Henderson, J.
1. This is a suit against the Corporation of Calcutta, to recover damages for an alleged illegal distress, which took place on the 30th December 1901 and the 2nd January 1902. The facts alleged in the plaint are nearly all of them either admitted or not denied in the written statement of the defendant Corporation.
2. An objection which was not taken in the written statement that the notice of suit served upon the Corporation under Section 634 of the Calcutta Municipal Act was insufficient was, afterwards, rightly as it appears to me, withdrawn.
3. The circumstances under which that suit was brought are these: On the 4th March 1901 the plaintiff purchased from one Giris Chunder Dass a plot of bustee land in the 24-Pergannas in Ward No. 1 consisting of 10 cottahs and bounded on the north by Dhoniabagan Road, on the west by a lane and on the east by a common passage, which had been reserved by the vendor. This plot was a portion of what had been No. 4 Jadu Nath Mitter's Lane, of which the consolidated rate at the time of the purchase, was Rs. 17-12-6 per quarter.
4. The plaintiff's vendor, Giris. Chunder Dass, appears to have broken up his holding No. 4 Jadu Nath Mitter's Lane into 7 or 8 plots, of which he kept two and the others were sold to the plaintiff and certain other person respectively. No. 4. Jadu Nath Mitter's Lane was bustee land and as such it had been valued and assessed by the Corporation.
5. Shortly after his purchase the plaintiff being anxious to have a separate number and separate assessment in respect of the plot which he had purchased, applied on the 22nd March 1901 to the Corporation for a separate valuation and assessment and a separate number for his newly-purchased premises and he forwarded to the Corporation his conveyance, Nothing having been done on his application, the Corporation. on the 20th September 1901 seized a cow and two windows, at No. 32 Gopi Mohan Dutt's Lane, the family dwelling-house of the plaintiff, for the payment of the consolidated rate due in respect of the entires premisesNo. 4 Jadu Nath Mitter's Lane for the 3rd quarter (July, August and September) of 1901
6. In his evidence the plaintiff stated that to this no bill for the rate claimed had been presented, to him nor had any notice of demand been served upon Him. As to whether or not a bill had been presented, or a notice of demand served, the Corporation has given no evidence, although the question was raised, in the opening of the plaintiff's case and had previously been raised in a letter to the Corporation shortly after the seizure, but as a matter of fact it is not of any real importance for the decision of the case before me whether in fact a bill was presented for a notice of demand served prior to that particular seizure.
7. In consequence of the seizure of his cow and the two windows the plaintiff on the 24th September wrote to the Chairman of the Corporation, referring to his former application and stating that in answer to various reminders and personal enquiries he had been told that he would be informed as to the result of his application by letter and he complained that on the 20th September, during his absence from home his cow and two windows had been seized for non-payment of the consolidated rate for the entire premises No. 4 Jadu Nath Mitter's Lane. He stated that no rate bill had$, ever been presented to him in respect of the plot, which he had purchased and that no notice of demand had been served upon him and submitted that he was not liable for the rate for the entire premises as they had been divided into several lots and he had always been and was still ready and willing to pay the rate in respect of the lot which he had purchased and he asked that the seizure might be withdrawn.
8. In his plaintiff he alleged that upon this no further steps were taken to realize the rate, for which the seizure had been made from him.
9. 'When the case came on for hearing it was at first alleged on behalf of the defendant Corporation that the reason why no steps had been taken upon the seizure to realize the rate from the plaintiff was that the plaintiff Had himself paid the money, but subsequently it was admitted that, although the payment had been made, it was not made by the plaintiff, but by some one interested in some other portion or portions of No. 4 Jadu Nath Mitter's Lane. There is no question that at this time the plaintiff, as a proprietor of a portion of No. 4 Jadu Nath Mitter's Lane, was, at all events primarily, liable to pay the whole consolidated rate.
10. As I have already mentioned, the plaintiffs case was that no bill for the rate was presented and no notice of demand was served upon him. It may be that no bill was presented at the premises and the notice of demand served there also, and, if that be so, it is possible that, as the ^plaintiff has sworn, he had no personal knowledge before the seizure of any claim being preferred by the Corporation against him for the entire rate. Be this, however, as it may, the Corporation on the 5th October 1901 apparently in consequence of his application of the 22nd March 1901 served upon the plaintiff a special notice purporting to be under Section 159 of the Calcutta Municipal Act, and dated the 30th September 1901. It is addressed to the plaintiff as owner of premises No. 8/7 Dhoniabagan Road, part of No. 4 Jadu Nath Mitter's Lane. It intimated to him that his bustee and, No. 8/7 Dhoniabagan Road, had been assessed at an annual value of Rs. 158 and that this valuation would remain in force for six months from the commencement of the 3rd quarter of 901-1902, that is to say, from the beginning of October 1901 and afterwards from year to year, until a revaluation should be made under Section 152, Sub-section (2), Clause (6) within the period of valuation for the District fixed, which was six years from the 1st quarter, of, 1896-97. It went on to state that, if the plaintiff was dissatisfied with the valuation he might object within 15 days of the receipt of the notice by delivering a written notice at the Municipal office stating the grounds of his objection.
