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Municipal Commissioners of Howrah Vs. Haratosh Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal496
AppellantMunicipal Commissioners of Howrah
RespondentHaratosh Ghosh and ors.
Excerpt:
- .....9 or their predecessor purna, it makes no difference which. the special notice was issued in the name of opposite party 1 and chakulal. it was actually served on opposite party 1 when chakulal was dead.2. opposite party 1 is not one of the owners. he merely holds a lease of certain portions of the bustee. mr. roy appearing on behalf of the petitioner was unable to show me how, in view of section 169, he could be jointly liable with opposite parties 2 to 10 for the whole of the consolidated rate. i shall therefore not interfere in his case.3. under section 142 the assessment becomes final subject to sections 139, 140 and 141 and cannot be challenged by the opposite parties. the result of the failure to serve the special notice is that persons affected thereby are deprived of their right.....
Judgment:
ORDER

Henderson, J.

1. This rule has been obtained by the plaintiff, the Municipal Commissioners of Howrah. The suit was instituted to recover a sum due as consplidated rate on a bustee. The learned Judge held that the assessment was a nullity, because the special notice prescribed by Section 138 of the Act was not properly given. The persons recorded in the register maintained under Section 143 were opposite party 1 and Chakulal, predecessor of opposite party 10. The actual owners were opposite party 10 and either opposite parties 2 to 9 or their predecessor Purna, it makes no difference which. The special notice was issued in the name of opposite party 1 and Chakulal. It was actually served on opposite party 1 when Chakulal was dead.

2. Opposite party 1 is not one of the owners. He merely holds a lease of certain portions of the bustee. Mr. Roy appearing on behalf of the petitioner was unable to show me how, in view of Section 169, he could be jointly liable with opposite parties 2 to 10 for the whole of the consolidated rate. I shall therefore not interfere in his case.

3. Under Section 142 the assessment becomes final subject to Sections 139, 140 and 141 and cannot be challenged by the opposite parties. The result of the failure to serve the special notice is that persons affected thereby are deprived of their right to file an objection or to appeal to the Small Cause Court. Mr. Lala, appearing on behalf of opposite parties 2 to 9, contended that it is only reasonable to hold that an assessment made in such circumstances is a nullity. This was the view taken by the learned Judge and in my judgment it was a perfectly reasonable view. The petitioner however obtained this rule on the ground that the effect of Section 144(3) has not been considered. That sub-section is in these terms :

No owner or occupier whose name is not entered in the assessment-book shall be entitled to object that any bill, notice of demand, warrant or other notice of any kind required by this Act to be served on the owner or occupier of any land or building, has not been made out in his own name.

4. The result is that opposite parties 2 to 10 are prohibited from objecting that the notice was not made out in their names or in the name of Purna. They therefore cannot complain that they have been deprived of their right to object under Section 139 or appeal under Section 141. This exhausts the whole of the proprietary interest and there is no cosharer left to urge that on account of the defects in the notice the assessment was a nullity.

5. The rule is discharged with costs against opposite party 1. It is made absolute against opposite parties 2 to 10. The decree dismissing the suit is set aside and I direct the Judge to hear and determine it in accordance with law. Opposite parties 2,8 and 9 will pay the costs of the petitioner in this rule, hearing fee, one gold mohur.


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