Martin Burn Ltd. Vs. The Corporation of
Calcutta  INSC 161 (19 August 1965)
19/08/1965 SARKAR, A.K.
DAYAL, RAGHUBAR RAMASWAMI, V.
CITATION: 1966 AIR 529 1966 SCR (1) 543
Calcutta Municipal Act, 1923-Valuation of
premises wrongly made under s. 127(b) instead of s. 127(a)-In appeal High Court
remanding cam 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 a view to assess the municipal rates payable in of the premises. The
appellant lodged objections under s. 139 claiming inter alia, 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
but an appeal under s. 141 to the Court of
Small Causes was allowed and that court directed that a fresh valuation had to
be made under cl. (a) of s. 127 by the Executive 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 a 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
In the appeal to this Court it was contended
on behalf of the appellant that as the original valuation had been cancelled
because of an irregularity, the present case fell within s. 131(2)(b), and the
High Court had no power to remand the case for a valuation by the lower court-.
and that in any event the order of remand was unjustifiable because it
converted the appellant's appeal to the Court of Small Causes into a proceeding
wholly alien to what it was originally meant for. in that it went beyond 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 case was one of revision
and alteration of a valuation contemplated in ss. 147 and 164 and not one of
cancellation of a valuation within the meaning of s. 131(2)(b).
HELD:(per Sarkar and Raghubar Dayal JJ.) The
High Court's order remanding the case to the Court of Small Causes with a
direction to ascertain the annual value could not be sustained.
The liability for rates is a statutory
liability under the Act and for such liability to arise the valuation had to be
made as provided in the statute. The Act does not contemplate that rates may be
fixed on the basis of a valuation made by a court such a valuation would create
no statutory liability. It would be fruitless to direct the Court of Small
Causes to make a fresh valuation. [548 C-E] 544 The direction of the High Court
to the Court of Small Causes was not to revise or alter a valuation but to make
a fresh valuation and is such the High Court's Order could not be upheld as
directing a revision or alteration of the valuation under s. 147 or 164 of the
Act. [548 F, G] Royal Asiatic Society of Bengal v. Corporation of Calcutta, 58
C.W.N. 537; disapproved.
Governor General of India in Council v.
Corporation of Calcutta, 51 C.W.N. 517; North British & Mercantile
Insurance Co. Ltd. v. Corporation of Calcutta (Calcutta High Court Case No. 6
of 1943, unreported); Corporation of Calcutta v. Chandoo Lal Bhai Chand Modi 57
(per Ramaswami J. dissenting) (i)The High
Court having remanded the case to the lower court with a direction to ascertain
the annual value under s. 127(a) after allowing the parties to give further
evidence, the valuation had not been finally determined, but was awaiting final
adjudication. It was not therefore correct to say that there had been a
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 purview of s. 147,
so that the revised valuation when finally determined would take effect
retrospectively from the point of time mentioned in that section. [557 H-558 B]
(ii)Though the objection made by the appellant tinder s. 139 was an objection
to the valuation, whatever be the ground of objection, the primary object of
the appellant was to get the valuation set aside. It could not therefore be
said that the order of remand made by the High Court was beyond the scope of
the appeal. [558 D, G]
CIVIL APPELLATE JURISDICTION 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 Nos. 124 and 125 of 1956.
Niren De Additional Solicitor-General, S. R.
Banerjee and S. N. Mukherjee, for the appellant.
A.V. Vishwanatha Sastri and P. K. Mukherjee,
for the respondent.
The Judgment of Sarkar and Raghubar Dayal,
JJ. was delivered by Sarkar J., Ramaswami J. delivered a dissenting Opinion.
Sarkar J. These two appeals arise out of
proceedings for ascertainment of the annual value of premises No. 12, Mission
Row, Calcutta, occupied by the appellant. The annual value was ascertained with
a view to assess the municipal rates payable in respect of the premises. The
appeals raise a 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 545 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 a 'consolidated
rate not exceeding twenty-three per cent on the annual valuation determined
under Ch. X of the Act may be imposed by the Corporation upon all 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
(a) is applicable where a 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
a fresh valuation under the Act and that fresh valuation shall have effect for
a period of six years ind may be revised thereafter at the termination of
successive periods of six years. The Executive Officer mentioned 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
irregularity may be valued by the Executive Officer at any time during the
currency of the period prescribed by sub section(1). and such valuation shall
remain in force for the unexpired portion of such period." Sections 136 to
138 lay down the procedure for the making of the valuation and of giving
notices in respect thereof to the rate-payers. Under s. 139 a 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 investigation on notice to
the rate-payer. Section 141 gives the rate-payer dissatisfied with the order
made under s. 140 a right to appeal against it to the Court of Small Causes.