11. Upon the basis of this valuation the rate for the plaintiff's separate plot, No. 8/7 Dhoniabagan Lane, would it is admitted, be Rs. 6-11-9. The plaintiff made no objection to the valuation mentioned in the notice. He might very naturally, as he said, he did, conclude that in future, beginning with the quarter commencing on the 1st October 1901, he was not liable for the rate for the entire premises No. 4 Jadu Nath Mitter's Lane, but only for the rate assessed on the basis of the valuation mentioned in the special notice. I have no doubt that at this time the defendant Corporation meant that he should so understand the notice
12. Similar and independent notices appear to have been issued to Girish Chandra Dass and to the other purchasers from him and Girish Chandra Dass and the purchaser of one of the other plots actually filed objections to the valuation put upon their respective plots. It is admitted that these objections were filed on the 9th and 15th October respectively and that they were disposed of on the 28th November 1901.
13. So far as the plaintiff's plot is concerned, the valuation, mentioned in the special notice to him was never altered.
14. From an office note submitted to the assessor (Exhibit D) it now appears that the Vice-Chairman in disposing of the objections decided that the valuations would take effect from the commencement of the 4th quarter, viz., the quarter beginning on the 1st January 1892. It is clear upon the evidence that the Corporation, in dealing with the plaintiff's application for a separate number and separate valuation and assessment, dealt with him as if there were no other persons interested in the valuation of the plot, which he had purchased. The plaintiff has denied that he was aware of any objections having been filed by any of the other persons interested in what was originally No. 4 Jadu Nath Mitter's Lane or that he had ever heard that on the objections being disposed of it was decided that the valuations were to take effect as from the commencement of the 4th, and not from the commencement of the 3rd quarter, as stated in the special notice to him. It is not even suggested on the part of the defendant Corporation that the plaintiff was ever informed of the objections, which had been made.
15. It is now said on behalf of the Corporation that it was subsequently found to be necessary to keep the valuation mentioned in the notice of the 30th September and served on the plaintiff on the 5th October in abeyance on account of the objections, which had been raised by the two objectors. It is, however, admitted, or at all events not denied, that the plaintiff was not at the time informed that the valuation would not take effect as stated in the notice, and the plaintiff, as I have already stated, denies that he was ever at any time informed of this fact. Mr. Cooper, the assessor of the Corporation, has stated that it was not the practice, when objections were disposed of, to give notice of the manner in which they had been dealt with. Ordinarily of course persons, who actually make objections, may reasonably be assumed to know the result of the objection. If, as a matter of fact, it was decided, as stated in the office note referred to, that the valuation should not take effect until the commencement of the 4th quarter, it has I think been proved that formal notice was ever given of this fact to the plaintiff. One would have expected that when the Corporation found that it was impossible or impracticable to give effect, as to the time from which the valuation was to take effect, to the notice of the 30th September, it would at C least have given the plaintiff a formal notice intimating that the valuation of which he received the notice on the 5th October could not be acted upon as from the time Originally mentioned; and that subsequently, when the objections were disposed of, it would similarly have given Mm notice that the valuation of his premises would take effect not from the time stated the special notice, but from the 1st of January 1902. But, as already stated, the defendant Corporation gave the plaintiff no such notices.
16. The Collector of the Corporation has given evidence to shew that, although no such formal notices were given to him, the plaintiff was not only aware of all that had happened, but that he had actually on having the position explained to him agreed, some time about the middle of December, to pay the entire rate due in respect of the entire premises No. 4 Jadu Nath Mitter's Lane, and that on the basis of the old valuation, I shall deal with this evidence later on.
