Richard Garth, C.J.
1. This is an appeal against an order made by the Court below, discharging a rule nisi which had been obtained for a writ of certiorari, to bring up an assessment made by the Commissioners of the Town of Calcutta for the purpose of quashing it.
2. The rule was applied for by Nundo Lal Bose and Pasupati Nath Bose, who are the owners of a family dwelling-house in Bagbazar Street, upon which the assessment was made; and the ground of the application was, that the assessment was illegal, the Commissioners having made it upon a principle which the law did not allow.
3. The learned Judge of the Court below was of opinion that the assessment was made upon a wrong principle; but he considered that in making it the Commissioners were acting within their powers, and consequently he had no authority to interfere.
4. The matter has now come before us on appeal; and, as to the facts of the case, or the general law applicable to the issuing of the certiorari, there seems little or no question.
5. The authority of this Court to remove the proceedings of inferior Courts in the exercise of their judicial functions, is undoubted. It is an authority derived from the old Supreme Court, and is similar to that which was exercised by the Court of Queen's Bench in England; and, if the Commissioners in this case were exceeding their jurisdiction in making the assessment, it seems clear that we have the power to quash it upon certiorari notwithstanding the provision in Section 17 in the Calcutta Municipal Consolidation Act, 1876.
6. That section merely means that the assessment shall be final and conclusive when the Commissioners have made it in the exercise of their powers see Rex v. Moreley 2 Burr. 1041; Rex v. Plowright 3 Mod. Rep. 95; but if they have acted without jurisdiction the certiorari is not taken away by a clause of that kind; and the want or excess of jurisdiction may either be shown upon the proceedings themselves,, or may be brought before this Court upon affidavits. See Rex v. Long 1 Man. & E. 139; Rex v. Sheffield and Manchester Railway Company 11 Ad. & E. 194.
7. I, therefore, entirely agree with the learned Judge in the Court below that the only real question in the case is, whether the Commissioners in making this assessment were acting within their powers.
8. Let us see, therefore, what their powers are:
By Section 64 of the Act, the Commissioners at the Quarterly Meeting to be held in October of each year, are to fix the rates, at which the rates and taxes levied under the Act are to be imposed for the succeeding year. Then by Section 88 they are to impose upon all houses and land within the town of Calcutta certain annual rates, arid, amongst others, a house-rate, which is to be calculated on the annual value of such house and land; and, lastly, by Section 104, the estimated gross annual rent at which any such house or land might reasonably be expected to let from year to year, shall (for the purpose of any rate to be imposed under the Act) be held and deemed to be the annual value of such house or land.
9. Now, for the purpose of determining what the powers of the Commissioners are in imposing these rates, I think that Sections 88 and 104 must be read together, the one being explanatory of the other. The rates which the Commissioners impose are to be calculated on the annual value of the property rated (Section 88); and what is meant by the annual value of the property rated is the gross annual rent at which such property might be expected- to let from year to year (Section 114). These being the powers of the Commissioners, let us now see what they did in this particular case.
10. The family dwelling-house of the applicants was rated in October 1883 at Rs. 4,500 a year; and Mabatab Chunder Mullick, the assessor to the Corporation, describes in paragraph 10 of his affidavit the principle upon which it was rated.
11. After stating that the house and premises in question form the joint family dwelling-house of the applicants, and that it is difficult to determine what is a reasonable rental for such houses which are built, not with a view to letting, but for the residence and convenience of the owners, he goes on to say: 'In assessing the said premises No. 65, Bagbazar Street, I estimated the total expenditure on the building and land at Rs. 1,80,000, and I assessed the gross annual rent at which the said house and premises might reasdnably be expected to let from year to year at Rs. 4,800, being at the rate of 2f per cent, on the said sum of Rs. 1,80,000.
12. From this assessment the applicants appealed to the Commissioners under Section 114 of the Act, and their appeal was heard on the 15th of January 1884.
13. On this occasion Baboo Sharoda Cham Mitter, a vakeel of this Court, appeared on behalf of the applicants. He says, in his affidavit, that he pointed out to the Commissioners that the former assessment of the house in question was made by Mr. Williamson (of the firm of Mackintosh, Burn & Co.) at a rental of Rs. 115, and he produced certificates both from Mr. Williamson and from Baboo Nilmdney Mitter (who is a Civil Engineer and Surveyor well acquainted with the neighbourhood in which the house is situate) to the effect, that the house would not let from year to year for more than Rs. 250 a month.
14. He then says in paragraph 9 of his affidavit: 'The said Commissioners, however, would not listen to my contention, and said that they could not place any reliance on those two certificates as against the assessment made by their own assessor; and although they were perfectly aware that the house and premises in question would not, if let, produce Rs. 250 a month, and probably not Rs. 200 a month, being a native family dwelling-house, and situate in an out-of-the-way place; consequently the probable rent the premises might yield could not be the criterion of assessment, and considering the size of the buildings they did not think that an assessment of Rs. 4,800 per annum was a high assessment,; but, inasmuch as I had argued the appeal, and had formerly been one of the Commissioners of the Town of Calcutta, they would, for my sake, reduce the annual value to Rs. 4,500, and adjudicated accordingly that the said house and premises should be assessed for house rate at the annual value of Rs. 4,500.'
