Administrator, Howrah Municipality vs Calcutta Electric Supply Corporation Ltd.

Banerjee, J.—This appeal is directed against an order passed by the Subordinate Judge, First Court at Howrah, in exercise of his jurisdiction u/s 141 of the Calcutta Municipal Act, 1923, as extended to Howrah Municipality. By the aforesaid Order, certain objections by the Respondent Calcutta Electric Supply Corporation Ltd. against re-assessment of valuation of certain premises were upheld.

Certain provisions of the Calcutta Municipal Act, 1923 (Ben. Act III of 1923), have been made applicable, with modifications, to the Municipality of Howrah, by the Government, in exercise of its power u/s 541(2) of the Calcutta Municipal Act, 1923. This appeal is governed by the provision of the Calcutta Municipal Act, 1923, as extended to the Municipality of Howrah, hereinafter referred to for the sake of brevity as "the Act;".

Admittedly, the Respondent Calcutta Electric Supply Corporation Ltd. is the owner of a plot of land, measuring 2B-18K-I2Ch, together with separate structures thereon, which is numbered separately as premises Nos. 433 and 433/1, Grand Trunk Road (North). At one time premises No. 433 had been Jet out by the Respondent company to a tenant, who continued in occupation till September, 1950.

At the time of general re-valuation, effective from 3rd quarter 1948-49, the two premises had been separately assessed to municipal tax, in the manner hereinafter appearing:

Premises No. 433, Grand Trunk Road:

(Let out to a tenant at Rs. 500 per month)

500xl2=Rs. 6,000

. Less 10 per cent.=Rs. 600

Annual value Rs. 5,400

Tax at 22 per cent.=Rs. 1,188

Premises No. 433/1, Grand Trunk Road: (In occupation of the owner)

Value of land, 1B-9K at Rs. 2,600 per cottta=Rs. 75,400 Value of Building=Rs. 38,234

Total Rs. 1,13,034

Annual value at 5 per cent. =Rs. 5,681 Tax at 22 per cent.=Rs. 1,250.

After the tenant in occupation of premises Wo. 433, Grand Trunk Road, left, the Respondent Company claims to have gone in possession of premises No. 433, Grand Trunk Road itself and to have effected physical amalgamation of the two premises.

At the time of the general re-valuation, to be effective from the 3rd quarter. 1953-54, two notices u/s 136 of the said Act, both dated May 26, 1953, were served on the Respondent Company, calling upon the Respondent Company to furnish return of value of land and building in respect of two premises Nos. 433 and 433/1, Grand Trunk Road. S.K. Sawday and Company, acting as agent for the Respondent Company filed one consolidated return, in respect of both the premises Nos. 433 and 433/1, Grand Trunk Road. Along with the return S.K. Sawday and Company addressed a letter (est. A), dated July 9, 1953, to the Assessor, Howrah Municipality, of which the relevant portion is quoted below:

Re: 433 and 433/1, G. T. Road, Howrah.

******

Kindly amalgamate both the premises as these are being now occupied entirely by our clients Messrs. Calcutta Electric Supply Corporation Ltd.

* * * * *

Enclo.:-(1) Return.

(2) Site plan showing holdings to be amalgamated.

It appears from a copy of the notice u/s 138 of the Act (ext. 5), in respect of premises No. 433, Grand Trunk Road, and the valuation Report (ext. G), in respect of premises No. 433/1, Grand Trunk Road, that the Howrah Municipality did not assess the two premises, on the basis of amalgamation, as prayed for. The two premises were separately assessed as before, and while the old annual value, in respect of premises No. 433/1, namely, Rs. 5.651 was maintained, the annual value of premises No. 433 was increased from Rs. 5,400 to Rs. 494 on the ground that there was an increase in the estimated value of the land and that previously there had been an under-valuation.

There was an objection made to the increase in valuation of premises No. 433 by S.K. Sawday and Company on behalf of the Respondent Company. The petition of objection is ext. 1 and is dated May 1, 1954. Amongst various objections taken, the last item of objection was as follows:

Holdings No. 433 and 433/1, G. T. Road (North), have not been amalgamated as prayed for.

On the same date, another letter [ext. 1(b)] was written by S.K. Sawday and Company on behalf of the Respondent Company, of" which the material portion is quoted below:

Our formal letter of objection is enclosed herewith. We would refer you to our letter No. 510/AP.TD/2912, dated July 9, 1953, to the assessor in which we requested him to amalgamate holding Nos. 433 and 433/1, G. T. Road (North), which are contiguous and of which our clients are both owners and occupiers. We fail to see why these two holdings have not been amalgamated and would request you to consider this question again at the time of hearing.

