Salil Kumar Datta, J.
1. This is an appeal by the defendants the Commissioners of Basirhat Municipality against a judgment of affirmance. The plaintiff instituted a suit on thefollowing allegations. There is a piece of land known as landing ghat near the post office of the town formerly used for coming over to river Ichhamati. This land was being settled temporarily by the municipality to different persons from time to time. The plaintiff took settlement of the land from 1953-54 at an annual rent of Rs. 30/- and on erection of shop room thereon had been carrying on business there. Municipal Commissioners put a notice on March 16, 1956 for settlement of the landing ghat for three years. At the auction held on March 23, 1956 the plaintiff took the land with the highest bid of Rs. 75/-as annual rent and deposited Rs. 45/- on that date. A kabuliat was to be executed within 15 days under the terms of auction. In spite of requests the Commissioners did not supply the plaintiff the particulars and the area of the land and on the contrary informed the plaintiff by a letter dated April 19, 1956 that if the kabuliat was not executed by April 27, 1956 the lease would be cancelled. Even thereafter no particulars were supplied and no written lease was executed or registered as required under the letter. In fact according to the letter of the Commissioners the lease was cancelled and rent was being collected from some other person called Haran. There was thus no lease and the plaintiff was never a lessee and nor bound to pay any rent and the lease if any was wholly void and illegal. The Commissioners being displeased with the plaintiff illegally issued and served a distress warrant on 7th March, 1958 by its employees and in pursuance thereof attached and seized his goods worth about Rs. 400/-in his absence. Criminal proceeding was started against the said employees but the plaintiff has referred to the Civil Court. The suit was accordingly filed on due notice under Section 535 of the Bengal Municipal Act, 1932 (hereinafter referred to as the said Act) praying for a declaration of plaintiffs title to the movable properties seized and, that there was no valid lease by the Municipality to the plaintiff, that the plaintiff was not bound to pay any rent, and that the distress warrant was illegal void and inoperative. There was a prayer for injunction restraining the defendants the Commissioners of the Municipality from selling the seized goods by auction and if the goods were sold in the mean time, it was prayed that there should be a decree for Rs. 400/- as compensation for the goods seized and Rs. 45/- for refund of the deposit as stated above. The suit was instituted on September 6, 1958.
2. The suit was contested by the defendants Commissioners by filing written statement. Apart from formal objections, it was stated that the plaintiff was a lessee of the disputed land measuring one decimal in dag No. 4924 from April 1, 1953 to March 31, 1956 and he took further settlement at an annual rent of Rs. 75/-. The plaintiff however neglected to execute the necessary document and the plea taken by him was untrue.
Even so, the plaintiff was a temporary lessee of the suit land. The allegation of the land being leased out to some other person or rent being collected from him was also untrue. The lease in favour of the plaintiff was valid upto March 31, 1959 and he was in possession of the suit land. It was further stated that no illegal warrant was issued on the plaintiff and such warrant had to be issued as the plaintiff failed to pay his dues to the Municipality. The distress warrant, attachment etc. were all according to law. Even if the plaintiff was not a lessee he was a licensee and therefore he was bound to pay the Municipal dues under Section 65 of the Indian Evidence Act. The suit was speculative and harassing and should be dismissed.
3. On a trial on evidence the learned Munsif held that the suit was maintainable in law and the plaintiff had been in possession of the suit land. The lease was not cancelled as established by the subsequent conduct, though the Chairman wrote to the plaintiff to that effect. It was also found that the particulars of the land were not supplied to the plaintiff. There was no lease for 3 years or even a monthly lease. But as the plaintiff was in possession a tenancy-at-wi!! was implied though it was not a lease under Section 105 of the Transfer of Property Act. The plaintiff was liable to pay reasonable compensation for use and occupation of the land as held in the case of Sudhir Kumar Majumdar v. Dhirendra Nath Biswas, : AIR1957Cal625 . Under the Bengal Municipal Act the Commissioners were not entitled to realise by distress or otherwise such compensation which is not tax, tolls, fees and rates etc. The issue of distress warrant and the seizure of goods accordingly were clearly illegal. It was further held that Rule 263 of the Municipal Account Rules framed by the State Government for the Municipality provided for realisation of rent by collecting Sirkars or by distress warrant. The said provision in the rules for realisation of rent, being not provided for in the Act, was, thus, not authorised in law, and accordingly, the rent could not be realised by distress warrant. Further the notice of sale to be held on March 25, 1958 was given to the plaintiff but no sale was held on that date as there was no bidder. The Chairman's note exhibit B shows that the sale was fixed on April 19, 1958 and this was to be announced by beat of drums. According to the evidence adduced by the defendants this was not done. The sale held on April 19, 1958 was without any publicity and was highly irregular, III was further held that the plaintiff succeeded in establishing the value of the seized goods at Rs, 400/-, On these findings it was held that there was no lease between the plaintiff and the Commissioners of the Municipality, the seizure and attachment by distress were illegal and void and the suit was accordingly decreed for Rs. 400/-, for proved value of articles.
