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Petitioner: MUNICIPAL COMMITTEE, MYMENSINGH VS Respondent: PROVINCE OF EAST BENGAL
P L D 1963 Dacca 956
P L D 1963 Dacca 956
Before Hassan and Idris, JJ
MUNICIPAL COMMITTEE, MYMENSINGH‑---Appellant
versus
PROVINCE OF EAST BENGAL‑---Respondent
First Appeals Nos. 54 and 55 of 1951, decided on 19th July 1962.
Bengal Municipal Act (XV of 1932), Ch. V‑Assessment of tax challenged as being without jurisdiction‑Civil Courts not debarred from entertaining suit‑Want of jurisdiction not on same footing as non‑compliance with procedural provisions.
D. C. Bhattacharyya for Appellant.
Md. Jani Alam for Respondent.
JUDGMENT
IDRIS, J.‑These two appeals, namely, Appeals Nos. 54 and 55 of 1955 arise out of the other Class Suits Nos. 92 and 93 of 1953 respectively of the 1st Subordinate Judge's Court, Mymen singh, by the Province of East Bengal, for declaration that the assessments made by the Mymensingh Municipality after illegally splitting up the holding of each suit into separate holdings are illegal, void and ultra vires.
2. Plaintif's case in the Other Class Suit No. 92 of 1953 is that the Bidyamoyee Girls' H. E. Szhool and the Bidyamoyee. Girls' Hostel standing on a piece of land held by the plaintiff under one title and surrounded by one set of boundaries constitutes one holding, and that at the last general assessment in the year 1952, the Municipality spitted up this holding into two separate holdings and made separate assessments.
3. In Suit No. 93 of 1953 it has been alleged that the ten buildings, namely, (1) Old Zilla School buildings, now Settlement Record Room, (2) Harding School building, now Land Acquisition building, (3) New Civil Court building, (4) Civil Surgeon's Office, (5) Magistrate's and Collector's Court building, (6) New Collec torate building, (7) Excise Depot, (8) Registration Office building, (9) P. W. D. S. D. O.'s Office Building and (10) New two storeyed Munsif's Court Building belonging to the plaintiff stand on a piece of land held by plaintiff under one title and surrounded by one set of boundaries and constitute one holding but that the Municipality illegally splitted up the holding into, 10 new holdings.
4. It was further asserted in both the suits that the assess ments were also illegal as defendants in assessing the value of each of the buildings added 50 per cent. of the cost of the construction with the original cost of construction contrary to the provision of section 128 of the Bengal Municipal Act, 1932 (Bengal Act. XV of 1932) adapted by Pakistan Law and Orders, 1947, hereafter called the Act.
5. The case of the defendants inter alia is this: The Bidyamoyee Girls' H. E. School and Bidyamoyee Girls' Hostel stand on separate sites with different boundaries. The lands on which the school and the hostel stand are separate holdings and were always assessed as such. .
6. The ten buildings in the other suit stand on different pieces of lands with different compounds and distinct boundaries. These buildings are used by different occupants for different purposes. Consequently, the lands on which these buildings stand do not constitute one holding.
.7. As to the valuation and assessment it has been alleged that in view of ‑ the general rise in the price of building materials, 50 per cent. of the original cost were added to the cost of construction in determining the market value of the buildings and that the assessments were not contrary to the provision of the Act. It has also been pleaded that Civil Court has no jurisdiction to entertain the suits and enter into the question whether the lands on which the different buildings stand from the same holding or not, or whether the assessments were legal.
8. The learned Subordinate Judge held that the Civil Court had jurisdiction to maintain the suits; that the land on which the Bidyamoyee Girls' H. E. School and the Hostel stand cons titutes one holding; and that the land on which the ten buildings of the other suit stand also forms one holding and that the assessment made by the Municipality after splitting up these holdings were illegal, void and ultra vires. The learned Sub ordinate Judge remarked that in making the valuation, .the defendants had the right to add 50 per cent. of the cost of construction with the original cost in view of the abnormal ‑rise in the cost of construction at the time of assessment of the valuation of the buildings. But the learned Subordinate Judge has held that the assessment in respect of the buildings of both the suits were done in contravention of the provisions of the Act. Accordingly both the suits were decreed. Hence these appeals.
