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Chairman, Municipality of Balasore Vs. Moulvi Mahammad Abdul Sattar Khan - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 33 of 1950
Judge
Reported inAIR1954Ori224; 20(1954)CLT333
ActsBihar and Orissa Municipalities Act, 1922 - Sections 95; Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantChairman, Municipality of Balasore
RespondentMoulvi Mahammad Abdul Sattar Khan
Appellant AdvocateH. Mohapatra and ;R.N. Misra, Advs.
Respondent AdvocateL.K. Dasgupta, Adv.
DispositionAppeal dismissed
Excerpt:
.....tax of the assessee fixed in the general assessment, they must be satisfied, as provided under the last clause, that the assessment is inadequate and that it is so on account of mistake or fraud, it is manifestly clear to us, therefore, in the present case that as there is nothing to indicate that the inadequate assessment, if any, was due to mistake or fraud, the enhancement must be held to be ultra vires. mohapatra as it is one of the well settled principles that the provisions of the taxing statute have got to be construed strictly and the requirements thereunder have got to be strictly complied with......authorities. he particularly relies upon exts. a and a-2, that is the inspection reports of the district magistrate during the years 1943 and 1945, to show how the previous assessment was found to be inadequate.on a perusal of the reports of the district magistrate it may appear that the assessment may be inadequate in consideration of the circumstances of the respondent in the years 1943 and 1945. but there is nothing in the reports to indicate that in fact the assessment was inadequate in the light of the circumstances of the man in the year 1938, that is, the year of assessment. but that apart, one thing appears to be certain that there is nothing in the inspection reports of the district magistrate to indicate that the in-adequacy was the result of any mistake. we will quote in.....
Judgment:

Mohapatra, J.

1. This appeal has been filed by the defendant --Municipality of Balasore -- against the confirming judgment dated 17-11-1949, of Sri T.V. Rao, Subordinate Judge of Balasore, arising out of a suit brought by the plaintiff for a declaration that the enhancement of the municipal tax is ultra vires and without jurisdiction. The plaintiff, who is a Commissioner of the Balasore Municipality, is a resident of the Balasore Town and is in occupation of Holding No. 4 in Ward IV, that is, the Holding in question. He was assessed to pay a tax of Re. 1-8-0 per quarter in respect of this Holding in the General Assessment which had taken place in the year 1938. This tax, however, was enhanced to Rs. 9/7/- per quarter by the Resolution, dated 27-8-1945, of the Balasore Municipality affirming the proceedings of the Finance Sub-Committee dated 10-8-1945.

The contention on behalf of the plaintiff-respondent is that the tax which was assessed in the General Assessment of the year 1938 can be enhanced only in accordance with the provisions of Section 95, Bihar and Orissa Municipal Act, which was in operation during that time, and inasmuch as the provisions have not been complied with the assessment is bound to be declared ultra vires. It is also agreed by on behalf of the appellant-Municipality that the enhancement is to be effected only under the provisions of Section 95 and not otherwise.

2. Mr. Mohapatra, appearing on behalf of the appellant, contends that the provisions had been complied with. Section 95 runs as follows:

'The Commissioners may, at any time after thepublication of the notice required by Section 115,assess any person who was without authorityomitted from assessment list, or whose liability to assessment has accrued thereafter, and mayenhance any assessment which appears to themto be inadequate, and to have been so madeowing to mistake or fraud.'

Mr. Mohapatra relies upon the last clause and contends that the previous enhancement of the year 1938 appeared to the Municipal Body to be utterly inadequate and that the inadequate assessment was owing to the mistake of the assessing authorities. He particularly relies upon Exts. A and A-2, that is the inspection reports of the District Magistrate during the years 1943 and 1945, to show how the previous assessment was found to be inadequate.

On a perusal of the reports of the District Magistrate it may appear that the assessment may be inadequate in consideration of the circumstances of the respondent in the years 1943 and 1945. But there is nothing in the reports to indicate that in fact the assessment was inadequate in the light of the circumstances of the man in the year 1938, that is, the year of assessment. But that apart, one thing appears to be certain that there is nothing in the inspection reports of the District Magistrate to indicate that the in-adequacy was the result of any mistake. We will quote in this connexion the Resolution dated 10th August, 1945 of the Finance Sub-Committee which runs as follows:

'Read the remarks of the District Magistrate and the Additional District Magistrate about the tax imposed upon Mr. A. Sattar Khan with regret and it is not desirable that one of our brother Commissioner should be remarked in this manner. It has been done and we dont think nc will refuse to be taxed properly and take protection under the law to evade it and in our opinion he should be assessed upon a monthly income of Rs. 300/- per month as he is a prosperous jeweller, cloth merchant and is in a much happier position in the words of the District Magistrate.'

This Resolution of the Finance Sub-Committee was simply confirmed by the Municipal Body on 27-8-1945. The Resolution running thus: 'The proceeding of the Finance Sub-Committee Meeting held on 10-8-1945 was confirmed and with the amendments moved by Sri Jnan Ran-jan ralnaik and seconded by Sri Debendranath Das that after the demand of Rs. 3,000/- and 'out of which Rs. 1,500/- will be spent from the Municipal fund' in Resolution No. 4.' Neither in the resolution of the Finance Sub-Committee nor of the Balasore Municipality confirming the resolution there is anything to indicate that the inadequacy was due to any mistake. In our opinion, in order that the Municipal Body may assume powers for the purpose of enhancing the tax of the assessee fixed in the General Assessment, they must be satisfied, as provided under the last clause, that the assessment is inadequate and that it is so on account of mistake or fraud, It is manifestly clear to us, therefore, in the present case that as there is nothing to indicate that the inadequate assessment, if any, was due to mistake or fraud, the enhancement must be held to be ultra vires.

3. Mr. Mohapatra, however, argues that as it appears from the reports of the District Magistrate during the years 1943 and 1945 that the assessment was inadequate and further as was found by the Finance Sub-Committee that the previous assessment was improper, it has got to bo implied that the previous inadequacy was on account of mistake. We are afraid, we cannot accept this contention of Mr. Mohapatra as it is one of the well settled principles that the provisions of the taxing statute have got to be construed strictly and the requirements thereunder have got to be strictly complied with.

4. In our view, therefore, the enhancementbeing ultra vires, the Civil Court has jurisdictionto entertain the suit and the decisions of theCourts below arc confirmed. The appeal, therefore, is dismissed with costs.

Panigrahi, C.J.

5. I agree.


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