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Chatter Singh Baid and ors. Vs. Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 11874 of 1982
Judge
Reported inAIR1984Cal283,1983(2)CHN330,(1983)2CompLJ205(Cal),88CWN89
ActsCalcutta Municipal Act, 1951 - Sections 181, 182, 182(2), 183(1), 183(3A), 191, 207 and 207(2); ;Constitution of India - Article 14
AppellantChatter Singh Baid and ors.
RespondentCorporation of Calcutta and ors.
Appellant AdvocateDipankar Ghosh, ;P.K. Mallick, ;Sudipto Sarkar and ;O.P. Jhunjhunwala, Advs.
Respondent AdvocatePradip Kumar Ghosh, ;Barin Banerjee and ;Dipankar Chakraborty, Advs.
DispositionCivil rule discharged
Cases ReferredN. Dutta Majumdar v. Corporation of Calcutta
Excerpt:
- orderchittatosh mookerjee, j.1. the petitioners are owners of premises no. 11, indra kumar karnani street (formerly known as premises no. 11, jackson lane), with effect from 4th quarter, 1978-79 the corporation of calcutta had determined the annual value of the said premises at rs. 4,30,606/-. on 9th nov., 1981 a special officer of the corporation of calcutta had disposed of their objection against the said increase in valuation made under section 181 of the calcutta municipal act, 1951 by fixing the annual value at rupees 3,61,135/-. being dissatisfied with the said order passed under section 182 of the said act the petitioners have presented under section 183 of the calcutta municipal act, 1951, municipal appeal no. 141 of 1982 in the court of small causes, calcutta. the said appeal is.....
Judgment:
ORDER

Chittatosh Mookerjee, J.

1. The petitioners are owners of Premises No. 11, Indra Kumar Karnani Street (formerly known as Premises No. 11, Jackson Lane), with effect from 4th quarter, 1978-79 the Corporation of Calcutta had determined the annual value of the said premises at Rs. 4,30,606/-. On 9th Nov., 1981 a Special Officer of the Corporation of Calcutta had disposed of their objection against the said increase in valuation made under Section 181 of the Calcutta Municipal Act, 1951 by fixing the annual value at Rupees 3,61,135/-. Being dissatisfied with the said order passed under Section 182 of the said Act the petitioners have presented under Section 183 of the Calcutta Municipal Act, 1951, Municipal Appeal No. 141 of 1982 in the Court of Small Causes, Calcutta. The said appeal is pending.

2. The Calcutta Municipal (3rd Amendment) Act, 1976, which came into effect on 22nd June, 1976, has inserted the following Sub-section (3-A) in Section 183 of the Calcutta Municipal Act, 1951 :--

'No appeal under, this section shall be entertained unless the consolidated rate payable up to the date of presentation of the appeal on the valuation determined-

(a) by an order under Section 182, in the case of an appeal to the Court of Small Causes,

(b) by the decision of the Court of Small Causes, in the case of an appeal to the High Court,has been deposited in the municipal office and such consolidated rate is continued to be deposited until the appeal is finally decided.'

The petitioners have obtained the present Rule, inter alia, challenging the vires of said Sub-section (3-A) of Section 183 of the Calcutta Municipal Act, 1951 and also contending that the learned Chief Judge of the Small Causes Court, Calcutta has no jurisdiction to call upon the petitioners to deposit consolidated rates payable up to the date of the presentation of the appeal on the valuation determined by the impugned order under Section 182 of the Calcutta Municipal Act and also to continue to deposit the consolidated rate on the said valuation so determined until the appeal presented by the petitioners is finally decided

