Ram Labhaya, Ag. C.J.
1. This is a petition under Article 226, Constitution of India for writs of the nature of certiorari, mandamus and prohibition. The facts giving rise to this petition are as follows:
2. Messrs. Chunilal Kanhaiyalall, petitioners, owned 3 holdings in Palasbari town. We are concerned in this case with holding No. 60 in Ward No. III. The Town Committee of Palashbari constituted under Section 328, Assam Municipal Act of 1923 passed a resolution in an ordinary meeting of the committee on
26-10-1949, authorising the Chairman and Dr. Padmeswar, Goswami to revise the valuation of holdings and assessments. On 25-2-1950, the valuators submitted their valuation list and the assessment was revised. The Chairman of the Board then caused a notice dated
27-2-1950 to be published notifying the revised valuation and inviting objections to that valuation. According to the revised valuation, the annual value of the petitioner's holding No. 60, Ward No. III, was determined at Rs. 3900/- and the tax assessed thereon was Rs. 487-8-0 for one year. On 29-3-1950, the petitioner applied for a review of the assessment. The valuation was challenged as discriminatory and excessive. It is averred that the Chairman of the Municipality (respondent) failed to appoint a committee to hear and determine the aforesaid application as provided for by Section 89, Assam Municipal Act and that at a special meeting of the town committee held on 5-6-50 the petitioner's application for review was rejected. The petitioner was not heard nor was he given any opportunity to appear and prove his case. The resolution rejecting the petitioner's application for review is challenged as ultra vires and illegal.
3. The petitioner moved the State of Assam, under Section 292, Assam Municipal Act against the aforesaid order of assessment. The Government declined to interfere with the decision of the Palashbari town committee, and rejected the petition describing it as an appeal petition.
4. A notice dated 22-6-51 was then served on the petitioners demanding the tax levied in respect of the 3 holdings that belonged to them. The petitioners again applied to the Chairman for disposal of, their review application according to law, as it had been rejected in their absence without there having any chance of presenting their view-point. On 15-9-51 the town committee refused to re-open the matter and ordered that the petitioners should pay up the arrears of tax within 7 days. The tax levied has been paid. The petitioners now pray that the resolution rejecting their application for review be quashed, and that the respondent be directed by a writ of mandamus to hear and determine the application for review in accordance with law.
5. In the counter affidavit, the respondent representing the Palashbari town committee has averred that a special meeting consisting of 5 members of the committee disposed of the review application of the petitioner. Amar Chand Jain who was then the Vice-Chairman was an ex-officio member of the committee.
6. The petitioners have put in a copy of the notice by which the meeting of 5th June was convened. The Chairman convened a special meeting of the town committee. The agenda contained 4 items. Item No. 3 covered objection petitions against revised valuation of holdings and assessments. The other items on the agenda had no connection with the valuation or assessment. In this meeting, review applications from rate-payers were, considered. In some cases, taxes were reduced. The review application of the petitioner was rejected.
7. The main contention raised on behalf of the petitioner is that no committee was constituted for disposing of the review petition, as required by Section 89, Assam Municipal Act; nor was the petitioner heard in support of his petition when the town committee is alleged to have disposed of the petition. Section 89 provides that every application for review shall be heard and determined by a committee consisting of not more than 5 members, or by a servant of the Crown not below such rank as the Provincial Government may determine. The Chairman and the Vice-Chairman have to be ex-officio members of the committee and the other members of the committee have to be appointed from the members of the committee at a meeting of the committee. At least three members, one of whom must either be the Chairman or the Vice-Chairman, must be present when the application is heard and determined. The committee or any servant of the Crown as the case may be, after taking such evidence and making such enquiries as may be deemed necessary, may pass such orders as they or he may think fit in respect of the application. The decision of the committee or a majority thereof or a servant of the Crown in respect of any review application, is final. It is conceded that no committee was constituted as required by Section 89. The contention raised on behalf of the
respondent is that the Town Committee, instead of delegating the power to a sub-committee, itself heard and decided the matter in a special meeting which was convened for disposal of review petitions and for dealing with certain other matters of special interest. The learned counsel for the respondent has argued that there has been substantial compliance with requirements of law inasmuch as the Town Committee instead of delegating its powers to a smaller committee, undertook to hear and determine review applications itself.