17. Acoording to the plaintiff the defendant. Corporation on the 30th Deoember 1901 again seized his cow and two windows at his house No. 32 Gopinath Dutt's Lane for Rs. 1742-6 the entire rate of No. 4 Jadu Nath Mitter's Lane for the then Current quarter at the old valuation. The plaintiff has sworn that in this case also, prior to the seizure no bill for the rate was presented to, and no notice of demand was served upon him, and as to this there is a conflict between his evidence and that of the bailiff of the Corporation. The bailiff stated that he presented the bill and subsequently served the notice of demand upon the plaintiff personally. The plaintiff swears that his cow was actually seized, though not removed, on the 30th December and that on coming to hear of it he at once went to the office of the Corporation and protested against the action of the bailiff and tendered the rate for his separate holding No. 8/7 Dhoniabagan Road. He state that the Collector refused to accept the tender, as it was not for the entire rate, claimed. In his evidence he said that on his return to his house on the 30th. December he was given by the ladies of his family ft notice of sale under Section 218 of the Calcutta Municipal Act dated the 30th December, with an inventory of the property seized and tins notice he produced in Court. He thereupon went to the Collector, shewed him the special notice of the 30th September and demanded a bill for the rate for No. 8/7 Dhoniabagan Road based upon the valuation therein mentioned; that the Collector apparently not being aware that no bill had been issued, gave orders to his clerks to give the plaintiff the bill. He said that they looked into the books and then informed the Collector that no bill for No. 8/7 Dhoniabagan Road had been received, that the Collector then enquired how this could be seeing that the Assessor's Department had issued the notice of the 30th September. He was then, he says, sent by the Collector to the Assessor accompanies by the: Inspector, who informed the Assessor that the plaintiff had come to pay for No. 8/7 Dhoniabagan Road, but that the bill could not be found; that the Assessor then told the Inspector to go and look for it as the bill must have gone to the Collector. The Collector has denied that he saw the plaintiff at all on the 30th December.
18. There is no question upon the evidence that on the 30th December the plaintiff did go to see the Municipal Office. This appears from a note in the handwriting of the Assessor himself (Exhibit-D). This note is addressed to 'Ashu Babu;' apparently the witness Ashutosh Bose, a clerk in the Assessor's Department. The Assessor in this note enquired, if a bill had been issued for No. 8/7 Dhoniabagan Road stating that the owner (that is the plaintiff) had, come to him with the notice of assessment (clearly referring to the special notice dated the 30th September) that day and stated that no bill had been presented. In answer to this note there is a note by Babu Ashutosh Bose, which states that No. 4 Jadu Nath Mitter's Lane had been divided into 7 parts. viz., No. 4 Jadu Nath Mitter's Lane, 8/2, 8/3, 8/4, 8/5, 8/6, and 8/7 Dhoniabagan Road with effect from the 3rd quarter of 1901-02, but that the owners of No. 4 Jadu Nath Mitter's Lane and of No. 8/6 Dhoniabagan Road had filed objections on the 9th and the 15th September respectively, that the Vice-Chairman had decided the objections on the 28th November with effect from the 4th quarter of 1901-02, and that thereupon the bustee bill for the 3rd quarter in respect of No. 4 Jadu Nath Mitter's Lane (as a whole apparently) was issued on the old valuation. The two notes in Exhibit D, therefore, corroborate the story of the plaintiff so far that they show that on the 30th December he had gone to the Municipal Office and had seen the Assessor and had asked for a bill for No. 8/7 Dhoniabagan Road. The note by Babu Ashutosh Bose in reply, to the Assessor's note, it should be mentioned, is dated the 2nd January 1902, the situation having in the meantime been somewhat changed by the happening of a certain event as will hereinafter appear.
19. In the written statement of the Corporation the allegation in the plaint that the cow and two windows were seized on the 30th December is not denied, but the bailiff of the Corporation, Babu Sarat Chandra Mitter, has sworn positively that no seizure was made by him on that day. He was confronted with the notice of sale under Section 218 of the Act to which reference has been made. This notice is signed, as he had to admit by himself. It stated that he (the bailiff) had that day seined the moveable property specified in the inventory, beneath, which is also the signature of Sarat Chandra Mitter and gives the following details of the property seized, viz., one cow and two loose windows
20. The notice of sale is Exhibit E and this is the notice which the plaintiff stated had been given to him by the ladies of the house on his return on the morning of 30th December. Babu Sarat Chandra Mitter had endeavored to account for the plaintiff being in possession of this notice by stating that he must have dropped it and that thus the plaintiff might have got possession of it. I do not believe this statement. As I have stated already, the alleged seizure on the 30th December was not denied in the written statement and I have no doubt whatever that the seizure was actually made and that, the plaintiff being, absent when, it was made, Exhibit E was left at the house. It is practically same terms as Exhibit F, the notice under the same section of the Act of sale, which was left at the house on the previous occasion, when a similar seizure of the plaintiff's cow and two windows was made. On the evidence on this point there is there fore no reason to doubt that on the 30th December also the bailiff did in fact seize the plaintiffs cow and windows
21. The next thing that happened was that on the 2nd January the bailiff removed the cow from the plaintiff's premises and thereupon on the same day the plaintiff through his attorney wrote to the Collector to the Corporation a letter (Exhibit No. 3) and tendered the sum of Rs. 7-11-3 in payment of the rate for his premises No. 8/7 Dhoniabagan Road for the 3rd and then current quarter of 1901-02. The Collector forwarded this letter to the Assessor 'for favor of reply to the party.' He states in a note on Exhibit No. 3 that he had no separate bill with him for No. 8/7 Dhoniabagan Road for the 3rd quarter, 1901-02, but that there was a bill for the 3rd quarter of 1901-02 for No. 4 Jadu Nath Mitter's Lane, the amount being Rs. 17-12-6, and he went on to say that he (the Assessor) had served the party with a notice for the 3rd quarter fixing his valuation and quarterly rate, but that he (the Collector) understood that as the other co-sharers did not agree the separation was not given effect to. Upon the basis of this note, a reply was sent on the same day, the 2nd January, signed by the Assistant Assessor purporting to come from the Assessor himself.
