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  • sections of the Calcutta Municipal Act (Act III of 1923,) (B.C).
  • sec. 141 of the Calcutta Municipal Act, 1923.
  • sec. 142(3) of the Calcutta Municipal Act,
  • sec. 141 of the Calcutta Municipal Act,
  • secs. 127 to 138 of the Municipal Act,
  • Land Acquisition Act (Act
  • LAND ACQUISITION ACT
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Citation Codes
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citation codes
Case Number
Advocates
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  • sections of the Calcutta Municipal Act (Act III of 1923,) (B.C).
  • sec. 141 of the Calcutta Municipal Act, 1923.
  • sec. 142(3) of the Calcutta Municipal Act,
  • sec. 141 of the Calcutta Municipal Act,
  • secs. 127 to 138 of the Municipal Act,
  • Land Acquisition Act (Act
  • LAND ACQUISITION ACT
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

On 17 January 1923 the Executive Officer of the Corporation, exercising powers under secs. 127–138 of the Calcutta Municipal Act, assessed the property at No. 6, Raj Mohan Street, Calcutta for the consolidated rate of Calcutta at an annual value of Rs. 14,310. Under sec. 139 the assessee lodged an objection. Under sec. 140 the Executive Officer investigated and reduced the assessment to Rs. 10,278. The assessee appealed under sec. 141 to the Court of Small Causes, and the learned Chief Judge further reduced the assessment, holding the annual value to be Rs. 5,508. The Corporation of Calcutta appealed to the High Court under sec. 142 of the Calcutta Municipal Act.

Two members of the High Court (Page, J. and Graham, J.) delivered reasons. The principal contested matters included whether the High Court could re-examine the factual valuation made by the Court of Small Causes (question of whether the appeal was governed by sec. 100 of the Code of Civil Procedure as a second appeal) and whether the evidence before the Court of Small Causes justified disturbing the Executive Officer's assessment.

Legal Issues Presented

  1. Whether the High Court, on appeal under sec. 142 of the Calcutta Municipal Act, is precluded from overriding factual findings of the Court of Small Causes by reason of sec. 100 of the Code of Civil Procedure (i.e., whether this is a second appeal within sec. 100 CPC).
  2. Whether the Executive Officer's functions under secs. 127–140 of the Calcutta Municipal Act are administrative rather than judicial in character, and the consequences of that classification for appellate review.
  3. On whom lay the burden of proof (onus) when valuation is challenged before the Court of Small Causes and on appeal — specifically, whether the assessee had to prove that the Executive Officer's valuation was wrong.
  4. Whether the evidence adduced by the assessee (the gomastha's testimony and other material before the Court of Small Causes) was sufficient to overturn the Executive Officer's assessment.

Arguments of the Parties

Assessee's (Respondent's) Arguments

  • The assessee contended that the High Court had no jurisdiction to entertain an objection to the valuation determined by the Court of Small Causes because the determination of annual value was a finding of fact which the High Court could not override in a second appeal under sec. 100 of the Code of Civil Procedure.

Corporation's (Appellant's) Arguments

  • The Corporation argued that the finding of fact by the learned Chief Judge of the Court of Small Causes ought not to be sustained because, under sec. 142, an order passed by the Executive Officer (subject to the Court of Small Causes' decision) is final and the onus was upon the assessee to rebut the correctness of the Executive Officer's valuation.
  • The Corporation called no evidence before the Court of Small Causes and contended that, on the evidence led by the assessee, the Executive Officer's order ought to be affirmed.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Durga Das Rakhit v. Queen-Empress That the Collector, when valuing land under the Land Acquisition Act, acts in an administrative and not a judicial capacity. The Court relied on this authority by analogy to support the conclusion that the Executive Officer's functions under secs. 127–140 of the Calcutta Municipal Act are administrative rather than judicial.
Ezra v. Secretary of State for India (per Lord Robertson) Observations that the official fixing a value should have access to departmental information and endeavour to fix value administratively; and that where a judicial ascertainment is desired the matter may be referred to the Court. The Court cited these observations to explain legislative policy favouring administrative settlement of assessments and to justify treating the Executive Officer's valuation function as administrative; the Court further drew the inference that an aggrieved party may obtain a judicial determination if desired.

