JUDGMENT Anil Kumar Sen, J. This appeal by the Corporation of Calcutta is directed against the judgment and order dated July 19, 1961 of the learned Judge, Court of Small Causes, Sealdah passed in an appeal under section 141 of the Calcutta Municipal Act, 1923 (hereinafter referred as the said Act) whereby the learned Judge has set aside the assessment by holding that the assessment as made by the assessor was ultra vires his powers. 2. The assessment is in respect of premises No.6, Garcha 1st Lane which was being assessed as a bustee. 3. It appears from the notice under section 138 that such assessment was to take effect from the third quarter of 1950-51. The notice, however, does not indicate whether the assessment is being made in exercise of powers under S.131 (1) or 131(1A) of the Act. It is not in dispute that the general revaluation which was earlier made by the Corporation was with effect from July, 1946, so that the present disputed assessment was being made before the expiry of six years as prescribed by section 131(1) of the said Act. It is also not disputed that this assessment was made by the assessor in exercise of powers delegated to him and that such delegation is an old one dated April 2, 1924 then made by the then temporary Executive officer appointed under section 2(5) of the said Act before repeal of that provision in 1946. Such delegation, however, was in respect of powers under S.131(1) of the Act. Following the decision of this Court in the case of (1) Corporation of Calcutta v. Gayatri Chatterjee, 63 C.W.N. 1002, the learned Judge, Court of Small Causes held that the earlier delegation conferred no authority on the assessor to make the intermediate reassessment proposed to be made in the disputed assessment before the expiry of six years. Accordingly, the learned Judge set aside the assessment as an ultra vires one. Being aggrieved by this decision the Corporation of Calcutta has preferred the present appeal. 4. Mr. Bakshi appearing in support of this appeal has contended that if the assessment was made in exercise of powers under section 131 (1) of the said Act, as found by the learned Judge, it was well within the power of the assessor; the original delegation dated April 2, 1924 according to Mr. 4. Mr. Bakshi appearing in support of this appeal has contended that if the assessment was made in exercise of powers under section 131 (1) of the said Act, as found by the learned Judge, it was well within the power of the assessor; the original delegation dated April 2, 1924 according to Mr. Bakshi would survive the repeal of section 2 (5) of the Act because of the provision of section 8 of the Bengal General Clauses Act. Mr. Bakshi has contended that the learned Judge in the Court of Small Causes has failed to appreciate that the decision relied on by him was one in respect of an assessment made under section 131(1A) of the Act which was introduced long after the repeal of section 2(5) of the Act. Mr. Bakshi has further contended that the premises under assessment being a bustee it was not necessary for the Corporation to exercise powers under section 131 (1A) so that it was quite competent for the Corporation to make the assessment under section 131(1) even before the expiry of six years in view of the provisions of section 131 (2). Mr. Mukherji appearing on behalf of the respondents has contended that even if the principles contended for by Mr. Bakshi be conceded, the disputed assessment not being an assessment made under section 131 (1) must be held to be one under section 131(1A) and as such was quite ultra vires the powers of the assessor. 5. In the case of (I) Corporation of Calcutta v. Gayatri Chatterjee this Court held that the power to make an assessment under section 131 (1A) of the Act introduced by a later amendment was a new power conferred on the Executive Officer only after 1946, that is, after the repeal of section 2(5) of the Act. Such power having been conferred long after the old delegation dated 2nd April, 1924, itself, it was held that that delegation could neither contemplate nor cover the powers under section 131 (1A). Secondly, it was held that when the new provision of 131(1A) conferred the power on the Executive Officer it necessarily meant Executive Officer appointed under section 51 and not under section 2(5) which was no longer on the statute at the relevant time. Secondly, it was held that when the new provision of 131(1A) conferred the power on the Executive Officer it necessarily meant Executive Officer appointed under section 51 and not under section 2(5) which was no longer on the statute at the relevant time. Therefore, it was held that the earlier delegation dated 2nd April, 1924, by the Executive Officer appointed under section 2(5) could not cover exercise of powers which could be exercised only by the Executive Officer appointed under section 51. Nonetheless, however, it was pointed out in the very same decision that if the assessment is to be made under section 131(1) the authority under delegation survives the repeal of section 2(5) in view of the provisions of section 8 of the Bengal General Clauses Act. 6. The correctness of the principles so laid down is not being disputed before us. Therefore, if the assessment is one made in exercise of powers under S.l31(1), it will be well within the powers of the assessor, on the other hand, if it is one made under S.131(1A) then it will be beyond the powers of the assessor. Hence, the only relevant issue that has now to be gone into is as to whether the disputed assessment was made under one or the other provision above referred to. It is no doubt true that the learned Judge has observed in his judgment that such assessment was made under S. 131 (1) of the Act and if that be the correct position then there will be no answer to Mr. Bakshi's contention that the old delegation would confer ample authority on the assessor to make the assessment in view of the fact that the delegation survives the repeal of section 2(5) of the Act. But in our opinion this observation of the learned Judge is an obvious mistake. Assessment under section 131 (1) can be made only on the expiry of six years from the earlier assessment. The earlier assessment admittedly being with effect from July 1946, there can be no new assessment under section 131(1) to take effect from 3rd quarter of 1950-51 as made by the disputed assessment as such assessment will be within six years from the earlier assessment. Mr. The earlier assessment admittedly being with effect from July 1946, there can be no new assessment under section 131(1) to take effect from 3rd quarter of 1950-51 as made by the disputed assessment as such assessment will be within six years from the earlier assessment. Mr. Bakshi has drawn our attention to section 131(2) in contending that the premises involved being a bustee, power under section 131(1) can be exercised even annually and the bar of six years would not be applicable to the disputed assessment. But Mr. Mukherji, the learned advocate for the respondents, rightly points out that section 131(2) does not universally and totally exclude bustees from the protective clause of six years as in S.131(1). In our opinion S.131(1) would also fully cover an assessment in respect of a bus tee but the restrictive clause of six yean may be excluded on the fulfillment of one out of the two conditions laid down therein, namely, (1) a discretion being exercised for making of an annual assessment before the expiry of six years by the Executive Officer and (2) on an application being made by the owner. It is no body's case that in the present case either of the two conditions was fulfilled. The assessment was not at the request of the respondents. There is nothing to show that the Executive Officer ever applied his mind and exercised his discretion by directing a fresh assessment as contemplated by section 131(2). The authority to exercise such discretion under S. 131(2) had not been delegated to the Assessor by the delegation dated 2nd April, 1924, so that it still remains with the Executive Officer. Therefore, it was to be made at the discretion of the Executive Officer and he has to consciously exercise his discretion by applying his mind to the necessity of such an assessment. But it is neither the case of the Corporation nor is there any evidence that the Executive Officer ever exercised any discretion and directed the disputed assessment to be made. That being the position, it is too obvious that the Corporation was really exercising its new powers under section 131 (1A) in making the disputed assessment and if it is so, it could have been done only by the Executive Officer appointed under section 51 or on any appropriate delegation by such an officer by any other authority. That being the position, it is too obvious that the Corporation was really exercising its new powers under section 131 (1A) in making the disputed assessment and if it is so, it could have been done only by the Executive Officer appointed under section 51 or on any appropriate delegation by such an officer by any other authority. That not having been done the learned Judge was perfectly right in his conclusion that the assessment impugned was ultra vires the powers of the assessor. 7. For reasons aforesaid, this appeal fails and is dismissed. The judgment and order of the learned Judge, Court of Small Causes, is hereby confirmed. There will be no order as to costs. B. C. Roy, J. :- I agree.