SABYASACHI MUKHERJI, J. -
(1.) In this appeal we are concerned with the right of the erstwhile Kotrung Municipality to realize, in the facts and circumstances of this case, by distress, the alleged dues on account of municipal tax for the period from 1st quarter of 1962-63 and license fee for the period from 1st half of 1958-59 to the 2nd half year of 1962-63. it appears that holding No. 1, Shankaripara Ghat Lane in word No. 1, Kotrung, was originally acquired by the Corporation of Calcutta for the purpose of manufacturing bricks to meet the requirements of the said Corporation of Calcutta. Subsequently, the Corporation of Calcutta leased out the said property and one Krishnamohan Banerjee, become a lessee thereof. It has been alleged that Sri Girija Prasad Paul, hereinafter, referred to as the petitioner No. 1 became a sub-lessee under the said Kishori Mohan Banerjee and it has been further asserted that he become a direct lessee under the Uttarpara Kotrung Municipality in respect of the aforesaid holding. It has been further alleged that Friend's Bureau, which had registered partnership firm and hereinafter referred to as the petitioner No. 2, is working the brick field in the aforesaid holding since 1st of November, 1960, as a licensee under the petitioner No. 1. The Corporation of Calcutta is the owner of aforesaid holding in the records of the municipality. By a notification issued the Kotrung Municipality has been amalgamated with the Uttarpara Municipality and is now known as Uttarpara Kotrung Municipality, hereafter in referred to as the appellant. By the notice dated 17th of July, 1963 fixed in the aforesaid holdings the appellant purported to attach 1,25,000 bricks on account of the alleged arrears of holding rates in respect of the aforesaid holding for the period from the 1st quarter of 1958-59 to the end of the 4th quarter of 1962-63 and alleged arrears of licence fee for the period from the first half of 1958-59 to the end of the second half year of 1962-63. The petitioners Nos. 1 and 2 are the occupiers in respect of the aforesaid holding as contemplated under the Bengal Municipal Act, 1932 and the Corporation of Calcutta is the owner thereof. The petitioners thereupon moved his High Court under Art. 226 of the Constitution. In the petition it was alleged that in accordance with Section 132 of the Bengal Municipal Act, 1932 the Corporation of Calcutta being the owner of the holding was liable in respect of the same. It was further alleged that no bill or notice of demand, as required under the provisions of the said Act had been served on the Corporation of Calcutta. It was further alleged that no notice of demand and no bills in respect of the dues had been served upon the petitioners. It was further alleged that the petitioners were not liable for licence fees because the petitioners had always been ready and willing to pay fee for trade licence and had ask for the issuance of trade licence but they were refused and as such they were not liable. In those circumstances it was contented that the appellant was not entitled to levy any distress or to sell the said goods belonging the petitioner and lying in the said holding. A rule nisi was issued and after affidavits and further affidavits were field, the matter came up for hearing before D. Basu, J. By an order passed and judgment delivered by D. Basu, J., on the 10th of December, 1968 the learned Judge has made the rule absolute and the appellant was restrained from taking any further steps in pursuance of the impugned notice and the appellant was restrained from taking any further steps in pursuance of the impugned notice and the appellant was restrained from taking any further steps in pursuance from taking any further steps in pursuance of the impugned notice and the appellant was directed to refund the amount of sale proceeds kept in the custody of the Municipality as per order of this Court dated 14th August, 1963. But the appellant was given liberty to proceed afresh according to law. The learned Judge came to the conclusion that there has not been service of the notice of demand on the Corporation of Calcutta in accordance with the provision of Bengal Municipal Act, 1932. According to the learned Judge without service of notice of demand upon the owner, no distress can be levied, in the facts and circumstances of this case. It was further contended before the leaned Judge that the petitioners being occupiers were liable for the rates independently of the owner in view of the comprehensive definition of owner in Section 3(38) of the said Act. The learned Judge, however, found that even assuming that they were the owners there was no personal service upon the petitioners. Furthermore, the learned Judge came to the conclusion that in view of Section 165 of the Bengal Municipal Act, 1932 the claim of the Municipality from the beginning of 1958-59 to the second quarter of 1962-63 was barred by limitation and as such the impugned notice must also be struck down on that ground as it included claim for the barred period.
