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Corporation of Calcutta Vs. Sailendra Nath Ghosh and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 77 of 1950
Reported inAIR1953Cal202,56CWN779
ActsCalcutta Municipal Act, 1923 - Sections 124, 127, 131, 131(2), 138, 363 and 364
AppellantCorporation of Calcutta
RespondentSailendra Nath Ghosh and ors.
Appellant AdvocateSunil Kumar Bose and ;Ranajit Ghose, Advs.
Respondent AdvocateBenoyendra Prosad Bagchi, Adv.
DispositionAppeal allowed
Cases ReferredCoomber v. Berks
- .....of calcutta and arises out of proceedings initiated by the assessees under section 141, calcutta municipal act, against the decision of the deputy executive officer about intermediate valuation in respectof premises no. 92, beltola road, calcutta, with effect from the third quarter of 1948-49.2. the objections raised by the assessees before the learned judge, court of small causes, sealdah, were accepted and it was ordered that the assessment made by the first deputy executive officer be cancelled and vacated.3. the principal point raised in this appeal is whether the corporation is entitled to assess rates on structures which had been constructed without obtaining the sanction of the corporation and they came within the category of unauthorised buildings. two other points.....

R.P. Mookerjee, J.

1. This is an appeal on behalf of the Corporation of Calcutta and arises out of proceedings initiated by the assessees under Section 141, Calcutta Municipal Act, against the decision of the Deputy Executive Officer about intermediate valuation in respectof premises No. 92, Beltola Road, Calcutta, with effect from the third quarter of 1948-49.

2. The objections raised by the assessees before the learned Judge, Court of Small Causes, Sealdah, were accepted and it was ordered that the assessment made by the First Deputy Executive Officer be cancelled and vacated.

3. The principal point raised in this appeal is whether the Corporation is entitled to assess rates on structures which had been constructed without obtaining the sanction of the Corporation and they came within the category of unauthorised buildings. Two other points which also were raised will be considered later on.

4. To appreciate the first point raised it is necessary to refer to some of the relevant facts. Premises No. 92, Beltola Road, was assessed during the last general revaluation with effect from the fourth quarter of 1945-46 under Clause (a) of Section 127, Calcutta Municipal Act. The 1otal area was 9 cottas with a few structures, one of them being a brickbuilt one and another being a shed. In December, 1946, four out of the nine cotta vacant plots were let out to a tenant by the owner at Rs. 40/- per mensem. It appears from the evidence that in or about 1947 the tenant raised certain structures on practically the entire portion of the four cotta plot taken on lease without obtaining any sanction from the Corporation as required under the building regulations. When these structures were completed steps were taken by the assessment department of the Corporation to serve notice for an intermediate revaluationwith effect from the third quarter of 1948-49. It is in respect of this intermediate revaluationthat objection was raised by the assessees before the Chief Executive Officer. After the hearing of the objections, the annual value was raised from Rs. 757/- as under the previousgeneral revaluation to Rs. 819/-. It may be mentioned that the original annual value as proposed by the department was Rs. 1630/- which was reduced to this figure on objection raised by the assessees.

5. It appears further that the building department of the Calcutta Corporation had been taking steps for bringing the question of the raising of the structures without previous sanction before the competent authority. Ultimately after the matter had been disposed of by the learned Judge of the Court of Small Causes and the appeal had been presented to this Court by the Corporation, an order was obtained from the Municipal Magistrate of Calcutta for the demolition of these structures. This fact was brought to our notice by both the parties at the time of the hearing of the appeal.

6. On behalf of the assessees, it is contended that the raising of the unauthorised structures could not entitle the Corporation to have an intermediate valuation fixed. This objection has been given effect to by the lower Court. It is necessary in this connection to consider the relevant provisions of the Calcutta Municipal Act as to whether the circumstances under which the structures had been raised could be taken into consideration for assessment of rates and also whether as a question of public policy rates should or should not be assessed on such unauthorised structures.

