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1978 Supreme(Cal) 158
High Court Of Calcutta
A. K. SEN, B. C. Chakrabarti
PROSAD KUMAR MONDAL - Appellant
Versus
COMMISSIONER OF KRISHNAGORE MUNICIPALITY - Respondent
Mandamus Appeal Nos. 959(with application) and 300 of 1977
Decided On : 03/03/1978
BHASKAR GHOSH, BIDYUT MUKHERJI, DIPANKAR GHOSH, Harinarayan Das, HARINARAYAN MUKHERJEE, P.SARKAR, PRADIPTA ROY
An assessment made dehors the statute can never be validated by any order of review in respect thereof.
Headnote:
MUNICIPAL ASSESSMENT - QUINQUENNIAL ASSESSMENT - VALIDITY - ASSESSMENT NOT BASED ON BONA FIDE VALUATION MADE BY ASSESSOR IN ACCORDANCE WITH LAW - ASSESSOR FAILED TO COMPLY WITH MANDATORY PROVISIONS OF RULES 8 AND 9 OF THE RULES FOR ASSESSMENT - ASSESSMENT HELD TO BE ILLEGAL AND WITHOUT JURISDICTION - RATES DEMANDED ON THE BASIS THEREOF HELD TO BE ILLEGALLY LEVIED AND NOT SUSTAINABLE IN LAW.
Fact of the Case:
The petitioners, 41 rate payers of Krishnagore Municipality, challenged the quinquennial municipal assessment which was to take its effect from the 1st quarter of 1972-73 and the consequential demands made on the basis thereof. It was so challenged by them representing the other rate payers on a leave under Order 1 rule 8 of the Code of Civil Procedure being obtained form the Court. The principal ground on which they challenged such assessment was that the assessment was not based on any bona fide valuation made by the assessor in accordance with law.
Finding of the Court:
The Court found that in determining the valuation the assessor had failed to comply with the mandatory provisions of Rules 8 and 9 of the Rules for assessment when the assessor failed to call for returns from the owners of the different holdings in Form B prescribed by such Rules, failed to indicate the basis of the assessment by filling up columns 15 and 16 in cases where such returns were called for and when he failed to determine the valuation on the rental basis in the manner prescribed by the Rules.
Issues: 1. Whether the impugned assessment suffered any such illegality as would render it liable to be set aside? 2. Whether the assessor had at all ascertained the gross annual rental of the individual holdings in accordance with the Act and the Rules and had prepared a valuation list on positive exercise of his own judgment? 3. Whether the assessor had discharged his duties under S. 133 when he failed to make any enquiry whatsoever in the process whereof he could find the rent of comparable holdings and secure the data for determination of the gross annual rental of different holdings?
Ratio Decidendi: 1. The Court held that the assessment was illegal and without jurisdiction as the assessor failed to comply with the mandatory provisions of Rules 8 and 9 of the Rules for assessment. 2. The Court held that the assessor never made the determination in any honest manner and failed to discharge his duties prescribed by Rule 9. 3. The Court held that the assessor never fulfilled the duty cast on him by S. 133 read with the Rules.
Final Decision: The writ application succeeded and the rule made absolute. The impugned assessment by the Municipal Commissioners of Krishnanagore was set aside and a writ in the nature of certiorari was issued accordingly.
( 1 ) THESE are the two appeals under clause 15 of the Letters Patent directed against the same judgment and order dated May 12, 1976, passed by a learned single judge of this Court in Civil Rule No. 6243 (W) of 1972 which was issued on a writ petition. As the writ was allowed in part some of the petitioners therein have preferred F. M. A. 959 of 1976 making a grievance that the learned judge should have allowed the entire relief claimed therein. The Municipal Commissioners of Krishnagore who were the first respondent to that writ petition on the other hand felt aggrieved by the order in so far as thereby a part of the claim made in the writ petition was allowed and have preferred F. M. A. 300 of 1977 on a grievance that the writ petition should have been dismissed. As the two appeals arise out of the same proceeding and is directed against the same judgment and order, we have heard them together.
( 2 ) IN the writ petition 41 rate payers of Krishnagore Municipality challenged the quinquennial municipal assessment which was to take its effect from the 1st quarter of 1972-73 and the consequential demands made on the basis thereof. It was so challenged by them representing the other rate payers on a leave under Order 1 rule 8 of the Code of Civil Procedure being obtained form the Court. The principal ground on which they challenged such assessment was that the assessment was not based on any bona fide valuation made by the assessor in accordance with law. It was claimed that the assessor appointed was old and physically infirm, he had neither the physical capacity nor did he actually discharge the statutory duties in purporting to revise the valuation; in most of the cases the assessor did not issue any notice or ca for any return under s. 134 of the Bengal Municipal Act, and even in a few cases where such returns were called for, they were not verified, columns 15 and 16 were not filed up in any bona fide manner; the assessor did not inspect any holding, did not visit any locality and did not compare the different localities and different holdings for determining the valuations in respect of different or any of the holdings and as a mater of fact made no enquiry whatsoever as required of him by the statute in revising the valuations. According to the petitioners, the valuations, were revised by the assessor in an arbitrary manner; in the matter of formation of his opinion and in comparing the different holdings and different areas or localities the assessor did not perform his statutory duties and proceeded entirely without any basis or material; the assessor failed to record any reason or justification for enhancing the valuations of different holdings in disproportionate and discriminatory manner not based on any common standard or basis. The report submitted by the assessor is neither bona fide nor a lawful report and the entire assessment based on such a valuation is clearly illegal and without jurisdiction. As such the assessment is liable to be set aside and rates, as are being demanded on the basis thereof, being illegally levied are not sustainable in law.
( 3 ) THE writ petition was contested by the first respondent only. Though the gravamen of accusation was against the assessor and he was made a party-respondent, he did not appear either to contest the rule or controvert the specific allegations made against him. An affidavit-in-opposition and two supplementary affidavits sworn by a law clerk of the Municipality were filed on behalf of the first respondent wherein the various allegations made as against the assessor and in particular the allegation of assessor having filed to discharge his statutory duties could not be met except so far as it could be on the basis of the records made over by the assessor. The various allegations made in the different paragraphs of the writ petition were broadly dealt with in the affidavit-in-opposition and the denials were mostly vague in nature. A
