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1966 DIGILAW 179 (CAL)

Iswar Ganesh Jiu v. Municipal Commissioner of Hooghly Chinsura

1966-09-02

R.N.DUTT

body1966
JUDGMENT 1. THESE four second appeals arise out of the same judgment. Seventeen suits were filed by the owners of different holdings against the Municipal Commissioners of Hooghly-Chinsurah Municipality. The suits were heard analogously. Common questions of law were involved. The learned Munsif decreed five suits viz., Suits Nos. 185, and 194 of 1950, 231 of 1951 and 19 of 1952 but dismissed the other twelve suits which included Title Suits Nos. 190 and. 193 of 1950. Fourteen appeals were filed - five by the Municipality in the aforesaid suits which were decreed and nine by the plaintiffs in nine out of the twelve suits dismissed by the learned Munsif. The learned Subordinate Judge allowed the appeals filed by the Municipality, reversed the decrees of the learned Munsif in the aforesaid five suits and dismissed them. The learned Subordinate Judge further dismissed the other nine appeals preferred by the plaintiffs in the said nine other suits. The plaintiffs in Suits Nos. 190, 194, 191 and 193 of 1950 have filed these four second appeals. 2. THE common allegation made by the respective plaintiffs in their suits was that the valuations made by the assessor under the Bengal Municipal Act were not made in accordance with the law and the procedure prescribed for the same. There was non-compliance with Rule 8 of the Rules framed by the State Government under section 215 of the Act. It was further alleged that the plaintiffs made applications under section 148 of the Act for review of the valuations made but there was non-compliance with Rule 14 of the Rules made by the State government under section 215 of the Act. It was further said that the review applications were disposed of by an Administrator appointed by the State Government under section 554 of the Act but he was not competent to dispose of the said applications under section 149 of the Act. The special allegations made by the plaintiffs in suits Nos. 190 and 194 of 1950 were that when their review applications under section 148 were pending the Administrator enhanced the valuations of the respective holdings under section 138 (1) (c) of the Act which he had no jurisdiction to do. Various other allegations were made but we are not concerned with them in these second appeals. 190 and 194 of 1950 were that when their review applications under section 148 were pending the Administrator enhanced the valuations of the respective holdings under section 138 (1) (c) of the Act which he had no jurisdiction to do. Various other allegations were made but we are not concerned with them in these second appeals. The defence of the Municipality was that the valuation was made in accordance with law and procedure, that there was no non-compliance with Rules 8 and 14 of the Rules framed by the State Government under section 215 of the Act and that the Administrator had jurisdiction to dispose of the review applications as also to increase the valuation under section 138 (1) (c) of the Act. Appeals Nos. 213 and 214 relate to suits Nos. 190 and 194. Mr. Mitter appears for the appellants in these appeals. Appeals Nos. 113 and 114 relate to suits Nos. 193 and 191, Mr. Roy Choudhury appears for the appellants. The allegation that there was non-compliance with the provisions of Rules 8 and 14 of the Rules framed by the Slate Government under section 215 of the Act is common to all these suits. I shall first deal with this allegation. Whether there was non-compliance with these rules or not is after all a question of fact. The learned Munsif did not find that there was such non-compliance. Before the learned Subordinate Judge various arguments were advanced to show that there was such non-compliance but the learned Subordinate Judge repelled those arguments. Towards the end of his judgment, however, the learned Subordinate Judge has said ; it may be that the assessors did not strictly follow the rules framed under section 215 (a) and (b) of the Act. But in my opinion non-observance of such rules, if any, will not invalidate their acts. " this shows that the learned Subordinate Judge did not find that there was non-compliance with the rules. He assumed a hypothetical case and proceeded to consider the consequences. But nowhere I find any finding made by the learned Subordinate Judge that there was non-compliance with the rules. I have said this is a question of fact and I should not enter into that question. The objection about non-compliance of the rules must, therefore, fail. 3. He assumed a hypothetical case and proceeded to consider the consequences. But nowhere I find any finding made by the learned Subordinate Judge that there was non-compliance with the rules. I have said this is a question of fact and I should not enter into that question. The objection about non-compliance of the rules must, therefore, fail. 3. THE other common question in all these suits is the question if the Administrator appointed by the State Government under section 554 of the Act could dispose of the review applications under section 143 of the Act. It will be sufficient to state here that the Municipality was superseded under section 553 of the Act and an Administrator was appointed under section 554 of the Act. It is also not disputed that the review applications filed under section 148 of the Act were heard and disposed of by the Administrator. Had the Municipality not been superseded the review applications were to be heard by a committee as under section 149 of the Act. The point for consideration is if after the supersession of the municipality and the appointment of the Administrator, he was competent to hear and dispose of these review applications. This question arose in (i) Swadeshi Industries Ltd. v. Administrator, Panihati Municipality reported in AIR 1959 Calcutta 477. It was not necessary to decide the question in that case. On a consideration of the scheme of sections 553 and 554 of the Act there is no doubt that the Administrator was competent to hear and dispose of the review applications. With the supersession of the Municipality the Administrator was to exercise all the powers and duties which under the Act were to be exercised and performed "by the Chairman and by the Commissioners whether at a meeting or otherwise. " This must mean that all the functions which the Chairman and the Commissioners were to perform are to be performed by the Administrator. The words "by the Chairman and by the Commissioners" as used in section 554 must mean "by the Chairman and by the Commissioners or some of the Commissioners. " This must mean that all the functions which the Chairman and the Commissioners were to perform are to be performed by the Administrator. The words "by the Chairman