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Sree Sridhar Jieu and ors. Vs. Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 135 of 1958 (Matter No. 176 of 1957)
Judge
Reported inAIR1959Cal320,63CWN238
ActsCalcutta Municipal Act, 1951 - Sections 24, 175, 207 and 207(2)
AppellantSree Sridhar Jieu and ors.
RespondentCorporation of Calcutta and ors.
Appellant AdvocateS.C. Ghosh, Adv.
Respondent AdvocateP.P. Ghosh, Adv.
DispositionAppeal allowed
Cases ReferredArathoon Mackertoon Arathoon v. Corporation of Calcutta
Excerpt:
- .....conferment of any such power, it should be held that by implication the legislature has given this power of amalgamation to the corporation authorities. he has not in his judgment in the present case mentioned any detailed reasons for his view but has referred to his previous decision in the case of arathoon mackertoon arathoon v. corporation of calcutta, : air1957cal79 , and has said that though in that case he left the point open, he saw no reason to change the opinion which he indicated in that case. turning to the report of arathoon's case, : air1957cal79 , i find that sinha j. was of opinion that the provision for amalgamation was not a provision imposing a tax and consequently the court is not limited by the actual words of the section but can look further a field to find out what.....
Judgment:

K.C. Das Gupta, C. J.

1. The petitioner Sree Sree Sridhar Jieu is the admitted owner of premises which formerly bore Nos. 128, 129, 130, 131/1, 131/2 and 132, Canning Street, on the basis that these were six distinct premises. They were valued for the purposes of assessment of the consolidated rate at Rs. 1360/-, 702/-, 345/-, 518/-, 270/-, 324/- and 810/- respectively and in accordance with the provisions of the Calcutta Municipal Act, 1951, the assessment of the consolidated rate was at 181/2 per cent. of the annual valuation for premises No. 128 and at 151/2 per cent. of the annual valuation for the other five premises. On the 20th September, 1956, a notice was served on the petitioners stating that it Was proposed to amalgamate these six premises into one premises and allot thereto No. 128. Ultimately, this proposal of amalgamation was carried into effect and the Corporation authorities treated the six premises as one, allotted to it the No. 128 and proceeding thereafter to value it for the purpose of assessment of the rate, issued a notice on the 9th January, 1957 informing the petitioners that the amalgamated premises had been valued at Rs. 4465/-. The petitioners in their attempt to get rid of this have sought the assistance of this Court under the provisions of Article 226 of the Constitution and asked for the issue of a writ of mandamus restraining the respondents from giving effect to the several notices and from forbearing to give effect to the amalgamation of the premises and also a writ in the nature of certiorari for quashing the order of amalgamation and for an order restraining the respondents from taking any further action. A Rule as prayed for was issued by Sinha J. but ultimately that Rule has been discharged. It is against this order of discharge that the present appeal has been preferred.

2. There is really one question for decision, that is, whether the amalgamation which has been carried out by the Corporation authorities of six separate and distinct premises into one was done under any powers conferred on them by the statute. It is well-settled that when a corporation is created by the legislature of the State, we have to look to the statute creating the corporation not only to find out the purposes for which the corporation has been created but also the powers which the corporation has been vested with. The argument on which the present petitioners based their contention before Sinha J. and again before this Court was that the statute in question, namely, the Calcutta Municipal Act, 1951, has not conferred any power on the Corporation authorities to effect any such amalgamation. To this, the respondent, the Corporation of Calcutta, replies that such power, though not expressly given, has been conferred on the Corporation by implication in Section 175 and Clause (i) of the proviso to Section 207 (2). If there has been any such conferment of the power of amalgama ting a number of premises into one, it is only by implication in Section 175 and Clause (i) of the proviso to Section 207(2) of the Calcutta Municipal Act. It is, therefore, not necessary for us to examine the other provisions of the Act in search for any such power. Sinha J. came to the conclusion that though there is no express conferment of any such power, it should be held that by implication the Legislature has given this power of amalgamation to the Corporation authorities. He has not in his judgment in the present case mentioned any detailed reasons for his view but has referred to his previous decision in the case of Arathoon Mackertoon Arathoon v. Corporation of Calcutta, : AIR1957Cal79 , and has said that though in that case he left the point open, he saw no reason to change the opinion which he indicated in that case. Turning to the report of Arathoon's case, : AIR1957Cal79 , I find that Sinha J. was of opinion that the provision for amalgamation was not a provision imposing a tax and consequently the Court is not limited by the actual words of the section but can look further a field to find out what was, intended. Holding on the authorities that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts as are essentially necessary to its execution, he held that the power of amalgamation does exist. This is how the learned Judge expresses himself:

