MARTIN BURN LTD. versus THE CORPORATION OF CALCUTTA

MARTIN BURN LTD. v.

THE CORPORATION OF CALCUTTA

August 19, 1965

·[A. K. SARKAR, RAGHUBAR DAYAL AND V. RAMASWAMI, JJ.]

Calcutta Municipal Act, 1923-Valuation of premises wrongly made under s. 127(b) instead of s. 127(a)-/n appeal High Court remanding care for valuation by lower court-If remand valid-Whether case one of cancellation within s. 131 (2)(b) or of revision within ss. 147 & 164.

The annual value of certain premises occupied by the appellant was ascertained by the methods prescribed in cl. (b) of s. 127 of the Calcutta Municipal Act, 1923, with view to asses.. the municipal rates payable in IllSpeCt of the premises. The appellant lodged objections under s. 139 claiming, Inter a/la, that the basis of valuation was wrong as it should have been made by the method prescribed in cl. (a) of s. 127 and that the valuation was in any event excessive. The Deputy Commissioner rejected the objections, except that he reduced the valuation slightly; but an appeal under s. 141 to the Court of Small Causes was allowed and that court directed that fresh Yaluation had to. be made under cl. (a) of s. 127 by the &eoutive Officer, starting from the proceeding mentioned under s. 131(2) (b). The respondent thereupon appealed to the High Court. but the contentions raised by it were rejected; however, in view of the fact that the time-limit for an assessment by the Executive Officer under s. 131(2)(b) having expired he could no more make the valuation which the Court of Small Causes directed him to make and to prevent the Corporation being deprived of its rates as result of such expiry of time. the High Court made an order remanding the case to the Court of Small Causes and directed it to make the valuation itself.

In the appeal to this Court it wa• contended on behalf of the appellant that as the original valuation bad been cancelled because of an irregularity, the present case fell within s. 131(2)(b), and the High COOrt bad no power to remand the case for vah,ration by the lower court; and that in ony event the order of remand was unjustifiable because it converted the appellant's appeal to the Court of Small Causes into proceeding wholly alien to what it was originally meant for, in that it went bevond the scope of the objection made by the appellant under s. 139. On the other hand, it was the respondent's contention that the present cit.se was one of revision and alteration of valuation contemplated in ss. 147 and 164 and not one of cancellation of valuation within the meaning of s. 131(2)(b).

HELD : (per Sarkar and Raghubar Dayal JI.)

The High Court's order remanding the case to the Court of Small Causes with direction to ascertain the annual value could not be sus~ tained.

The liability for rates is statutory liability under the Act and for such liability to arise the valuation bad to be made as provided in the statute. The Act. does not contemplate that rates may be fixed on the basis of valuation made by court such valuation would create no statutory liability. It would be fruitless to direct the Court of Small Causes to make fresh -valuation. [548 C-EJ

The direction of lhe High Court 10 the Court of Small Cause.< ""' not to revise or <titer Yaluation but 10 make fresh valuation and ;1s such the High ('curfs Order could not he upheld as directing revision or alteration of the valuation under s. 147 or 164 of 1he Act. (548 F, G]

Royal Asiatic Society of Bengu/ v. Corporation of Calcu11a, 58 C.W.N. 537; disappro,eJ.

Governor <..ieneral of JruJia in Council v. Corporution of Calcutta; 51 C.W.N. 517; North British &: Mercantile /nsura11cc Co. Ltd. v. Corpora-tion of Calcww (Calcutta High Court C.ase No. 6 of 1943, unreported): Corporation of Ca/c111ta v. Chandoo Lal Bhai Chand Modi; 57 C.W.N. 882: referred to.

(per Rama~\\.'ami J. dissentin,::)

(i) The High Court having remanded the case to the lo\\·er court \\'ith direction to ascertain the annual value under s. 127(a) after allowinf!, the parties to give further evidcnl:e, the va]uation had not been finally detennincd, hut was awaiting final adjudication. It was not therefore correct to say that there had been cancellation of the valuation within the meaning of s. 131(2)(b). The present case was one of the revision of valuation and fell under the pur'\'iew of s. 147, so that the revised valuation when finally determined would take effect retrospectively from the point of lime mentioned in 1hat section. [557 H--558 BJ

(ii) Though the ohjection made by the appellant under s. 139 was ;!n objection to the valuation. \\'hatcver be the ground of objection. the primary obiect of the appellant v.·as to get the valuation set aside. It could not therefore be said that the order of remand made by the High Court was hev1,nd lhc scope of lhe appeal. [558 D, G]

Civ1L APPFI.LATF. JuRISDtCTION: Civil Appeal Nos. 247 and 248 of 1963.

