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Chairman, Municipal Corporation of Faridpore Vs. Gour Gopal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal592,101Ind.Cas.755
AppellantChairman, Municipal Corporation of Faridpore
RespondentGour Gopal
Cases ReferredShah Hamid Hussain v. Chairman of Patna Municipality
Excerpt:
- .....on behalf of the plaintiff and he then instituted the two suits which have give to rise to these appeals. in both these suits the prayers of the plaintiff substantially were to the effect that the assessments made after splitting up the two holdings into five were ultra vires, that the extra taxes realized on the basis of such assessment should be refunded and there was also further prayer amongst others, to the effect that damages and compensation might be awarded to the plaintiff for the wrongful act on the part of the defendants in making the assessments as aforesaid. it may be mentioned here that this last prayer does not seem to have been pressed in the suit and at any rate no relief on the basis thereof has been given to the plaintiff.2. two contentions have been urged before us.....
Judgment:

Mukerji, J.

1. The Chairman of the Municipal Corporation of Faridpore who was the defendant in the suits out of which these appeals have arisen and who was unsuccessful in the Courts below has preferred these appeals. The facts relating to the suits may briefly be stated as follows:

There were two plots of land with a building on each of them. One of these buildings was divided into three compartments and the other into two, and these five compartments are, it is alleged, now in the occupation of five different I tenants. In September 1922 the Municipality assessed taxes on these lands and buildings on the footing that they consisted of five different and separate holdings. This position was resisted on behalf of the plaintiff and he then instituted the two suits which have give to rise to these appeals. In both these suits the prayers of the plaintiff substantially were to the effect that the assessments made after splitting up the two holdings into five were ultra vires, that the extra taxes realized on the basis of such assessment should be refunded and there was also further prayer amongst others, to the effect that damages and compensation might be awarded to the plaintiff for the wrongful act on the part of the defendants in making the assessments as aforesaid. It may be mentioned here that this last prayer does not seem to have been pressed in the suit and at any rate no relief on the basis thereof has been given to the plaintiff.

2. Two contentions have been urged before us in support of this appeal. The first one relates to the question of limitation. It has been urged that the suit is barred by reason of the provisions of Section 363 of the Bengal Municipal Act. That section has been construed in a series of decisions of this Court as being applicable only to those cases where the plaintiff claims damages or compensation for some wrongful act committed by the Commissioners or their officers, in the exercise, or honestly supposed exercise, of their statutory powers see Chunder Sikhur Bhundopadhya v, Obhoy Churn Bagchi [1881] 6 Cal. 8 (F.B.), Shudhangshu Bhusan Roy Chowdhury v. Bejoy Kali Roy Chowdhury [1906] 3 C.L.J. 376, in re Bishunpada Chatterjee [1906] 3 C.L.J. 36n and Shama Bibi v. Chairman of Baranagore Municipality [1910] 12 C.L.J. 410. Leaving aside the last of the prayers-mentioned above which, if pressed, would have brought the suit within the class-of suits contemplated by Section 383 of the Act, the suit, in so far as it consisted of the rest of the prayers in the plaint, is not a suit which falls under the category or those that are contemplated by that section. I am accordingly of opinion that the appellant's first contention must fail.

3. The next contention of the appellants is to the effect that the Courts below have erred in law in holding that the premises to which the suits relate formed two holdings and not five. In support of this contention reference has been made to the definition of 'holding' given in Section 6, Sub-section (3) of the Act and to the decision of this Court in the case of Shah Hamid Hussain v. Chairman of Patna Municipality [1912] 17 C.W.N. 812. Section (6), Sub-section (3) leaving aside the proviso to which we need not pay any attention for the purposes of the present case, says that 'holding' means 'land held under one title or agreement and surrounded by one set of boundaries.'

4. The decision to which reference has been made above lays down that a 'holding' means 'land held by an occupier under one title and one set of boundaries, that is to say, it is on the basis of occupation and not on the basis of ownership the question as to whether certain premises form the holding or not is to be determined. It may be conceded that inasmuch as there are five tenants in the five different compartments the requirements of the first part of the definition of holding, as given above, is satisfied but then the question arises as to whether it can be said that the premises in question are surrounded by one set of boundaries So far as this matter is concerned the findings of the Courts below are to the effect that on the north as well as on the south of the buildings there are two plots of land which formed open spaces which have not been divided and that they are common to all the compartments in the buildings. If this finding be treated as a correct one, and there is no reason to suppose that it is not correct, then it is clear that it cannot be said that the premises are surrounded by one set of boundaries. The Courts below, therefore, in my opinion, were right in the view that they took and this contention of the appellants also fails.

5. These appeals accordingly must be dismissed with costs.

Graham, J.

6. I agree. There is no reason to doubt that the action of the Municipality was perfectly bona fide; but the question is whether it is legally entitled to treat the holdings as five separate holdings and to assess them on that basis. Having regard to the words 'surrounded by one set of boundaries' in the definition of holding in Section (6), Sub-section (3) of the Bengal Municipal Act, I do not think that there can be any doubt that the Municipality is not entitled to adopt that course.

7. I agree, therefore, with my learned brother that the appeals must be dismissed.


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