1. The plaintiffs are the owners and occupiers of certain premises situated within the Municipality of Rangpur. They instituted the suit against 5 defendants: No. 1 the Chairman of the Municipality: No. 2, Jogendranath Chatterjee, in his individual capacity and also as the Chairman; No. 3, Phanibhusan Majumdar, in his individual capacity and also as the Vice-Chairman; No. 4, Narendra Mohan Chatterjee in his individual capacity and alsoas the warrant officer; and No. 5, Rishikesh Dutta Gupta, in his individual capacity and also as the tax collector. The suit was commenced as one for recovery of damages on the ground that certain goods of the plaintiffs had been wrongfully and maliciously seized and detained by the defendants, causing them annoyance, disturbance, mental worry and loss of prestige and reputation. It transpired after the plaint was lodged that the goods had already been sold and so the claim for damages was also pressed on the ground that the sale was wrongful and unauthorized. The Subordinate Judge having dismissed the suit, the plaintiffs have preferred this appeal. Mr. Biswas, appearing on behalf of the appellants, has expressly given up the allegations as regards malice and has restricted his claim to one based upon wrongful distress not authorized by law.
2. For this, the magnitude of the suit has been considerably reduced and the controversy has been brought within a very narrow compass. All the questions that now arise for our consideration are more or less questions of law, the facts being entirely undisputed. In 1927 there was a general assessment in this Municipality the tax for the holding in suit being raised from Rs. 109-9-0 per quarter to Rs. 163-14.0 per quarter. The first bill and notice of demand at this rate were served on the plaintiffs on 9th June 1927, the amount representing the tax for the first quarter of 1927-28. On 20th June 1927 the plaintiffs applied for a review. The application remained pending and in the meantime bills at the enhanced rate continued to be served: Bill for the second quarter of 1927-28 was served on 26th July 1927; for the third quarter of 1927-28 on 17th November 1927; for the fourth quarter of 1927-28 on 29th February 1928; for the first quarter of 1928-29 on 18th July 1928; for the second quarter of 1928 29 on 20th August 1928. On 17th October 1928 order was passed on the review reducing the enhanced tax to Rs. 136-8-01 per quarter.
3. On 29th November 1928 a bill at the rate of Rs. 163-14-0 for the third quarter of 1928-29 was served apparently having been drawn up at that old rate before the order was passed on the review. On 7th February 1929 a bill for the fourth quarter of 1928-29 at the reduced rate was served. No payment was made on any of these bills. It is important to note that no notice of demand was served in connexion with any of the aforesaid bills with the exception, of course, as already stated, of the bill for the first quarter of 1927-28. On 16th March 1929 a second notice of demand was served on the plaintiffs, as for a sum of Rs. 1,092 accompanied by eight bills in printed forms with the heading 'copy bills' with the blanks filled in, and purporting to be bills at the rate of Rs. 136-8-0, for eight quarters of the two years 1927-28 and 1928-29. On 28th March 1929 plaintiff 2 tendered a sum of Rs. 136-8-0 to the Chairman of the Municipality with a letter which ran as follows:
Sir-I have the honour to remit herewith Rs. 136-8-0 on protest-municipal-tax for the fourth quarter of 1928-29 * * * The tax in my opinion is excessive and assessed illegally. I understand that you would issue distress warrant for the realization of the tax. To avoid trouble I do hereby pay on protest the sum demanded although we do not admit the same to be legally assessed.
4. This tender was refused by a letter to the plaintiff dated 28th March 1929 over the signature of the Vice-Chairman which said:
5. Sir,--with reference to your letter No. Nil of 28th March 1929 sending under protest Rupees 136-8-0 for the municipal tax for the 4th quarter, 1928-29 . . . I have the honour to state that the whole amount of taxes may be paid under protest, if you like. Part payment of the demand cannot be received now at this stage.