Under s. 142(3) 546 an appeal lies to the High Court from the decision of the
Court of Small Causes under s. 141. Section 147 is in these terms: When the
valuation of any land or building is revised in consequence 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 take effect from the
quarter in which the first mentioned valuation would have taken effect, and
shall continue 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 a 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 against 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 necessary. It is
enough to say that the rates duly assessed impose a legal liability to pay them
which can be enforced by distress or by proceedings in a court of law.
Now in the present case the Corporation had
assessed the annual value of the premises at a certain figure by applying the
method prescribed in cl. (b) of S. 127. The appellant lodged various objections
to it under S. 139. We are concerned only with two of these objections which
were (1), the valuation had been made on a 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 a contention that the valuation as reduced was still excessive
and should in any event be further reduced. The Corporation contended that the
valuation 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 547 making the following order
: "The appeal must, therefore, succeed; and the 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 127, 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 these points were rejected by the High Court also and
the order of the Court of Small Causes was maintained. These points no more
survive because the 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 the 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
In view of its decision that the valuation
should have been, made by the 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 a revaluation by
the Corporation was however infructuous. It is not in dispute that the
Corporation could only make a 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 application of s.
It also gave certain consequential directions
for the filing of a valuation before that Court by the Corporation and of
objections thereto by the appellant 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 a 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 a
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 548 arose in the case as it stood; it could not be exercised for the
decision of a matter which the proceedings in the Courts below did not raise,
namely, the making of a new valuation on a wholly different basis. These
contentions, in our view, deserve serious consideration.
We think that there are other more
fundamental objections to the order of remand. The order was made so that a
legal liability for rates assessed on the valuation made under it might fasten
on the appellant. Indeed the High Court expressly stated that it was making the
order so that the Corporation might. not be deprived of its rates. The
liability for rates is however a statutory liability under the Act; it is not a
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 a valuation made by a court; it does not at all contemplate
a valuation made by a Court on its own. Such a 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, Calcutta, 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 a Court to
make a valuation itself, it does seem to contemplate in ss. 147 and 164 a
valuation made by the Corporation being revised and a previous valuation
altered, by a Court in an 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 a revised valuation, 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 valuation can be said to be a revised or
altered valuation. First, the High Court did not direct the Court of Small
Causes to revise a valuation or to alter a previous valuation; it directed that
Court to make a fresh valuation itself. Secondly, it seems to us, irrespective
of how the High Court described the valuation to be made under its order, that
valuation cannot by any stretch of imagination be called a revised valuation or
a previous valuation altered. What has happened here is that the previous
valuation has been cancelled. That valuation no longer exists. The Court of
Small Causes has now to make a valuation of its own on a different and on
different 549 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 a process, the
revising of a valuation or the altering of a valuation previously made. Nothing
is here revised or altered; what is done is to create a new thinfrom the start
and this without any reference whatsoever to any existing thing. We should
suppose that a thing is revised or altered when it is, retained with some
modifications. Thus when the figures of rent, cost or value on which a
valuation is based are altered as excessive, or unfair or a larger depreciation
than given is allowed and the total is suitably altered, that would be a case
of revising or altering a valuation.
The present is a wholly different case. The
valuation which the High Court ordered to be made cannot hence be a revised or
It is necessary now to refer to Royal Asiatic
Society of Bengal v. Corporation of Calcutta(1). In that case, as in the case
in hand, the rate-payer had appealed to the Court of Small Causes contending
that the valuation had been made by the Corporation by applying a wrong method,
(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 a 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 a 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 assesses is aggrieved by a valuation made by the Corporation and
prefers an objection, till the objection is finally 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 consolidated 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 quoted would no
doubt be fully applicable. It would not: apply to other cases. The fallacy of
the reasoning lies in the assumption that once there is an appeal, there must
always be a revised valuation. There is no warrant for that assumption. We have
earlier stated that there is no scope for making a revised valuation where (1)
58 C.W.N. 537.
550 the appeal seeks an annulment of the
Further, neither s. 147 nor s. 164, on which
the reasoning was based, requires a valuation to be revised nor says when that
is to be done. They deal only with cases where a 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(1)
the High Court upheld the order of the Court of Small Causes cancelling a
valuation as having been made under the wrong clause of s. 127 but did not
direct the valuation 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 had a power of remand and for
no other purpose. It did not say that in all appeals the Court must make a
In considering the scheme of the Act, the
Royal Asiatic Society's case(3) further overlooked the 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 a chance of attacking that valuation under
s. 139, before coming to a Court for ventilating his grievance. These
provisions would be ignored if the Court of Small Causes were to make the
valuation itself. They indicate that the scheme of the Act was not as stated in
that case. There it was also observed that the view taken received support from
the observations of S. R. Das J. in the unreported judgment in North British
and Mercantile Insurance Co. Ltd. v. Corporation of Calcutta (3 ) mentioned in
that case. We think however that those observations tend quite the other way
for they were inter alia that, "If, however, the Small Causes Court only
sets 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 circumstances be left to be governed by s. 131(2)(b)." S. R. Das J.