3. On January 28, 1983, I had rejected four writ applications filed by M/s. Jajodia Estates Pvt. Ltd. and others, who had, inter alia, contended that the learned Chief Judge of the Small Causes Court at Calcutta had committed error of jurisdiction by applying Sub-section (3-A) of Section 183 of the Calcutta Municipal Act, 1951 in respect of the appeals presented by them against the orders passed under Section 182 of the said Act My said decision has been since reposed at page 391 of the 87 Cal WN. Having given my anxious consideration to the various submissions urged on behalf of the petitioners of the instant Rule, I find no reason to revise my views regarding the scope and effect of Sub-section (3-A) of Section 183 of the Calcutta Municipal Act, 1951. I may, however, note that Ms. Dipankar Ghosb, learned advocate appearing on behalf of the petitioners in the instant Rule, has urged several points which were not raised at the time of the disposal of the case of Jajodia Estates Pvt. Ltd. v. Corporation of Calcutta (1983-87 Cal WN 391) (supra).

4. Mr. Ghosh, learned advocate for the petitioners, has not disputed the well-settled principle that right of appeal is a creature of statute and the legislature may regulate the said right. But according to Mr. Ghosh tha said right is not an unfettered one and the legislative action in this behalf must satisfy the test of reasonableness enshrined in Article 14 of the Constitution. Mr. Ghosb has submitted that when conditions imposed are so onerous as to deprive the right of appeal, the restrictive provision ought to be struck down as unreasonable. The contention of Mr. Ghosh is that the cumulative effect of Sub-section (3-A) of Section 183 of the Calcutta Municipal Act, 1951 is to make the right of appeal under Section 183 of the said Act nugatory and to deny the right of appeal to those who cannot pay consolidated rate determined on the basis of the valuation which is under challenge in the appeal. Mr. Ghosh has further submitted that Sub-section (3-A) of Section 183 of the said Act is also repugnant to and inconsistent with other provisions contained in the Calcutta Municipal Act, 1951 relating to liability to pay the owner's and occupier's shares of consolidated rates and Sub-section (3-A) of Section 183 also amounts to an illegal exaction. After the disposal of the appeal under Section 183 the right to obtain, retain, refund or adjustment of the excess amounts deposited under Section 183 (3-A) of the Act is practically illusory. Mr. Ghoshhas also submitted that the right of effecity approach to Court is a Basic Right implies for enjoyment of the Fundamental Rights guaranteed by the Constitution. By depriving, in effect, such right to obtain ad-dress by way of appeal against determination of annual value, Sub-section (3-A) of Section 181 of the Calcutta Municipal Act, 1951 violates the Basic Structure of the Constitution.

5. It is now settled law that taxation laws are not beyond the pale of constitutional limitations prescribed by Articles 14 and 19 of the Constitution. Tax Laws are also subject to Fundamental Rights (See East India Tobacco Co. v. State of Andhra Pradesh, : [1963]1SCR404 , Rai Ramakrishna v. State of Bihar, : [1963]50ITR171(SC)

6. Sub-section (3-A) of Section 183 of the Calcutta Municipal Act, 1951, according to the petitioner, is invalid not on the ground that the said sub-section denies equal protection and is therefore discriminatory but because the said provision of Calcutta Municipal Act, 1951, is a piece of arbitrary and unreasonable legislation.

7. Mr. Dipankar Ghosh, learned advocate for the petitioner, has relied upon the Supreme Court decisions in the case of E. P. Royappa v State of Tamil Nadu, : (1974)ILLJ172SC , Smt. Maneka Gandhi v. Union of India, : [1978]2SCR621 and Mithu v. State of Punjab, 0065/1983 : 1983CriLJ811 and has submitted that 'the content and reach of Article 14 of the Constitution have been now extended and where a legislative or executive action is arbitrary, it is unequal and, therefore, violative of Article 14. Further natural justice has assumed greater importance in the fields of administrative law and executive action.'