6. On 29th March 1929, plaintiff 2 wrote to the Chairman putting forward certain arguments as to why distress should not be levied for non-payment of the taxes. On 20th April 1929 a distress warrant was issued, the particulars of which are the following:
For the 2nd, 3rd and 4th quarters of 1927-28, and 1st, 2nd, 3rd and 4th quarters of 1928-29.House tax Rs. 477-12-0Latrine tax Rs. 477-12-0Warrant fee Rs. 10-0-0---------------- Total, Rs. 965-8-0----------------
7. The distress was levied and the goods were seized on 27th April 1929. The plaintiffs gave the notice under Section 363 of the Act on 13th June 1929 and instituted this suit on 16th July 1929. On 15th July 1929 however the goods were sold, the price fetched at the sale being Rs. 1,010-8-0. In the Court below, as well as in this Court, various considerations were put forward for the purpose of establishing that the distress was unwarranted by law; and some of the points urged in that Court have been given up here as untenable, while others, not previously adverted to, have been urged. The substantial contentions directed against the legality of the distress as urged before us will now be dealt with.
8. The first contention is that the demand made on 16th March 1929 was not a valid demand in that the notice of demand was accompanied by 8 bills, aggregating the total amount of demand, which were all issued for realization at the reduced rate of Rs. 136-8-0 per quarter and were headed 'copy bills;' but of these, with the exception of one bill, namely the one for the last quarter of 1928-29, of which the original was issued for the said rate, the remaining seven purported to be copies of original bills which had been issued not at the reduced rate of Rupees 136-8-0 but at the enhanced rate of Rs. 163-4-0. It has been contended that under para. 2, Section 118 of the Act every instalment of tax shall be deemed to be due on the first day of the quarter in respect of which such instalment is payable and that under Section 120 of the Act a bill for an unpaid instalment which is due can only be presented within six months after it has become due; that each of the original bills for the said seven quarters had been issued within the said prescribed period, but on 16th March 1929 when the eight 'copy bills' were presented along with the notice of demand, only two of them, namely those for the 3rd and 4th quarters of 1928-29 were within time, while the six others were all out of time; and as the original bills for the said six quarters had become ineffective by reason of the rate of tax stated in them having been reduced on review, these 'copy bills' should be regarded as not copies but originals presented beyond time and so it should be held that Section 120 has been contravened. It has been argued that the foundation of a process for distress is the service of 'such bill and notice' (vide Section 121); that is to say, a bill and notice issued under Section 120 which provides for the presentation of a bill at the rate at which the realization is to be made; and that inasmuch as the six so-called 'copy bills,' which are the only bills in which such rate was mentioned, were each presented beyond six months of the respective dates when the tax became due, the process was issued without jurisdiction. Another branch of this contention which has been put forward in the alternative is that if Section 121 of the Act is construed in such a way as to mean that no fresh presentation of bills at the altered rate is necessary, even though the rate may have been reduced on review, and that the section contemplates that the party has to make the payment within 15 days of the order on the review, and that failing such payment the arrears due may be realised by distress within three months after the order, then also the distress and sale were beyond time, having been made on 27th April 1929 which was beyond three months from 17th October 1928 on which date the order was passed on the review. It has been argued that the provisions of these sections which have been laid down for regulating a special procedure for a speedy and summary remedy by way of distraint must be strictly complied with, and that there is no injustice or hardship in construing the sections as meaning that it is only in normal oases, that is to say cases in which the application for review fails to result in a reduction of the tax, that the sections taken in conjunction with the note contained in Form A prescribed for a notice of demand, which says:
If you present such petition no amount will be levied from you until the Commissioners shall have passed an order on your petition, but after 15 days from such order, etc.,
9. make out a consistent procedure perfectly in accord with the several periods of time prescribed for the different steps. And it is argued that unless the provisions as regards time are entirely disregarded a case in which the review results in an alteration in the assessment cannot be brought within the purview of the sections so as to enable the Municipality to levy the arrears by distress.
