Ram Chor Prasad vs Bakshi Ram Krishna Sinha

Manohar Lall, J.—This is an appeal by the Patna Municipality who was the deft, in a suit instituted by the reap, on 11-4-1942 for a declaration that an additional assessment made on a certain holding in occupation of the pltf. was ultra vires of the municipality.

The suit was decreed by the Cts. below on a finding that there had been no additions & alteration in the holding in question, & therefore, no increase in the valuation of the holding had been made to justify the additional assessment.

The facts are these : The holding in question belongs to the pltf. who had let it out to the Regent Cinema along with some building contiguous thereto. In 1935-36, the tax payable for the holding was assessed at Rs 41-13-6 per quarter, & this assessment continued up to 11-3-1939. On 8-3-1939, the pltf. received a notice from the Municipality in which they proposed to fix the municipal tax at Rs. 191 3 0 a quarter on the ground that the valuation had increased by reason of additions & alteration made thereto. The pltf. preferred an objection which was heard by the Appeal Committee consisting of three Comrs.

which rejected the objection ignoring the report of the vice-chairman that there had been no additions & alterations in the holding. After the objection was overruled, the order for enhancement was passed on 19-12-1939. This was the cause of action for the suit.

The main defence of the applt, was that there had been an increase in the valuation of the holding on a count of additions & alterations, & secondly, that by reason of 9. 119, Bihar and Orissa Municipal Act, (hereinafter referred to as the Act) the civil Ct. has no jurisdiction to question the validity of the assessment.

The Cts. below have concurrently come to the conclusion on the question of fact against the applt. as stated already. That finding is binding in second appeal.

Mr. Girijanandan Prasad argued that the civil Ct. has no jurisdiction to question the validity of the assessment & that the only remedy of the pltf. was to appeal to the Assessment Committee which he did & as he failed there, his remedies are exhausted. On the other hand, it was argued by Mr. Jadunandan Prasad on behalf of the reap, that if the provisions of the Act are carefully considered, it will appear that the jurisdiction of the civil Ct. is barred only in that instance where the Act specifically declares that on the satisfaction of the Comrs. certain consequences ensue but where no such words are to be found then the action of Municipality can be challenged in the civil Ct. if the conditions giving the Municipality jurisdiction do not exist in fact. This distinction appears to be correct. (See Ss. 82 & 107 on the one hand & contrast with S3, 145 & 148).

The ambit of the jurisdiction of the civil Ct. was examined by Mukherjee J. in the leading case of the Chairman of Giridi Municipality v. Suresh Chandra, 85 cal. 859 : (7 C. L. J. 631). The case law was examined by me at length sitting with Beevor J. in Commissioners of Darbhanga Municipality Vs. Jyotindra Nath Sen and Another, , where I pointed out that the civil Ct. has jurisdiction to enquire whether a person is an occupier of a holding within the municipality, as the jurisdiction of a municipality to assess a person depends upon whether he is an occupier, & the comrs. cannot give themselves jurisdiction to assess a person who is not an occupier by a wrong decision of facts. I also observed that the remedy provided to an assessee under a. 116 of the Act is an alternative one, & the finality given in S. 117 (s) to a decision of the Committee is the finality between the assessee & She Comrs, In my opinion, the same principle must apply when considering s. 107 (d) & other Sub-clauses in that section. Take for instance S. 107 (1) (b): if the municipality substitute for the name of the owner or occupier of any holding the name of any other person who has not succeeded by transfer or otherwise to the ownership or occupation of the holding, the aggrieved party has a right to get his title declared in the civil Ct. & then, the order of the municipality, if found to be wring, would be altered. Same observations apply to sub-cl. (a). It seems to me, therefore, that the jurisdiction of the municipality to revalue or re-assess any holding on the ground of an in. crease in the value by reason of additions & alterations must depend upon the correctness of the finding whether there has been any addition or alteration. The extent of the additions & alterations cannot be questioned in the civil Ct. but the fact whether there has been any addition or alteration must be liable to be reviewed by the civil Ct.

It was then argued on behalf of the applt. that as the pltf did take recourse to file an objection under S. 116 of the Act & appealed to the Assessment Committee, he chose to waive his rights to come to the civil Ct. The short answer to this argument is that given by a D. B. of this Ct. in the case of Shiva Prasad Vs. Commissioner of Darbhanga Municipality, , where it was observed :

No doubt in this case the pltf. did 61e an objection under S. 116 of the Act, but having regard to the fact that the assessment itself was ultra vires need not have done so & ''could have at once brought a suit in the civil Ct. The pltf. cannot be in a worse position than if he had filed no objection at all under S. 116 of the Act.

The learned Judges thus distinguished the case of the Chairman, Municipality Vs. Ramkumar Choudhury, ; but that question does not arise for decision in the present case, & I prefer to express no opinion upon the correctness of that decision.

The result is that the appeal must be dismissed with costs.

Mahabir Prasad, J.

I agree.