention that in view of Section 3(21) of the Bengal Municipal Act there is no power in the Municipality to split up the holdings or to re-assess the lands concerned on the basis of newly-formed holdings.

The purported re-numbering was, in my view, a pretence for a further assessment. The Petitioners are said to have agitated the matter before the Assessment Review Committee to obtain a certain amount of relief. The Petitioners are also said to have paid the new rates and taxes, according to the Petitioners under protest but according to the Respondents without any objection. There is no doubt that the Petitioners were unaware of their rights in the matter and that the payment of the new taxes with or without protest cannot affect their right to question the jurisdiction of the Municipality to split up the holdings and to assess the freshly formed holdings. If the Municipality had no jurisdiction in the matter, the submission by the Petitioners to the jurisdiction of the Assessment Review Committee cannot preclude them from seeking appropriate reliefs here. If the Municipality had no inherent jurisdiction in the matter, the submission by the Petitioners to any pretended jurisdiction cannot confer jurisdiction on the Municipality.

In the foregoing circumstances, I must hold that the purported splitting up of the holdings and the consequent assessment as well as the proceedings before the Assessment Review Committee were wholly without jurisdiction. Accordingly, all resolutions, orders and/or directions relative to the purported re-numbering or splitting up of the holdings as well as the consequent proceedings relative to re-assessment are set aside. The Petitioners are entitled to the costs of this application, the hearing fee being assessed at 3 G.M.s. The Rule is made absolute.

The Petitioners will continue to pay rates and taxes on the basis of the old holdings until there is a fresh assessment in accordance with law.