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1978 DIGILAW 52 (CAL)

BROJBEHARI SEN v. CORPORATION OF CALCUTTA

1978-01-25

CHITTATOSH MUKHERJEE

body1978
CHITTATOSH MUKHERJEE, J. ( 1 ) THE present appellant claims to be the recorded owner and the trustee in respect of 26b, Asutosh Mukherjee Road. He brought a suit out of which this second appeal arises inter alia for declaration that the ex parte assessment order dated dated 28th January, 1952 in respect of the said premises was illegal, void and without jurisdiction and not binding upon him. He also prayed for permanent injunction to restrain the defendant Corporation of Calcutta and Sri A. K. Sen, the then Commissioner of Corporation of Calcutta and their agents and servants from giving effect to the said assessment order dated January 28, 1952. The learned Munsif, 1st Additional Court, Alipore dismissed the said suit inter alia upon the finding that the suit was not maintainable in the absence of the service of a notice under S. 538 of the Calcutta Municipal Act, 1923 and also because of non-compliance with the provisions of S. 80 of the Code of Civil Procedure. The learned Munsif further found in the facts and circumstances of the case that it could not be held that the Corporation did not follow the statutory provision in confirming the assessment of the suit premises by its order dated 28th January, 1952. The said order, according to the learned Musnif, was neither illegal nor invalid. ( 2 ) THE plaintiff, being, aggrieved by the said decision preferred an appeal. The learned Subordinate Judge held that the notice under S. 140 of the Calcutta Municipal Act, 1923 was not served upon the plaintiff in accordance with law and the learned Subordinate Judge did not agree with the contrary findings of the learned Munsif on the issue of the service of notice under S. 140. The learned Subordinate Judge, however, purported to rely upon the Division Bench decision of Harris CJ and Bijan Kumar Mukherjee, J. inmst. Fatima Khatoon Bibi and Ors. v. The Corporation of Calcutta, Appeal from Appellate Decree No. 582 of 1943, decided on 10th August, 1948 and reported in 4 DLR 116 and held that the Civil Court had no jurisdiction to go into the question of the validity or otherwise of the said increase of the valuation and assessment of municipal rates. Fatima Khatoon Bibi and Ors. v. The Corporation of Calcutta, Appeal from Appellate Decree No. 582 of 1943, decided on 10th August, 1948 and reported in 4 DLR 116 and held that the Civil Court had no jurisdiction to go into the question of the validity or otherwise of the said increase of the valuation and assessment of municipal rates. The learned Subordinate Judge also diagreed with the view of the learned Munsif that the suit was bad because of non-service of any notice under S. 80 of the Code of Civil Procedure upon B. K. Sen, the then Commissioner and his name had been expunged from the records. The learned Subordinate Judge was also of the view that the suit was hit by S. 538 of the Calcutta Municipal Act, 1923 and it did not come within the exception laid down by sub-s. (5) of S. 538 of the Act. Accordingly, the suit was held to be bad as against the Corporation of Calcutta because the plaintiff's failure to serve the said notice. ( 3 ) HAVING given my anxious consideration to the matter, I am of the view that the learned Subordinate Judge erred in law in holding that the suit in question was not maintainable in Civil Court and that the suit was also hit by the provisions of S. 538 (1) of the Calcutta Municipal Act, 1923. The decision of Harris C. J. and Bijan Kumar Mukherjee J. in Mst. Fatima Khatoon Bibi and Ors. v. The Corporation of Calcutta (supra) was clearly distinguishable on facts. The said Secon Appeal before the Division Bench arose out of a suit brought by the Corporation of Calcutta claiming arrears of consolidated rates which had been increased without notice to the defendant-appellant owner. The defendant in the said suit had denied the claim of the Corporation of Calcutta to recover the said consolidated rates on the ground that the said increased assessment was ultra vires because of the failure on the part of the Corporation of Calcutta to give any notice under S. 138 of the Calcutta Municipal Act, 1923. The Division Bench in Mst. Fatima Khatoon Bibi and Ors. The Division Bench in Mst. Fatima Khatoon Bibi and Ors. v. The Corporation of Calcutta (supra) inter alia held that S. 138 of the Calcutta Municipal Act, 1923 did not require a notice to given before a valuation cold be made for the first time or the same could be increased. What is required was that a notice shall be given stating that a first valuation had been made or that the existing valuation had been increased. According to the Division Bench, therefore, the giving of a notice under S. 138 was not a condition precedent to the making of a first valuation or to increasing an existing valuation. The valuation could be made and then a notice of course should be given to the owner/occupier in order to have an opportunity to object. Therefore, when a valuation could be made without notice. The valuation would not be ultra vires because no notice was given under S. 138. The Division Bench also referred to the provision for appeal to the Small Causes Court under S. 141 against the order passed on the objection filed under S. 139. Accordingly, Harris CJ. an Bijan Kumar Mukherjee J. held that the Civil Court could not go into the said matter of increase of valuation of a holding. ( 4 ) IN the instant case, admittedly on 30th September, 1950 the plaintiff was served with a special notice under S. 138 of the Calcutta Municipal Act, 1923 stating that the annual value of the holding in question had been raised from Rs. 1612/- to Rs. 5812/- with effect from third quarter, 1950-51. On 4th October, 1950 the plaintiff had filed an objection under S. 139 of the Calcutta Municipal