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S.M. Nawab Ariff Vs. Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberMatter No. 52 of 1955
Judge
Reported inAIR1960Cal159,64CWN1
ActsCalcutta Municipal Act, 1951 - Sections 237, 245 and 251; ;Constitution of India - Articles 13 and 14
AppellantS.M. Nawab Ariff
RespondentCorporation of Calcutta and ors.
Appellant AdvocateS. Roy, Adv.
Respondent AdvocateGupta and ;B.L. Dutt, Advs.
Cases Referred and Brown v. Board of Education of Topega
Excerpt:
- k.c. das gupta, c.j.1. the question that arises for decision in this application under article 226 of the constitution which has been referred to this bench under chapter v of the original side rules is whether section 237 of the calcutta municipal act is void under article 13 of the constitution of india because of inconsistency with the provisions of article 14 of the constitution. it appears a distress warrant was issued against the petitioner purporting to be under section 237 of the calcutta municipal act for realisation of a sum of money said to be due on account of coasolidated rate assessed for premises no. 3, amratola lane. it was alleged in the application that before the distress warrant was actually issued, no notice of demand as required under section 236 of the calcutta.....
Judgment:

K.C. Das Gupta, C.J.

1. The question that arises for decision in this application under Article 226 of the Constitution which has been referred to this Bench under Chapter V of the Original Side Rules is whether Section 237 of the Calcutta Municipal Act is void under Article 13 of the Constitution of India because of inconsistency with the provisions of Article 14 of the Constitution. It appears a distress warrant was issued against the petitioner purporting to be under Section 237 of the Calcutta Municipal Act for realisation of a sum of money said to be due on account of coasolidated rate assessed for premises No. 3, Amratola Lane. It was alleged in the application that before the distress warrant was actually issued, no notice of demand as required under Section 236 of the Calcutta Municipal Act had been served on the petitioner. It was further urged that Section 237 of the Calcutta Municipal Act of 1951 was ultra vires the Constitution of India being violative of Article 14 of the Constitution. After a Rule Nisi was issued, the allegation that the distress warrant had been issued without previous issue and service of notice under Section 236 of the Act was denied by the respondents. The allegation that Section 237 is ultra vires the Constitution of India was also denied. D. N. Sinha, J. before whom the Rule came up for hearing made this reference under Chapter V of the Original Side Rules as in his view the question raised whether Section 237 of the Calcutta Municipal Act is ultra vires the Constitution because of the inconsistency of Article 14 of the Constitution was a point of substance which required an authoritative determination. It has to be mentioned at the outset that the question whether a notice under Section 236 was sent or not being a disputed question of fact, that question cannot be properly taken up by the Court before which relief under Article 226 of the Constitution is sought. Mr. S. Roy, who appeared before us for the petitioner, agreed that this was the position in law and that the point on which the decision of his client's application will depend is whether Section 237 of the Municipal Act is ultra vires the Constitution, and so void. If it is not shown to be void, the application for relief must be rejected. If the Section is ultra vires the Constitution and therefore void, the applicant will be entitled to relief under Article 226.

2. As has already been indicated, the only ground on which it is said to be ultra vires the Constitution is that it violates the constitutional guarantee in Article 14 of the equal protection of the laws. Chapter XVII of the Calcutta Municipal Act deals with recovery of the consolidated rate and other taxes imposed under the Calcutta Municipal Act. For the recovery of the consolidated rate the Chapter provides three different modes -- one is by distraint, the other is by certificate under the Bengal Demands Recovery Act and the third is by suit, Section 237 which is set out in full below provides for recovery of consolidated rate which is left unpaid within 15 days from the service of notice of demand under Section 236, when no sufficient cause has been shown For non-payment of the same by distress and sale of any movable property belonging to the rate-payer. Section 237 is in these' words:

'(1) If the person liable for the payment of the consolidated rate does not, within fifteen days from the service of a notice of demand under Section 236, pay the sum due, or show sufficient cause to the satisfaction of the Commissioner for, non-payment of the same,such sum, with interest thereon and all costs of recovery, may be recovered under a warrant in the form in Schedule IX. or in a form to the like effect, to be issued by the Commissioner-

(a) by distress and sale of any movable property belonging to such person, or

(b) if such person be the occupier of any premises in respect of which the sum is due, by distress and sale of any movable property found on the said premises;

Provided that, when the premises in respect of which the default is committed are a place of business, and the movable property distrained under Clause (b) is shown to the satisfaction of the Commissioner to have been left there (by some person other than the person referred to in that clause) for repairs or safe custody in the ordinary course of business, it shall be released.