7. Section 124, Calcutta Municipal Act, is the charging section which authorises the Corporation to impose a consolidated rate 'upon all lands and buildings in Calcutta for the purpose of this Act.' It will be noticed that the language used in this section is all inclusive and 'all lands and buildings' situated in Calcutta become assessable to rates. We may refer in this connection to Clause 7, Section 3 of the Act which defines a building. A building includes different kinds of structures referred to in that Clause, but does not include 'a 'bogla' or other similar kind of temporary shed erected on ceremonial festive occasions.' It is not contended that the structure raised in the present case comes within the exception mentioned in this case. The various items referred to in the earlier portion of this Clause are merely descriptive of the nature of the structures without any reference to the circumstances under which such structures had been raised.

The exception, on the other hand, makes a reference to the occasion or the circumstances under which these temporary sheds are raised. There are certain other exceptions introduced by Section 126 of the Act which disentitles the Corporation for levying rates in certain cases or under certain circumstances. We need not refer to the details of this section as it is not contended before us that the circumstances arising in the present case can bring the structures within the purview of the exceptions mentioned therein,

8. Section 127, Calcutta Municipal Act, lays down how the annual value of land and/or building has to be ascertained for determination of the rates. As stated already, the assessment made in the present case is under Clause (a) of Section 127. The relevant portion of that section so far as this point is concerned is as follows: 'For the purpose of assessing land and buildings to the consolidated rate-

(a) the annual value of land and the annual value of any building erected.........'

A certain procedure laid down in that Clause is to be followed. There are no qualifying words appearing before the expression 'land and buildings' in the opening phrase. On the other hand, where reference is made to the annual value of a building, the Legislature takes care to include the annual value of 'any building'. There is no indication from this clause that any differentiation was intended to be made between structure raised with the previous permission of the Corporation and one put up without obtaining such sanction. On the other hand, the expression 'any building' used in that clause makes it abundantly clear that all kinds of buildings subject to the provisions contained in Clause 7 of section 3 defining buildings are liable to be assessed on the basis of annual value to be fixed under Section 127, Calcutta Municipal Act.

9. The assessment in the present case was an intermediate one occasioned by circumstances which are detailed in Section 131, Calcutta Municipal Act. Here also, the opening words of Clauses (c) and (d) of Sub-section (2) of Section 131 make specific reference to 'any substantial alteration and improvement made in any building' (in Clause (c) and 'if............'any' new building iserected' (in Clause d) and they point unmistakably to the implications of these clauses. Whether it be a substantial alteration or improvement to any existing building, or whether it be the erection of any new building, the buildings referred to answer the description which would attract the provisions contained therein. No differentiation is contemplated in either of the two cases between a building erected, with the sanction or otherwise from the Corporation, by a tenant or by a trespasser. It is not open to the party to ask us to consider the circumstances under which the buildings were erected. The only test to be applied is whether there has been a new building or any substantial alteration or improvement to any building.

10. Reference was made by both the parties before us as to the effect of the provisions contained in Sections 363 and 364 of the Calcutta Municipal Act. These two sections appear in Chapter XXIII of the Calcutta Municipal Act which deals with the 'demolition, alteration and stopping of unlawful work'. Reference may be made to the provisions contained in these two sections which lay down that notwithstanding any valuation of any unauthorised structure having been made by the Chief Executive Officer, the jurisdiction of the Corporation to take action against such unauthorised structure will not in any way be affected.

11. So far as the Corporation is concerned, it was contended that the provisions in these two sections indicate that there is a right to assess unauthorised structures. We cannot accept this contention. This is not a charging section, and on the other hand, the exception made in these two sections is for the purpose of retaining the authority of the Corporation to proceed against an improper and illegal act done by a rate-payer. There is no indication in either of these two sections that the Corporation was authorised under the provisions to levy rates on those unauthorised structures. Reference may in this connection be made to the earlier decisions of this Court wherein these provisions under Chapter 23 of the Act came up for consideration. The decisions were under Section 449 of the repealed Act of 1899 where there was no such explicit provision about the, saving of the authority of the Corporation to proceed against unauthorised structures after rates have once been assessed on them.

