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Karnani Properties Ltd. Vs. the Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberMatter No. 159 of 1971
Judge
Reported inAIR1973Cal488
ActsConstitution of India - Article 226; ;Calcutta Municipal Act, 1951 - Sections 165, 168, 172, 180, 181, 191, 200, 235 and 236
AppellantKarnani Properties Ltd.
RespondentThe Corporation of Calcutta and ors.
DispositionPetition dismissed
Cases ReferredBombay v. Zoroastrian Building Society Ltd.
Excerpt:
- .....1st quarter 1968-69 to 4lh quarter 1970-71, being annexure 'a' to the petition, both shares of the rate bills relating to the said 17 premises described in annexures 'b' and 'c' of the petition, the three letters dated 17th of march, 1971 and the notices of demand dated 3rd march, 1971, being annexure 'd' to the petition and the rate bills dated 1st of january, 1971, being annexure 'f' to the petition. in order to appreciate the contentions urged in this application it would be necessary to set out certain facts. on the 1st of may, 1952, the calcutta municipal act, 1951 came into force. prior to 26th of june, 1954, there was a general valuation of all lands and buildings in the then ward no. 53 in which all the premises of the petitioner mentioned hereinbefore were situated under section.....
Judgment:
ORDER

Sabyasachi Mukharji, J.

1. The petitioner, a limited company, challenges in this application under Article 226 of the Constitution, the Kate Bills for both owner's share and occupier's share of consolidated rates relating to 17 Premises under the Calcutta Municipal Act, 1951, being Premises Nos. 21, 23, 25-A, 25-B, 27-A, 27-B, 29, 31, 33, 35, 37, 39, 43, 45, 47, 55 and 57, Park Street, Calcutta, for the period starting with the 1st quarter 1968-69 to 4lh quarter 1970-71, being Annexure 'A' to the petition, both shares of the Rate Bills relating to the said 17 Premises described in Annexures 'B' and 'C' of the petition, the three letters dated 17th of March, 1971 and the notices of demand dated 3rd March, 1971, being Annexure 'D' to the petition and the Rate Bills dated 1st of January, 1971, being Annexure 'F' to the petition. In order to appreciate the contentions urged in this application it would be necessary to set out certain facts. On the 1st of May, 1952, the Calcutta Municipal Act, 1951 came into force. Prior to 26th of June, 1954, there was a general valuation of all lands and buildings in the then Ward No. 53 in which all the premises of the petitioner mentioned hereinbefore were situated under Section 172 (2) of the Act of 1951. With effect from the 2nd quarter 1954-55, the Assessor to the Corporation of Calcutta sought to amalgamate sixteen of the premises of the petitioner into three premises and put amalgamated calculations therein. On the 5th of December, 1955, on the application made by the petitioner under Article 226 of the Constitution, an order was passed by D. N. Sinha, J., (as his Lordship then was), whereby the said amalgamations and new valuations were quashed and the learned Judge directed the Corporation to proceed according to law. Between 9th of March, 1957 and 12th of March, 1957, four notices under Section 175 of the Act were issued by the then Commissioner of the Corporation of Calcutta proposing to amalgamate the said sixteen premises. Between 31st March, I960 and 6th April, 1960, by sixteen notices under Section 180 of the Act of 1951 in respect of the said premises excepting premises No. 27-B, Park Street, the petitioner was informed by the Assessor that the valuation under Section 172 (3) (b) read with Section 172 (4), as shown in the said notices, would remain in force from 2nd quarter of 1954-55 until further valuation the earlier valuation having been cancelled on the ground of irregularity. On the 18th of April, 1960 four letters from Assistant Assessor were written to the petitioner, informing that the four notices of proposed amalgamation stood cancelled and separate notices for revaluation would be issued. On the 12th of September, 1960, seventeen notices under Section 180 of the Act of 1951 one in respect of each of the said seventeen premises, intimating the petitioner about the increased annual valuation of the said premises with effect from the second quarter of 1960-61, were issued. On the 22nd of March, 1963, several orders were passed by the Special Officer of the Corporation of Calcutta disposing of objections filed by the petitioner in respect of two lots of notices under S. 180 of the said Act. On the 20th of September, 1963, the petitioner moved an application under Article 226 of the Constitution against the notices issued under Section 180 of the Act of 1951 and the said orders thereon, all dated 22nd March, 1963, whereupon a Rule was issued which was numbered as Matter No. 398 of 1963. On the 6th of March, 1964 interim order of injunction was passed in the said Matter No. 398 of 1963 and on the 11th March, 1965, the said matter was heard. Between 7th of January, 1967 and 7th of March, 1967, the petitioner received twenty Rate Bills for 3rd and 4th Quarters 1966-67 in respect of the Premises Nos. 25-A, 25-B, 27-A, 27-B and 47, Park Street, by which the respondent sought to charge the consolidated tax in respect of the said premises at the rate of 30 1/2%. On 12th April, 1967, the respondent No. 3, also presented to the petitioner certain Rate Bills being the difference of rate bills for the period of 1st and 2nd quarters of 1966-67, the previous rate bills in respect of the said quarters having been presented at the rate of 23 1/2% in respect of the premises Nos. 25-A, 25-B, 27-A, 27-B and 47, Park Street, Calcutta. On 29th of April, 1967, the petitioner wrote a letter wherein the petitioner contended that the State Government did not give any approval to the increase of consolidated rates and as such the respondent had no power to realise the difference on the alleged increase of rate of consolidated rates. This point, however, was fully explained in the affidavits filed on behalf of the respondent in this application under Article 226 of the Constitution, and the petitioner has not pressed this point in this application. I need not therefore consider any further this contention. On the 6th of May, 1967 by a letter, the respondent No. 3 withdrew all the said rate bills presented to the petitioner by the letters dated 7th January, 1967, 7th March, 1967 and 12th April, 1967. Between 27th of June, 1967 and 1st of August, 1967, by the two letters the respondent was demanding payment for subsequent period. On the 1st of April, 1968, the bills for the first quarters 1968-69 in respect of the said premises were issued. The petitioner contends that the said bills were unsigned bills and as such did not create any liability. I shall deal with this contention later.