clearly contemplated that the Court of Small Causes was not bound to make a
revised valuation in all cases. In our opinion, it has not the power to do so
in all cases. The same view of the judgment of S. R. Das J. was taken in
Corporation of Calcutta v. Chandoo Lal Bhai Chand Modi(4 ).
If it was intended by the Royal Asiatic
Society's case(5) to hold that it was the appellate court's power after
cancelling a valuation to revise it if it liked, that again would be a view to
which we are unable to subscribe. , Such a view indeed appears to have been (1)
51 C.W.N. 517.
(2) 58 C.W.N. 537.
(3) Case No. 6 of 1943, unreported.
(4) 57 C.W.N. 882.
551 taken by the High Court in the case in
hand for it made the order of remand only because the Corporation could not
make a 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 a valuation is cancelled on the ground of irregularity, a 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 discretion of the appellate court to proceed or not to proceed to make a
valuation itself after cancelling the valuation previously made by the
Corporation. We think that in view of this provision, once a valuation is
cancelled, a 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 a valuation is cancelled, the Act does not
contemplate a 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
While on s. 131(2)(b) we observe that it was
not contended that a Court had no power to cancel a valuation; all that was
said was that after cancellation the Court must or may proceed to make a fresh
valuation. This we have held to be an untenable view. A point was however made
131(2)(b) applied only to a cancellation on
the ground of irregularity, that is, a procedural defect such as, absence of
notice, omission to give a 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 a contention
was rejected, and we think rightly, in Corporation of Calcutta v. Chandoo Lal
Bhai Chand Modi(1). That word clearly covers any case where a 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 nothing to justify a special
provision like s. 131(2)(b) being made to cover a case of procedural
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 (1) 57 C.W.N. 882.
L7SUP./65-7 552 limit prescribed by s.
131(2)(b) had expired. It thought that it was faced with two evil-, and that it
would be choosing the lesser ,of the two if it allowed the Corporation a chance
to collect its rates. With great respect, we find this line of reasoning
altogether unsupportable. A result flowing from a statutory provision is never
an evil. A court has no power to ignore that provision to relieve what it
considers a distress resulting from its operation. A statute must of course be
given effect to whether a 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 ascertainment of the valuation was one and continuous and
its only object was to ascertain the valuation and, therefore, the Court
annulling a valuation made on a wrong basis, must have power to make a 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
valuation, 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 valuation, it cannot be, said to possess that power so that
the supposed object may be achieved. Further, the object is not to make a
valuation 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 a thing which the Act did not countenance. The remand was futile. It
offended the Act as it ,deprived the 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 a general
valuation for the entire six yearly period mentioned in s. 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 additional construction in
the premises put up since the earlier assessment.
Objections had been taken by the appellant to
both these valuations tinder 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.
553 They were, therefore, 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
Corporation will pay the cost of these appeals.
Ramasawami, J. These two appeals are brought,
by -special 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, mission Row, Calcutta under the
provisions of the Calcutta Municipal Act, 1923 (Bengal Act III of 1923). 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 194950, 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, though -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 Presidency Small Cause Court,
Calcutta under the provisions of s. 183 of the Calcutta Municipal Act, 1951
which had in the meantime come into operation. This appeal was numbered as Municipal
Appeal No. 217 of 1954. The general revaluation of the premises was followed by
an intermediate valuation because certain new constructions had been made. At
the stage of the, intermediate, valuation, the annual value was assessed it Rs.
1,46,992/with effect from the first quarter of 1951-52, i.e., from April 1,
1951 again following the method prescribed under s. 127(b) of the Calcutta
Municipal Act, 1923). Upon in objection made by the, ass see the valuation was
reduced to Rs. 1,29,588/by the Deputy Commissioner 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. This appeal was numbered as Municipal Appeal No.
217 of 1954. In 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 he Calcutta 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 look the matter in appeal to
the Calcutta High Court which, by its 554 judgment dated August 3, 1959, upheld
the decision of the Presidency Small Causes Court that the valuation should be
fixed under s. 127(a) and not under s. 127(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 ordered 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
Presidency 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.
