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The Municipal Commissioners of Howrah Vs. Jagabandhu Banerjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberCivil Rule No. 1036 of 1949
Judge
Reported inAIR1950Cal201
ActsCalcutta Municipal Act, 1923 - Section 4; ;Provincial Small Cause Courts Act, 1887 - Section 25
AppellantThe Municipal Commissioners of Howrah
RespondentJagabandhu Banerjee
Appellant AdvocateBholanath Roy and ;Satya Charan Pain, Advs.
Respondent AdvocateBinayak Nath Banerjee and ;Sushil Kumar Biswas, Advs.
Excerpt:
- .....at a meeting a sins qua non for the assessment of an area as a bustee. i hold, therefore, that the learned judge was wrong in coming to this conclusion. in arriving at this view, i am relying on the use of the word 'may.' i am aware of the principle that the word 'may' in certain circumstances should be construed as 'shall,' but it does not follow that in construing this section one must hold that 'may' should always be construed as 'shall.' in my opinion, the word 'may' has been used for the following reasons viz., there may be no dispute or doubt regarding the question whether an area is a bustee or not, on the other hand, such a dispute or doubt may arise, when such a dispute or doubt does arise the municipality must decide the question, when such a dispute or doubt doss not arise no.....
Judgment:
ORDER

Amarendra Nath Sen, J.

1. This Rule has been obtained by the Municipal Commissioners of Howrah against an order passed by the Munsif, 3rd Court, Howrah, acting as a Judge of the Court of Small Causes, Howrah, dismissing the plaintiffs' suit for the recovery of certain rates on the footing that the subject-matter of the rates was a bustee.

2. The learned Munsif has held that the subject matter with respect to which the claim has been made is not a bustee and on this ground he has dismissed the suit.

3. The principal question for decision is whether the learned Munsif's judgment on the question whether the subject-matter is a bustee or not is in accordance with law. The learned Munsif has hased his decision on two grounds. First he says, that upon the evidence before him he is satisfied that the area is not a bustee within the meaning of Section 3 (10) read with Section 3 (36), Calcutta Municipal Act, as extended to Howrah. His second ground is that the Municipality of Howrah was bound to decide whether the area was a bustee or not before it could levy the rates claimed and that as there has been no such decision by the Municipality of Howrah, the claim is not sustainable. For this purpose he relies upon Section 4, Calcutta Municipal Act as extended to Howrah.

4. Learned Advocate appearing in support of the Rule contends that the learned Munsif has erred in law in coming to his conclusion upon the evidence that the land is not a bustee because he has drawn an unwarranted inference regarding some of the plaintiffs' witnesses--an inference which is not based on the evidence. He argues that the question whether the area is a bustee or not should be re-heard upon both parties giving fresh evidence on the point. As regards the second point, his argument is that it is not necessary for the Howrah Municipality to come to a formal decision that a particular, area is a bustee before it can realise rates on that area on that basis. His view is that Section 4 abovementioned does not lay down any such principle as is laid down by the learned Munsif in his judgment.

5. Learned advocate appearing in opposition to the Rule supports the findings of the learned Munsif both on law and on fact. He contends further that no notice was served upon the assessee as is required by the provisions of Section 133 of the aforesaid Act as extended to Howrah.

6. I shall first deal with the question whether the Municipality is debarred from assessing an area as a bustee until there is a formal decision of the question by the Commissioners at a meeting. Section 4 is in the following terms:

'The Corporation may decide whether any particular area is or is not a 'bustee' as defined in Section 3 and their decision shall be final.'

