Authored By : Richard Garth, Arthur Wilson

Richard Garth, C.J.

1. This is an appeal against an order made by the Courtbelow, discharging a rule nisi which had been obtained for a writ ofcertiorari, to bring up an assessment made by the Commissioners of the Town ofCalcutta for the purpose of quashing it.

2. The rule was applied for by Nundo Lal Bose and PasupatiNath Bose, who are the owners of a family dwelling-house in Bagbazar Street,upon which the assessment was made; and the ground of the application was, thatthe assessment was illegal, the Commissioners having made it upon a principlewhich the law did not allow.

3. The learned Judge of the Court below was of opinion thatthe assessment was made upon a wrong principle; but he considered that inmaking it the Commissioners were acting within their powers, and consequentlyhe had no authority to interfere.

4. The matter has now come before us on appeal; and, as tothe facts of the case, or the general law applicable to the issuing of thecertiorari, there seems little or no question.

5. The authority of this Court to remove the proceedings ofinferior Courts in the exercise of their judicial functions, is undoubted. Itis an authority derived from the old Supreme Court, and is similar to thatwhich was exercised by the Court of Queens Bench in England; and, if theCommissioners in this case were exceeding their jurisdiction in making theassessment, it seems clear that we have the power to quash it upon certiorarinotwithstanding the provision in Section 17 in the Calcutta MunicipalConsolidation Act, 1876.

6. That section merely means that the assessment shall befinal and conclusive when the Commissioners have made it in the exercise oftheir powers see Rex v. Moreley 2 Burr. 1041; Rex v. Plowright 3 Mod. Rep. 95;but if they have acted without jurisdiction the certiorari is not taken away bya clause of that kind; and the want or excess of jurisdiction may either beshown upon the proceedings themselves,, or may be brought before this Courtupon affidavits. See Rex v. Long 1 Man. & E. 139; Rex v. Sheffield andManchester Railway Company 11 Ad. & E. 194.

7. I, therefore, entirely agree with the learned Judge inthe Court below that the only real question in the case is, whether theCommissioners in making this assessment were acting within their powers.

8. Let us see, therefore, what their powers are:

By Section 64 of the Act, the Commissioners at the QuarterlyMeeting to be held in October of each year, are to fix the rates, at which therates and taxes levied under the Act are to be imposed for the succeeding year.Then by Section 88 they are to impose upon all houses and land within the townof Calcutta certain annual rates, arid, amongst others, a house-rate, which isto be calculated on the annual value of such house and land; and, lastly, bySection 104, the estimated gross annual rent at which any such house or landmight reasonably be expected to let from year to year, shall (for the purposeof any rate to be imposed under the Act) be held and deemed to be the annualvalue of such house or land.

9. Now, for the purpose of determining what the powers ofthe Commissioners are in imposing these rates, I think that Sections 88 and 104must be read together, the one being explanatory of the other. The rates whichthe Commissioners impose are to be calculated on the annual value of theproperty rated (Section 88); and what is meant by the annual value of theproperty rated is the gross annual rent at which such property might beexpected- to let from year to year (Section 114). These being the powers of theCommissioners, let us now see what they did in this particular case.

10. The family dwelling-house of the applicants was rated inOctober 1883 at Rs. 4,500 a year; and Mabatab Chunder Mullick, the assessor tothe Corporation, describes in paragraph 10 of his affidavit the principle uponwhich it was rated.

11. After stating that the house and premises in questionform the joint family dwelling-house of the applicants, and that it isdifficult to determine what is a reasonable rental for such houses which arebuilt, not with a view to letting, but for the residence and convenience of theowners, he goes on to say: "In assessing the said premises No. 65,Bagbazar Street, I estimated the total expenditure on the building and land atRs. 1,80,000, and I assessed the gross annual rent at which the said house andpremises might reasonably be expected to let from year to year at Rs. 4,800,being at the rate of 2f per cent, on the said sum of Rs. 1,80,000.

12. From this assessment the applicants appealed to the Commissionersunder Section 114 of the Act, and their appeal was heard on the 15th of January1884.

13. On this occasion Baboo Sharoda Cham Mitter, a vakeel ofthis Court, appeared on behalf of the applicants. He says, in his affidavit,that he pointed out to the Commissioners that the former assessment of thehouse in question was made by Mr. Williamson (of the firm of Mackintosh, Burn& Co.) at a rental of Rs. 115, and he produced certificates both from Mr.Williamson and from Baboo Nilmdney Mitter (who is a Civil Engineer and Surveyorwell acquainted with the neighbourhood in which the house is situate) to theeffect, that the house would not let from year to year for more than Rs. 250 amonth.

14. He then says in paragraph 9 of his affidavit: "Thesaid Commissioners, however, would not listen to my contention, and said thatthey could not place any reliance on those two certificates as against theassessment made by their own assessor; and although they were perfectly awarethat the house and premises in question would not, if let, produce Rs. 250 amonth, and probably not Rs. 200 a month, being a native family dwelling-house,and situate in an out-of-the-way place; consequently the probable rent thepremises might yield could not be the criterion of assessment, and consideringthe size of the buildings they did not think that an assessment of Rs. 4,800per annum was a high assessment,; but, inasmuch as I had argued the appeal, andhad formerly been one of the Commissioners of the Town of Calcutta, they would,for my sake, reduce the annual value to Rs. 4,500, and adjudicated accordinglythat the said house and premises should be assessed for house rate at theannual value of Rs. 4,500."