(2) The movable property of any person liable for the payment of any sum, for the recovery of which a warrant has been issued under Sub-section (1), may be distrained wherever the same may be found in Calcutta.

(3) For every warrant issued under this section, a fee shall be charged at the rate mentionedin that behalf in Schedule XI, and the amount ofthe said fee shall be included in the costs of recovery.' ''Section 244 contains provisions for a fresh warrant if the first of the proceeds of a sale of property seized under the first warrant are not sufficient. The relevant portion of this Section is inthese words:

'If the proceeds of any sale under Section 240, proviso, or Section 243 are not sufficient to cover thesum due, together with the costs of recovery, theCommissioner may issue a fresh warrant of distress. in the form in Schedule IX, or in a form to thelike effect, for the recovery of the balance dueand for all additional costs thereof.'' Section 245 provides that:

'After a defaulter has been proceeded against under the foregoing provisions of this Chapter unsuccessfully or with only partial success, the Commissioner may recover from him by certificate under the Bengal Public Demands Recovery Act, 1913, any sum due or the balance of any sum due. as the case may be, together with interest and all costs.'

Section 250 provides that:

'If the Commissioner at any time has reason to believe that any person from whom any turn is duo on account of the consolidated rate is about forthwith to remove from Calcutta, the Commissioner may direct the immediate payment by such person of the sum so due and cause a bill for the same to be presented to him.'

and if, on presentation of such bill, the said person does not forthwith pay the sum, the amount shall be leviable under the provisions of Chap. 17 by distraint under S, 237 or Section 244 or by certificate under Section 245 or under Section 251.

3. It is this Section 251 which raises the question of the denial of equal protection of the laws, the relevant portion of this Section is in these words:

' 'Instead of the Commissioner proceeding against a defaulter under the foregoing provisions of this Chapter, or after a defaulter has been so proceeded against unsuccessfully or with only partial success, it shall be competent for the Corporation to recover from him by suit, in any Court of competent jurisdiction, any sum due, or the balance of any sum due, as the case may be, on account of the consolidated rate together with all costs,' The result of this provision of Section 251, it is said, is that if there are two defaulters similarly circumstanced, the Act allows one defaulter to be proceeded with under Ss. 237, 244 and 245 and another to be proceeded against by way of suit in a Civil Court. The two laws under which persons of the same class can thus be proceeded against are, it is urged, unequal, the procedure by way of distraint being very much more onerous than the procedure by way of suit. There being thus denial of equal protection of the laws, the more onerous law should be struck down as unconstitutional.

4. The principles that have to be applied in ascertaining whether the guarantee of equal protection of laws under Article 14 of the Constitution have been enunciated by the Supreme Court in a number of cases. It is necessary to refer only to a few of the more recent ones.

5. In Budhan Choudhary v. State of Bihar, : 1955CriLJ374 . Das, J. (Now Das C. J.) delivering the unanimous judgment of the Supreme Court said:

'It is now well established that while Article 14 forbids onerous legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be! founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the differentia must have a rational relation 'to the object sought to be achieved by the statute in question. The classification may 'be foundedon different bases, namely. geographical, or according to objects or occupation or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well estiblished by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.'

More recently in R.K. Dabma v. S.R. Tendolkar, : [1959]1SCR279 the Supreme Court considered the different classes in which a statute which might come up for consideration on the question of its validity under Article 14 of the Constitution may be placed and laid down the principles which should be followed in deciding the question. Some of the five classes which are mentioned by Das, C. J. in his judgment are of statutes which do not make any classification of the persons or things for the purpose if applying its provisions but leaves it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In the present case, it has been urged on behalf of the applicant, the law has not made any classification between the different defaulters who may be proceeded against either by the mode of distraint or by the alternative mode of suit and has left it to the discretion of the municipal authority to make the selection. As regards this class Das, C.J. delivering the judgment said:

'A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of 'the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the court will strike down the statute if it does not lay down any principle of policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly ' situate and that, therefore, the discrimination is inherent in' the statute itself.

The learned Chief Justice goes on to say that:

'If it is found that the statute has laid down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification, the court will uphold the law as constitutional as it did in Kathi Raning Rawat v. State of Saurashtra, : 1952CriLJ805 '.

6. In applying this principle to the present case it is first necessary to see whether the statute itself has made any classification and if it has not whether it has left the classification to the discretion of the Government to select or classify persons or things to whom its provisions are to apply and if so to examine and ascertain if it has laid down any principle or policy for the guidance of the exercise of the discretion by the Government in the matter of selection or classification.

