1. Premises No. S. 20/54 Mall Road Banaras which is popularly known as Clark's Hotel Building is a dedicated property and is managed by the trustees who are Maharaja P. M. Tagore, Jimut Prakash Ganguli, Shri Sudhir Kumar Basu, and Shri S. K. Das Gupta. Under instrument dated 5th April 1952 the said premises were leased out to the petitioner and his brothers for a period of 20 years at a monthly rent of Rs. 583/5/4 and there is a clause in the lease under which it is renewable for a further period of 20 years. The petitioner and his brothers, the lessees are carrying on hotel business in the said premises under the name and style of Clark's Hotel.
The last assessment of taxes in the Municipal Board of Banaras was made in the year 1951 and the premises were assessed on an annual rental of Rs. 7,500/-. The Municipal Board, Banaras came under the control and management of the Administrator. On the 19th August 1954 a notice was issued by the Banaras Municipal Board through Its Administrator purporting to be one under section 147 (1) (c) of the U. P. Municipalities Act. Under this notice it was proposed to revise the assessment of the premises with a view to assess it at an enhanced rental value of Rs. 21,600/-.
The petitioner and the trustees both were asked to file objections. Objections were filed and one of the points taken was that there was no power to revise the assessment as there was no allegation of misrepresentation, mistake or fraud in the last assessment. The objections were overruled by the Appeal Officer, Municipal Board, Banaras who has been given power to decide such objections. An appeal was filed under Section 160 of the U. P. Municipalities Act against the Order of the Appeal officer to the Commissioner, Banaras Division. The order of the Appeal Officer was maintained but the annual rental value was fixed at Rs. 15,000/-.
2. On these facts the present petition has been filed under Article 226 of the Constitution for a direction not to enforce the order of the 4th February 1955 passed by the Appeal Officer, Municipal Board, Banaras and confirmed on the 31st August 1955 by the Commissioner, Banaras Division.
3. In the counter affidavit it is stated that in the quinquennial assessment of 1950-55 a notice was issued on 9th July 1949 to the Manager, Clark's Hotel, the then lessee Mrs. F. M. De Hoxar calling upon her to supply certain information. In the information supplied to the Board it was said that the approximate cost of the building was about 2 lacs. A notice was again issued to the owner on the 1st August 1949 asking for the approximate value of the land. Thereafter an inspection was made by the Assessment Officer who proposed the premises to be assessed at a rental value of Rs. 15,000/- per annum.
The Administrator took charge on the 10th July 1953 and on the 29th September 1953 he sent a letter to the Commissioner that it had come to his notice that considerable number of houses had escaped proper assessment of house and Water Tax due to misrepresentation or mistake and in some cases fraud and he proposed to take action under section 147 (1) (c) of the U. P. Municipalities Act. Thereafter necessary staff was appointed on the 11th February 1954, and the assessment work began from the 15th February 1954. The Assessment Officer then inspected this building again and proposed that the premises be assessed at the rental value of Rs. 21,600/-. On that the proceedings were taken, objections were invited and the Appeal- Officer held that the assessment had been made under a mistake and the Commissioner upheld the finding and fixed the assessment at Rs. 15,000/-.
4. The stand taken by the opposite party is that the Administrator had power under section 147 (1) (c) to make a revised assessment under subsection (b) of Section 140 of the Municipalities Act,
5. A preliminary objection has been raised by the opposite party that the present petition is a belated one and this Court should not exercise its powers under Article 226 of the Constitution in such circumstances. The order of the Commissioner was passed on the 31st October 1955. This petition was filed on the 6th March 1956, nearly five mouths after the order of the Commissioner. It was urged that ordinarily this Court will not exercise its discretion in favour of the petitioner who has come to this Court after the expiry of three months from the order impugned.
There is no limitation prescribed for the exercise of the powers by this Court. But as the power itself is discretionary this Court generally would not exercise its power in favour of a peti-tioner who has come to this Court after a consider-able delay. No hard and fast rule can be laid down as regards the actual period which this Court would consider as unreasonable and will decline to interfere under Article 226 of the Constitutionafter the lapse of such a period. It will depend upon the circumstances of each case and also on the nature of the right of the petitioner which has been affected by the impugned order.
