1. In this suit the plaintiff corporation claims Rs. 1581-0-9, on account of consolidated rates payable in respect of premises 83, Dharamtola Street, and a declaration of first charge on the premises for that sum and a decree under Order 34, R.4 according to Form No. 54, Appx. D of Schedule 1, Civil P.C. The arrears date from the fourth quarter of the year 1931 up to the fourth quarter of the year 1937-38. Up to the first quarter of 1936-37 the full owner's share has been charged and after that date approximately half the owner's share. The full occupier's share has been charged from the fourth quarter of 1932-33 up to the first quarter of the year 1936-37 except for one quarter. The premises consist of an old residential house with some godowns or outhouses which have apparently been turned into shops on the roadside. The defendant Samarendrajit Shaw says that the house has been vacant at all material times but the shops have been let for part of the time. This being the position the defendant wrote to the corporation on l6th December 1931 with an application under Section 135, Calcutta Municipal Act, requesting that the two shops on either side of the gateway on the main road should be separately numbered and assessed, because the property has been lying vacant for a long time except for the two shops. He further said that the occupants of the shops refused to vacate in spite of notice. He enclosed three copies of plans to enable the corporation to decide whether to allot separate numbers and assessments. No answer was received to that letter but a demand for rates was received in May 1932. In April 1934 the defendant wrote again respectfully inviting the attention of the assessor to his letter of 16th December 1931 and asking him to expedite the matter of separate assessment. No answer was received to that letter, but in January 1936 a further demand for rates was made. He made many other oral requests, without result. On 5th May 1936, for the first time, the assessor replied to the defendants repeated requests stating that his case could not be dealt with unless and until all the arrear rate bills were paid in full. In response to this he asked for a hearing, and on 7th July 1936 Mr. Gangoly, the special officer, asked him to come and see him. The witness says that he went to see Mr. Gangoly and that he promised him that the shops would be separately assessed and given separate numbers. In spite of this he heard nothing more about the matter, except for further demands for payment of rates, until this suit was instituted.
2. The situation is somewhat similar to that disclosed in the case of the Corporation of Calcutta v. Nandalal Chowdhury reported in : AIR1941Cal602 in which judgment was given on 27th May 1940. The corporation by its executive officer has a duty to perform under Section 135, Calcutta Municipal Act. When such a request as was made by the defendant in the present case is made to him it is his duty to consider the application, to apply his mind to it, and to decide whether, in his discretion, the building shall be separately assessed and treated as a separate building. The documents show that the corporation by its executive officer has failed to fulfil its duty under this section from December 1931 up to July 1936, when apparently Mr. Gangoly, the special officer, did consider the defendant's application, and presumably, the executive officer decided in his discretion to refuse it. The result has been that owing to this failure of duty and protracted delay on the part of the corporation, the defendant has become liable to pay a large sum claimed on account of rates, whereas if he had been told in the beginning that no separate assessment would be made he could have taken steps to get rid of his tenants in the shops and thus rendered the whole of the premises vacant and liable only to a much reduced rate. Prior to the interview with Mr. Gangoly on 5th May 1936 the assessor wrote refusing to consider the matter until the arrear rate bills had been paid in full. In my opinion, he was not entitled to impose this condition. The duty imposed upon the executive officer under Section 135 is not subject to any such condition. As in the case of the Corporation of Calcutta v. Nandalal Chowdhury reported in : AIR1941Cal602 , under the provisions of the law the corporation is entitled to a decree for Rs. 1556-12-6 and to a declaration as indicated in the prayer of the plaint, but in the circumstances there will be no order for costs.