Appeal by Special Leave from the judgment and order dated the August 3. 1959 of the Calcutta High Court in Appeals from original order '\'os. 124 and 125 of 1956 .

. Viren De. Additional Solicitor-General. S. R. Banerjee and

S. N. Mukherjee. for the appellant.

A. V. Vishwanatha Sas1ri and P. K. Muklrerjee, for the res-

pondent.

The Judgment of Sarkar and Raghubar Dayal. JJ. was deli-vered by Sarkar J., Ramaswami J. delivered dissenting Opinion.

Sarkar J. These two appeals arise out of procccding5 for ascertainment of the annual value of premises No. 12, Mission Row, Calcutta, occupied hy the appellant. The annual value was ascer-tained with view to assess the municipal rates payable in respect of the premises. The appeals raise common question of law making it unnecessary to deal with them separately, that question being whether the order of remand made by the High Court at

Calcutta to the Court of Small Causes, Calcutta for ascertaining the annual value was justified.

The annual value was ascertained under the Calcutta Municipal Act, 1923. This Act was repealed and replaced by the Calcutta Municipal Act, 1951 as from May 1, 1952, but as the valuation had originally been made by the respondent Corporation under the repealed Act it is that Act by which the question that arises will have to be determined.

. We may at this stage profitably refer to some of the sections in Ch. X of the Act for giving an idea of its scheme regarding the ascertainment of the annual value. Section 124 provides that bonsolidated rate not exceeding twenty-three per cent on the annual valuation determined under Ch. X of the Act may tie im-posed by the Corporation upon al! lands and buildings in Calcutta. Clauses (a) and (b) of s. 127 lay down two mutually exclusive methods for ascertaining the annual value. The method prescribed in cl. (a) is applicable where building had been erected for letting purposes or was ordinarily let and under it the valuation has to be based on the rent which the land or building might reasonably fetch. Clause (b ), on the other hand, covers all other cases and provides for the valuation being based on the cost of construction of the building and the value of the land. Section 131(1) provides that the valuation made under the preceding Municipal Acts shall remain in force for the assessment of the consolidated rate under the Act until such time as the Executive Officer makes fresh valua-tion under the Act and that fresh valuation shall have effect for period of six years and may be revised thereafter at the termina-tion of successive periods of six years. The Executive Officer men-tioned is one of the officers of the Corporation appointed under the Act. Section 131(2) (b) states that "any land or building the valuation of which has been cancelled on the ground of irregu-larity. . . . . . . . may be valued by the Executive Officer at any time during the currency of the period prescribed ...... by sub-section(]), and such valuation shall remain in force ...... for the unexpired portion of such period." Sections 13 6 to 13 8 lay down the procedure for the making of the valuation and of giving notices in respect thereof to the rate-payers. Under s. 139 rate-payer dissatisfied with the valuation made by the Corporation may lodge with the Corporation his objections to it. Section 140 provides for an order being made by the Executive Officer on these objections after investisation on notice to the rate-payer. Section 141 gives the rate-payer dissatisfied with the order. made under s. 140 right to appeal against it to the Court of Small Causes. Under s. 142(3>

:an appeal lies to the High Court from the decision of the Court

of Small Causes under s. 14 I. Section 14 7 is in these terms : ""When the valuation of any land or building is revised in conse--quence of an objection made under section 139 or section 146, sub-section (2), or an appeal is preferred under section 141, the revised valuation shall !alee effect from the quarter in which the first-mentioned valuation would have talcen effect, and shall con-tinue in force for the period for which the said first-mentioned valuation was made, and no longer." Section 146 is not material for our purposes. Section 164(1) states that "When an objection to valuation has been made under section 139, the consolidated rate shall, pending the final determination of the objection, be paid on the previous valuation." Under sub-s. (2) of this section "if, when the objection has been finally determined, the previous valuation is altered", then any sum paid in excess shall be refunded or allowed to be set off against any demand of the Corporation again-'t the rate-payer and any deficiency shall be deemed to be an arrear of rate and recoverable as such. There are sections which provide how the rates are to be realised but no reference to them is neces-sary. It is enough to say that the rates duly assessed impose legal liability to pay them which can be enforced by distress or by proceedings in court of law.

