Chairman of the Commissioners of Chakradharpur Municipality vs Murlidhar Marwary

Varma, J.—This is a petition against the decision of the lower appellate Court setting aside the judgment of the Munsif of Jamshedpur at Chaibassa dismissing the suit of the plaintiff for a declaration that the assessment in respect of his holding No. B/118 within the Chakradharpur Municipality in excess of Rs. 18-9-0 per quarter was ultra vires and for the recovery of Rs. 54 which had been realized from him by the said Municipality in Certificate Case No. 295 of 1933-34. The trial Court held that the suit was barred by the provisions of Section 119, Municipal Act, in as much as it was not proved that their action was ultra, vires. The lower appellate Court went into the facts of the case and came to the conclusion that the action of the Municipality was ultra vires and decreed the suit of the plaintiff for a sum of Rs. 45-12-0.

In order to understand the nature of the suit it is necessary to give some facts. The plaintiff has a house which comprises holding No. B/118 within the Municipality of Chakradharpur. The original tax of the holding was Rs. 11-4-0. Then it appears it was raised to Rs. 12-6-0 in the year 1929-30, on account of the increase of the latrine tax. Thereafter there was a general revision which was completed on 26th January 1930, and by that revision the tax was fixed at Rs. 41-4-0 from 1st April 1930. On appeal by the plaintiff, the Municipality reduced the tax to Rs. 30-15-0 per quarter on 29th March 1930. Then there was further reduction and the plaintiff was to pay at the rate of Rs. 12-6-0 up to December 1930. It appears that from January 1931 to March 1932, the tax was realized at the rate of Rs. 16-8-0. There was again a fresh assessment by the end of 1931-32 and the tax was raised to Rs. 41-4-0 from 1st April 1932. In the year 1933 on an application (Ex. F) made by the plaintiff it was settled that the tax would be charged at Rs. 33 from 1st July 1933. Then again there was some change and the tax from 1st January 1934 was fixed at Rs. 25 The demand made by the Municipality was for the first and second quarters of 1933-34, that is at the rate of Rs. 41-4-0 for the first quarter and Rs. 33 for the second quarter. As there was no payment a certificate case was started and the Municipality realized the amount. The plaintiff was compelled to deposit Rupees 91-2-0 which exceeds by Rs. 54 the legitimate demands for the two quarters which would come to Rs. 37-2-0. The plaintiff it appears had left a copy of the notice on 2nd June 1934 at the Municipal office before filing this suit and another was delivered through registered post on 5th June 1934.

The Munsif who tried the suit has held that from an entry in the peon book (Ex. C) it must be presumed that notice of enhancement must have been sent by the Municipality on 19th January 1932 before increasing the assessment to Rs. 41-4-0. He further held that the reduction of Rs. 90-12-0 was by way of remission only for that year and not a permanent reduction of the tax to Rs. 18-9-0 per quarter. The lower appellate Court refers to some very significant facts by which it comes to the conclusion that the action of the Municipality was ultra vires, First of all it refers to Ex. 3(k) dated 20th March 1933 from which it appears that the rate of the tax was Rs. 18-9-0 and the same amount was paid but a reduction from the higher tax imposed earlier seems to have been made only eleven days after, that is, on 31st March 1933. The lower appellate Court further refers to the fact that the assessment register had not been produced nor any order of the Chairman enhancing the tax to Rs. 41-4-0; further it could not be understood why a substantial amount of Rs. 90-12-0 was remitted at the close of the year 1932-33. The lower appellate Court has also held that the provisions of Section 107, Sub-section (2) have not been complied with because it did not feel satisfied that the entry in Ex. C proves that any notice was received by the plaintiff and upon this finding it has held that the action of the Municipality was ultra vires and therefore decreed the suit.

Mr. G.C. Mukherji appearing on behalf of the petitioner Municipality has urged that the suit was of the nature of a Small Cause Court suit, that the decree as passed cannot be sustained and the findings are vitiated. He refers to certain pieces of evidence which according to him have been wrongly admitted. Firstly he has urged that the suit is of the nature of a Small Cause Court suit and should not have been tried in the general way and, therefore, there could not be any appeal to the lower appellate Court. He urges that the appeal was incompetent and, therefore, the appellate Court judgment should be set aside. He has referred to various authorities some of them being the cases in Somar Sao v. Balchand AIR 1928 Pat 451 , Sitaram Prasad Sah Vs. Damodar Jha and Others, and Ko Sit Yar v. Ma Shwe Taing AIR 1934 Rang 312, He has referred to some, earlier cases also, for example, the cases in Shankarbhai v. Somabhai (1901) 25 Bom 417, Indra Chandra Mukherjee v. Srish Chandra Banerjee (1913) 40 Cal 537and Kollipara Seetapathy v. Kankipati Subbayya (1910) 33 Mad 323.

Mr. Saileswar De on the other hand has drawn my attention to Schedule 2, Article 19, Provincial Small Cause Courts Act, for the purpose of showing that the suit was of a declaratory character and therefore, not of the nature of a Small Cause Court suit. A suit of a declaratory nature is excepted from the operation of the Provincial Small Cause Courts Act. It can be gathered from the nature of the plaint and the reliefs sought that the plaintiff''s suit was for a declaration that the assessment in respect of his holding, B/118, in excess of Rs. 18-9-0 per quarter, was ultra vires and not made according to the provisions of the Municipal Act and that the defendants were not entitled to demand and recover for the holding at more than Rs. 18-9-0 per quarter, and he further prays for a decree for Rs. 54 which was realized in excess of that amount in Certificate Case No. 295 of 1933-34. From this it is clear that the case is covered by Article 19, Schedule 2, Provincial Small Cause Courts Act, and this point must fail. Moreover it does not appear that this point was taken by the defendants anywhere in the lower Courts. Mr. De has drawn my attention to the case in Motabhai Motilal v. Surat City Municipality (1896) 20 Bom 675 where it was held that the shape in which the suit was originally instituted is the test of jurisdiction, and to the case in Nogendra Nath Roy v. Ashutosh Roy Chowdhury AIR 1918 Cal 528.

Mr. G.C. Mukherji next took me to the various provisions of the Bihar and Orissa Municipal Act to show that there could not be any permanent reduction in the assessment once the assessment has been made. I do not think that is a point which en-titles me to interfere with the judgment of the lower appellate Court in revision. There are sections which talk of remissions and evidently the Municipality was relying upon these sections. I am of opinion that the points raised by Mr. Mukherji at best are points of law and this Court would I not be justified in interfering with that order in its revisional jurisdiction. I would therefore reject the application. Hearing fee one gold mohur.