Court's Reasoning and Analysis

The opinion contains two sets of reasons (Page, J. and Graham, J.) that converge on key conclusions. Their analysis proceeded in several linked stages:

  1. Jurisdiction and the nature of the appeal:
    • Page, J. held that the appeal to the High Court under sec. 142 of the Calcutta Municipal Act is founded on the special jurisdiction conferred by the Municipal Act and is not an appeal under the Code of Civil Procedure. Therefore sec. 100 CPC (which limits interference with findings of fact in a second appeal) does not automatically bar the High Court from re-examining factual determinations made below.
    • Even if sec. 100 CPC were assumed to apply, Page, J. concluded the present appeal did not fall within sec. 100 because the order of the Court of Small Causes was not an appeal from an order passed by a judicial officer but was a review of an administrative executive order.
    • Graham, J. agreed that the appeal was properly constituted and was not a second appeal under sec. 100 CPC; because the Court of Small Causes' decision was on an original executive order, the High Court could go into evidence and decide on merits.
  2. Character of the Executive Officer's functions:
    • Page, J. analyzed secs. 127–140 and concluded the Executive Officer performs administrative, not judicial, functions when ascertaining annual value and investigating objections. He relied on analogy to the Collector's role under the Land Acquisition Act and on the authorities Durga Das Rakhit and Ezra for the proposition that valuation in this statutory scheme is administrative.
    • He emphasized legislative policy that preliminary assessments for taxation should be settled administratively, with the assessing officer using departmental information and informal enquiry rather than being constrained by formal rules of evidence.
  3. Burden of proof (onus):
    • Graham, J. examined the statutory scheme (secs. 131, 138–142) and concluded that orders passed by the Executive Officer at the preliminary stages are final subject to the appellate rights provided. When the matter comes before the Court of Small Causes it is "res integra" and the party challenging the Executive Officer's assessment (the assessee, who was appellant in the Small Cause Court) bears the burden of adducing evidence to show the assessment is erroneous.
    • Page, J. likewise treated the onus as being on the assessee to satisfy the Court that the valuation should be adjusted.
  4. Evaluation of the evidence:
    • The only evidence for the assessee before the Court of Small Causes was oral testimony by Abdul Rahman, the assessee's gomastha. Page, J. detailed multiple deficiencies in that testimony as recorded in the opinion: no period or year stated for the Rs. 510 per month figure; unclear whether Rs. 510 represented rent for whole or part of the house; absence of account books or rent receipts; failure to state what was, in his opinion, a proper sum for annual value; admission that the premises had been let at Rs. 1,250 per month around February 1923, without producing the lease (which was said to have been cancelled in June 1923 when the lessee absconded after failing to pay four months' rent).
    • Page, J. observed that the best evidence of reasonable rent is what was actually paid or payable, and noted that the Executive Officer's assessment (Rs. 10,278) equated to about Rs. 940 per month, which was materially less than the admitted letting at about Rs. 1,250 per month at the time. He concluded the assessee failed to discharge the burden to show the Executive Officer's valuation was excessive or wrong.
    • Graham, J. agreed that the evidence was wholly insufficient and criticized the Court of Small Causes for effectively shifting the onus to the Corporation by noting the Corporation did not contradict the assessee's evidence; rather, the correct inquiry was whether the assessee's evidence itself sufficed to overturn the Executive Officer's assessment.
  5. Conclusion from reasoning:
    • Both judges concluded that the assessment made by the Executive Officer (Rs. 10,278) ought not to have been disturbed on the record before the Court of Small Causes, and that the High Court had power to re-examine the factual findings in this statutory appeal.

Holding and Implications

Holding:

DISPOSED OF: The High Court allowed the appeal, set aside the order of the learned Chief Judge of the Court of Small Causes, and restored and affirmed the Executive Officer's assessment of Rs. 10,278. The Appellants (the Corporation of Calcutta) were awarded their costs of the appeal; the hearing-fee was assessed at two gold mohurs.

Implications:

  • Direct effect: The Court reinstated the Executive Officer's assessment of Rs. 10,278 (equivalent to about Rs. 940 per month) for No. 6, Raj Mohan Street and ordered costs in favour of the Corporation.
  • Procedural and legal consequence expressly stated by the Court: an appeal to the High Court under sec. 142 of the Calcutta Municipal Act is not a second appeal under sec. 100 of the Code of Civil Procedure, and in such appeals the High Court may reconsider findings of fact reached by the Court of Small Causes because the Executive Officer's original valuation work is administrative rather than judicial in nature.
  • The opinion emphasizes the allocation of onus: where an assessee challenges an Executive Officer's valuation before the Court of Small Causes, the assessee must adduce sufficient evidence to show the valuation is wrong; mere unsupported or defective oral testimony is insufficient.
  • No broader new doctrine beyond the application and explanation of existing principles (as discussed in the cited authorities) is explicitly asserted in the opinion; the decision operates on the facts and statutory construction set out in the reasons.

