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Judgment
P.N. Mukekjee, J.—A short important question arises for consideration in this second Appeal. The appeal is directed against a decision of the learned Additional District Judge, Alipore, decreeing, in appeal, the Respondent rate-payer''s suit for, inter alia, a declaration that a particular assessment is ultra Tires of the Bengal Municipal Act and the Rules, framed there under, and so not binding on the Plaintiff and for a permanent injunction, restraining the Appellant Municipality, which was the Defendant in the trial court, from realising any rate under and in pursuance of the said assessment. The suit was dismissed by the trial court, mainly, upon the ground that the particular action, in the facts of the case, was not maintainable in the Civil Court. That dismissal, however, was set aside by the learned Additional District Judge and the Plaintiff''s suit was decreed by him upon the contrary view that, in the matter of the impugned assessment, the Municipality had acted, in flagrant violation of the statute [Section 149(2) of the Bengal Municipal Act and Rules 8, 9, 10 and 13 under the said Act] and, accordingly, the said assessment was ultra vires and could be questioned in the Civil Court in spite of Section 150 of the aforesaid Bengal Municipal Act. Against this decision, the present second Appeal has been filed by the Defendant Municipality.
In the view we are taking, it is not necessary to set out the facts in any great detail. All that is necessary to state is that the disputed assessment (which was in respect of holdings Nos. 103 and 104 of the Appellant Garden Reach Municipality, belonging to the Respondent Union Jute Company Limited, for the quinquennial period, commencing with April 1, 1956), as eventually made by the Administrator, representing the Review Committee under the Statute (vide Section 148), affirming the Assessor''s assessment, was, upon the finding of the lower appellate court, not open to challenge in the instant second appeal, at least, on the materials on record, made without complying with and in utter disregard and contravention of Section 149(2) of the above Act and the connected Rule 13 of the statutory Rules there under. That section and the Rule (Rule 13) to quote only its relevant part, run as follows:
149 (2). The Committee shall give notice to the applicant of the time and place at which his application will be heard, and after taking such evidence and making such inquiry as it may deem necessary, in the presence, of the objector or his agent if he appears, pass such orders as it thinks fit in respect of the application.
Rule 13 (Relevant part).
On the date, so fixed for hearing, or, any date, to which such hearing may be adjourned, the Committee shall take such evidence and make such enquiry as it may deem necessary, in the presence of the objector or his agent, if he appears, and shall then pass such orders on the application as it thinks fit.
The point, now, is whether the above contravention and noncompliance with the statute and the statutory rule will vitiate the assessment so as to make it ultra vires and open to challenge in Civil Court. We would not refer to the other contraventions, found by the learned Additional District Judge, namely, of Rules 8, 9 and 10, as the latter two Rules do not apply to the Review Committee and the former also does not seem to be strictly obligatory upon it in view of the subsequent Rule 14. It is to be remembered also, that in the Civil Court, the Assessor''s assessment is not, strictly speaking, the matter for consideration, as any infirmity in it ought to be rectified by and through the procedure, laid down in the Act, that is, by the Review Committee (vide Sections 148 and 149 of the Act). This, indeed, is well-settled as, in regard to a special liability, created by a special statute, the remedy, if any provided under the Act, is exclusive [vide Wolverhampton New Water Works Co. v. Hawkerford [1859] 6 C. B. (N. S.) 336, approved by the House of Lords in Neville v. London "Express" Newspaper Ltd. 1919 A. C. 338.] This principle, however, is not in conflict with the other fundamental rule or principle, equally well-settled, that where a special tribunal acts contrary to the statute or in disregard Or contravention of or non-conformity with, inter alia, fundamental principles of judicial procedure, the Civil Court''s jurisdiction to declare the special tribunal''s act or action ultra vires and give appropriate relief to the aggrieved party is not and cannot be taken away by a mere general provision, purporting to oust its jurisdiction. This, indeed, is the effect of the Privy Council case of "Secretary of State represented by the Collector of South Arcot v. Mask and Company" (1939) L.R. 67 IndAp 222, 236, 237, and that position has not been affected by any subsequent authority. The net result will, then, be that the aggrieved party must follow the statutory remedy but, if the final authority under the statute acts in contravention of the Act or of statutory rules thereunder or of fundamental principles of judicial procedure, approach to the Civil Court is not barred. The Election case, cited by Mr. Deb and strongly relied on by him, namely, N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, , was on the first of the above two well-settled rules or principles but, as seen above, -and as explained and affirmed by the Privy Council in Mask''s case (1939) L. R. 67 I. A. 222, 236, 237, that rule or principle does not militate against the other principle aforesaid, too firmly established to be questioned now, as stated by the Privy Council at p. 236 of the said Report. Indeed, as pointed out by the Privy Council, the two principles are distinct and independent and have their own fields of application and it is often a moot question, within which principle, a particular case falls.
As to The Commissioners of the Krishnagar Municipality v. Kalidhan Chatteree (1958) 62 C.W.N. 727 , it is enough to say that there the present question did not arise and, on its fates and findings, the decision may well be supported. We do not deem it necessary to say anything more on this case.
Some remarks apply to Municipal Commissioners of the Pabna Municipality v. Naba Gobinda Choudhury (1942) 46 C. W.N. 830 and in Hari Bhutan De v. The Municipality Commissioners of Kamarhati (1941) 41 C. W.N. 1113 the basic finding was that that was substantial compliance with the statute (which, of course, could include the statutory rules) and that "the ''so-called''-mark this significant phrase- infraction of the rules did not go to the rest of the matter at all" and that sufficiently distinguishes it from the present case.
On the above view, the instant suit would be perfectly maintainable and the impugned assessment must be held to be ultra vires for contravention of Section 149(2) of the Act, read with the relative Rule 13, and, accordingly, the decree of the Plaintiff''s suit, as made by the learned Additional District Judge, must stand and must be affirmed.
In the result, this appeal fails and it is dismissed but, in the circumstances, there will be no order for costs either in this Court or in any of the two Courts below.