ABDUL KADAR KHAN Vs. CHAIRMAN, PURI MUNICIPALITY

JUDGEMENT

(1.) This is a plaintiff's second appeal from the concurrent decrees of the Courts below dismissing his suit for a declaration that a certain municipal assessment was ultra vires and for an injunction and the recovery of Rs. 284-13-9, which had been paid by him under protest. The case originally came before my learned brother who referred it to a Division Bench as it raises a question I of some importance in municipal law.

(2.) The plaintiff was the owner of a certain plot of land and it is clear that when the assessment list was last revised in the Municipality of Puri, his name did not appear as a person liable to pay house and latrine taxes. It is alleged that after the revision of the assessment list a house was constructed on the plot and thereupon he became liable to pay these taxes. The municipality assessed the holding at Rs. 156 and demanded tax accordingly. The plaintiff appealed to an appellate tribunal but obtained no relief there. In spite of his protests the plaintiff found himself compelled to pay, and the amounts paid by him now amount to rupees 284-13-9. It is clear that throughout he always paid under protest contending that the assessment upon him was ultra vires. Both the Courts below came to the conclusion that the assessment was valid and dis. missed the plaintiff's claim. Before us two points have been taken. In the first place, it was alleged that the appellate tribunal, which has been constituted by the Puri Municipality is an illegal one, and therefore the proceedings by way of appeal in this case were wholly null and void. Section 117, Bihar and Orissa Municipal Act, is in these terms: (1) Every application presented under the last preceding Section shall be heard and determined by a committee consisting of not less than three Commissioners, provided that no Commissioner shall be a member of the committee appointed to hear applications from the ward for which he was elected. (2) Such committee after taking such evidence and making such inquiry as it may deem necessary, may pass such order as it thinks flit in respect of such application. (3) The decision of the committee, or of a majority of the members thereof, in such cases shall be final.

(3.) In the present case it has been contended that the Puri Municipality by a resolution, has appointed seven members to act as an appellate committee, and amongst those seven are persons who were elected for the ward in which the plaintiff's house is situate. That being so, it is said that the appellate tribunal in this case was illegally constituted. The true facts, however, are that out of the seven persons named in the municipal resolution four only sat on this particular appellate tribunal and not one of the members was in any way connected with the ward in question. There can be no doubt that the constitution of this tribunal was clearly within the spirit of Section 117; but it is said that it is not within the strict letter of Section 117. Mr. Sen Gupta has urged that the appellate tribunal consisted of seven members and that he was entitled to be heard by all the seven members. He concedes that if he was, the proceedings would be illegal, but he says that it is the inevitable result of the resolution of the municipality. In my view, the resolution of the municipality is nothing more than the appointment of seven persons to form a rota from which three or more should be selected for any particular appeal. The resolution does not, in substance, mean that for each appeal all seven must sit. They merely named seven persons from whom a Court of three or more should be selected as and when required. That being so, it cannot be said that the assessment in this case is illegal and ultra vires, because the appellate tribunal has been illegally constituted. The appellate tribunal in this particular case was a perfectly legal and properly constituted body.