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Municipal Commissioners of Howrah Vs. Calcutta Electric Supply Corporation Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 807 of 1960
Judge
Reported inAIR1970Cal414,74CWN904
ActsCode of Civil Procedure (CPC) , 1908 - Section 11; ;Constitution of India - Article 265
AppellantMunicipal Commissioners of Howrah
RespondentCalcutta Electric Supply Corporation Ltd.
Appellant AdvocateSatya Charan Pain, Adv.
Respondent AdvocateS.R. Banerjee and ;Soumendranath Mukherjee, Advs.
DispositionAppeal allowed
Cases Referred and Devilal Modi v. Sales Tax Officer
Excerpt:
- .....injunction, restraining the appellant municipality from realising taxes on the basis of the said impugned assessment.2. the suit was dismissed by the learned trial judge but, on appeal, that decision was reversed and the plaintiffs suit was decreed, as aforesaid.3. on the materials before us, we are in agreement with the learned court of appeal below in regard to its conclusion that the impugned assessment was in contravention of section 134 of the calcutta municipal act, as applying to howrah and, prima facie, therefore, apart from the question of the bar of res judicata, which we will discuss hereiubelow, the said assessment would have been void and illegal. the difficulty, however, of the respondent before us is by reason of the judgment of this court, reported in administrator.....
Judgment:

P.N. Mookerjee, J.

1. This appeal is by the Municipal Commissioners or Howrah against a decision of the lower appellate Court holding inter alia that the assessment of Holding No. 433/1, G. T. Koad for the period in question is void and illegal and decreeing the plaintiffs suit for such declaration and temporary injunction, restraining the appellant Municipality from realising taxes on the basis of the said impugned assessment.

2. The suit was dismissed by the learned trial Judge but, on appeal, that decision was reversed and the plaintiffs suit was decreed, as aforesaid.

3. On the materials before us, we are in agreement with the learned court of appeal below in regard to its conclusion that the impugned assessment was in contravention of Section 134 of the Calcutta Municipal Act, as applying to Howrah and, prima facie, therefore, apart from the question of the bar of res judicata, which we will discuss hereiubelow, the said assessment would have been void and illegal. The difficulty, however, of the respondent before us is by reason of the judgment of this Court, reported in Administrator Howrah Municipality v. M/s. Calcutta Electric Supply Corporation Ltd., (1958) 62 Cal WN 293. That was a judgment inter partes, where the assessment of Holding No. 433, with which the amalgamation of the present Holding No. 433/1 was overlooked or ignored by the Municipality in the matter of making of the impugned assessment, was in question. In dismissing the respondent's appeal on that occasion, in regard to the said Holding 433, this Court proceeded upon the firm view that the present impugned assessment in regard to Holding No. 433/1 had become final. That was an integral part of the said decision and, without the said finding, the decision of this Court on the said occasion could not have been made. In the above state of things, whatever be the position if the matter had been or be considered res inte-gra, the decision in the instant case must go against the respondent on account of the bar of constructive res judicata, The learned District Judge, in allowing the respondent's appeal and decreeing its suit, appears to have missed this aspect of the matter and accordingly, his decision cannot be upheld. We would, therefore, hold that the instant suit of the respondent for a declaration that the impugned assessment is ultra vires, void and illegal and for a permanent injunction, even though it might have otherwise succeeded on merits, must fail on the ground of constructive res judicata by reason of the above decision of this Court (1958) 62 Cal WN 293.

4. Mr. Banerjee, appearing on behalf of the respondent, drew our attention in this connection to two decisions of the Supreme Court, reported in Amalgamated Coalfields Ltd. v. Janapada Sabha Chhindwara, : AIR1964SC1013 and Devilal Modi v. Sales Tax Officer, Ratlam, : [1965]1SCR686 , to impress upon us that the bar of res judi-cata would not apply in the instant case on the above authorities. We are, however, unable to accept the said submission, as the said cases are obviously distinguishable, they being founded on the well-known principle (vide Broken Hill Proprietary Co.'s case, 1926 AC 94) that the assessment for a particular year may not, under certain circumstances, be res judicata for assessment in respect of a different year, In the instant case, the period in question is the same and those decisions would be distinguishable on that ground apart from the fact that the above cited Supreme Court decisions were decisions given in the Writ jurisdiction.

5. Mr. Banerjee also drew our attention to Article 265 of the Constitution. But whatever might have been the position under the said Article otherwise or had the matter been res integra we do not think that the said Article would be sufficient to override the bar of res judicata and, in our opinion, the bar of res judicata in the instant case would apply to prevent application of the said Article to invalidate the impugned assessment.

6. We would, accordingly, allow this appeal set aside the decision of learned District Judge, decreeing the plaintiff-respondent's suit and restore that of the learned Munsif, dismissing the plaintiffs suit.

7. The parties will bear their own costs in all the courts.

A.K. Mookerji, J.

8. I agree.


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