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Swadeshi Industries Ltd. Vs. Administrator Panihati Municipality - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 160 of 1957 with Civil Rule No. 1794 (M) of 1957
Judge
Reported inAIR1959Cal477
ActsBengal Municipal Act, 1932 - Sections 148, 149, 553 and 554; ;Code of Civil Procedure (CPC) , 1908 - Sections 9 and 107 - Order 6, Rule 17 - Order 39, Rule 1
AppellantSwadeshi Industries Ltd.
RespondentAdministrator Panihati Municipality
Appellant AdvocateProfulla Kumar Roy and ;Juan Ranjan Ganguly, Advs.
Respondent AdvocatePurnendu Sekhar Basu and ;Bon Behari Sett, Advs.
DispositionAppeal allowed
Excerpt:
- .....section 20, no commissioner of the ward from which the application is made shall take part in the hearing or determination of such application.' if the provisions of section 554 as set out above authorise the administrator to perform the functions of the chairman and of all the commissioners as well as of the chairman and some of the commissioners, the authority will be sufficient to make him the administrator competent to perform the functions of 'a committee consisting of the chairman and not less than two and not more than four commissioners appointed by the commissioners at a meeting'. the question, whether the words, 'by the chairman and by the commissioners' mean the chairman and all the commissioners and also the chairman and some of the commissioners, however, requires.....
Judgment:

Das Gupta, J.

1. This appeal is against an order of the learned Subordinate Judge, 10th Court, Alipore, refusing a prayer for temporary injunction pending the disposal of a suit which had been instituted by the present appellant for a declaration that the quarterly tax assessed in respect of the appellant's holding No. 220 of Mahalla Bhowanipore in Panihati was illegal, arbitrary and without jurisdiction and for a permanent injunction restraining the defendant, the Administrator of Panihati Municipality from realising quarterly taxes at this rate or enforcing the same. The learned Subordinate Judge appears to have been of the view that there was nothing on the record to find prima facie that the assessment made by the defendant was illegal or without jurisdiction; that the petition made by the plaintiff before the Review Committee was duly disposed of and the assessment prima facie appeared, therefore, to be lawful and final. He was also of the opinion that if the injunction was granted and realisation of the dues of the municipality was kept in abeyance, administration would suffer and the local people would be prejudicially affected; but in case the plaintiff succeeds, the money realised might be set off against future dues of the municipality. In this view, he rejected the prayer for temporary injunction.

2. After this appeal had been preferred and admitted for hearing, the plaintiff company made a prayer for amendment of the plaint and that prayer was allowed on 4-2-1958. By that prayer, a new paragraph 6A was added. It was in these words :

'(i) That the valuation on the basis of prime cost less depreciation is not only not authorised by law but is inconsistent with the rules particularly Rule 10 and the assessment is accordingly contrary to the relevant law and void.

(ii) That the appeal against the assessment has not been dealt with by an authority competent under the law to deal with it and the said appeal is still in the eye of law pending and the demand on the basis of the said assessment is illegal.'

It is obvious that if the assessment has been made in accordance with the provisions laid down in the Bengal Municipal Act, the fact that there has been an error in arriving at a certain conclusion would not give the Civil Court any jurisdiction to question the legality or validity of the assessment. It is only if the assessment has not been made in substantial accordance with the procedure laid down in the Act that the finality of the assessment can be questioned. As one stage and an important stage in the assessment is the hearing and determination of an application for review of the assessment or valuation under Section 148 of the Bengal Muncipal Act, the question whether that hearing and determination has been by an authority competent under the law to deal with it, is a matter which can properly be considered by the Civil Court and if the Civil Court comes to the conclusion that the hearing and determination of the application under Section 148 has not been by a competent authority, it will be proper for that Court to hold that the assessment, as made by the reviewing body, is not a valid and binding assessment in law.

3. It has been rightly pointed out by Mr. Basu on behalf of the respondent that this amendment was made after the present appeal was preferred, so that the order passed by the learned Subordinate Judge refusing the temporary injunction was not made after a consideration of this point. I think it would have been open to us to refuse to hear any argument on the basis of the amended plaint inasmuch as the order appealed from was not made after the amendment. As however, an appeal is, in law, a continuation of the proceeding appealed from, we have preferred to hear the parties on the position in law as resulting on the amendment being allowed.