7. On the first question namely whether the statute itself has made any classification as between the persons against whom distraint may issue for therecovery of dues and the persons against whom a suit may be filed for such recovery, it is necessary to arrive first at a correct interpretation of the provisions of Section 251. Mr. S. Roy, who appeared before us on behalf of the petitioner, contended that on a proper and indeed the only possible interpretation this section means that in every case where the law permits a distraint to be issued it also permits a suit to be filed for recovery of dues on account of consolidated rate. This, according to him, is the inevitable result of the use by the legislature of the words 'instead of the Commissioner proceeding against a defaulter under the foregoing provisions of this Chapter, or after a defaulter has been so proceeded against unsuccessfully, and with only partial success'. According to Mr. Roy the Section, properly interpreted, exhausts all cases of defaulters by placing them in three categories, the first category consisting of the defaulters who have not been proceeded against by way of distraint or certificate procedure 'under the foregoing provisions of this chapter', the second category consisting of defaulters who have been so proceeded against but unsuccessfully, and the third category of those defaulters who have been proceeded against with only partial success. There can be no doubt that these three categories will exhaust the entire class of defaulters. Thus if Mr. Roy's interpretation of the words 'instead of the Commissioner proceeding against a defaulter under the foregoing provisions of this Chapter, or after a defaulter has been so proceeded against unsuccessfully or with only partial success be accepted, the necessary conclusion is that the legislature authorises the Corporation to proceed against all such defaulters by way of suit for the recovery of arrears of the consolidated rate.

8. The dispute is as regards the interpretation of the phrase 'instead of the Commissioner proceeding against a defaulter under the foregoing provisions of this Chapter'. On behalf of the opposite party Dr. Gupta contended that these words 'instead of the Commissioner proceeding against a defaulter under the foregoing provisions of this chapter' mean 'in the cases where the Commissioner finds it impracticable to proceed against a defaulter under the foregoing provisions of this chapter'. He argues that unless the legislature intended to mean this by the above words, it would have thought it unnecessary to add the further words 'or after a defaulter has been so proceeded against unsuccessfully or with only partial success' for, according to him, even the cases where a defaulter has been proceeded against unsuccessfully or with partial success would be included in the cases of proceeding against the defaulter under the foregoing provisions of this chapter. In my judgment this argument cannot be accepted and that the interpretation sought to be put by Dr. Gupta is wholly unreasonable and cannot be put on these words in their natural meaning according to the rules of English language. I have no hesitation in accepting as correct the interpretation suggested on behalf of the petitioner that the legislature wanted to provide that all defaulters may be proceeded against by way of suit and to achieve that result, they first thought of defaulters who were not at all being proceeded against under the foregoing provisions -- whether because of impracticability or any other reason--then of the defaulters who have been proceeded against under the foregoing provisions but without any success. As these would leave defaulters who have been proceeded against with partial success out of the reach of the Section, the further words were used 'or with only partial success'. In my opinion the words used by the legislature gave full effect to this intention of providing that every class of defaulters could be proceeded against by the Corporation by way of suit, in addition to the mode already provided for the same purpose, namely, recovery by way of distraint or by certificate procedure. The words 'or after a defaulter has been so proceeded against unsuccessfully or with only partial success' do not appear to me at all superfluous but the necessary and inevitable language the legislature had to use to provide for defaulters who have been proceeded against under the foregoing provisions in addition to the defaulters who nave not been so proceeded against at all.

9. Properly interpreted the section provided that every defaulter may, in addition to being proceeded against by way of distraint or by certificate procedure, also be proceeded against by way of suit, as between defaulters who can be proceeded against by way of suit and defaulters who can be proceeded against in other modes the statute has made no classification and it has clearly left it to the discretion of the Commissioner and the Corporation whether a particular defaulter would be proceeded against in one 'way or the other.

