COMMISSIONERS OF ARRAH MUNICIPALITY Vs. JATENDRA CHANDRA JAIN

JUDGEMENT

(1.) This is a second appeal by the Commissioners of Arrah Municipality, who were defendants in a suit which was partially decreed in favour of the plaintiff by the first Court and was wholly decreed by the lower appellate Court. It appears that in Circle No. 7 of Arrah Municipality there was a holding numbered 616. This holding belonged to the plaintiff and his two brothers, Sukhendra and Nagendra (defendants 2 and 3). The holding consisted of a house and some land. It is said that there was a partition among the three owners of the holding by which part of the house was given to the plaintiff, another part to defendant 2, and the land was given to the third brother.

(2.) Subsequently, Sukhendra, who was defendant 2 in the suit, applied for apportionment of taxes on the house which had been allotted to him by partition. An inquiry was thereupon made by a Municipal Commissioner under orders of the Vice-Chairman, and on the basis of that inquiry out of the total annual letting value of Rs. 600 assessed on holding No. 60, Rs. 872 was apportioned for the share allotted to the plaintiff, Rupees 228 was apportioned for the share of defendant 2, and no tax was assessed on the land allotted to defendant 8 on the ground that the land was parti. It appears that the apportionment was made without any notice being issued to the plaintiff, although it is said that no objection was filed to the apportionment by defendant 2, and that was decided in the presence of the plaintiff. The plaintiff in the present suit has challenged the apportionment as illegal and ultra vires, and he has claimed a refund of Rs. 144- 10-6 which, according to him, has been realised from him by the Municipality as tax for his portion of the holding at the new rate.

(3.) Both the Courts below have held that the apportionment was illegal. The first Court held that the plaintiff was not entitled to a refund, but the lower appellate Court has granted the prayer for refund. The Commissioners of the Arrah Municipality have now preferred this second appeal. It appears that in both the Courts below the appellants contention was that the present case is governed by Clause (f) of Section 107, Bihar and Orissa Municipal Act, which provides that: The Commissioners may from time to time alter or amend the assessment list by reducing, upon the application of the owner or occupier, the valuation of any holding which has been wholly or partly demolished or destroyed or the value of which has been diminished from any cause.