Ashim Kumar Banerjee, J. - (1.) Points of Controversy : 1.1.Section 214 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the "said Act of 1980" ) provides for method of recovery of tax by the Corporation. As per the said provision the Corporation was obliged to issue a bill upon the person liable to pay the tax. Despite presentation of the bill, if no amount is paid within thirty days notice of demand is served under Section 217. Despite notice of demand if amount is not paid such amount together with cost, interest and penalty as per the provisions of Section 217 would be recovered under a warrant by distress and sale of movable property under Section 219. Under Section 220 the procedure for distress sale has been prescribed. In terms of Section 221A on an unsuccessful attempt to recover the outstanding tax by adopting the mode discussed hereinbefore the Corporation is entitled to attach and sell immovable property belonging to the person liable. The Corporation is also entitled to attach rent payable by the tenants of any immovable property belonging to the debtor. Chapter-XVI has dealt with payment and recovery of taxes and Section 214 to 232 have prescribed a complete mode of recovery of taxes. Earlier under the old Act of 1951 there had been a provision for filing of suit for recovery of taxes. Ultimately the same was repealed while introducing the new law of 1980 wherein the Corporation is additionally empowered to recover the dues under Bengal Public Demanded Recovery Act, 1913. On a composite reading of Chapter - XVI it thus appears that the prescribed mode under Section 214 is a step-by-step procedure for recovery of taxes and/or statutory outgoing payable to the Corporation. 1.2. Chapter XVII of the said Act of 1980 has dealt with water supply. In the said Chapter Section 275 has empowered the Municipal Commissioner to cut off or turn off supply of water to any premises on the eventualities prescribed therein. On a plain reading of the said provision such eventualities pertain to use and/or misuse of water in any premises. All the eventualities prescribed therein have a direct nexus with water supply except sub-section 1(g) where water supply is liable to be disconnected in case use of the said premises has been prohibited for human habitation. Sub-section 1(j), inter alia, provides that in case of non-payment of tax for water supply the supply connection is liable to be disconnected. 1. 3. By an amendment brought in through West Bengal Bengal Act VIII of 2001 the Legislature introduced sub-section (1)(aa) which reads as follows:- "(aa) if, in respect of the premises, any taxes or rates or fees or charges are in arrear for payment for more one year." With such incorporation Section 275(1) as of date reads as follows:- "275.Power of Municipal Commissioner to cut off or turn-off supply of water to premises.-(1) Notwithstanding anything contained in this Act, the Municipal Commissioner may cut off the connection between any water works of the Corporation and any premises to which water is supplied from such works, or may turn off such supply, in any of the following cases, namely:- (a) if the premises are unoccupied; [(aa) if, in respect of the premises, any taxes or rates or fees or charges are in arrear for payment for more than one year;] (b) if, after receipt of a written notice from the Municipal Commissioner requiring him to refrain from so doing, the owner or occupier of the premises continues to use the water or to permit the same to be used, in contravention of this Act or of any regulations made thereunder; (c) if the occupier of the premises contravenes section 238; (d) if the occupier refuses to admit any officer or employee of the Corporation duly authorised in that behalf into the premises for the purpose of making any inspection under this Act or under any regulations relating to water supply made under this Act, or prevents such officer or employee from making such inspection; (e) if the owner or the occupier of the premises wilfully or negligently injures or damages his meter or any pipe or tap conveying water from any works of the Corporation; [(ee) if the owner or the occupier of the premises fails to maintain water reservoir with covered lid or completely empty water tank once in a week;] (f) if any pipes, taps, works or fittings connected with the supply of water to the premises be found, on examination by the Municipal Commissioner, to be out of repair to such an extent as to cause so serious a waste or water that, in the opinion of the Municipal Commissioner, immediate prevention is necessary; (g) if the use of the premises for human habitation has been prohibited under this Act from the date from which the premises are to be vacated in pursuance of an order under this Act; (h) if there is any water-pipe situated within the premises to which no tap or other efficient means of turning the water off is attached (i) if by reason of a leak in the service-pipe