The contention is obviously not correct. The mandatory requirement of Section 89 is that every application presented under Section 88 shall be heard and determined by a committee consisting of not more than 5 members, or by a servant of the Crown. The committee which admittedly consisted of 6 members thus could not hear and determine the application for review. The applications were reserved for decision of a committee of six. One member did not attend. The decision, however, was of the entire committee. A committee consisting of not more than 5 members had to be constituted. This committee could be formed by the Town Committee at a meeting. Before 5th June on which date the applications for review were disposed of, the Town Committee did not constitute any committee at any of its meetings as required by Section 89, for the disposal of review applications. We do not think that the requirement that a committee for the disposal of review applications consisting of not more than 5 members shall be constituted, is without any purpose. The provision that the number of its members should not exceed five also has a meaning and significance. The committee is charged with a judicial function. It has to hear and determine objections after taking such evidence and making such enquiries as it may consider necessary. The task could not be left to the entire committee. It could be more appropriately done by a small committee specially appointed for the purpose. The decision of the committee in the matter of taxation has been made final. It affects the rights of the subjects and, therefore, should be complied with strictly. It cannot be regarded as directory in nature. Non-compliance with it, in our opinion, affects jurisdiction. The Town Committee, as such, could not usurp or exercise jurisdiction which it did not possess. In disposing of review petitions, it acted in excess of its jurisdiction.
8. The second objection is more serious. The petitioners were not heard. They were not given any opportunity to place their case before the committee which disposed of the petition. It is contended, in these circumstances, that there has been no judicial determination of the matter, as was required by Section 89 of the Act.
9. Mr. Medhi the Government Advocate has contended that Section 89, Assam Municipal Act does not require a judicial approach, and the act of the Town Committee was not a quasi-judicial act; it was merely an administrative order which cannot be interfered with on the ground that no hearing was allowed to the petitioner. He urges that there was no obligation on the Committee to grant a hearing to the petitioner.
10. In Clause (1) of Section 89, the provision is that every application presented under Section 88 shall be heard and determined by a Committee or a Government servant'. Clause (3) provides that 'no such application shall be heard or determined by the Committee unless at least three members, including the Chairman or the Vice-Chairman or both, are present'. Clause (4) empowers the committee or the servant of the Crown as the case may be, to pass such orders as they or he may think fit in respect of any application after taking such evidence and making such enquiries as he or they may deem necessary. They are also required under Clause (5) to state the reasons for reduction in the valuation where they decide to reduce it. The decision is invested with finality. There can be no manner of doubt that a judicial approach is contemplated. The determination of a review application after hearing implies hearing of the party objecting to the valuation of the committee. There was a contest. There were two views--the view of the committee and the view of the objector. The committee constituted under Section 89 or the officer appointed has the power to take evidence and to make such enquiries as he or they may consider necessary. Reasons have to be given for the decision if it is in favour of the petitioner who has applied for review. All the necessary elements of a judicial, approach are there. A duty is cast on the committee or the Government servant appointed for the purpose of disposal of review applications to consider the matter judicially. The order of a committee purporting to act under Section 89 thus cannot be regarded as an administrative order. It evidently is a quasi-judicial act.
In --'Province of Bombay v. Khushaldas S. Advani', AIR 1950 SC 222(A), it was held that
'wherever any body of persons having legal authority to determine questions affecting rights of subjects and having the duty to act judicially, act in excess of their legal authority, a writ of certiorari may issue. The existence of each of these conditions is necessary to determine the nature of the act in question. When the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an enquiry judicial provided in coming to the decision the well-recognised principles of approach are required to be followed.'
The proposition stated above has been based on the test laid down by Lord Justice Atkin in --'Rex v. The Electricity Commissioners', (1924) 1 K.B. 17; (B). The test was in the following terms :
'Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.'
According to Fazl Ali, J.,
'it is the manner in which the decision has to be arrived at which makes the difference and the real test is : Is there any duty to decide judicially?' (vide AIR 1950 SC 222 at P. 229 (A))
All the conditions of the test exist in this case. The committee constituted under Section 89, has the legal authority to determine questions affecting the rights of subjects. It has the duty to act judicially. The duty is imposed by Section 89 itself. It has to hear and determine the matter. It naturally has to consider the available material. It has the power to take evidence and make such enquiries as it considers necessary, its decision is final. Its act, therefore, would be quasi-judicial act. If it acts in excess of its authority, a writ of certiorari may issue.