4. There was, at appeal by the Municipal Commissioners and the appeal Court held that the suit against the Commissioners of the Municipality sufferec: from technical defect in as much as the defendants were described as the Basirhal Municipality re presented by its Commissioner:. named and this description was not strictiy in form as was required under the law. It was however held that the suit was maintainable relying on the case of Jogendra Nath Banerje v. Tollygunge Municipality, 42 Cai WN 768 = (AIR 1939 Cal 178) which advocatec liberal construction of plaint and substantial compliance of the provisions of the said Act ignoring the technical defect when no prejudice was caused. The appellate Court did not consider whether the plaintiff was liable to pay rent, compensation or licence fee for use and occupation of the land. The Court directed itself to a consideration as to whether distress warrant could be legally issued for realisation of its dues be it rent, compensation or licence fees. While demand and collection register of rent, warrant register letter of the Chairman and miscellaneous bills enclosed showed that the dues were treated as rent, the distress warrant under Section 157 (1) did not precisely declare the character of demand. It was however held on consideration of Sections 123, 155, 156 of the said Act that those sections did not authorise issue of distress warrant for realisation of arrears of rent. Accordingly the Government by its rule-making powers was not competent to enlarge the authority of the Commissioners of the Municipality and invest them with powers to issue distress warrant for rent which power the Municipal Commissioners did not possess under the Act itself. In realising rent from its tenants, the Municipality functions not at a Municipality but as the landlord and such a power to realise rent not being provided for in the Act itself, Rule 263 of the Municipal Account Rules, is ultra vires of the said Act. As to sale itself, in the absence of publicity the sale was irregular and illegal and it was actuated by motive and as such was mala fide. The notice under Section 535 was legal and valid. The appeal accordingly was dismissed. The present appeal is, against the said decision by the Municipal Commissioners.
5. As the hearing commenced Mr. Asoke Kumar Guha learned Advocate for the respondents referred to the decision of the Special Bench in the case of S. M. Nawab Ariff v. The Corporation of the Calcutta reported in : AIR1960Cal159 in which it was held that the procedure for distress under Section 237 of the Calcutta Municipal Act 1951 was more onerous and prejudicial to a defaulting rate-payer than a procedure by a suit and the same was discriminatory and thus violative of Article 14 of the Constitution and so void under Article 13 of the Constitution. On this authority it if contended that the procedure for distress in the Bengal Municipal Act as contained in Section 156 was discriminatory and thus void as by Section 162 it gave absolute powers without any classification or even guidance to the Municipal Commissioners to bring a suit at their discretion against the defaulters in place of distress for realisation of taxes, tolls, fees or rates due to the Municipality. This contention was made also with reference to Section 524 of the said Act as it also did not in terms give any guidance or provide for classification as to the adoption of procedure by aistrcss or by suit. As the question involved a consideration of vires of some of the provisions of the Bengal Municipal Act, notice was issued on the Advocate-General West Bengal under Order 27-A of the Code of Civil Procedure. In pursuance thereof Mr. S. C. Bose learned Advocate appeared on behalf of the Advocate-General and submitted that by the Bengal Municipal (Second Amendment) Act 1961 which came into force on October 13, 196i certain amendments were made in the Act for reasons noted in the objects of the amendments as follows:
'........ .it has been recently held bythe Calcutta High Court that the provisions in the Bengal Municipal Act for realisation of, Municipal dues by distress is discriminatory and hence unconstitutional because of the alternative provision of realisation by suit.'
It may be noted that the High Court's decision referred to above related not to the Bengal Municipal Act but to the Calcutta Municipal Act. 1951. Under the Bengal Municipal Act, 1932, Section 162 as it originally stood was as follows:
'Instead of proceeding by distress and sale, or in case of failure to realise thereby the whole or any part of any tax, toll, fee or rate the Commissioners may sue the person liable to pay the same in any Court of competent jurisdiction.'
By Bengal Municipal (Amendment) Act, 1955 which came into force on October 1, 1955. Section 162 above was substituted by the following section:
'162. Power to Commissioners to apply certificate procedure and also to bring suits.
