Tollygunj Club Ltd. vs Corporation of Calcutta

Bachawat, J.—The Plaintiff, Tollygunge Club Ltd., holds 250 Bighas 12 Cottas of land with a few buildings and sheds thereon comprised in one holding and bearing the Municipal No. 44, Russa Road. Originally the holding was within the Tollygunge Municipality. By a notification of the Government of West Bengal the area where this holding is situated came within the Calcutta Corporation with effect from March 1, 1953. There was a quinquennial valuation by the Tollygunge Municipality with effect from the 1st quarter of 1952-53, that is to say, from April 1, 1952. In connection with this, revaluation the Assessor of the Tollygunge Municipality made a valuation of the holding. He assessed the annual value of the holding to be Rs. 90,000. Objection was preferred by the Plaintiff against the valuation. The objection was heard and disposed of by the Administrator of the Corporation of Calcutta who reduced the valuation to Rs. 77,500. The Plaintiff complains that the entire assessment proceedings including the valuation made by Assessor as also the order of the Administrator are illegal and ultra vires and asks for the necessary declaration and consequential injunction. The learned Trial Judge dismissed the suit.

I have come to the conclusion that the assessment of the Plaintiff''s holding is illegal for two reasons and should be declared to be invalid. Section 149 of the Bengal Municipal Act as also Rule 13 of the rules framed under the Act requires that the committee hearing the objection shall pass necessary orders "after "taking such evidence and making such inquiry as it may deem "necessary, in the presence of the objector or his agent if he "appears". The functions of the committee were at the relevant time discharged by the Administrator of the Corporation of Calcutta. I think that the Administrator contravened the previsions of Section 149 and of the Rule 13. On the materials before us, I am satisfied that the Administrator had before him at the time of the hearing of the objection that report on the assessment put up by the Assessor before the Commissioners of the Tollygunge Municipality under Rule 10 of the rules framed under the Bengal Municipal Act. The report was relevant and material evidence in the matter. The Plaintiff Assessee was represented by its agent at the hearing of the objection. In spite of request made by the agent at the time of the hearing the Administrator did not allow the agent to look at and scrutinise the report of the Assessor. It was the duty of the Administrator to allow the Plaintiff''s agent to see whatever materials were on the record which might be used against the Assessee and to call such evidence as the Assessee thought fit to rebut those materials. The requirement of Section 149 and Rule 13 that the committee Shall take evidence and make inquiry in the presence of the objector or his agent is not an empty formality. It is one of the fundamental safeguards inposed by the Act and the rules upon the conduct of the inquiry by the Committee. The Committee, as also the Administrator discharging its function, is a quasi-judicial body. Even apart from Section 149 arid Rule 13 it was the duty of the Administrator acting quasi-judicially to conform to the fundamental principles which are required to be observed in administration of justice, in whatever form such justice is administered. One of such fundamental obligations of a quasi-judicial body is to allow the party affected to look at and scrutinise the evidence before it so that the party affected may make his representations on the matter and if necessary to call rebutting evidence.

The evidence in this case is somewhat meagre. The plaint is very prolix and obscure. The arguments advanced in this case at all its stages also did not help very much in bringing out the real points in issue between the parties. But I think that the charge that the Plaintiff''s agent was not allowed to look and scrutinise the assessment of the Assessor''s report at the time of hearing of the objection has been made out. In para. 9 of the plaint it was averred that the Administrator did not let the Plaintiff know in the course of the hearing of the objection on what material evidence he had decided to reduce the quantum of the annual value and that he did not let the Plaintiff have any opportunity to test the Assessor''s opinion, reasons or conclusion departmentally communicated by the Assessor behind the Plaintiff''s back. In dealing with this charge the Defendant avers inter alia that the Administrator was not at all influenced by the report of the Assessor as alleged. The plaint read with the written statement seems to suggest that the report of the Assessors was before the Administrator and that the Administrator was considering the report behind the back of the Plaintiff. The plea taken by the Defendant in rebuttal is that all these did not matter because the Administrator was not at all influenced by the report of the Assessor. The particular report which the parties had in mind is referred to in item No. 2 of the list of documents mentioned in the Plaintiff''s application filed in the trial court on December 7, 1953. Item No. 2 refers to the report of the assessment put up by the Assessor before the Commissioners of the defunct Tollygunge Municipality for the revaluation period. Interrogatories were delivered by the Plaintiff to the Defendant under an order of the trial court. Item No. 14 of the intergatory called upon the Defendant to admit that at the time of hearing of the objection the agent of the Plaintiff was not allowed to scrutinise the report of the Assessor. The answer to the interrogatory was that the Plaintiff''s agent was not entitled in law to the scrutiny of the report. It was said that the matter depended purely on the Administrator''s discretion The interrogatory read with the answer clearly suggests that in spite of requests made by the Plaintiff''s agent at the hearing of the objection the Plaintiff''s agent was not allowed to scrutinise the report. The point is made clearer by the petition of objection filed on behalf of the Defendant. In para. 5 of this petition of objection which was filed on December 14, 1963, the Defendant avers that the agent of the Plaintiff was not justified in calling for the report of the Assessor for scrutiny. The facts are admitted. The justification is unsound in law. It is said that there is ho procedure in the Act which would entitle the Plaintiff''s agent to scrutinise the report. The right of the Plaintiff''s agent to scrutinize the report is implicit in Section 149 arid Rule 13. The right is also implicit in the fact that the Administrator as a quasi-judicial body must conform to the fundamental principles of judicial procedure.

The matter may be looked at from another point of view. In the course of argument it was suggested that the report of the Assessor was not really evidence but was itself the subject matter of the review by the Administrator. Assuming that the report of the Assessor itself was the subject matter of the review, it was all the more necessary that the objector should be allowed to read and scrutinise the report. The Administrator, who had before him that report was under a duty to allow the Plaintiff''s agent to see that report to make his representation on the materials to be found in the report and, if necessary, to call rebutting evidence.