On the 20th of May, 1968, the matter No. 398 of 1963, was disposed of by a judgment and order passed by B. N. Banerjee, J. and the interim order was vacated. The petitioner thereafter preferred an appeal against the said judgment, being appeal No. 185 of 1968. The said appeal has subsequently been disposed of and the judgment of the learned trial judge has been upheld. While the said appeal was pending, the respondent No, 3 presented certain rate bills relating to the seventeen premises. The petitioner also contends that the said rate bills are unsigned. On the 1st of December, 1969, seventeen letters were issued in respect of the seventeen premises whereby the respondent No. 3, presented bunch of rate bills all dated 1st of November, 1969 under Section 235 of the Act relating to both the owner's share and occupiers' share. On the 1st of December, 1969, by fourteen letters, one each in respect of premises Nos. 21, 23, 25A, 25B, 27A, 27B, 35, 37, 39, 43, 45, 47, 55 and 57 Park Street the respondent No. 3, also presented under Section 235 of the said Act supplementary rate bills dated 1st of November, 1969 and all signed by the bailiff of the Corporation of Calcutta relating to both owner's share and occupier's share. On the 4th of February, 1971, by seventeen letters, one each in respect of the said seventeen premises the respondent No. 3 forwarded to the petitioner several rate bills relating to both the owner's share and occupier's share of tax in respect of the said premises for the periods 4th quarter 1966-67 to 3rd Quarter 1967-68. The respondent also forwarded to the petitioner bills in respect of the both shares for the periods 1st and 2nd quarters 1966-67. On the 17th of March, 1971, by three letters the respondent No. 3, forwarded to the petitioners three bunches of notices of demand dated 3rd March, 1971, under Sections 236 and 200 of the Act. On the 1st of April, 1971, there was a letter from the petitioner demanding justice. On the 12th of April, 1971, the petitioner moved this Court under Article 226 of the Constitution in this application and obtained rule nisi from this Court

2. The first point urged in support of this application was that the petitioner had not received any rate bills under Section 235 of the Calcutta Municipal Act, 1951 in respect of some of the premises for certain periods for which demands had been made. The said allegations are contained in paragraphs 21 and 22 of the petition. It was contended that the petitioner had no obligation to make any payment under Section 236 or under Section 200 of the Calcutta Municipal Act, 1951 without presentation of the Rate Bills under Section 235 of the Act. In view of the statements contained in paragraph 21 of the affidavit of Sri Pratip Kumar Ghose affirmed on the 21st of July, 1971 and paragraph 1 (c) of the affidavit affirmed on the 21st July, 1972, it is not possible to accept these contentions urged by the petitioner. In view of the fact that it has been stated that the said rate bills had been sent under certificates of posting and in view of the fact that the documents were offered for inspection, I am inclined to accept the version of the Corporation of Calcutta on this aspect. Furthermore, it appears to me that the question whether or not the rate bills had been sent or presented to the petitioner in this case, raises a dispute of fact of such a nature which it would not be appropriate to decide in this application under Article 226 of the Constitution. In the aforesaid view of the matter I am unable to accept the first contention urged in support of his application.