Now in the present case the Corporation had assessed the annual value of the premises at certain figure by applying the method prescribed in cl. (b) of s. 127. The appellant lodged variou5 objections to it under s. 139. We are concerned only with two of these objections which were (I), the valuation had been made on wrong basis as it should have been made by the method prescribed in cl. (a) of s. 127 and (2), the valuation was in any event unfair and excessive. The Deputy Commissioner of the Corporation, being the officer under the new Act which had then come into force who had replaced the Executive Officer under the Old Act, rejected all these objections except that he reduced the valuation slightly presumably on the ground of excessiveness. The appellant then appealed against the Commissioner's decision to the Court of Small Causes, Calcutta under s. 141. The only point that the appellant raised in that Court was that the valuation was illegal as it had been made under cl. (b) of s. 127 while it should have been made under cl. (a). It did not raise contention that the valuation as reduced was still excessive and should in any event be further reduced. The Corporation contended that the valua-ti on had properly been made under cl. (b) of s. 127 and also that the appeal was incompetent as necessary court-fees had not been paid. The Court rejected both the points and allowed the appeal

making the following order : "The appeal must, therefore, suc-ceed; and tly: assessments as made by the respondent body have to· be wholly set aside and fresh valuations have to be made in respect of the premises in accordance with the mode prescribed under clause (a) of section i27, starting from the proceedings prescribed in clause (b) of sub-section (2) of section 131 of the Act."

The Corporation then appealed to the High Court at Calcutta under s. 142(3) of the Act against the judgment of the Court of Small Causes and raised the same two points it had taken in that Court. Both tbese points were rejected by the High Court also and the order of tbe Court of Small Causes was maintained. These points no more survive because tbe Corporation has not taken any proceeding to challenge the judgment of the High Court. We are not, therefore, called upon to examine the merits of tbe decision of the Courts below on the applicability of cl. (a) of s. 127 to the present case or as regards the court-fees payable by the appel-lant.

In view of its decision that the valuation should have been made by tbe method laid down in cl. (b) of s. 127 the High Court held that "the learned Judge of the Small Causes Court, Calcutta, therefore, rightly cancelled the assessment". Having done this, it observed that the order of the Court of Small Causes directing revaluation by the Corporation was however infructuous. It is not in dispute that the Corporation could only make revaluation under s. 131 ( 2 )( b) , as indeed the Court of Small Causes directed it to do, and that the time limit for doing so prescribed by that section had expired. To prevent the Corporation being deprived of its rates the High Court made an order remanding the case to the Court of Small Causes and directing it to make the valuation itself thereby intending to avoid the difficulty arising out of the applica-tion of s. !31(2)(b). It also gave certain consequential directions for the filing of valuation before that Court by the Corporation and of obje<:tions thereto by the apgellant and so on. It is this order of remand that the appellant challenges in this Court.

It is not contended that the High Court had any statutory power to make the order of remand but it is said that the High Court had an inherent power to do so. Whether the High Court had the inherent power in case like this may well be doubted. Learned: counsel for the appellant contended that in any case the order of remand was unjustifiable as it converted the appellant's appeal to the Court of Small Causes into proceeding wholly alien to what it originally was meant for. It was said that the inherent power of remand could be exercised only for deciding the disputes that

arose in the case as it stood; it could not be exercised for the deci-sion of matter which the proceedings in the Courts below did not raise, namely, the making of new valuation on wholly different basis. These contentions, in our view, deserve serious consideration.