22. Before leaving the note of the Collector made upon Exhibit No. 3, I would here point out that the note appears to me to be wholly inconsistent with the evidence which he gave as to an alleged interview having taken place between him and the plaintiff some 10 or 12 days before the Christmas holidays, at which interview he stated he had explained all the circumstances attending the valuation and the assessment of the various plots into which No. 4 Jadu Nath Mitter's Lane had been subdivided, and that the plaintiff had not only been satisfied with his explanation, but bad actually agreed to pay the rate for the entire premises No. 4 Jadu Nath Mitter's Lane for the quarter.
23. In the reply to the plaintiff's Attorney's letter of the 2nd January (Exhibit No. 3), the Assistant Assessor stated that the premises No. 4 Jadu Nath Mitter's Lane had been separately assessed in seven parts with effect from the 3rd quarter of 1001-02, the portion belonging to the plantiff being assessed as No. 8/7 Dhoniabagan Road, but that two of his co-owners having objected to the assessment made for their portions the separation .had been kept in abeyance pending the disposal of the objections, and that the bill for the 3rd quarter had in consequence been issued for the original premises of No. 4 Jadu Nath Mitter's Lane and must be adjusted as it stands, and he stated that the objections having now been disposed of, separate bills would be issued from the current quarter.
24. Acoording to the plaintiff this was the first intimation lie had ever had of any objection having been made to the valuation of any of the portions of No. 4 Jadu Nath Mitter's Lane or of the separation and separate assessment of his own premises having been kept in abeyance, and notwithstanding what has been said by the Collector (Which I shall now been proceed to deal with) as to the interview with the plaintiff alleged by him to hare taken place in the middle of December, I see no reason to doubt his statement.
25. At this alleged interview the Collector has stated that the plaintiff made a verbal complaint to him in the presence of the Inspector of the Division, Girijabhusan Haldar. He complained that he had been asked to pay the rate for the entire holding for the quarter, although he bad received a special notice from the Collector that his premises had been separately valued and assessed with effect from the 3rd quarter, and that in spite of this the bailiff had been dunning him. The Collector then explained matters and told him that in consequence of the objections made by the other parties effect had not been given to the special notice served upon him. He advised him to pay the bill and he then went away. Later in his evidence the Collector stated that the plaintiff agreed at this interview to pay the raise for the entire premises on the old basis. Now, in the first place the Collector has been careful to make it clear that lie had nothing to do with the assessments and never had, that his duties were merely to realize the rates upon bills made over to him by the Assessor's Department, and that he was responsible only for the realization of these bills, but he admitted that, if anything were done in that connection contrary to the law, he would be responsible far the consequences. I have already pointed out that in my opinion the note of the Collector on Exhibit No. 3 is inconsistent with there having been any such interview as Alleged by, him. If the interview had taken place as he said it did why in his note did he not point out that the plaintiff was aware that the separate assessment could not be given affect to and had agreed to pay the entire rate for the original holding. On his own shewing it was no part of his duty to inform himself of matters especially connected with the Assessor's Department, and it would seem therefore that it was no business of his to give the explanation, which he professes to have given. But on the 2nd January the plaintiff's Attorney wrote another letter to the Chairman of the Corporation (Exhibit No. 5) setting out his whole case in, considerable detail. In the later portion of the letter he stated that the Collector, instead of issuing bills in respect of his separate portion and without any previous notice whatsoever had caused the seizure of his cow and two windows at his family dwelling-house on the 30th December for realization of Rs. 17-12-6 being the consolidated rate for the 3rd quarter in respect of the whole bustee land at No. 4 Jadunath Mitter's Lane, and further that on the same day, that is, the 30th December, he (the plaintiff) had called at the Municipal Office and had requested the Collector himself to receive payment of the rate bill for the portion purchased by him on the basis of the assessment made, but that the Collector refused to receive such payment, and that on that very morning the Inspector and bailiff had removed the cow from his premises. The letter went on to threaten legal proceedings, unless the cow was returned within 24 hours. This letter was made over to the Collector on the 3rd January for report, and on the 4th January he made a report. In the letter there was a very positive averment that the plaintiff had gone to the Collector on the 30th December and a statement of what had taken place. The Collector in giving his evidence at first professed not to have read that portion of the letter, to which I have just made reference and which deals especially with himself and the part which he took in the matter, but afterwards finding it was difficult to maintain that position in the face of the fact that the letter had been made over to him for a report upon matters presumably specially within his knowledge, he said somewhat hesitatingly that he did read the latter portion of the letter dealing with himself, but that he paid no attention to it at the time. Under any circumstances I should hesitate to accept either statement of the Collector. In dealing with his evidence his position at this time cannot be left altogether out of consideration. If the distress which was challenged were bad or irregular on the ground alleged that no previous notice whatever had been given, he believed, as he stated, he would be held responsible for the legal consequences, for he admitted that if no bill had been presented or no notice of demand had been served previous to the seizure, he would be liable to the Corporation for the consequences of the execution of the warrant. He must have known from the letter upon which he had to report, that legal proceedings had already been threatened against the Corporation in consequence of the execution of the warrant. Now, what does he say in his report? He begins by pointing out that the collector does not issue bills but collects bills issued by the Assessor and delivered to him for realization. So far, apparently, he was endeavoring to relieve himself from the consequences of any possible irregularity in the issuing of the bills upon which the distress had been made. He went on to say--'It seems that one of the co-sharers objected to the separation of assessment intended by the Assessor as evidenced by the notice which was served on the writer's client by the Assessor and therefore the separation was not made. I remember having made a reference to the Assessor in this case, and I was informed that the bill for the 3rd quarter 1901-02 was payable as it stood. This was explained to the writer's client at an interview (the date is not stated) and he agreed to pay, but eventually did not, and I was obliged to distrain his property.
