Manohar Lall, J.:— This is an appeal by the Patna City Municipality who was the defendant in a suit instituted by the respondent on the 11th April 1942 for a declaration that an additional assessment made on a certain holding in occupation of the plaintiff was ultra vires of the municipality.
The suit was decreed by the courts below on a finding that there had been no additions and alterations in the holding in question, and therefore, no increase in the valuation of the holding had been made to justify, the additional assessment.
The facts are these: The holding in question belongs to the plaintiff who had let it out to the Regent Cinema along with some building contiguous thereto. In 1935-1936, the tax payable for the holding was assessed at Rs. 41-13-6 per quarter, and this assessment continued up to the 11th March 1939 on the 8th of March 1939, the plaintiff received a notice from the Municipality in which they proposed to fix the municipal tax at Rs. 191-3-0 a quarter on the ground that the valuation had increased by reason of additions and alterations made thereto. The plaintiff preferred an objection which was heard by the Appeal Committee consisting of three Commissioners which rejected the objection ignoring the report of the Vice-Chairman that there had been no additions and alterations in the holding. After the objection was overruled, the order for enhancement was passed on the 19th December 1939. This was the cause of action for the suit.
The main defence of the appellant was that there had been an increase in the valuation of the holding on account of additions and alterations, and secondly, that by reason of section 119 of the Bihar and Orissa Municipal Act (hereinafter referred to as the Act) the civil court has no jurisdiction to question the validity of the assessment.
The courts below have concurrently come to the conclusion on the question of fact against the appellant, as stated, already. That finding is binding in second appeal.
Mr. Girijanandan Prasad argued that the Civil Court has no jurisdiction to question the validity of the assessment and that the only remedy of the plaintiff was to appeal to the Assessment Committee which he did, and as he failed there, his remedies are exhausted. On the other hand, it was argued by Mr. Jadunandan Prasad on behalf of the respondent that if the provisions of the Act are carefully considered, it will appear that the jurisdiction of the Civil Court is barred only in that instance where the Act specifically declares that on the satisfaction of the Commissioners certain consequences ensue but where no such words are to be found, then the action of the Municipality can be challenged in the Civil Court if the conditions giving the Municipality jurisdiction do not exist in fact. This distinction appears to be correct. (See sections 82 and 107 on the one hand and contrast with sections 145 and 148).
The ambit of the jurisdiction of the Civil Court was examined by Mukherjee, J. in the leading case of The Chairman of Giridih Municipality. The case law was examined by me at length sitting with Beevor, J. in Commissioners of Darbhanga Municipality where I pointed out that the Civil Court has jurisdiction to enquire whether a person is an occupier of an holding within the municipality, as the jurisdiction of a municipality to assess a person depends upon whether he is an occupier, and the commissioners cannot give themselves jurisdiction to assess a person who is not an occupier by a wrong decision of facts. I also observed that the remedy provided to an assessee under section 116 of the Act is an alternative one, and the, finality given in section 117(3) to a decision of the Committee is the finality between the assessee and the commissioners. In my opinion the same principle must apply when considering section 107(d) and other sub-clauses in that section. Take for instance section 107(1)(b): if the municipality substitute for the name of the owner or occupier of any holding the name of any other person who has not succeeded by transfer or otherwise to the ownership or occupation of the holding, the aggrieved party has a right to get his title declared in the civil court, and then, the order of the municipality, if found to be wrong, would be altered. Same observations apply to sub-clause (a). It seems to me therefore, that the jurisdiction, of the municipality to revalue or reassess any holding on the ground of an increase in the value by reason of additions and alterations must depend upon the correctness of the finding whether there has been any addition or alteration. The extent of the additions and alterations cannot be questioned in the Civil Court, but the fact whether there has been any addition or alteration must be liable to be reviewed by the civil court.
It was then argued on behalf of the appellant that as the plaintiff did take recourse to file an objection under section 116 of the Act and appealed to the Assessment Committee, he chose to waive his rights to come to the civil court. The short answer to this argument is that given by a Division Bench of this Court in the case of Shiva Prasad, where it was observed: “No doubt in this case the plaintiff did file an objection under section 116 of the Act, but having regard to the fact that the assessment itself was ultra vires he need not have done so and could have at once brought a suit in the civil court. The plaintiff cannot be in a worse position than if he had filed no objection at all under section 116 of the Act.” The learned Judges thus distinguished the case of the Chairman of the Arrah Municipality but that question does not arise for decision in the present case, and I prefer to express no opinion upon the correctness of that decision.
The result is that the appeal must be dismissed with costs.
Mahabir Prasad, J.:— I agree.
S.H
Appeal dismissed.