8. Since the Supreme Court in the case of R. C. Cooper v. Union of India, : [1970]3SCR530 (commonly called Bank Nationalisation case) disagreed with tha majority decision in A. K. Gopalan v. State of Madras, : 1950CriLJ1383 and held as correct the minority view in A. K. Gopalan v. State of Madras (supra) that a law infringing personal liberty must also satisfy the tests laid down in Article 19(2), Right to Equality has acquired new dimensions. Articles 14, 19 and 31 are no longer considered mutually exclusive. Procedure of reasonableness is to be projected in considering vires of laws restricting rights under Articles 19 and 21 (vide the decision of Bhagwati, J. in Smt. Maneka Gandhi v. Union of Inchia : [1978]2SCR621 (supra). When any of the fundamental rights is abridged or interfered with by legislative or executive action, the Court has to decide whether or not the impugned action is fair, just and reasonable and not fanciful, oppressive and arbitrary.

9. The considerations about the extended ambit of Article 14 would not be relevant when we examine the constitutional validity of Sub-section (3-A) of Section 183 of the Calcutta Municipal Act because the said provision has no impact on enjoyment of fundamental rights. The petitioners do not question the legislative competence of the West Bengal Legislature to enact Calcutta Municipal 3rd Amendment Act, 1976 which inserted aforesaid Sub-section (3-A) in Section 183 of the principal Act. The petitioners have impugned the validity of the aforesaid sub-section on the ground that it is repugnant to Article 14. But validity of a taxing or rating law cannot be challenged merely on the ground that it imposes an unreasonably high burden or that the provision is harsh (vide Jagannath Baksh Singh v. State of Uttar Pradesh, : [1962]46ITR169(SC) . It is for the legislature to decide on what objects to levy what rate of tax. The said Sub-section (3-A) of Section 183 of the Calcutta Municipal Act neither gives uncanalised discretionary powers to the authorities nor the Act seeks to make any differentiation or classification. Persons who may feel aggrieved by orders passed under Section 182 (2) of the Act, prefer appeals under Section 183, from one class and they have been equally treated. All appellants under Section 183 (1) of the Act required to fulfil the condition imposed by Section 183 (3-A) of the Act in order to avail of the opportunity of hearing before the Small Causes Court.

10. In deciding the reasonableness of taxing statutes the Court is also bound to give due consideration to the principle that power of taxing people and property is an essential attribute of the Government. The quantum of tax levied by the taxing statute, the conditions subject to which it is taxed, the manner in which it is sought to be recovered are all within the legislative competence and in dealing with those questions the Court is always circumspect and cautious (vide Rai Ramkrishna v. State of Bihar : [1963]50ITR171(SC) ) (supra), Jagannath Baksh Singh v. State of Uttar Pradesh : [1962]46ITR169(SC) (supra), Venkataraman v. State of Madras, : (1967)IILLJ246SC . A statute ought to be read so as to make it valid and ifpossible an interpretation leading to the contrary position should be avoided. In these matters the needs of the taxing body for carrying out its functions under the Statute for which the taxing power is given may afford sufficient guidance (vide Corporation of Calcutta v. Liberty Cinema, : [1965]2SCR477 .

11. The petitioners themselves do not claim the above sub-section to be a colourable piece of legislation and as such a fraud on the legislative power. The provision for deposit of consolidated rate contained in Sub-section (3-A) of Section 183 of the Calcutta Municipal Act is subject to obtaining refund or adjustment in the manner and to the extent specified in Section 207 (2) of the said Act. Therefore, the said Sub-section (3-A) could not be pronounced as a device or cloak to confiscate the amount required to be deposited under the said Section 183 (3-A) of the Calcutta Municipal Act, 1981.