9. Mr. D. C. Bhattacharyya, the learned Advocate for the appellants, has frankly conceded that the land on which the Bidyamoyee Girls H. E. School and the Bidyamoyee Girls' Hostel stand constitutes one holding. But he has strenuously contended that the lands on which the 10 buildings of the other suit stand from different holdings having different compounds with distinct boundaries and that these buildings are used by the owner for different purposes through different persons. It has been further contended that in view of the provisions of section 129 of the Act, the Civil Court has no jurisdiction to entertain the suits regarding determination of the holding in question. It has also been contended that the assessments were made according to the provisions of section 128 of the Act and that the Civil Court has no jurisdiction to question the legality or illegality of the assessments.
10. The definition of "holding" as given in clause (21) of section 3 of the Act is as follows:
" holding means land held under one title or agreement and surrounded by one set of boundaries:
Provided that where two or more adjoining holdings, form part and parcel of the site or premises of a dwelling house, manufactory, where house or place of trade or business, such holdings shall be deemed to be one holding for the purposes of this Act.
Explanation.‑Holdings separated by a street or other means of communication shall be deemed to be adjoining within the meaning of this proviso."
11. According to Tarikul Alam Mazumdar (D. W. 2), Bidyamoyee Girls School and the Bidyamoyee Girls Hostel are in one compound encircled by a compound wall with one exit. In view of this evidence adduced, it is to be held that the land on which the Bidyamoyee Girls' School and the Bidyamoyee Girls' Hostel stand constitutes one holding.
12. It appears from the schedule to the plaint of the Other Class Suit No. 93 of 1953 that the Settlement Record Room formerly Zilla School, Hardings School Building, now Land Acquisition Office, new Civil Court Building, Civil Surgeon's Office, Magistrates' and Collectors' Court Building, new Collec torate Building, Excise Depot, Registration Office Building P. W. D. S. D. O.'s Office Building, and new two‑storeyed Munsif's Court Building have been treated by the Municipality as ten holdings, namely, holdings Nos. 27, 29, 31, 33 33‑A, 34, 38, 72 and 75. The learned Advocate for the appellant has given us that the Settlement Record Room, Land Acquisition Office, new Civil Court Building, Civil Surgeon's Office, Magistrates' and Collectors' Court Building, new Collectorate Building, Excise Depot, Registration Office Building, P. W. D. S. D. O.'s Office Building and new two‑storeyed Munsif's Court Building stand on parts of C. S. Plot Nos. 725, 725, 686, 697, 698, 698 690, 698, 698 and 697 respectively. It will thus appear that the Settlement Record Room and Land Acquisition Office stand on plot No. 725, new Civil Court Building stands on plot No. 686, Civil Surgeon's Office on plot No. 697, Magistrates' and Collectors' Court Building, new Collectorate Building, Registration Office Building, I'. W. D. S. D. O.'s Office Building on plot No. 698, new two‑storeyed Munsif Court Building on plot No. 687 and Excise Depot on plot No. 690. So the relevant plots are C. S. Plots Nos. 686, 687, 690, 697, 698 and 725.
13. According to the evidence of Muhiuddin Ahmed, (P. W. 1) the ten buildings stand on a land having the same boundaries, namely. Alexander Castle to the north, Municipal land to the west, C. and B. Road to the south, Municipal Land and the Brahmaputra to the east. His evidence is that Bar Library intervenes between the new Civil Court Building and the Land Acquisition Office. It has been contended that in view of the evidence of P. W. 1, it cannot be held that the boundaries of the new Civil Court Building standing on plot No. 686 and the Land Acquisition Office standing on plot No. 725 cannot be the same. The C. S. maps Exhs. 4 and 4 (a) show that to the south of plot No. 686, there are plots Nos. 687 and 688. Bar Library is on plot 688. C. S. Plot No. 687 occupies the major portion of the southern portion of plot No. 686. Plot No. 686 is to the east of plot No. 687 occupying a minor portion of the southern boundary of Plot No, 686. In the Settlement Record Plot No. 687 also has been recorded as Bar Library. The C. S. operation took place in 1910 and 1911. There is no dispute that the new two‑storeyed Munsif's Court Building stands on plot No. 687. The C. S. maps show that to the south of plot No. 687 is plot 725 on which land Acquisition Office stands. To the south of Plot No. 725 is the road.
