J.K. Chartiable Trust vs The Municipal Board and Another

R.R. Misra, J.—The Municipal Board, Mussoorie, opposite party No. 1, enhanced the annual value of the building occupied by the Petitioner from 20,000/- to Rs. 30,000/-. The property in question is quite specious and is known as Kamla Castle. It has got five stories, staff quarter consisting of ten rooms, guest house consisting of fourteen rooms, bath room, kitchen etc. situate at Mussoorie. The said enhancement was objected to by the Petitioner and the appellate authority by the impugned order dated 22-12-1979 has partly allowed the appeal and has fixed the annual value of the building at Rs. 25,000/-. This has been done in view of the spiral of prices, cost of construction and provisions of Section 140(b) of the U.P. Municipalities Act.

I have heard Sri V.B. Singh, learned Counsel appearing for the Petitioner. His submission is that for the building in question last assessment had taken place in the year 1974-75. It has been asserted in the writ petition that the list which was finalized for the year 1974-75 was of five years i.e. upto 1978-79. Therefore, in between that period, sending of a notice dated 31-1-1977 u/s 143 of the Municipalities Act, where-in the annual letting value was proposed at Rs. 47,000/- for the period between 1977-78 to 1979-80, for triennial assessment was not warranted by law. The submission is that u/s 145(1) of the Municipalities Act a new assessment list is contemplated to be prepared once in every five years. I, however, find from a perusal of the counter-affidavit filed on behalf of the Municipal Board, Mussoorie that factually the said Municipal Board makes triennial assessment and does not make assessment for five years. This is also confirmed by the notice dated 31-1-1977. Which even the Petitioner admits was for triennial assessment. Reasons set out in the counter-affidavit for making the municipal assessment in every three years is that the value of the property within the Municipal Limits of Mussoorie has been rising every now and then very rapidly and it has become a part and fashion to own summer houses at Mussoorie. In the building in question there is a club and a guest house. In paragraph 15 of the counter-affidavit it has been specifically stated that the list prepared in 1974-75 was valid only for three years. It has been further asserted in paragraph 21 of the counter-affidavit that in a town like Mussoorie there is influk of tourists from throughout India and the Hotel owners and building owners are letting out buildings in large amounts. Alongwith the same there has been steep rise in the valuation of the houses. It is because of this situation that the Municipal Board, Mussoorie has been re-assessing the property after every three years. Thus the very basis of the submission made on behalf of the Petitioner that the assessment made in the year 1974-75 was for five years has been found to be incorrect. Therefore, after the assessment in the year 1974-75 the impugned notice u/s 143 of the U.P. Municipalities Act could have been served by the Municipal Board, Mussoorie. The said provision as occuring in the U.P. Municipalities Act reads as follows:

Revision and duration of list-(1) A new assessment list shall ordinarily be prepared in the manner prescribed by Section 141 to 144, once in every five years.

(emphasis supplied).

The sheet-anchor of the submission made by the learned Counsel for the Petitioner is the word ordinarily'' occurring in Sub-clause (1) of Section 145 of the U.P. Municipalities Act.

However the word ''ordinarily'' also occurs in other statutes and has been the subject matter of interpretation both by this Court as well as by the Hon''ble Supreme Court. In the case of Harish Chandra v. Ist Addl. District Judge 1978 ALJ 1184 the word ''ordinarily'' occurring in Rule 10(5)(d) of the U.P. Urban buildings (Regulation of letting, Rent and Eviction) Rules, 1972 has been interpreted by this Court by saying as follows:

The word ''ordinarily'' means in the large majority of cases but not invariably.

This interpretation has again been followed by this Court in the case of P.C. Jain v. The District Judge, Dehradun 1979 ALJ 503.

In the case of Kailash Chandra Vs. Union of India (UOI), arising under the Railway Establishment Code, the word, ''ordinarily'' has been interpreted by Hon''ble Supreme Court as follows.

...''Ordinarily'' means in the large Majority of cases but not invariably.

Further, in the case of Union of India (UOI) and Others Vs. Majji Jangamayya and Others, which arose out of a dispute regarding promotion to costs of Assistant Commissioner of Income Tax, in paragraph 36 of the judgment Hon''ble Supreme Court has held as under:

The expression ''ordinarily'' in the requirement of 10 years'' experience shows that there can be a deviation from the requirement and such deviation can be justified by reasons.

Thus on the basis of the above interpretations, I find that in regard to the requirement in making an assessment in every five years because of the word ''ordinarily'' occurring in Sub-section (1) of Section 145 of the U.P. Municipalities Act a deviation could be made and the same, intact, has been made by the Municipal Board, Mussoorie, for the reasons set out above in the counter-affidavit. In my opinion, for the reasons given above, it was permissible for the Municipal Board, Mussoorie to have made assessment once in every three years. The said submission made on behalf of the Petitioner, therefore, fails.

The second submission made on behalf of the Petitioner is that necessary Procedure for making re-assessment was not followed and no opportunity was given to the Petitioner in this regard. I, however, find that this plea was not raised on behalf of the Petitioner before the appellate authority and no discussion in regard to the same finds place in the impugned appellate order dated 22-12-1979. Further, in the writ petition itself the Petitioner admits that a notice u/s 143 of the U.P. Municipalities Act dated 31-1-1977 for triennial assessment. 1977-78 to 1979-80, was in fact, given and opportunity furnished. In paragraph 22 of the counter-affidavit, it has been further asserted that the Board had given a notice as to why the property should not be reassessed and the Petitioner did not furnish any proof as to why the property should not be assessed to the tune mentioned in the notice.

Therefore, the second submission made on behalf of the Petitioner is also devoid of substance.

Both the submissions made in behalf of the Petitioner, thus fail. No other point was pressed.

In the result, the writ petition fails and is dismissed with costs which are assessed at Rs. 200/-.