'I do not think that we are here dealing with a provision of law imposing a tax. The consolidated rate has been imposed in a different part of the Act and nobody is questioning it. Amalgamation certainly affects the calculation o the rate. But amalgamation entails many other consequences under the Act. It is primarily made for purposes of assessment, but there are many results which have nothing to do with assessment. I am inclined to hold that the power of amalgamation exists and should be held to exist by reasonable implication. But I am not called upon finally to decide this point in these applications, which may be disposed of upon a preliminary point.'

With great respect to the learned Judge, I am un able to agree that the provisions which we have now to construe are not taxing provisions. It is, in my opinion, unreasonable and unrealistic to treat these sections divorced from their context. The scheme of the Calcutta Municipal Act is that after providing for the formation of the Corporation and laying down the purposes which the Corporation will nave to carry out, the Legislature went on to provide for the collection of the necessary finance which is the sine qua non for carrying out any purpose. The fourth part of the Act is headed, 'Taxation.' While Chapters XII, XIII, XIV, XV and XVI of this part contain provisions for taxes on other things and animals, Chapter XI is solely concerned with the imposition of consolidated rate on lands and buildings. This Chapter which starts with Section 165 and ends with Section 207 provides first for a graduated consolidated rate on the annual valuation, the rate not to exceed 15 per cent. where the annual valuation does not exceed Rs. 1000/-, 18 per cent. where it is between Rs. 1000/- and Rs. 3000/-, 22 per cent. where it is between Rs. 3000/- and Rs. 12000/- and 23 per cent. where it exceeds Rs. 12000/-, with the further proviso that where the annual valuation exceeds Rs. 3000/-, it may be increased upto 33 per cent. with the approval of the State Government. The percentage for any particular year has to be fired by the Corporation annually. The other provisions of the Chapter then go on to lay down the rules as to how lands and buildings should be valued for the purpose of assessment. There are provisions for exemption from valuation for certain lands and buildings for certain reasons, and other provisions which need not be set out. Mention must, however, be made of the provision in Section 174 of the Act as regards sub-division of a land or building for the purpose of valuation. It is helpful to remember that the unit for the purpose of valuation for assessment to the consolidated rate is one single premises as numbered by the Corporation authorities. The accepted position appears to be that to each single premises one single number is allotted and for the premises indicated by that single number one valuation is made. Section 174 provides that if the ownership of any land or building is sub-divided into separate shares, the Commissioner may, in accordance with the rules made by the Standing Committee, divide the valuation of the land or building in a particular manner. Where the Commissioner on such application thinks fit to assess the portions separately, separate numbers have to be allotted. There is provision also, how ever, of apportioning the assessment among the share-holders without assigning any separate number. It appears to be reasonable to think that without such sub-division, and allotment of separate numbers under the provisions of Section 174, a land or building forming the unit of valuation for the purpose of assessment, will have only one municipal number. When such sub-division is effected, a land or building which had formed the unit of valuation will get two or more municipal numbers.

3. It is easy to see that such sub-division would affect the proceeds of the consolidated rate, as on sub-division, the several premises which have come into existence in place of one premises will be ordinarily assessed to a lesser rate even though the total valuation remains the same. This is the inevitable consequence of the provision as set out earlier that the percentage of valuation at which the consolidated rate will be fixed will rise gradually with the rise of valuation after fixed stages.

