Find a Lawyer

Writ Petition No. 3 of 1962, decided on 18th July 1962.

(a) East Pakistan Municipal Committee (Taxation) Rules, 1960,

rr. 23, 29 (4) & 8‑Basis of evaluation‑Annual rental or present value of building plus 7 per cent, for ground rent of land‑Assess ment‑Remedy against‑Objection under r. 8 or appeal thereafter under r. 8 (4) and not under; 29 (4).

(b) Writ‑

Assertion of fact by petitioner and denial thereof by respondent‑Disputed fact cannot be resolved by affidavits alone.

S. R. Pal and S. Istiaq Ahmed for Petitioner.

Muhammad Abdul Haque for Respondent.

The petitioner Mohini Mills Limited, prays for a writ of mandamus on the respondent, Municipal Commit tee of Kushtia, directing it to cancel the assessment of taxes made in respect of holding No. 32 in the town of Kushtia belonging to the petitioner‑company. It is stated in the petition that the company was established some 35 years ago for the purpose of manufacturing cotton goods. There have been additions and alterations in the premises in the past and since 1955, although there have been a few additions, it is claimed by the petitioner company that these are not major constructions. The holding in question, it is further averred, was held by the petitioner‑company under a former rent‑receiver at an annual rental of Rs. 733‑14‑6 pies. On the acquisition of the rent‑receiving interests by the Government, the said rental has been enhanced to a sum of Rs. 1,124.49 paisa. It is further stated that the provisions for amenities as required to be done by a Municipal Committee have not been made by the respondent. The valuation of the premises in 1955 was for a sum of Rs. 1,10,000 and the tax imposed on that valuation was Rs. 12,043.76 paisa per annum. That valuation was subsequently increased to Rs. 1,15,000. In 1960, the present Municipal Committee, took over the administration of the previous Municipality under the Municipal Administration Ordinance, 1959, and an assessor appointed by the respondent fixed a valuation of Rs. 5,84,000. A petition having been presented to the Municipal Committee, it was reduced, on a review of the situation, to a sum of Rs. 2,10,000. Still dissatisfied with the reduced assessment the petitioner preferred an appeal to the Divisional Commissioner concerned.

The same has since been dismissed.

2. Mr. S. R. Pal, learned Advocate for the petitioner company, submits that the valuation in this case has been made on the basis of the gross annual rental whereas it should have been on the basis of the valuation of the land and building at the time of assessment calculated at the rate of 7 per centum of the annual value of the structures adding to it the ground rent of the land.

3. Rule 23 of the East Pakistan Municipal Committee (Taxation) Rules, 1960, framed under the Municipal Ordinance, 1960, is in the following terms:

"For the purpose of levy of any of the taxes or rates mentioned in the preceding rule 22 the Municipal Committee shall cause to be prepared a valuation list of all buildings within the Municipality. The valuation list shall be prepared by an assessor to be appointed for the purpose by the Municipal Committee with the prior approval of the Controlling Authority. Such assessor may either be a member or a salaried employee of the Municipal Committee or any other suitable person. The assessor, after making such enquiries as may be necessary, shall determine the annual value of all buildings and lands within the Municipality in the manner provided in these rules and shall enter such value in a valuation list. The annual value of building and land shall be deemed to be the gross annual rental at which the building and land may reasonably be expected to let and where gross annual rental value cannot be easily assessed the annual value shall be deemed to be an amount which may be equal to seven‑and‑half per centum of the value of the building at the time plus the ground rent for the land comprised in the building."

4. On an examination of the rule, it appears that the normal procedure for the assessor is to determine the gross annual rental at which the premises may reasonably be expected to be let out and on the basis thereof, to fix a valuation of the building and land. The taxes will be assessed on that valuation. Alterna tive method of valuation as provided in the said rule is that present value of the building is to be determined and thereafter, A an amount equal to seven and half percentum of the said valuation is to be found out and that amount will be added to the ground rent for the land comprised in the building and the tots amount will form the basis of taxation. The alternative procedure is to be adopted only when it is not easy to resort to the first. The words "where gross annual rental value cannot be easily assessed" occurring in the said rule, are indeed significant and support the view just expressed.