Judges delivering reasons: Page, J. (principal reasons) and Graham, J. (concurring reasons). Final order: Appeal allowed; order of Court of Small Causes set aside; Executive Officer's assessment restored; costs to Appellants; hearing-fee two gold mohurs.

    The Corporation Of Calcutta v. Sheikh Keamuddin (Saheb In Vakalatnama) .

    The Judgment of the Court was as follows:—

    Page, J.:— This is an appeal from an order of the learned Chief Judge of the Court of Small Causes passed under sec. 141 of the Calcutta Municipal Act, 1923. It appears that on the 17th of January 1923 the Executive Officer of the Corporation pursuant to the powers with which he was invested under secs. 127 to 138 of the Municipal Act, assessed the property in suit No. 6, Raj Mohan Street, Calcutta, for the consolidated rate of Calcutta at an annual value of Rs. 14,310. Under sec. 139 of the Act the assessee lodged an objection to the amount of the annual value which had been assessed upon his property. Under sec. 140 the Executive Officer investigated the assesee's objection, and passed an order reducing the amount of the original assessment from Rs. 14,310 to Rs. 10,278. The assessee, being dissatisfied with the order of the Executive Officer, appealed to the Court of Small Causes pursuant to sec. 141 of the Act. The learned Chief Judge of the Court of Small Causes further reduced the assessment, and held that the annual value of the house at the time of the assessment was Rs. 5,508. The Corporation of Calcutta have preferred the present appeal under sec. 142 of the Act from the decision of the learned Chief Judge of the Court of Small Causes. It was contended by the learned Advocate who appeared for the assessee that this Court had no jurisdiction to entertain an objection to the amount of the valuation which had been assessed by the learned Chief Judge of the Court of Small Causes because the determination of the annual value of the premises was a finding of fact which this Court under sec. 100 of the Code of Civil Procedure could not override in second appeal. In my opinion, there is no substance in this contention.

    The appeal to the High Court under sec. 142 is not preferred under the Code of Civil Procedure, but pursuant to the special jurisdiction conferred upon the Court of Small Causes and the High Court under the Calcutta Municipal Act. Further, even assuming that sec. 100 of the Code of Civil Procedure is applicable, in my opinion, this appeal is not an appeal Within the ambit of sec. 100 of the Code of Civil Procedure, because the order passed by the learned Chief Judge of the Court of Small Causes was not an appeal from an order passed by a judicial officer. The scheme of the Calcutta Municipal Act provides that in the first instance the Executive Officer should ascertain by such means as are available to him the annual value of the premises to be assessed, and such annual value “shall be deemed to be the gross annual rent at which the land or building might at the time of assessment reasonably be expected to let from year to year, less, in the case of a building, an allowance of ten per cent for the cost of repairs and for all other expenses necessary to maintain the building in a state to command such gross rent.” Having estimated the annual value of the premises as best he could in the light of such information as was available to him it became the duty of the Executive Officer to give the notices provided in the Act in order that any person dissatisfied with the valuation might lodge an objection against it. An objection duly lodged is then to be investigated by the Executive Officer and after the investigation has been concluded, an order will be passed by the Executive Officer stating the amount which he holds to be the annual value, and this order is recorded in the official register. In my opinion in performing the functions prescribed under secs. 127 to 140 of the Calcutta Municipal Act the Executive Officer is-acting in an administrative and not in a judicial capacity. That this is so, I think is clear from a consideration of the relevant sections of the Act, but if the analogous functions of the Collector under the Land Acquisition Act (Act I of 1894) are regarded, it will be observed that the powers of the Collector are wider than those with which the Executive Officer under the Municipal Act is invested, and yet it has been held that in performing his functions with respect to the valuation of land acquired under the Land Acquisition Act the Collector is acting in an administrative and not in a judicial capacity, Durga Das Rakhit v. Queen-Empress(1) and Ezra v. Secretary of State for India(2). The reasoning upon which those cases were based is applicable in the present case, and, in my opinion both upon principle and upon authority the functions of the Executive Officer under secs. 127 to 140 of the Calcutta Municipal Act are those of an administrative and not of a judicial officer. Both in India and in England it is the policy of the legislature that in the preliminary stages of assessment for local and general taxes the assessing officer should endeavour amicably to settle assessments without recourse to litigation and without the investigation being circumscribed by the restrictions of the law of evidence.