The Administrator of the Municipality rejected the objection by the Assessee by an Order [ext. dated July 6, 1954, and confirmed the annual value of premises No. 433 at Rs. 6,494.

On July 7, 1954, the Respondent Company, through its agent S.K. Sawday and Company, applied for a copy of the Order, dated July 6, 1954. The application is marked ext. 1(f) hereafter on July 10/14, 1954, S.K. Sawday and Company on behalf of the Respondent, wrote a letter to the Administrator, Howrah Municipality, protesting against the order made by the Administrator on July.

6, 1954. Material portions from the said letter [ext. A(1)] is quoted below.

On July, 6 last our Sri T. Das Gupta attended the hearing of Appeal 365 No. of Circle No. 11 in pursuance of a notice, dated June 21st, 1954, u/s 140 (blurred by ink) and (2) of the Calcutta Municipal Act as extended to Howrah. Shri Das Gupta was given to understand that no notice of hearing in respect of 433/1, G. T. Road was served on us as the valuation of the property had become final in absence of any objection. You were further pleased to observe that no notice u/s 138 was served in this case as the valuation was not increased. We would request you to kindly let us have the date when notice u/s 137(2) was published in local newspapers and the names of the newspapers in which the notice was published.

We pointed out that we had applied for amalgamation of the holdings 433 and 433/1 G. T. Road as early as July 9, 1953, but your non-compliance with the provisions of Section 134 has put us to a disadvantage and deprives us of the opportunity of filing an objection against the proposed valuation of 433/1 G.T. Road. Your reply to that was that neither would we expect you to put the Municipality to a disadvantage by effecting amalgamation and re-valuation at the same time that you had to act within the provisions of the Act and that you had entire discretion to revalue the holding first and then amalgamate at a latter date depending on your convenience.

We differ from this partisan view of the matter and hold that the provisions of Section 134 is clear and un-ambiguous and it is obligatory on you to effect amalgamation and revaluation at the same time without offering you any scope to use your discretion on the facts of this case. We hold that your action in this case is unjustifiable and without any sanction of the law.

The Appellant Municipality acknowledged the letter [ext. A(2)] by its letter, ext. 2(a) dated July 14, 1954, and although it was stated in the letter that the said letter from S.K. Sawday and Company was receiving attention for necessary action, nothing further appears to have been done in this matter.

The application for copy of the assessment order, ext. had a chequered career and although made on July 7, 1954, the copy was not delivered to the Respondent Company till September 21, 1954. The reasons for this delay in the supply of copy will be dealt with hereinafter, while considering the plea of limitation taken by the Appellant.

On October 29, 1954, an appeal, as provided for by Section 141 of the Act, was filed by the Respondent Company against the order of increased assessment, made in respect of premises No. 433, Grand Trunk Road.

Before the lower appellate court, the appeal was opposed by the Municipality, on various grounds, two of which need be noted here, namely, that the appeal was barred by limitation and secondly, that the amalgamation could not be granted because there had been no compliance with the rules for amalgamation of the two premises. In clarification, of the second objection, it was contended at the time of the hearing of the appeal, before the lower appellate court, that the application for amalgamation could not be granted in as much as the two holdings had separate water connections.

The lower appellate court rejected the contentions raised by the Municipality and allowed the appeal. The order of the Administrator of the Municipality assessing premises No. 433, Grand Trunk Road, at an annual value of Rs. 6,494 was set aside and the Municipality was given liberty to re-asses holding No. 433. Grand Trunk Road, after dealing with the application for amalgamation according to law.

The Administrator, Howrah Municipality, appeals against the aforesaid order.

Mr. Bhola Nath Roy, learned advocate for the Appellant urged three points in support of the appeal: (1) the appeal before the lower appellate court by the Respondent Company, u/s 141 of the Act, was barred by limitation: (2) u/s 134 of the Act it was for the Calcutta Electric Supply Corporation to effect amalgamation of the two premises. Instead of doing so the Respondent Company asked the Municipality to amalgamate. Since it was none of the business of the Municipality so to do, the assessment made in disregard of the request to. amalgamate was a good assessment. (3) There was no appeal preferred against the valuation of premises No. 433/1, Grand Trunk Road; u/s 142 of the Act that valuation is now final. If premises No. 433, Grand Trunk Road is now to be assessed on the basis of its amalgamation with premises No. 433/1, Grand Trunk Road, that would mean reopening of the valuation of premises No. 433/1, Grand Trunk Road, as well. Mr. Roy''s argument was that a court of law should not indirectly do that which it is not directly allowed to do.