4. If the law has provided the Corporation with some means of avoiding this result, there can possibly be no objection so far as the courts are concerned to their being allowed to avail them selves of those provisions. Amalgamation of portions of a building bearing two or more municipal numbers into one or more would have in most cases the necessary result of attracting a higher consolidated rate. The real question is whether such amalgamation has been authorised by the Legislature. It will be convenient first to set out the provisions of Section 175 of the Calcutta Municipal Act, 1951, which are as follows :

'175. If any land or building, bearing two or more municipal numbers, or portions thereof, be amalgamated into one or more new premises, the Commissioner shall assess them, on amalgamation, after assigning to them one or more numbers, as the case may be, for the purposes of this Chapter;

Provided that no assessment on amalgamation of premises shall be made by the Commissioner unless there is a cause for the revaluation of any of such premises except on an application being made to him by the owner or owners thereof, in which case such assessment, if made, shall remain in force for the unexpired portion of the period prescribed by Section 172, Sub-section (1) or Sub-section (2) or Sub-section (4) :

Provided also that the total assessment on amalgamation shall not be greater than the sum of the previous assessments of the several premises amalgamated except when there is any revaluation of any of the said premises.'

It is quite clear from these provisions that the Legislature contemplated that there might in reality be an amalgamation of several portions of a land or building bearing several municipal numbers into a lesser number of portions. It is important to notice, however, that nothing has been said as to who can effect this amalgamation. When dealing with the question of sub-division, the Legislature took care to provide that the Commissioner may effect such sub-division and that on the application of any of the co-owners. When the Legislature was very rightly careful in laying down in Sec. 174 as to the proper authority who can carry out the sub-division, it seems strange to me that if it was intended that the Commissioner or any other municipal authority would be entitled to effect the amalgamation, that they should not say so in so many words. It is argued however, that if amalgamation can be carried out by any person at all, the only person which can do it must be a municipal authority. I am unable to accept this contention, I can see no reason why there can be no amalgamation by the owners themselves. By that, I do not mean physical amalgamation which Sinha, J., in Arathoon's case, : AIR1957Cal79 , thought could be carried out by the owners. It appears to me reasonable to think that whether physical amalgamation be carried out or not it is possible for the owner of two portions of a building bearing two municipal numbers to treat the two portions as comprising one premises. As soon as he treats these two portions as one premises, I can see no reason why we should not say that he has amalgamated it. That can be done with or without what may perhaps be called physical amalgamation--that is, the provision of a connecting door between two portions or the removal of a partition watt or some such step. If we turn now to Section 175, it is at once clear that by treating the two portions as one, the owner does not at once get the effect, for the purpose of valuation, that they should be treated as one. That effect arises only after the Commissioner values them on the basis of the amalgamation that has been carried out by him 'after assigning to them one or more numbers.'

5. I can see no difficulty in construing the provisions of Section 174 on the basis that when it says that 'if any land or building, bearing two or more municipal numbers, or portions thereof be amalgamated into one or more new premises,' the Legislature is thinking of the amalgamation by the owner, that is, the act of the owner in treating the two portions as one; and when the section says further that 'the Commissioner shall value them, on amalgamation, after assigning to them one or more numbers, as the case may be, for the purposes of this Chapter,' the Legislature is authorising the Commissioner to give effect to the intention of the owner and to treat them as one or more premises in accordance with the amalgamation which has al ready taken place by the act of the owner.

6. Is it possible to say that when the Legislature speaks of land or building being amalgamated, it is thinking of the Commissioner or any other Corporation authority effecting the amalgamation? It seems to me reasonable to think that if the Legislature thought of giving this power of amalgamation to the Commissioner or any other authority, a detailed procedure as to how the Commissioner or such other authority should proceed in carrying out amalgamation, would have been laid down. There would be, in my opinion, a provision for service of a notice, provision for objections to be made by the persons who would be affected thereby and provisions for the final decision on the question of amalgamation on consideration of those objections and ordinarily I would expect a further provision as regards revision or appeal. It is reasonable to expect also some indication of the circumstances where amalgamation should be effected. I find it difficult to persuade myself that the Legislature though giving--as suggested by implication--such a power of amalgamation to any Corporation authority, a power which would have serious repercussions on the rate-payers, would do it in such a concealed manner and without making any provision as to notice or objection or revision or appeal. I would also think that if the Legislature had intended to give such power to any Corporation authority it would have dearly mentioned the authority to whom such power was being given.