We think that there are oth~r more fundamental objections to the order of remand. The order was made so that legal liability for rates assessed on the valuation made under it might fasten on the appellant. Indeed the High Court cxpn .. -ssly stated that it was making the order so that the Corporation might not be deprived of its rates. The liability for rates is however statutory liability under the Act; it is not liability to be imposed by order of Court. So much is clear and not in dispute. In order that the statutory liability might arise, the valuation had to be made as provided in the statute. Now the Act nowhere states that rates may be fixed on the basis of valuation made by court; it docs not at all contemplate valuation made by Court on its own. Such valuation would be futile and would create no statutory liability. Therefore, the High Court's order, sending the case "back to the Small Causes Court, Calculla. with directions to that Court to ascertain the annual value," if it was intended to allow the Court to make an independent valuation itself, was useless; the valuation made under it would give rise to no liability for rates fixed on the basis of it. It would not be an order which can be sustained.Though the Act does not empower Court to make valua-tion itself, it doe.s seem to contemplate in ss. 147 and 164 valua-tion made by the Corporation being revised and previous valua- . tion altered, by Court in :m appeal. If, therefore, it could be said that the valuation which the Court of Small Causes was to make under the order of the High Court would be revised valua-tion, that valuation would have been within the statute and the order of the High Court would then have been an effective order. We do not, however, think that that valuation can be said to be revised or altered valuation. First, the High Court did not direct the Court of Small Causes to revise valuation or to alter pre-vious valuation; it directed that Court to make fresh valuation itself. Secondly, it seems to us, irrespective of how the High Court described the valuation to be made under its order. that that valuation cannot by any stretch of imagination be called revised valuation or previous valuation altered. What ha< hap-pened here is that the previous valuation has been cancelled. That valuation no longer exists. The Court of Small Causes has now to make valuation of its own on different b<is ~nd on different

data. The valuation has now to be made on the basis of the letting value of the premises instead of on the market value of the land and the cost of construction of the building as had previously been done by the Corporation. It would hardly be appropriate to call such process, the revising of valuation or the altering of valua-tion previously made. Nothing is here revised or altered; what is done is to create new thing from the start and this without any . reference whatsoever to any existing thing. We should suppose that thing is revised or altered when it is retained with some modi-fications. Thus when the figures of rent, cost or value on which valuation is based are altered as excessive, or unfair or larger depreciation than given is allowed and the total is suitably altered, that would be case of revising or altering valuation. The pre-sent is wholly different case. The valuation which the High Court ordered to be made cannot hence be revised or altered valuation.

It is necessary now to refer to Royal Asiatic Society of Bengal v. Corporation of Calcutta('). In that case, as in the case in hand, the rate-payer had appealed to the Court of Small Causes contend-ing that the valuation had been made by the Corporation by apply-ing wrong method, namely, cl. (a) of s. 127. The contention was rejected by the lower Court but upheld by the High Court. The High Court then remanded the case to the Court of Small Causes for determination of the annual value in terms of cl. (b) of s . • 127. The High Court took the view that in such an appeal the Court of Small Causes had the right to make revised valuation as contemplated in s. 147. Basing itself on that section and s. 164 it put its reasoning in this way at p. 544 : "the scheme of the Act is that where an assessee is aggrieved by valuation made by the Corporation and prefers an objection, till the objection is final-ly adjudicated upon, the consolidated rate has got to be paid on the existing valuation and that after the objection is finally disposed of in appeal, the final valuation fixed will determine the consoli-dated rate payable and will, in terms of section 147, remain in force for the period for which the first mentioned valuation was made." With respect, we are unable to agree that this is the scheme of the Act. Where the valuation is in fact revised, the observation quo-ted would no doubt be fully applicable. It would not apply to other cases. The fallacy of the reasoning lies in the assumptiou that once there is an appeal, there must always be revised valua-H tion. There is no warrant for that assumption. We have earlier stated that there is no scope for making revised valuation where

the appeal seeks an annulment of the existing valuation. Fur-A ther, neither s. 147 nor s. 164, on which the reasoning was based, requires valuation to be revised nor says when that is to be done. They deal only with cases where valuation has in fact been revised and thereby indicate that there may be cases where the valuation is not revised. In Governor-General of India in Council v. Corporation of Calcutta(') the High Court upheld the order of the Court of Small Causes cancelling valuation as having been made under the wrong clause of s. 127 but did not direct the valua-tion to be made afresh by that Court. We may also observe here that in the case in hand the High Court referred to the Royal Asiatic Society's case([2 ]) only to support the proposition that it bad power of remand and for no other purpose. It did not say that in all appeals the Court must make revised valuation.

