JUDGMENT Sankar Prasad Mitra, C.J. : The appellant is the owner of several immovable properties in Calcutta which have been the owner of several tenants. Some of these tenants use the portions of the premises in which they are occupiers for commercial or non-residential purposes. 2. On, June 22, 1976 the Governor of West Bengal promulgated. The Calcutta Municipal (Second Amendment) Ordinance, 1976 (West Bengal Ordinance No. XV of 1976. The Ordinance provided, inter alia, that a surcharge at such rate not exceeding fifty per cent. Of the consolidated rate as may be determined by the State Government by notification published in the Official Gazette may be imposed upon any land or building which is used wholly or in par for commercial or non-residential purposes. Thereafter the West Bengal Legislative Assembly passed the Calcutta Municipal (Third Amendment) Act, 1976 and the provisions of the Ordinance were embodied in it. The Govern’s assent to the Act was first published in the Calcutta Gazette, Extraordinary of November 16, 1976. Under S.24 of this Amendment Act, the Ordinance has been repealed and anything done or any action taken under the principal Act (that is, The Calcutta Municipal Act, 1951) as amended by the Ordinance shall be deemed to have been validity done or taken under the principal Act, as if the Act had commenced on June 22, 1976. 3. By S. 3 of the Amendment Act, S.165 of the principal Act has been amended. Section 165 as now amended reads thus : Part IV – Taxation Chapter XI Imposition of Consolidated Rate. 65. Power of Corporation to impose consolidated rate. – (1) A graduated consolidated rate on the annual valuation determined under this Chapter may be imposed by the Corporation upon all lands and buildings in Calcutta for the purpose of this Act. Such graduated consolidated rate shall not exceed – (i) Fifteen percent on the annual valuation – where the annual valuation does not exceed one thousand rupees. – (1) A graduated consolidated rate on the annual valuation determined under this Chapter may be imposed by the Corporation upon all lands and buildings in Calcutta for the purpose of this Act. Such graduated consolidated rate shall not exceed – (i) Fifteen percent on the annual valuation – where the annual valuation does not exceed one thousand rupees. (ii) Eighteen percent on the annual valuation – where the annual valuation exceeds one thousand rupees, but does not exceed three thousand rupees (iii) Twenty-two percent on the annual valuation – where the annual valuation exceeds three thousand rupees, but does not exceed twelve thousand rupees ; and (iv) twenty-three percent on the annual valuation – where the annual valuation exceeds twelve thousand rupees Provided that where the annual valuation exceeds three thousand rupees the maximum percentage may be increased up to thirty-three per cent with the approval of the State Government. Provided further that a surcharge at such rate not exceed in g fifty per cent of the consolidated rate as may be determined by the Stale Government by a notification published in the Official Gazette, may be imposed upon any land or building which is used wholly or in part for commercial or non-residential purpose. (1A) Out of the consolidated rate calculated in turns of the provisions of clause (i), (ii). (iii), or (iv) of sub-s. (1) twenty five per cent. shall be deemed to be the amount due as water-rate and five per cent as the amount due as sewarage rate: Provided that the amount due as welter rate shall be basis of the actual reading after water-meter is attached to ding where water h supplied." In the 1951 Act there are now two separate sections, namely S. 191 and the newly introduced S. 191A which call for our attention. Both the sections are under the heading payment and recovery of the consolidated rate". 4. S. 191 runs thus: "191 Payment of consolidated rates ;- One half of the consolidated rates shall be payable by the owners of the lands and buildings and the other half by the occupiers thereof. The payment shall be made in quarterly instalments and the quarters shall be taken to commence on the 1st day of April. The 1st day of July. The 1st day of October and the 1st day of January. The payment shall be made in quarterly instalments and the quarters shall be taken to commence on the 1st day of April. The 1st day of July. The 1st day of October and the 1st day of January. The instalments in respect of lands and buildings in different Wards shall be payable on or before the last day of the month as shown in the Schedule VA and if any instalment is paid into the Municipal Office or before the last day of the Month within which such instalment is payable a rebate of three and one-eight per cent of the amount of such instalments shall be allowed to the payers 191 A. Payment of surcharge – Notwithstanding anything contained in S. 191 or in any other provisions of this Act. (a) When a surcharge has been imposed upon any land or building under the second proviso to sub-s. (1) of S.165, the surcharge shall be payable by the owner or occupier, as the case may be, who uses such land or building for commercial or one-residential purpose ; (b) When any portion of the land or building is used for commercial or non-residential purpose, that amount of consolidated rate payable in respect of such portion shall while fixing the consolidated rate for the entire land or building be separately calculated and the surcharge shall be imposed under the second proviso to sub-s. (1) of S.165 on that amount of the consolidated rate and shall be payable by the owner or occupier, as the case may be who uses such portion of these land or building for commercial or non-residential purpose.” 5. We see, therefore, that by the Amendment Act of 1976 a surcharge may be imposed on lands or buildings which or portions whereof are used for commercial or non-residential purpose. And this surcharge is payable by the owner or occupier, as the case may be, who uses the property in question for such purpose. 6 In the statement of "objects and reason." that was annexed to the Bill introducing the surcharge it is stated :- "In view of acute financial crisis of the Corporation of Calcutta, it wall considered necessary to amend certain sections of the Calcutta Municipal Act. 1951, with a view to augmenting the resources of the Corporation of Calcutta and enforcing certain administrative measures. 1951, with a view to augmenting the resources of the Corporation of Calcutta and enforcing certain administrative measures. A surcharge not exceeding fifty per cent of the consolidated rate was proposed to be imposed on lands and buildings used for non-residential or commercial purposes. The surcharge should be payable by the owner or occupier who uses the land or building for such purpose. 7. It is relevant at this stage to set out S.200 of the 1951 Act as well Section 200 runs thus : - 200. Power of Commissioner of levy entire rate from owner in certain cases. – If any land or building is ordinarily occupied by more than one person holding in severalty, or is valued at less than five hundred rupees, the Commissioner may, not withstanding anything contained in S.191 levy the entire consolidated rate from the owner of such land or binding.” 8. The reason why we have underlined the expression “notwithstanding anything contained in S.191 is to show that the legislature did not think it proper to include S. 191A also in S.200. 9. Coming back to the facts of the case it appears that pursuant to the second proviso to S.165 (1) of the 1951 Act, the Corporation issued a printed Circular dated January 10, 1977 notifying the imposition of 50% surcharge upon any land or building which is used wholly or in part for commercial or non-residential purposes, the same being payable by the owner or occupier as the case may be who uses the land or building wholly or in part for commercial or non-residential purposes. A copy of the Circular is set out hereunder : “If is hereby notified for the information of rate-payers and the users of lands and buildings for commercial or non-residential purpose that as per an amendment of the Calcutta Municipal Act, 1951, a surcharge of 50% on the consolidated rate has been fixed by the State Government by a Notification. With effect from October 1976 the Corporation of Calcutta will levy the surcharge upon any land or building which is used wholly or in part for commercial or non-residential purpose. This surcharge on the consolidated rate shall be payable by the owner or occupier as the case may be, who uses such land or thereof for commercial or non-residential purposes. With effect from October 1976 the Corporation of Calcutta will levy the surcharge upon any land or building which is used wholly or in part for commercial or non-residential purpose. This surcharge on the consolidated rate shall be payable by the owner or occupier as the case may be, who uses such land or thereof for commercial or non-residential purposes. It has further been decided to include the surcharge in the occupier share of the consolidated fate and where the same cannot be shown on the current bills/demand, a supplementary demand with effect from 3/76-77 will be raised for the surcharge and sent to the rate payers in due course. It may be also stated for the information e• payers that where an owner pays both shares of taxes {owner and occupier) he will be entitled to recover the proportionate amounts of surcharge from the concerned tenants users under provisions of the law a that be can get a list of such users of building' with the amounts of surcharge payable by them on application to the Assessor of this Corporation on payment of necessary fees for the purpose. Rate-payers and users of lands and buildings for commercial and nonresidential purposes are requested to submit Returns in respect of their occupation and account of rent etc. paid for such accommodation for commercial or non-residential purpose, to the said Assessor at the Central Municipal Office. 