It is to be noticed that under orders of Court the Plaintiff was allowed inspection of the report of the Assessor submitted to the Commissioners under Rule 10. At the time of the inspection the report was in existence. Curiously, however, neither party tendered the report at the trial of the case. We gave an opportunity to Mr. Bose to produce in this Court that report. Mr. Bose''s client, however, did not avail itself of that opportunity. Mr. Bose stated before us that he had no instruction in the matter. The result is that even in this Court we have not got the report of the Assessor which the Administrator had before him at the time of the hearing of the objection. In the absence of the original report, considering the provisions of Rule 10, I have no doubt in my mind that the report is a relevant document. The quasi-judicial body had before it that report and it does not lie in the month of that quasi-judicial body to say that it was not influenced by the report.

I think also that the assessment is illegal on another ground. The basis of the valuation made by the Assessor is not known. The basis, if any, could be found only in the report which has not been made available even to us. Rule 10 says that the Assessor shall submit the Assessment list prepared by him with a brief report to the Commissioner showing the basis on which he has prepared the list. It says further that each actual assessment shall be accompanied by a note showing how the Assessor has arrived at it which it by comparing the property in question with other similar property and explaining why the assessment differs if it does. The Rule 10, therefore, enjoins upon the Assessor to give the basis of the valuation. He has no power to make an Assessment without giving the basis on which he makes the valuation. The point is whether the report gave the basis. It is common case before us that in this case the Form B referred to in Rule 9 was not given to the Assessee and consequently the Assessor had no duty to fill up the last two columns of Form B and to state therein the basis of determination of the annual value. The basis of valuation was to be found, if at all, only in the report submitted by the Assessor to the Commissioners under Rule 10. The point therefore is this. Did this report contain the basis of the valuation? As I have already said, the report was not tendered in evidence by either party in the trial court. For that reason we gave an opportunity to Mr. Bose to produce the report before us but he has not. For reasons best known to him, he has done so. There are materials on record to show that the report did not contain the basis of valuation. The Plaintiff stated categorically in para. 5 of the plaint that the Plaintiff applied for copies of the details of valuation as left by the Assessor in the Assessment list of the Administrator of Tollygunge Municipality Annexure C to the plaint contains the details of valuation, which the Plaintiff was able to obtain from the Municipality. The sheet containing the details of valuation is now ext. 5. This document was marked as an exhibit without objection. The details of valuation which are to be found in ext. 5 do not show the basis upon which the Assessor made the valuation of Rs. 90,000. It may be noticed that the statements in para. 5 of the plaint are not properly denied in para 6 of the written statement. The matter, however, does not rest here. The Plaintiff''s agent repeatedly wrote letters asking for details of valuation. These requests are to be found in ext. A, ext. A/1, ext. A/2 and ext. A/4. After receiving these repeated requests from the Plaintiff''s agent the Administrator by his letter dated March 4, 1952, ext. 4(b) wrote to the Plaintiff''s agent requesting him to send his representative to have the information as required. No written information was supplied. Whatever information the Plaintiff''s agent gathered is to be found in ext. 5.

On all these materials I have come to the conclusion that the Assessor made the valuation without stating the basis of the valuation in the report submitted by him under Rule 10 as required by law. The charge that the Assessment is illegal on this ground is not very clearly made in the plaint. But I think it may be fairly gathered from para. 6 of the plaint where it was alleged that the details of valuation were and are incomplete, irregular and illegal and that they did not indicate the method by which the annual valuation was worked out.

In my opinion, therefore, the assessment was illegal both at the stage of the original assessment by the Assessor as also at the stage of the hearing of the objection by the Administrator.

It follows therefore that the procedure enjoined by the Bengal Municipal Act and the Rules was not followed in making the Assessment and that the valuation made by the Assessor as also by the Administrator in contravention of the Act and the Rules is ultra vires and in excess of their power and authority. In such case it is well settled that the Assessee is entitled to file a suit for a declaration that the assessment is illegal. It is true that Section 150 of the Bengal Municipal Act provides that no objection shall be taken to any Assessment of valuation in any other manner than what is provided in the Act and that no valuation or assessment made under the Act and no order passed under Sub-section (4) or Sub-section (6) of Section 149 shall be called in question in any Court. It is well settled, however, that where the Assessment is ultra vires or is made in contravention of the procedure prescribed by the Act and the Rules the suit challenging the Assessment lies notwithstanding the provisions of Section 150 of the Bengal Municipal Act.

The plaint contains a prayer for a decree for refund of excess moneys collected by the Defendant. This prayer is not pressed. I, therefore, do not propose to pass any decree for money in this case.

I, therefore, think that the appeal should succeed and that the Plaintiff is entitled to the necessary declaration that the impugned assessment is invalid. In passing this order, I, however, make it clear that it will be open to the Defendant to make a fresh assessment or reassessment of the holding for the period in question in this suit according to law. There was also a prayer for injunction. The impugned assessment was for a period of five years. That period has already expired. In all the circumstances of the case we do not think it fit to grant the prayer for injunction.

I, therefore, pass the following order:

The appeal be and is hereby allowed. The judgment and decree passed by the trial court be and is hereby set aside, I adjudge and declare that the assessment and valuation of the holding in question for the period of five years with effect from the 1st quarter of 1952-53 be and is hereby declared ultra vires, void and not binding upon the Plaintiff. It will be open to the Defendant to make assessment or reassessment of the holding in question for the aforesaid period of five years in accordance with law.

Each party will pay and bear his or its own cost throughout both in this Court as also in the trial court.

Chatterjee, J.

I agree.