Sri Ganesh Properties Private Ltd. Vs Corporation of Calcutta

Arun K. Mukherjea, J.@mdashThis matter arises out of an application under Article 227 of the Constitution of India and Section 115 of the CPC made by the Petitioner Ganesh Properties Private Ltd. challenging the validity and correctness of the order passed by the learned Judge, Third Court, Court of Small Causes, Calcutta, on April 30, 1966, in connection with an ''appeal'' filed by the Petitioner company against an assessment made by the Calcutta Corporation of certain premises belonging to the Petitioner. The matter came to be heard before a Division Bench consisting of P.N. Mookerjee and Amiya ''Kumar Mukherjee JJ. Their Lordships, however, have referred the entire matter for a final disposal by the Special Bench under chap II, Rule (1), prov. (iii) of the Appellate Side Rules. The main question which, according to their Lordships, arises for consideration by the Special Bench in this case is as follows:

On whom, in a proceeding u/s 183 of the Calcutta Municipal Act, 1951, before the Court of Small Causes, does the onus lie in the matter of the correctness or otherwise of the impugned assessment?

2. The short facts of the case leading to this reference are as follows : The Petitioner is the lessee of a multi-storeyed building at 12B Lower Circular Road, Calcutta. The building contains a large number of rooms which are all let out at various rates of rent to a large, number of tenants. At the time of the general revaluation of the premises made by the Calcutta Corporation with effect from the fourth quarter of 1956-57 the premises were assessed by the Corporation of Calcutta at an annual valuation of Rs. 3,27,502 on the basis of the gross annual rents which the building at the time of the assessment might be reasonably expected to fetch from year to year less certain statutory allowance. The assessment was made admittedly under the provisions of Section 168 of the Calcutta Municipal Act, 1951, (hereinafter referred to as the said Act). The quarterly bills were issued by the Corporation of Calcutta on the basis of the said assessment and these bills were regularly paid by or on behalf of the Petitioner company. It is stated that the said premises were again assessed by the Corporation of Calcutta with effect from the first quarter of 1960-61 even before the expiry of six years which is the normal duration of valuation of any building in accordance with Sub-section (2) of Section 172 of the Act. The annual valuation was increased to Rs. 5,63,072 and the ground for such increase was started to be ''substantial alternations and improvements to the building''. Apparently the Petitioner company objected to such intermediate assessment before expiry of the normal period of six years. But such protest was ignored. The Petitioner company denies that there was or is any alteration or improvement substantially or otherwise to the building made between the date of the general revaluation of 1956-57 and the date of the intermediate revaluation of 1960-61. The Petitioner''s objection was in the first instance, heard by the First Deputy Commissioner of the Corporation who decided on February 27, 1963, in favour of the Corporation. The Petitioner complains that no evidence was taken by the First Deputy Commissioner and the entire decision was arbitrary. The Petitioner, then, filed an appeal against the decision of the first Deputy Commissioner before the Court of Small Causes in terms of Section 183 of the Act. In that appeal the Petitioner challenged the intermediate valuation on various ground with which we are not seriously concerned in this reference. After the filing of the appeal the Corporation appeared before the Court of Small Cause and contested the Petitioner''s appeal. An application was made on behalf of the Petitioner company that since the enhancement of the original valuation by an intermediate valuation was sought to be made by the Corporation on the ground of alleged substantial alterations and improvements in the said premises between the general revaluation of 1956-57 and the intermediate revaluation of 1960-61 the onus of proving such substantial alterations and improvements devolved on the Corporation as it was not possible for the, Petitioner company to prove a negative fact 1 by tendering evidence. The learned Judge by a judgment and order dated April 30, 1966, rejected this contention of the Petitioner and placed the onus entirely on the Petitioner company. The view that the learned Judge had taken was this that it is an admitted principle of Taw that the Appellants have to begin the case. It was further pointed out by the learned Judge that the Corporation had made an assessment which was under the law to become final subject to the results of the objections, before the Deputy Commissioner and that if the Assessee now fails to show that the assessment is prima facia wrong the Corporation is under no obligation to prove that the revolution was justified. The learned Judge further pointed out that the Appellants were in the know of the facts and it was, therefore, fit and proper that they should begin the case. Being aggrieved by this order the Petitioner company came for a revision of the order before this Court and as we have already said, the matter has now come up to this Special Bench for final decision.

3. In our opinion, the question, the question that has been raised is a rather short point of law which does not admit of such controversy. The little controversy that has arisen is because of an unfortunate expression in one of the several reported decisions on the point. We, therefore, propose to deal with the cases that have been cited before us and then take up for discussion the principle involved.

