PROSAD KUMAR MONDAL Vs. COMMISSIONER OF KRISHNAGORE MUNICIPALITY

JUDGEMENT

(1.) These are the two appeals under clause 15 of the Letters Patent directed against the same judgment and order dated May 12, 1976, passed by a learned single judge of this Court in Civil Rule No.6243 (W) of 1972 which was issued on a writ petition. As the writ was allowed in part some of the petitioners therein have preferred F.M.A. 959 of 1976 making a grievance that the learned judge should have allowed the entire relief claimed therein. The Municipal Commissioners of Krishnagore who were the first respondent to that writ petition on the other hand felt aggrieved by the order in so far as thereby a part of the claim made in the writ petition was allowed and have preferred F.M.A. 300 of 1977 on a grievance that the writ petition should have been dismissed. As the two appeals arise out of the same proceeding and is directed against the same judgment and order, we have heard them together.

(2.) In the writ petition 41 rate payers of Krishnagore Municipality challenged the quinquennial municipal assessment which was to take its effect from the 1st quarter of 1972-73 and the consequential demands made on the basis thereof. It was so challenged by them representing the other rate payers on a leave under Order 1 rule 8 of the Code of Civil Procedure being obtained form the Court. The principal ground on which they challenged such assessment was that the assessment was not based on any bona fide valuation made by the assessor in accordance with law. It was claimed that the assessor appointed was old and physically infirm, he had neither the physical capacity nor did he actually discharge the statutory duties in purporting to revise the valuation; in most of the cases the assessor did not issue any notice or ca for any return under s. 134 of the Bengal Municipal Act, and even in a few cases where such returns were called for, they were not verified, columns 15 and 16 were not filed up in any bona fide manner; the assessor did not inspect any holding, did not visit any locality and did not compare the different localities and different holdings for determining the valuations in respect of different or any of the holdings and as a mater of fact made no enquiry whatsoever as required of him by the statute in revising the valuations. According to the petitioners, the valuations, were revised by the assessor in an arbitrary manner; in the matter of formation of his opinion and in comparing the different holdings and different areas or localities the assessor did not perform his statutory duties and proceeded entirely without any basis or material; the assessor failed to record any reason or justification for enhancing the valuations of different holdings in disproportionate and discriminatory manner not based on any common standard or basis. The report submitted by the assessor is neither bona fide nor a lawful report and the entire assessment based on such a valuation is clearly illegal and without jurisdiction. As such the assessment is liable to be set aside and rates, as are being demanded on the basis thereof, being illegally levied are not sustainable in law.

(3.) The writ petition was contested by the first respondent only. Though the gravamen of accusation was against the assessor and he was made a party-respondent, he did not appear either to contest the rule or controvert the specific allegations made against him. An affidavit-in-opposition and two supplementary affidavits sworn by a law clerk of the Municipality were filed on behalf of the first respondent wherein the various allegations made as against the assessor and in particular the allegation of assessor having filed to discharge his statutory duties could not be met except so far as it could be on the basis of the records made over by the assessor. The various allegations made in the different paragraphs of the writ petition were broadly dealt with in the affidavit-in-opposition and the denials were mostly vague in nature. An objection, however, was taken that since some amongst the petitioners had challenged their respective assessments by preferring review applications under S. 148 of the Act and had obtained relief in such proceedings they were not entitled to any relief. In a supplementary affidavit some entries from certain field books were disclosed to show how the individual valuations in respect of the petitioners were determined and in this affidavit it was stated that the assessor while assessing the annual value of the holdings had taken into account the existing rent fetched by the holdings or any part thereof where the monthly rental was available at hand otherwise he had to ascertain the reasonable rent. The petitioners, however, strongly disputed the so-called filed books and they claimed that entries therein were not made by the assessor.