So far as the Howrah Municipality is concerned the word 'Corporation' means the Commissioners at a meeting. It is argued by learned advocate opposing to the Rule that unless the Commissioners at a meeting formally decided this question, there can be no assessment of a bustee. On the other hand, it is argued by learned advocate in support of the Rule that this section would come into operation only when there is a dispute before the Municipality as to whether or not a certain area should be declared a bustee and that where there is no such dispute there is no necessity for a formal decision by the Commissioners at a meeting. In my opinion, Section 4 of the aforesaid Act does not lay down the rule that art area cannot be assessed as a bustee until there has been a formal decision to that effect by the Commissioners at a meeting. Section 4 in my opinion is an empowering section. It gives power to the Corporation to decide whether an area is a bustee or not. Nowhere in the Act is it laid down specifically that before assessment there must be a formal decision. The Act defines what a bustee is and if an assessment is made on an area which conforms to this definition the assessment would, in my opinion, be a good one although no formal decision has been made on the question whether the area is a bustee or not by the Commissioners at a meeting. All that Section 4 means is this. If there is any dispute or doubt as to whether an area is a bustee or not, the Corporation is empowered to decide that dispute or resolve that doubt and its decision on the question shall be final. It does not in my opinion make the decision of the Commissioners at a meeting a sins qua non for the assessment of an area as a bustee. I hold, therefore, that the learned Judge was wrong in coming to this conclusion. In arriving at this view, I am relying on the use of the word 'may.' I am aware of the principle that the word 'may' in certain circumstances should be construed as 'shall,' but it does not follow that in construing this section one must hold that 'may' should always be construed as 'shall.' In my opinion, the word 'may' has been used for the following reasons viz., there may be no dispute or doubt regarding the question whether an area is a bustee or not, on the other hand, such a dispute or doubt may arise, when such a dispute or doubt does arise the Municipality must decide the question, when such a dispute or doubt doss not arise no such decision need be made. The use of the word 'may' indicates that the Municipality is not bound to decide the question unless the contingency above mentioned occurs. If the legislature intended that in all circumstances the Municipality was bound to decide this question it would have used the word 'shall' and not 'may.' As stated before the section is essentially an empowering section and not per se a directive or mandatory one.

7. On the question of notice I am of opinion that the learned Judge is wrong. The notice has been placed before me and it clearly shows that it was served on one Jagabandhu who is described in the notice as the grandson of Sm. Ushangini Debi the owner of the bustee. It is true that a witness in his deposition says that the notice was served on the grandson of Jagabandhu. This is clearly an error. The notice itself shows that it was served on Jagabandhu as the grandson of the owner. The person giving evidence had no personal knowledge of service and he misread the notice and much capital has been made of this misreading by the learned Judge and by learned advocate opposing the rule, I hold, therefore, that there 13 no error in the service of the notice because the Act permits service of notice on an adult member of the owner if the owner cannot be found, Admittedly, Sm. Ushangini Debi was the owner by virtue of the fact that she was the executrix of the late owner and admittedly Jagabandhu is her grandson and stands now in the place of Sm. Ushangini Debi.

8. There remains the last point as to whether the learned Judge's decision on the question whether the land is a bustee or not is in accordance with law. Learned advocate who appeared in opposition to the rule says that this is a pure finding of fact and that under Section 25, Provincial Small Cause Courts Act I should not interfere. It is quite true that under Section 25 of the last mentioned Act this Court should not interfere with pure findings of fact, but where the finding is based upon an obvious error in the appraisement of the evidence, then it cannot be described as a finding in accordance with law. If the Judge had merely believed one witness and disbelieved another. I would not be right in interfering with the learned Judge's decision on findings of fact. But here the learned Judge has made a serious error. Two witnesses for the plaintiffs namely witness no. I Anukual Chandra Chatterji and witness No. 3 Bishnupada Bose both describe the land as bustee. They were not cross-examined on this point. They were not asked whether or not they had been on the land. The learned Judge, however, says that the witnesses for the plaintiffs 'have no personal knowledge about the condition of the huts on suit land.' There is no justification for this finding so far as the witnesses I have named are concerned. It is true that there is positive evidence given on behalf of the defendant that the erections on the land consist of walls which are either masonry or half masonry and that they have corrugated iron roofs. If this evidence be true, then the constructions cannot be described as huts and, therefore, the land would not be a bustee. On the other hand, there is the evidence of the witnesses for the plaintiffs which has been misappreciated.

9. I am of opinion, therefore, that the case should be sent back to the learned Munsif who shall allow the parties to adduce further evidence on the question of the structures on the land and on the question whether the land is a bustee or not within the meaning of the Calcutta Municipal Act as extended to Howrah. After hearing such evidence, the learned Munsif shall decide the matter in accordance with law in the light of the observations made above.

10. The evidence already on the record shall be evidence in the matter.

11. The costs will abide the result.


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