lo considering the scheme of the Act, the Royal Asiatic Society's case(') further overlooked tho fact that the Act required every valuation to be made by the Corporation under ss. 131 and 136 to 138 and that it gave the rate-payer chance of attacking that valuation under s. 139, before coming to Court for ventilating bis grievance. These provisions would be ignored if the Court of Small Causes were to make the \'aluation itself. They indicate that the scheme of the Act was not as stated in that case. There it was also observed that the ,·icw taken rccci\'ed support from the observations of S. R. Das J. in the unreported judgment in North British and Mercantile Insurance Co. Ltd. v. Corporation of Cal-cutta(•) mentioned in that case. We think however that those observations tend quite the other way for they were i11ter a/ia that, "If, however, the Small Causes Court only set~ aside the valuation made by the Corporation but does not itself fix the valuation, then s. 147 does not apply ...... The matter must in such circum-stances be left to be governed by s. l 31(2)(b)." S. R. Das J. clearly contemplated that the Court of Small Causes was not bound to make revised valuation in all cases. In our opinion, it has not the power to do so in all cases. The same view of the judg-ment of S. R. Das J. was taken in Corporation o.f Calcutta v. Chandoo Lal Bhai Chand Modi(').

If it was intended by the Royal Asiatic Society's case(') to hold that it was the appellate court's power after cancelling valuation to revise it if it liked, that again would be view to which we are unable to subscribe. Such view indeed appears to have been

---··--·- ---

(2) 58 C.W.N. 537. (4) 57 C.W.N. 882.

(!) 51 C.W.N. 517. (3) Case No. 6 of 1943, unreported.

MARTIN BURN v. CORPORATION (Sarkar, J.)

taken by the High Court in the case in hand for it made the order of remand only because the Corporation could not make valuation any more, the time limit prescribed for it under s. 131(2)(b) having expired. If the Corporation could make the valuation, presumably the High Court would not have made the order of remand. Now s. 131 (2)(b) provides that when valuation is cancelled on the ground of irregularity, fresh valuation may be made by the Executive Officer. It would be an unnatural construction of the Act to say that the operation of this provision would depend on the discre-tion of the appellate court to proceed or not to proceed to make valuation itself after cancelling the valuation previously made by the Corporation. We think that in view of this provision, once valuation is cancelled, fresh valuation can only be made in terms of it and not in any other way. That is what S. R. Das J. said and with it we agree. That is another reason for saying that when valuation is cancelled, the Act does not contemplate fresh valuation being made by the court, for if it did so, s. 131 (2)(b) would have operation only when the Court decided it to have. We are not prepared to accept as correct an interpretation of the Act leading to such an unnatural result.While on s. 131 (2)(b) we observe that it was not contended that Court had no power to cancel valuation; all that was said was that after cancellation the Court must or may proceed to make fresh valuation. This we have held to be an untenable view. point was however made that s. 131 (2)(b) applied only to cancellation on the ground of irregularity, that is, procedural defect such as, absence of notice, omission to give hearing etc. There is however no reason to restrict the ordinary meaning of the word "irregularity" and confine it to procedural defects only. None has been advanced. Such contention was rejected, and we think rightly, in Corporation of Calcutta v. Chandoo Lal Bhai Chand Modi('). That word clearly covers any case where thing has not been done in the manner laid down by the statute, irrespective of what that manner might be. In principle there would be noth-G ing to justify special provision like s. 131 (2)(b) being made to cover case of procedural irregularity only.

We can now deal with the reasoning on which the High Court in the present case justified its order of remand. It realised that by making the order it was depriving the appellant of one of its chances to object to the valuation, namely, the chance under s. 139, but it felt that by upholding that right of the appellant it would be depriving the Corporation of its rates wholly as the time

limit prescri~d by s. 131(2)(b) had expired. It thought that it was faced with two evils and that it would be choosing the lesser of the two if it allowed the Corporation chance to collect its rates. Witllgreat rfspect, we find this line of reasoning altogether unsupportable. result flowip.g from statutory provision is never an evil. court has no power to ignore that provision to relieve what it considers distress rerulting from its operatjOlh<A statute must of course be given effect to wbether court likes the result or not. When the High Court found that s. 131(2)(b) had been attracted to the case, it had no power to set-that provision at nought.