3. The second contention that was urged in support of the application was that the notices of demand in respect of some of the premises had been sent to the petitioner though for some part of the demand had already been paid. This allegation was made in paragraph 23 of the petition. In paragraph 22 of the affidavit of Sri Pratip Kumar Ghose, affirmed on the 21st July, 1971 and in paragraph 1 (e) of the affidavit of the said Sri Pratip Kumar Ghose, affirmed on the 21st July, 1972, this allegation has been denied. Therefore, I am unable to accept this allegation of the petitioner. The second contention urged in support of this application, therefore, also fails. The next contention urged by the petitioner was that the Rate Bills which have been mentioned hereinbefore were not signed by the proper authority. It was contended that unsigned Rate Bills did not create any liability and without presentation of the Rate Bills no demand could be made from the petitioner. In support of this contention reliance was placed on the rules framed under Section 2 (4) of the Calcutta Municipal Act, 1923. Reliance was placed on the Rule 258 in the Assessment and Collection Manual. The said Manual was published in 1916. It appears that under the Calcutta Municipal Act, 1951, no rules have been framed which require signing or stamping of the Rate Bills. It is true that the Collection and Assessment Manual indicated that the Rate Bills should be signed. But the question is, does that rule create any procedure required to be followed by the Corporation of Calcutta. It was held in the case of the Corporation of Calcutta v. Moti Chand Chowdhury, (1936) 40 CWN 818, that the rules of the 'Assessment and Collection Manual of the Corporation of Calcutta, 1917' did not have the force of law and might be ignored if these were inconsistent with the provisions of the Calcutta Municipal Act In the case of Union of India v. Corporation of Calcutta, (1955) 59 Cal WN 91, it was observed that rules contained in the Assessment and Collection Manual, 1917 of the Corporation of Calcutta had not the force of law and might be ignored if these Were inconsistent with the provisions of the Calcutta Municipal Act. It was further observed that there was no law which required that a practice, however convenient it might and however fairly it might work out over a period of years, that it must be observed. In the case of R. Abdulla Rowther v. The State Transport Appellate Tribunal, Madras, AIR 1959 SC 896, it was observed that the rules not framed under the Statutes, did not create any statutory obligation. Counsel for the petitioner, however contended that there was no provision in the Calcutta Municipal Act, 1951, which were inconsistent with the requirements of the 'Assessment and the Collection Manual' that the Bills should be signed, further-more, as no rules had been framed under the Calcutta Municipal Act, 1951, the old rules under the Calcutta Municipal Act, 1899 and which were continued by the Calcutta Municipal Act, 1923, would be deemed to have continued and in any event, quite apart from the requirements of any rules under the law, no liability could however be created by an unsigned document. It is true that the contentions of Counsel for the petitioner are substantial, specially the last one. But it seems to me that in view of the procedure and practice followed by the Corporation of Calcutta, which has been explained fully in paragraph 1 (a) and the different sub-paragraphs thereof of the affidavit of Sri Pratip Kumar Ghosh, affirmed on the 21st of July, 1972 and further in view of the fact that the petitioner had all along been aware of the said practice and had paid in the past the Corporation dues on the so called unsigned bills, it would not be appropriate to allow the petitioner to urge this point in this application. Counsel for the respondent contended in answer to the argument of counsel for the petitioner, that that liability arose not on the presentation of the bill but under the Act. But in view of the provisions of Sections 165, 168, 172, 180, 181, 191, 200, 235, 236 of the Act of 1951 and the general scheme of the Calcutta Municipal Act, 1951, it appears to me that though the liability to be taxed arises under the different provisions of the Act, the liability to pay arises on the bills being presented. But for the reasons mentioned hereinbefore this point urged in support of this application cannot be accepted. I must however observe that the Corporation of Calcutta will be well advised to rationalise this process and introduce the system of sending signed bills, otherwise it might create complications in future.

4. The next question that requires consideration in this application is whether the attempt to realise both the owner's shares and the occupier's shares from the petitioner in respect of the several premises for the period mentioned hereinbefore, is justified in the facts and circumstances of this case. The authority of the Corporation of Calcutta to realise and collect the entire consolidated rate from the petitioner being the owner of the premises is dependent upon the provisions of Section 200 of the Calcutta Municipal Act, 1951. Section 200 of the said Act is in the following terms:--

'If any land or building is ordinarily occupied by more than one person holding in severalty, or is valued at less than five hundred rupees, the Commissioner may, notwithstanding anything contained in Section 191, levy the entire consolidated rate from the owner of such land or building.'

Section 191 of the Act provides-

'One-half of the consolidated rate shall be payable by the owners of the lands and buildings and the other half by the occupiers thereof.'