5. In this case, the respondent has averred to the effect that the holding in question is an area which is fastly develop ing into an industrial town and it is situated at the most advan tageous place of the town. The annual letting value of the holding has gone up as it is only 400 yards away from the main railway station and is also close to the riverside. It is possible to determine a reasonable rent for the holding in question and, therefore, the respondent has adopted the first method provided in the rule. We are unable to say in this case that the respon dent has been unreasonable in doing so. As already discussed, the rule itself provides that the alternative procedure is to be followed only when it is not easy to assess the annual rental of the premises. The learned Advocate's contention has accordingly no substance.

6. The next point urged by Mr. Pal is that the respondent has not been providing the petitioner with the amenities as required under rule 43 of the said Rules and, therefore, it is illegal to impose taxes on the petitioner‑company.

Rule 43 of the said Rules is as follows:

"The imposition of the conservancy rate shall be subject to the restrictions that the rate shall not be leviable in any area until the Municipal Committee makes provisions for the cleaning of private latrines, urinals and cess‑pools and public streets within such area."

7. The petitioner‑company has stated that the Municipal Committee has failed to provide them with these amenities and the company made its own arrangements for cleaning the streets, latrines and the cess‑pools. In the presence of these restrictions on the imposition of the conservancy rates, it has been urged that it is illegal for the respondent to levy taxes on the petitioner.

8. The respondent has stoutly denied the allegations and averred to the effect that it has been providing the petitioner and others of the locality with all amenities and services for cleaning latrines, urinals, cess‑pools and streets in all areas of Kushtia town including the area where the said holding No. 32 is located.

9. In view of the assertions made by the petitioner and the denial thereof by the respondent, it seems to us, that it is note possible to resolve this disputed question of fact by means o If affidavits in this case. Moreover, the fact of payment of taxes in the past by the petitioner‑company has to be taken into con sideration as it is not even alleged that objection was raised on this account in the past. If the respondent had really failed to provide them with the necessary amenities as required by the rule, the petitioner‑company would have raised the objection in the past also inasmuch as there was a rule similar to the said rule 43 under the Bengal Municipal Act as well. That being the position, the petitioner is entitled to no relief in this writ petition on that ground.

10. The next point urged is that the Divisional Commissioner has erred in law in dismissing the appeal preferred by the petitioner‑company.

11. Having been dis‑satisfied with the assessment, the petitioner‑company made an application to the Chairman of the Municipal Committee under rule 28 of the said Rules for review ing the same. On receipt of the said petition, steps enumerated in rule 29 of the Rules were taken and ultimately the sub committee gave the decision as already indicated. Sub‑rule (4) of rule 29 is as follows:

"The decision of the majority of the members present shall be the decision of the sub‑committee and shall be final."

12. There is no provision for appeal against the decision of the sub‑committee under rule 29(4) of the said Rules. Provision for another mode of raising objection to the assessment is to be found in rule 8. That rule provides that in case of any objection to the assessment, the aggrieved party is entitled to present a petition to the Municipal Committee within 14 days from the publication of notice of assessment and on presentation of such petition the Municipal Committee is to give its decision. Against that decision, an aggrieved person is given an opportunity under sub‑rule (4) of rule 8 of preferring an appeal to the Controlling Authority, who is the Commissioner of the Division concerned. The petitioner having taken steps under rule 28, instead of rule 8, had no right of preferring an appeal to the Divisional Commissioner, who, in the circumstances of the case, we must hold, rightly dismissed the same.

13. For the reasons stated above, the Rule is discharged, but in the facts and circumstances of the case we make no order as to costs.

MURSHED, J. ‑

----I agree.

S. B./A.H.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.