10. It is now necessary to examine the statute to ascertain whether it has laid down any principle or policy for the guidance of the exercise of the discretion by these authorities in the matter of selection or classification. I am unable to find any principle or policy for such guidance. Dr. Gupta argued that as in all the other sections preceding Section 251 there is a policy, it will be reasonable to think there is such a policy in Section 251 also. There can be no doubt that Sections 235, 236, 237, 244 and 245 in Chapter XVII preceding Section 251 indicate a definite policy of the legislature, that policy being that first of all a Bill should be presented (Section 235), then if a bill has not been paid within 15 days a notice of demand shall be issued (Section 236), then within 15 days of the service of notice of demand the amount remains unpaid or sufficient cause is not shown for non-payment, distraint may be issued (Section 237), then if by the first distraint the dues are not fully recovered a second distraint may issue (Section 244), and if the Commissioner has reason to believe that any person from whom any sum is due is about forthwith to remove from Calcutta., immediate payment may be demanded and a bill presented therefor and then distraint issued in accordance with the procedure of Sections 243, 244, thereafter certificate procedure under Section 245. According to Dr. Gupta we should read into Section 251 also-a policy that the procedure of suit will be available only if other methods have failed or if it is impracticable to apply the other methods. In my judgment there is no scope for reading such a policy also in Section 251 in view of the very clear words used by the legislature in the phrase 'instead of the Commissioner proceeding against a defaulter under the foregoing provisions of this Chapter, or after a defaulter has been so proceeded against unsuccessfully or with only partial success'. It is settled law that if any interpretation is possible which will save an Act from the attack of unconstitutionality that interpretation should always be accepted ir preference to an alternative interpretation that might also be possible, under which the statute would be void. But it is not for us, the Court, to put an unnatural and forced meaning on the words that have been used by the Legislature in our search for interpretation to save the statutory provisions, or to read a policy which is not there, merely because we think a policy could have been given. It is in my judgment impossible by any known canon of interpretation to read any policy in Section 251 as suggested by Dr. Gupta. My conclusion is that the statute has not laid down any principle or policy for the guidance of the exercise of discretion by the municipal authorities -- the Commissioner and the Corporation -- in the matter of selection or classification of defaulters in deciding whether any particular defaulter should be proceeded against by way of suit or by the other modes. The discrimination is therefore -- to use the language of the Supreme Court in R. K. Dalmia's case. : [1959]1SCR279 -- 'inherent in the statute itself'. We have, therefore, to strike down the discriminating law.

11. Numerous decisions of the Supreme Court have laid down the principle that if the two different laws to which the same person or same class of persons is subjected is really equal in their operation, there is no discrimination; but if one law is more burdensome than the other, the law which is more burdensome will be struck down as the discriminating law. Dr. Gupta submitted that this separate but equal theory which was favoured by the American Courts for a long time specially with regard to the question of discrimination against Negroes, has been rejected finally in the American Courts. I consider it unnecessary to examine the views taken by the American Supreme Courts formerly and now in this matter. In the first place, I do not see how that question affects the first case. In the second place we are bound to follow the guidance of our own Supreme Court in preference to that of the American Courts. Our own Supreme Court has in no uncertain terms laid clown the principle indicated above that it' the two separate laws to which individuals similarly circumstanced are subjected one is more onerous than the other, the one which is more onerous would be struck down. This principle was applied in Suraj Mall Mohta and Co. v, A. V. Visvanatha Sastri, : [1954]26ITR1(SC) , and again in Shree Meenakshi Mills Ltd., Madurai v. A. V. Visvanatha Sastri, : [1954]26ITR713(SC) . In the first case the Supreme Court alter holding that both Section 34 of the Indian Income-tax Act, 1922, and Sub-section (4) of Section 5 of the Taxation on Income (Investigation Commission) Act, 1947, deal with all persons who have similar characteristics and similar properties went on to consider whether the procedure prescribed by the Taxation on Income (Investigation Commission) Act was substantially more prejudicial and more drastic to the assessee under the procedure of the Income-tax Act. Having decided that the procedure prescribed by the Taxation on Income (investigation Commission) Act, 1947, was substantially more prejudicial or more drastic to the assessee than the procedure of the Income-tax Act, the Supreme Court held that Subsection (4) of Section 5 of the Taxation on Income (Investigation Commission) Act, 1947, and the procedure prescribed thereby by this Act in so far as it affects the persons proceeded against under that Sub-section was a piece of discriminatory legislation and offended Article 14 of the Constitution and was therefore void and unenforceable. When by an amendment of Section 34 of the Indian Income-tax Act the cases of the persons who originally fell within the ambit of Section 5(1) of Taxation on Income (Investigation Commission) Act, 1947, and who before this amendment could be said to have formed a distinct class, became liable to be dealt with under the amended section 34, both categories of persons, namely, those who came within the scope of Section 5(1) as well as those within the ambit of Section 34 row formed one class. This position was considered by the Supreme Court in the Menakshi Mills case, : [1954]26ITR713(SC) . The Supreme Court being of opinion that the procedure under Section 5(1) being prejudicial and discriminatory, the provisions of Section 5(1) of the Taxation on Income (Investigation Commission) Act, 1947 voilated Article 14 of the Constitution and became void and unenforceable.