So far as the plea of limitation is concerned reference need be made to the provisions of Sections 141(2) and (3) of the Act, which are to the following Meet:

Section 141(2): Such appeal shall be presented to the Subordinate Judge of Howrah, within thirty days from the date of the order passed u/s 140, and shall be accompanied by an extract from the register of objections containing the order objected to.

Section 141(3): The provisions of Parts II and III of the Indian Limitation Act, 1908, relating to appeals, shall apply to every appeal preferred under this section.

The argument of Mr. Roy on the point of limitation is that the application for copy was made by S.K. Sawday and Company on behalf of the Calcutta Electric Supply Corporation Ltd. on July 7, 1954, but the application was not accompanied by fees, prescribed under the schedule of fees for copies of records from the Municipal Record Room (ext. N). The Respondent waited till August 30, 1954, when it sent its first reminder to the Appellant [ext. 1(d)]. The prescribed fee was not sent even along with the said reminder and what was said in the aforesaid reminder was that if any fee was necessary for taking out a copy of the order, the same would be paid as soon as the Municipality advised the applicant regarding the amount. Thereafter a second reminder was sent by the Respondent on September 7, 1954, but even at that time the prescribed fee was not deposited. Ultimately the fee was deposited on September 10, 1954, as is evidenced by a receipt granted by the Howrah Municipality (ext. M) and the copy was made ready on September 13, 1954. The Respondent took delivery of the copy on September 21, 1954. According to Mr. Roy. the time from July 7, 1954: to September 21. 1954, was not the time requisite for obtaining a copy of the order appealed against. The Calcutta Electric Supply Corporation Ltd. was not entitled to exclusion of this period u/s 12(2) of the Indian Limitation Act. As such the appeal filed by the Calcutta Electric Supply Corporation Ltd. on October 29, 1954, when the Civil Counts reopened after the Puja holidays, was barred by the special limitation prescribed u/s 141(2) of the Act.

The expression "time requisite for obtaining a copy" as used in Section 12(2) of the Indian Limitation Act is a strong expression; it means some thing more than time required. It means time properly required and throws upon the Appellant the necessity of showing that no part of the delay beyond the prescribed period was due to his default. The delay caused by the carelessness or negligence in paying for the copy can not be excluded from the computation of the period of limitation.

If application for copy, made by the Respondent Company, required to be accompanied by any fees, legally prescribed, then the failure on the part of the Respondent Calcutta Electric Supply Corporation Ltd. so to do would deprive if of the benefits u/s 12 of the Indian Limitation Act. Therefore, if on September 10, 1954. when the fee was deposited, the period of limitation had already run out, the appeal before the Subordinate Judge of Howrah, filed on October 20, 1954, must be barred by limitation.

It was argued before us by Mr. S.R. Banerjee, learned advocate for the Respondent, that no fees were legally payable for the copy and the schedule of fees prescribed under ext. N had no force of law. His argument in substance was that by applying for the copy on July 7, 1954, his client had done all that was required of it to be done and the Respondent Company, was entitled, thereafter, to wait until such time as the copy was made available to it. He further argued that Howrah Municipality as a statutory body had no jurisdiction to levy copying fees or certification fees under a domestic resolution (ext. P) unless authorised by law and there was no law which authorised the Howrah Municipality so to do Therefore, even if any demand for fess had been made, the Calcutta Electric Supply Corporation Ltd. would be at liberty to refuse to pay such fees. What was more, no demand for copying fees had been actually made by the Municipality, in this case, until such time that employees of S. K. Sawday and Company called at the office and deposited fees, then demanded of them. Mr. Banerjee invited our attention to the fact that the Municipality could not make out its story that demand for copying fees had been made to the Calcutta Electric Supply Corporation Ltd. by the Municipality by a letter, dated August 2, 1954.

We have examined ext. L, the Municipal office endorsements on the application for copy, dated July 7, 1954. We find that on July 19, 1954, there was a note made on the application to the effect that necessary fees might be deposited with the Record Keeper. On July 30, 1954, another note was made on the application, "Please write". We agree with the learned Subordinate Judge that the Municipality failed to prove that it had actually written to the Respondent asking for deposit of fees.

In our opinion, however, nothing turns on whether the Municipality did or did not make any demand for fees. If fees were legally payable, then it was the duty of the applicant the Calcutta Electric Supply Corporation Ltd. to apply on payment of fees or to pay the fees in due time, in any event, before the period of limitation ran out.

