1. This Rule was originally issued against the opposite parties -- The Chairman, Municipality of Bally, the Municipal Commissioners of the Municipality of Bally, the bailiff of the said Municipality and Bhagabati Prasad Ganeriwalla, to show cause why the warrant Nos. 73 and 74 complained of in the petition should not be withdrawn, recalled and cancelled and the boring-machine referred to in the petition returned tothe petitioner forthwith; why a Writ in the natureof Mandamus should not issue on the opposite-party Nos. 1 to 3 directing them to release andreturn the boring machine to the petitioner orwhy such other or further orders should not bemade as to the Court may seem fit and proper.Since the issue of the Rule, the Municipality ofBally has been superseded and instead of the original opposite parties Nos. 1 & 2, has been substituted the Administrator appointed to administerthe affairs of the Municipality. The facts of thiscase are shortly as follows:
2. According to the petitioner, opposite partyNo. 4 Bhagabati Prasad Ganeriwalla is the ownerof premises No. 16, Belur Road, Lilooah, which iswithin the jurisdiction of the said Municipality,and he is a tenant in respect of a portion of theground floor. It is stated by the administratorthat the recorded owner of the said premises isRameswar Lal Ganeriwalla, who, I understand, isthe father of the Opposite party No. 4. However,I shall proceed on the footing that RameswarLal Ganeriwalla is the owner of the premises.
It appears that the petitioner is a tenant in respect of a portion of the ground-floor and carries on business there as a dealer in timber. The entire premises consist of a number of buildings and the whole area extends to about 15 bighas. At the relevant time, the petitioner had within the premises a boring-machine. According to him, it was embedded in the earth. According to the bailiff's report, it was fixed to the earth with big nails. Municipal rates in respect of such holding remained in arrears to the extent of about Rs. 5,000/- for the 3rd and 4th quarters of 1950-51 and the 1st, 2nd and 3rd quarters of 1951-52. Two demand notices in respect thereof were served on Rameswar Ganeriwalla. on the 28th December 1951. These are respectively for the sums of Rs. 2970/- and Rs. 1980/-. No payment was made. A distress warrant was issued on the 10th October 1952. It is alleged that on the 14th October 1952 the bailiff went to execute the distress warrant at 16, Belur Road, but could not execute the warrant on account of having been vehemently obstructed. The original report of the bailiff dated 14th October 1952 has been produced before me and runs as follows :
'To the Chairman, Bally Municipality,
I beg to inform you that I attempted to execute the warrant issued against the holding NO. 16, Belur Road, owner of which is Sj. Rameswar Ganeriwalla. But I was vehemently obstructed from discharge in my duties. So it is not possible for me to execute the warrant without police help.
Submitted for taking necessary action.
Pasupati Nath Har Choudhury.'
3. Neither from this report, nor from the affidavit of the Administrator, does it appear, that on that date there was any attempt to seize this boring-machine or that the obstruction on that date had anything to do with the petitioner. However, after this, police help was requisitioned and on the 12th January 1953 the bailiff again went there accompanied by a police party to execute the warrant. It is on that date that it appears that the bailiff for the first time attempted to seize this boring-machine, and it is, said that some Punjabees alleging themselves as tenants prevented the bailiff from seizing the machine. This presumably refers to the petitioner. On that date nothing further was done. On 13th January 1953 a police party with the bailiff and accompanied by the Additional District Magistrate went for the purpose of executing the warrant, and on this date they succeeded in seizing this machine which was then removed to the Municipal office. The petitioner then applied to this Court and a Rule was issued; An 'ad interim' injunction was issued staying further proceedings, and the machine has not yet been sold.
4. The points made by Mr. De appearing on behalf of the petitioners are as follows: Firstly, he draws my attention to Section 165 of the Bengal Municipal Act 1932. He says that under this section, the amount due from the owner could be recovered from the occupier, but no arrears of rate can be so recovered from the occupier if it has remained due from the owner for more than one year, in my opinion, this section does not apply to the facts of the present case. In this particular case, the Municipality has not proceeded against the occupier. It has proceeded against the owner, against whom the warrant was issued and the bailiff attempted to execute the warrant in terms of Section 156 of the Bengal Municipal Act. Under Section 156, if any person does not, after service upon him of the bill and notice (referred to in Section 155), within fifteen days of service of such notice, pay the sum due, or show sufficient cause for non-payment, then the amount of the arrears together with costs could at any time within one year after the date of service of the said notice, be levied by distress and sale of any movable property belonging to the defaulter except, amongst other things, the tools or implements of trade, wherever found, or any moveable property belonging to any other person, subject to the same exceptions, which may be found within the holding in respect of which such defaulter is liable to any tax, fee or rate.