4. A similar point came up for discussion in Corporation of Calcutta Vs. Sheikh Keamuddin, . That was a case under the Calcutta Municipal Act, 1923. The property in suit, was assessed for the consolidated rate at an annual value of Rs. 14,310 by the Executive Officer of the Corporation who was under the relevant Act the appropriate authority to assess the property. u/s 139 of that Act the Assessee lodged an objection which was investigated by the Executive Officer u/s 140. The officer then passed an order reducing the amount of the original assessment from Rs. 14,310 to Rs. 10,278. Being dissatisfied, the Assessee appealed to the Court of Small Causes u/s 141 of the Act of 1923. The Court of Small Causes reduced the assessment further and held that the value of the house would be Rs. 5,508. The Corporation appealed against that decision of the learned Chief Judge of the Court of Small Causes to the High Court of Calcutta. There was at first an objection to the jurisdiction of the High Court to hear the appeal, but that objection was overruled. Their Lordships, however held that the appeal before the High Court was not in the nature of a Second Appeal within the ambit, of Section 100 of the Code of Civil Procedure. It was contended before their Lordships that the onus was upon the Assessee to rebut the correctness of the valuation arrived at by the Executive Officer and that the Assessee had failed to make out his case before the Court of Small Causes. The Corporation who had called no evidence before the Court of Small Causes contended that upon the evidence adduced by the Assessee the order of the Executive Officer ought to be affirmed. Their Lordships accepted this contention and held that the Assessee having failed to sustain the burden which was upon him to satisfy the Court that the valuation at which the Executive Officer had arrived was either excessive or wrong the appeal ought to be allowed. The effect of this judgment was clearly this that the onus is on the Assessee who challenges an assessment to show that the assessment is wrong.

5. This case Supra was followed by Rankin C.J. sitting with two other Judges in Corporation of Calcutta v. Jalajbasini Devi 32 C.W.N. 378 which was a Letters Patent appeal. Their Lordships held that as the appeal which has come to the Court of Small Causes u/s 141 of the Calcutta Municipal Act, 1923, (which is in fact, equivalent to the appeal given by the present Act u/s 183) is really a proceeding by which an administrative Act is challenged before a Judicial Tribunal. It differs from an original appeal from a Civil Court decree in this that the party complaining may adduce evidence and indeed, if he challenges the assessment made by the Corporation, the onus lies oh him to show that the assessment was incorrect.

6. In Samarendra Nath Bose Vs. Corporation of Calcutta, it was held in a case where the rent had admittedly remained unchanged and yet an increase in valuation was made that where the Corporation wants to increase the valuation on the ground that the rent had been increased, the burden is clearly on the Corporation to show that there has been such an increase and also to show the extent of the increase. Since the rent payable by the tenant remained apparently unchanged in that case the only way by which the Corporation could succeed in justifying an increase in valuation was by showing that there was an increase in the rent proper for the premises since either the furniture or other things for which deduction had been made at the time of the previous assessment was less than before or at least the rent payable for such furniture or other things was less than before. Since that had not been done and indeed, no attempt had been made to show that there was a decrease in the furniture or a decrease in the rent payable for the furniture the Court was of the view that nothing had been shown to justify a new valuation. The Court rejected the Corporation''s case for making an increased valuation and allowed the appeal of the Assessee. In this case, the Corporation contended that a deduction had been made at the time of making the previous valuation on account of furniture. The fact and nature of deduction was clearly within the special knowledge of an officer of the Corporation who only could say why a deduction had been made. Therefore, the burden of proving the reason for the deduction was on the Corporation. The Corporation having failed to show the reasons for deduction the Corporation could not rely on the deduction to make out a case that there had been an increase of ''rent proper''. It is because of these peculiar facts and circumstances of this case that the onus was thrown on the Corporation.

7. In Lalchand and Sons Vs. Corporation of Calcutta, a Division Bench of this High Court again considered a similar point arising in connection with an Assessee''s appeal u/s 141 of the Calcutta Municipal Act of 1923. Their Lordships held in that case when an appeal is preferred by the Assessee u/s 141 it is upto the Assessee to show that the annual value fixed by the Corporation was not a proper one. But if the annual value had been raised by the Corporation on the ground that there had been since the last general revaluation arose in the rental value of the premises or of land-value it was for the Corporation to lead evidence to show that there had really been such an increase from what was ruling at the time of the previous general revaluation. Their Lordships distinguished and explained the decision of this High Court in Samarendra Nath Bpse v. Corporation of Calcutta Supra.