It was argued in these cases that the acceptance of rates by the Corporation was a waiver of the right to get a demolition order of the unauthorised structures. Vide -- 'Lachmi Narayan v. Corporation of Calcutta', 37 Cal 833 and -- 'Bholaram v. Corporation of Calcutta', reported in the same volume at p. 837, foot note. When the 1923 Act was passed this line of argument was made impossible by the provisos above mentioned following the decisions referred to above. In our view, these two sections are not of much assistance in determining the rateability or otherwise of unauthorised structures.

12. It is next urged on behalf of the assessees that as a matter of public policy the Corporation ought not to be allowed to assess rates on illegal erections of buildings, and thereby to a certain extent reap the benefit of illegal acts by members of the public. We do not think that any question of public policy arises in a case of this description.

13. The liability to rates, so far as the Calcutta Municipal Act is concerned, is on the basis of the annual value. Clause (a) of Section 127 is attracted when there is an income arising from the property by letting it out. If the assessee makes a building without getting a sanction of the Corporation, he reaps advantage arising therefrom by using it himself, or by having ail income by letting it out, and if as rule of public policy is at all to be introduced, that would be against the assessee who is liable to pay the rates on the income which that property yields. Under no rule of public policy can the owner and the occupier be allowed to use the building without payment of rates until, it may be after years, as in the present case, an order for demolition is obtained.

14. Our attention has not been drawn to any case where such a claim had been made in the past. But that does not mean that if such a claim is sustainable it is not to be allowed. Reference may, however, be made to a discussion of an analogous matter in the English Courts. As is well known, in England assessment of rates depends on a basis altogether different from that laid down under the Calcutta Municipal Act. Under the statute of Elizabeth I, the occupier is to be the person who is to be rated. The Courts have endeavoured and struggled to explain what is meant by occupation and who is to be considered to be a ratepayer. There is no statutory definition of the term 'occupier'. Occupation as used in connection with the law of rating in 'England is to be decided on first principles. Can the question of title be looked into for determining who the occupier is?

Lord Herschell, L. C., observed in -- 'Holy-well Union v. Halkyn District Mines Drainage Co.', (1895) A. C. 117 at p. 125: 'The question whether a person is an occupier or not within the rating law is a question of fact and it is not dependent upon legal title.' Lord Macnaghten observed in the same case at page 127 of the report:

'Liability to rates is not a matter of title. The question in each case must be whether there is in fact such an occupation as, accordingto the statute of Elizabeth and a course ofdecisions which have been recognised and established at law, carried with it liability for rating purposes.'

If a person in 'de facto' possession of land were to claim to show that his possession was that of a trespasser, and on this ground to escape rateability, he would be taking advantage of his own wrong -- 'Coomber v. Berks JJ.', (1882) 10 Q B D 267 at p. 282. No such result follows where a person produces evidence of title to show that his acts which may or may not amount to an exercise of the right to occupy are lawfully done under a title which comes under such a right,

15. In England, therefore, when attempts were made to escape liability to rates by occupiers on the ground that they had come into occupation illegally or improperly, they were not allowed to do so. One of the principles as noted above, is that a person is not to take advantage of his own wrong and reap the benefit himself, while he will refuse to pay the public dues which a person occupying the premises is liable under the law.

16. On an examination of the provisions contained in the Calcutta Municipal Act to which reference has already been made, it is clear that those provisions make no distinction between structures which are lawfully raised and those which have been raised without any permission or requisite sanction. This contention on behalf 'of the assessees should, therefore, be overruled.

17. The next contention which had been raised on behalf of the assessees was that the structures had been raised, by the lessee not for letting purposes but for his own use. It is contended that as regards the right to make an intermediate revaluation, the Corporation is to assess it under Section 127(b) and not under Section 127(a), Calcutta Municipal Act. It is, however, over-looked that the premises had originally been assessed under clause (a) of Section 127, and that the intermediate revaluation is of an assessment which had so been made previously on a rental basis under Clause (a), it is, however, contended that where the intermediate revaluation is under either Clause (c) or Clause (d) of Section 131(2) on the basis of substantial alteration i and improvement or the erection of new buildings giving rise to the intermediate revaluation. j the new building or the building which has been substantially altered and improved has to be revalued.