5. Therefore, it is obvious that a warrant issued can be executed against any movable property belonging to any other person which might be found in the premises in respect of which default has occurred. But there are certain limitations to this rule. The first limitation is that it must not be a tool or implement of trade. Secondly, the arrears of such rates, taxes etc., can be levied by distress and sale of such movable properties aforesaid, only within one year after the date of service of the notice.
6. In my opinion, both these limitations apply to this case. Firstly, the boring-machine was clearly a tool and/or implement of trade. The petitioner carried on a timber business and a boring-machine is certainly a tool or implement of trade in respect of a timber business. He has clearly alleged in his petition that it is so. The Administrator has filed an affidavit and has denied that it is a tool or implement of trade. To start with, I regret to say that I cannot place much reliance on the affidavit in opposition filed by the Administrator. In the nature of things, the facts stated in the petition could not be true to his knowledge. Most of the paragraphs in the affidavit in opposition are verified as true to informations derived from the office records. In the affidavit in opposition I find that an attempt has been made to establish that this machine was not a tool or an implement of trade, because it was found that the machine in question was lying idle and was not being worked and that it was kept by the side of the verandah of the residential quarter in an open field far away from any shed or factory.
I asked the learned Advocate appearing on behalf of the opposite parties as to what was the foundation for this statement and what office record was consulted as a foundation for this statement. Mr. Basu appearing on behalf of the Administrator relied on the report of the bailiff dated the 14th October 1952 which I have already mentioned above, and also to the return of the bailiff after the seizure. In the second mentioned document the only statement is that an old-boring machine in good condition was seized at 16, Belur Road, and that this machine was on the side of a verandah of a residential house. It further goes to state that a label of 'Samuel Machinery Co.' was affixed to the machine and that the machine was affixed to the earth by large nails.
7. If the machine was on the side of a verandah and embedded in the earth by large nails and in good running condition, it does not follow that it was lying idle or was not being worked. I am unable to see how the Administrator could make such an inference from these two documents. There is no foundation at all for jumping to such a conclusion and making such a categorical statement. The bailiff has made no affidavit himself. I cannot accept such statements as proof that the boring machine was not used as an implement or tool of trade by the petitioner.
8. Coming now to the second point, it is true that the warrant was originally issued within time, but the actual seizure of the petitioner's machine was made for the first time after the time of one year permissible under Section 156 to levy distress had expired. Mr. Basu has argued that it was sufficient if the warrant was issued within one year, and subsequent proceedings should be deemed to be a continuation thereof. That may be so, so far as the person is concerned against whom the warrant has been issued. But in so far as a third person is concerned against whom there is no claim for arrears of rates or taxes, but whose goods are being seized only because they happen to be within the premises, the relevant date is the date of the seizure. As I have already pointed out, there is nothing before me to show that on any date before the 12th January 1952, there was any attempt to seize the petitioner's machine.
9. The result is that the Municipality has levied distress warrant on the petitioner's machine which is exempted under Section 156 and further that the seizure has been made beyond the time limit imposed by Section 156. The basic idea of Section 156 seems to be quite clear. It is to aid and assist the Municipality in realising its rates and taxes. It gives to the Municipality the right to proceed by way of execution, against goods belonging to others lying in the premises in respect of which the distress warrant has been issued. But when it comes to the taking of somebody else's goods, the law must be strictly construed and the action must be well within the four corners of the Act. As I have shown above, two very important conditions laid down had not been fulfilled.
10. Lastly, comes the question whether the petitioner has proceeded properly under Article 226 of the Constitution. My attention has been drawn to Section 535 of the Bengal Municipal Act in which it has been stated that no suit or legal proceedings shall be brought against the Commissioners of the Municipality without giving them one month's prior notice. This has not clearly abrogated the powers of this court under Article 228 of the Constitution. In this particular case, if the petitioner followed his ordinary legal remedies, the result would have been that the machine would have been sold and lost to him before any effective action could have been taken. Therefore, the alternative remedy was not equally convenient or efficacious. Under the circumstances, I think that the petitioner was justified in coming to this Court for relief. It is certainly incumbent upon the administrator to forbear from levying distress illegally and in contravention of the Bengal Municipal Act.
11. There is another point that Mr. De made, viz., that the Municipality proceeded mala, fide. The complaint is that the Municipality was really proceeding at the instance of the landlords. It is, however, not necessary for me to go into that point, nor is it possible to decide this particular point on the affidavits before me without taking evidence.
12. The result is that the Rule is made absolute. A Writ in the nature of Mandamus will issue on the substituted respondent directing him to release and/ or restore the boring-machine belonging to the petitioner to him forthwith and he is directed to forbear from giving effect to the distress warrant by proceeding against the said boring machine.
13. It is quite possible that the Municipality was genuinely mistaken or misdirected into seizing the petitioner's machine. There will, therefore, be no order as to costs.