Corporation of Calcutta v. Gayatri Chaterjee — 1957 DIGILAW 180 (CAL)

Judgment 1. IN this appeal the subject matter of dispute is the assessment of premises No. 9 Lovelock Place. At the previous general valuation which came into operation from the second quarter of 1946-47 (July, 1946) the annual value was determined to be Rs. 2085/- and the disputed valuation which is to be effective from the third quarter of 1950-51 (October, 1950), the annual value has been found to be Rs. 3240/ -. There is no dispute that the annual value is to be determined under section 127 (b) of the Calcutta Municipal Act of 1923. As the disputed valuation has been made before the expiry of the period of six years specified in section 131 (1) of the Act of 1923 it can be justified only under section 26 of West Bengal Act XXVIII of 1950 by which a new sub-sec. viz., sub-sec. 1 (a) was introduced into the parent Act empowering the Provincial or State Government at any time between the commencement and expiry of the Calcutta Corporation (Temporary Super session) Act of 1948 (West Bengal Act VIII of 1948) to direct that the annual value of lands and buildings of any ward be revised by the Executive officer. By Notification No. LSG lc/84/ 48 dated 22nd November, 1948, the Governor directed the Administrative officer of the Corporation of Calcutta, appointed under West Bengal Act VIII of 1948, to revise the annual value of lands and buildings of all wards of Calcutta. By Sec. 26 (b) of West Bengal Act XXVIII of 1950, this direction upon the Administrative officer had the effect of a direction upon the Executive officer. In F. M. A. 276 of 1954. I considered the effect of Section 26 of West Bengal Act XXVIII of 1950 and Notification No. L. S. G. 1c/84/48 dated 22nd November, 1948 in some detail and came to the conclusion that a revision of annual, value made by the Executive officer or an officer to whom the Executive officer had delegated his powers under Sec. 12 (3) of the Calcutta Municipal Act of 1923, would be valid. In that case the Executive officer delegated his powers by an order dated June 22, 1949 after he had been directed to revise the annual value by the Notification dated November 22, 1948. 2. In that case the Executive officer delegated his powers by an order dated June 22, 1949 after he had been directed to revise the annual value by the Notification dated November 22, 1948. 2. IN the instant case, however, the revision of annual value has been made by the assessor, in exercise of powers delegated to him on 8. 4. 1924 by Haridhan Dutt who was the Executive officer on that date, and the point for determination is whether the powers delegated to the assessor on April 8, 1924 would include powers conferred on the Executive officer under Section 26 of West Bengal Act XXVIII of 1950, to revise the annual value during the currency of the earlier assessment. The learned Judge of the Court of Small Causes has answered this question in the negative and has held that the revision of annual value made by the assessor in the circumstances stated above, is without jurisdiction. The Corporation of Calcutta has brought this appeal against that decision. Before the Court of Small Causes the order of delegation by the then Executive officer was not produced and the argument proceeded on admissions made by the lawyer appearing for the Corporation. In the course of argument in this Court we wanted to see the actual terms of the order of delegation and directed the Corporation to produce it. In pursuance of our' direction the Corporation produced the Original Order of delegation which has been returned after keeping a certified copy on the record. We have admitted that certified copy into evidence under O. 41, R. 27 without any objection as we felt the necessity of examining the actual words by which the delegation was made. That Certified Copy is H. C. Ex. A. The relevant portion of the order of delegation is as follows:-"delegation of Powers" "assessment Department" the following powers functions and duties are delegated by me, as the executive officer of the Corporation of Calcutta, under section 12 (3) of Bengal Act III of 1923, to the officers noted below, as follows:- Corresponding Sec. of the new Act. Powers. Authority who could delegate. Officer to whom to be delegated. 131 (1) To fix the annual valuation for the periodical assessments. Executive officer. Assessor, Assessors. Assistant Sub-Assessors H. Dutt Executive Officer. Corporation of Calcutta. 3. Powers. Authority who could delegate. Officer to whom to be delegated. 131 (1) To fix the annual valuation for the periodical assessments. Executive officer. Assessor, Assessors. Assistant Sub-Assessors H. Dutt Executive Officer. Corporation of Calcutta. 