12. It is, therefore, necessary now to decide whether the procedure of distraint provided by Section 237 of the Calcutta Municipal Act, 1951 for recovery of arrears of rates which the petitioner contends is discriminatory against him, is, in fact, more onerous than the alternative procedure of recovery by way of suit. A suit is no doubt, a long term affair and likely to be expensive. It is also true that if a suit is brought and the declaration of a charge is sought in accordance with the provisions of Section 253 of the Calcutta Municipal Act, a charge may be declared by the Court on the land or building or bustee as also upon the movable property found within the land or building or bustee and belonging to the rate-payer. In spite of all this I have no doubt in my mind that if one hundred defaulters were given the choice being proceeded against, by way of distraint and being proceeded against by way of suit, every one of the hundred will prefer to be proceeded against by way of suit to being proceeded against by distraint. For everyone of them, I believe, will consider the procedure by way of distraint much more onerous than the procedure by way of suit, and that, in my opinion, rightly. In the first place, if a suit is brought against the defaulter in place of the procedure by distraint, he will get very much longer time to pay up the arrears. Where the distraint procedure is applied. the rate-payer gets 15 days from the presentation the bill under Section 236 and another 15 days from the service of the notice of demand under Section 237 before a distress warrant can issue. As against this where a suit is brought -- and the suit can be brought immediately after the sum has fallen due. --the rate-payer as defendant will first get a reasonable time for filing the written statement which is likely it most cases to be more than a month after the suit is filed; thereafter several months will be necessarily taken up by both the plaintiff and the defendant in taking the several procedural steps permitted and required by law; thereafter some time more before the suit conies up for hearing; and a little more time before it is disposed of. Between the institution of the suit and the final disposal, there will be several months, very often more than 12 months. If a decree is made against the defaulter, he will have right of appeal and that will in the usual course of things take several months, -- may be more than a year -- for disposal. It is reasonable to think that in most cases, where the Corporation proceeds by way of suit, a rate-payer would get in place of the 30 days or thereabouts which he would have got if the distraint procedure is applied against him for paying the rate, ten or twelve times that period for doing so. It very often will be that he will have to pay much more than the rate but the time he will get for paying the arrears of rate plus the expenses of the suit will, in many cases, be sufficient to enable him to pay up the entire amount without action having to be taken for execution of the decree against him. No less important is the consideration that the very fact that a distrees warrant has issued and the bailiff has come to the house with a distress warrant is extremely harmful to the prestige and dignity of a person and to his reputation in the locality. I have no hesitation, there fore, in coming to the conclusion that the procedure of distraint as provided under Section 237 of the Calcutta Municipal Act is very much more onerous and prejudicial to a defaulting rate-payer, than the procedure of suit under Section 251. The necessary conclusion is that the law as laid down in Section 237 is discriminatory, and violative of Article 14 of tile Constitution and so void under Article 13 of the Constitution. The petitioner is, therefore, entitled, in my opinion, to relief under Article 226 of the Constitution in respect of the distress warrant issued against him.

13. I would, therefore, order that a Writ in the nature of Mandamus do issue commanding the respondent to forbear from executing the distress warrant issued, against the petitioner, and from taking any step, for recovery of the consolidated rate due by way of distress.

The. petitioner will get his costs. Certified for two counsel.

S.C. Lahiri, J.

14. I agree with the judgment delivered by My Lord the Chief Justice and my reasons are as follows;.

15. In my opinion, the Calcutta Municipal Act of 1951 does not contain any reasonable classification, of cases where the procedure by issue of distress warrant is to be followed and cases where the procedure by way of suit is to be applied. Under the statute as it stands the Commissioner has arbitrary power, unguided and uncontrolled by any rules, to realise arrears of consolidated rates either under Section 237 by issuing a distress warrant or by instituting a suit under Section 251. Dr. Gupta appearing for the respondent contended that the opening words of Section 251 indicate that the corporation Is entitled to institute a suit only where it is not pacticable for the Commissioner to proceed against a defaulter under Section 237 or after he has been go proceeded with unsuccessfully or with only partial success. According to Dr. Gupta therefore Section 251 itself authorises the Corporation to institute a suit only when the more onerous procedure for realisation of consolidated rates by issue of distress warrant has proved unsuccessful or has succeeded only in part. The phraseology of Section 251, however, does not bear this construction. On a plain reading of Section 251 it seems to me that the remedies prescribed by that Section and the remedies prescribed by Section 251 are alternative remedies either of which can be resorted to at the discretion of the Commissioner. It is true that a statute may not make a classification of the persons or things to whom or to which its provisions are intended to apply but may at the same time lay down a principle for the guidance of the exercise of discretion by the officers responsible for administration of the statute and in sum cases the statute cannot be regarded as offending against the provisions of Article 14 of the Constitution. In the present case, however, the statute neither makes a classification nor does it lay down any principle for the guidance of the exercise of the discretion by the Commissioner. In the case of : [1959]1SCR279 the Supreme Court has classified the different decisions or the Supreme Court under Article 14 of the Constitution. In my opinion, the present case comes under the third category, at page 772 (of SCA): (at, p. 548 of AIR), where Das C.J. makes the following observations:

'In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the Court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that therefore the discrimination is inherent in the statute itself'.

As I understand this passage it means that in orderto fall within the mischief of Article 14 of the Constitution two conditions must be fulfilled:

(a) the statute must not contain any classification of the persons Or things for the purpose of applying its provisions and

(b) that the statute must not lay down any principle or policy for the guidance of the exercise of discretion by the persons entrusted with the duty of administering the statute.

In the present case the relevant provisions of the Calcutta Municipal Act of 1951 fulfil both these conditions and to quote the words of Das C.J. 'discrimination is inherent in the statute itself'.

16. It is not necessary to consider in detail numerous other decisions of the Supreme Court bearing on the interpretation of Article 14 of the Constitution which were cited at the Bar; because the result of all the previous judgments has been summarised and classified in the case of R.K, Dalmia, : [1959]1SCR279 to which I have already referred. I may only state that a very close parallel to the present case is to be found in the decisions of the Supreme Court in the case of Surajmul Mohta, : [1954]26ITR1(SC) in which Section 5(4) of the Income Tax Investigation Commission Act was held to be bad as violative of Article 14 of the Constitution: and also Meenakshi Mill's case, : [1954]26ITR713(SC) where Section 5(1) of the Income Tax Investigation Commission Act was held to be void on the same ground.

17. It is now necessary to consider whether procedure for recovery of arrears of consolidated rates under Section 237 is more onerous than the procedure for recovery of the same by a suit under Section 251 of the Act. There can be no question that the former procedure is of a summary character under which the rate payer has no right of appeal against the order of the Commissioner and he is given only 15 days' time within which to pay the amount claimed under the notice of demand or to show sufficient cause to the satisfaction of the Commissioner for non-payment of the same. If the Commissioner is not satisfied with the cause shown he 19 authorised to realise the amount due together with all costs of recovery by distress and sale of any movable property belonging to such person or if such persons be the occupier of any premises in Respect of which the sum is due by distress and sale of any movable property found on the premises. In the case of a suit under Section 251, however, the rate payer will have time to file a written statement, also some more time for discovery and inspection of documents and at the trial the rate payer will have the right to corss-examine any witness examined by the rating authority. Above all the rate payer will also have a right of appeal against any decree that maybe passed against him. For these reasons I have no hesitation in holding that the procedure: for recovery of arrears of consolidated rates under Section 237 by distress and sale of the movables of the rate payer is more onerous than the procedure for recovery of the same by a suit. The presence of these two alternative modes for recovery of arrears of consolidated rates without any indication of any principle to guide the discretion of the Commissioner as to the circumstances under which the two alternative modes are to be applied makes the more' onerous procedure void. For the reasons given above I agree with the order proposed by my Lord the Chief Justice.

H.K. Bose, J.

18. I regret that I am unable to agree with my Lord the Chief Justice.

19. The point which has been referred under Chapter V of the Rules of the Original Side of this Court for decision by a Special Bench is whether Section 237 of the Calcutta Municipal Act, 1951, is ultra vires and void as infringing Article 14 of the Constitution.

20. Section 237 reads as follows: (after reproducing the text of Section 237 which is already reproduced in paragraph 2, his Lordship proceeded:)

21. The validity of this Section is attacked on the ground that it confers an uncontrolled and unguided power on an Executive Officer of the Corporation, being the Commissioner, to apply the drastic and onerous procedure of recovery of consolidated rate by the issue of distress warrant in the case of some defaulters of his choice, and to leave other defaulters similarly situated, to be proceeded against by way of a suit which is a much less onerous procedure for recovery of taxes and which affords the tax-payer sufficient opportunities to defend himself against unjust claims and also reasonable breathing time to make the payment.

