COMMISSIONERS OF PABNA MUNICIPALITY Vs. NABA GOBINDA CHOUDHURY

JUDGEMENT

(1.) The appellants are the Municipal Commissioners of Pabna and the appeal arises out of a suit by the plaintiff for a declaration that the assessment of rates in respect of holdings 408 and 409 of the Pabna Municipality is illegal and ultra vires, for recovery of a sum of us. 307, the amount, with interest, realised on the basis of the disput. ed assessment, and for a permanent injunction restraining the Municipality from realising any further amounts on that basis, The trial Court gave the plaintiff a decree for the first two reliefs but refused his prayer for a permanent injunction. His decision was affirmed on appeal by the Subordinate Judge of Pabna.

(2.) The facts are not disputed and are as follows. There was anv assessment by the Pabna Municipality in 1935 which came into force in the year 1936-1937. The assessment list then prepared showed the annual Evaluation of the holdings 408 and 409 as Rs. 1320 and Rs. 720 respectively but that these valuations had been altered to Rs. 1200 and Rs. 600 by the Chairman of the Municipality without any apparent authority of the Commissioners in a meeting following the procedure prescribed by Section 138, Bengal Municipal Act. The present plaintiff challenged the legality of this assessment in O.C. Suit No. 68 of 1938 and was successful in obtaining a declaration from the trial Court that that assessment was illegal and ultra vires. The Municipal Commissioners appealed to the District Court but their appeal was unsuccessful. During the pendency of that appeal however, they issued a notice on the plaintiff under the provisions of Sub-section (2) of Section 138, Bengal Municipal Act, intimating that at a meeting to be held on 26-11-1938 the Commissioners proposed to annul the assessment list by altering the annual valuations of holdings 408 and 409 to Rs. 1200 and Rs. 600 respectively. The plaintiff filed an objection before the Commissioners, his main contentions being that the annual valuation for the two holdings could not exceed Rs. 375 which was the rent of a permanent lease granted by the pattanidar, the plaintiff's father, for holdings 408 and 409 which comprise the fish and vegetable markets of Pabna Town, and also that the annual valuation of these holdings for the purpose of assessment could not be settled during the pendency of the appeal against the decision that the assessment was illegal and ultra vires. Those objections were overruled and in a meeting held on 19 December 1938, the Commissioners decided that the holdings 408 and 409 should be assessed on annual values of Rs. 1200 and Rs. 600 respectively. Thereafter a sum of Rs. 298 was realised from the plaintiff on 21-3-1940 on the basis of this altered assessment and on 29-5-1940 the plaintiff filed a suit to obtain the reliefs mentioned at the outset

(3.) The suit was contested by the municipality, and a number of objections were taken and issues framed. The most material issue was No. 6 which was in the following terms: Was the assessment by the defendants on holdings 408 and 409 properly made and legal. Is it liable to be set aside? The trial Court answered the first part of the issue in the negative and the second part in the affirmative, holding that the assessment in dispute was in fact a new assessment and that the provisions of Section 138, Bengal Municipal Act, under which the Commissioners purported to act had no application and could confer no jurisdiction for making the assessment. He held further that the splitting up of the markets into two holdings was illegal and ultra vires since, in his view, they constituted one holding according to the definition of "holding" in Section 3(21) of the Act. Consequently, he set aside the assessment and directed that the plaintiff should recover the sum which had been realised from him on that basis. The learned lower appellate Court confirmed this decision. He agreed with the view of the trial Court that the assessment was illegal and ultra vires because the provisions of Section 138, Bengal Municipal Act, had no application to the present case and conferred no jurisdiction on the Commissioners to make the assessment in dispute, but he did not express any opinion on the question whether the holdings had been wrongly split up in contravention of Section 3(21) of the Act.