Suriya Kanta Janah vs Commissioner, Corporation of Calcutta and Others

B.N. Maitra, J.—The plaintiff''s case is that he is the owner of the premises in question. The Corporation of Calcutta assessed the annual valuation of that premises with effect from the 3rd quarter of 1960-61 fixing the annual valuation at Rs. 1080.00. He preferred Municipal Appeal No. 41 of 1963. It was allowed and the annual valuation reduced to Rs. 810.00. In spite of such fixation of the annual valuation, the Corporation has illegally sent some, tax bills stating the valuation of the premises in question at Rs. 3834.00. No special notice was served before sending these tax bills. The Corporation failed to perform its statutory duty. So such act is void and without jurisdiction. No such taxes could be realised from him The suit is for a permanent injunction restraining the defendants from issuing tax bills and from realising taxes on the basis of such annual valuation of Rs. 3834.00. The defendant filed a written statement alleging, inter alia, that the plaintiff had no cause of action and the suit was not maintainable. The assessment in question was lawfully made from the third quarter of 1962-63. The plaintiff did not raise any objection thereto. Hence the court has no jurisdiction to try the matter.

The learned Munsif held that the notice u/s 180 of the Calcutta Municipal Act was served on the plaintiff. But in, view of the decision in 4 Dominion Law Reports 116, the valuation could be made without service of such notice. If no notice was given, it did not make the valuation ultra vires. There were subsequent additions and alterations of the building by the plaintiff regarding the premises in question. So the assessment was validly made. The suit was thus dismissed. The plaintiff filed an appeal and lost the same. Hence the second appeal.

It has been contended on behalf of the appellant that the finding of the first appellate court regarding the service of the notice u/s 180 of the Act is contradictory. A careful reading of the judgment would show that no such notice was served. Reference has been made to the unreported Bench decision in F.M.A. 466 of 1967 (Sushil Chandra Dutta and others versus Corporation of Calcutta and others) disposed of on 5.2.1969, to show that if no notice u/s 180 of the Act is served that would make the assessment illegal because the issuance of such notice is compulsory under the Statute. The Bench case of Corporation of Calcutta versus Royal Calcutta Golf Club in 68 CWN 877 has been cited to show that section 150 of the Bengal Municipal Act creates special jurisdiction. But it can only mean that if the authorities are not guilty of any violation of the rules of natural justice or of ignoring the statutory provisions and the rules, the civil court will have jurisdiction to enter into the matter. Since no such notice was served the assessment in question is invalid. So the suit should have been decreed.

The learned Advocate appearing on behalf of the respondents has contended that he could not get hold of the decision in 4 D.L.R. 116 (Calcutta), which was also referred to by the learned first appellate court. But there is a finding by the first appellate court that notice u/s 180 of the Act was served. After the service of such notice the present suit is not maintainable.

So the first question is whether the notice u/s 180 of the Calcutta Municipal Act was served. In this respect the decision of the lower appellate court is incongrous; In the earlier part of judgment that court has stated that no document has been filed to prove such service. The oral evidence in this respect was disbelieved. In spite of such disbelief that court lated stated that it was unable to hold that the plaintiff had been able to make out a case of non-service of notice u/s 180 of the Calcutta municipal Act.

The law is that it is for the Corporation of Calcutta to prove the service of such notice. The plaintiff denied the service of such notice in his cross-examination. The defendant failed to prove by clear and cogent evidence the service of such notice. It is therefore held that no notice u/s 180 of the Calcutta Municipal Act was served. Section 180 of the Act reads as follows :�

The Commissioner shall, in all cases in which any land or building is valued for the first time, or at a time when an objection to a previous valuation is pending for decision, or is valued after cancellation of a previous valuation on the ground of irregularity, or in which the valuation of any land or building previously valued is increased u/s 172, give special notice thereof to the owner and the occupier of the same, and when the valuation is so increased, the said notice shall contain a statement of the grounds of such increase.

In view of the words "....or building previously valued is increased u/s 172" it will be necessary to refer to the relevant provisions of section 172 of the Act.

Clause (c) of sub-section (3) of the section 172 reads as follows :-

If during the currency of any period prescribed in sub-section (1) or sub-section (2), any new building is erected or an existing building reconstructed or substantially altered or improved, the Commissioner may cause the entire premises to be valued or revalued.

Since there was reconstruction of an existing building and there were substantial alterations, the Commissioner caused a new valuation to be made within the currency of the previous valuation.

There is a concurrent finding by the courts below that there was justification for making the valuation u/s 172 (3) (e) of the Calcutta Municipal Act. The service of a notice u/s 180 of the Act was mandatory. Since such notice was not served on the plaintiff by the Corporation of Calcutta, the conclusion is irresistible that the revaluation made at Rs. 3834.00 in respect of the premises in question is void ab initio and is without jurisdictions and the same is not binding on the plaintiff. The suit should have been decreed. However, the Corporation of Calcutta will be at liberty to make a proper valuation according to law after service of a notice u/s 180 of the Act.

Subject to the aforesaid observation, the appeal is allowed. The judgment and decree appealed against be and the same is set aside and the suit is decreed. The defendants are permanently restrained from realising taxes regarding the disputed premises on the footing of the annual valuation fixed at Rs. 3834.00

The parties will bear their own costs.

Appeal allowed with observation. No order as to costs.