10. It has been pressed on us that the legistature must have intended such normal cases only as deserving of the summary procedure and to leave the Municipality to seek its remedy in other cases by way of suit, as provided for in Section 129 of the Act. There is, it has been said, considerable sense in this interpretation, for it is only fair to assume that if the assessment was excessive and is subsequently reduced, the party should not be harassed by distress for arrears which may have remained unpaid because of the pendency of the review. There is no doubt much to be said in favour of these arguments. But the arguments assume that there was an anxiety on the part of the legislature to protect the tax-payer from distress rather than to enable the Municipality to levy distress for realization of its statutory dues provided it has been sufficiently diligent. Is this assumption correct? Let us examine the several essentials that are laid down and the several periods of time prescribed therefor. They stand thus:
A. Presentation of a bill. Within six months from when the tax becomes due.B. Service of notice of At any subsequent time.demand with copy bill. C. Failure to comply with Within 15 days of the service of notice or ofthedemand. the order on review.D. Distress and sale. Within three months of the service of notice or of the order on review.
11. It is obvious that while steps A, B and D are to be taken within given time, there is no time limit as regards step C. This omission allows the Municipality to wait for any indefinite period, subject of course to the general law of limitation. The provisions as to time therefore cannot be construed as indicating that the protection of the tax-payer was the sole concern of the Legislature. A more sensible interpretation is that the legislature intended that if process for distress is to be allowed, the Municipality will have to begin with presentation'of the bill within six months, but may wait for such reasonable time at their option, subject to the general law of limitation, as the circumstances of the case may demand, and then issue a notice of demand; and that once such notice is served it must give the party fifteen days' time for payment; but if no payment is made it must levy distress within three months of the service or of the order on review, as the case may be. An interpretation of the sections based on a supposition that it is the interest of the tax-payer alone that was being safeguarded by the legislature or that a remedy by way of distress in a case where on review the tax is reduced was not favoured by the legislature, does not, in our opinion, seem permissible.
12. On a careful consideration of the sections it seems to us that they construct a perfectly workable and reasonable procedure in all conceivable cases without necessitating any violence to their language. The procedure may be described thus: (a) presentation of a bill at the rate entered in the list, notice whereof is published under Section 112, or at the altered rate, if there has been subsequent alteration: We need not consider the question whether a further application for review will lie in a case where there has already been an alteration. Such presentation has to be made within six months after the tax has become due (Section 120, para. 1), and the tax will be deemed to be due on the first day of the quarter for which it is payable. (b) Nonpayment of the bill: The Municipality may wait for any reasonable time, subject to the general law of limitation. (c) Service of notice of demand with copy bill at any time subsequent to presentation of bill (Section 120, para 2). (d) Application for review: Either before or after service of notice of demand: In the latter case, the application must be made within 15 days of service of the notice of demand (Form A, Note). (e) If the review fails: If a notice of demand has been already served no fresh notice is necessary, because in the notice itself it is stated that the amount due will have to be paid within fifteen days of the order on the review. If a notice of demand has not been served then it will have to be served and within fifteen days of the service the amount due will have to be paid. (f) If the review succeeds: If there has been no previous service of a notice of demand such notice will have to be served with `copy of the bills' (Section 120, para 2). But now the tax due will be the tax as altered. Section 118 says:
The amount due .... shall be deemed to be amount entered in the lists .... unless the amount entered in the lists is subsequently altered .... in which case the amount to which the assessment or rating is so altered shall be deemed to be the amount due.
13. The law itself thus corrects the amount due as stated in the original bill and the original notice if any, and says that the amount so altered shall be deemed to be the amount due. The fresh notice must therefore show the altered amount and the `copy of the bill' in order to be correct must also show the altered amount. If there has been a previous service of a notice of demand it would seem that a fresh notice at the altered rate would not be necessary because of the statement in the note in Form A to which reference has already been made. But a better practice is to wait for the result of the review, as has been done in the present case. (g) Non-compliance with the notice of demand taken along with the order on review, if any, within fifteen days (Section 121, para 1). (h) Distress and sale: Within three months of the service of notice of demand or order on review, as the case may be (Section 121, para 2). In the present case all the different steps were correctly taken; the notice of demand was served after the order on review and the distress and sale have taken place within the time prescribed. We therefore see no reason to hold that the proceedings referred to so far were not in order.
