CHAIRMAN, MUNICIPALITY Vs. RAMKUMAR CHOUDHURY

JUDGEMENT

(1.) This is a proceeding under Section 25, Provincial Small Cause Courts Act, arising out of a suit which was instituted by the Municipality of Arrah for recovery of arrears of municipal taxes from the defendant. The defendant did not claim that he had paid the taxes; but he contested the suit on other grounds: that the assessment was invalid, because the Commissioners had failed to comply with the provisions of the Bihar and Orissa Municipal Act; that the assessment was excessive and that he was not himself the person in actual occupation of the holding. The Small Cause Court Judge dismissed the suit, finding that the assessment was invalid, because the Commissioners had not at a meeting before the assessment was made decided, in regard to holdings in general or to this class of holdings in particular, what tests should be applied for determining whether particular property should be treated as held under one title or agreement.

(2.) Mr. Mahabir Prasad on behalf of the petitioning Municipality argues that the learned Small Cause Court Judge has misunderstood the effect of Section 99, Municipal Act, that the provisions of Sub-section (b) of the section are not mandatory and that it ought not to be considered that the laying down of any such tests as are described in the section should be a necessary condition precedent to the validity of a municipal assessment. Mr. D.N. Verma on behalf of the respondent contends that the word "shall" in Sub-section (b) implies that the direction is mandatory and that the failure to obey must be fatal to the legality of an assessment. The learned Small Cause Court Judge and the defendant appear to have been misled by some remarks made in a judgment of this Court which they misunderstood, and also by a report of the special inspecting officer of Municipalities under the Local Government.

(3.) In a suit which was instituted by other assessees, whose holdings had been assessed under similar circumstances, for the purpose of setting aside their assessments, the learned Judges of this Court remarked in their judgment that there was nothing in the evidence before them to show that the Municipal Commissioners had not observed the procedure laid down in Section 99(b) of the Act; and so it must be presumed that they had prescribed tests at a meeting in regular form. This remark appears to have been misunderstood in this way, that it was taken to mean that if there had been evidence to show that no meeting had been held for the purposes described in Section 99(b), the assessment would have been in. valid. Nothing of the kind was actually said in the judgment of the High Court; and indeed it should be dear to anybody reading the decision of Wort J. that he considers that it is only when the question actually arises, of what is to be treated as the meaning of the words "held under one title or agreement" in Section 3(9) of the Act, that the procedure described in Clause (b) of Section 99 must be followed. The Inspector tit Municipalities in a report of 15 February 1936 gave some encouragement to this misunderstanding of the effect of the decision of this Court, when he criticized the Municipality for having failed to prescribe formal tests for determining whether property within the Municipality should be treated as held under one title or agreement, apparently regarding Section 99(b) as prescribing a procedure which must necessarily be followed before an assessment could be made. The Municipal Commissioners actually had by that time formally at a meeting prescribed such tests on 14 September 1935; but this was long after the assessment of the holding with which we are here concerned.