It remains to deal with one other argument advanced for the Corporation. It was said that the entire proceeding in connection with the ascertairunent of the valuation was one and continuous and its only object was to ascertain the valuation and, therefore, the Court annulling valuation made on wrong basis, must have power to make new valuation itself on the correct basis. We are not impressed by this contention. The conclusion does not follow from the premise. The proceeding for making the valua-tion, whether it is continuous or not, must be in terms of the statute. If the statute does not give the Court the power to make the valua-tion, it cannot be said to possess that power so that the supposed object may be achieved. Further, the object is not to make valua-tion anyhow but to make it only in terms of the Act.

We think we have now considered all the different aspects of the matter that were placed before us by learned counsel on either side. Our conclusion for the reasons earlier stated is that, looked from all points of view, the order of remand is not justifiable. in law; it was not within the inherent power of the High Court to remand the case for the doing of thing which the Act did not countenance. The remand was futile. It offended the Act as it deprived th~ appellant of one of its statutory rights. The order has to be set aside.Before concluding we may state that the Corporation had made two valuations of the premises, one called general valuation for the entire six yearly period mentioned ins. 131(1) and the other an intermediate valuation made later but within that period to have effect for the remainder of the period, on account of certain addi-tional construction in the premises put up since the earlier assess-ment. Obj~ctions had been taken by the appellant to both these valuations under s. 139 by independent proceedings and separate appeals filed under s. 141 from 'the order made in each of the proceedings. As earlier stated, the appeals raised the same point.

They ;wcr~, (h;;efore, dealt with in one judgment by both the Courts below. Hence the two appeals before us.

In the result we allow these appeals, set aside the judgment of the High Court in so far as the orders for remand are concerned and restore the judgment of the Court of Small Causes. The Cor-B poration will pay the cost of tl1ese appeals.

Ramaswami, J. These two appeals are brought, by ~pecial leave, against the judgment of the High Court at Calcutta dated August 3, 1959 in appeals from Original Orders in F.M.A. 124 and F.M.A. 125 of 1956. The appeals arise out of two valuations made by the Corporation of Calcutta in respect of premises No. 12, Mis-c sion Row, Calcutta under the provisions of the Calcutta Municipal Act, 1923 (Bengal Act III of l 923). At the general revaluation, the disputed premises were assessed to an annual value of Rs. 1,45,354/-, to come into effect from the second quarter 1949-50, i.e., from July 1, 1949. The assessment was made under the provision of s. 127(b) of the Calcutta Municipal Act, 1923. The assessee objected to the valuation, both in regard to the quantum and the method of valuation and the Deputy Commissioner No. 1 of the respondent-Corporation, thougb affirming the method of valuation, reduced the amount of assessment to Rs. 1,28,230/-. Against this order the assessee preferred an appeal to the Presi-E dency Small Cause Court, Calcutta under the provisions of s. 183 of the Calcutta Municipal Act, I 95 l which had in the meantime come into operation. This appeal was numbered as Municipal Appeal No. 216 of 1954. The general revaluation of the premises was followed by an intermediate valuation because certain new con-structions had been made. At the stage of the intermediate valua-F tion, the annual value was assessed at Rs. 1,46,992/- with effect from the ,first quarter of 1951-52, i.e., from April l, 1951 again following the method prescribed under s. l 27(b) of the Calcutta Municipal Act, 1923. Upon an objection made by the assessee the valuation was reduced to Rs. 1,29,588/- by the Deputy Com-missioner No. 1 of the Corporation. The assessee took the matter in appeal to the Presidency Small Cause Court under s. 183 of the Calcutta Municipal Act, 1951. Thi~ appeal was numbered as Municipal Appeal No. 217 of 1954. Jn both these appeals the Presidency Small Cause Court considered that the proper procedure was to assess the premises under cl. (a) and not cl. (b) of s. 127 of the Calcuttci Municipal Act, 1923. The Presidency Small Causes Court accordingly set aside the assessments and directed fresh assessments to be made in accordance with law. The Corporation took the matter in appeal to the Calcutta High Court which, by its

[1966] l S.C.R.

judgment dated August 3, 1959, upheld the decision of the Presi-dency Small Causes Court that the valuation should be fixed under s. 127(a) and not under s. l 27(b) of the Calcutta Municipal Act, 1923 and that the valuation already made should be cancelled. The High Court, however, modified the direction of the Presidency Small Causes Court with regard to remand. The High Court or-dered that the case should be remanded to the Presidency Small Causes Court for fixing the valuation itself under the provisions of s. 127(a) of the Calcutta Municipal Act, 1923.