Such revaluation, it is contended, should be according to the relevant provisions of either Clause (a) or Clause (b) of Section 127 dependent upon the fact whether such improved structures or new buildings are meant to be Jet out or are not ordinarily let out or are not erected for letting purposes. We do not think that Clauses (c) and (d) of Sub-section (2) of Section 131 can be interpreted in this way. All that these two clauses provide is that it is not the entire valuation as under the original, general revaluation is to be scrapped, but that only such portion of the original valuation as is necessitated by the changed circumstances be modified or added to. That is exactly what has been done in the present case. On reference to the details of the basis of assessment of the general valuation and to those of the intermediate valuation, it becomes unquestionable that portion of the land on which the structures have been raised and the value of the new structures have been taken into consideration under Clause (a) of Section 127 of the Act, and that is on the same basis as the original valuation had been made. There has been no defect whatsoever, & none of the directions contained in Clauses (c) and (d) of Sub-section (2) of Section 131 have been violated. This object ion also cannot, therefore, be entertained.

18. The next objection raised was with reference to the notice which had been issued under Section 138, Calcutta Municipal Act. Trie ground of increase, as noted in this notice, exhibit 2, was stated to be 'Increase in the estimated yearly rental valueless statutory allowance for repairs due tosubstantial alteration and improvement madein the building.'

On behalf of the assessees, it is argued that on the evidence it appears that no substantial improvement or addition had been made to the structures which had originally been in existence when the general revaluation was given effect from the fourth quarter of 1945-46. It was on the four cotta vacant plot which had been leased out by the owner that a new structure had been raised. So this would be a case falling within Clause (d) and not Clause (c) of Sub-section (2) of Section 131, Calcutta Municipal Act. The notice, however, as issued indicated that the intermediate revaluation had been occasioned not owing to new structures having been raised, but to substantial alteration and improvement. It was not, therefore, open to the Corporation on issuing such a notice to assess the new structures under Clause (d) of Sub-section (2) of Section 131.

19. On behalf of the Corporation, an extreme position has been taken that no notice need be issued. We do not think that we can give effect to such a contention. Section 131, Calcutta Municipal Act, makes it absolutely clear that if any reassessment becomes necessary that can be done only on intimating the party concerned that the Corporation is proceeding to revise the valuations. The procedure to be followed is exactly the same whether the assessment be made for the first time or for an increased valuation. Section 138 of the Act makes it abundantly clear. A special notice is to be given. Such a notice was given in the present case, but the mention of the ground of increase was not quite accurate. On behalf of the assessees, reference is made to the last part of the sentence appearing in Section 138 of the Act where it is laid down that the notice shall contain a statement of the grounds for such an increase. If the ground is not correctly or fully stated will that take away the jurisdiction cf the. Corporation to fix an annual value for the purpose of the rates? We do not think that in the special facts of this case, the mistake in the notice can affect the legality of the assessment. The party concerned had not been misled at all, and on the other hand, had in the objection filed by them, exhibit 4(a), referred to all the circumstances under which the structures had been raised.

The assessees were given a full hearing and they had further the fullest opportunity of making their case on the basis of Clause (d) of sub-s. (2) of Section 131, Calcutta Municipal Act, and they have not been put to any disadvantage because of the particular statement contained in the notice. A notice has to be given, and if there be some defect or irregularity in the notice or in the substance of the notice, the facts of each particular case will have to be taken into consideration for determining whether thatnotice satisfies in substance the provisions contained in Section 138, Calcutta Municipal Act. In the special circumstances of this case we hold that the notice did not mislead the assessees, and that it was a sufficient and valid notice under the law.

20. All the objections raised by the assessees fail, and the appeal filed by them under Section 141, Calcutta Municipal Act, before the Court of Small Causes, Sealdah, must be dismissed.

21. This appeal is accordingly allowed with costs of this Court, the hearing fee being assessed at three gold mohurs. The order of the lower Court is set aside and the objections, of the assessees are rejected. The original assessment made by the Deputy Executive Officer stands.

Lahiri, J.

22. I agree.

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