The Chairman of the Tikari Municipalty vs Nawab Alam Ara Begum @ Moghul Saheba

Ross, J.—The plaintiff brought this suit for a declaration that the assessment of taxes made on premises Nos. 50, 53, 54 and 55 situated within the Tikari Municipality was illegal and without jurisdiction and that she was not liable to pay the said taxes and that the defendant, the Chairman of the said Municipality, had wrongfully realized from her the sum of Rs. 256 3-0; and for refund of that sum with interest and for an injunction on the defendant restraining him from realizing subsequent Municipal taxes for the said-premises. In her plaint she stated that the holdings were in a ruined condition, but nevertheless were assessed with taxes and, thereupon, her servant made an application before the Municipal Commissioners for remission of the taxes of the said holdings and for exemption of the plaintiff from payment thereof. She further alleged that the Acting Vice-Chairman, inspected the holdings after this application was made and reported that they were ruined and that the taxes might'' be remitted and that the matter should be put up at the next meeting; but, Without putting up the matter at the meeting the Vice-Chairman, Babu Matukdhari Singh, rejected the application without assigning any reasbn for the same. All that was pleaded in the defence on this part of the case was that the plaintiff was not entitled to occupy the holdings free of tax, because, she did not keep them in, repair and that Babu Matukdhari Singh, the then Vice-Chairman, was justified in rejecting the, plaintiff''s petition. Now on these pleadings it must be taken that this petition by the plaintiff was a petition u/s 113 of the Bengal Municipal Act disputing liability to assessment. Section 114 requires that every such application shall be heard and determined by not less than three Commissioners who shall be appointed, in that behalf by the Commissioners at a meeting. The Vice-Chairman, therefore, in rejecting this application without referring: the matter to the Commissioners acted ultra vires, apart altogether from the further consideration that it does not appear what authority he had to over ride the order passed by his predecessor referring the matter to the Commissioners for consideration. The case, therefore, stands thus that an application was made according to law u/s 113 and it was not disposed of in the manner provided by law. Consequently all the proceedings with regard to assessment and realization of taxes for these holdings subsequent to this infringement of the Statute were ultra vires; and the plaintiff is entitled to relief in respect thereof.

It was contended by the learned Vakil for the appellant, the Chairman, that the, application u/s 113 was made against the original assessment; but that subsequently another assessment was made in November, 1920, under which taxes were realized and to which the plaintiff made no objection. He contends that this later assessment stands by itself independent of the earlier assessment and as long as no objection was taken u/s 113, it was a valid assessment and taxes were lawfully collected under it. In my opinion the Municipal Authority after acting ultra vires in not disposing of the objection to the original assessment u/s 113, cannot protect themselves by making a fresh assessment leaving the original objection to the assess-ability of the holding un-disposed of The two assessments cannot be treated independently. The plaintiff was under no obligation to go on objecting when her original objection remained un-disposed of according to law. There ought not to have been any further assessment after that objection until it had been decided.

The second point taken was that the plaintiff was not entitled to any refund of the taxes already collected from her under protest, by reason of the provisions of Section 363 of the Act, inasmuch as the suit was not brought within three months of the cause of action, the last payment having been made on the 12th of January, 1922 and the suit being brought on the 24th of April, 1922. This matter, however, is concluded by the authority of the decision in Ambika Churn Mozumdar v. Satish Chunder Sen 2 C.W.N. 689 where substantially the same point was taken. We are asked to differ from that decision on the ground that the act of the Chairman in realizing the taxes was tortious and not an act arising upon a contractual or quasi contractual basis. But it seems to me that the decision is perfectly correct. There was no question of tort. Demand was made from the plaintiff and the plaintiff paid the taxes under protest, that is to say, on an understanding that she would be entitled to a refund if her contention that the demand was ultra vires was correct.

On both points, therefore, the appeal fails and must be dismissed with costs.

Kulwant Sahay, J.

I agree.