Act, 1923 to the said increase in valuation of the holding in question. The substance of the plaintiff's case was that a Special Officer of the Corporation of Calcutta had disposed of his said objection under S. 139 without giving him any notice under S. 140 (1) of the Calcutta Municipal Act, 1923. The records of the said objection case produced in the trial court by the Corporation of Calcutta established that there were several attempts to serve the said notice under S. 140 of the Act of 1923 but it could not be served upon the present appellant. The records of the said objection case produced in the trial court by the Corporation of Calcutta established that there were several attempts to serve the said notice under S. 140 of the Act of 1923 but it could not be served upon the present appellant. On 28th January, 1952 a Special Officer of the Corporation of Calcutta in spite of clear endorsement to the said effect in the order-sheet of the objection case (Ext. 2) passed an ex parte order confirming the said increased valuation. The plaintiff-appellant's grievance in the present case was that his objection under S. 139 was determined without any notice to him under S. 140 (1) and thereby depriving him of the opportunity of hearing as contemplated under S. 140 (2) of the Calcutta Municipal Act, 1923. In fact, the lower appellate court has found that no notice under S. 140 (1) was served upon the plaintiff. The Division Bench in Mst. Fatima Khatoon Bibi and Ors. v. The Corporation of Calcutta (supra), had no occasion to consider the effect of non-service of a notice under S. 140 (1) and the validity of disposing of an objection to an increased assessment without notice and without opportunity of hearing to the objector concerned. The effect of non-service of a notice under S. 140 (1) and denial of opportunity of hearing under sub-s. (2) of the said section did not invalidate the increase in valuation made under S. 131. But the non-compliance with the above provisions of S. 140 relating to the service of notice under S. 140 upon the plaintiff and deprivation of opportunity of hearing of him made the order dismissing the plaintiff's aforesaid objection under S. 139 of the Calcutta Municipal Act, 1923 null an void. The Special Officer, Corporation of Calcutta in the instant case had acted in violation of the provisions of S. 140 which embodied the principles of natural justice audi alteram partem. The Special Officer exercising his powers under S. 140 was clearly required to act quasi-judicially and, therefore, disposal of the plaintiff's objection in flagrant disregard of these provisions was void ab initio and the plaintiff's objection to the said increased valuation made with effect from 3rd quarter, 1950-51 must be deemed to be still undisposed of and pending. The Special Officer exercising his powers under S. 140 was clearly required to act quasi-judicially and, therefore, disposal of the plaintiff's objection in flagrant disregard of these provisions was void ab initio and the plaintiff's objection to the said increased valuation made with effect from 3rd quarter, 1950-51 must be deemed to be still undisposed of and pending. Section 164 (1) of the Calcutta Municipal Act, 1923 provided that when an objection to a valuation had been made under S. 139, the consolidated rate shall pending the determination of the said objection be paid on the previous valuation. In other words, pending the determination of the objection filed under S. 139, the objector would continue to pay the consolidated rates according to the previous valuation. In the instant case, the plaintiff's objection to the increased valuation must be deemed to be still pending in the eye of law and awaiting determination. Therefore, the Corporation of Calcutta was not entitled to recover increased consolidated rates from the plaintiff before determining the plaintiff's objection in question; it was to recover at the previous rates. Only after the said objection is determined, the Corporation of Calcutta might proceed in terms of clause (a) or (b) of sub-s. (2) of S. 164 as the case might be. But the Corporation in violation of S. 164 (1) of the Act had threatened to recover the enhanced municipal rates from the plaintiff. Hence the suit was filed. These questions never came up for consideration before the Division Bench in Mst. Fatima Khatoon Bib and Ors. v. The Corporation of Calcutta (supra ). Therefore, in my view, the lower appellate court clearly erred in law in applying the said decision to the facts of the present case. ( 5 ) IT is settled law that exclusion of jurisdiction of civil court is not to be readily inferred. It must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure (see Secretary of S. V. Mask and Company, 44 Calwn 709 : 67 I. A. 222; Dhulabhai v. State, AIR 1969 SC 78 etc. ). ). In the instant case, the Special Officer while purporting to dispose of the plaintiff's objection did not act in conformity with the fundamental principles of a judicial procedure relating to service of notice upon the objector and giving him opportunity of hearing contained in S. 140 of the Calcutta Municipal Act, 1923. In the instant case, the Civil Court was not required to adjudicate the correctness of the quantum of the increase in the valuation made under S. 138 of the Act. I have already found that there had been no disposal of the plaintiff's objection to the increased valuation in question in terms of S. 140. In the result, the plaintiff's objection under S. 139 had remained pending. The Corporation of Calcutta could not lawfully recover from the plaintiff consolidated rate on the basis of the increased valuation which was still under objection and without the disposal of the plaintiff's said objection under S. 139 of the Calcutta Municipal Act, 1923, the Civil Court has ample jurisdiction under S. 54 of the Specific Relief Act, 1847 to enforce the said statutory obligation