1. These two appeals have arisen out of two suits which the respondent, the Chairman of the Municipal Commissioners of Howrah, instituted against the appellant and others as defendants for realization of arrears of Municipal taxes due on a holding situated within the limits of the Howrah Municipality by a declaration that the said arrears form a charge on the holding and by enforcement of the said charge. The suits were decreed by the Munsif and appeals from that decision preferred by the present appellant have been dismissed by the Subordinate Judge. From the last-mentioned decrees defendant 1 in these suits has preferred the appeals.
2. The decrees of the Munsif which have been affirmed on appeal by the Subordinate Judge run in these words:
The suit be decreed...The defendants shall pay the decretal amount within thirty days; in default the same shall be realized by sale of the land and buildings in the holding in suit, and all moveable, found therein and belonging to the assessees whose names appear in the assessment registers of the plaintiff Municipality.
3. It is obvious that the wording of the decrees follows the language of Section 205, Calcutta Municipal Act (Bengal. Act 3) of 1923. The question in these appeals is whether this section applies to Howrah.
4. The Calcutta Municipal Act (Bengal Act 3 of 1899) primarily applied to Calcutta. But by a notification of 1908, which will be presently set out, issued under Section 641 of that Act some of its provisions with certain alterations were extended to the town of Howrah. One of these provisions was Section 228 of that Act, which corresponds to Section 205, Calcutta Municipal Act (Bengal Act 3) of 1923. Section 1, Sub-section (2) of the Act of 1923 provides that:
except as is hereinafter otherwise expressly provided it applies only to Calcutta.
5. Section 2 of the Act of 1923 repeals the earlier Act of 1899. Section 540 of the 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 other Municipality in the neighbourhood of Calcutta or to any part thereof, subject to the modifications and restrictions, if any, specified in such notification all or any portions of this Act which do not already apply thereto. Section 541 of the Act gives the Local Government power to extend by notification the said portions after considering the objections that may be preferred on the notification as to the intention to extend having been issued under Section 540. It is conceded that no such notifications have yet been issued. It may be stated here that Sections 540 and 541 of the Act of 1923 correspond respectively to Sections 640 and 641 of the Act of 1899, the difference being that while in the Act of 1899 power was reserved in the Local Government to extend that Act to Howrah only or to any part thereof, in the Act of 1923 power is given to extend the Act also to any other Municipality in the neighbourhood of Calcutta or any part thereof.
6. Now the question which arises in the case was hardly considered by the Munsif with any degree of seriousness. The Munsif's reasoning seems to be that by the repeal of the Act of 1899 by. the Act of 1923, the provisions of the Bengal Municipal Act (Bengal Act 3 of 1884) which had ceased to apply to Howrah, by reason of the notification of 1908, were revived and again came to be in force there. He was evidently under the impression that there is in the Bengal Municipal Act some provision under which the tax could be treated as a charge on the holding. I have not been shown any such provision and the respondents have not relied before me on the Munsif's view. It would seem that under the Bengal Municipal Act the arrears have to be realized by distress (vide Sections 121 and 122).
7. The Subordinate Judge has held that
by virtue of the provision of Section 25, Bengal General Clauses Act (1 of 1899), the Government notification extending the operation of Section 228, Calcutta Municipal Act, 1899 to the Howrah Municipality continues in force and be deemed to have been issued under the provisions so re-enacted, as the provisions of Section 228 are not inconsistent with the provision of Section 205, of the new Calcutta Municipal Act 1923 and it is not superseded by any Government notification issued under the provision so re-enacted.
8. In my opinion Section 25, Bengal General Clauses Act, does not assist the respondents.
9. The notification that was issued under the Calcutta Municipal Act 1899 will be found in the Calcutta Gazette of 15th January 1908, Pt. 1-B, pp. 4 and 5. The relevant portion of it runs thus:
No. 81 M.--The 13th January 1908. In exercise of the powers conferred by Section 641, Sub-section (2), Calcutta Municipal Act 1899. The Lieutenant-Governor is pleased to extend to the town of Howrah the portions of that Act which are set forth in the annexure to this notification, subject to the modification and restrictions shown in antique type in that annexure.
Portions of the Calcutta Municipal Act. 1899, extended to Howrah with modification and restrictions shown in antique type.
228. 'Any rate or fee due to the Municipal Commissioners' in respect
The rate or fee of any building or land to be a first charge shall subject to the prior on premises. payment of the land revenue, i any, due to the Government thereupon, be a first charge upon the said building or land upon the moveable property, if any, found within or upon such building or land and belonging to the person liable for such rate or fee.
10. 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 re-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 not be regarded as prescribed by a notification under Section 541 of the new 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.
11. For these reasons I am of opinion' that the decree, in so far as it declares a charge and provides for the enforcement thereof, cannot be supported. The appeals are allowed and the decisions of the Court of appeal below being reversed it is ordered that simple decree for money in respect of the amount of arrears decreed by the Munsif be passed. I should state here that the appellant has not said anything to contest such a decree; though if the Bengal Municipal Act applies to the case such a decree-would be wholly unnecessary, the Commissioners themselves having the power-to realize the arrears by distress.
12. The appellant will have his costs in these two appeals against the plaintiffs-respondents in this Court and in the Court of appeal below.
13. Leave is granted to the plaintiffs-respondents to prefer appeals under the Letters Patent from this decision.