14. The second contention urged on behalf of the appellants is that the distress and sale were illegal because they were for a sum which included an amount in respect of which a valid tender was unlawfully refused. The tender was, as already stated, in respect of the tax for the last quarter of 1928-29. The learned Judge has held that the tender was bad because it was not an unconditional tender; with this conclusion we entirely disagree. It does not appear to us that there was any condition attached to the tender or any ambiguity in the letter (Ex. 10) by which it was made. Indeed from the reply (Ex. 11), by which the tender was refused it is more than clear that the Municipality understood the tender as one in respect of the tax for the said quarter only and not coupled with any condition. The refusal was based on the ground that it was in respect of a part only of the whole amount of the taxes for which demand had been made.
15. The question therefore is whether the amount tendered could be regarded as a distinct or separate demand. Now the law of tender as between contracting parties and so forming a part of the law of contract does not apply to the present case; for the relations between the Municipality and the tax-payer are not contractual. If the said law did apply there is authority for holding that it was a good tender. For instance, if two quarters rent are in arrears and the tenant tenders the amount for one of the quarters the tender is a good tender as to that quarter (see Chitty on Contracts, Edn. 18, p. 892). The relations being statutory we have to look to the provisions of the Act itself. It is true that under the Act the tax is assessed at a yearly rate; but the whole process for its recovery as formulated in the Act treats each quarterly instalment of the tax as a distinct amount recoverable by the procedure laid down in it. For each instalment, a bill is to be made out and presented, a notice of demand is to be served with copy of the bill, and in case of non-payment a remedy by distress and sale is available. In such circumstances it is difficult to imagine that whenseveral such instalments remain unpaid, the total amount remaining unpaid con stitutes one entire demand and that the several sums as per each instalment do not each constitute a distinct demand. It is true that there may be a convenience in serving one notice of demand embracing all the instalments remaining unpaid, but it is highly debatable whether in view of the form of such notice prescribed in the Act (Form A) it is open to the Municipality to use one form embracing all the instalments. The form speaks of an amount as due on a bill accompanying.
16. It will appear from Sub-section 118 to 121 that the scheme of the sections is to treat each instalment as a distinct item and in the second paragraph of the section last mentioned it is provided that each such instalment, treated as the amount of the arrear due, together with costs on the scale shown in the table of fees marked B in the fourth schedule, is to be realised by sale and distress. If one distraint is held for several instalments unpaid the costs in respect of the aggregate amount as prescribed in the table are to be levied. But even then the demands, in our opinion, are distinct. The notice of demand in respect of the 4th quarter for 1928-29 with 'copy of bill' was served on 16th March 1929 and within fifteen days of the service the entire amount of the demand was tendered on 28th March 1929. The amount had not yet become 'an arrear due' within the meaning of the second paragraph of Section 121. At such a stage it was wholly illegal to refuse the tender.
17. It necessarily follows that the warrant that was issued, including the amount of tax due for the 4th quarter of 1928-29 was illegal, and the distress and sale held thereunder must be held ultra-vires. In such circumstances the fact that the warrant was a good warrant, so far as the taxes for the other six quarters are concerned does not alter the position. In the case of an illegal distress the distrainer is a trespasser ab initio, and the full value of the goods which have been lost to the plaintiff without any deduction for the tax due is recoverable as damages: (see Hailsham's Laws of England, Vol. 10, Article 759). The value of the goods as found by the Court below is Rs. 1,010-8-0; and this is not disputed.
18. The result is that this appeal succeeds in part. The decree of the Court below is modified in the manner following: A decree should be made in plaintiffs' favour declaring that the distress and sale were illegal and ordering that the plaintiffs do recover from defendant 1 the sum of Rs. 1,010-8-0 with interest at the rate of 6 p. c. p. a., from 27th April 1929, the date of seizure, until this day, the date of the decree of this Court, the total amount carrying interest thenceforward at the rate of 6 p. c. p. a. till realisation. As between the plaintiff and defendant 1, the latter will be entitled to recover 2/3rds of the costs which the Court below has decreed in his favour; and the order for costs made in the decree of the Court below in favour of defendants 2, 3, 4 and 5 will stand. So far as the costs of this Court are concerned the plaintiffs and defendant 1 will each bear their or his own costs, but defendants 2, 3, 4 and 5 will each recover his costs from the plaintiffs, hearing fee in 'favour of each of them being assessed at two gold mohurs.