It is necessary at this stage to set out the
relevant provisions of the Calcutta Municipal Act, 1923. Section 131 deals with
the assessment of the annual valuation and the duration of the assessment. It
"131 (1)................ the Executive
Officer may make a fresh valuation of the lands and buildings in each such ward
under this Act, and the annual value of such lands and buildings in each such
ward shall, after such assessment, has been made by the Executive Officer, have
effect for a period of six years and may be revised thereafter by the Executive
Officer at the termination of successive periods of six years.
(2) Notwithstanding anything contained in
subsection (1) of the following conditions shall apply in the several cases
hereinafter specified, namely(a)................................
(b) any land or building the valuation of
which has been cancelled on the ground of irregularity, or which for any other
reason has no annual value assigned to it under this Act, may be valued by the
Executive Officer, at any time during the currency of the period prescribed in
respect of such land or building by sub-section (1) and such valuation shall
remain in force, and the consolidated rate shall be levied 555 according to it,
for the unexpired portion of such period." Section 139 provides as follows
"139(1) Any person who is dissatisfied
with a valuation made under this chapter may deliver at the municipal office a
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 is
received after the publication of the notice referred to in section 137 :
Provided that the Executive Officer may, if
he thinks fit, extend the said period of fifteen days to a period not exceeding
one month." Section 140 states 140. (1)AR such objections shall be
entered, in a register to be maintained for the purpose; and, on receipt of any
objection, notice shall be given to the objector of a time and place at which
his objection will be investigated.
(2) At the said time and place the Executive
Officer or a 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 register, 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 556 be accompanied by an extract from the register
of objections containing the order objected to.
(3) The provisions of Parts 11 and III of the
Indian Limitation Act, 1908, relating to appeals, shall apply to every appeal
preferred under this section.
(4) No appeal shall be admitted under this
section unless an objection has first been determined under section 140."
Section 142 states :
"142(1) Every valuation made by the
Executive Officer under section 131 shall, subject to the provisions 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
provisions of section 141, be final.
(3) An appeal from a decision made by the
Court of Small Causes under section 141 shall lie to the High Court."
Section 147 provides for the period for which the revised valuation is to
continue in force.
It is to the following effect :
"147. When the valuation of any land or
building is revised in consequence 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 take effect from the quarter in which the first
mentioned valuation would have taken effect, and shall continue in force for
the period for which the said first mentioned valuation was made, and no
longer." Section 164 makes provisions for the payment of the consolidated
rate and how far the payment is affected by objections to valuation. It states
as follows "164(1 )When an objection to a valuation has been made under
section 139, the consolidated rate shall, pending the final determination of
the objection, be paid on the previous valuation.
(2) If, when the objection has been finally
determined, the previous valuation is altered, then5 5 7 (a) any sum paid in
excess shall be 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
consequences of the revision of valuation and of cancellation of valuation 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 a valuation is cancelled on the ground of an irregularity, the Executive
Officer may, at any time during the currency of the period 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 SolicitorGeneral put forward the argument that the present case fell
within the purview of s. 131 (2) (a) and as the period of revaluation
commencing from July 1, 1949 was already complete the authorities of the
Calcutta Corporation have no power to make a fresh revaluation under s. 131.(2)
(b) of the Act. The contrary view was presented on behalf of the
respondent-Cor-poration 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, tinder that section, to the
commencement of the, period of valuation and will take effect for the entire
period of 6 years during which the valuation remained in force. In my opinion,
the argument put forward on behalf of the respondents must be accepted as
correct. In 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 proper sub-section to be
applied. The High Court accordingly set aside the valuation and ha-, remanded
the matter to 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 558 awaiting final adjudication. It is,
therefore, not correct to say that there has been a cancellation of the
valuation within the meaning of s. 131 (2) (b) of the Calcutta Municipal 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 a case of
revision of the valuation within the meaning of that section and the revised
valuation when finally determined will take effect retrospectively 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
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 contended 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 the valuation made by the
respondent and whatever be 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 a certain extent.
Against 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 Presidency 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 same
modification. In the operative part of the judgment the learned Judges have
"Since it is the duty of the Corporation
of Calcutta to determine the annual' value at the initial stage and 559 since
no such determination or ascertainment has as yet been 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 appeals in such manner as it likes. If the
amendment introduced brings the case under item 2 of the Notification of July
3, 1937, the assessee shall have the liberty to put in the deficit Court fee,
if any, at all. The learned 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 itself of the annual
value under the provisions of s. 127(a) of the Calcutta Municipal Act, 1923
after giving the parties adequate 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