BROJBEHARI SEN Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) The present appellant claims to be the recorded owner and the trustee in respect of 26B, Asutosh Mukherjee Road. He brought a suit out of which this second appeal arises inter alia for declaration that the ex parte assessment order dated dated 28th January, 1952 in respect of the said premises was illegal, void and without jurisdiction and not binding upon him. He also prayed for permanent injunction to restrain the defendant Corporation of Calcutta and Sri A. K. Sen, the then Commissioner of Corporation of Calcutta and their agents and servants from giving effect to the said assessment order dated January 28, 1952. The learned Munsif, 1st Additional Court, Alipore dismissed the said suit inter alia upon the finding that the suit was not maintainable in the absence of the service of a notice under S. 538 of the Calcutta Municipal Act, 1923 and also because of non-compliance with the provisions of S. 80 of the Code of Civil Procedure. The learned Munsif further found in the facts and circumstances of the case that it could not be held that the Corporation did not follow the statutory provision in confirming the assessment of the suit premises by its order dated 28th January, 1952. The said order, according to the learned Musnif, was neither illegal nor invalid.

(2.) The plaintiff, being, aggrieved by the said decision preferred an appeal. The learned Subordinate Judge held that the notice under S. 140 of the Calcutta Municipal Act, 1923 was not served upon the plaintiff in accordance with law and the learned Subordinate Judge did not agree with the contrary findings of the learned Munsif on the issue of the service of notice under S. 140. The learned Subordinate Judge, however, purported to rely upon the Division Bench decision of Harris CJ and Bijan Kumar Mukherjee, J. inMst. Fatima Khatoon Bibi & Ors. v. The Corporation of Calcutta, Appeal from Appellate Decree No. 582 of 1943, decided on 10th August, 1948 and reported in 4 DLR 116 and held that the Civil Court had no jurisdiction to go into the question of the validity or otherwise of the said increase of the valuation and assessment of municipal rates. The learned Subordinate Judge also diagreed with the view of the learned Munsif that the suit was bad because of non-service of any notice under S. 80 of the Code of Civil Procedure upon B. K. Sen, the then Commissioner and his name had been expunged from the records. The learned Subordinate Judge was also of the view that the suit was hit by S. 538 of the Calcutta Municipal Act, 1923 and it did not come within the exception laid down by sub-s. (5) of S. 538 of the Act. Accordingly, the suit was held to be bad as against the Corporation of Calcutta because the plaintiff's failure to serve the said notice.

(3.) Having given my anxious consideration to the matter, I am of the view that the learned Subordinate Judge erred in law in holding that the suit in question was not maintainable in Civil Court and that the suit was also hit by the provisions of S. 538(1) of the Calcutta Municipal Act, 1923. The decision of Harris C.J. and Bijan Kumar Mukherjee J. in Mst. Fatima Khatoon Bibi & Ors. v. The Corporation of Calcutta (supra) was clearly distinguishable on facts. The said Secon Appeal before the Division Bench arose out of a suit brought by the Corporation of Calcutta claiming arrears of consolidated rates which had been increased without notice to the defendant-appellant owner. The defendant in the said suit had denied the claim of the Corporation of Calcutta to recover the said consolidated rates on the ground that the said increased assessment was ultra vires because of the failure on the part of the Corporation of Calcutta to give any notice under S. 138 of the Calcutta Municipal Act, 1923. The Division Bench in Mst. Fatima Khatoon Bibi & Ors. v. The Corporation of Calcutta (supra) inter alia held that S. 138 of the Calcutta Municipal Act, 1923 did not require a notice to given before a valuation cold be made for the first time or the same could be increased. What is required was that a notice shall be given stating that a first valuation had been made or that the existing valuation had been increased. According to the Division Bench, therefore, the giving of a notice under S. 138 was not a condition precedent to the making of a first valuation or to increasing an existing valuation. The valuation could be made and then a notice of course should be given to the owner/occupier in order to have an opportunity to object. Therefore, when a valuation could be made without notice. The valuation would not be ultra vires because no notice was given under S. 138. The Division Bench also referred to the provision for appeal to the Small Causes Court under S. 141 against the order passed on the objection filed under S. 139. Accordingly, Harris CJ. an Bijan Kumar Mukherjee J. held that the Civil Court could not go into the said matter of increase of valuation of a holding.