12. The said Sub-section (3-A) of Section 183 of the Calcutta Municipal Act was inserted by the Calcutta Municipal 3rd Amendment Act, 1976. Undisputedly, the said sub-section by imposing the condition for deposit of consolidated rate affected substantive right of appeal under Section 183 of the principal Act. Such impairment of the right of appeal by putting restrictions thereon or imposing more onerous condition has not been expressly or impliedly given retrospective effect. The impugned valuation of the petitioner's holding was revised after the commencement of the aforesaid amendment Act of 1976 and, therefore, unless the said Sub-section (3-A) of Section 183 of the Calcutta Municipal Act, 1931 is declared ultra vires, the petitioners are bound to comply with the said condition for deposit mainly because the Sub-section (3-A) of Section 18? of the Act imposes such onerous condition and thereby restricts the right of appeal under Section 183 (1) of the Act. But merely because the said Sub-section (3-A) of Section 183 of the said Act impairs the right of appeal by imposing an onerous condition. I am also unable to hold that the said Sub-section (3-A) of Section 183 of the Act is unfair, fanciful, oppressive and arbitrary.

13. I find no substance in the petitioner's submission that Section 183 (3-A) of the Calcutta Municipal Act, 1951 in any way affects the basic structure of the Constitution. Decisions in the cases of Sm. Indira Gandhi v. Rajnarayan, : [1976]2SCR347 ,Minerva Mills Ltd. v. Union of India, : [1981]1SCR206 and Fertilizer Corporation, Kamgar Union v. Union of India, AIR 1981 SC 344, inter alia considered the extent of the Parliament's power to amend the Constitution affecting its basic structure. These reported cases do not at all warrant the view that the right to file an appeal under a municipal law is a part of the basic structure of the Constitution. Krishna Iyer, J. in his separate judgment in the case of Fertilizer Corporation, Kamgar Union v. Union of India (supra), had referred to the right of effective access to justice in the context of the question whether or not a registered union of workers of a factory can maintain a writ application under Article 32 of the Constitution challenging the sale of a plant and its equipment In Fertilizar Corporation's case (AIR 1981 SC 344) (supra), the Court upheld the maintainability of the writ petition but discharged the petition on other grounds. I may point out that right to constitutional remedy under Article 32 itself is a Fundamental Right. Every High Court has power under Article 226 of the Constitution to issue writs for enforcement of any of the rights conferred by Part III and for any other purposes subject to territorial limitations as regards the location of the authorities and place of accrual of the cause of action. I accept the submission made on behalf of the respondents that the Courts which are subordinate to the High Court are not constituted under the Constitution and therefore access to such subordinate Courts may be lawfully abridged or made subject to the fulfilment of conditions imposed by law. Therefore, I cannot subscribe to the view that the right to file an appeal under Section 183 (1) of the Calcutta Municipal Act, 1951 ought to be treated as an un-articulated right implicit for enjoyment of the Fundamental Rights.

14. A right of appeal is not a natural or inherent right attaching to every litigation and the right of appeal does not exist and cannot be assumed unless expressly given by statute (see Rangoon Botatung Co. Ltd, v. Collector. Rangoon, (1903) 30 Ind App 197 : ILR 40 Cal 21, Soorajmull Nagarmull v. State of West Bengal, : [1962]45ITR220(SC) , Sm. Ganga Bai v. Vijay Kumar, : [1974]3SCR882 . Therefore, the provision, viz., Section 183 which conferred upon the petitioners right to prefer appeal against the Order disposing of their objection under Section 181 of the Calcutta Municipal Act, could be lawfully amended by inserting aprovision imposing the above condition for deposit for entertaining their appeal.