of the Corporation of Calcutta under S. 164 and to prohibit transgression of law by the said statutory authority. ( 6 ) IN my view, the lower appellate court was also wrong in holding that S. 538 (1) of the Calcutta Municipal Act, 1923 was attracted to the facts of present case. I have already held that the plaintiff's objection under S. 139 had not been determined under S. 140 and the purported order of the Special Officer dated 28th January, 1952 confirming the increase of the valuation with effect from 3rd quarter, 1950-51 being ultra vires and null and void, no declaration was required to be made or should be made. In fact, the said question relating to the legality or otherwise of the increase in valuation and assessment being pending, was premature and the civil court need not go into the said question of increase made under S. 138. In the above view, in the instant case, the prayer for declaration contained in the plaint was a surplusage and in substance the suit was one for a perpetual injunction in terms of S. 54 of the Specific Relief Act, 1847. Such a suit would be clearly covered by sub-s. (5) of S. 538 of the Calcutta Municipal Act, 1923. In the above view, in the instant case, the prayer for declaration contained in the plaint was a surplusage and in substance the suit was one for a perpetual injunction in terms of S. 54 of the Specific Relief Act, 1847. Such a suit would be clearly covered by sub-s. (5) of S. 538 of the Calcutta Municipal Act, 1923. This view finds support from the decision of Bose J. in Sitaram Gupta v. Corporation of Calcutta reported in AIR 1956 Cal. 18 . paragraphs 15 and 18. ( 7 ) I respectfully agree with the following observations of P. N. Mookerjee and A. C. Sen, JJ. in Messers Metro General Traders v. The Commissioner, The Corporation of Calcutta and Others, 63 CWN 585 (586-87): it is true that in every suit permanent injunction necessarily involves some sort of implied declaration that the impugned act or omission is illegal. That however, does not prevent a party from instituting a suit for permanent injunction and he is not compelled, in every instance, to seek for any other relief, unless, of course, it be the position in a particular case, that without setting aside the particular order some such substantive relief, he cannot get the relief of permanent injunction. In a case, where the allegation is that the impugned order is illegal or without jurisdiction, or in other words, a nullity, it has, on the allegation, no existence in law and so does not require to be set aside. ( 8 ) P. N. Mookerjee and P. Chatterjee JJ. in Sree Sankar Oil Industries v. Harish Chandra Mookerjee and Anr. 70 CWN 169 held that no notice under S. 586 of the Calcutta Municipal Act, 1951 would be necessary in a suit for permanent injunction in respect of a void order. The Supreme Court with reference to S. 487 of the Bombay Provincial Municipal Corporation Act, 1949 held that the benefit of the said section would be available to the Corporation only if it was held that act in question was done, was purported to be done in pursuance or execution intended execution of the Act. The levy was found not to be in pursuance or in execution of the Act. What is plainly prohibited by the Act cannot be claimed to be purported to be done in pursuance or intended execution of the Act. The levy was found not to be in pursuance or in execution of the Act. What is plainly prohibited by the Act cannot be claimed to be purported to be done in pursuance or intended execution of the Act. These observations with equal force may be applied in the instant case. I, accordingly conclude that the suit brought by the plaintiff-appellant was not hit by S. 538 of the Calcutta Municipal Act, 1923. ( 9 ) IN the result, I set aside the finding of the lower appellate court that the suit was bad for non-service of notice under S. 538 of the Calcutta Municipal Act. I hold that the appeal must succeed in part and the plaintiff's suit should be decreed partially in the manner indicated below. I make it clear that the result of this decision is that the plaintiff's objection under S. 139 in respect of the impugned valuation still awaits disposal under S. 140. I also record the submission of Mr. Ghosh, learned Advocate for the appellant, that the appellant at present residing at No. 2 Madan Mohan Dutta Lane, Calcutta-6. Therefore, a fresh notice under S. 140 may be lawfully served upon the plaintiff appellant at the said address. Notwithstanding the plaintiff's success in the present case, the Corporation of Calcutta would be entitled to again dispose of in accordance with law the plaintiff's objection filed under S. 139. Thereafter, both parties will be entitled to proceed further in accordance with law. ( 10 ) I, accordingly, allow this appeal in part, set aside the judgments and decrees of the trial court and the lower appellate court. Plaintiff is granted a decree for permanent injunction restraining the Corporation of Calcutta and its servants and agents from recovering consolidated rates on the basis of the increased valuation till the final determination of the plaintiff's objection made under S. 139 of the Calcutta Municipal Act, 1923. The plaintiff, however, will be liable to pay during the pendency of the said objection on the basis of the previous valuation, if the sums still remain outstanding and after the said objection in determined both parties will be entitled to proceed in accordance with law in the matter payment and recovery of the consolidated rates. In this judgment no observation has been made about any changes in the valuation of the holding in question for any subsequent period. In this judgment no observation has been made about any changes in the valuation of the holding in question for any subsequent period. ( 11 ) IN the circumstance of the case, both parties will bear their respective costs throughout. The appeal allowed in part.