or fitting, damage is caused to the public street and immediate prevention is necessary; (j) if the occupier of the premises fails to pay in full any amount due from him for supply of water under this Act: Provided that- (i) water supplied for flushing privies or urinals shall not be cut off or turned off except when the Municipal Commissioner thinks it necessary to cut off or turn off such water for preventing damage to or accident on public streets; (ii) water shall not be cut off or turned off in any case referred to in [clause (a) or clause (aa) or] clause (g) or clause (j) unless written notice of not less than seventy-two hours has been given to the occupier of the premises; (iii) in any case referred to in clause (f) or clause (i), the Municipal Commissioner may carry out necessary repair to pipes, taps, works or fitting and recover the expenses thereof from the owner of the occupier of the premises." 1.4 Controversy arose when Corporation gave seventy-two hours notice to disconnect water supply in respect of the premises belonged to the respondents, inter alia, alleging that taxes were found due in respect of the premises in question for more than one year. Notices were issued, inter alia, by Chief Municipal Engineer, Water Supply as appears from page 31 of the Paper Book filed by the Calcutta Municipal Corporation in A.P.O.No. 233 of 2003 (hereinafter referred to as the said Paper Book). The respondents approached the learned Single Judge by filing independent writ petitions, inter alia, praying for an order of restraint as against the Corporation from disconnecting water supply. Initially there had been no challenge to the vires of the said amended provision. Learned Single Judge allowed such challenge to be made through a supplementary affidavit filed with the leave of the Court. 1.5. Learned Single Judge initially granted ad interim order restraining Corporation from disconnecting the water supply upon payment of a part of the outstanding. Ultimately by a common judgment and order dated September 24, 2002 the learned Single Judge struck down Section 275(1)(aa), however, kept the writ petitions pending to be decided on other issues. We are told that those writ petitions are still pending and awaiting their disposal.
(2.) The Development Subseqeunt to the passing of the Judgment and order impugned : 2.1 Altogether three writ petitions were dealt with by His Lordship by the above common judgment and order impugned herein. The Corporation as well as the State altogether filed six independent appeals from the said judgment and order. The appeals came up for hearing before a Division Bench in which I was a party. On perusal of the records it appears that the appeals started appearing before the said Division Bench on and from August 25, 2006. The matter was argued at length on behalf of the appellant Corporation. However, the State appellants being represented by learned Advocate General prayed for adjournment to consider as to the feasibility of bringing about amendment to the impugned section by taking care of the lacunas pointed out by the respondents/ writ petitioners and accepted by His Lordship. It further appears from record that on the prayer of the State the matter was adjourned from time to time. Ultimately on March 19, 2007 the Division Bench dismissed the appeals as neither any fruitful purpose was served by adjourning the matter nor any attempt was made on behalf of the State to amend the provision for which adjournments were obtained. 2.2. By the judgment and order dated March 19, 2007 the Division Bench after recording the facts relating to adjournment observed as follows:- "In Course of hearing, it was felt that the impugned section needs appropriate amendment. The learned Judge also had the same view and, as such, struck out the impugned section. Adjournment was prayed for on behalf of the State which was granted by us. Sufficient time has been given to the State on that score. The matter is appearing today in our list after about five months. No useful purpose would be served by keeping this matter pending and giving further adjournment in the matter. The impugned section as it stands today has been struck out by the learned Single Judge. We have perused the judgment and order. We do not find any scope of interference therein. Accordingly, the appeals are dismissed. The State would, however, be free to bring about any appropriate amendment to the impugned section, if they so choose." 2.3. The Division Bench could not deal with the issue on merits as no further argument was advanced on that day on behalf of the appellants on merits. In fact the hearing was not concluded by and on behalf of the appellants and they went on praying for adjournment so that the proper amendment could be brought in. The Division Bench initially granted several adjournments. However, since no fruitful result was forthcoming it dismissed the appeals by granting opportunity to the State to bring proper amendment. In this back drop the Division Bench passed the order by observing as quoted (supra). 