4. Once the amendment has been allowed, it seems to me to be plain that the Civil Court will have to consider, for a proper decision of the prayer for temporary injunction, whether the point raised, namely, that the appeal against the assessment has not been dealt with by an authority competent under the law to deal with it, is, on the face or it, baseless or frivolous or whether it is a point which requires serious consideration of the Court before it can dispose of it either way. I think it neither desirable nor proper to record a definite conclusion on the correctness or otherwise of this objection that the hearing and determination of the application under Section 148 by the Administrator, who was appointed on the supersession of the municipality, was not in law a hearing and determination under Section 149 of the Bengal Municipal Act, It is necessary, however, for us to refer to the argument on this question for a conclusion whether it is a matter which requires serious consideration or is, on the face of it, weak and frivolous. As I apprehend it, the question is whether the provisions of Section 554 of the Bengal Municipal Act, which lays down the consequences which shall ensue when an order of supersession has been made under Section 553, make the Administrator competent to perform the functions of the committee under Section 149. The relevant provisions of Section 554 are in these words :

'all powers and duties which may, under the provisions of this Act or any other Act or any Ordinance or any Regulation or any rule, by-law, order, notification, or subsidiary legislation made under the provision of this Act or such other Act or such Ordinance or such Regulation, be exercised and performed by the Chairman and by the Commissioners whether at a meeting or otherwise, shall, during the period of supersession, be exercised and performed by such person or persons as the State Government may direct'.

The provisions of Section 149 which require consideration are in these words :

'Every application presented under Section 148 shall be heard and determined by a Committee consisting of the Chairman and not less than two and not more than four Commissioners appointed by the Commissioners at a meeting :

Provided that in the case of municipality which is divided into wards under Section 20, no Commissioner of the ward from which the application is made shall take part in the hearing or determination of such application.'

If the provisions of Section 554 as set out above authorise the Administrator to perform the functions of the Chairman and of all the Commissioners as well as of the Chairman and some of the Commissioners, the authority will be sufficient to make him the Administrator competent to perform the functions of 'a Committee consisting of the Chairman and not less than two and not more than four Commissioners appointed by the Commissioners at a meeting'. The question, whether the words, 'by the Chairman and by the Commissioners' mean the Chairman and all the Commissioners and also the Chairman and some of the Commissioners, however, requires consideration. I am not prepared to say at this stage without further argument and further consideration whether the authority of the Administrator to perform the functions of the Chairman and the Commissioners, confers on the Administrator authority to perform the functions of a committee as provided in Section 149. Assuming that the provisions of Section 554 give sufficient authority to the Administrator to perform the functions of 'a committee consisting of the Chairman and not less than two and not more than four Commissioners appointed by the Commissioners at a meeting', a matter, which will still require consideration, is whether the functioning of the Administrator as a, committee would violate the special rule laid down in the proviso that 'no Commissioner of the ward from which the application is made shall take part in the hearing or determination of such application'. On behalf of the respondent, Mr. Basu has argued that even in a case where there is no supersession and there is no Administrator and as usual committee under Section 149 is functioning, the Chairman will not be excluded from taking part in the hearing and determination of the application because of his being the Commissioner of the ward from which the application is made. On this contention, Mr. Basu advances the further argument that the Administrator being entitled to function as the Chairman, the fact, even if it be true, that he might also be considered to be the Commissioner of the ward from which the application is made, would not violate the rule of the proviso. In my opinion, it is not so clear, as Mr. Basu wanted us to believe, that if the Chairman happens to be the Commissioner of the ward from which the application under Section 148 is made, the proviso, that 'no Commissioner of the ward shall take part in the hearing and determination of such application', would not apply to him as he is, apart from being the Commissioner, also the Chairman. In my judgment, this is a question which requires close and careful consideration. I have no hesitation in further stating consequently that the question whether, the functioning of the Administrator as the committee under Section 149 will violate the rule in the proviso to that section, cannot be dismissed outright as baseless but requires close and careful consideration.

5. In this state of things, it is, in my opinion, proper to hold that the contentions raised By the plaintiff in the suit, as it stands after the amendment, are prima facie substantial. Whether or not they ultimately fail is not the question. Once it is held, as, in my opinion, it is proper to hold, that these contentions are substantial, I am unable to agree with the learned Judge that because the municipality is a body which is rich enough to be able to pay up the excess payment if the plaintiff succeeds, is a reason for which the prayer for temporary injunction should be refused. It is in such a case not improper to take notice of the fact that the assessment has been raised from Rs. 705/- to Rs. 2,474/-. The increase in rates is thus not inconsiderable. If the correct position in law be that there has not been a proper hearing of the application under Section 148, the result will be that pending the final determination of the objection, rate shall be paid on the previous assessment. It is not suggested that the municipality will find it difficult to realise the rate if finally, it is determined in the suit that the application under Section 148 has been properly heard and determined and that the assessment made is valid.

6. On taking all these circumstances into consideration, I have come to the conclusion that this is a proper case in which the defendant should be restrained from realising rates on the basis of the increased valuation.

7. I would, therefore, allow the appeal and order that the prayer for temporary injunction be allowed and that the defendant be restrained, pending the disposal of the suit, from realising rates on the basis of the increased assessment. The appeal is, therefore, allowed. In view, however, of the fact that the point of law, in consideration of which I have thought it proper that the application for temporary injunction should be allowed, was not before the lower Court, I would order that the parties will bear their own costs.

8. We direct that the hearing of the suit be expedited.

9. No order is necessary in Civil Rule No. 1794(M) of 1957.

Debabrata Mookerjee, J.

10. I agree.


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