3. WEST Bengal Act XXVIII of 1950 by which power was conferred on the Executive officer to revise the annual value of lands and buildings before the expiry of the period of six years specified in Sec. 131 (1) of Bengal Act III of 1923 came into operation on April 12, 1950; but by Sec. 1 (2), Sec. 26 by which that power was conferred was to be deemed to have come into force on the date of commencement of West Bengal Act VIII of 1948, i.e. on March 24, 1948. The power to revise the annual value before the expiry of the period of six years, therefore, came into existence on March 24, 1948, and that power again was a conditional power which could be exercised only upon a direction by the Provincial or State Government to revise the annual value. That direction was given by to notification dated November 22, 1948 to which I have already referred. The power, therefore, became effective from November 22, 1948. Before this date, the power had a potential existence till March 24, 1948, before which again it had no existence. Normally therefore a power which came into existence for the first time on March 24, 1948 cannot be said to have been delegated by the order of delegation dated April 8, 1924. This conclusion also follows from the terms of the order of delegation. What was delegated by the Executive officer by the order which 1 have already read was the power to fix the annual valuation for periodical assessments under Sec. 131 (1) of Bengal Act III of 1923, whereas the power to revise the annual value during the currency of the valuation, made under section 131 (1) is conferred by sec, 131 (a) which was introduced into Bengal Act III of 1923 by West Bengal Act XXVIII of 1950 by Sec. 26. The power under Sec. 131 (la) was not and could not be delegated by the order of delegation rated April 8, 1924. The assessor before acquired no power to revel the annual value under sec. The power under Sec. 131 (la) was not and could not be delegated by the order of delegation rated April 8, 1924. The assessor before acquired no power to revel the annual value under sec. 131 (la) and the conclusion of the learned Judge of the Small Cause Court that the revision of annual value by the assessor is invalid appears to be correct. 4. THE second reason why the revision of annual value by the assessor in the present case cannot be regarded as valid is that the Executive officer who delegated his power to the assessor was a temporary Executive officer appointed by the Local Government under sec. 2 (5) of Act III of 1923 whereas the Executive officer who acquired power to revise the annual value during the currency of the period specified in Sec. 131 (1) is the Executive officer appointed by the Corporation under Sec. 51 of the Act, as defined in Sec. 3 (30. It is admitted that Haridhan Dutt who delegated his power on April 8, 1924 was a temporary Executive officer appointed under Sec. 2 (5). That section was in these terms; "the Local Government may by notification in the Calcutta Gazette appoint a person to exercise and perform the powers and duties which are conferred or imposed by or under this Act on the Executive officer until that officer is appointed under Sec. 51, Subsection (1)". This section has since been repealed by Bengal Act XVI of 1946, as its continuance or astute Book was useless after the appointment of the Executive officer under Sec. 51 (1). When therefore West Bengal Act XXVIII of 1950 provides by Sec. 26 that the annual value of land and building shall be revised by the Executive officer on a direction by the Provincial or State Government, it means the Executive officer as define by the Calcutta Municipal Act as it stood on March 24, 1948 on which date Sec. 26 came into operation. That Executive officer can only be the Executive officer appointed under Sec. 51 (1) and denned by Sec. 3 (30). Haridhan Dutt who delegated his power was not an Executive officer of this description, and therefore the could not acquire the power, conferred by clause (a) of Sub-sec. (la) introduced by Sec. 26 of West Bengal Act XXVIII of 1950. That Executive officer can only be the Executive officer appointed under Sec. 51 (1) and denned by Sec. 3 (30). Haridhan Dutt who delegated his power was not an Executive officer of this description, and therefore the could not acquire the power, conferred by clause (a) of Sub-sec. (la) introduced by Sec. 26 of West Bengal Act XXVIII of 1950. Under Sec. 8 of the Bengal General Clauses Act the order of delegation made by Haridhan Dutt will no doubt survive the repeal of Sec. 2 (5) but the scope of the powers will not be enlarged. There is still a third reason why the assessment cannot be regarded as valid. I have already held in F. M. A. 275/54 that the power conferred on the Executive officer to revise the valuation by Sec. 26 of West Bengal Act XXVIII of 1950, is a conditional power which can be exercised only when the Provincial or State Government "by order directs". This direction by the Provincial or State Government can, however, be given only "between the commencement and expiry of the Corporation of Calcutta (Temporary Supersession) Act, 1948" i.e. West Bengal Act VIII of 1948 which came into operation on March 24, 1948. Prior to that date therefore the Provincial or State Government had no power to give any direction that the annual value of land and building of ward be revised by the Executive officer, and consequently the Executive officer could have no jurisdiction to revise the annual value before March 24, 1948. In other words a power which could be exercised only after March 24, 1948, could not have been delegated by an order dated April 8, 1924. 5. FOR the three reasons given above I am constrained to hold that the assessment made by the assessor in exercise of the powers delegated to him on April 8, 1924, is invalid. 