Anil Kumar Sen, J. - (1.) An appeal under S. 183 of the Calcutta Municipal Act, 1951, (hereinafter referred to as the said Act) at the instance of the assessee against an order dated December 27, 1962, passed by the Commissioner, Corporation of Calcutta under S. 188 thereof determining the annual value of premises No. 18/1, Dr. Suresh Sarkar Road for the purpose of assessment to consolidate rates with effect from 2nd quarter of 1959-60 was dismissed by the Additional Judge, Court of Small Causes, Sealdah, by his judgment and order dated July 8, 1965. It was so dismissed not on merits but because in the learned Judge's view the appeal must fail on the ground of defect of parties when the Commissioner being a necessary party to the appeal was not made a party respondent. Corporation of Calcutta was the sole respondent to that appeal but according to learned Judge when the assessment impugned was made by the Commissioner in exercise of powers expressly vested in him by the Statute, the assessment could not be challenged only in the presence of the Corporation but must need be done in the presence of the Commissioner too. He arrived at the said conclusion relying on the decision of this Court in the case of R. D. Singh v. Corporation of Calcutta, 69 CWN 278 . Correctness of the view so taken along with the correctness of the judgment and order of the learned Judge is the subject matter of challenge in this further appeal to this Court under S. 183 (3) of the said Act.
(2.) We have carefully considered the view taken by the learned Judge and on such consideration, we have come to the conclusion that the view so taken by him is not correct. Such an error is due to non - appreciation of the true nature and scope of an appeal under Section 183 of the Act and misreading of the decision of this Court in the case of R. D. Singh v. Corporation of Calcutta, 69 CWN 278 relied on by him. Section 183 provides for a statutory appeal against the order disposing of an objection under Section 182 to any assessment made under S. 172 also under S. 188 (1) in view of S. 188(2). It is in this process that the order of assessment itself has been subjected to a judicial review by the Civil Court. The nature and scope of such an appeal under S. 183 was considered by this Court in the case of Corporation of Calcutta v. Jalajbasini Debi, 32 CWN 378 and therein it was laid down "the appeal which is given to the Court of Small Causes by the Calcutta Municipal Act is really a proceeding by which an administrative act is challenged before a judicial tribunal. It is quite clear that it is intended that it should not be treated as ordinary appeal from a civil court but is an occasion on which the party complaining must have an opportunity of adducing evidence if he wants, to show that the decision of which he complains is wrong." "Remedy provided by S. 183 is therefore, against the order on the objection to the assessment under S. 172 or under section 188(1). Such being the position any assessment under section 188(1) stands in no different position than the assessment under section 172(2) for the purpose of an appeal under section 183 so that if the Commissioner is not a necessary - party in an appeal arising out of an assessment under section 172(2), why he should be so in the case of an appeal arising out of an assessment under S. 188(1). The order made either under section 172(2) or S. 188(1) enures to the benefit of the Corporation of Calcutta, as the said Corporation then becomes legally entitled to realise consolidated rates on the basis thereof. Similarly such an order imposes the liability on the assessee so that those are the two necessary parties to any proceeding under section 183 for review of such an assessment. Such a proceeding is totally different from a suit for declaration and injunction where a person institutes such a suit in respect of any order passed by the Commissioner or any other authority specially vested with powers to make such an order when he feels that his legal right has been wrongfully infringed by an illegal or void order as above entitling him to a declaration and injunction from the Court. There the order is otherwise final under the statute. In such a suit, the Civil Court does not enter into the validity or otherwise of the order except so far as the order infringes the legal right of the person suing for the relief. Remedy in such a suit is for enforcement of the legal right by the declaration and injunction prayed for. In such cases the authority making the order in exercise of his own powers vested in him may be considered a necessary or proper party. But the said principle cannot be extended to a proceeding prescribed by the Statute for review of the order itself by way of an appeal. Here the order does not become final in case an appeal is filed until it is disposed of and then only in terms of the appellate order. Remedy provided by the statute is against the order itself. Here the appellate authority is to review the correctness of the order of the authority from whose order the appeal is provided and in such a proceeding the original authority is not a necessary party any further than a trial court is not a necessary party to the appeal before the appellate Court. There the parties to be affected by the appellate decision are the only necessary parties.
(3.) In the case of Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 Supreme Court was considering whether a proceeding under Article 226 of the Constitution for issue of a writ in the nature of Certiorari and under Article 227 of the Constitution could be maintained In the absence of the tribunal whose decision was the subject matter of challenge before the Court and it was held that it was so maintainable and the absence of of the tribunal did not render the proceeding bad for defect of parties. It was there observed : "But if the true scope of certiorari to quash is that it merely demolishes the offending order, the presence of the offender before the Court though proper is no t necessary for the exercise of jurisdiction or to render its determination effective". The principle so - laid down in respect of proceedings under Article 226 and 227 of the constitution would aforiori be applicable to statutory appeals as in Section 183 of the said Act.;