    “It is, to say the least, perfectly intelligible that the expert official charged with the duty of fixing a value should be possessed of all the information in the hands of the department, and should at the same time avail himself of all that is offered at the enquiry, his ultimate duty being not to conclude the owner by his so-called award, but to fix the sum which in his best judgment is the value and should be offered. It is not implied in this observation that the Collector would be precluded by anything in the statute from inviting at the enquiry the criticism of the owner on any information he had in his hands, if he thought that in the circumstances this would advance knowledge.’ [Per Lord Robertson in Ezra v. Secretary of State for India]. His Lordship further observed that “if a judicial ascertainment of value is desired by the owner, he can obtain it by requiring the matter to be referred by the Collector to the Court.” These observations of the Judicial Committee are not only apposite in the present case, but in my opinion, set out the general policy of the legislature in connexion with assessments for local or general taxation. The learned Advocate for the assessee, however, endeavoured to distinguish the cases relating to land acquisition upon the ground that under the Land Acquisition Act a person dissatisfied with the valuation of the Collector is entitled to call upon the Collector to refer the question of the valuation to the Court, whereas under sec. 141 of the Calcutta Municipal Act, it is provided that “any person dissatisfied with the order passed on his objection may appeal to the Court of Small Causes.” But the language in which the two enactments are couched does not connote any real difference in the jurisdiction which is exercised. In my opinion, the functions exercised by the Collector and the Executive Officer respectively are substantially if not identically the same; in each case the officer acts in an administrative capacity, and if the party concerned is dissatisfied with the result of the officer's investigation into the assessee's objection to the valuation, it is open to the assessee to have the valuation adjusted in a judicial proceeding by the Court. From the order of the Court of Small Causes an appeal lies to the High Court under sec. 142(3) of the Calcutta Municipal Act, but in my opinion, that is not a second appeal within the ambit of sec. 100 of the Code of Civil Procedure, and in such an appeal it is open to the High Court to reconsider the findings of fact arrived at by the Court of Small Causes. In support of the appeal the Corporation contended that the finding of fact arrived at by the learned Chief Judge of the Court of Small Causes ought not to be sustained for this reason, that under sec. 142 of the Act an order passed by the Executive Officer subject to the decision of the Court of Small Causes is final and, the onus being Upon the assessee to rebut the correctness of the valuation arrived at by the Executive Officer, that he had failed to make out his case. The Corporation called no evidence before the Court of Small Causes. They contended upon the evidence adduced by the assessee that the order of the Executive officer ought to be affirmed. The only evidence on behalf of the assessee was that of his gomastha, who stated that he let out certain rooms at a rental of Rs. 510 per month. It was upon that evidence that the learned Chief Judge of the Court of Small Causes, based his decision, but, in my opinion, the evidence of Abdul Rahman, the assessee's gomastha, was wholly insufficient to justify the learned Chief Judge in disturbing the order of the Executive Officer. Abdul Rahman did not state for what period or in what year he collected Rs. 510 per month as rent for the premises. He did not state whether Rs. 510 represented the rent of the whole house, or only of part of the house. He did not produce his master's account books showing the rental for that house. He did not produce any rent receipts to support his oral testimony. He did not state that Rs. 1,250 a month was not a proper and reasonable rent which a landlord might have expected to realise for No. 6, Raj Mohan Street, in January 1923, nor did he state what, in his opinion, was a proper sum to be taken as the annual value of the premises at the time of the assessment. On the contrary, the witness admitted that in February 1923, about the time when the assessment was made, the premises had been let at Rs. 1,250 a month; but the lease was not produced, and the witness added that the lease was cancelled in June 1923, and that the lessee absconded after having failed to pay four months' rent. The best evidence of what reasonably might be expected to be obtained as rent for premises at any particular period is the rent what was actually paid or payable, although, of course, that evidence is not conclusive of the matter. Having regard to the evidence adduced before the learned Chief Judge of the Court of Small Causes, in my opinion, the order that the Executive Officer passed after investigation of the assessee's objection ought not to have been disturbed. The Executive Officer's assessment of Rs. 10,278 is equivalent to a rent of about Rs. 940 per month. That was considerably less than the Rs. 1,250 per month for which the premises were in fact let at or about the time when the assessment was made. In my opinion, the assessee failed to sustain the burden which was upon him to satisfy the Court that the valuation at which the Executive Officer had arrived was either excessive or wrong.