It was urged by the counsel for the Board that no satisfactory explanation has been given by the petitioner. In tact no explanation has been attempted to be given by the affidavit filed by the petitioner in support of his petition for the delay. Even after the order of the Commissioner enhancing the assessment a demand will have to be made of the taxes in accordance with the provisions of the Municipalities Act, and thus the petitioner may have a right to challenge the order of the Commissioner when steps are taken to realise the taxes. In this view of the matter it cannot be said in the present case that the delay was so gross as to disentitle the petitioner to get a relief from this Court under Article 226 of the Constitution
6. It was also urged by the Counsel for the Board that the next quinquennial assessment of the Board must have started now and the present petition therefore has become infructuous. There is nothing on the record to show that the next quinquennial assessment has strated in the Municipal Board, Banaras. Moreover, any assessment proceedings which have started afresh will not affect the liability of the petitioner for arrears of taxes resulting from the order passed by the Appeal Officer and the Commissioner, enhancing the assessment.
7. Coming now to the merits of the petition, the contention raised by the counsel for the petitioner is that the conditions precedent for the exercise of power to alter or amend the assessment list have not been fulfilled in this case under section 147 of the Municipalities Act, and consequently, an order enhancing the assessment list is without jurisdiction. It is also urged that the orders passed by the Appeal Officer and the Commissioner in appeal are quasi-judicial orders and they can be interfered with by this Court in the exercise of its powers under Article 226 of the Constitution. Section 147 of the U. P. Municipalities Act provides as folows:
'(1) The board may at any time alter or amend the assessment list
(a) by entering therein the name of any person or any property which ought to have been entered or any property which has become liable to taxation after the authentication of the assessment list; or
(b) by substituting therein for the name of the owner or occupier of any property the name of any other person who has succeeded by transfer or otherwise to the ownership or occupation of the property; or
(c) by enhancing the valuation of, or assessment on, any property which has been incorrectly valued or assessed by reason of fraud, misrepresentation or mistakes.; or.....'
8. This section gives power to the board at any time to alter or amend the assessment list. Under Clause (c) of section 147 the alteration can be made by enhancing the valuation of, or assessment on, any property only when such an assessment or valuation has been incorrectly made inthe previous assessment by reason of fraud, misrepresentation or mistake.
Sub-section (2) of Section 147 provides as follows:
'Provided that the board shall give at least one month's notice to any person interested in any alteration which the board proposes to make under Clauses (a), (b), (c), or (d) of Sub-section (1) and of the date on which the alteration will be made.'
Sub-section (3) of section 147 then provides:
'The provisions of Sub-sections (2) and (3) of section 143 applicable to the objections thereunder mentioned shall, so far as may be, apply to any objection made in pursuance of a notice issued under Sub-section (2) and to any application made under Clause (f) of Sub-section (1).'
Sub-section (2) of Section 143 provides as follows:
'All objections to valuations and assessments shall be made to the board, before the date fixed in the notice, by application in writing stating the grounds on which the valuation and assessment are disputed, all applications so made shall be registered in a book to be kept by the board for the purpose.''
Sub-section (3) of section 143 then provides:
'The board, or a committee empowered by delegation in this behalf, or an officer of Government or the board to whom, with the permission of the prescribed authority, the board delegates, and it is hereby empowered so to delegate by resolution, powers in this behalf, shall, after allowing the applicant an opportunity of being heard in person or by agent,
(a) investigate and dispose of the objections,
(b) cause the result thereof to be noted in the book kept under Sub-section (2),.....'
9. Section 160 gives a right of appeal against the order passed under Sub-section (3) of section 143 or under Sub-section (3) of section 147.
10. From a perusal of these sections it is clear that the Appeal Officer who has been delegated the powers to investigate into the objections filed to the assessment has to act judicially and his orders are appealable. The proceedings before the Appeal Officer and the Commissioner are of a quasi-judicial nature and cannot be regarded administrative and the orders passed by them are amenable to a writ of certiorari by this Court under Article 226 of the Constitution.