2.4 The State neither amended the law nor approached the Apex Court against the judgment and order of the Division Bench. The Corporation however, filed three separate Special Leave Petitions. The said Special Leave Petitions were allowed by the Apex Court by setting aside the judgment and order dated March 19, 2007 and remanding the appeals back to this Court for being heard afresh. The order of the Apex Court being relevant herein is quoted below:- "From the impugned judgment of the Division Bench of the Calcutta High Court affirming the decision of the learned Single Judge, these appeals are filed by the Kolkata Municipal Corporation. The learned Single Judge has struck down Section 275(1)(aa) of the Kolkata Municipal Corporation Act, 1980. Against the said decision, number of Writ Appeals were filed by the Corporation. It appears from the impugned decision that at one stage, the matter stood adjourned on the ground that the State had agreed to amend the law. However, that did not materialize. By a cryptic order, the Division Bench has stated that they have perused the judgment and they did not find any scope for interference in the order of the learned Single Judge. We are of the view that in matters involving constitutionality, it would not be open for the High Court to dismiss Writ Appeals on such cryptic grounds. In the circumstances, we set aside the impugned judgment of the Division Bench and we restore A.P.O.No.233 of 2003 and other Appeals to the file of the Kolkata High Court. We direct the High Court to expeditiously hear and dispose of the said appeals in accordance with law. At this stage, learned counsel appearing for the Corporation states that the Corporation prays for stay of the judgment given by the learned Single Judge. We cannot grant such a prayer particularly when we are setting aside the impugned order passed by the Division Bench. However, it would be open to the Corporation to move the Division Bench in the pending Appeals for interim relief, if so advised." 2.5 The Apex Court passed the said order on January 16, 2009. This was communicated to the Registrar of this Court in its Original Side through fax by the Apex Court Registry on February 4, 2009. The matter was placed before us on February 5, 2009 by the Registry. We directed listing of all the Corporation appeals. We started hearing the said matter on February 11, 2009 when the learned Advocate General pointed out that the Apex Court directed all the appeals to be heard although it was not clear to us whether the state appeals were also remanded back in absence of any challenge by the State before the Apex Court. To avoid complication we directed the State appeals also to be listed and we continued hearing on the subsequent dates of all the six appeals which were heard on the above mentioned dates and are being disposed of once again by this common judgment and order. It is true that the Division Bench did not assign any reason on merits on the challenge to the vires of the said provision. Such omission was due to the subsequent developments discussed above. However, in deference to the desire of the Apex Court we heard the matters afresh by affording opportunity of hearing to all concerned. Only one respondent being Kerbs & Cie (India) Limited appeared. The other two respondents were conspicuously absent at the hearing.
(3.) The order of Remand and its implication : 3.1 Mr. Anindya Kumar Mitra, learned senior counsel appearing for the Kerbs & Cie (India) Limited contended that the Apex Court did not set aside the order of dismissal of the appeals on merits. The Apex Court rather asked this Court to assign reasons in support of the order of dismissal. In brief, if we have understood Mr. Mitra correctly, he wanted to mean that we do not have any scope to allow the appeals. We are only to supplement reasons for dismissal. 3.2. We have perused the order of the Apex Court quoted (Supra). We are unable to accept the contention of Mr. Mitra. Constitution of the earlier Bench was different from the present Bench although one member of the Bench is a common feature. The other member of the present Bench did not get any opportunity to apply his mind earlier. The appeals were directed to be heard afresh and disposed of as such. It might be true that the Apex Court prompted to allow the Special Leave Petition and passed an order of remand as the earlier order was devoid of reasons, that in our humble view, did not mean that the present Division Bench is only to supplement the reasons for dismissal of the appeals and did not have any authority to hold otherwise. Accordingly, we decided to hear the appeal afresh and those were heard on the above mentioned dates. We granted opportunity to all concerned to place their views before us. However, except Kerbs & Cie the other writ petitioners did not chose to appear. ;