The first contention urged on this aspect by counsel for the petitioner was that Section 200 vested the Commissioner with a discretionary power without providing any guideline for the use of such discretion. As such it was contended that the section was arbitrary and violative of the rights of the petitioner and should be struck down. In support of this contention reliance was placed on the decision of this Court in the case of S. M. Nawab Ariff v. The Corporation of Calcutta, : AIR1960Cal159 . It is true that Section 200 gives certain discretion to the Commissioner of the Corporation of Calcutta. The section grants an additional power of realisation. But the scope of the discretion, in my opinion, is circumscribed by the conditions mentioned in Section 200 itself, namely, either land or building must be occupied by more than one person holding in severally, or it must be valued at less than five hundred rupees. If either of these conditions are fulfilled and unless the occupiers voluntarily pay then shares of the consolidated rate to the Corporation, the Commissioner, in my opinion, is bound to take resort for the purpose of speedy realisation to Section 200 of the Act. If either of these conditions are not fulfilled and if the occupiers do not voluntarily pay their shares, then and under those circumstances, in my opinion, the Commissioner has no discretion but has to take resort to Section 200. Reading the section in the aforesaid light I find not the conferment of any unguided or arbitrary power to the Commissioner but an additional power to facilitate the speedy realisation of the dues of the Corporation. In the aforesaid view of the matter it is not possible to accept the argument that the aforesaid section violates the rights of the petitioner.

5. The next contention on this aspect of the matter was that before the order for levy, the petitioner was entitled to a hearing. It was contended that the decision to levy both the occupier's and the owner's share was a decision which affected the liability of the party and as such was quasi-judicial in nature. On the other hand, it was contended that such order was administrative. It was further argued that irrespective of the position, whether, the order in question was quasi-judicial or administrative, it was required that such an order should be passed fairly and equitably, and reliance was placed upon the decision of the Supreme Court in the case of A. K. Kraipak v. Union of India, : [1970]1SCR457 . It is not necessary for me in this application to decide whether the order in question is administrative or quasi-judicial. It is true that the order or decision in question creates certain amount of liability against whom such an order is made. But the decision can be taken upon fulfilment of certain objective conditions, namely, either the premises are occupied by more than one person in severally or the value of the premises is less than five hundred rupees. If and when such a decision is taken and if either of these objective conditions are not fulfilled, then the aggrieved party, in my opinion, would be at liberty to adduce evidence and facts before the Commissioner to the effect that these conditions are not fulfilled and the Commissioner in appropriate cases would be obliged to determine such a dispute and in proper cases, if necessary, by giving an opportunity of hearing to the party concerned. Such a situation, however, does not arise in this case. It has been stated that from the beginning the petitioner had paid both the owner's and the occupier's shares in respect of the said premises. A statement has been annexed with the affidavit of Sri Pratip Kumar Ghose, affirmed on 21st July, 1972, indicating how and in what manner the petitioner had taken advantage of paying both the shares. Furthermore, and in any event, the petitioner did not protest against the demands when made. In the premises the petitioner cannot be allowed to urge this point in this application. Reliance was placed on the decision in the case of N. I. Caterers (P) Ltd. v. Stale of Punjab, : [1967]3SCR399 and Sales Tax Officer, Jabalpur v. Hanuman Prasad : [1967]1SCR831 . In my opinion the said decisions are not relevant for the determination of the present controversy.

6. The next question that requires consideration in this application is whether, without any prior order, a mere presentation of the Bill can be made in respect of the both the owner's and the occupier's shares. This contention depends upon the meaning of the expression 'levy' in Section 200 of the Act. The expression 'levy' is a common expression in taxing and fiscal statutes and has various shades of meaning depending upon the different contexts in which it is used. In Webster's Dictionary it has been staled that it means 'to assess for the purpose of collecting money, also to enforce an execution of certain sum'. Levy sometimes signifies the process of assessment or determination of the liability and in others the realisation or collection. Having regard to the scheme of the Act, in my opinion, it appears to me that the expression levy has been used in the section for the purpose of signifying collection. This is an additional power for collection in certain contingencies and in that sense the expression 'levy' has been used. In this connection reliance was placed on the decision in the case of Commr. of Income-tax, Bombay v. Zoroastrian Building Society Ltd., Bombay : AIR1955Bom273 . It is not necessary in my opinion, to discuss the aforesaid decision in the view I have taken of the expression 'levy'. The expression used in a particular statute should be construed in the context in which it is used.

7. For the reasons mentioned hereinbefore this application fails and is accordingly dismissed. The rule nisi is discharged, interim order, if any, is vacated. There will be no order as to costs of this application.


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