ASHRAF ALI KHAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appellants before us are seven hundred and eighty-four individuals and, strange it might seem, three inanimate objects. They, along with one other individual were petitioners in an application under Article 226 of the Constitution and by that application they challenged the formation of the Kharagpur Municipality by the State of West Bengal and the first tax assessment made by the Commissioners of the Municipality. As to the formation of the Municipality, it was complained that the area constituted into a municipality was not a town, that it was not a compact area and that the adjoining railway settlement had been unwarrantedly excluded. As to the tax assessment, it was complained that the assessment had not been made "by any qualified panel of assessors as provided under Section 145 of the Ben. Municipal Act". Accordingly the petitioners prayed for the issue of a writ of mandamus upon the State of West Bengal and the Joint Secretary of the State Government in the Department of Local Self-Government, directing them to forbear from giving effect to the notifications by which the constitution of the Municipality had been declared and also a writ of the same nature, directing them to forbear from realising taxes "from the residents of the purported Kharagpur Municipality". Besides the State of West Bengal & the State Government's Joint Secretary in the Department of Local Self-Government, the District Magistrate of Midnapore and the commissioners of the Municipality were also impleaded as respondents to the petition. Against the District Magistrate, relief was claimed & the only prayer with respect to the Commissioners was for a writ in the nature of quo warranto, directing them to state to this Court under what authority they had been "usurping their offices as Commissioners of the purported Kharagpur Municipality''. It will be noticed that no mandamus was asked for as against the Commissioners directing them to forbear from realising the taxes imposed by them. Only an ad interim injunction was asked for against all opposite parties wherein the Commissioners had been included, by which they were sought to be restrained from realising the taxes during the pendency of the application. The substantive prayer for a writ of mandamus directed against the recovery of taxes Was asked for only as against respondents Nos. 1 and 2 to the petition, that is to say, the State of West Bengal and the State Government's Joint Secretary in the Department of Local Self-Government.

(2.) The petition did not contain any averment that a demand for justice had been made. Apparently, that omission was pointed out by the learned Judge and on a subsequent date, a supplementary affidavit, affirmed by one of the petitioners, Dr. Jiban Krishna Dandapat, was filed. He claimed to be the President of a committee called the Citizens' Committee of Kharagpur and stated that on 7th of December, 1955, he had addressed a letter to the Chairman of the Municipality by which he had asked the Chairman "to cancel the whole assessment of tax for the Kharagpur people made on the basis of the valuation list" prepared by two incompetent assessors. It appears from the learned Judge's order that the learned Advocate appearing for the remaining petitioners, was not prepared even to say that those petitioners were members of the Committee of which Dr. Dandapat claimed to be the President. In that state of facts, the learned Judge treated the demand for justice as a demand made by Dr. Jiban Krishna, Dandapat alone. Obviously, the learned Judge took the view that the petition disclosed a case which the respondents should be called upon to answer and accordingly he directed the issue of a Rule as a Rule taken out by Dr. Dandapat alone. As no demand for justice was proved to have been made by the remaining petitioners, the learned Judge rejected their application. Thereafter those petitioners preferred the present appeal.

(3.) I may state here that the Rule issued by the learned Judge was limited to prayer No. 1 of the petition, but, it was not wholly a Rule in terms of that prayer. The terms as set out in the prayer, were suitably corrected and a Rule was issued on the opposite parties to show cause why a writ in the nature of mandamus should not issue on respondents Nos. 1 and 2, directing them to forbear from giving effect to the notification, declaring the constitution of the Municipality and to show cause why the opposite parties, that is to say, the whole body of them, should not forbear from realising taxes from the residents of the Kharagpur Municipality.