15. The condition laid down by Sub-section (3-A) of Section 183 of the Calcutta Municipal Act is not something which is without any parallel. Both Mr. Dipankar Ghosh, learned advocate for the petitioner, and Mr. Pradip Kumar Ghosh, learned advocate for the respondents, has drawn my attention to nearly similar provisions for deposit of disputed tax duty and rates contained in various other taxing, municipal and fiscal laws. Mr. Dipankar Ghosh, however, submitted that unless the appellate authority is given discretionary powers to relax or modify such condition for deposit of the disputed amount, the condition precedent ought to be pronounced as unreasonable. In my view, the observations made in para 40 of the Supreme Court decision in Anant Mills v. State of Gujarat. : [1975]3SCR220 , are directly against the above submission of the petitioners. With reference to Section 406 (2) of the Bombay Provincial Municipal Act, the Supreme Court upheld the power of the legislature to impose similar condition for deposit while granting right of appeal. According to the Supreme Court, there was no legal or constitutional impediment to imposition of such a condition. I respectfully agree and apply the aforesaid observations in upholding the validity of Section 183 (3-A) of the Calcutta Municipal Act. I am unable to accept Mr. Dipankar Gbosh's submission, that, the Court's power under Section 406 (2) of the Bombay Provincial Municipal Act to relax the condition for deposit the tax due had at all weighed with the Supreme Court in making the aforesaid observations in Anant Mills v. State of Gujarat (supra). The ratio of the said decision is that the right of appeal is a creature of statute and while granting the right of appeal the legislature can impose conditions for exercise of such right and there is no constitutional or legal impediment to imposition of such a condition for deposit of tax. The Supreme Court in their subsequent decision in the case of Nandalal v. State of Haryana, : [1980]3SCR1181 , had followed their earlier decision in Anant Mills v. State of Gujarat : [1975]3SCR220 (supra). The Supreme Court in Nandlal v. State of Haryana (supra), had rejected similar argument that conditions imposed on right of appeal were onerous because no discretion had been given to the appellate or revisional authority to relax or waive the said condition in view of subjects for imposing such a condition.

16. The Sub-section (3-A) of Section 183 of the Act does not make the appellate provision under Section 183 (1) nugatory or illusory but by his own default to comply with the condition for deposit the appellant himself may fail to avail of the remedy by way of appeal under Section 183 (1) of the Act. A law cannot be declared unconstitutional because an alleged possibility which may occur in future. Therefore, I find no substance in the petitioner's apprehension that in a given case the consolidated rate determined according to the new valuation may be so high that it might be impossible for the appellant under Section 183 (1) to deposit the consolidated rate according to the said new valuation is not a relevant point for deciding the validity of the statute. It is presumed that the power to determine valuation and to assess consolidated rate would be reasonably exercised and in case said powers arbitrarily or capriciously exercised, the person aggrieved without availing of the remedy under Section 183 (i) of the Act, may seek redress in other appropriate forum.

17. It is also well settled that an appeal shall not operate as stay of the operation of the order appealed against, but in the absence of any provision to the contrary, the appellate Court may grant stay of the execution of the decree or order appealed against. Section 183 (3-A) clearly manifests such contrary intention and therefore unless the appellant deposits up to date consolidated rate payable by him according to new valuation, his appeal under Section 183 cannot be entertained. I may also refer to the following observations of Sir Lawrence Jenkins, J. in Juscurn Boid v. Pirthichand Lal, (1919) 46 Ind App 52 : ILR 46 Cal 670 (678-679) : (AIR 1918 PC 151), whatever be the theory, under the system of law under the Indian Law and procedure, an original decree or order is not suspended by presentation of an appeal. I may point out that only when the appellate decision is given, the trial Court's judgment or decree merges in the appellate judgment and decree. This theory of merger further does not override the concept that the filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified, it remains effective. The person who makes an objection under Section 181 of the Calcutta Municipal Act has been given right to pay according to the previousvaluation pending disposal of the said objection (vide Sub-section (1) of Section 207 of the Act). I find nothing unreasonable when Sub-section (3-A) of Section 183 of the Calcutta Municipal Act, 1951 enjoins that during pending of all appeals against an order disposing of an objection under Section 181 of the Act, no further stay shall be granted of realization of consolidated rate payable on the valuation determined under Section 182 (2) of the Calcutta Municipal Act. As a condition for entertaining his appeal, the appellant must deposit such consolidated rate according to the valuation determined, subject to his right to obtain refund or adjustment under Section 207 (2) of the Calcutta Municipal Act.