22. The relevant portion of Section 251 which confers power on the Corporation to recover arrears of consolidated rate by means of a suit may be set our, hereunder (for text of Section 251(1) please see paragraph 3).

23. Now it is obvious that the object of enacting the provisions with regard to recovery of arrears of consolidated rate by means of distress and sale of moveable property, is to ensure speedier collection of the amounts due to the Corporation. In order to enable the public body which exists in the interest of the general public, to effectively and properly discharge the duties imposed upon it, it is necessary that its financial position must be sound and one of the methods by which the stability of its financial position can be maintained is to arm the body with necessary powers to collect its dues as expeditiously as possible. The scheme of the provisions of Chapter XVII of the Act which deal with the procedure for recovery of the consolidated rate and other taxes is broadly this that as soon as the consolidated rate or any instalment thereof falls due, the Commissioner has to cause to be presented to the person liable, with the least practicable delay a bill for the sum due and if the amount of the bill is paid within fifteen days from the date of presentation, a rebate of three and one-eighth per cent of such amount shall be allowed to the payer. (Section 235). If the amount is not paid within fifteen days from the date of presentation the commissioner has to serve upon the person liable a notice of demand in the form in Schedule VIII or in a form to the like effect. (Section 236). If the person liable does not within fifteen days from the service of a notice of demand under Section 236, pay the sum due or show sufficient cause to the satisfaction of the Commissioner for non-payment of the same, it is only then that the Commissioner can issue a distress warrant (Section 237). So the defaulter normally pets a period of one month to pay off the dues before the distress can be levied on his moveable property and he gets fifteen days' time to show sufficient cause for non-payment. Sections 239 to 241 deal with the mode of execution of a distress warrant and Section 242 provides that the amount of property seized in any distress made under this Act shall not be disproportionate to the amount of the arrears due. The sale of the property seized is to take place after the expiry of the period mentioned in the notice which is issued at the time of seizure and inventory of the movable property under Section 240 (Section 243), If the sale proceeds are insufficient for liquidating the dues of the Corporation, the Commissioner can issue a fresh distress warrant in the form in Schedule IX or in a form to the like effect for recovery of the balance due together with ail additional costs. (Section 244.) If the distress procedure fails altogether to realise any part of the dues of the Corporation or it is only partially successful, the Commissioner may then have recourse to the certificate procedure as envisaged in the Bengal Public Demands Recovery Act 1913 for realisation of the dues or the balance of any sum, due, as the case may be together with interest and costs. (Section 245). If there is any defect or irregularity in issuing or executing the distress warrant or in any notice, summons etc. any person aggrieved by such defect or irregularity may recover, in any court of competent jurisdiction full satisfaction of any special damage sustained by him. (Section 249). In case of urgency where the Commissioner has reason to believe that a person liable to pay the consolidated rate is about to remove from Calcutta it shall not be necessary to serve any notice of demand upon such person but the amount may be realised from him by distress and sale if he does not pay upon presentation of a bill. (Section 256)

24. So a well-defined and strictly regulated procedure for speedy realisation of taxes is laid down in these provisions and a top ranking and responsible official is entrusted with the enforcement of these provisions. The power given to the Commissioner cannot therefore be regarded as unbridled or unguided power. Then comes Section 251 which vests to the Corporation the right to bring a suit for realisation of taxes under certain circumstances. The framers of the Act felt or thought that there may be cases where enforcement of the procedure by way of distraint is not practicable or convenient. The defaulter may not have any moveable property at all (although such cases will be very rare) or the moveable properties are all mortgaged to the hilt or they consist of only some hired furniture, and there is no chance of the Corporation realising anything by distress and sale of such properties. In order to provide against such contingencies and contingencies of a like nature, the framers of the Act enacted that instead of the Commissioner proceeding against defaulter by the distress procedure it will be OPEN to the Corporation to proceed against the defaulter by way of a suit. It is true that the expression 'Instead of' occurring in the Section leaves a very wide discretion to the authorities concerned and TO gives scope to the Commissioner not to enforce the provisions for distress in the case of some social or political favourites or in the case of some of his friends and relatives, but such cases will be cases of abuse of the power vested in the Commissioner. Such individual acts will be regarded as discriminatory & unconstitutional and will De struck down when brought to the notice of the Court. But this cannot make the legislation itself a discriminatory piece of legislation offending Article 14 of the Constitution. The various provisions preceding Section 25D impose an absolute obligation on the Commissioner to act according to such provisions and if the Commissioner arbitrarily or for any improper or ulterior motive does not follow these provisions he will be guilty of breach of duty.