11. Dealing with the objection by the petitioner regarding the applicability of Section 147 (1) (c) of the Municipalities Act the Appeal Officer in his order has observed as follows:
'In the first place it is contended that Section 147 (1) (c) is not applicable to the present case. I find, however, that this cannot be admitted ag the building is obviously earning much more than what it has been assessed at and the fact that this building was a hotel when the last assessment took place shows clearly that there has been some mistake why it has not been properly assessed. The learned counsel pointed out that the court has observed that as there is no fraud or misrepresentation there could be no mistake either. I am afraid I cannot agree to this. There must have been some mistake''.
12. The commissioner in appeal dealing with this question has observed as follows:
'Counsel for the appellants argued that there was no mistake, misrepresentation or fraud within the meaning of Section 147 (1) (c) of the U. P.Municipalities Act which can justify the enhance-ment. It may, however, be observed that for pur- poses of the last quinquennial assessment, the Assessing Officer had proposed Rs. 15,000/- which thethen Objections Deciding Committee reduced tounconscionably low figure of Rs. 7,500/-. The error has to be rectified.'
13. That is how the two officers have dealt with the question of applicability of Section 147 (1)(c) of the Act. The reasoning of the Appeal Officer seems to be that as the petitioner is earning much the building, according to his estimate, is of higher rental value, necessarily some mistakes must have been committed in the past. The Commis-sioner also seems to be of opinion that as the figure proposed in the last assessment list by the Assessment Officer was Rs. 15,000/- annual which was arbitrarily reduced to Rs. 7,500/-; some error must have crept into the list and it must be rectified.
14. The entire consideration on which the order has been passed amending the assessment last, to my mind, is misconceived and does not come within the purview of section 147 (1) (c).
15. Chapter V of the Municipalities Act deals with the imposition and alternation of taxes. Certain procedure is to be followed before taxes are imposed. Thereafter the assessment and the preparation of the assessment list are also to be made in accordance with the detail and elaborate procedure provided under the Act. When the assessment list was prepared in the year 1951 and the Committee accepted Rs. 7,500/- as the annual rental value of the building, to my mind, section 147 does not contemplate, that if in future some other officer considers that the rental of the building is higher than what was estimated to be in the past by a competent authority, to amend the assessment list (sic).
The preparation of the assessment list does not depend upon the estimate of an individual officer as regards the rental value of a premises. The value is to be assessed on certain accepted principles given in the Act, and after due enquiry. Section 147 (1) (c) expressly provides that the power to amend the assessment list arises only if the valuation or assessment of any property had been incorrectly made by reason of fraud, misrepresentation or mistake. No fraud in this case has been alleged nor any misrepresentation. The ground on which the amendment has been ordered is one of mistake.
The mistake which gives right to the board to alter or amend the assessment list is a mistake of fact and not a different view taken by any officer as regards the valuation or assessment of the property. I have already pointed cut that principles have been laid down for ascertaining the value of the property and elaborate procedure of enquiry is laid down in the Act before the actual assessment is made. The mistakes, to my mind, under section 147(1) (c) which have resulted in incorrect valuation or assessment necessarily implies the mistake in the application of the principles laid down earlier for finding out the valuation of the property or in the process of enquiry.
If in the course of enquiry any document has been misread or there has been an obvious wrong application of the principles on which the value is to be ascertained under the Act it may be said that incorrect valuation has been arrived at in the past by reason of mistake. But as I have already stated the mistake cannot be assumed merely on the ground that an officer later on thinks that ac-cording to his opinion the valuation arrived at ear-lier was wrong. The Appeal Officer and the Commissioner have not pointed out any mistake in application of the principles or the procedure followed in the enquiry made by the Board when the assessment was made in the year 1951 on which it can be said that the incorrect valuation was arrived at by reason of such a mistake.
16. In this view of the matter the orders passed by the Appeal Officer and the Commissioner are manifestly erroneous on a question of law and must be quashed. It is true that this Court in exercise of its powers under Article 226 of the Constitution does not sit as a court of appeal but as I have already pointed out the decisions of the Appeal Officer and the Commissioner have been arrived at in disregard of the provisions of Section 147 (1) (c) and are manifestly erroneous.
17. I, therefore, allow this petition and quash the orders of the Appeal Officer dated 4th February 1955 and the Commissioner Banaras Division dated 31st October 1955. But as there has been some delay by the petitioner in coming to this Court the petitioner is not entitled to his costs and the parties will bear their own costs.