18. I also find no substance to the petitioners contention that Sub-section (3A) of Section 183 of the Calcutta Municipal Act, 1951 is repugnant to and inconsistent with the provisions of Section 191 or any other provision of the Calcutta Municipal Act, 1951. Section 191 of the said Act, inter alia, provides that one-half of the consolidated rate shall be payable by the owner of the lands and buildings and the other half by the occupier thereof. The payment shall be made in quarterly instalments. The Commissioner under Section 200 of the said Act has power to levy the entire consolidated rate from the owner of a land or building which is ordinarily occupied by more than one person holding in severally or is valued at less than Rs. 500/-. The provisions contained in Chap. XVII of the Calcutta Municipal Act prescribe the different methods of recovery of consolidated rate and other taxes from the persons liable. Subject to the special provisions, the owner of a land or building is liable for the owner's share of consolidated rate and the balance half of the consolidated rate is payable by the occupier.

19. Sub-section (3A) of Section 183 of the Calcutta Municipal Act, 1951 requires the 'consolidated rate payable' ft, be deposited by the person who prefers an appeal under Section 183 of the Act. Mr. Pradip Kumar Ghosh. learned advocate for the respondents, has rightly submitted that the Court should see to avoid any conflict in the provisions of the statute by endeavouring to harmonise and reconcile every part so that each shall be effective. Often by considering the enactment in its entirety what appears to be on its face a conflict may be cleared up and the provisions reconciled (videCrawfords' Statutory Construction, 1940, para 116, pages 262-263). After examining the relevant provisions of the Calcutta Municipal Act, 1951 I find no inconsistency between them. The term 'payable' has two meanings: (1) owing, and (2) payable at a particular point of time. In the context of Section 183 of the Calcutta Municipal Act, the expression 'payable' obviously means the share of the consolidated rate payable by the person who prefers an appeal, i. e., owing and due from him. The expression 'any person dissatisfied' in Section 183 (1) of the Act obviously includes both owner and the occupier of the land or building in respect Of which an order under Section 182 of the Act has been passed. According to Section 183 (3A), pre-condition for entertaining an appeal is that the appellant must deposit his share of the consolidated rate payable up to the date of the presentation on the valuation determined under Section 182 or by the Court of Small Causes as the case might be and the appellant must also continue to deposit his share of the consolidated rate until his appeal is finally decided. In other words, Sub-section (3A) of Section 183 does not create any new or additional liability for payment of consolidated rate by a person who prefers an appeal under Section 183 of the Act, but requires the appellant to deposit up-to-date consolidated rate which he is liable to pay under Section 191 or which might be otherwise lawfully recoverable from him under the provisions contained in Chap. XVII of the Act. Thus, I conclude the expression 'consolidated rate payable' in Sub-section (3A) of Section 183 of the Act is identical with the amount which the appellant would be lawfully liable to pay under the other relevant provisions of the Calcutta Municipal Act, 1951.