25. It is a well-settled proposition which has been affirmed again and, again by the Supreme Court that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. Further in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. Reference may be made to the recent decision of the Supreme Court to the case of : [1959]1SCR279 where S.R. Das C.J. has laid down the above propositions.

26. In the case of Charanjit Lal v. Union of India, : [1950]1SCR869 Fazl Ali J. quoted with approval a passage at page, 579 in Professor Willis's Book on Constitutional Taw (1st Ed.) a portion. whereof may be set out hereunder:

'The inhibition of the amendment (fourteenth amendment) ........ was designed to prevent any person, or class of persons from being singled out as a special subject for discriminating and hostile legislation. It has not take from the States the power to classify either in the adoption of police laws or tax laws or eminent domain laws but permits to them the exercise of a wide scope of discretion and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment is enough. If any state of facts can reasonably be conceived to sustain a classification the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.'

27. Now for realization of taxes some sort of coercive process is essential; and if the coercive process fails in any particular case or it is not practicable to pursue the coercive process in any particular case, ordinary process of recovery of the by way of suit has to be resorted to. I fail to we why the impugned provisions should be struck down, as being unreasonable and discriminatory. The Sections 237 and 251 are general Sections intended' to be applicable to all defaulters alike. In some cases it may be necessary and expedient to have recourse to suit and in other cases the distress procedure will serve the purpose. As I have pointed out already it is possible to conceive of a state of facts where recourse to a suit is the only affective remedy. So following the principles laid down by the Supreme Court it must be held that the classification has a reasonable basis. The policy of the Act in the matter of realisation of taxes is contained in the various sections set out in Chapter XVII of the Act and the authorities responsible for recovery of tbe taxes are guided by this policy.

28. Then again the argument of the learned counsel for the petitioner that the remedy by way of suit is a less onerous procedure is also open to question. If the only remedy that the Corporation can pursue against a defaulter is by way of suit then the Corporation will be driven to file innumerable suits at the end of every quarter when the taxes will fall due and the tax-payer will be saddled with payment of heavy costs in addition to the amount of the claim, in case the suit succeeds, and the more is the number of suits filed against him the greater will be his liability for the payment of the costs of all these suits. There may fee interlocutory proceedings for appointment of receiver or for attachment before judgment, in some cases and this will subject the tax payer to further costs and harassment. It is no doubt true that the defaulter by putting in a written statement can gain time for payment in some casesand can delay the passing of the decree, but thereare also the disadvantages that I have alreadypointed out. On the other band if the only courseopen to the Corporation is to file suits everyquarter against a largo number of defaulters andthus the Corporation is Put to enormous expenseat the end of every quarter, the Corporation willsoon find itself at the end of its resources and itwill be difficult for it to discharge its duties orto carry on the administration.

29. I am, therefore, unable to hold that the Impugned section is void as offending Article 14 of the Constitution.

30. Strong reliance was placed on behalf of the petitioners on Surajmull Mohta's case, : [1954]26ITR1(SC) and Meenakshi Mill's case, : [1954]26ITR713(SC) and attention was also drawn to Bhudan Chowdhury's case, (S) : 1955CriLJ374 ; Pannalal Binjraj v. Union of India, (S) : [1957]1SCR233 and R. K. Dalmia's case. : [1959]1SCR279 and other cases. Dr. Atul Gupta on the other hand relied on the cases reported in Purushottam Govindji v. B. M, Desai, (S) : 1956CriLJ129 ; Collector of Malabar v. E. Ebrahim Hajee, (S) : 1957CriLJ1030 ; Hindu Women's Rights and Property Act, 1937; in the matter of ; Kedar Nath v. State of West Bengal, : 1953CriLJ1621 ; Connecticut Mutual Life Insurance Co. v. Union Trust Co of New York, (1884) 28 Law Ed 704; Horace B. Claflin v. Julius Houseman, (1878) 23 Law Ed 833; S. A. Taylor v. Henry Sternberg, (19351 79 Law Ed 599; Heman Marian Sweatt v. Theophilas Shickel Painter, (1950) 94 Law Ed 1114, and Brown v. Board of Education of Topega, (1954) 98 Law Ed 873 at pp. 878-883 and also on the cases cited on behalf of the petitioners. It is not however necessary to deal with these cases at any length in this judgment.

31. My conclusion is that Section 237 of the Calcutta Municipal Act is not void and it does notinfringe Article 14 of the Constitution.


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