Decided on July 28,1972

Sri Ganesh Properties Private Ltd. Appellant


A.K. Mukherjea, J. - (1.)This matter arises out of an application under Article 227 of the Constitution of India and Sec. 115 of the Code of Civil Procedure made by the Petitioner Ganesh Properties Private Ltd. challenging the validity and correctness of the order passed by the learned Judge, Third Court, Court of Small Causes, Calcutta, on April 30, 1966, in connection with an 'appeal' filed by the Petitioner company against an assessment made by the Calcutta Corporation of certain premises belonging to the Petitioner. The matter came to be heard before a Division Bench consisting of P.N. Mookerjee and Amiya 'Kumar Mukherjee JJ. Their Lordships, however, have referred the entire matter for a final disposal by the Special Bench under chap II, Rule (1), prov. (iii) of the Appellate Side Rules. The main question which, according to their Lordships, arises for consideration by the Special Bench in this case is as follows:
On whom, in a proceeding under Sec. 183 of the Calcutta Municipal Act, 1951, before the Court of Small Causes, does the onus lie in the matter of the correctness or otherwise of the impugned assessment?

(2.)The short facts of the case leading to this reference are as follows : The Petitioner is the lessee of a multi -storeyed building at 12B Lower Circular Road, Calcutta. The building contains a large number of rooms which are all let out at various rates of rent to a large, number of tenants. At the time of the general revaluation of the premises made by the Calcutta Corporation with effect from the fourth quarter of 1956 -57 the premises were assessed by the Corporation of Calcutta at an annual valuation of Rs. 3,27,502 on the basis of the gross annual rents which the building at the time of the assessment might be reasonably expected to fetch from year to year less certain statutory allowance. The assessment was made admittedly under the provisions of Sec. 168 of the Calcutta Municipal Act, 1951, (hereinafter referred to as the said Act). The quarterly bills were issued by the Corporation of Calcutta on the basis of the said assessment and these bills were regularly paid by or on behalf of the Petitioner company. It is stated that the said premises were again assessed by the Corporation of Calcutta with effect from the first quarter of 1960 -61 even before the expiry of six years which is the normal duration of valuation of any building in accordance with Sub -section (2) of Sec. 172 of the Act. The annual valuation was increased to Rs. 5,63,072 and the ground for such increase was started to be 'substantial alternations and improvements to the building'. Apparently the Petitioner company objected to such intermediate assessment before expiry of the normal period of six years. But such protest was ignored. The Petitioner company denies that there was or is any alteration or improvement substantially or otherwise to the building made between the date of the general revaluation of 1956 -57 and the date of the intermediate revaluation of 1960 -61. The Petitioner's objection was in the first instance, heard by the First Deputy Commissioner of the Corporation who decided on February 27, 1963, in favour of the Corporation. The Petitioner complains that no evidence was taken by the First Deputy Commissioner and the entire decision was arbitrary. The Petitioner, then, filed an appeal against the decision of the first Deputy Commissioner before the Court of Small Causes in terms of Sec. 183 of the Act. In that appeal the Petitioner challenged the intermediate valuation on various ground with which we are not seriously concerned in this reference. After the filing of the appeal the Corporation appeared before the Court of Small Cause and contested the Petitioner's appeal. An application was made on behalf of the Petitioner company that since the enhancement of the original valuation by an intermediate valuation was sought to be made by the Corporation on the ground of alleged substantial alterations and improvements in the said premises between the general revaluation of 1956 -57 and the intermediate revaluation of 1960 -61 the onus of proving such substantial alterations and improvements devolved on the Corporation as it was not possible for the, Petitioner company to prove a negative fact 1 by tendering evidence. The learned Judge by a judgment and order dated April 30, 1966, rejected this contention of the Petitioner and placed the onus entirely on the Petitioner company. The view that the learned Judge had taken was this that it is an admitted principle of Taw that the Appellants have to begin the case. It was further pointed out by the learned Judge that the Corporation had made an assessment which was under the law to become final subject to the results of the objections, before the Deputy Commissioner and that if the Assessee now fails to show that the assessment is prima facia wrong the Corporation is under no obligation to prove that the revolution was justified. The learned Judge further pointed out that the Appellants were in the know of the facts and it was, therefore, fit and proper that they should begin the case. Being aggrieved by this order the Petitioner company came for a revision of the order before this Court and as we have already said, the matter has now come up to this Special Bench for final decision.
(3.)In our opinion, the question, the question that has been raised is a rather short point of law which does not admit of such controversy. The little controversy that has arisen is because of an unfortunate expression in one of the several reported decisions on the point. We, therefore, propose to deal with the cases that have been cited before us and then take up for discussion the principle involved.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.