26. It is remarkable that no record (if there was one) is produced of the alleged reference made to the Assessor, and it is still more remarkable that, if any such reference was made, the Assessor was not asked anything with regard to it. It is difficult to believe the statement here made and repeated in the Collector's evidence that the plaintiff really agreed to pay the whole amount claimed. To my mind it is entirely inconsistent with the attitude which the plaintiff had assumed on the previous occasion when his cow and two windows had been seized. From the time he purchased this plot of bustee land from Girish Chandra Dass he was apparently most anxious to be free from the liability, to pay the entire rate for the larger plot, of which he had purchased only a portion. He had applied to the Corporation for a separate number and separate assessment and from time to time he had been pressing the Corporation to dispose of his application. When his cow was seined on the first occasion he at once addressed the Chairman of the Corporation setting out all the facts connected with his application, complaining that his application had not been dealt with and that under the circumstances he had been harshly treated. That was on the 24th September. On the 5th October he had at last received what must be taken as an answer to his original application--the special notice oft separate valuation under Section 159 of the Act, dated the 30th September, intimating that his premises had been separately numbered and separately valued--as from the commencement of the third quarter of 1901-02, that is, from the 1st October 1901. If after receipt by the plaintiff of that notice Sarat Chunder Mitter, as he alleged presented a bill on the 25th November for the whole rate of the entire premises No. 4 Jadu Nath Mitter's Lane, the first thing the plaintiff would have done, it seems to me, would have been to have gone to the Chairman either personally or by letter and protested against the action of the Collector's Department, and, if no bill had been presented he would have done the same thing on the 2nd December, when, as stated by Sarat Chunder Mitter, a notice of demand for the same rate had been served on him. Under these circumstances, therefore, I am not satisfied that any interview took place between the plaintiff and the Collector about the middle of December, but I am satisfied that the plaintiff, as stated in his attorney's letter of the 2nd January (Exhibit No. 5), did see the Collector at his office on the 30th December.
27. As I have said already I do not believe that the plaintiff was ever made aware that the valuation and separation of assessment of the premises No. 8-7 Dhoniabagan Road had been kept in abeyance by the defendant Corporation. It was no part of the Collector's duty to tell him and the Assessor's Department certainly does not profess to have done so. The suggestion made by the Collector that the plaintiff was fully aware of all that happened and that knowing this he had promised or agreed to pay the entire rate, may possibly have been made by him in order to shield himself from liability in connection with the proceedings threatened by the plaintiff in his Attorney's letter of the 2nd January.
28. These being the facts admitted or found by me to be proved in the case, it remains to be considered what the legal effect or position is, regard being had to the provisions of the Calcutta Municipal Act. Reference has been made to a number of sections. The first section referred to is Section, 161, which deals with the assessing of land and buildings to, the consolidated rate--Proviso (1) to the section provides that: 'the annual value of bustee land shall be deemed to be the gross annual rent at which the land might reasonably be expected to let from year to year, plus the gross annual rent at which the huts or structures erected by the tenants might reasonably be, expected to let from year to year' after certain deductions mentioned Section 152, Sub-section (1) declares that 'all Valuations of buildings and lands situated in the districts mentioned in column I of Schedule VII, which have been made by competent authority and are in force at the commencement of this Act, shall remain in force for the periods terminating on the dates respectively prescribed in that behalf in column 2 of that Schedule, and the annual value at which buildings and lands in each such district are to be assessed after the date so prescribed shall be fixed by the Chairman for a period of six years, and thereafter for successive periods of six years,' provided [Sub-section (2)(b)] that 'bustee lands, with the huts upon them, or lands that are waste or are used for agricultural purposes, may be valued annually at the discretion of the Chairman and shall be so valued on the application of the owner, and when such lands are not revalued the former valuation shall remain in force from year to year until a revaluation is made.'
