M/S KANAK INVESTMENT LTD. & ORS. Vs. THE STATE OF WEST BENGAL & ORS.
LAWS(CAL)-1996-6-50
HIGH COURT OF CALCUTTA
Decided on June 27,1996

M/S Kanak Investment Ltd. And Ors. Appellant
VERSUS
The State of West Bengal and Ors. Respondents

JUDGEMENT

Tarun Chatterjee, J. - (1.)In this writ application the writ petitioners primarily challenge the unconstitutionality of Sections 2(20), 193,214,217,219, 230, 231 and 171(4) of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as 'the Act'). In addition to this prayer the writ petitioners have also come up to this Court for setting aside two notifications dated 30th Sept., 1985 and l3th June, 1986 which are Annexures 'D' and 'E' to the writ application and also for setting aside the supplementary bills issued by the Calcutta Municipal Corporation Authorities for payment by the writ petitioners in respect of surcharges for commercial and/or non-residential use concerning Premises No. 41, Chowringhee Road, Calcutta which are Annexures 'F' 'J' and 'L' to the writ petition.
(2.)So far as the question of unconstitutionally of the aforesaid provisions is concerned, the learned Counsel for the writ petitioners did not extend any submission in support of that contention at the time of final hearing of this writ application. That apart the constitutional validity of the aforesaid provisions of the Act was also considered by a learned Judge of this Court in the case of Ram Sur Vs. State of West Bengal, 95 CWN 1 and it was held in that decision that some of the aforesaid provisions of the Act were not ultra vires the Constitution of India. In view of the aforesaid settled position and in view of the stand taken by the learned Counsel for the writ petitioners, it is, therefore not necessary for me to consider the aforesaid questions in this writ application. So far as the second prayer of the writ petitioners is concerned, I am of the view that such prayer also cannot be allowed in the facts and circumstances of this case and in view of the certain provisions incorporated in the Act. Let me now take up the prayer made by the writ petitioners against the notice issued under Sec. 171(4) of the Act which are Annexures 'D' and 'F' to the writ petition by which the writ petitioners were directed to pay surcharge on the consolidated rate in respect of the premises is question on account of commercial and/or non-residential purpose. According to the Authorities, the premises in question was being used for commercial purpose and therefore, the writ petitioners were liable to pay commercial surcharge on consolidated rate from 1st April 1984 From the record it appears that the aforesaid two notifications were issued by the Authorities on 30th Sept., 1985 and 13tb June. 1986 According to the learned Advocate, for the writ petitioners, these notifications are bad, illegal and invalid and are liable to be quashed inasmuch as by the said notifications the writ petitioners were directed to deposit commercial surcharges from the first quarter of 1984-85 that is from first of April, 1985. It was next contended by the learned Counsel for the writ petitioners as there is a specific provisions in the Act for recovery of the consolidated rate from the occupiers and/or tenants of the premises in question, the writ petitioner ought not to have been directed to deposit commercial surcharge relating to the liability of the occupiers or the tenants of the premises in question. According to the learned Advocate for the writ petitioners, a part of the premises in question being occupied by the occupiers or the tenants, the commercial surcharges for such occupations should be paid by the occupiers or the tenants and therefore, the commercial surcharge in respect of such occupiers who are the owners of the premises in question. In my view, the aforesaid two contentions of the learned Counsel for the writ petitioners are not of any substance. The Act being a complete code provides for realisation of commercial surcharges and other taxes If paid by the owner to the Corporation Authorities. It cannot be said that for the purpose of recovery of commercial surcharges and other taxes relating to the occupation of the occupiers, the Calcutta Municipal Authorities under the Act must take steps against the occupiers and/or tenants of the premises in question in respect of the occupation of the occupiers in the premises in question, although the Act clearly confers power on the Corporation Authorities to realise the entire tax including the commercial surcharges from the owner of the premises in question as the owner of the premises in question is primarily liable to pay consolidated rate in respect of the premises in question. For this reason, the legislature has conferred power to the owner or the person who is primarily liable to pay consolidated rate to recover the entire amount of surcharge on the consolidated rate on any land or building from the occupier of such land or building who uses it for commercial or non-residential purpose. This power of the owner or the person primarily liable to pay the consolidated rate has been conferred in Sec. 230 of the Act, Sec. 231 of the Act also deals with mode of recovery. It says that if any person is primarily liable to pay any consolidated rate on any land or building and is entitled to recover any sum from any occupier of such land or building, he shall have, for recovery thereof, the same rights and remedies as if such sum were rent payable to him by the person from whom he is entitled to recover such sum.