(2.) Being aggrieved by the aforesaid judgment and order of D. Basu, J., the appellant has preferred the present appeal. On behalf of the appellant it was contended by Mr. S.K. Roy Chowdhury learned Advocate that in view of the fact that the Corporation of Calcutta was resident outside the Municipal limits of the Kotrung Municipality, and in view of the fact that notice of demand and the bills were sent to the Corporation of Calcutta by registered post and the receipt whereof has not been denied by the Corporation of Calcutta, there has been sufficient compliance with the relevant provision of Bengal Municipal Act and there has been proper service of the notice and bills as required by the provision of the Act and the Municipality of Kotrung was entitled to levy distress. It is further contended that in any event it is not a question of non-service of notice but a mere irregular service and that should not be permitted to vitiate the proceedings for distress for the realization of the dues. Alternatively, Mr. Roy Chowdhury consummation tended, that the petitioners are owner in view of the definition provided under Section 3(38) of the said Act and there has been service upon the petitioners in accordance with the provision of the Bengal Municipal Act, 1932 and as such the distress levied was right and proper. It was contended that provisions of section 165 and provision of Section 156 are Independent and separate provisions and the limitation provided under one section should not be imported into the provisions of another. In that context it was urged that the claim of Municipality in the distress notice did not include any claim which had become barred under the provisions of the Act.
(3.) It is therefore necessary to consider the relevant provisions of the Bengal Municipal Act, 1932 to determine whether the distress levied was proper or not. Section 132 of the Bengal Municipal Act provides that except as otherwise provided by the said Act, any rate which is assessed on the annual value of a holding would be payable by the owner of the holding. Section 147 of the said Act stipulates that the assessment list which is prepared in accordance with the provisions of the Act will be published and if in case any property is assessed for the first time or the assessment is in creased, the Chairman shall give notice thereof to the owner or occupier of the property, if known. Section 152 of the said acts provide that by notification to be posted up in their office, the Commissioners shall declare at what hours of each day the office shall be open for the receipt of money and the transaction of business. Section 153 provides that tax shall be payable in quarterly installment and every such installment shall be deemed to be due on the first day of the quarter in respect of which it is payable. Section 154 provides how receipts are to be given. Section 155, sub-section (1) provides that as soon as may be after any sum has become due on account of any tax toll, fee or rate, the Commissioners shall cause to be presented to the person liable a bill for the relevant provisions of Section 155 and Section 156 hereunder:-
"155. (1) as soon as may be after any sum has become due on account of any tax, toll, fee or rate, the Commissioners shall cause to be presented to the person liable a bill for the sum due. (2) Every such bill shall contain a statement of the period and of the tax, toll, fee or rate for which the charge is made. (3) The Commissioners at a meeting may be by a resolution direct that a rebate of three and one-eight per cent of the amount of any bill shall be allowed if payment of the amount for which the bill has been presented under sub-section (1) is made into the municipal office within thirty days from such presentation, and thereupon rebate shall be allowed accordingly. (4) If the said amount is not paid within thirty days from the date of presentation of the bill, a notice of demand in the prescribed form shall be served on the person liable. Such notice shall be signed by the Chairman, Vice-Chairman or any officer authorized by the Commissioners in that behalf and shall be served by a person authorized to receive payment: Provided that no charge shall be made in respect of the service of such notice. (5) On the amount of a bill remaining unpaid after its presentation, interest shall be payable at the rate of one pie per rupee per mensem on the said amount from the days from the commencement of the quarter following that in which the bill is presented. Provided. ???????????. Provided. ??????????? Section 165 of the Act provides as follows:-
"165. If the sum due from the owner of any holding remains unpaid after the notice f demand has been duly served, and such owner is not resident within the municipality or the place of abode of such owner is unknown, the same may be recovered from the occupier for the time being of such holding, who may deduct from the next and following payments of his rent the amount which may be so paid by or recovered from him: Provided that no arrear of rate shall be so recovered from the occupier of any holding if it has remained due from the owner thereof for more than one year or if it is due on account of any period during which such occupier was not in occupation of such holding: Provided also that if any such holing is occupied in severalty by more than one person, the sum recovered from any one of such persons shall not exceed such amount, as shall bear to the total sum due the same proportion as the value of the part of the holding in the occupation of such person bears to the entire value of the holding." In this connection it is also relevant to notice Section 510 which is in the following terms:-
"510. When any notice, bill, summons or other document is required by this Act or by any rule or by-law made there-under to be served upon or issued to, any person as owner or occupier of any land or building, it shall not be necessary to name the owner or occupier in the document and the service or issue thereof shall be effected- (a) by giving or tendering such document to the owner or occupier: Provided that if there be more than one owner or occupier, and it is not in the opinion of the Commissioners practicable to serve the document on every one of them the Commissioners may serve the document on any one or more of them as they may think fit; or (b) if the owner or occupier is not found, by giving or tendering such document or by sending it by post to any adult male member of the family, or to a servant in the employ, of the owner or occupiers or of any of the owners or occupiers; and (c) both in the cases mentioned in clauses (a) and (b) by affixing such notice, bill, summons, or other document on some conspicuous part of the land or building (if any) or other thing to which the document relates.";