THE COMMISSIONERS OF THE MUNICIPALITY OF BALLY Vs. SRI SRI ISWAR GANESH JIU THAKUR, REPRESENTED BY SHEBAITS SM BINAPANI MODAK

JUDGEMENT

(1.) This is an appeal by the defendant from the judgment and decree of the learned Additional District Judge, First Court, Howrah reversing the decision of the learned Munsif First Court Howrah and remanding the suit for fresh trial.

(2.) The suit was brought by the two plaintiffs as shebaits representing hie deity Sri Sri Iswar Ganesh Jiu Thakur against the Commissioners of the Municipality of Bally for a declaration that the imposition of municipal rats on the plaintiffs absolute debuttar estate being holding No 1, Lala Babu Shire Road and the alteration enhancement of municipal rate without mutating the plaintiffs name in the municipal records and without service of the statutory notices are illegal and void and for injunction restraining the defendant from realising the rates so imposed by issuing distress warrant The disputed holding comprises 11 chitaks 4 square feet of land with a two storied building and a temple on the top of the 1st floor. The plaintiffs case in brief was that Tinkari Modak was originally owner of the land of the disputed holding and he had a shoproom with C.I. roof thereon. After his death in the early part of 1966 his heirs constructed the present building on the same site and created the debattar estate by a deed of endowment intimation of which was given to the municipality by a pleaders letter dated 8.9.1966. But the municipality did not enter the name of the plaintiff deity in the municipal records as owner and occupier of the disputed holding. The plaintiff also claimed by a pleaders letter dated 17.12.1966 that the disputed holding was exempted from imposition of municipal rate as it was used exclusively as a place of worship to which the public had a right of free access without payment. But the municipality did not take notice of the plaintiffs claim for mutation or for exemption of the holding from payment of municipal tax The plaintiff's she baits came to know in March 1972 that the municipality has taken steps for issuing distress warrant to realise taxes allegedly due on the disputed holding from third quarter 1966-67 to third quarter 1971-72 at varying rates, without service of statutory notices on the plaintiffs for imposition of tax after creation of the debuttar estate or for alteration in the amount of tax So the plaintiff's instituted the suit on 29.5.72 after service of notice under Sec. 535 of the Bengal Municipal Act by way of abundant caution although such notice was not required under the law.

(3.) The defendant contested the suit by filing written statement contended inter alia that no application was made by the heirs of Tinkari Modak intimating his death and devolution of his interest, that no pleaders letter dated 8.9.1966 intimating creation of the debuttar estate and applying for mutation of the plaintiffs name in respect of the disputed holding was sent to the municipality and so the plaintiffs were not entitled to any statutory notice. It has been alleged that the disputed holding is not used exclusively as a place of worship to which the public have a right of free access without payment as there are shop rooms in the said holding were business carried on and residential quarters of the owners in 1st floor So the disputed holding cannot be exempted from payment of municipal rate.