The real question, therefore, is whether the Municipality had any lawful right to levy fees for copying charges. Mr. Roy argued that u/s 351A of the Bengal Municipal Act 1884, which applied to the Howrah Municipality at the material time, the Commissioner at a metting could make Rules as to the business and affairs of the Municipality. Such Rules, if made, were subject to the sanction of the Local Government and if sanctioned, had to be published in such manner as the Local Government might direct. Mr. Roy argued that Rules were actually framed u/s 351A for giving of copies and the Rules, as framed were sanctioned by the then Government of Bengal. Mr. Roy drew our attention to a letter from an Under Secretary to the then Government of Bengal, dated April 27, May 13,. 1915 by which the sanction of the Local Government was accorded to the Rules. That letter is not an exhibit in this case but we looked into the letter, with the consent of Mr. Banerjee learned advocate appearing for the Respondent, who did not dispute the existence of such a letter. We direct that a plain copy of the said letter be kept On the record as a piece of additional evidence used by us in appeal. Material portion from the aforesaid letter is quoted below:

I am directed to refer to the correspondence ending with your Memo No. 164-M/XXVT-14, dated February 20, 1915, and to say that under Sub-section (2) of Section 351-A of the Bengal Municipal Act, 1884, the Governor in Council is pleased to sanction, in supersession of the existing rules on the subject, the rules framed by the Commissioners of the Howrah Municipality under Sub-section (1) of that section for the conduct of business at meeting etc. A copy of the rules as now sanctioned is enclosed and I am to request that the Commissioners may be asked to publish them by a copy in English and Vernacular being posted at the Municipal Office and at the Office of the Magistrate, Howrah.

Rule 107 of the Rules for conduct of business, framed u/s 351A above referred to and printed in Part I of Howrah Municipality-Municipal Manual, provides for supply of copies and authorises the Chairman from time to time to frame rules prescribing the procedure for issue of copies of municipal records both certified and uncertified.

Although the Bengal Municipal Act, 1884, was repealed by the Bengal Municipal Act, 1932, Mr. Roy argued the Rules continues to be effective by virtue of the provisions of Section 25 of the Bengal General Clauses Act. In exercise of his power, under Rule 107, the schedule of fees evidenced by ext. N. was introduced by the Chairman at a meeting of the Municipality in the year 1949 (ext. P). On the above materials Mr. Roy argued, that the levy of copying fee, as in the Schedule of fees (ext. N) had statutory validity behind it.

The elaborate argument of Mr. Roy can be disposed of on a short ground. Section 351A of the Bengal Municipal Act, 1884, does not authorise Commissioners of Municipalities, to make rules for levy of fee or charges for supply of copies. Therefore, under the authority of that section the schedule of fees, as in ext. N, could not be framed. If the Howrah Municipality framed any domestic rules in the matter, as evidenced by the proceedings of the Budget Special Committee of the Municipality (ext. P), the same had No. legal validity. Therefore although such fees were all through being charged and although ultimately the Respondent company also paid the fees so as to get the copy, we are not prepared to hold that the non-payment of such fees till September 10, 1954 was an instance of negligence and carelessness and disentitled the Respondent Company to the benefits of Section 12 of the Limitation Act. We hold that the entire period from July 7, 1954 till September 13, 1954 if not till the 21st September 1954) should be excluded in computing the period of limitation. If the above period is excluded Mr. Roy admits, that no further question of limitation arises. We therefore hold that the appeal before the lower appellate court was not barred by limitation.

Turning now to the second objection of Mr. Roy, we are again unable to accept his contention. Section 134 of the Act provides that if any land or building, bearing two or more municipal numbers, or portion thereof, be amalgamated into one or more new premises, the Chairman shall Assess them on amalgamation after assigning to them one or more numbers as the cast may be. The Act nowhere defines amalgamation. Ordinarily the word amalgamation means merger but the word has no precise legal meaning. Therefore, amalgamation of land and building or premises has to be taken in its general sense, namely, the making of or the conversion of plots of land or buildings into one, either by erection of one boundary wall or by removal of marks of separation between them.

It appears from ext. 0, the site plan, that there are no separating wall or other separating marks between the two premises. Previously the two premises were in different occupation but at the material time the two premises were in one occupation by the Respondent Company. For effecting a physical amalgation nothing further was required to be done by the Respondent. It is true that the two premises had two separate water connection. Assuming, for the sake of argument that on amalgamation the amalgamated premises must have a single water connection, the size of the ferrule and the diameter of the communication pipe being determined by the annual value of the holding on amalgamation, as provided for in schedule XIV of the Act, we are of opinion that the said change in water connection could not be effected by the Respondent Company by itself. There are rules for construction of service pipes ferrules and works in schedule XIV of the Act, which contain sufficient indication that such works are to be done either in the presence of Municipal officers authorised in that behalf or through workmen of the Municipality. Therefore, if on receipt of the letter (ext. A), dated July 9, 1953, the Municipality was of opinion that the amalgamation of the two premises could not he accepted so long as there remained separate water connections, the Municipality should have called upon the Respondent to take steps in that direction. The Municipality, however, failed to pass any order on the application, dated July 9, 1953 and ignored it altogether in making the assessment.

