LALL KRISHNA MUNDRA Vs. FATICK CHANDRA HAZRA AND ORS.
HIGH COURT OF CALCUTTA
Lall Krishna Mundra
Fatick Chandra Hazra And Ors.
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(1.)In all these Civil Revision cases a common question of law has arisen. The contention on behalf of the Petitioners is that chap. VIII of the Presidency Small Cause Courts Act of 1882 violates the provisions of Article 14 of the Constitution. This is the chapter on "Distresses". We shall deal with the relevant provisions of this chapter at the appropriate time. It is common case that a landlord within the limits of the Ordinary Original Civil Jurisdiction of this Court can either levy 'distress' or proceed by way of a suit in the Presidency Small Cause Court provided that the rent sought to be recovered is not for more than twelve months. The argument on behalf of the Petitioners is that the two choices available to a landlord are discriminatory. The landlord at his sole discretion may proceed under chap. VIII against one tenant and may file a suit against another tenant. In other words, the selection lies wholly with the landlord as to whether he would file a suit or levy a 'distress'. Secondly, the Act does not prescribe or give any guidance as to how and when the option or selection is to be exercised. Thirdly, the procedure for 'distress' is more onerous than the procedure in a suit. And if there is an ordinary remedy by virtue of the ordinary law of the land and also a more drastic remedy, e.g. by way of 'distress', the latter should be struck down. Learned Advocates for the Petitioners elaborating their arguments further submit that, so far as arrears of rent for one year or less than one year are concerned, a suit lies in the Small Cause Court under Ss. 17 and 18 of the Act. In a suit a tenant has ample time to pay up his dues. He can file a written statement. He has also the right to a new trial under Sec. 38 which is more or less by way of appeal. He can ask for payment by installments by reason of Rule 7 in chap, XX of the Rules of Practice of the Calcutta Small Cause Court. But these facilities are not available to him in the procedure of 'distress'. On the contrary, under chap. VIII of the Presidency Small Cause Courts Act the opposite party can defend only by depositing the bailiff's costs. He has no say in the matter before attachment and seizure of goods. That procedure being onerous should, therefore, be struck down.
(2.)In support of these contentions reliance was placed on a Special Bench's judgment in S.M. Nawab Ariff v/s. The Corporation of Calcutta : 64 C.W.N. 1 (S.B.) The Special Bench was invited, inter alia, to test the validity of some of the Sec. of the Calcutta Municipal Act. In Sec. 251 of this Act it was provided:
Instead of the Commissioner proceeding against a defaulter under the foregoing provisions of this chapter, or after a defaulter has been so proceeded against unsuccessfully or with only partial success, it shall be competent for the Corporation to recover from him by suit in any Court of competent jurisdiction, any sum due or the balance of any sum due, as the case may be, on account of the consolidated rate, together with all costs.
(3.)'The foregoing provisions' referred to in Sec. 251 were provisions relating to 'distress' which the Commissioner could levy for arrears of consolidated rates. The position, therefore, was that under the Municipal Act for recovery of consolidated rates, either the Commissioner himself could levy a 'distress' or the Corporation could institute a suit in a Court of competent jurisdiction. The Special Bench was of opinion that there was no scope for reading in Sec. 251 any principle or policy for guidance of the exercise of the discretion by the authorities in the matter of selection or classification in view of the very clear words used by the Legislature in the phrase Instead of the Commissioner proceeding against a defaulter under the provisions of this chapter, or after a defaulter has been so proceeded against unsuccessfully or with only partial success.
It was further observed that the Act did not contain any reasonable classification of cases where the procedure by issue of 'distress' warrant was to be followed and cases where the procedure by way of suit was to be adopted.
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