5. Surendra Nath Banerjee Road, Calcutta-700013 within a fortnight from the date of this Notification, The filing of Return. as aforesaid is, obligatory under S. 177 of the Calcutta Municipal Act, 1951. N.K. Mukherjee. Commissioner of the Corporation of Calcutta Dated the 10th January, 1977. C.P.-610-15-2-77-10,000" 10. For the period between January to June 1977, that is the fourth quarter of 1976-77 and the first quarter of 1977-78 the appellant paid a total sum of Rs. 8,128.86 on account of surcharge. 11. On July 19, 1977 the appellant made an application under Article 226 of the Constitution to prevent the Corporation from realizing the surcharge from the appellant as the owner of the immoveable properties in question and a rule nisi was issued. The appellant also in its petition raised certain points regarding water supply and removal of garbage and refuse. 12. By his judgment delivered on January 19, 1978 Hazra, J. has discharged the rule and has dismissed the application under Article 226. 13. The appellant also in its petition raised certain points regarding water supply and removal of garbage and refuse. 12. By his judgment delivered on January 19, 1978 Hazra, J. has discharged the rule and has dismissed the application under Article 226. 13. The present appeal is directed against the judgment of Hazra J. In course of hearing Learned Counsel appearing for the appellant did not press the points relating to water supply and removal of garbage and refuse. We are, therefore, called upon to decide whether the Corporation can compel the owners of properties to pay the said surcharge and then recover it from the occupiers who are actually using lands of buildings wholly or in part for commercial or non-residential purposes. 14. The case on behalf of the respondents has been argued by Mr. Tapas Roy and then by Mr. Anindya Mitra. The Corporation’s contention is that surcharge is a part of the consolidated rate and is realisable in the same manner as consolidated rate is realisable under the provisions of the Calcutta Municipal Act, 1951. The Court's duty, according to Learned Counsel is to give literal meaning to the words used in a Statute Only if. after giving liberal meaning, it appears to the Court that the literal meaning is leading to anomaly or ambiguity or the scheme of the Act cannot be worked out or if it runs contrary to the entire scheme, the Court may be at liberty to adopt other rules of construction, The primary consideration is the legislative intent and when that intent is clear upon giving a literal meaning the Court should uphold the literal meaning. Reference was made to Wharton's "Law Lexicon,"' 14th Edition and "Shorter Oxford English Dictionary", 3rd Edition In the Oxford Dictionary at page 2089 one of the meaning of "Surcharge" is "to subject to an additional or extra charge or payment", In Wharton' Law Lexicon' at page 968" "Surcharge". Inter alia, means "an over charge or what is just and right". Our attention was also drawn to the meaning' of 'consolidated' and 'rate'; but these do not seem to be strictly relevant for our purposes in this appeal. Strong reliance was placed in this connection. inter alia, on two Supreme Court decisions reported in AIR 1972 SC. 491 (The Commissioner of Income Tax, Kerala, Ernakulam v. K. Srinivasan) and AIR 1976 SC 127 (M/s, Bisra Stone Lime Co. Strong reliance was placed in this connection. inter alia, on two Supreme Court decisions reported in AIR 1972 SC. 491 (The Commissioner of Income Tax, Kerala, Ernakulam v. K. Srinivasan) and AIR 1976 SC 127 (M/s, Bisra Stone Lime Co. Ltd. ". Orissa Textiles Mills Ltd.). 15. In the first case the Supreme Court was considering the meaning of 'Surcharge' with reference to the Finance Act of 1964 and the Income Tax Act of 1961. In paragraph 10 at page 494 the Supreme Court says; "The meaning of the word 'surcharge' as given in Webiter's New International Dictionary Including among others to charge too much or in addition' and also additional to thus the meaning .of 'surcharge' is to charge in addition or to subject to an additional or extra charge................" 