K.C.Das Gupta, CJ. - (1.) The question that arises for decision in this application under Article 226 of the Constitution which has been referred to this Bench under Chapter V of the Original Side Rules is whether Section 237 of the Calcutta Municipal Act is void under Article 13 of the Constitution of India because of inconsistency with the provisions of Article 14 of the Constitution. It appears a distress warrant was issued against the petitioner purporting to be under Section 237 of the Calcutta Municipal Act for realisation of a sum of money said to be due on account of coasolidated rate assessed for premises No. 3, Amratola Lane. It was alleged in the application that before the distress warrant was actually issued, no notice of demand as required under Section 236 of the Calcutta Municipal Act had been served on the petitioner. It was further urged that Section 237 of the Calcutta Municipal Act of 1951 was ultra vires the Constitution of India being violative of Article 14 of the Constitution. After a Rule Nisi was issued, the allegation that the distress warrant had been issued without previous issue and service of notice under Section 236 of the Act was denied by the respondents. The allegation that Section 237 is ultra vires the Constitution of India was also denied. D. N. Sinha, J. before whom the Rule came up for hearing made this reference under Chapter V of the Original Side Rules as in his view the question raised whether Section 237 of the Calcutta Municipal Act is ultra vires the Constitution because of the inconsistency of Article 14 of the Constitution was a point of substance which required an authoritative determination. It has to be mentioned at the outset that the question whether a notice under Section 236 was sent or not being a disputed question of fact, that question cannot be properly taken up by the Court before which relief under Article 226 of the Constitution is sought. Mr. S. Roy, who appeared before us for the petitioner, agreed that this was the position in law and that the point on which the decision of his client's application will depend is whether Section 237 of the Municipal Act is ultra vires the Constitution, and so void. If it is not shown to be void, the application for relief must be rejected. If the Section is ultra vires the Constitution and therefore void, the applicant will be entitled to relief under Article 226.
(2.) As has already been indicated, the only ground on which it is said to be ultra vires the Constitution is that it violates the constitutional guarantee in Article 14 of the equal protection of the laws. Chapter XVII of the Calcutta Municipal Act deals with recovery of the consolidated rate and other taxes imposed under the Calcutta Municipal Act. For the recovery of the consolidated rate the Chapter provides three different modes -- one is by distraint, the other is by certificate under the Bengal Demands Recovery Act and the third is by suit, Section 237 which is set out in full below provides for recovery of consolidated rate which is left unpaid within 15 days from the service of notice of demand under Section 236, when no sufficient cause has been shown For non-payment of the same by distress and sale of any movable property belonging to the rate-payer. Section 237 is in these" words: "(1) If the person liable for the payment of the consolidated rate does not, within fifteen days from the service of a notice of demand under Section 236, pay the sum due, or show sufficient cause to the satisfaction of the Commissioner for, non-payment of the same, such sum, with interest thereon and all costs of recovery, may be recovered under a warrant in the form in Schedule IX. or in a form to the like effect, to be issued by the Commissioner- (a) by distress and sale of any movable property belonging to such person, or (b) if such person be the occupier of any premises in respect of which the sum is due, by distress and sale of any movable property found on the said premises; Provided that, when the premises in respect of which the default is committed are a place of business, and the movable property distrained under Clause (b) is shown to the satisfaction of the Commissioner to have been left there (by some person other than the person referred to in that clause) for repairs or safe custody in the ordinary course of business, it shall be released. (2) The movable property of any person liable for the payment of any sum, for the recovery of which a warrant has been issued under Sub-section (1), may be distrained wherever the same may be found in Calcutta. (3) For every warrant issued under this section, a fee shall be charged at the rate mentioned in that behalf in Schedule XI, and the amount of the said fee shall be included in the costs of recovery." '' Section 244 contains provisions for a fresh war rant if the first of the proceeds of a sale of property seized under the first warrant are not sufficient. The relevant portion of this Section is in these words: If the proceeds of any sale under Section 240, proviso, or Section 243 are not sufficient to cover the sum due, together with the costs of recovery, the Commissioner may issue a fresh warrant of distress . in the form in Schedule IX, or in a form to the like effect, for the recovery of the balance due and for all additional costs thereof.'' Section 245 provides that: "After a defaulter has been proceeded against under the foregoing provisions of this Chapter unsuccessfully or with only partial success, the Commissioner may recover from him by certificate under the Bengal Public Demands Recovery Act, 1913, any sum due or the balance of any sum due. as the case may be, together with interest and all costs." Section 250 provides that: "If the Commissioner at any time has reason to believe that any person from whom any turn is duo on account of the consolidated rate is about forthwith to remove from Calcutta, the Commissioner may direct the immediate payment by such person of the sum so due and cause a bill for the same to be presented to him." and if, on presentation of such bill, the said person does not forthwith pay the sum, the amount shall be leviable under the provisions of Chap. 17 by distraint under S, 237 or Section 244 or by certificate under Section 245 or under Section 251.
(3.) It is this Section 251 which raises the question of the denial of equal protection of the laws, the relevant portion of this Section is in these words: "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," The result of this provision of Section 251, it is said, is that if there are two defaulters similarly circumstanced, the Act allows one defaulter to be proceeded with under Ss. 237, 244 and 245 and another to be proceeded against by way of suit in a Civil Court. The two laws under which persons of the same class can thus be proceeded against are, it is urged, unequal, the procedure by way of distraint being very much more onerous than the procedure by way of suit. There being thus denial of equal protection of the laws, the more onerous law should be struck down as unconstitutional.;