The Administrator's competency to perform the functions of the committee under Section 149 of the Bengal Municipal Act and the application of the proviso to that section.

( 1 ) THIS appeal is against an order of the learned Subordinate Judge, 10th Court, Alipore, refusing a prayer for temporary injunction pending the disposal of a suit which had been instituted by the present appellant for a declaration that the quarterly tax assessed in respect of the appellant's holding No. 220 of Mahalla Bhowanipore in Panihati was illegal, arbitrary and without jurisdiction and for a permanent injunction restraining the defendant, the Administrator of Panihati Municipality from realising quarterly taxes at this rate or enforcing the same. The learned Subordinate Judge appears to have been of the view that there was nothing on the record to find prima facie that the assessment made by the defendant was illegal or without jurisdiction; that the petition made by the plaintiff before the Review Committee was duly disposed of and the assessment prima facie appeared, therefore, to be lawful and final. He was also of the opinion that if the injunction was granted and realisation of the dues of the municipality was kept in abeyance, administration would suffer and the local people would be prejudicially affected; but in case the plaintiff succeeds, the money realised might be set off against future dues of the municipality. In this view, he rejected the prayer for temporary injunction.

( 2 ) AFTER this appeal had been preferred and admitted for hearing, the plaintiff company made a prayer for amendment of the plaint and that prayer was allowed on 4-2-1958. By that prayer, a new paragraph 6a was added. It was in these words :" (i) That the valuation on the basis of prime cost less depreciation is not only not authorised by law but is inconsistent with the rules particularly Rule 10 and the assessment is accordingly contrary to the relevant law and void. (ii) That the appeal against the assessment has not been dealt with by an authority competent under the law to deal with it and the said appeal is still in the eye of law pending and the demand on the basis of the said assessment is illegal. "it is obvious that if the assessment has been made in accordance with the provisions laid down in the Bengal Municipal Act, the fact that there has been an error in arriving at a certain conclusion would not give the Civil Court any jurisdiction to question the legality or validity of the assessment. It is only if the assessment has not been made in substantial accordance with the procedure laid down in the Act that the finality of the assessment can be questioned. As one stage and an important stage in the assessment is the hearing and determination of an application for review of the assessment or valuation under Section 148 of the Bengal Muncipal Act, the question whether that hearing and determination has been by an authority competent under the law to deal with it, is a matter which can properly be considered by the Civil Court and if the Civil Court comes to the conclusion that the hearing and determination of the application under Section 148 has not been by a competent authority, it will be proper for that Court to hold that the assessment, as made by the reviewing body, is not a valid and binding assessment in law.

( 3 ) IT has been rightly pointed out by Mr. Basu on behalf of the respondent that this amendment was made after the present appeal was preferred, so that the order passed by the learned Subordinate Judge refusing the temporary injunction was not made after a consideration of this point. I think it would have been open to us to refuse to hear any argument on the basis of the amended plaint inasmuch as the order appealed from was not made after the amendment. As however, an appeal is, in law, a continuation of the proceeding appealed from, we have preferred to hear the parties on the position in law as resulting on the amendment being allowed.

( 4 ) ONCE the amendment has been allowed, it seems to me to be plain that the Civil Court will have to consider, for a proper decision of the prayer f