(1.)A short important question arises for consideration in this second Appeal. The appeal is directed against a decision of the learned Additional District Judge, Alipore, decreeing, in appeal, the Respondent rate-payer's suit for, inter alia, a declaration that a particular assessment is ultra Tires of the Bengal Municipal Act and the Rules, framed there under, and so not binding on the Plaintiff and for a permanent injunction, restraining the Appellant Municipality, which was the Defendant in the trial court, from realising any rate under and in pursuance of the said assessment. The suit was dismissed by the trial court, mainly, upon the ground that the particular action, in the facts of the case, was not maintainable in the Civil Court. That dismissal, however, was set aside by the learned Additional District Judge and the Plaintiff's suit was decreed by him upon the contrary view that, in the matter of the impugned assessment, the Municipality had acted, in flagrant violation of the statute [Section 149(2) of the Bengal Municipal Act and Rules 8, 9, 10 and 13 under the said Act] and, accordingly, the said assessment was ultra vires and could be questioned in the Civil Court in spite of Section 150 of the aforesaid Bengal Municipal Act. Against this decision, the present second Appeal has been filed by the Defendant Municipality.
(2.)In the view we are taking, it is not necessary to set out the facts in any great detail. All that is necessary to state is that the disputed assessment (which was in respect of holdings Nos. 103 and 104 of the Appellant Garden Reach Municipality, belonging to the Respondent Union Jute Company Limited, for the quinquennial period, commencing with April 1, 1956), as eventually made by the Administrator, representing the Review Committee under the Statute (vide Section 148), affirming the Assessor's assessment, was, upon the finding of the lower appellate court, not open to challenge in the instant second appeal, at least, on the materials on record, made without complying with and in utter disregard and contravention of Section 149(2) of the above Act and the connected Rule 13 of the statutory Rules there under. That section and the Rule (Rule 13) to quote only its relevant part, run as follows:
149 (2). The Committee shall give notice to the applicant of the time and place at which his application will be heard, and after taking such evidence and making such inquiry as it may deem necessary, in the presence, of the objector or his agent if he appears, pass such orders as it thinks fit in respect of the application.
Rule 13 (Relevant part).
(3.)On the date, so fixed for hearing, or, any date, to which such hearing may be adjourned, the Committee shall take such evidence and make such enquiry as it may deem necessary, in the presence of the objector or his agent, if he appears, and shall then pass such orders on the application as it thinks fit.