Balasore Municipality vs Srimati Sabitri Kumari Das and Others

Narasimham, C.J.—This is an application under Article 226 of the Constitution against the order of the Additional District Collector of Balasore declining to review a previous order passed by him in exercise of the appellate powers conferred on him by Section 153 of the Orissa Municipal Act, in favour of the opposite party.

The opposite party was assessed to municipal tax by the Balasore Municipality, and for the purpose of assessment the Executive Officer fixed the valuation of the building assessed at Rs. 3240/-. The opposite party there upon filed an appeal before the Additional District Magistrate u/s 150 of the Municipal Act. She entered appearance through her authorised agent, and pleaded for reduction of the tax on the ground that she was a widow who was reduced to poverty after the abolition of the Zamindari and after the death of her husband after prolonged illness. On behalf of the Municipality the Law Clerk was in attendance before the Additional District Magistrate, but the order of the Additional District Magistrate does not stow that the Law Clerk made any submissions on behalf of the Municipality or offered to lead any rebutting evidence to show that the assessee was not reduced to poverty as alleged by her. In this state of the materials before the learned Additional District Magistrate he thought that this was a case of genuine hardship for the widow and directed reduction of the municipal tax by fixing the annual rental value of the building at Rs. 2000/-. The Municipality thereupon entered appearance through a lawyer and asked the Additional District Magistrate to revise his previous order. But even on the second occasion it does not appear that the municipality offered to furnish materials to show that the widow was not poor but was in affluent circumstances. The argument of the learned lawyer for the municipality was based mainly on the jurisdiction of the Additional District Magistrate to reduce the tax on the ground of hardship. The learned Additional District Magistrate held that be had such jurisdiction.

The sole question for decision, therefore, is whether the Additional District Magistrate had jurisdiction to revise the assessment by reducing the annual valuation of the building, if on he materials before him it appeared to him that it was a case of genuine hardship for the assessee. We leave no doubt that he had such jurisdiction. He exercised his appellate powers u/s 153 of the Orissa Municipal Act. Section 150 confers on the Municipal Council the power to reduce the tax payable by a person in cases of excessive hardship. It is well known that an appellate authority has all the powers of the lower authority unless its powers are expressly restricted by the statute. Section 153 of the Act does not contain any restrictive provision and hence we must hold that the Additional District Magistrate had all the powers of the Municipal Council u/s 150 while exercising appellate powers.

It was than contended by Mr. Basu that the assessee was not poor. He also filed an affidavit before this Court to show that she is in possession of valuable properties after the death of her husband. A a Court exercising jurisdiction under Article 226 of the Constitution it is not our function to investigate this disputed question of fact regarding the poverty or opulence of the assessee. The Municipality should have offered to lead evidence on this point when the appeal was heard by the Additional District Magistrate, or when the matter was taken up before him on review. The Municipality by its own conduct in sending its Law Clerk to represents case when the appeal was being heard, allowed it case, if any, to go by default.

For these reasons we see no reason to interfere with the order of the Additional District Magistrate. The application is dismissed. But as the assessee has not entered appearance there will be no order for costs.

Barman, J.

I agree.