S.Chatterji, J. - (1.) The present Rule was issued at the instance of the petitioner No.1, the Ganges Manufacturing Company Limited, a public Limited Company and the petitioner No.2 being its General Manager challenging the vires of Sections 138 and 147(2) of the Bengal Municipal Act, 1932 and the notices dated 17.12.80, 18.12.80 and 22.12.80 as illegal and invalid. There is a prayer for rescinding the aforesaid notices, copies of which are Annexures "K", "L(i)" and "N" to the writ petition. It is stated that the factory/mill of the petitioner No.1 Company is situated within the jurisdiction of Bansberia Municipality. According to the writ petitioners, there has been arbitrary increase in the annual valuation of the said Holding No.53 now numbered as 55 in Ward No.10 of the said Municipality, without having regard to the provisions of the Bengal Municipal Act and there is unauthorised increase in the annual valuation on the basis of ad hoc valuation of buildings on purported market value including determination of ground rent from time to time. It is alleged that the respondents have deliberately withheld the actual basis and foundation of the assessment and inspite of repeated representations and/or reminders made by the petitioners to have access and/or for obtaining certified copy of the Statement and/or documents forming the basis of assessment. There is refusal on the part of the respondents to make available the certified copies of the documents forming the basis of assessment. There are averments in the writ petition to the effect that inspite of the objections raised by the petitioners from time to time, the increase in annual valuation has been made by the respondents without complying with the provisions of law. The Assessment Review Committee by its order dated 20th March, 1976 resolved to reduce the appreciation from 400% to 350% and the total annual value including the ground rent came to Rs. 11,61,580/- from Rs. 12,72,460/-. The petitioners have made the allegations that no objective and rational basis has been adopted for applying the purported appreciation to the buildings belonging to the petitioner No.1 and the ground rent has not been determined at any point of time with proper regard to the relevant provisions of the Act and/or the correct data and/or the materials. In response to the notices issued by the respondent Bansberia Municipality as to the increase of the annual valuation of the holding in question, the petitioners are alleged to have replied by letter dated 14th July, 1980 requiring certified copies of the documents viz :- (a) Assessor's assessment list; (b) Assessor's statement showing his calculation in arriving of annual value of Rs. 12,77,900/ in respect of holding; and (c) Assessor's report in support of his assessment. There was, however, an intimation by the Executive Officer of the said Municipality to the petitioners that the certified copies of the assessment list in respect of the holding relating to Items "A" and "B" may be given on the payment of requisite fees. There is also averments of the exchange of letters in this regard and there is serious challenge as to the notice dated 17th September, 1980, 18th December, 1980 and 22nd December, 1980 as wholly illegal, arbitrary and unconstitutional. The entire re-assessment sought to be made on the basis of calculation by the Senior/Junior Land : Reforms Officer and the same is arbitrary and void as alleged. The petitioners have mainly alleged that before initiating proceedings under sections 13g and 147(2} of the said Act it is incumbent upon the respondents to observe the Rules of natural justice and/or procedural justice.
(2.) Elaborating on this score, the writ petition has been filed on the grounds that there being no materials and/ or circumstances warranting the issuance of notice under section 138(2) of the Bengal Municipal Act, the notices and consequential steps in pursuance thereof are ultra vires the provisions of the said Act and also the notice under section 147(2) of the said Act is also illegal and invalid in law. It is incumbent upon the respondent to observe the rules of natural and/or procedural justice before initiating proceedings under sections 138 and under section 147(2) of the said Act and failure on the part of the respondents herein to do so in the facts and circumstances of the instant case renders the notice void ab initio. Furthermore, section 138 (1) (c) of the said Act is inconsistent and violative of the Article 14 of the Constitution of India and the absence of any guidelines confers arbitrary power on the Commissioners in the matter of assessment of annual valuation resulting 138 (1)(c) of the said Act violative, the Constitution, and said section suffers from inherent defects as to arbitrariness. The said section does not disclose that the authority concerned after forming an opinion objectively will consider the facts and circumstances of the case. Section 138(2) of the said Act must be construed to provide an opportunity to the parties concerned to the proposed intention of the authorities to alter and/or amend valuation but in the instant case, the authorities have initially decided to alter and/or amend the valuation and thereafter in colourable exercises and purported compliance with the provisions of section 138(2) of the said Act, have issued the notices and such notices are illegal and/or without jurisdiction. The acts done arid/or alleged to have been done by the respondents relating to the instant case are wholly unwarranted and uncalled for as submitted by the petitioners.
(3.) The writ petition is strongly contested by the respondent Municipality by filing affidavits. It is disclosed inter alia that by the impugned annexure "N" to the writ petition, Bansberia Municipality in the district of Hooghly increased the valuation and assessment in respect of the holding the petitioner No.1. The annual valuation was re-determined and the tax was re-assessed with effect from 4th Quarters 1980-81. The annual valuation was determined after the usual quinquennial assessment. As it as found that the ground rent in respect of the concerned holding of the Writ petitioner No.1 was incorrectly valued and the same was duly revised the correct amount and after due compliance with the relevant provisions contained in Bengal Municipal Act, 1932, the valuation and assessment in respect of the said holding were duly altered by amending the assessment it and the assessed tax was revised accordingly. As a consequence of the far reaching amendments being introduced to the said Act in respect Municipal tax, the said Municipality adopted a resolution for imposing of consolidated rate in respect of the holdings with effect from 1st April, 1983 and as such the valuation of the assessment of the concerned holding of the Writ petitioner No.1 has been revised upwards with effect from 1st Quarter 183-84: Though the said Municipality duly complied with the requirements of section 138(2) of the said Act, the writ petitioners did not avail the facilities of section 138 (3) of the said Act in so far as they did not refer any formal objection to such proposed valuation. In terms of the provisions contained in Rule 8 (b) of the Taxation Rules framed under section 215 of the said Act, the ground rent for the land comprising in e said holding was duly ascertained from the appropriate authorities. The amendment of the annual value and assessment of the said holding was duly made under section 138(1)(c) of the said Act after the correct ground rent was ascertained and after due compliance with the condition precedent contained in section 138(2) of the said Act. The writ petitioners, however, refrained from taking the benefit of section 138(3) of the said Act so far as they did not prefer any application for review and/or objection. It is submitted that even in terms of the provisions contained in section 138(4) of the said Act every alteration made under section 138(1) has been done in the instant case will be subject to the result of an application under section 148 of the said Act and shall only take effect in the beginning of the quarter next following that in which the alteration was made. Accordingly, the alteration which was made in the instant case was made effective with effect from 4th Quarter 1981. There is denial of all other allegations made in the writ petition as to the steps taken by the respondents in issuing the notices have not been justified. The petitioners have, however, controverted the assertions made by the contesting respondents and reiterated the stand taken by them in the original it petition. It is mainly argued on behalf of the writ petitioners that the notice under section 138(2) of the Bengal Municipal Act, 1932 issued on 17th February, 1980 addressed to Messrs. Ganges Manufacturing Company Limited proposing inter alia the Executive Officer under section 138(1)(c) of the said Act will fix the annual valuation of holding No.55, Rudra Main Road, Ward No.10 at Rs. 16,45, 700 and to reassess it on that valuation and such valuation has been increased on the ground rent which was incorrectly valued and the proposed alterations will be made on 13.10.1980 in the Municipal office at 5.00 p.m. and will take effect from the beginning on 4th Quarter 1980-81, is illegal and invalid. The said notice, copy of which is annexure 'K' to the writ petition is without jurisdiction according to them.;