16. In the second cue the Supreme Court was construing the meaning of 'surcharge' in the Electricity (Supply) Act, 1943. In paragraph 11 at page 130 it has been stated, "The word 'surcharge' is not defined in the Act, but etymologically inter alia, surcharge stands for an additional or extra charge or payment (see Shorter Oxford Dictionary). Surcharge is thus a super added charge, a charge over and above the usual or current dues. Although, therefore, in the present case it is in the form of a surcharge. It is in substance an addition to the stipulated rates of tariff. The nomenclature, therefore, does not alter the position. Enhancement of the rates by way of surcharge is well within the power of the Board to fix or revise the rates of tariff under the provisions of the Act. 17. Learned Counsel for the respondent has invites us to apply the etymological meaning to the word ‘surcharge’ in the second proviso to S.165(1) of the Calcutta Municipal Act 1951 and hold that ‘surcharge’ is an increase of or an addition to the consolidated rate. The imposition of consolidated rate is on land and buildings regardless of the nature of user. The imposition of surcharge is on lands and buildings depending on the nature of user. 18. Secondly, ‘surcharge’ has been introduced by way of a proviso to S.165 of the 1951 Act which gives power of the Corporation to impose consolidated rate. This is a factor, Learned Counsel for the Corporation has urged, of great significance. The imposition of surcharge is on lands and buildings depending on the nature of user. 18. Secondly, ‘surcharge’ has been introduced by way of a proviso to S.165 of the 1951 Act which gives power of the Corporation to impose consolidated rate. This is a factor, Learned Counsel for the Corporation has urged, of great significance. The normal meaning of a proviso has been explained by the Supreme Court in Commissioner of Commercial Taxes. Board of Revenue, Madras v. R.S. Zhaver AIR 1968 SC page 59. The Supreme Court, while construing certain provisions of the Madras General Sales Tax Act, 1959, has said that a proviso is an exception to the main part of the section ; but in exceptional cases a proviso may be a substantive provision itself. In the instant case ‘surcharge’ is in the form of a proviso ; but, in fact, it is a main part of the section. Part IV of the 1951 Act deals with “taxation’. Chapter XI of Part IV deals with ‘imposition of consolidated rate’. The legislature has not introduced nay extraneous matter in Chapter XI. The owner’s tax and the occupier’s tax were already there. A third category of tax has been added and that is the user’s tax which has been described as ‘surcharge’. Learned Counsel says that nomenclature does not bind any party. A harmonious construction of the Statute is necessary. Section 165(1) read with all the proviso means that a maximum of 33% can be imposed on lands and buildings as consolidate rate; but in respect of commercial and non-residential lands and buildings this maximum may be raised further. Which is why the natural meaning of ‘surcharge’ is relevant. Surcharge is an additional tax – an extra category of tax which was not provided for in the original enactment. 19. Counsel for the Corporation invited us to notice that in S. 191 provisions have been made as to when consolidated rate is payable ; but there is no provision for date or dates of payment of surcharge. This shows that surcharge is payable when consolidated rate is payable. In S. 208 a tax on carriages and animals as specified in Schedule VI has been imposed. In S. 209 it has been prescribed that the tax on carriages and animals under S.208 shall be payable half-yearly in advance. In S. 216(1) has been imposed a tax on dogs. This shows that surcharge is payable when consolidated rate is payable. In S. 208 a tax on carriages and animals as specified in Schedule VI has been imposed. In S. 209 it has been prescribed that the tax on carriages and animals under S.208 shall be payable half-yearly in advance. In S. 216(1) has been imposed a tax on dogs. Sub-section (2) of S.216 provides that the tax on dogs shall be payable yearly in advance. In Chapter XIII of Part IV provisions have been made for tax on professions, trades and callings. Section 218(1) in Chapter XIII provides that this tax shall be payable annually before the 1st day of July of each year by taking out a licence for the purpose of the professions trade or callings concerned. It provides further that the first licence shall be taken out within one month to the taking up of the profession, trade or calling. Chapter XV of Part IV imposes scavenging tax. Section 223 (2) in Chapter XIV says that a licence in respect of scavenging tax shall be taken out not later than the first day of June or the first day of December ill each year or within one month of the taking up of the calling. The scavenging tax is paid by keepers of animals or owners or occupier's of a market. But Learned Counsel has pointed out that the Statute does not prescribe any time limit for payment of surcharge for commercial or non-residential user. This is another indication that surcharge is a part of the consolidated rate and is payable with the consolidated rate and for the recovery of surcharge the Corporation can give a notice of demand under S. 236. 