7. Remembering as we must that this provision forms part of a taxing scheme, I am bound to hold that we ought not to read more into the provisions than is absolutely necessary and clear for the purpose of laying a burden on the subject. Not only, it is, in my opinion, far from clear that any such power of amalgamation resulting in the laying of additional burden in most cases was in tended by the Legislature, I am of opinion that reading Sections 174 and 175 together it is abundantly clear that the Legislature did not intend that the Commissioner or any authority of the Corporation should have this power of amalgamation.

8. Turning now to the provisions of Section 207 on which also reliance was placed on behalf or the Corporation, it is important to see that this section only deals with the question as to what valuation should be accepted for the purpose of the consolidated rate when an objection as regards the valuation is pending. The first sub-section deals with cases where there has already been a valuation and provides that pending the final determination of an objection to the valuation, the consolidated rate shall be payable on the previous valuation. The second sub-section provides about refund or recovery of further amounts after the objection has been finally determined. The proviso deals with cases where there is no previous valuation. As reliance was placed on the actual wording of the proviso on behalf of the respondents, it is proper to set out the words of the proviso in full. The words are these :

'Provided that --

(i) if any premises have, for the purposes of valuation under Section 172, been for the first time valued or sub-divided or amalgamated with any other premises, and an objection to the valuation thereof has been made under Section 181, then the consolidated rate shall, pending the final determination of the objection, be paid on such valuation; and

(ii) if, when such objection has been finally determined, such valuation is reduced, and if the consolidated rate has already been paid thereon, then the sum paid in excess shall be refunded or allowed to be set off against any present or future demand of the Corporation under this Act.'

9. I am unable to see any thing in this proviso which supports a contention that the Legislature in tended to give by implication power to the Corporation authorities to amalgamate several premises into one. The learned Advocate for the respondents laid stress on the words; 'for the purposes of valuation under Section 172' in Clause (i) of the proviso. As I read the words of the proviso, they clearly mean nothing more than this that if amalgamation has already taken place as mentioned in Section 174 and valuation has been made by the Commissioner under the provisions of that section on the basis of such amalgamation, the consolidated rate shall be paid on such valuation pen ding the decision of any objection: There is no justification for thinking that as the valuation is to be made by the Commissioner, the amalgamation mentioned in this proviso is also to be held impliedly to be made by the Commissioner,

10. I have, therefore, come to the conclusion that the provisions of Section 175 and Section 207 of the Calcutta Municipal Act have given no power to the Commissioner or any other authority of the Corporation to amalgamate premises. The amalgamation that has been effected has, therefore, been without any legal basis.

11. I would, therefore, allow this appeal and order that a Writ in the nature of mandamus be issued commanding the respondents to cancel the order of amalgamation that has been made and also the valuation on the basis of that amalgamation.

12. As the state of the law must be taken to have been unsettled before this, I would order that the parties will bear their own costs.

R.S. Bachawat, J.

13. I agree. It is not pretended that the Calcutta Municipal Act 1951 confers upon the Commissioner an express power of his own accord & without the consent of the owners to amalgamate two separate and distinct units of assessment into a single unit of assessment and then levy consolidated rate on the higher valuation of the amalgamated unit. It is, how ever, contended that such power is given to him by implication by the provisions of Section 175 and Section 207, provisos (i) and (ii). I am totally unable to accept this contention.