8. This case in a sense raises for the first time a discordant note. Their Lordships held that the Court is not to proceed in matters like this merely upon the abstract rule of onus. Their Lordships held, however, that

once it is shown that there had been an increase in value from what it was previously, it is upto the Court to decide on the materials placed before it as to whether the value as fixed by the Chief Executive Officer is a proper one or not.

9. In Corporation of Calcutta Vs. On the death of Sm. Rajlakshmi Debi her heirs Nani Gopal Mukhopadhyay and Another, the question of onus again came up. A Division Bench of this Court consisting of Guha Ray and Sen JJ. held that

the right of filing an objection and that of filing appeals are evidently intended to provide opportunities to the Assessee of proving the assessment to be wrong or excessive and on the rules laid down in the Evidence Act to regulate the question of onus as well as on the authorities, it is abundantly clear that if the Assessee fail to show that the assessment is prima facie wrong the Corporation is really under no obligation to prove that it is justified, for, the Assessee is bound to fail in his objection and his appeal, if he fails to make out his point.

Their Lordship have in their decision discussed the earlier cases which we have referred to, namely, Corporation of Calcutta v. Sheikh Keamuddin Supra Corporation of Calcutta v. Jalajbasini Devi Supra and Samarendra Nath Bose v. Corporation of Calcutta Supra. In particular, their Lordships analysed the case of Lalchand v. Corporation of Calcutta Supra and distinguished it by saying that in that decision the learned Judge had actually disposed of the appeal on the evidence on record and that it was not necessary for the Court to decide on whom the question of onus lay.

10. In Corporation of Calcutta Vs. Union Jute Co. Ltd., a Division Bench of this Court consisting of Bachawat and Mullick JJ. threw the onus again on the Assessee. But, since their Lordships merely state the law and do not disclose the reasons therefore, this case is not of much help to us.

11. The case of Corporation of Calcutta Vs. Raj Kumar Narsing Pratap Singh Deo, was referred to us at the time of the hearing of the appeal. But that case really deals with the question as to what constitutes ''alteration and improvement in any building'' and also with the right of the Corporation to change the valuation that has once been fixed in view of alterations and improvements. It does not really deal with the question of onus.

12. The question arose again in General Electric Co. of India Ltd. and Another Vs. Corporation of Calcutta and Another, . In that case the General Electric Company had complained that the learned Small Cause Court Judge had misplaced the onus on the company by requiring them to prove that the assessment of the disputed premises was wrong instead of placing it on the Corporation to justify the enhanced assessment. P.N. Mookerjee and Sarker JJ. who heard the appeal referred to the earlier decision of Guha Ray J. in Corporation of Calcutta v. Nani Gopal Supra and also to the decision of Mukherjee J. in Lalchand v. Corporation of Calcutta Supra and agreed with the view that since the right of filing an objection and also of filing appeals are intended to provide opportunities to the Assessee of proving the assessment to be wrong or excessive it is for the Assessee in the first instance to prove that the assessment is prima facie wrong and until the Assessee does so the Corporation is really under no obligation to prove that it is justified in making the impugned assessment. P.N. Mookerjee J. also said that the learned Small Cause Court Judge had in that case actually based his finding on the evidence about a general rise in land value in the locality and that the learned Judge had not actually decided the case by relying upon the law of onus.

13. We have very carefully considered, the various cases that have been cited before us. In our opinion, in such case, though the question of onus is not very important, it is futile to deny that in the first instance at least the onus lies on the Assessee. If the Assessee comes on appeal against a decision it is for him to make out a case that the Corporation authorities have acted wrongly in increasing the valuation or assessment of his property. It is true that since the revaluation is done by the Corporation authorities they are under an obligation to justify their act. But the Assessee must, to bring with, assert and make but a case that the ostensible reasons for revaluation arc not correct. May be the Assessee can do nothing better than deny the grounds on which the Corporation claims to have based its revaluation. But, even that denial will be necessary to shift the onus to the Corporation. In other words, the initial onus, however slight, is on the Assessee who disputes the Corporation''s assessment or who goes on appeal to the Small Cause Court Judge. The onus, however, is very easily displaced in the sense that the Assessee may throw back the onus on the Corporation by denying and/or disproving the grounds on which the Corporation claims to have made the assessment.

14. In this view of the matter we do not think that the order dated April 30, 1966, passed by the learned Judge, Third Bench, Court of Small Causes, requires any revision. The Rule obtained by the Petitioner is, accordingly, discharged. In the facts and circumstances of the case, we make no order as to costs. Let the papers be sent down at once.

Sabyasachi Mukharji J.

15. I agree.

M.M. Dutt J.

16. I agree.