S.K. Datta, J. - (1.) This is an appeal by the defendants the Commissioners of Basirhat Municipality against a judgment of affirmance. The plaintiff instituted a suit on the following allegations. There is a piece of land known as landing ghat near the post office of the town formerly used for coming over to river. Ichhamati. This land was being settled temporarily by the municipality to different persons from time to time. The plaintiff took settlement of the land from 1953 -54 at an annual rent of Rs. 30/ - and on erection of shop room thereon had been carrying on business there. Municipal Commissioners put a notice on March 16, 1956 for settlement of the landing ghat for three years. At the auction held on March 23, 1956 the plaintiff took the land with the highest bid of Rs. 75/ - as annual rent and deposited Rs. 45/ - on that date. A kabuliat was to be executed within 15 days under the terms of auction. Inspite of requests the Commissioners did not supply the plaintiff the particulars and the area of the land and on the contrary informed the plaintiff by a letter dated April 19, 1956 that if the kabuliat was not executed by April 27, 1956 the lease would be cancelled. Even thereafter no particulars were supplied and no written lease was executed or registered as required under the letter. In fact according to the letter of the Commissioners the lease was cancelled and rent was being collected from some other person called Haran. There was thus no lease and the plaintiff was never a lessee and nor bound to pay any rent and the lease if any was wholly void and illegal. The Commissioners being displeased with the plaintiff illegally issued and served a distress warrant on 7th March 1958 by its employees and in pursuance thereof attached and seized his goods worth about Rs. 400/ - in his absence. Criminal proceeding was started against the said employees but the plaintiff was referred to the civil court. The suit was accordingly filed on due notice under Sec. 535 of the Bengal Municipal Act, 1932 (hereinafter referred to as the said Act) praying for a declaration of plaintiff's title to the moveable properties seized and, that there was no valid lease by the Municipality to the plaintiff, that the plaintiff was not bound to pay any rent, and that the distress warrant was illegal void and inoperative. There was a prayer for injunction restraining the defendants the Commissioners of the Municipality from selling the seized goods by auction and if the goods were sold in the mean time, it was prayed that there should be a decree for Rs. 400/ - as compensation for the goods seized and Rs. 45/ - for refund of the deposit as stated above. The suit was instituted on September 6, 1958. The suit was contested by the defendants Commissioners by filing written statement. Apart from formal objections, it was stated that the plaintiff was a lessee of the disputed land measuring one decimal in dag No. 4924 from April 1, 1953 to March 31, 1956 and he took further settlement at an annual rent of Rs. 75/ -. The plaintiff however neglected to execute the necessary document and the plea taken by him was untrue. Even so, the plaintiff was a temporary lessee of the suit land. The allegation of the land being leased out to some other person or rent being collected from him was also untrue. The lease in favour of the plaintiff was valid upto March 31, 1959 and he was in possession of the suit land. It was further stated that no illegal warrant was issued on the plaintiff and such warrant had to be issued as the plaintiff failed to pay his dues to the Municipality. The distress warrant, attachment etc. were all according to law. Even if the plaintiff was not a lessee he was a licensee and therefore he was bound to pay the Municipal dues under Sec. 65 of the Indian Evidence Act. The suit was speculative and harassing and should be dismissed.
(2.) On a trial on evidence the learned Munsif held that the suit was maintainable in law and the plaintiff had been in possession of the suit land. The lease was not cancelled as established by the subsequent conduct, though the Chairman wrote to the plaintiff to that effect. It was also found that the particulars of the land was not supplied to the plaintiff. There was no lease for 3 years or even a monthly lease. But as the plaintiff was in possession a tenancy at will was implied though it was not a lease under Sec. 105 of the Transfer of Property Act. The plaintiff was liable to pay reasonable compensation for use and occupation of the land as held in the case of Sudhir Kumar Majumdar v/s. Dhirendra Nath Biswas and others, 61 C.W.N. 23. Under the Bengal Municipal Act the Commissioners were not entitled to realise by distress or otherwise such compensation which is not tax, tolls, fees and rates etc. The issue of distress warrant and the seizure of goods accordingly were clearly illegal. It was further held that Rule 263 of the Municipal Account Rules framed by the State Government for the Municipality provided for realisation of rent by collecting Sirkars or by distress warrant. The said provision in the rules for realisation of rent, being not provided for in the Act, was, thus, not authorised in law, and accordingly, the rent could not be realised by distress warrant. Further the notice of sale to be held on March 25, 1958 was given to the plaintiff but no sale was held on that date as there was no bidder. The Chairman's note exhibit B shows that the sale was fixed on April 19, 1958 and this was to be announced by beat of drums. According to the evidence adduced by the defendants this was not done. The sale held on April 19, 1958 was without any publicity and was highly irregular. It was further held that the plaintiff succeeded in establishing the value of the seized goods at Rs. 400/ -. On these finding it was held that there was no lease between the plaintiff and the Commissioners of the Municipality, the seizure and attachment by distress were illegal and void and the suit was accordingly decreed for Rs. 400/ - for proved value of articles.
(3.) There was an appeal by the Municipal Commissioners and the appeal court held that the suit against the Commissioners of the Municipality suffered from technical defect in as much as the defendants were described as the Basirhat Municipality represented by its Commissioners named and this description was not strictly in form as was required under the law. It was however held that the suit was maintainable relying on the case of (2) Jogendra Nath Banerjee v/s. Tollygunge Municipality, : 42 C.W.N. 768, which advocated liberal construction of plaint and substantial compliance of the provisions of the said Act ignoring the technical defect when no prejudice was caused. The appellate court did not consider whether the plaintiff was liable to pay rent, compensation or licence fee for use and occupation of the land. The court directed itself to a consideration as to whether distress warrant could be legally issued for realisation of its dues be it rent, compensation or licence fees. While demand and collection register of rent, warrant register letter of the Chairman and miscellaneous bills enclosed showed that the dues were treated as rent, the distress warrant under Sec. 157(1) did not precisely declare the character of demand. It was however held on consideration of Ss. 123, 155, 156 of the said Act that those Ss. did not authorise issue of distress warrant for realisation of arrears of rent. Accordingly the Government by its rule making powers was not competent to enlarge the authority of the Commissioners of the Municipality and invest them with powers to issue distress warrant for rent which power the Municipal Commissioners did not possess under the Act itself. In realising rent from its tenants, the Municipality functions not as a Municipality but as the landlord and such a power to realise rent not being provided for in the Act itself, rule 263 of the Municipal Account Rules is ultra vires of the said Act. As to sale itself, in the absence of publicity the sale was irregular and illegal and it was actuated by motive and as such was malafide. The notice under Sec. 535 was legal and valid. The appeal accordingly was dismissed. The present appeal is against the said decision by the Municipal Commissioners.;