We hold, in agreement with the learned Subordinate Judge, that u/s 134 of the Act it is the option of the owner to amalgamate his holdings. On such amalgamation physically being made the Chairman of a Municipality must assess the holdings on amalgamation after assigning to them one or more numbers. Here the Respondent did all that it could do by itself in the matter of amalgamation. If without one water connection, the amalgamation was not complete, a proposition which we very much doubt, it was the duty of the Municipality to speak to the effect and call upon the Respondent to take steps for one water connection. The Municipality could not ignore the letter altogether and proceed in the matter of re-valuation, as if so amalgamation had been effected or sought to be effected.

The argument of Mr. Roy that in this case the Respondent Company did not itself amalgamate the two premises but left the matter to be done by the Municipality does not appeal to us. In the context of events, to which reference has already been made, the language used in ext. A, the letter dated July 9, 1953, does not bear that interpretation. The language used in ext. A should be taken as one of politeness, informing the Assessor of the Municipality about the factum of amalgamation and asking the Assessor to proceed on the basis of amalgamation in the matter of assessment. We accordingly reject, the second argument advanced by Mr. Roy.

We hold that Municipality was wrong in this case in assessing premises Nos. 433 and 433/1 otherwise than on the footing of amalgamation. But although we do so, we do not see how we can set aside the assessment of valuation of premises No. 433, Grand Trunk Road at this stage.

There was no appeal preferred against the valuation of premises No. 433/1, Grand Trunk Road. Mr. Banerjee argued that the valuation of premises No. 433/1 had not been increased and therefore the Respondent need not have appealed. That is a wrong approach. Premises No. 433/1 had been separately assessed to, annual value. The Respondent Company should not have accepted the valuation because according to the Respondent the valuation should have been on the basis of amalgamation. The Respondent Company should have challenged the valuation.

Having failed to do so, the Respondent Company allowed the valuation to become final.

Mr. Banerjee next argued that his client could not appeal against the assessment of valuation in respect of premises No. 433/1, because the Respondent Company had not been served with any notice u/s 138 of the Act. Also there was no publication of this valuation u/s 137 of the Act. He argued that the Respondent had made that position clear in its letter to Administrator, dated July 10/14, 1954. [ext. A(2)]. We do not find any substance in this contention. The Respondent certainly came to know of the valuation of premises No. 433/1 on July 6, 1954. Even assuming that no public notification had been made and no notice u/s 138 had been served on this Respondent, the Respondent Company should have preferred its objection on July 6, 1954 or immediately thereafter and if late at that time, should have asked for extension of time under the proviso to Section 139(2) of the Act. If the proviso even was of no help, the Respondent Company should have asked for a notice u/s 138 of the Act, in order to enable it to prefer its objection. In any event, the Respondent Company should not have allowed its right of objection go by default.

Be that as it may, we are not satisfied that public notification u/s 137 of the Act had not been made in the instant case. Lakshman Charan Ghosh, witness No. 2, examined by the Municipality, speaks of service of notification u/s 137 of the Act. Exhibit E(2) also evidences service of such notice We do not find any reason why we should not hold that there was public notice of valuation given as required u/s 137 of the Act. We are of opinion, regard being had to the evidence on record, that the learned Subordinate Judge was not justified in declining to enter into the question whether or not public notice u/s 137 of the Act had been given. Since we hold that such public notice was given and since admittedly the Respondent Company did not prefer its objection to the valuation of premises No. 433/1 even after that, the Respondent Company lost its right to challenge that valuation.

If we now set aside the valuation of premises No. 433 and direct the valuation of the premises to be made on the basis of its amalgamation with premises No. 433/1, we would be really touching the valuation of premises No. 433/1, which has now become final, by operation of law. We should not do that because we have no jurisdiction now to touch the assessment of valuation of premises No. 433/1.

The Respondent Company has by its own default lost its remedy, in the present proceedings.

We therefore allow this appeal, set aside the judgment and order of the court of appeal below and affirm the assessment of premises No. 433, Grand Trunk Road.

In the circumstances of this case, we make no order as to costs.

Renupada Mukherjee, J.

I agree.