15. It seems to me that this statement of Baboo Saroda Cham Mitter is virtually uncontradicted. I am satisfied from the affidavits that the Commissioners adopted the assessment of their own surveyor, based, as they knew it was upon a percentage of the estimated cost of the buildings in entire disregard of the principle,, which they were bound by law to adopt as the basis of their assessment, namely, the gross annual rent at which the house might be expected to let from year to year.
16. It may be that the Commissioners on the hearing of the appeal might have reasonably required the attendance of Mr. Williamson; and that his evidence and that of Baboo Nilmoney Cham Mitter should have been brought before them in the regular way, and not by the mere production of a certificate. But their decision did not rest upon any point of this kind. They adhered to their own surveyor's assessment upon the ground that it was properly made, and they refused to be guided by the principle laid down in Section 104 of the Act.
17. In this it seems to me they acted beyond their powers. They had no right whatever to make the assessment upon any other basis than that which the Act prescribes. The principle upon which they ascertained the annual value of the premises appears to me to have been obviously fallacious; but whether it was so or not, it was an arbitrary test, and one which the law does not sanction.
18. The assessor might just as well have estimated the rental upon the amount of the applicant's private income as upon the original cost of the building.
19. It may be, no doubt, that in assessing joint family property of this nature, some difficulty may often arise. The principle of rating upon which the Commissioners are directed to proceed is the same which is adopted in England; and similar difficulties arise there in the case of gentlemen's parks and mansions which are laid out for residential purposes, and not for sale or letting. But such properties are, nevertheless, constantly rated upon the basis of their annual letting value.
20. It is, of course, no part of our duty to say how such valuations should be made. We have only to see that, in making them, the Commissioners act within their powers. As they have failed to do so in this instance, I think that the order of the Court below should be reversed, and that the rule nisi for the certiorari against the Corporation should be made absolute.
21. The applicants will be entitled to the costs of the rule against the Corporation in both Courts upon scale No. 2.
22. I am of the same opinion. I take the same view of the facts as the Chief Justice has taken; and on the facts it is abundantly clear that the assessment upon the applicants was improperly made. The question is, whether the error was an excess of jurisdiction, or amounted only to a miscarriage on the part of the Commissioners while acting within their jurisdiction. If the error goes to jurisdiction, we can, and ought to, interfere by certiorari; if not, we have no power to do so.
23. This question is not free from difficulty, but I have come to the conclusion that the error committed does go to jurisdiction. Three sections of the Calcutta Municipal Consolidation Act, 1876, are material. Section 64 requires the Commissioners at their Quarterly Meeting in October of each year to 'fix the rates at which the rates and taxes hereinafter mentioned shall be imposed for the year commencing on the first day of January then next ensuing.' That section only gives power to fix the general standard of rating, and has nothing to do with the assessment of the individual properties upon which the rates are to be charged. This is dealt with in Section 88, which says: 'The Commissioners shall, as provided in Section 64, impose upon all houses and land within the town the following annual rates, which shall be calculated on the annual value of the said houses and lands.' Under this section the Commissioners have power to impose on any house or land a rate calculated on its annual value not on anything else. Now, if we had nothing but these words to guide us, I should say that in such an act value must mean money value, and that the 'annual value' of a house must mean the annual money benefit derivable from it, and could not mean any percentage on its cost.
24. But the whole system of taxation and assessment under the Act in question is obviously borrowed in its general outlines from English Eating Acts. In such Acts in England the words 'annual value' are in familiar use, and have long received a settled construction. 'Annual value' has always been held to mean annual letting value, and I think we ought to give the words the same meaning here. If this be so, the Commissioners are shown to have exceeded their jurisdiction upon the language of Section 88 alone, without the aid of Section 104.
25. Section 104 makes the intention of the Legislature quite clear. It says: 'The estimated gross annual rent at which any house or land liable to rate under this Act might reasonably be expected to let from year to year shall, for the purposes of any rate to be imposed under this Act, be held and deemed to be the annual value of such house or land. The value of land so estimated shall not include the value of any machinery thereupon.'
26. This Section first removes any doubt that might without it have arisen as to annual value meaning annual letting value. Secondly, it provides in favour of the public and against the person assessed that annual value is to mean gross rent, whereas it would otherwise have meant net rent, that is the gross rent, less the necessary outgoings, as was held by the House of Lords in Dobbs v. Grand Junction Waterworks Company L.R. 9 App. Cas. 49. Thirdly it gets rid of a possible ambiguity as to machinery.
27. This section, or so much of it as I have cited, may be regarded as in the nature of an interpretation clause explaining the meaning of the words in the earlier section. If so the two must be read together. And then it is, I think, quite clear that the Commissioners have exceeded their jurisdiction.
28. On the other hand this section may be read as only directory, as containing instructions to the Commissioners how to proceed when exercising the jurisdiction conferred by Section 88. In that case a breach of the provisions of Section 104 would not go to jurisdiction. But if so, as I have already pointed, the excess of jurisdiction in this case is, in my opinion, apparent from Section 88 alone without the aid of Section 104.