LexSHIBJI KHESTSHI THACKER versus COMMISSLONERS OF DHANBAD MUNICIPALITY AND ORS.
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A B c D E G H 404 SH!BJI KHESTSHI THACKER v. COMMISSlONERS OF DHANBAD MUNICIPALITY AND ORS. February 28, 1978 • [R. S. SARKARIA, N. L. UNTWALIA AND JAswANT SJNGH, JJ.] Bihar and Orissa Municipality Act, 1922, S. 106, construction of, whe1he1 mandatory or directory-Holding excluded from quinquennial revision of ,. assessment, whether previous valuation and assessment lapses. The Commissioner of Dhanbad Municipality, instituted a suit against the appellant and respondents 2 to 5, for the recovery of holding •.ax tlnd latrine tax, as arrears of Municipal Taxes for the first quarter of 1950-1951 to the third quarter of 1953-54, in respect of a 'holding' owned by them. The Trial Court disnrissed, the suit inter alia on the ground that during a general revi- sion of assessments u/s 106 of the Bihar and Orissa Municipality Act, rn 1950-51. the Dhanbad Municipality had failed to revise the original assess- ment of the defendants holding and had thereby committed a breach of the mandatory provisions of S. 106. The old assessment on the basis of which the demand had been raised, had lapsed and there being no revised assessment of the holding, the Municipality was not entitled to realise any tax from the defendants with effect from April 1, 1950. The High Court allowed an appeal by the Commissioners of Dhanbad Municipality, but granted a certifi- cate u/Art. 133 (l )(b )( c) of the Constitution. Dismissing the appeal the Court, HELD : 1. The language of S. 106 is flexible enough to enable the Com- missioners to leave out for some good reason, an~ holding from the revision of the valuation and assessment lists. The word 'ordinarily", tones down the force of "shall" which immediately precedes it, and indicates that the require- ments with regard to revision of the assessment in every five years and to include all the holdings, are not absolute but only directory, and can be departed from in extraordinary circumstances, or in the case of particular holdings for good reasons. r409 C-Dl 2. In the case of a holding which is excluded from the quinquennial revi- sion of assessments, the old valuation and assessment list do not lapse, but continue to remain in force till they are altered or an1ended in accordance with the procedure laid down in the Act, and when a new list is completed~ then till the 1st day of April following such co1npletion is reached. [409 F-GJ CIVIL APPELLATE JURISDICTION : Civil Appe!!l No. 1230 of 1968. (From the Judgment and Decree dt. 19-2-65 of the Patna High Court in First Appeal No. 514 of 1958). Niren De and Sukumar Ghose for the Appellant. Bishan Narain & S. K. Sinha for the Respondent. The Judgment of the Court was delivered by SARKARIA, J. This appeal, on certificate, is directed against a judgment and decree, dated February 19', 1965, of the High Court of Patna. It arises out of these facts. • • • ,_.., • • ' I THACKER v. COMMISSIONER OF DHANBAD (Sarkaria, J.) 40 5 At all material times, holding No. 594, Ward No. 3 in the area A of the urban 1\!unicipality, 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, l 948. On March 3 l, l 948, the Commissioners of Dhanbad Municipality served a notice on the appellant and the respondents 2 to 5, under Sedlon 1150) of the Bihar and Orissa Municipality Act, 1922 (here- inafter referred to as the Act) demanding a sum of Rs. 900/-· as quarterly Municipal Tax. The appellant and respondents 2 to 5, dpplied for review of the assessment. Thereupon, the Review Committee reduced the Municipal Tax to Rs. 8 l 0/- per quarter, i.e. Rs. 488/- as hokling tax and Rs. 465 /- as latrine tax. Aggrieved, the assessees instituted a Tit!" Suit No. 17 /l 44 o( 1949 in the Court cf Munsif, Dhanbad, inter alia, praying for a declaration that the ossessment was ultra vires and illegal inasmuch as it was not made under Section 98(2), but under Section 98(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, 1957. Default having been committed by the assessees in paying the tax, a demar.d 1;ot1ce, dated March 6, 1951, was served upon them requiring them to pay all arrear taxes then due, but they put off payment on one
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