(1) After a defaulter has been proceeded against under the foregoing provisions of this Chapter unsuccessfully or with only partial success, the sum due may be recovered by certificate under the Bengal Public Demands Recovery Act, 1913 (Bengal Act III of 1913).
(2) Instead of proceeding by distress and sale or by certificate as prescribed in subsection (1) or in the event of failure in either cases to recover the whole or any part of the sum due, to the Commissioners may sue the person liable to pay the same in any Court of competent jurisdiction.'
Again by the Bengal Municipal (Second Amendment) Act, 1961 Sub-section (2) of Section 162 of the Act was omitted and after Section 162 the following section was inserted.
'162A. Power to Commissioners to sue for arrears.-- (1) In the event of failure to recover the whole or any part of the sum due by certificate as prescribed in Section 162 the Commissioners may sue the person liable to pay.........'
It may be noted that none of the amending Acts were made retrospective. It will thus appear that Sections 156 to 160 provides for distress for recovery of municipal dues. Section 162 (1) provides for recovery of dues by certificate when a defaulter has been proceeded against by distress unsuccessfully or with partial success. Section 162-A provides for powers to the Commissioners to sue for arrears in the event of failure to recover the whole or any part of the same by certificate under Section 162 (1). In this state of affairs there is no unreasonable or even any classification between the defaulters nor any discretion is left in the Municipal Commissioners in regard to the procedure to be adopted for realisation of municipal dues. Accordingly, there is no further scope to challenge the constitutionality of the relevant provisions of the Bengal Municipal Act after the 1961 amendment.
6. The impugned distress was issued on March 7, 1958 and goods were attached, seized and ultimately sold on April 19, 1958 when the Bengal Municipal Act, 1932 as amended by 1955 Amendment Act was in force. On the principle of the decision Ariff's case : AIR1960Cal159 (SB) the provisions for recovery of dues of the Municipality by suit at the discretion of the Commissioners instead of proceeding by distress or certificate as contained in Section 162 (2) of the Act must be considered as discriminatory being violative of Article 14 of the Constitution. The distress, attachment, seizure and sale impugned in the suit must therefore be held unconstitutional and void. I however refrain from declaring Section 162 (2) of the Act brought in by 1955 amendment, ultra vires and void, as by 1961 Amendment Act the said provision is no longer in the statute since October 13, 1961.
7. Mr. Saktinath Mukherjee learned Advocate for the appellant Commissioners also assailed certain findings of the Courts below. He has contended firstly that the Court of appeal below committed an error in holding that Rule 263 of Municipal Account Rules is ultra vires. It was held that the provisions in the rules providing for recourse to procedure for recovery of rent is illegal as Section 156 authorised issue of distress for recovery of tax, toll, rates, fees but not rent. Court's attention was not drawn to Section 524 which in terms provides for that all costs, expenses, rent, tolls, fees and every money due under the Act to the. Commissioners of any Municipality may be recoverable in the manner as provided in Sections 155-162. Accordingly, as Mr. Mukherjee has submitted it is held that Rule 263of the Municipal Account Rules is within the scope and ambit of the Municipal Act and is not ultra vires of the Bengal Municipal Act and the finding of the Courts below to the contrary has on legal basis and is accordingly set aside.
8. The next question tor considers tion is whether the amount due and payable by the plaintiff to the Commissioners was rent or compensation There is no dispute that the parties intended that there would be a lease for three years as the offer to lease the suit property by auction was accepted by the plaintiff who remained and continued to remain in possession of the sun land on the basis thereof Though no formal document of lease was executed or registered, the lease was accepted by the Commissioners as subsisting as found by the Courts below. Accordingly in law it could not be a periodic lease for three years, even so the lease was to be deemed to be a lease from month to month as also on the authority of the decision in Sudhir Kumar Majumdar's case, : AIR1957Cal625 referred to above and accordingly the plaintiff was liable to pay rent to the Municipality and under the terms of auction at the annual rent of Rs. 75/-
9. Mr Guha, however, has contended that distress will be available to the Municipality even under Section 524 only when rent is due under the Bengal Municipal Act The Act however does not authorise the Commissioners to lease out the land like the suit land, under the provisions visions of the Act sc that if a lease is granted by the Municipality the rent due thereon would not be rent due under the Act. For recovery of such rent the Municipality has to take recourse to the ordinary law of the land and for that purpose distress is not available. Sections 402 (1) (b) and 414 (1) (b) provide for leasing out by the Commissioners shops and stalls etc. for rent and rent if due on such lease would be the amount due under the Act for recovery of which distress would be available as has been held in the case of Gajanan Marotrao v. Municipal Commr. of the City of Nagpur Corporation reported in ILR (1962) Bom 637 Section 102 of the Bengal Municipal Act gives powers to the Commissioners to sell, lease or exchange or otherwise to dispose of any land not required for the purpose of the Act and accordingly the power given to the Commissioners in respect of the amount payable in respect of such lease will not be, according to Mr. Guha, for the purpose of the Act, The Commissioners will be at liberty to recover such dues under the ordinary law of the land but not through onerous procedure of distress which is not a procedure under the general laws of the land.