(3.)From the aforesaid two provisions of the Act it is evident at in view of the fact that the Act confers power on the Calcutta Municipal Authorities to realise the occupiers' charges from the owner the premises in question, the aforesaid two provisions namely Sections 230 and 231 of the Act have been incorporated in the Act missioned to realise the amount if paid by the owner to the Calcutta Municipal Corporation Authorities from the occupier t r the tenants of e premises in question. Therefore, I am unable to agree that the Calcutta Municipal Corporation Authorities are not entitled to realise amount at directed in the aforesaid two notifications from the writ petitioners. If any amount is paid for and on behalf of the occupiers by the writ petitioner, it will be open to them to realise such amount from the occupiers and/or tenants of the premises in question in accordance with law. In this connection another argument of the learned Counsel for the writ petitioner may be referred to. According to the learned Advocate for the writ petitioners, since the writ petitioners are lot liable to pay the occupiers' charges the consolidated rate bill which re now also challenged in this writ application as Annexures 'J' and 'L' this writ application should be separated and a separate bill should lie presented by the Calcutta Municipal Corporation to the writ petitioners in respect of the owners shares of taxes of the premises in question. In my view, this is not permissible in law now in view of e provisions made in the 1980 Act. The occupiers and owners shares have been clubbed together and a consolidated rate bill under the Act s to be presented to the assessee. Therefore, there is no ground to direct the Corporation Authorities to separate the consolidated bill and present a separate bill to the writ petitioner in respect of owners are of taxes to be paid in respect of the premises in question. For e reasons aforesaid I am unable to agree with the submissions of the teamed Advocate for the writ petitioners on the aforesaid questions. So far as the direction made in the notifications that the writ petitioners just deposit surcharge from first quarter of 1984-85 is concerned, I am the view that this submission of the learned Counsel for the writ Petitioner is, also not of any substance. The Calcutta Municipal orporation Act has come into force on and from 1st of April, 1984. Therefore, in my view, the Calcutta Municipal Corporation Authorities re entitled to recover commercial surcharge from the writ petitioners m the first quarter of 1984-85 and accordingly I do not find any reason to hold that the notifications were bad because in the said Notifications the writ petitioners were directed to pay consolidated rate with surcharge from 1st-quarter of 1984- 85. Let me now deal with other submission of the learned Counsel for the writ petitioners The learned Advocate for the writ petitioner submits that since the premises in question is being used for commercial purposes by the tenants and not by the owner the writ petitioners who are owners of the premises in question are not liable to pay commercial surcharges. In my view, this submission is devoid of any merit Since the Act itself clearly provides for realisation or recovery of the amount of the consolidated rate from the owners of the premises in question and the owners and occupiers charges are now being clubbed together in Sec. 2(20)of the Act which clearly says that it includes the surcharge as well it is difficult to appreciate the argument of the learned Counsel for the writ petitioners that the Corporation Authorities under the scheme of the Act are not entitled to realise the consolidated rate which includes surcharge in terms of Sec. 2 (20) of the Act from the writ petitioners who are the owners of the premises in question. As noted herein above, if the amount is paid by the writ petitioners who are the owners of the premises in question which are to be paid by the occupiers and/or tenants of the premises in question Sec. 230 of the Act clearly confers the right to the owner to realise and/or recover the amount from the tenants or occupiers who have used the premises for commercial purposes. Nothing is found from the provisions of the Act that the commercial surcharges can be recovered only from the occupiers or from the tenants in question and not from the owner of the premises in question.
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