Dharmadas Chatterjee vs Sambhukali Bhattacharjee

Chittatosh Mookerjee, J.—The Plaintiffs Appellants were owners of several holdings within Wards Nos. II and IV of the Dainhat Municipality. They alleged that there was no conservancy arrangement for the area within which their said holdings were situated, but the Chairman and the Commissioners had refused to exempt the said holdings from the payment of conservancy rates and had issued demand notices. The Plaintiffs Appellants, accordingly, instituted two suits for permanent injunction to restrain the Defendants from realizing conservancy rates in respect of the Plaintiff's holdings in question.

The Chairman and the Commissioners who were impleaded by their names had contested the said suits. The learned Munsif, Second Court, Katwa, dismissed the two suits. The Plaintiffs preferred two appeals which were dismissed by the learned District Judge, Burdwan. Hence, these two second appeals at the instance of the Plaintiffs.

Section 15(2) of the Bengal Municipal Act, 1932, inter alia, provides that the Commissioners shall be a body corporate having perpetual succession and by that name shall sue and be sued. The learned Munsif has correctly pointed out that the two suits were defective in form because the suits were filed against the Chairman and the Commissioners in their individual names.

Section 150 of the Bengal Municipal Act ousts the civil Court's jurisdiction inter alia to question the valuation or assessment made under the Bengal Municipal Act or orders under Sub-sections (4) and (6) of Section 149 of the Act. But it is settled law that when an assessment is without jurisdiction or ultra vires, a civil suit challenging the same would be perfectly maintainable in law.

The Commissioners of the Municipality u/s 126(1)(b) of the Bengal Municipal Act inter alia have powers to impose conservancy rates subject to the provisions of the Act. Section 126(1) of the Bengal Municipal Act imposes restrictions upon the imposition of the conservancy rate. Under Clause (b) of Sub-section (1) of Section 126, the conservancy rate shall not be leviable in any area until the Commissioners have made provision for cleansing the private latrines, urinals and cesspool within such area. In other words, the Municipality must have taken their measures before levying conservancy rates in any area within municipal limits.

The only point in the two cases was whether or not the Commissioners of Dainhat Municipality had made above provisions in terms of Section 126(1)(b) before levying conservancy rates upon the holdings of the Plaintiffs. Both the Courts have concurrently found that the Municipality was rendering such conservancy services. The trial Court rightly observed that the extent of such services could not be questioned in civil Court. Holdings Nos. 678 and 763, Ward No. IV and Holdings Nos. 901, 902, 933, 1002, 1003, 1012 and 1013, Ward No. II were admittedly either gardens or tanks and in the said holdings there were no latrine, urinal or cesspools etc.

Rates are the principal means by which money to defray local government expenses is raised by direct levy on occupiers or, in certain case, owners of property within the area of the authority making the rate.... Halsbury's Laws of England, vol. 32, p. 3--quoted in Words and Phrases Legally Defined, 2nd ed., vol. 4, p. 250.

Conservancy rates u/s 123(1)(d) of the Bengal Municipal Act are leviable on the basis of assessment of annual values in respect of holdings. But the Commissioners without making any provision for cleansing private latrines, urinals and cesspools cannot levy conservancy rates. The expression "area" in Clause (b) of Sub-section (1) of Section 126 obviously means the entire limits of the Municipality or a smaller area comprised in a particular ward or wards within which the Commissioners have imposed conservancy rates u/s 123(1)(d). Restrictions upon the Commissioners power to impose conservancy rates are to be found in Section 126 of the Act. In these cases the concurrent finding is that such conservancy provisions had been made. The Bengal Municipal Act does not contemplate remission of conservancy rates in respect of vacant plots of land on grounds other than those mentioned in Section 126. Any person dissatisfied with amount assessed upon him or with valuation assessed may also apply for review u/s 148 of the Act.

For the foregoing reasons, these appeals fail. 1, accordingly, dismiss these appeals.

There will be no order as to costs.