10. Section 102 of the Act gives power to the Commissioners also to deal with or dispose of any land which is not necessary for the purposes of the Act. TheCommissioners by this provision has been given power to deal with or dispose of the land in such a manner provided therein which they may not otherwise be entitled to do being a body corporate formed under a Statute with powers and functions circumscribed by the Statute Lease of land not required for the purpose of this Act will be as exercising of such powers authorised also by the Act under Section 102. If any amount becomes due on account of such rent arising from such lease it will be rent due for lease authorised by the Act as contemplated in Section 524 which provides for recovery of rent The section does not confine itself IK rent in respect of lease for the purpose of the Act but extends tc rent for lease authorised and thus due under the Act Accordingly it is not possible to agree that rent for recovery whereof distress is provided is not rent due under the Act. The procedure of distress is available to the Commissioner for recovery of rent in respect of the lease in Section 102 of the Act as submitted by Mr. Mukherjee for reasons as noted above The lease with respect to the suit land clearly comes under Section 102 and accordingly the distress would available for recovery of rent of the sun land under the said Act as amended by 1961 Act
11. On the above findings the plaintiff is net entitled to a declaration that the lease to him was void or that the Commissioners are not competent in law to recover rent for leases net for the purposes of the Act, though he is entitled to the declaration that the distress issued in 1958 and subsequent proceeding were void on ground of the same being unconstitutional The plaintiff however made an averment and prayer in the plaint that if a sale is held in the mean time that there should be a decree for Rs 400/- only as compensation for the goods attached and sold The Courts have found on evidence that there has been a fatal irregularity in the sale held by the Commissioners as no sale was held 'at the time and place specified in the most public manner possible' as enjoined in the Sub-section (1) of Section 159 and the suit has been accordingly decreed for Rs 400/- with proportionate costs
12 Mr Mukhsrjee has contended that the plaintiff took the position that the distress was illegal and attachment and seizure on the basis thereof was illegal and void This formed the cause of action of the suit and the plaintiff cannot be permitted to challenge the sale on the ground of irregularity in sale which was no part of cause of action and no notice in respect thereof was served under Section 535 of the Act. The Commissioners were also thereby prevented from adducing proper evidence about the legality and validity of the sale that the sale was properly held It is curious that though the written statement by the Commissioners was filed on January 16. 1959there is no whisper therein that the sale had already taken place on April 19. 1958. In the notice it is already stated that the Commissioners were trying to sell the goods by auction seized under distress and in the plaint it was stated that if the sale was held in the meantime he should be given a money decree as compensation for the articles sold The cause of action of the suit accordingly extends to sale if held even assuming that the distress and connected proceeding following were legal and the Commissioners were accordingly required io prove that net only the distress was legal and valid but the sale in distress proceeding was also legal and validly held in accordance with law. The sale was originally notified to be held on March 25. 1958 and was adjourned to April 19. 1958 Accordingly there should have been proper publicity of sale as required under the Sections 157 (4) and 159 (1) which contained mandatory provisions in respect of any sale in distress proceeding Non-compliance with the provisions thereof renders the sale as one being in violation of the provisions of law if prejudice is thereby caused to any interested party. The Commissioners therefore were liable to compensate the plaintiff for the value of the articles as found by the Courts below for their lapses in regard to the holding of the sale. It should be noted that though this point was urged on behalf of the Commissioners in this Court it was not urged in the Courts below and even in the memcrandum of appeal before the appellate Court this ground is not to be found while in this appeal the notice was challenged only in a general form.
13. Tbe appeal accordingly succeeds in part. The findings of the Courts below that there was no lease of the suit land and Rule 263 of the Municipal Account Rules is ultra vires of the Bengal Municipal Act are set aside. It is held that there was a valid lease of the suit land in favour of the plaintiff by the Commissioners and Rule 263 of the Municipal Account Rules is not ultra vires of the Bengal Municipal Act and the rent due on lease under Section 102 is an amount due under the Act. It is further held that the impugned distress and the proceeding following are unconstitutional and the plaintiff is entitled to a decree for compensation as claimed. The decree of the Court below for Rs. 400/- with proportionate costs is affirmed.
There will be no order for costs in this appeal.