11. The learned Government Advocate has
contended, relying on certain cases considered by Das, J., in his judgment, that there must foe two parties besides the deciding authority. The contention does not receive any support from the judgment of the Court or even from the judgment of Das, J. After a consideration of all the authorities bearing on the point, Das, J., summed up the position as follows :
'What are the principles to be deduced from the two lines of cases I have referred to? The principles, as I apprehend them, are : (i) that if a statute empowers an authority,
not being a Court in the ordinary sense, to decide disputes arising out of a claim
made by one party under the statute
which claim is opposed by another party, &
to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and 'prima facie' and in the absence of anything in the statute to the contrary, it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the
authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially'.
12. According to the 2nd principle, the
existence of two parties outside the authority deciding the matter is not necessary to make the act a quasi-judicial act. Here the committee purporting to act under Section 89 had the statutory authority to do the act. The act could prejudicially affect the subject. The contest was between the authority proposing to do the act and the subject opposing it. The statute casts a duty on the committee to hear and then to determine the matter. As held in --'Manak Chand v. Municipal Council, Jaipur', AIR 1951 Raj, 139(C), in the matter of hearing and disposing of the objections of the assessees, the assessing authority is supposed to act judicially. The final determination of the committee would, in these circumstances, be a quasi-judicial act.
13. The obligation to hear the applicant is explicit. In not allowing any hearing to the petitioner, the committee--assuming that it had power otherwise to dispose of the review application--acted in excess of its authority. The failure to comply with this mandatory requirement of Section 89 justifies the exercise of the extraordinary jurisdiction vesting in Court under Article 226 of the Constitution by the issue of appropriate writs or directions.
14. The learned Government Advocate has also urged that the application was time-barred and therefore, no useful purpose would be served by quashing the order and directing the disposal of the application according to law. From the material placed before us by affidavits, it does not appear that the application for review was barred by time. The committee appointed under Section 89 could refuse to receive the application if presented after one month from the date of publication of the notice as required by Section 87, unless good cause was shown to the satisfaction of the committee for extending the time allowed. The date of the publication of the notice has not been disclosed, and we have no basis for holding that the petition was time-barred. Besides the committee received the application and disposed of it on the merits, without indicating that there was delay which it condoned. In these circumstances, the relief which the petitioner has been shown entitled to, cannot be denied. The decision of the committee on the merits of the case is liable to be quashed for the reasons given above. The only direction that is possible in the case at this stage is that the application of the petitioner for review should be heard and determined by a validly constituted committee or authority in accordance with law.
15. It has also been contended that the Provincial Government should have been made a party as the petitioner had applied to the Provincial Government for reversal of the order of the Town Committee rejecting the application for review. Even this contention, in cur opinion, should not prevail. The order 1 of the committee disposing of the review application is final, as provided in Section 89, Clause (6). No appeal is provided against this order. The petitioner, therefore, had no right of appeal or of revision, nor had the Provincial Government any appellate or revisional powers. Under Section 292, the Provincial Government has the power to call upon the Town Committee to perform any duty imposed on it by or under a Municipal Act or any other Act. It is doubtful whether the Provincial Government could draw on its power under Section 292 and interfere with an order of assessment in an individual case. The committee had performed the duty which the Act imposed on it; though in performing the duty, the committee acted in excess of its power. But assuming that it had the power, it has declined to exercise it. This should not create any impediment in the way of the petitioner when he claims that a quasi-judicial order passed by the committee in excess of its jurisdiction be vacated. By refusing to interfere with the order, the provincial Government did not adopt the order as its own. The Provincial Government is not the appellate authority. The duty of imposing the tax in the manner laid down by law rests on the committee, and not on the Provincial Government. Besides, Section 292 confers discretionary power on the Government. It could not be compelled to interfere and then to order the Town Committee to dispose of the application for review according to law.
16. For reasons given above, we hold the resolution of the Town Committee rejecting the petitioner's application for review and its subsequent order declining to dispose of it according to law, are liable to be quashed and we order accordingly. We further order that the Town Committee shall constitute a committee or appoint a servant of the Crown in conformity with the requirements of law, for the hearing and determination of the review application, in accordance with the procedure laid down in Section 89, Assam Municipal Act.
17. The rule is made absolute.
18. I agree.