THE PURI MONICIPALITY Vs. NARAYAN PANDA

JUDGEMENT

(1.) THIS is a Defendant's second appeal against the confirming judgment of the lower appellate court arising out of a suit brought by Plaintiff Narayan Nanda challenging the assessment made by the municipal authorities in respect of his holding no, 1082 consisting of a new double storeyed building The assessment was made under the old Bihar and Orissa Municipal Act which was in force at the time. But during the time where there was an appeal before the higher authority challenging the assessment, our Orissa Municipal Act had come into force and therefore the District Magistrate heard the appeal and fixed the assessment at the annual rental value of Rs. 1500/. on 20th January 1951. The Plaintiff's contention before the courts below was that the assessment which had been made under the provisions of Bihar and Orissa Municipal Act Section 98, Clause (1) was ultra vires inasmuch as the basis of the assessment was the cost of construction and not the annual 'rental value. This contention having prevailed over the courts below, they decreed the Plaintiffs suit. The lower appellate court found that the basis of assessment was wrong and illegal and he jumped into the conclusion that it being wrong and illegal it is bound to be declared ultra vires.

(2.) TWO points have been raised on behalf of the Appellant by Mr. B.N. Das to the effect that (i) the courts below have gone wrong in law coming to the conclusion that the basis is wrong and illegal and (ii) even if it be found that the basis is wrong and illegal, still the Civil Court has no jurisdiction to go into the matter, because (simply because it is illegal) it cannot be declared ultra vires. Both the points appear to have great force. So far as the basis is concerned, the accepted position is that the assessment has been made under Clause (1) of Section 98 of the B. and O. Municipal Act. It will be pertinent to quote the section the two clauses:

(3.) MR . Ranjit Mohanty, appearing on behalf of the Respondent, however relies upon two decisions of the Patna High Court. The case of Shiva Prasad v. Darbhanga Municipality : A.I.R. 1942 Pat. 81, was under Section 119 of the B. and O. Municipal Act. Their Lordships observed that Section 119 contemplated that the assessment was made in accordance with the provisions of the Act, and if the Assessee was to raise any objection to that assessment he must have recourse to the proceedings laid down in the Act. But where the assessment itself is ultra vires, the Assessee need not take any proceedings under the Act and can at once bring a suit in the civil Court. This was a clear case whether the municipal authorities' assessment was absolutely without jurisdiction, because of the provisions of Section 86 of the Act. Under Section 86 a latrine tax on a holding which does not contain dwelling houses, latrines, urinals or cess pools can be imposed only if in the opinion of the Commissioners at a meeting a latrine, urinal or cess pool is required. Imposition of latrine tax without convening such meeting is ultra vires and can be questioned at once in a civil Court. In my opinion, this case has absolutely no application to the case before me in as much as the paint raised before me is only, if the assessment is illegal can it be declared to be ultra vires.