29. The Schedule VII referred to in this section gives the various dates up to which the valuations made before the Act are to remain in force and for Ward No. I, in which the bustee land in question is situate, the date is the 31st March, 1902.
30. Here the plaintiff is undoubtedly the owner of what is now numbered 8/7 Dhoniabagan Road, and he applied, as has been seen, to the Collector for the valuation of his holding which is bustee land. This plot No. 8/7 Dhoniabagan Road had undoubtedly been valued before, although not separately but as a portion of the larger holding No. 4 Jadu Nath Mitter's Lane, and the consolidated rate from the origional holding was Rs. 17-12-6. The valuation therefore for which the plaintiff applied was not a valuation under Section 168, that is a valuation for the first time. What he applied for was rather a revaluation and the application would be covered by Section 159 of the Act and it was so treated by the Corporation. Section 159 provides that 'before revaluing any bustee land under proviso (c) to Section 152 the Chairman shall give notice to the owner of the land that on or after a date not less than fifteen days from the receipt of such notice by such owner, such revaluation will take place; and if the valuation so made exceeds the previous valuation, the Chairman shall give to the owner a special notice of the amount of the valuation with full details thereof.'
31. I have already mentioned the fact that the various plots into which No. 4 Jadu Nath Mitter's Lane was subdivided, were revalued with the result that the valuation of all the plots taken together shews a small increase upon the original valuation of No. 4 Jadu Nath Mitter's Lane. The special notice of the 30th September intimated, that if the plaintiff was dissatisfied with the valuation, he ought to object within 15 days from receipt of the notice by delivering at the Municipal Office a written notice stating the grounds of his objection--nothing being said as to the right of other persons to object. He filed no objections. The intimation made in the special notice appears to have been based upon Section 160 of the Act, which provides that 'any person, who is dissatisfied with a valuation made under this Chapter may deliver at the Municipal Office a written notice stating the grounds of his objection,' and that such notice must be delivered in the case of bustee land within 15 days after the receipt of the special notice referred to in Section 159. Section 161 deals with the investigation of objections by the Chairman and Section 163 deals with appeals to the Court of Small Causes from the decisions of the Chairman.
32. So far as the plaintiff is concerned it would appear from the special notice of the 30th September 1901 that he was being dealt with by the Corporation as if he were independent of, and had no concern with the owners of the other plots. There is nothing in the notice to convey to him that the valuation of his particular plot was in any way subject to objections being filed by the owners of the other plots. The plaintiff according to the special notice was treated, as in fact he was, as the owner of No. 8/7 Dhoniabagan Road, which was being revalued under Section 159. Section 163 declares that every valuation made by the Chairman under Chapter XII of the Act, subject to the provisions of Sections 160, 161 and 162, shall be final If therefore the Corporation were entitled to deal with the plaintiff separately in respect of his holding, the valuation mentioned in the special notice, there having been no objection under Section 160, became final under Section 163 after 15 days from receipt of the special notice, that is, from the 30th October.
33. But assuming that the valuation became final from that date, the question arises from what period was it to be deemed to be in force. In this connection it is necessary to refer to Section 164, which deals with the keeping of what is called the assessment book. That section provides that in that book shall be entered amongst other things the number and description of the premises the name and place of abode of the person or persons primarily liable to pay the consolidated rate, the amount of the valuation and the amount payable quarterly on account of the rate. Then Section 168 provides that notwithstanding anything contained in Section 163 the Chairman may at any time amend the assessment book in the circumstances stated. Under Sub-section (1) of Section 170 'the assessment calculated on the valuation for the time being shown in the assessment book shall be deemed to be the amount payable during the whole period for which the valuation is in force;' and Sub-section (2) of that section provides: 'When any amendment has been made in the assessment book the said period shall be calculated from the commencement of the quarter next succeeding that in which the notice of objection was delivered under Section 160 or Section 168, Sub-section (2), or if no such notice has been delivered, then from the commencement of the quarter next succeeding that in which such amendment was made, and until that time the old valuation shall continue in force, notwithstanding that the period for which it was made may have expired.'
