J.S. Trivedi, J. - (1.) THIS civil revision is directed against the judgment of the Second Addl. District Judge, Allahabad, passed Under Section 476 of the Nagar Mahapalika Adhiniyam (hereinafter referred to as the Adhiniyam).
(2.) THE premises in dispute is a building, known as 1, Johnstonganj, Allahabad, comprising the Niranjan Cinema and a number of shops. The building is managed by the Niranjan Lal Bhargava Trust. In the quinquennial assessment for 1960 -65 the entire building was assessed to an annual value of Rs. 28,416. For the quinquennial period 1965 -70 the Nagar Mahapalika fixed the annual value of the premises at Rs. 45,000. The Trust filed an objection against the proposed assessment on 12 -12 -1964. By order dated 26 -2 -1965, Rs. 38,000 was fixed as the annual value of the premises in suit. An appeal Under Section 472 of the Adhiniyam was thereafter filed by the Assessee. The Judge, Small Causes, allowed the appeal and the annual value for purposes of assessment was maintained at Rs. 28,416. A second appeal Under Section 476 of the Adhiniyam was thereafter filed by the Mahapalika. The Second Additional District Judge, who disposed of the appeal, allowed the appeal and restored the order of the Subcommittee of the Mahapalika fixing the annual value at Rs. 38,000. Hence this revision. The order of the Sub committee dated 26 -2 -1965 is of two lines and is as under: Sri Hiralal Bhargava ne itraz pesh kiya. 38,000 rupaye ke assessment par ittefaq kiya. Prima facie, the order appears to be an order of agreement, but the order was never supported by the Mahapalika on that ground before the first or second appellate court or before me. It has been supported on merit. Sections 207 and onwards of the Adhiniyam are rules for the assessment and levy of property taxes. Property tax is levied on the annual value of the premises. Annual value is defined Under Section 174 of the Adhiniyam and Clause (b) of that section reads as under: In the case of a building or land not falling within the provisions of Clause (a), the gross annual rent for which such building, exclusive of furniture or machinery therein, or such land is actually let, or where the building or land is not let or in the opinion of the assessing authority is let for a sum less than its fair letting value, might reasonably be expected to be let from year to year.... It is not disputed that some portion of the building is let out to various tenants and the other portion is in the occupation of the Trust. The order of assessment, if it was not an order passed on agreement, was on the face of it an arbitrary order and cannot be permitted to stand, especially when the order does not disclose how the figure of Rs. 38,000 was arrived at. A commissioner was appointed by the court of first appeal to make a local enquiry about the rents given by the tenants and according to the enquiry of the commissioner a sum of Rs. 1200/ - per month as rent was paid by the occupier of Koko Hotel (Anand Niwas) and the rent included electric, water, furniture and lift charges. Two rooms were found vacant. According to the first appellate court the order of assessment was passed without considering the objections and was an arbitrary order. The lower appellate court, however, has not considered that aspect of the case and has passed an assessment order on some presumptions not borne out from the record of the case. The lower appellate court has taken the rent of the portion occupied by the tenants at Rs. 2,225 without taking into account the enquiry of the commissioner that the rent of the occupier of Koko Hotel included electric, water, furniture and lift charges. It has also not taken into account the fact that in Uttar Pradesh there is a statute known as the UP Control of Rent and Eviction Act which controls the rent of the buildings and under which a landlord as of right is not entitled to increase the rent beyond a certain limit. The lower appellate court had no jurisdiction to assume an authority in itself and arrive at an assessment value ignoring the definition of the annual value. In his judgment the lower appellate court has made the following observation: Only a few items were disputed and in respect of those disputed items a Vakil commissioner was sent by the learn ed Judge who reported vide 18 -C that the rent realised in respect of those items was correctly stated by the Mahapalika. This remark of the lower appellate court is incorrect. While the lower appellate court has accepted the report of the Vakil Commissioner, it has failed to consider that the rent of Koko Hotel included electric, water, furniture and lift charges.
(3.) IT has been strenuously argued by the learned Counsel for the Nagar Mahapalika that the order of the Mahapalika cannot be interfered with while exercising powers Under Section 115 Code of Civil Procedure. Reliance has been placed by him on Udai Bhan v. Lachman Dass : AIR 1955 All 666 which lays down that a wrong conclusion arrived at by the arbitrator did not amount to wrongful exercise of jurisdiction. The other case relied on by him is R.P. Mehta v. I.A. Sheth : AIR 1964 SC 1676. The only question involved in that case was whether under the Bombay Rents, Hotel and Lodging House Rates Control Act, Section 13(i)(g) applied or Section 13(i)(hh) applied. While disposing of the question of law in that case, their Lordships of the Supreme Court remarked that the High Court could not interfere in revision with a decision of the appellate court. The other cases relied upon by the learned Counsel for the Mahapalika are: C.L. Basra v. P.L. Basra : AIR 1960 All 590; Hari Shanker v. Girdhari Lal, AIR 1963 SC 698; Misrilal Parasmal v. Sadasiviah : AIR 1965 SC 553. The proposition of law laid down in these cases cannot be disputed. The observations made in these cases, however, do not in any way go to support the proposition that where an assessment of property tax is made arbitrarily or where an appellate authority exercises its jurisdiction by making an assessment of its own ignoring the basic requirements, the order of the appellate court cannot be challenged in revision. Assessment of a tax not made in accordance with law is an infringement of a fundamental right. No person can be deprived of his property otherwise than in accordance with law. The order of the lower appellate court therefore patently suffers from an irregular exercise of power vested in it.;