20. There is also no repugnancy between Section 183 (3A) and Section 207 of the Calcutta Municipal Act, 1951. Sub-section (1) of Section 207 clearly indicates how the payment of consolidated rate shall be affected when an objection to a valuation has been made under Section 181 of the Act In view of the opening words of Sub-section (1) of Section 207 --'when an objection to a valuation has been made under Section 181', Mr. Pradip Kumar Ghosh, learned advocate for the respondents, with some force has submitted that the other expression 'pending final determination of the objection' means that up to the date of the disposal of such objection by an order passed under Section 182, theobjector would pay according to the consolidated rate according to the previous valuation. Sub-section (1) of Section 207 does not further indicate how payment of consolidated rate would be affected by filing an appeal under Section 183 (1) of the Act. Subsection (3A) of Section 183, as already stated, makes specific provisions in this behalf. It may be noted that Calcutta Municipal (3rd Amendment) Act, 1976 had inserted the words 'or deposited' in Clause (a) of Sub-section (2) of Section 207 of the Calcutta Municipal Act. Thus, Clause (a) or (b) of Section 207 (2) of the Calcutta Municipal Act as may be appropriate, would be attracted after the challenge to the new valuation is finally disposed of either under Section 182 or Section 183 of the Act. When any sum has been, paid in excess, the same may be refunded or allowed to be set off against present or future demand of the Corporation. In case, pending disposal of objection under Section 181 of the Act, the entire consolidated rate or a part thereof had not been paid, sum due shall be payable and recoverable according to the provisions of the Calcutta Municipal Act. On the other hand, if pending disposal of an appeal under Section 183 (1) of the Act the appellant had deposited consolidated rate at the figure determined under Section 182 of the Act and by the appellate order, the valuation is reduced, any sum paid or deposited as consolidated rate in excess up to the date of the disposal of the appeal shall be liable to be refunded or set off against present or future demand of the Corporation. There is no basis for the petitioner's contention that such excess sums deposited under Section 183 (3A) might become irrecoverable and the Corporation has been given an arbitrary power to decide whether the excess sum paid would be refunded or adjusted against its present or future demands. Section 207 (2) imposes a duty upon the Corporation and Mr. Pradip Ghosh himself has conceded that the person who has paid the excess sum has the choice whether he would claim refund or allow the excess sum to be adjusted against demands of the Corporation. The expression 'demand' in Sub-section (2) of Section 207 obviously means demand of consolidated rate which could be lawfully made upon the person who has paid or deposits is entitled to refund or may allow the excess sum paid or deposited by him to be set off and adjusted against his liability for past or future demands by the Corporation. The expressions 'presented'and 'presentation' used respectively in Sub-sections 12) and (3A) of Section 183 of the Calcutta Municipal Act, 1951 have been obviously used in their ordinary meaning of 'filing' or 'instituting'. The other expression 'entertained' in the context of Sub-section (3A) of Section 183 of the Act clearly carries a meaning different from that of the word 'presented'. In the context, the word 'entertained' means 'to admit for consideration'. In other words, the said expression 'entertained' in Section 183 (3) means to decide or to dispose of on merits. Unless an appellant complies with the conditions of Section 183 (3A) of the Act, his appeal against an order under Section 182 (2) of the Act would not be decided on merits.

21. I find no substance in the contention that Section 183 (3A) of the Calcutta Municipal Act, 1951 is unworkable and the person who intends to prefer an appeal under Section 183 (1) of the Act would be unable to comply with the condition mentioned in said Sub-section (3A) of Section 183 of the Act because the Corporation itself may not calculate and enter into the record the consolidated rates payable according to the valuation fixed by an order disposing of an objection under Section 181 of the Calcutta Municipal Act, 1951.

22. The Corporation under Section 165 of the Calcutta Municipal Act imposes graduated consolidated rate on the annual valuation of all lands and buildings determined in the manner laid down in Chap. XI of the Calcutta Municipal Act, 1951. The Clauses (1) to (v) of the Section 165 of the said Act specify the maximum limits of such graduated consolidated rate. Such percentages under Section 166 of the Act are fitted annually. For assessment of lands and buildings to the consolidated rates, their annual values are determined in the prescribed manner. A general revision of valuation is made for successive periods of six years (vide Section 172 (2) of the Calcutta Municipal Act, 1951). The Sub-section (3) of Section 173 of the Act also specifies the cases in which intermediate revaluation can be made. Section 181 of the Act confers a right to prefer objection within the prescribed time against valuation made under Section 172 of the Act. Any person dissatisfied with an order disposing of his said objection filed under Section 181 of the Act may appeal under Section 183 of the Act to the Court of Small Causes having jurisdiction over the land on which the building is situated. Appeal from the decision of the Court of Small Causes lies to the High Court.