    In my opinion, this appeal ought to be allowed; the order of the learned Chief Judge of the Court of Small Causes set aside, and the assessment of Rs. 10,278 by the Executive Officer restored and affirmed. The Appellants will be entitled to their costs of this appeal, the hearing-fee being assessed at two gold mohurs.

    Graham, J.:— I agree. There are two preliminary matters which require decision before dealing with the merits of this appeal, firstly whether the appeal is in proper form, and whether it is a first or second appeal; and, secondly there is the question of the burden of proof, and whether it lay upon the Corporation, now the Appellant, to justify the order of assessment, or upon the assessee, the present Respondent, to show that the assessment was wrong. The decision on the first point is necessary in order to see what our powers are in dealing with the appeal. If the appeal is a second appeal and comes within the purview of sec. 100 of the Code of Civil Procedure, then we are in that case precluded from going into the facts; and, as there is evidence, however meagre that evidence may be, to support the finding of the Court of appeal below, that finding must stand, and there is an end of the matter. If, on the other hand, it is a first appeal from an original order, then we can go into the evidence and deal with the appeal on its merits. In my judgment the appeal has been filed in proper form. It is clearly not a second appeal falling with sec. 100 of the Code of Civil Procedure, as the appeal to the lower Appellate Court was not against a decree, but was against an executive order.

    Then as to the question of onus it seems to me that it was clearly upon the assessee, who was the Appellant before the Small Cause Court. In this connection a brief reference may be made to certain sections of the Calcutta Municipal Act (Act III of 1923,) (B.C). Under sec. 131 the assessment of the annual value is made by the Executive Officer of the Corporation. Under sec. 138, that Officer is required to issue notice on the assessee when the valuation is made for the first time, or is increased. Sec. 139 provides for notice of objection to the valuation. Under sec. 140, such objections are required to be investigated by the Executive Officer, or by the Deputy Executive Officer. Against an order under sec. 140, an appeal is provided for in sec. 141, to the Small Cause Court and under sec. 142, sub-sec. (3) there is a further appeal to this Court. It is important to note that under sub-sec. (1) of sec. 142 every order passed by the Executive Officer under sec. 131 is subject to the provisions of Secs. 139, 140 and 141, final. Similarly under sub-sec. (2) of this section every order passed by the Executive Officer or Deputy Executive Officer under sec. 140 is, subject to the provisions of sec. 141, final. It is thus clear that the orders passed at the first two stages by the Officers of the Corporation are final subject to the right of appeal which is provided for in the Act. The Appellant challenged the assessment or the value upon which that assessment was based. It was, therefore, incumbent upon him to show that the order complained of was wrong. From a judicial point of view the matter is res integra when it comes before the Small Cause Court, and it then becomes the duty of the assessee, the Appellant, to adduce necessary evidence in order to satisfy the Court that the assessment is erroneous.

    The question then arises whether the Respondent in the present case discharged the onus which was upon him. In my opinion, he signally failed to do so. My learned brother has dealt with the evidence adduced by him. The Appellant did not himself go into the witness-box and give evidence in this case. He deputed his gomostha who gave verbal evidence to the effect that, the annual value was only Rs. 510. No document of any kind was produced before the Court. No receipt was forthcoming. In my opinion the evidence, such as it is, is wholly insufficient for the purpose of discharging the onus which was upon the assessee. The learned Chief Judge of the Small Cause Court has observed in his judgment as follows: “The Corporation argues that because a ??? was in force in April 1923, that is the correct basis of a valuation. But they do not contradict the Appellant's evidence that the lessee had left and was paying no rent. It seems clear that this lease was taken during the boom and that the value of the house is Rs. 510 a month.” It seems to me that the learned Judge approached the case from a wrong standpoint, and that virtually the effect of his judgment is to place the onus upon the Corporation for he goes on to say that the Corporation did not contradict the Appellant's evidence. The real point, it seems to me, was whether the evidence adduced by the Appellant was sufficient in itself to show that the assessment was wrong.

    For these reasons I agree that the appeal must be allowed and with the order which my learned brother has made.

    C.C
    Appeal allowed.

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    The Corporation Of Calcutta v. Sheikh Keamuddin (Saheb In Vakalatnama) .
    (Jun 20, 1927)