15. It seems to me that this statement of Baboo Saroda ChamMitter is virtually uncontradicted. I am satisfied from the affidavits that theCommissioners adopted the assessment of their own surveyor, based, as they knewit was upon a percentage of the estimated cost of the buildings in entiredisregard of the principle,, which they were bound by law to adopt as the basisof their assessment, namely, the gross annual rent at which the house might beexpected to let from year to year.

16. It may be that the Commissioners on the hearing of theappeal might have reasonably required the attendance of Mr. Williamson; andthat his evidence and that of Baboo Nilmoney Cham Mitter should have beenbrought before them in the regular way, and not by the mere production of acertificate. But their decision did not rest upon any point of this kind. Theyadhered to their own surveyors assessment upon the ground that it was properlymade, and they refused to be guided by the principle laid down in Section 104of the Act.

17. In this it seems to me they acted beyond their powers.They had no right whatever to make the assessment upon any other basis thanthat which the Act prescribes. The principle upon which they ascertained theannual value of the premises appears to me to have been obviously fallacious;but whether it was so or not, it was an arbitrary test, and one which the lawdoes not sanction.

18. The assessor might just as well have estimated therental upon the amount of the applicants private income as upon the originalcost of the building.

19. It may be, no doubt, that in assessing joint familyproperty of this nature, some difficulty may often arise. The principle ofrating upon which the Commissioners are directed to proceed is the same whichis adopted in England; and similar difficulties arise there in the case ofgentlemens parks and mansions which are laid out for residential purposes, andnot for sale or letting. But such properties are, nevertheless, constantlyrated upon the basis of their annual letting value.

20. It is, of course, no part of our duty to say how such valuationsshould be made. We have only to see that, in making them, the Commissioners actwithin their powers. As they have failed to do so in this instance, I thinkthat the order of the Court below should be reversed, and that the rule nisifor the certiorari against the Corporation should be made absolute.

21. The applicants will be entitled to the costs of the ruleagainst the Corporation in both Courts upon scale No. 2.

Arthur Wilson, J.

22. I am of the same opinion. I take the same view of thefacts as the Chief Justice has taken; and on the facts it is abundantly clearthat the assessment upon the applicants was improperly made. The question is,whether the error was an excess of jurisdiction, or amounted only to amiscarriage on the part of the Commissioners while acting within theirjurisdiction. If the error goes to jurisdiction, we can, and ought to,interfere by certiorari; if not, we have no power to do so.

23. This question is not free from difficulty, but I havecome to the conclusion that the error committed does go to jurisdiction. Threesections of the Calcutta Municipal Consolidation Act, 1876, are material.Section 64 requires the Commissioners at their Quarterly Meeting in October ofeach year to "fix the rates at which the rates and taxes hereinaftermentioned shall be imposed for the year commencing on the first day of Januarythen next ensuing." That section only gives power to fix the generalstandard of rating, and has nothing to do with the assessment of the individualproperties upon which the rates are to be charged. This is dealt with inSection 88, which says: "The Commissioners shall, as provided in Section64, impose upon all houses and land within the town the following annual rates,which shall be calculated on the annual value of the said houses andlands." Under this section the Commissioners have power to impose on anyhouse or land a rate calculated on its annual value not on anything else. Now,if we had nothing but these words to guide us, I should say that in such an actvalue must mean money value, and that the "annual value" of a housemust mean the annual money benefit derivable from it, and could not mean anypercentage on its cost.

24. But the whole system of taxation and assessment underthe Act in question is obviously borrowed in its general outlines from EnglishEating Acts. In such Acts in England the words "annual value" are infamiliar use, and have long received a settled construction. "Annualvalue" has always been held to mean annual letting value, and I think weought to give the words the same meaning here. If this be so, the Commissionersare shown to have exceeded their jurisdiction upon the language of Section 88alone, without the aid of Section 104.

25. Section 104 makes the intention of the Legislature quiteclear. It says: "The estimated gross annual rent at which any house orland liable to rate under this Act might reasonably be expected to let fromyear to year shall, for the purposes of any rate to be imposed under this Act,be held and deemed to be the annual value of such house or land. The value ofland so estimated shall not include the value of any machinery thereupon."

26. This Section first removes any doubt that might withoutit have arisen as to annual value meaning annual letting value. Secondly, itprovides in favour of the public and against the person assessed that annualvalue is to mean gross rent, whereas it would otherwise have meant net rent, thatis the gross rent, less the necessary outgoings, as was held by the House ofLords in Dobbs v. Grand Junction Waterworks Company L.R. 9 App. Cas. 49.Thirdly it gets rid of a possible ambiguity as to machinery.

27. This section, or so much of it as I have cited, may beregarded as in the nature of an interpretation clause explaining the meaning ofthe words in the earlier section. If so the two must be read together. And thenit is, I think, quite clear that the Commissioners have exceeded their jurisdiction.

28. On the other hand this section may be read as onlydirectory, as containing instructions to the Commissioners how to proceed whenexercising the jurisdiction conferred by Section 88. In that case a breach ofthe provisions of Section 104 would not go to jurisdiction. But if so, as Ihave already pointed, the excess of jurisdiction in this case is, in myopinion, apparent from Section 88 alone without the aid of Section 104.

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Nundo Lal Bose and Ors. vs. The Corporation for the Town ofCalcutta (19.02.1885 - CALHC)