COMMISSIONERS OF THE KRISHNAGAR MUNICIPALITY Vs. KALIDHAN CHATTERJEE

JUDGEMENT

(1.) THE only question which was raised on behalf of the appellant by Mr. Janah was whether the suit in the trial Court was maintainable against the Commissioners of Krishnagar Municipality. There is no dispute about the facts of the case. Respondent Kalidhan Chatterjee is a rate-payer of Krishnagar Municipality and he is the owner of a holding which was assessed to a certain rate during the general revision of assessment in 1946-47. Normally the period of that assessment would last for five years under sec. 137 of the Bengal Municipal Act. It, however, appears that before the expiry of that period the assessment was enhanced on account of the electric installation in the holding of the plaintiff. In the plaint it is not stated what was the original assessment or what was the amount of enhancement. Be that as it may, the enhancement purports to have been made under sec. 138 (1) (d) of the Bengal Municipal Act on account of the increase in the value of the holding by the alteration mentioned above. The plaintiff of the trial Court filed objections before the Municipality as provided in the Bengal Municipal Act, but his objection was disallowed. Thereafter the present suit was filed by the plaintiff respondent for a declaration that the enhancement of the valuation of his holding was illegal and for restraining the Municipality from realising taxes at the enhanced rates.

(2.) THE suit was contested by the Municipality in the trial Court. The only ground of contest which is relevant for our purpose was that under section 150 of the Bengal Municipal act the suit is not maintainable in the Civil Court and so the courts below should have dismissed the suit. This objection as well as other objections raised on behalf of the Municipality with which I am no longer concerned were overruled by the trial court and the suit was decreed. An appeal was preferred by the Municipality from the judgment and decree of the trial court but the appeal failed. So the Municipality has come up in second appeal.

(3.) THERE was no appearance on behalf of the plaintiff respondent. As the appeal was heard ex parte by reason of the non-appearance of the respondent I heard Mr. Janah at some length and after hearing Mr. Janah and after perusing the judgments of both the courts below, I am of opinion that the courts below have committed an error in law in holding that the action of the Municipality in increasing the assessment was illegal, and ultra vires and that the action is liable to be called in question in Civil Court. In the present case the assessment was increased before the expiry of the period of the general assessment under clause (d) of sec. 138 (1) of the Bengal Municipal Act. It is an admitted fact that electric installation was obtained in the disputed holding after the general valuation of 1946-47. The question, therefore, becomes pertinent whether this electrification of the holding empowered the Municipality to re-value or reassess the holding as laid down in clause (d) of section 138 (1) of the Bengal Municipal Act. The Courts below held that the electrification, although it might have increased the value of the holding, does not amount to an alteration to the holding. The lower appellate Court has not practically given any reason for taking this view. The trial Court has stated in its judgment that an alteration to a building has been defined in sub-sec. (2) of sec. 326 of the Bengal Municipal Act and an electrification of a building does not come within that definition. The trial Court has, however, failed to appreciate the true scope and meaning of that definition which distinctly says that the definition is given for purposes of Chapter IX and of Schedule VI. Now Chapter IX relates to buildings and Schedule VI relates to rules as to the use of building sites and the execution of building work. The definition of the words ''alteration to a building" as given in sub-sec. (2) of sec. 326 of the Act cannot, therefore, be applied to a case of alteration to a building occurring in clause (d) of sub-sec. (1) of sec. 138 of the Act. There the meaning of the expression must be taken in its ordinary and grammatical sense. An electrification of a holding or building certainly increases its value and it is also an alteration to the previous condition of the building and that being the case the Commissioners of a Municipality are entitled to amend or alter the assessment list under sec. 138 (1) (d) of the Act before the expiry of the period of a genera! assessment where a building is electrified. If any party desires to question such amendment or enhancement he must proceed in the manner laid down in the Bengal Municipal Act as required by sec. 150 of the Act. That section expressly lays down that no objection shall be taken to any assessment or valuation in any other manner than in this Act is provided. In the present case, the plaintiff respondent did avail himself of the procedure provided in the Act for questioning the legality of the enhancement, but without any success.