The question presented for determination in this case is whether the High Court was right in sending back the case to the Presi-dency Small Causes Court and directing it to ascertain the annual value under s. 127(a) of the Calcutta Municipal Act for the periods in question.

according to it, for the unexpired portion of such period."

Sectiou 139 provides as follows :

"139( 1) Any person who is dissatisfied with valuation made under this chapter may deliver at the municipal office written notice stating the grounds of his objection to such valuation.

(2) Such notice shall be delivered within fifteen days after the publication of the notice referred to in s. 137, or after receipt of the notice referred to in section 138, if such notice 1s received after the publication of the notice referred to in section 13 7 :

Provided that the Executive Officer may, if he thinks fit, extend the said period of fifteen days to period not exceeding one month."

Section 140 states :

"140.(1) All such objections shall be entered, in regis-ter to be maintained for the purpose; and, on receipt of any objection, notice shall be given to the objector of time and place at which his objection will be investigated.

(2) At the said time and place the Executive Officer or Deputy Executive Officer shall hear the objection, in the presence of the objector or his agent if he appears, or may, for reasonable cause, adjourn the investigation.

( 3) When the objection has been determined, the order passed shall be recorded in the said re-gister, together with the date of such order."

Section 141 reads :

"141 (1) Any person dissatisfied with the order passed on his objection may appeal to the Court of Small Causes having jurisdiction in the place where the land or building, to the valuation of which the objection was made, is situated.

(2) Such appeal shall be presented to such Court of Small Causes within thirty days from the date of the order passed under section 140, and shall

be accompanied by an extract from the register of objections conlaining the order objected to. (3) The provisions of Parts II and Ill of the Indian Limitation Act, 1908. rdating to appeals. shall apply lo every appeal preferred under this sec-tion. ( 4) No appeal shall be ad,,;itlcd under thi, section unless an objection has first been <klcrmined under sect'on 140." Section 142 states : "142 (I) Every valuation made by the Executive Officer under section 131 shal'. subject t•> th~ provi-sions of sections 139, 140 and 141. be final. (2) Every order passed by the Executive Officer or Deputy Executive Officer under section 140 shall, subject to the provi,ions of section 14 l, be final. ( 3) An appeal from decision made by the Court of Small Causes under section 14 l shall lie to the High Court." • Section 147 provides for the period for which the revised valua-E tion is to continue in force. It is to the following elTect : "147. When the valuation of any land "r building is revi!'Cd in consequence of an objecticn made under section 139 or section 146. sub-secthm ( 2), or an appeal is preferred under section 141. the reviS<:d valuation shall take clTcct from the quarter in which the tirst-mentioned valuation would have taken effect. and shall continue in force for the pcrioJ for which the s::id first-mentioncd \'aluation \VJ.S 1nad.~. and no !on~cr."' Section 164 makes provisions for the payment of the consolidated rate and how far the payment is alTcctcd by objections to valua-tion. It states as follows : "l 64( I ) When an objection to valuation has hcen made under sectinn 139. the consolidat~d rate shall. pending the final determination of the objec-tion, be p;,id on th~ prc,-ious valuation. (2) Ii. when the objection 11as been finally determin-ed. the previous valuation is altered. then-

(a) any sum paid in excess shall tie refunded or ,allowed to be set off against any present or future demand of the Corporation under this Act, and

( b) any deficiency shall be deemed to be an arrear of the consolidated rate and shall be payable and recoverable as such : ,,

It is manifest from these statutory provisions that the conse-quences of the revision of valuation and of cancellation of valua-tion are different Under s, 147 the revised valuation is to date back from the commencement of the period of valuation and is to continue in force for the entire period of 6 years for which the revaluation is to remain in force, but when vaTuation is can-celled on the ground of an irregularity, the Executive Officer may, at any time during the currency of the reriod of valuation, again value the premises under s. 131 (2) (b) and such valuation shall be in force and the consolidated rate shall be levied according to it only for the unexpired portion of such period.