34. Now, if the Corporation was competent to deal with the plaintiff independently of the owners of the other plots, it may be that the valuation of the plaintiff's premises became final on or about the 20th October 1901, but if so, it would seem then to have been necessary that an entry of the valuation should be made in the assessment book. It is admitted that entries were in fact made--entries embodying the result of the valuation, not only of the plaintiff's premises but of the premises of the other owners, in, the assessment book on the 2nd December 1901. If then the valuation of the plaintiff's premises be treated as entirely separate from the valuation of the other plots, there having been no notice of objection delivered by him at the Municipal Office under Section 160 the valuation would become final from the 20th October, but under the second portion of Sub-section 2 of Section 170 which deals with the consequences of amendments made in the assessment book, the period for which a valuation is to be in force must be calculated from the commencement of the quarter next succeeding that in which the amendment was made and until that time the old valuation must continue in force.
35. In this view of the matter it would appear that notwithstanding the intimation in the notice of the 30th September that the valuation should commence from the beginning of the third quarter it could not legally commence, at all events, before the commencement of the quarter next succeeding that in which the amendment was made, that is, the beginning of the quarter commencing with the 1st January 1902, for the amendment was made on the, 2nd December and the old valuation remained in force until at least the 1st January 1902.
36. It is contended however that under Section 163 the Valuation became final and the period from which it is to be in force commenced as from the date mentioned in the special notice of the 30th September. According to that notice, that would be from the beginning of the 3rd quarter, namely, the 1st October 1901. It seems to me that such a contention is contrary to what is clearly laid down by the Act itself.
37. The difficulty which has arisen in this case appears to have arisen in consequence of the Corporation having issued the special notice dated the 30th September making a valuation and directing it to come into force from the beginning of the following quarter which quarter actually began on the day following the date of the notice and before any objection could be delivered or necessary amendments made in the assessment book, The notice was not served until the 5th October. It was impossible therefore, having regard to the provisions of Section 170, that the valuation could commence on the day on which in the notice it was stated to commence.
38. There is another view of the case. It is this: It is said that under Section 159 there could be no revaluation of No. 4 Jadu Nath Mitter's Lane plot by plot, but only as a whole, and there having been in fact an increase in valuation a special notice had to be given to the owner, that is, to all the persons interested in the entire original holding No. 4 Jadu Nath Mitter's Lane, and that any of these persons might under Section 160 object to the valuation of his own or of any other plot, and it was contended that under Section 163 the valuation could only become final in such case subject to the provisions of Sections 160, 161 and 162, that is to say, subject to the disposal of the objections by the owners of two of the plots delivered on the 9th and 15th October respectively. These objections were disposed of on the 28th November and not till then, and accordingly the valuation of all the plots making up the whole became final on that date. It is urged that notice was, or rather that notices were in fact given to all the persons interested. This is no doubt, true, but the notices were separate--certainly the notice to the plaintiff was separate and on the face of it independent. But even in this view of the matter we are again met by the fact that the amendment of the assessment book was still a necessary consequence, and that the necessary amendment was made on the 2nd December, so that, the position being one in which a notice of objection had been filed under Section 160, the period from which the valuation was to be in force would have to be calculated from the commencement of the quarter next succeeding that in which the notice of objection had been delivered, that is to say, from the commencement of the quarter beginning with the 1st January 1902, because the notices of objection were delivered at the Municipal Office on the 9th and 15th October 1901 respectively.
39. It would seem therefore, that in this aspect of the case also, the period from which the valuation was to be in force, could not, notwithstanding anything to the contrary stated in the notice of the 30th September, commence before the beginning of the 4th quarter, that is, the 1st January 1902. In either case the old valuation remained in force. It cannot be conceded that it was in the power of the Corporation or of its Assessor to override the dear provisions of the Act. If it remained in force it was clearly within the legal competence of the defendant Corporation to realise the rate of the 3rd quarter upon the basis of the old valuation. So long as the new valuation had not come into force the plaintiff remained, primarily at least, liable for the whole rate of the entire premises No. 4 Jadu Nath Mitter's Lane on the basis of the old valuation.
40. It has been pointed out that on the 5th October 1901 when special notice of the 30th September was served upon the plaintiff the old rate for the 3rd quarter, that is for the then current quarter was still in force, inasmuch as nothing up to that time had been done to cause it to cease to be in force, and that before the 20th October when on the most favourble computation the valuation of the plaintiffs premises became final, the rate for the 3rd quarter had already under Section 171 of the Act become payable.
40. Under the circumstances and for the reasons stated above, I am unable to say that the defendant Corporation was wrong in law in insisting upon the realisation of the old rate based on the old valuation of the entire premises No. 4 Jadu Nath Mitter's Lane for the 3rd quarter of the year.
41. It may be that the bill for the rate was not presented and that notice of demand was not served upon the plaintiff. But this under Section 235 was a mere irregularity and the distress which was levied for the rate cannot on that account be deemed unlawful. In my opinion the distress under which the plaintiff's cow was removed was not for any other reason illegal.
