S M NAWAB ARIFF Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(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:

(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: