Case: Shibji Khestshi Thacker Vs. Commissioners Of Dhanbad Municipality And Ors

At al l material times, holding No. 594, Ward No. 3 in the area of the urban Municipality, Dhanbad, was owned by the appellant and respondents /2, 3, 4 &5. On this holding, a Cinema House known as "Ray Talkie" was constructed in March,March 31, 1948, the Commissioners of Dhanbad Municipality served a notice on the appellant and the respondents 2 to 5, under Section 1. 15(2) of the Bihar and Orissa Municipality Act, 1922 (hereinafter referred to as the Act) demanding a sum of Rs. 900/as quarterly Municipalappellant and respondents 2 to 5, applied for review of the assessment. Thereupon, the Review Committee reduced the, Municipal Tax to Rs. 8 10/per quarter, i.e. Rs. 488/as holding tax and Rs. 465/as latrine, the assessees instituted a Title Suit No. 17/144 of 1949 in the Court of Munsif, Dhanbad, inter alia, praying for a declaration that the assessment was ultra vires and illegal inasmuch as it was not made under Section 9 8 (2), but under Section 9 8 (1 ) of the said Act The Munsif dismissed the Suit and the) dismissal was upheld in appeal by the District Judge, Purulia, under a judgment, dated June 17, 1952. A further appeal to the High Court by the assessees was dismissed on December 4,having been committed by the assessees in paying the tax, a demand notice, dated March 6, 1951, was served upon them requiring them to pay all arrear taxes then due, but they put off payment on one objection or the other. Subsequently, by their letter dated March 3, 195 1, the assessees raised, an objection on the ground that no assessment was made in respect of the holding in question. This letterwas considered by the Commissioners at a meeting held on November 19, 195 1. Through the Finance Committee, the assessment of holding tax was confirmed in the said meeting. Intimation of this confirmation was given to the assessees by a letter, dated December 18, 1.951.Thereafter, demand notices were issued to the assessees, calling upon them to pay the tax in arrears, but they failed to dothe preceding facts, the Commissioners of Dhanbad Municipality, instituted Suit No. 203 of 1953 in the Court of Subordinate Judge Dhanbad, against the appellant and respondents 2 to 5, for recovery of Rs. 12, 655/for the first quarterto third quarterin respect of the holding tax and latrine tax, as arrears of Municipal Taxes, in respect of holding N o. 616, Ward No. 3, Dhanbads in their written statements, inter alia, pleaded that the Municipality was not entitled to recover the tax demanded, because the original assessment made on the annual value of the holding in question, was illegal inasmuch as the assessment should have been made on persons and not the annual value of the holding. The other objection raised was that although a general provision under Section 106 of the Act had been undertaken by the Municipality inthe assessment of the holding of the defendants had not been revised with a mala fide and improper motive. The defendants did not get the advantage of a fresh assessment and as the old assessment and valuation lapsed on April 1, 1950, no tax could be realised from them on the basis of this lapsed assessment. They further pleaded that the alleged confirmation of the assessment of the holding on November 19, 1951 by the Commissioners, was illegal and without jurisdiction because no prior intimation about the alleged confirmation was given to them before issue of letter No.dated December 18,Trial Court by its judgment dated May 24, 1958, dismissed the Suit, inter alia, holding, that the failure, of the Municipality to revise the original assessment on the defendants holding during the general revision of assessments inwas a breach of the mandatory provisions of Section 106 of the Act. As a result, the old assessment on the basis of which the demand had been raised bad lapsed and there being no revised assessment of the holding in question, the Municipality was not entitled to realise any tax from the defendants with effect from April 1, 1950.Against that judgment, the Commissioners of Dbanbad Municipality preferred an appeal to the High Court at Patna, which allowed the appeal,that the defendants had been rightly assessed on the annual value of the holding and therefore the defendants liability under Section 100 in that respect could not be disputed;(ii) that the defendants had not bee n left out from the genera., assessment ofwith any mala fide or incorrect motive;(iii) that from a proper construction of the relevant provisions of the Act, particularly the) word "list" used in singular in sub section (2) of Section 105, and the expression completion of a new list" in subsection (2) of Section 1.06, the intention was clear that if the valuation and assessment of a particular holding is not revised for any good reason, then the assessment entered in the previous valuation and assessment list in respect of that holding will remain in force. It is only when a now list of valuation and assessment in respect of a particular holding, is complete, the assessment of that list will substitute the previous assessment based on the previous list. Since the defendants holding was left out from the general revision offor a valid reason, the suit demand based on the previous lists of valuation and assessment in respect of suit holding, could not lapse on April 1,the application of the, assessees, the High Court ;, ranted a certificate under Article 133 (1) (b) and (c) of the Constitution. Hence, this appeal.

Reasoning: Having perused the various relevant provisions referred to by Mr. Niren De, we are of opinion that under the scheme of the Act, the old assessment does not come to an end in respect of a holding the moment new valuation and assessment lists are ordered to be prepared by the Commissioners of the Municipality; nor is there anything to show that if a holding is left out from the general revisional assessment for any good reason, then, in respect thereof, the old assessment comes to an end after five years ending on the first day of the April next following the completion of a new revised list.Niren De placed emphasis on the word "all", immediately preceding the word "holdings" in the latter part of Section 102, and submitted that it indicates that no holding can be left out from the preparation of valuationis nobodys case that the appellants holding was left out from the old assessment. So far as the revised assessment is concerned. Section 102 has to be read not in isolation but in conjunction with Section 106. The language of Section 106 is flexible enough to enable the Commissioners to leave out for some good reason, any holding from the revision of the valuation and assessment lists. Th e Word "ordinarily", tones down the force of "shall which immediately precedes it, and indicates that the requirements with regard to revision of the assessment in every five years and to include all the holdings, are not absolute but only director y and can be departed from in extraordinary circumstances, or in the case of particular holdings for good reasons. This being the correct import of the word "ordinarily", it follows therefrom that in the case of a holding which is excluded from the quinquennial revision of assessment. the old valuation and assessment lists do not lapse but continue to remain in force till they are altered or amended in accordance with the procedure laid down in the Act. This position of the law is clear from a reading of the last clause of sub-section (2) of Section 106, which provides that every valuation and assessment entered in a valuation or assessment list shall be valid from the date on which the list takes effect in the municipality and until the first day of the April following the completion of a new list. The key word repeatedly occurring in the sub-section is "list" which appears to have been advisedly used in singular, in contradistinction to "lists employed in plural, in sub-section (2) such distinctive use of the word "list" in these sub-sections, puts it beyond doubt that in respect of a holding which, for some reason, is not included in the five-yearly revision, the old valuation or assessment list continues till a new Est is completed and the 1st day of April following such completion is reached.In this view of the matter, the High Court was right in holding that the demand based on the previous list of valuation and assessment of the suit holding, did not lapse on the first of April 1950 for the mere reason that a general revision of valuation and assessment lists in the Municipality was undertaken and the appellants holding was not subjected to thatfirst contention of Mr. De is accordinglyregard to the second contention of Mr. De, we find that this plea was not taken at any stage before the Courts below. It was not even faintly adumbrated in the written statement filed by the defendant-appellant in the Suit. No issue was framed on this point, nor was any such argument advanced before the High Court. It is a mixed question of law and fact. It cannot be allowed to be raised at this stage, for the first time, in special appeal, as the plaintiff-respondent had no opportunity to lead evidence to show that the requirements of the law had been complied