On behalf of the appellant-company the Additional Solicitor-General put forward the argument that the pre;ent case £ell with-in the purview of s. 131 (2)(a) and as the period of revaluation commencing from July 1, 1949 was already complete the autho-rities of the Calcutta Corporation have no power to make fresh revaluation under s. 131(2)(b) of the Act. The contrary view was presented on behalf of the respondent-Corporation by Mr. Viswanatha Sastri and it was contended that the present case falls within the purview of s. 147 of the Calcutta Municipal Act, 1923 and the revised valuation will relate back, under that sec-tion, to the commencement of the, period of valuation and will take effect for the entire period of 6 years during which the valua-tion remained in force. In my opinion, the argument put fo1ward on behalf of the respondents must be accepted as correct. ln the present case the valuation has not been finally set aside either by the Presidency Small Causes Court or by the High Court in appeal. the order of the High Court is that the valuation should be set aside because it was not made on the basis of s. 127(a) which was the pro;ier sub-section to be applied. The High Court according1v set aside the valuation and has remanded the matter the Presidency Small Causes Court for ascertainment of the annual value under s. 127 (a) after allowing the parties to give such further evidence as they choose. It is manifest that the valuation has not yet been finally determined; the matter is still

awanmg linal adjudication. It is, therefore, not correct to say that the~e has been cancellation of the valuation within the meaning of s. 131 (2)(b) of the Calcutta Municip;il Act, 1923. I am on the contrary, of the opinion that the case falls under the purview of s. 147 of the Municipal Act, 1923 and the present case is case of revision of the valuation within the meaning of that section and the revi.,ed valuation when finally detr.rmined will take effect rctrospect;vely from the point of time mentioned in that section. In my opinion, the Additional Solicitor-General is unable to make good his submission on this aspect of the case.

It was then contended on behalf of the appellant that the order of remand made by the High Court was illegal because it was beyond the scope of the objection made by the appellant under s. 139 of the Calcutta Municipal Act, 1923. It was con-tended that the appellant has objected only to the basis of the valuation and not to the quantum and, therefore, the order of remand made by the High Court was not in accordance with law. I am unable to accept this argument as correct. The objection made by the appellant under s. 139 was an objection to !he valuation made by the respondent and whatever he the ground of the objection, the primary object of the appellant was to get the valuation set aside. Before the Deputy Commissioner the objection of the appellant was both in regard to the quantum and the method of valuation and the appellant actually succeeded in getting the amount of valuation reduced to certain extent. A[!ainst the order of the Deputy Commissioner the appellant filed an appeal to the Presidency Small Causes Court under s. 141 of the Calcutta Municipal Act. Section 142 states that "every valuation made by the Executive Officer under s. 131 shall, subject to the provisions of ss. 139, 140 and 141, be final". It ., is manifest that the subject-matter of the appeal before the Presi-dency Small Causes Court and also before the High Court was the question of valuation of the disputed premises and not merely in regard to the basis on which the valuation was to be made. I am, therefore, unable to accept the argument on behalf of the appellant that the order of remand made by the High Court is beyond the scope of its appeal.

I am. however, of the opinion that the directions given by the High Court in the judgment under appeal require some modifica-tion. In the operative part of the judgment the learned Judges have ~~:

"Since it is the duty of the Corporation of Calcutta

to detennine the annual value at the initial stage and

since no such determination or ascertainment has as yet be.en lawfully made by the Corporation of Calcutta, we direct that the Corporation of Calcutta shall, after remand in the first instance, state in writing before the learned Judge of the Calcutta Small Causes Court the valuation ascertained by it under section 127(a) of the Act of 1923. On such statement being made, the assessee shall be at liberty to amend its ground of ap-peals in such manner as it likes. If the amendment introduced brings the case under item 2 of the Notifi-cation of July 3, 1937, the assessee shall have the liberty to put in the deficit Court fee, if any, at all. The learn-c ed Judge of the Small Causes Court shall allow the parties to adduce such evidence as they may like and then determine the cases on evidence already on record and such further evidence as may be adduced."

I consider that the direction given in this paragraph should be set aside and in its place there should be an order for remanding the case to the Presidency Small Causes Court for ascertainment by its.elf of the annual value under the provisions of s. 127(a) of the Calcutta Municipal Act, 1923 after giving the parties ade-quate opportunity to adduce .such evidence as they may like. Subject to this modification I would dismiss the appeals with costs.

ORDER

In accordance with the majority judgment, the appeals are .allowed. Corporation will pay the costs of these appeals.