14. P. W. 1 also stated that there is the Silver Jubilee Club between the two‑storeyed Munsif's Court Building and the Land Acquisition Office but to the south of Plot No. 725 on which the Land Acquisition Office stands there is the road. So after excluding the portions occupied by the Bar Library and the Silver Jubilee Club, Plot Nos. 686, 687 and 725 have the common road as the southern boundary. It is in evidence that the Municipal land is to the west of these plots.
15. Excise Depot standing on plot No. 690 is to the east of plot No. 686 intervened by the road corresponding to plot No. 685. To the east of plot 690, there are plots Nos. 697 and 598 intervened by the road corresponding to plot No. 694. To the east of plot Nos. 697 and 698 are the Municipal Roads and the river Brahmaputra.
16. To the north of plots Nos. 686, 690 and 697 there is the Alexander Castle. The road corresponding to plot No. 694 is between plots 697 and 698. Only plot No. 694 has been marked as a Municipal Road in the settlement record. But it is admitted by D. W. 1 that all the pathways within the compound of the Government buildings of Suit No. 93 belong to the Government.
17. To the south of plot No. 698 is the road. Thus it will appear that the ten buildings stand on a piece of land surrounded by one set of boundaries.
18. There is no dispute that the plaintiff has title in the land on which the ten buildings of Suit No. 93 stand. In the ten buildings there are offices of different Departments of the Government and these are used for the common purpose of administration.
19. It is in evidence that the Government allotted portions of land covered by these boundaries to District Board, Co operative Societies, Postal Department, Bar Association and Muktears Association. Bar Library, Muktears' Library, Post Office, District Board and Co‑operative Societies have their respective buildings on the portions allotted to them by the Government. These have been treated as different holdings and the plaintiff has not claimed any relief with regard to these. For the allotment of portions of the land covered by the same boundaries, it cannot be held that the land on which the ten buildings stand does not constitute one single holding. As the land on which the ten buildings are situated is held by the Government under the same title and the land is surrounded by the same set of boundaries, the land constitutes one holding.
20. In support of the contention that the land on which the ten buildings stand cannot constitute one holding, reference has been made to the cases of Syed Shah Hamid Hossain v. Patna Municipality (17 C W N 812), Chairman, Municipal Corporation of Faridpore v. Gour Gopal (A I R 1957 Cal. 592) and Commissioners of Patna Municipality v. Naba Gobinda Choudhury (51 C W N 183). In the case reported in 17 C W N 812, the question for consideration was whether the term "holding" was used with reference to the occupier or the owner. It has been held that the basis of a "holding" is occupation and the term "holding" is used with reference to land held by an occupier under the title and surrounded by one set of boundaries. In the present case, the Government is owner as well as occupier of the ten buildings. So from this case it cannot be held that the land on which the ten buildings stand constitutes separate holdings.
21. The fact in the case reported in A I R 1927 Cal. 592 were that there two plots of lands belonging to the plaintiff with a building on each of them. One of these buildings was divided into three compartments and the two and these 5 compartments were in occupation of 5 different tenants. On the north as well as on the south of buildings, there were two plots of the lands which formed open spaces which were not divided and they were common to all the compartments in the buildings. It has been held in that case that the premises were not surrounded by one set of boundaries and that it is on the basis of occupation and not on the basis of ownership that the question as to whether certain premises from the holding of not is to be deter mined. Notwithstanding this finding it was decided that the premises formed two holdings and not five. Moreover, in the present case, the ten buildings are not in the occupation of any tenant but there are in the occupation of the owner, that is, Govern ment. This case is of no help to the appellants. The facts of the case in 51 C W N 183 are different from those in the present case. There were two plots of land and the two plots were used for two distinct markets, one of them for sale of fish and the other for sale of vegetables. It has been held that the Municipality did not act illegally in treating there as separate holdings but the questions of market does not arise in the facts of the present case.