and by the Commissioners" as used in section 554 must mean "by the Chairman and by the Commissioners or some of the Commissioners. " Unless the words "by the Chairman and by the Commissioners" mean "by the Chairman and by the Commissioners or some of the Commissioners", the result would be that the Administrator will not have all the powers under the Act which were exercised "by the Chairman and by the Commissioners" and that would mean that so long as the supersession continued and the Administrator continued to function all the powers and functions of the Municipality cannot be exercised and/or performed. This is a consequence which the Legislature could not have contemplated. The intention of the Legislature must have been that after the Municipality was superseded the work of the Municipality would be carried on by the Administrator, and this must of necessity include the power to hear and dispose of review applications. The proviso to section 149 (1) of the Act does not create any difficulty, because with the supersession of the Municipality all the Commissioners vacated their offices as such Commissioners as is provided for under section 554 (1) (a) of the Act and the Administrator cannot be considered to be a Commissioner for each ward of the Municipality. So the proviso to section 149 (1) which was rendered infructuous with the supersession of the Municipality, can be no obstacle to the Administrator hearing and disposing of the review applications. I hold, therefore, that the Administrator was competent to hear and dispose of the review applications. This argument of Mr. Mitter, therefore, fails. 4. MR. Mitter then argued exclusively for appeals Nos. 213 and 214 that the Administrator was not competent to increase the valuation under section 138 (1) (c) of the Act. What happened was this. While hearing the review applications in respect of the holdings involved in these two suits the Administrator made a local inspection and thereafter issued notices on the plaintiffs under section 138 (2) of the Act. The plaintiffs appeared before the Administrator. There was hearing and subsequently the Administrator enhanced the valuations under section 138 (1) (c) of the Act. The enhancement was in one case from Rs. 7000/- to Rs. The plaintiffs appeared before the Administrator. There was hearing and subsequently the Administrator enhanced the valuations under section 138 (1) (c) of the Act. The enhancement was in one case from Rs. 7000/- to Rs. 18000/- and in the other case from Rs. 1100/- to Rs. 1800/-. So far as the holding valued at Rs. 18000/- is concerned, the plaintiffs appear to have subsequently made some representation which was treated as a fresh review application under section 148 of the Act and the valuation was ultimately reduced to Rs. 14000/-. We are not concerned with the quantum of increase or the valuation finally fixed by the Administrator. We are to consider if the Administrator was competent to make this increase in the valuation under sec. 138 (1) (c) of the Act. Mr. Mitter submits that the Administrator was not competent to make this enhancement under section 138 (1) (c) of the Act when the plaintiffs' review applications under section 148 of the Act were pending. Mr. Mitter is unable to point out materials on record from which it can be said that the enhancement under section 138 (1) (c) was made while the relevant review application was pending. On the other hand, from what the learned Subordinate Judge has said it seems that the enhancement under section 138 (1) (c) of the Act was made after the relevant review application was rejected. It cannot, therefore, be said that the Administrator increased the valuation under section 138 (1) (c) while the relevant review application was pending. Mr. Mitter then raises a broader question and argues that the Administrator was not at all competent to increase the valuation under section 138 (1) (c) of the Act. He refers to the decision in (2) Angus Co. Ltd. v. Municipal Commissioner of champdany Municipality, AIR 1955 NUC (Cal.) 5608. Mr. Mitter then raises a broader question and argues that the Administrator was not at all competent to increase the valuation under section 138 (1) (c) of the Act. He refers to the decision in (2) Angus Co. Ltd. v. Municipal Commissioner of champdany Municipality, AIR 1955 NUC (Cal.) 5608. There Base, J. as ho then was, considered the implication of the words "has been incorrectly valued or assessed" in section 138 (1) (c) of the Act, He said, "if it can be shown that by reason of any mistake, fraud or misrepresentation, the original assessment was not correctly made the commissioners derive power or jurisdiction under section 13 (1) (c) to alter or amend the assessment." Here what we find in that when the Administrator went for local inspection in connection with the hearing of the review application he thought that the valuation was not correctly made and thereafter he issued the notice under section 138 (2) of the Act. Obviously, the valuation was not correctly made because of some mistake or misrepresentation and that gives jurisdiction to the Municipality, here in this case the Administrator, to alter or amend the valuation under section 138 (1) (c) of the Act. This is a general power given to the Municipality to correct the valuation when the Municipality is of the opinion that the valuation was not correctly made. The terms of the section are so wide that it is not possible to limit it only to correct only accidental or arithmetical errors. I am not prepared to say that under section 138 (1) (c) of the Act the Municipality cannot increase the valuation if in its opinion there was undervaluation. What Bose, J. held in the aforesaid case was that alteration can be made only having regard to the state of things existing at the time when the valuation was made : But no alteration can be made by reason of any subsequent statutory change altering the principles of assessment or the rate or percentage of assessment. Here in this case the alteration was made having regard to the state of things existing at the time when the assessor made the valuation. I, therefore, find that the Administrator was competent to increase the valuation under section 138 (1) (c) of the Act. The objections raised by Mr. Mitter, therefore, fail. No other points are taken. Here in this case the alteration was made having regard to the state of things existing at the time when the assessor made the valuation. I, therefore, find that the Administrator was competent to increase the valuation under section 138 (1) (c) of the Act. The objections raised by Mr. Mitter, therefore, fail. No other points are taken. The appeals, therefore, fail and stand dismissed. No order is made as to costs in this Court. Leave to appeal under clause 15 of the Letters Patent, prayed for in all the appeals, is granted.