Decided on August 08,1963



- (1.)THIS is a second appeal against an order dated the 20th November 1958 passed by the learned Additional District Judge of Alipore by which an order passed by the learned- Subordinate Judge, 3rd Court, Alipore dated the 31st day of May 1956 was reversed. The facts are briefly as follows: the respondent, the Royal Calcutta Golf Club is a body corporate, limited by guarantee, registered under Act VI of 1892. It owns land of the area of 49 Bighas and 2 cottahs being holding no. 18, Golf Club Road, at Tollygunge in the suburbs of Calcutta. The lands belonging to the Golf Club are maintained and used for the playing of golf and there are two courses, each course comprising of 12 holds in 18 greens with 18 tees. On the land there are also some structures and sheds forming part of the Golf Club. As I have stated above, the Golf Club (hereinafter referred to as "club")is situated in Tollygunge. Originally the area was within the jurisdiction of the Tollygunge Municipality.
(2.)THE subject-matter of this case relates to the quinquennial assessment of the said club in respect of the said holding, commencing from the first quarter of 1952-53. On or about the 12th of July 1952 the Tollygunge Municipality was superseded and in exercise of power conferred by sec-554 of the Bengal Municipal Act, 1832 Government appointed Mr. P. N. Bose, as Administrator. Meanwhile what had happened was that the quinquennial assessment list was prepared and general notice was given on or about the 17th July, 1952. The club was assessed to an annual valuation of Rs. 1,00,000/ -. Special notice was also served upon the club inasmuch as the previous assessment of Rs. 40,000/-, had been increased to Rs. 1,00,000/ -. However even before the special notice was issued or served, the club preferred an objection under section 148 of the said Act. Section 148 provides that any person who was dissatisfied with the amount assessed upon him or with the valuation or assessment of any holding, may apply to the Commissioners to review the amount of assessment or valuation as the case may be. By virtue of this order of supersession, and in terms thereof, Mr. P. N. Bose was entitled to perform the duties of the Review Committee, appointed under section 149 of the said Act. It is provided therein that the committee shall give notice to the applicant of the time and place by which the application of objection will be heard and after taking such evidence and making such enquiry as it may deem necessary, in the presence of the objector or his agent, pass such order as it thinks fit. In this particular case, notice was given by Mr. 3. Bose and the objection was heard. On the 23rd July 1952. Mr. Bose acting as the Review Committee passed an order reducing the valuation from Rs. 1,00,000/- to Rs. 75,000/- The wording of the order which appears to have been scribbled on a copy of the notice is as follows:
"mr. Banerjee appears for the objector. About 500 bighas of land by Golf Club heard. The neighbouring Jala lands are left out at Rs. 2/- per cottah p. m. I have found this golf land must be highly developed land and this is better land. After considering the largeness of the area it would be fair and quite reasonable to take the rent at Rs. 0/12/- annas per cottach and valuation of the, structures, valuation reduced to Rs. 75,000/ -. "

(3.)UPON this the club objected and on the 23rd of March 1953 a suit was filed by the club against the said Mr. P. N. Bose as the Administrator or the authority appointed by the Government of West Bengal to administer the Tollygunge Municipality and the state of West Bengal. By notification published on the 31st March 1953 the Government of West Bengal, in exercise of power under section 594 of the Calcutta Municipal Act, included the Tollygunge Municipality within the jurisdiction of the Corporation of Calcutta. Thereafter, the plaint was amended by substituting the Corporation of Calcutta in the place of the defendants. In the plaint filed in the suit, the above facts were mentioned and the valuation of the said holding belonging to the club was challenged. In the prayer of the plaint the plaintiff asked for cancellation of the valuation and for a declaration that the pretended valuation was a nullity. There was a prayer appended to the plaint asking for a judgment and decree directing the refund of the entire amount collected under the pretext of taxes upon the basis of the said pretended annual value. I shall have something to say with regard to the last mentioned prayer presently. This suit came up for hearing before the 3rd Subordinate Judge at Alipore. The learned Subordinate Judge framed four issues. The main issue was of course whether the assessment and the annual valuation as made was valid and proper but incidentally the following issue was also raised. "is the plaintiff entitled to any refund of the taxes paid in excess, on the annual value assessed by the defendant compared with the taxes as would properly be payable on the lawful and proper annual value determined by the court ?" the learned Subordinate Judge was of the opinion that the assessment and the annual valuation had been properly made. The point was raised before him that the assessment and the annual valuation was not in accordance with the provisions of section 128 (1) or (2) of the Bengal Municipal Act. He, however, was of the opinion that it was in accordance with the said provisions, as well as in accordance with the principles of natural justice and he found no reason to disturb the assessment and valuation made by Mr. Bose, as aforesaid. The suit was accordingly dismissed with costs. Against this judgment and the decree passed thereon, the club preferred an appeal and this appeal came to be heard by the learned Additional District Judge, Alipore. On the point as to whether the assessment or the annual valuation has been correctly prepared by the municipal authorities, the learned District Judge differed with the trial court and held that it was not so done. The learned Judge went on to hold that the provisions contained in section 128 (1) or (2) had not been complied with, nor the rules that have been framed under the Bengal Municipal Act. He, therefore, allowed the appeal and the judgment and decree of the court below were set aside. A decree was passed declaring assessment of the annual value of the holding in question at Rs. 75,000/- to be illegal, ultra vires and without jurisdiction and the said valuation was cancelled and set aside. In addition to this, the learned District Judge passed a decree for the sum of Rs. 4813/- to be paid by the defendant to the plaintiff. Against this order this appeal has been preferred.

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