42. There are however certain circumstanoes to which I have adverted already and to which I must refer again before disposing of the suit. On the 5th October the Assessor served the plaintiff with a special notice intimating to him that, unless he objected within 15 days, his premises No. 8/7 Dhoniabagan Road would have a separate number and would be separately valued as from the commencement of the 3rd quarter of 1901-02, that is, as from 1st October 1901. The Corporation now profess to have been compelled to keep this valuation and separation of numbers in abeyance by reason of difficulties created by the Calcutta Municipal Act in consequence of the objections filed by two other personas. No notice whatever was given to the plaintiff that any difficulty had arisen in consequence of the objections taken by these other persons, with whom he apparently had nothing do. Even when the objections of these persons were disposed of, us they were, on the 28th November, the plaintiff was not informed that the special notice of the 80th September could not be acted upon except as from the commencement of the next quarter beginning with the 1st January 1902. I have already given my reasons for accepting the plaintiffs statement that no bill was presented to him in respect of the 3rd quarter and no notice of demand was served upon him and that the first intimation that he was required to pay the old rate for the entire premises No. 4 Jadu Nath Mitter's Lane was on the 30th December, when on returning home he received the notice of sale of the cow and windows, which had been seized under Section 218 of the Act. It seems to me only natural that under these circumstances the plaintiff should have refused to pay. The question whether or not the distress was illegal is admittedly one of very considerable difficulty. It is true he has come to this Court asking for relief on the ground that this distress was illegal or irregular and on a consideration of all these circumstances I have come to the conclusion that the distress was not illegal. So far therefore as the suit is based upon the illegality of the distress the plaintiff has failed. But having regard to the matters stated above the suit is not one in which, if it has to be dismissed, I should feel bound to follow the usual rule as to costs. But, although the distress was not in itself illegal there was undoubtedly an irregularity in the distress by reason of the non-service of a previous notice of demand. The irregularity is not very clearly pleaded, but in any case under Section 225 of the Act all that the plaintiff would be entitled to by reason of that irregularity would be such special damage as he can show he has actually sustained. In his plaint in paragraph 11 it is alleged that the illegal seizure and removal of the cow had considerably lowered the plaintiff in the estimation of his neighbours and injured him in his reputation and that lie had suffered damages to the extent of Rs. 4,000, and it was further stated that the value of the cow was Rs. 100, and he had asked that the defendant Corporation, might be directed to pay to him these amounts. The evidence as to the plaintiff having been lowered in the estimation of his neighbours is extremely vague. I have no doubt that the plaintiff, in consequence of what happened, was subjected to considerable annoyance and unpleasantness by reason of his having indirectly been the cause of a cow being sold by the Collector by public auction. What is said by the plaintiff is that his neighbours jeered at him and ridiculed him because being a man of respectability and long connected with the neighbourhood he had for a paltry sum of Rs. 17-12-6 allowed the cow to be seized for non-payment of a claim for that amount. He called witnesses, who to some extent supported what he said. If the distress had been illegal the plaintiff might possibly have been entitled to claim damages generally on the grounds stated; and although it might have been difficult it would not have been impossible to assess such damages. But by this evidence it can hardly be said that the plaintiff has shown that he has suffered special damage, and it is only such damage that he is entitled to under Section 225 of the Municipal Act.
43. As to the value of the cow there is a considerable conflict of testimony, the plaintiff, on the one hand, alleging that the cow was a large Nagra cow, or up-country cow, and the Collector, the bailiff Sarat Chandra Mitter, and the Inspector Girja Bhusan Haldar, on the other hand, stating that the cow was a small country cow, and whereas the plaintiff states that the cow at the time of the seizure was giving four and-a-half seers of milk a day, the Collector, the bailiff and also the Inspector stated that at the time of the seizure it was a dry and a very thin cow. On this evidence it is impossible to say what the value of the cow was. But apart altogether from this it is impossible on the evidence to say that in consequence of the irregularity the plaintiff really suffered any damages in consequence of the taking of the cow, the irregularity being the non-presentation of a bill for the rate and the non-service of notice of demand. It has not been therefore shown that the plaintiff suffered any damage on account of that irregularity for it was not his case that, if a bill had been presented to him or if the notice of demand had been served upon him he would have paid and so saved the distress and consequent sale. Upon his evidence it is clear that in either case he would not have paid and that when the distress warrant came to be executed he would have, allowed the cow to be subsequently removed as it was. It is just possible perhaps to say that if the bill had been presented or a notice of demand previously served upon him he would have gone to the Chairman or some other officer of the Corporation, and that if he had done so the matter would have been explained and he would have been satisfied that he was legally bound to pay the demand and would by paying the demand have averted the distress. On the evidence as to the value of the cow, it is not shown in my opinion that the plaintiff has suffered special damage in consequence of the irregularity. And, inasmuch as I have found that the distress was not illegal, he is not entitled to any other damage. The suit therefore must be dismissed, but for the reasons I have stated I direct that each party shall pay his own costs on scale No. 2.