22. The learned Advocate for the appellants has referred to section 129 of the Act and has contended that the Municipality has the exclusive jurisdiction to determine what land constitutes what holding and that the decision of the Municipality cannot be questioned in the Civil Court. Section 129 is as follows: --
"For the purposes, and subject to, clauses (21) of section 3‑--
(a) If a question arises whether any land is within one holding, the decision thereof shall rest with the commissioners at meeting ;
(b) the Commissioners at a meeting shall determine what class of ownership shall be accepted as the test for determining whether lands within a municipality are held under one title are argument."
Section 129 shows that the decision of the Municipality is to be subject to clause (21) of section 3 of the Act. But in the present case, the decision has not been subject to clause (21) of section 3 as the Municipality decided that the buildings formed separate holdings notwithstanding the fact that the land on which the Bidyamoyee Girls' H. E. School and Bidyamoyee Girls Hostel stand is held under one title by the Government and is covered by the same boundaries. This is also the case with the regard to the land on which the ten buildings of the other suit stand. The assessments in both the cases have been without jurisdiction being in violation of the provisions of section 129 read with clause (21) of section 3 of the Act. We do not, however, agree with the view of the learned Subordinate Judge that the decision about the different holding was without jurisdiction on the ground that such a decision was not made in a meeting of the Commissioner as stated in section 129 (u) of the Act. It is not the plaintiff's case that the decision was not made by the Commissioners at a meeting.
23. It has been contended that in view of the provisions of sections 123, 128 and 150 of the Act, assessments made by the Municipality cannot be questioned in the Civil Court.
24. Section 123 deals with the power of the Commissioner to impose taxes. Section 128 is relating to the mode how valuation of a holding is to be determined. Section 150 provides that assessment can be questioned only under the Act.
25. Reference has been made to the cases of Manessur Dass and another v. The Collector and Municipal Commissioners of Chapra (I L R 1 Cal. 409), and Municipal Commissioner of the Patna Municipality v. Naba Govinda Chowdhury in support of the contention that assessment cannot 1?e questioned in the Civil Court. In the case reported in 1 L R CA. 409, plaintiffs brought the suit for reduction of tax after their appeal to the Commissioners against enhancement of tax was rejected. It has been held that the suit was not maintainable. But the present suits are not for reduction of rent but for declaration that the assessments are illegal, void and ultra vices.
26. In the case reported in 46 C W N 830 the assessed brought the suit for declaration that the assessment was ultra vires and illegal on the ground that the Municipality had not followed the proper procedure as laid down in section 138 (2) in altering or amending the assessment, or that no notice under section 147 (2) was given to the assessed before enhancing the assessment. It has been held that such a suit was not maintainable. In the present case the plaintiff has questioned the assessment not on the ground that the Municipality had not followed the procedure as laid down in section 138 (2) or has not served notice under A section 147 (2) of the Act. In the present case the assessments were challenged on the ground that these were without jurisdiction. As the assessments have been made without jurisdiction in violation of section 129 read with clause (21) of section 3 of the Act, the assessments have been illegal. When a Municipal Corporation acts in contravention of the provisions of the statute, it is open to the Civil Court to declare that the assessment is illegal. This finds support in the case reported in 17 C W N 812, the relevant portion being at page 815. The learned Subordinate Judge rightly declared that the assessments were illegal and without jurisdiction. There is no ground to interfere with the judgment and decrees of the learned Subordinate Judge.
The result is that the appeals are dismissed with the costs, with one set of hearing fee.
HASSAN, J.‑----I agree.
S.B./A.H.
Appeal dismissed