14. Section 207 deals with the question as how payment of consolidated rate is affected by objections as to valuation, what sum is to be paid pending the final determination of the obligations and how and when the excess or the deficiency is payable and recoverable. Pending the determination of the objections the consolidated rate in a normal case is payable on the previous valuation and in exceptional cases is payable on the valuation to which the objections are made. Sub-sections (1) and (2) deal with the normal cases. The provisos deal with the exceptional cases where for the purpose of valuation under Section 172 the premises have been for the first time valued or sub-divided or amalgamated with any other premises' and there are objections to such valuation. The provisos do not by themselves confer a power of valuation. Nor do they confer a power either of sub-division or of amalgamation for the purposes of valuation under Section 172. The Legislature is referring to the class of premises of which valuation under Section 172 is made for the first time or of which such valuation is made for the first time after a subdivision or amalgamation when it speaks of premises which 'have for the purposes of valuation under Section 172 been for the first time valued or sub-divided or amalgamated with any other premises.'

15. Section 175 deals with valuation incases of amalgamation of premises. The section assumes that any land or building bearing two or more Municipal numbers or portions thereof may be amalgamated into one or move premises. The section does not say by whom and how the amalgamation is to be affected. Upon such amalgamation the Commissioner has to value the new premises after assigning to them one or more Municipal numbers.

16. The power to make an amalgamated valuation and to assign one municipal number in lieu of two or more numbers arises on amalgamation of two or more premises just as the power to sub-divide the valuation and to assign separate numbers arises on sub-division of ownership of the premises. Just as the Commissioner himself cannot sub-divide the ownership of any land or building so also he cannot amalgamate any land or building bearing two or more municipal numbers into one or more premises'. The amalgamation vitally affects the owner. The larger the valuation of the unit the higher is the scale of the consolidated rate. If the Legislature intended to confer on the Commissioner a power of amalgamation having such far reaching consequences it would have used clear and explicit words.

17. It is not lightly to be assumed that by some implication to be read into Sections 175 and 207 the Legislature has conferred such a large power of amalgamation on the Commissioner. Is this supposed power a naked and an arbitrary power? Can the two premises be amalgamated though they are independent and capable of separate enjoyment? Is there to be notice, objection or appeal and, if so, when and how? Are we to prescribe the conditions and limitations of this supposed power? In truth we shall be legislating under the guise of interpreting if we are to imply this power when none has been given expressly.

18. It is said that we must imply this power because it is incidental to and consequential upon the exercise of the special power of valuation under Section 175. The basic assumption upon which this argument is founded does not exist. The special power of valuation under Section 175 does not arise unless and until there is an amalgamation. The amalgamation is the condition upon which this special power springs into existence. If we are to say that one thing is incidental to another it is far more accurate to say that the special power of valuation under Section 175 is incidental to and consequential upon the amalgamation which precedes it than to say that the basic condition of amalgamation is incidental to and consequential upon exercise of this special power.

19. I notice that on the application of a co-owner in case of sub-division of ownership of any land or building and in the circumstances specified in Section 174(iii), the Commissioner is bound to value each portion separately by assigning a separate number thereto. When the circumstances envisaged by Section 174(iii) arise and the Commissioner has to value each portion separately by assigning a separate number thereto, is it possible to say that immediately thereafter the Commissioner can amalgamate the two separate portions in exercise of some supposed power under Section 175? In my opinion, he cannot.

20. In the absence of clear and explicit words conferring on the Commissioner a power of amalgamation, it is reasonable to think that the Legislature contemplated an amalgamation by the owner. The land or building with two or more municipal numbers must be capable of amalgamation and their owner must decide to amalgamate them.

21. Each premises bearing a distinct municipal number is a separate unit of assessment. The valuation of each unit is separately determined and finalized for the purpose of assessment of the consolidated rate on the unit and is then entered in the municipal assessment books kept under Section 185. The consolidated rate is then assessed on the unit on the basis of such valuation and at a percentage calculated in accordance with Section 165 and the assessment so made then becomes payable for the unit under Section 190. The Commissioner cannot arbitrarily change the unit of assessment. A single building may consist of two separate units of assessment. The Commissioner cannot arbitrarily amalgamate the two units into one on the ground that the entire building was originally one unit of assessment and was subsequently sub-divided.

22. I have come to the conclusion that the order of amalgamation is invalid and is without jurisdiction.

23. I concur in the order made by my Lord.


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