Chitty and Carnduff, JJ.
1. This appeal arises out of a suit brought by a rate-payer against the Chairman of the Chittagong Municipality to have the assessment of his holding, whereby higher rates were imposed upon it, declared void on the ground that it was made by an assessor appointed in contravention of law.
2. It appears that at a meeting of the Municipal Commissioners of Chittagong held on the 6th May, 1903, the question of appointing a paid assessor under Section 46 of the Bengal Municipal Act, 1884 (Bengal Act III of 1884, as amended by Bengal Acts III of 1886, IV of 1894 and II of 1896), was raised by one of the Commissioners as an amendment to a substantive motion and that the amendment in favour of such an appointment was put to the meeting and lost. On the 29th July following, however, the question was again raised as a substantive proposition, and on this occasion the proposal was carried. The paid assessor, who revised the plaintiff's assessment in the manner complained of, was appointed accordingly the assessment was presumably published under Section 112 of the Act; the plaintiff applied for a review under Section 113; and the assessment was confirmed by the 'Appeal Committee' of the Commissioners under Section 114. The appointment of the paid assessor is attacked as ultra vires because, by Rule 33 of the Model Rules under Section 351A of the Act framed by the Local Government and adopted by the Municipal Commissioners of Chittagong by resolution passed at a special meeting held on the 26th March 1895, 'no subject once finally disposed of can be reconsidered within six months, unless not less than two-thirds of the Commissioners consent by signing a requisition.' In this instance it is not suggested that any such requisition was made. The contention prevailed in both the Courts below, and the Chairman has now appealed to this Court.
3. Precisely the same point in connection with a similar assessment by the same pair] assessor came before a Division Bench of this Court in the special appeal, No. 2499 of 1906, of the Chairman of the Chittagong Municipality v. Kamalanath Nath Sen and Ors. (1908.) Unreported, decided on the 1st April 1908, Stephen and Holmwood JJ. then held that the subject of the appointment of a paid assessor had not been 'finally disposed of' on the 6th May 1903; that, therefore, its reconsideration on the 29th July was permissible; and that, whether the paid assessor was or was not legally qualified in making the assessment, the validity of the determination of the Commissioners under Section 114 of the Act could not be impeached, and the case of the rate-payers must fail.
4. We have arrived at the same conclusion. Dr. Ghose, who has appeared for the respondent, argues that the loss of the amendment for the appointment of a paid assessor involved the confirmation of the existing method of assessment, under which (as Dr. Ghose tells us) the matter of assessment lay in the first instance in the hands of the Chairman. The respondent was, therefore, entitled to the benefit of the Chairman's judgment, and, on the analogy of a suitor whose case is adjudicated upon by the wrong Court, he has a right to complain of having been unlawfully deprived of that benefit. Dr. Ghose further argues that, if the assessment was void ah initio, its confirmation, as it were, by the Commissioners under Section 114 of the Act could not validate it. We cannot yield to these arguments. It seems to us that there is no analogy between this case and that of a Court adjudicating without jurisdiction. We find, too, that--apart from Section 111A, with which we are not here concerned--the Act provides only incidentally for the appointment of a paid assessor and makes no provision whatever as to the method or means of assessment. It is, we think, wholly immaterial what machinery is used for arriving at the valuation; all that is required is that there should be an assessment ready for publication and open to review under Sections 112 to 114. The view taken by both the Courts below was, therefore, in our opinion, wrong, and we allow the appeal and direct that the respondent's suit be dismissed. The respondent will bear the costs throughout.