23. The annual valuations fixed arc entered in the Assessment Books kept under Section 185 of the Act at the municipal office. The said Assessment Books under Section 185, inter alia, also record the amount payable quarterly on account of the consolidated rate. The said Assessment Books are public documents and certified copies of the entries made in the said Books may be obtained by a person who intends to prefer an appeal under Section 183 of the Act. Secondly, Sub-section (3) of Section 182, inter alia, provides that a copy of the order together with a copy of the reasons for the Order shall be sent by registered post to the person who gave the notice of objection under Section 181 of the Act within a fortnight from the date of the order and the order shall also be supplied on an application made in this behalf accompanied by a fee of Re. 1/- to every owner and occupier of the building who is affected by the order. I have perused the original records of Municipal Appeal No. 141 of 1982 presented by the petitioners in the Presidency Small Causes Act, Calcutta. I find that the petitioners have annexed to their said Memorandum of Appeal a copy of the said order under Section 182 of the Act served upon them. The said order is in Form No. 1 37A, para 137 of the Assessment Manual which is, however, not statutory. On the reverse side of the postcard quarterly rate in each share on the decided valuation has been mentioned. A copy of the said same has been kept with the records of this Rule.

24. Mr. Pradip Kumar Ghosh, learned advocate for the respondent, has pointed out that the appellant had paid on his Memorandum of Appeal an ad valorem, court-fees on the difference between the previous valuation and the valuation fixed under Section 182 of the Act. In this connection, Mr. Ghosh has drawn our attention to the decision of Dasgupta and Debabrata Mookerjee, JJ., in N. Dutta Majumdar v. Corporation of Calcutta, (1956) 60 Cal WN 214, which held that the notification published under Section 529 of the Calcutta Municipal Act, 1923, according to Section 25 of the Bengal General Clauses Act shall have been made under Section 577 of the Calcutta Municipal Act, 1951. Therefore, an appellant under Section 183 of the Act has to pay court-fees on the amount of what would be payable as consolidated rate on the excess of valuation against which the appeal is preferred over the valuation which the appellant seeks to have substituted thereforTherefore, on the basis of the relevant law and also upon the facts of this case, J conclude that quarterly consolidated rate payable according to the valuation made under Section 182 of the Act was known to the petitioners who have prima facie paid court-fees on their memo on the said basis. There is no substance in the submission that right of appeal under Section 183 has been made dependent on the occurrence of an event which may take place in future or may not take place at all.

25. At one stage of his submission, Mr. Dipankar Ghosh also submitted that when the West Bengal Legislature had enacted the Calcutta Municipal (3rd Amendment) Act, 1976, Sub-clause (f) of Clause (1) of Article 19 was still in force and Section 183 (3A) of the Calcutta Municipal Act, 1951 was void ab initio because the same unreasonably infringed the Fundamental Right of citizen to acquire, hold and dispose of property. According to Mr. Dipankar Ghosh, by reason of the omission of Sub-clause (f) of Clause (1) of Article 39 of the Constitution (44th Amendment) Act, 1978, the Sub-section (3A) of Section 183 of the Calcutta Municipal Act did not revive and again become void. As I am of the view that the restrictions on the right of appeal imposed by Section 183 (3A) of the Calcutta Municipal Act did not unreasonably infringe the right to acquire, hold and dispose of property, it is not necessary for me to examine the further question whether omission of Sub-clause (f) of Clause (1) of Article 19 of the Constitution (44th Amendment) Act, 1978, would result in reviving any post-constitutional law which at the date of its enactment was repugnant to Article 19(1)(c) of the Constitution.

26. For the foregoing reasons, I conclude that Section 183 (3A) of the Calcutta Municipal Act, 1951 is not arbitrary or unfair and therefore does not infringe Article 14 of the Constitution. The said provision is also not repugnant to or inconsistent with other provisions for payment and recovery of consolidated rates contained in the Calcutta Municipal Act The Sub-section (3A) of Section 183 of the Calcutta Municipal Act does not make right of appeal under Section 183 (1) of the Act nugatory or illusory.

27. I accordingly discharge this Rule without any order as to costs.

28. Let the operation of this order be stayed for four weeks from date.


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