6. MR. Basu appearing for the Corporation of Calcutta, however, made a laudable attempt to get out of these difficulties. He relied strongly upon the language of Sec. 131 (la) (c) (ii) introduced by Sec. 26 of West Bengal Act XXVIII of 1950 and argued that the effect of that clause is to convert the revision of valuation under See. 6. MR. Basu appearing for the Corporation of Calcutta, however, made a laudable attempt to get out of these difficulties. He relied strongly upon the language of Sec. 131 (la) (c) (ii) introduced by Sec. 26 of West Bengal Act XXVIII of 1950 and argued that the effect of that clause is to convert the revision of valuation under See. 131 (la) (a) before the expiry of six years into a valuation made after the expiry of six years as specified in Sec. 131 (1) of the parent Act. That is undoubtedly true; but from this it does not follow that the power created by Sec. 26 of Act XXVIII of 1950, is identical with the power conferred on the Executive officer by Sec. 131 (1) of the parent Act. Sec. 131 (la) (c) (ii) deals with the result of the exercise of the power conferred by Sec. 131 (la) (a) and does not itself confer or create any power. It provide that after the revision of annual value has been made in the manner contemplated by Sec. 131 (la), the revision will have the same effect as if it had been made after the expiry of the period specified in Sec. 131 (1) of the parent Act. This argument does not establish the proposition that the power under Sec. 131 (la) (a) is included in the power under Sec. 131 (1) which was delegated to the assessor. Accordingly this point is of no assistance to the appellant. Mr. Basu next contended that the effect of Sec. 26 of West Bengal Act. XXVIII of 1950 is to make Sec. 131 (la) a part of the parent Municipal Act from the date when the latter Act came into operation, i.e. from April 1, 1924 and relied upon Keshoram Poddar v. Nundolal Mallik (1) 54 I.A. 152. In that case the Calcutta Rent Act of 1920 which was to remain in force until the end of March, 1924, was amended in the year 1924 and was extended till 1927 with a proviso that after March, 1924 the Act shall cease to apply to premises the rent of which exceeded Rs. 250/- a month. In that case the Calcutta Rent Act of 1920 which was to remain in force until the end of March, 1924, was amended in the year 1924 and was extended till 1927 with a proviso that after March, 1924 the Act shall cease to apply to premises the rent of which exceeded Rs. 250/- a month. The Privy Council pointed out that the view taken by the High Court that the effect of the proviso was to make the Act a temporary Act with regard to the higher valued premises but an existing Act until 1927 with regard to other premises was wrong and that the true effect of the proviso was just as if the words therein had been inserted in the Original Act. It is impossible to apply this principle to West Bengal Act XXVIII of 1950 which provides by Sec. 1 (2) that Sec. 26 should be deemed to have come into force on the date of commencement of the Corporation of Calcutta (Temporary Supersession) Act (West Bengal Act VIII of 1948. When a Statute itself specifies the date of commencement of a particular provision enacted by it, it is impossible to hold that it came into operation on any earlier date. Moreover Sec. 131 (la) (a) introduced by Section 26 lays down that the Provincial or State Government may by order direct the Administrative officer to revise the annual value of land and building of any ward "between the commencement and expiry of the Corporation of Calcutta (Temporary Supersession) Act". This power is, therefore, to be exercised within a specified period commencing on March 24, 1948 on which date the Corporation of Calcutta (Temporary Supersession) Act came into operation and terminating with April 30, 1952 on which date that Act expired: I find it impossible to hold that a power which could be exercised only between March 24, 1948, and April 30, 1952 can be treated as having come into existence on April 1, 1924 when the parent Statute came into operation. It is a truism to say that Sec. 131 (la) became a part of the parent Statute, because Section 26 of West Bengal Act XXVIII of 1950 expressly says so. The real question is when did it become a part of the parent Statute? It is a truism to say that Sec. 131 (la) became a part of the parent Statute, because Section 26 of West Bengal Act XXVIII of 1950 expressly says so. The real question is when did it become a part of the parent Statute? For the reasons I have already given I cannot but hold that it became a part of the parent Statute on March 24, 1948 the date of commencement of the Corporation Calcutta (Temporary Super-session) Act and not from any earlier date. 7. MR. Basu also cited before us a passage from Crawford on Statutory Construction, 1940, page 640 Where the learned author states as crows:- "the amended statute should also be construed as if it had been originally passed in its amended form since the amendment becomes a part of the original enactment. The observation which I have already made with regard to the decision of the Judicial Committee in Keshoram Poddar's case apply with equal force to the principle enunciated by Crawford. " Lastly, Mr. Basu relied upon the decision of the Privy Council in the case of Attorney General of Alberta v. Attorney General of Canada (3) (1947) A.C. 503: 52 C.W.N. 236. That case is well known for the test it lays down on the doctrine of severability, i.e., whether an Act as a whole is ultra vires or part of it can be served and may be held to be intra vires; but I am free to confess that I have been totally unable to find out what bearing it has upon the problems arising for consideration in this appeal. For the reasons given above I hold that the decision of the learned Judge of the Court of Small Cause is right, and that this appeal must be dismissed with costs, hearing fee being assessed at ten gold mohurs.