Navadip Chandra Pal, Chairman of the Kumarkhali Municipality vs Purnananda Saha

Maclean, C.J.—The Appellant is the Chairman of the Knmarkhali Municipality, and the point, the only point, which he urges before us on appeal, is that the Civil Court had no jurisdiction to interfere, and that consequently the suit is not maintainable. The suit is one, in effect, to set aside an assessment which has been made by the Municipality upon a certain granary and threshing floor belonging to the Plaintiff. It appears that in the year 1893, which was the time at which the last triennial assessment was made, the Municipality assessed both the granary and threshing floor as one holding at lis. 12. Afterwards, in 1894, they were minded to treat the granary and threshing floor as separate holdings, they accordingly assessed the granary at Rs. 12, and assessed the threshing floor separately at 9 annas. The Plaintiff complains of this now assessment, this increase of 9 annas on his former assessment. The matter, as far as money goes, is not of very serious importarlee, for, as the Municipality could clearly have made a fresh assessment in 1896, the amount involved in this litigation is the assessment of 9 annas on the threshing floor for two years, which would amount to the largo sum of 18 annas. The contention of the Municipality is, that the Plaintiff had no right to bring this suit, that what they, the Municipality, have done was not ultra vires, and that, if the Plaintiff were aggrieved by this separate assessment of the two holdings, his proper course was to apply to the Commissioners to review the amount of the assessment under sec. 113 of Act III of 1884, and they further contend that that was the only course open to him, having regard to see. 116 of the same Act, which says, that no objection shall be taken to any assessment or rating in any other manner than in this Act provided, the manner provided being that stated in sec. 113. They say, in effect, that a rate-payer, who is dissatisfied with any assessment made by the Municipality, has no right to drag the Municipality into a Civil Court, but that the question must be decided by the Municipality itself, and the Municipality alone, under the provisions of sec. 113, read in conjunction with sec. 116. To this the Plaintiff replies that that may be so if the assessment be not made ultra vires, that is, within the powers conferred by the Statute upon the Municipality, but that if the assessment be made ultra vires, there is nothing in the Act to prevent a rate-payer from seeking in a Civil Court a decision that the action on the part of the Municipality was ultra vires, and that the assessment is not binding upon him. That proposition, as a proposition of law, has not been disputed, by the Appellant''s vakil, and that being so, the question really is, whether the action of the Municipality, in doing what I have stated in 1894, was or was not within the powers conferred upon them by the Statute to which I have referred.

The material sections bearing upon this point are secs. 85 and 93. See. 85 authorizes the Municipality to impose a tax upon persons occupying holdings within the Municipality, according to their circumstances, and property within the Municipality--I pause here for a moment. That is just what the Municipality did. In 1893, they enquired into the circumstances of the Plaintiff, and they made an assessment upon the granary and threshing floor as a whole, and assessed the two at Us. 12. I have stated what they did in 1894, and they rely upon sec. 93 as justifying their action in that year. The question turns upon the construction of sec. 93 of the Act. Sec. 93 says " that the Commissioners may, at any time after the publication of the notice required by sec. 112, assess any person who was, without authority, omitted from the assessment list, or whose liability to assessment has accrued thereafter, and may enhance any assessment which appears to them to be inadequate, and to have been so made owing to mistake or fraud. " It is clear that the case does not come within the first portion of the section, that is to say, as to assessing any person who was, without authority, omitted from the assessment list, for the Plaintiff was not omitted from the assessment list; he was in the assessment list of 1893, and was assessed in respect of these two holdings as a whole. Nor does the case come within the second part of the section, that is to say, the case of a person whose liability to assessment has accrued thereafter. It is not contended by the Appellant that it comes within either of these provisions; he contends that this was an " enhancement of an assessment which appeared to them to be inadequate, and to have been so made owing to mistake or fraud." Is it an enhancement of an existing assessment, or is it a fresh or new assessment? I think "enhancement of an assessment" means a monitory addition to the existing assessment of the same property which had been originally included in one and the same assessment. For instance, if the granary and threshing floor in this case had, as a whole, been assessed, say at Rs. 12, and then, later on, the Municipality discovered that, owing to mistake or fraud, the same property as a whole ought to have been assessed at say Rs. 15, that would constitute an enhancement of an assessment. But here what was done was something quite different. Though in the result the Plaintiff has to pay a larger sum, the Municipality did not seek to add anything to the existing assessment of the property assessed as a whole, but they sought to break up the original assessment, and to convert what was originally one assessment on the whole property into two assessments, on two separate properties, that is to say, to convert the one assessment on the whole into two assessments upon the granary and threshing floor separately. That, to my mind, is not enhancement of an assessment within the meaning of the section, but the creation or making of a new and independent assessment upon a property which previously had not been separately assessed, and I do not think that sec. 93 empowers the Municipality to do this. They ought, I think, to have waited for the next triennial assessment, when it would be open to them to have done it. In this view the suit is maintainable. For these reasons the appeal fails, and must be dismissed with costs.

Banerjee, J.

I concur.