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Chairman of the Commissioners of the Howrah Municipality Vs. Haripada Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtKolkata
Decided On
Reported inAIR1932Cal315
AppellantChairman of the Commissioners of the Howrah Municipality
RespondentHaripada Roy and ors.
Excerpt:
- .....for realization of arrears of municipal taxes due on a holding situate within the limits of the howrah municipality. he prayed for a declaration that the said arrears formed a charge on the holding in question and for an order that he might be at liberty to enforce the said charge. the munsif decreed the two suits and thereafter appeals from the decision of the munsif by the present respondents were dismissed by the subordinate judge. thereafter, they (the present respondents) preferred two second appeals to this court. these appeals came on for hearing before mukerji, j., when, by his judgment dated 20th january 1931, he allowed the appeals. mukerji, j., was of opinion that the decrees, in so far as they declared a charge and provided for the enforcement thereof, could not be.....
Judgment:

C.C. Ghose, Ag. C.J.

1. The facts involved, shortly stated, are as follows: The Chairman of the Municipal Commissioners of Howrah instituted two suits against the present respondents for realization of arrears of Municipal taxes due on a holding situate within the limits of the Howrah Municipality. He prayed for a declaration that the said arrears formed a charge on the holding in question and for an order that he might be at liberty to enforce the said charge. The Munsif decreed the two suits and thereafter appeals from the decision of the Munsif by the present respondents were dismissed by the Subordinate Judge. Thereafter, they (the present respondents) preferred two second appeals to this Court. These appeals came on for hearing before Mukerji, J., when, by his judgment dated 20th January 1931, he allowed the appeals. Mukerji, J., was of opinion that the decrees, in so far as they declared a charge and provided for the enforcement thereof, could not be supported. The Chairman of the Municipal Commissioners of Howrah has now preferred the present appeals.

2. It appears that by a notification of 1908 issued under Section 641, Calcutta Municipal, Act 3 (B.C.) of 1899, some of the provisions of the Calcutta Municipal Act with certain alterations were extended to the town of Howrah. One of these provisions was Section 228 of that Act which ran as follows:

The consolidated rate duo in respect of any building or land shall, subject to the prior payment of the land revenue, if any, due to the Government thereupon, be a first charge upon the said building or land and upon the moveable property, if any, found within or upon such building or land and belonging to the person liable for such rate.

3. The Calcutta Municipal Act of 1899 has now been repealed and has been replaced by the Calcutta Municipal Act of 1923 (Act 3 (B. C.) of 1923). Section 228, Calcutta Municipal Act of 1899, corresponds to Section 205 of the present Calcutta, Municipal Act of 1923. Section 540, Calcutta Municipal Act of 1923, reserves in the Local Government the power to determine and declare by notification their intention to extend to the Municipality of Howrah or to any part thereof subject to the notifications and restrictions if any, specified in such notification all or any portions of the said Act of 1923 which do not already apply thereto. Section 541 of the said Act, gives the Local Government power to extend by notification the said portions after considering the objections that may be preferred against notifications intended to be issued under Section 540. It is common ground that no such notifications under the Calcutta Municipal. Act of 1923 have been issued. The question for decision in these appeals is whether by the repeal of the Calcutta Municipal Act of 1899 by the Act of 1923 the. provisions of the Bengal Municipal Act (Act 3 (B. C.) of 1884) which had ceased to apply to Howrah by reason of the. notification of 1908 were revived and whether the same came to be in force in Howrah.

4. It appears to be reasonably clear from a consideration of the relative provisions in the Bengal Municipal Act that arrears of rates have to be realized by issue of distress warrants and that there is no provision in the Bengal Municipal Act under which the Municipal rates and taxes would operate as a charge on any holding. It is argued on behalf of the appellant before us that by virtue of the provisions of Section 25, Bengal General Clauses Act (l of 1899), the Government notification extending the operation of Section 228, Calcutta Municipal Act of 1899, to the Howrah Municipality continues to be still in force and the notification 'must be deemed to have been issued under the provisions so re-enacted in the Act of 1923, In passing it may be stated that Mukerji, J., was of opinion that Section 25, Bengal General Clauses Act, could not possibly assist the present appellant. Mukerji J.'s reasons are as follows:

Section 25, Bengal General Clauses Act, in my opinion means that if a notification was issued under a repealed enactment it would be deemed to have been issued under the corresponding re-enacted provisions, until or unless it is superseded. Applying this section to the present case, the notification of 1908 issued under Section 641 of the Act of 1899 will be deemed as having been issued under Section 541 of the Act of 1923. But the whole of the Act of 1899 having been repealed, Section 228 of that Act has also been repealed. It is not as if Section 25, Bengal General Clauses Act, will authorize a re-adjustment of the contents of the notification so as to substitute for Section 228 of the -Act, together with the modification which formed the subject-matter of that notification the provision contained in Section 205 of the Act of 1923. What Section 25 means is that the notification under [the repealed Act remains intact and attaches to the new Act as having been made under that particular provision of the new Act which is a ire-enactment of the old one under which the notification was issued. I have been asked on behalf of the respondents to treat the notification as prescribing a rule, worded in the language of Section 228 of the old Act, and not extending the section itself and to hold that the same rule should now be regarded as prescribed by a notification under Section 541 of the now Act. But the answer to this argument is that the provision unless it is a part of the Act will have no statutory force; and treated as a rule, it will be wholly ultra vires.

5. In our opinion, the view taken by Mukerji, J., is correct. As we understand the matter, it amounts to this: it is true that the notification is kept alive by virtue of Section 25, General Clauses Act; but the question is whether the notification, having regard to the events which have happened, is not now entirely nugatory because the notification does not import into the contents thereof the provisions of the corresponding section of the new Act, i. e., (the Calcutta Municipal Act of 1923. In lour opinion, the notification is entirely nugatory and that being so we are of opinion that the judgment of Mukerji, J., must be affirmed. In that view of the matter, the present appeals must stand dismissed with costs.


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