20. The Corporation's Counsel then drew our attention to Ss. 181, 182 and 183 of the 1951 Act. These sections provide respectively for (a) a notice of objection to valuation; (b) entry of objection and investigation thereof by Commissioner or Deputy Commissioner; and (c) appeal to Small Cause Court. Upon reading these sections it is evident that an owner or an occupier can object to valuation of property on the basis whereof the consolidated rate has been filed. He can even appeal to the Small Cause Court If he is aggrieved by the decision of the Commissioner or the Deputy Commissioner; but there are not separate provisions for appeal against ‘surcharge’. 21. He can even appeal to the Small Cause Court If he is aggrieved by the decision of the Commissioner or the Deputy Commissioner; but there are not separate provisions for appeal against ‘surcharge’. 21. Learned Counsel for the Corporation next dwelt on S. 167. This section lays down, inter alia, that land or building used exclusively for the purposes of public worship and public burial or burning ground or other places for the disposal of dead duly registered under Chapter XXXI. shall be exempt from consolidated rate. Learned Counsel has submitted that if 'surcharge' is not part of the consolidated rate, then the Corporation has no power to exempt any building from 'surcharge'. Therefore, a building although exempt under S. 167 from consolidated rate, may remain liable for payment of 'surcharge' on the ground that it or any portion of it is used for non-residential or commercial purposes. This is an anomalous position which the Court cannot ignore. 22. We may say at once that this argument .of the Corporation's Counsel is untenable. The simple answer is that 'surcharge' is calculated of a rate not exceeding 50% of the consolidated rate. If no consolidated rate is payable in respect of any and or building. no 'surcharge' is payable either. 23. Learned Counsel for the respondents then invited us to study the arrangement or placing of sections in the Calcutta Municipal Act, 1951. Part IV deals with 'Taxation'. it has seven Chapters namely, Chapters XI, XII, XIII, XIV, XV, XVI and XVII Out of (here seven Chapters the first IIX Chapters impose different types of rates and taxes. the last Chapter provides for 'Recovery of consolidated rate and other taxes.' Chapter XI is the only Chapter for imposition of consolidated rate. The other Chapter are Chapters imposing (1) tax on carriages and animals, (2) tax on professions trades and callings, (3) scavenging tax, (4) tax on carts and (5) tax on advertisements. It is in Chapter XI and not in any other Chapter that ‘surcharge’ for non-residential or commercial user has been introduced. This internal aid to construction reveals that 'surcharge' is inseparable from consolidated rate and is dependent on consolidated rate. 24. Learned Counsel then submitted that S. 191A which we have already quoted would amply demonstrate that both 'surcharge' and consolidated rate' are on lands and buildings. This internal aid to construction reveals that 'surcharge' is inseparable from consolidated rate and is dependent on consolidated rate. 24. Learned Counsel then submitted that S. 191A which we have already quoted would amply demonstrate that both 'surcharge' and consolidated rate' are on lands and buildings. It is true that S. 191 A opens with the words 'notwithstanding anything contained in S. 191 or any other provisions of this Act'. But this expression was necessary. Had it not been there 'surcharge' also, like 'consolidated rate', would have been payable both by the owner and the occupier in equal shares. 25. Then, again, the legislaturte instead of using the expression ‘user tax’ has deliberately used the words ‘surcharge’. This is because ‘surcharge’ is imposable only when ‘consolidate rate’ is imposable and surcharge is dependent on the amount of ‘consolidate rate’. Apparently, there is a difference between ‘surcharge’ and ‘consolidated rate in S. 165(1). ‘Consolidated rate’ is fixed by the Corporation and surcharge’ by the State Government. But reading the sub-section carefully it is evident that his difference is of no substance. In fact, the Corporation has no hand in the fixation of the consolidated rate so far as the fundamental basis is concerned. In any event, it is immaterial as to who determines the consolidate rate’ and who determines the ‘surcharge’. What is material is to ascertain the nature of surcharge imposable on lands or buildings. The non-obstante clause in S. 191A is further proof, according to the Corporation Counsel, that ‘surcharge’ and ‘consolidate rate’ are inseparable. 26. It is also idle to contend that ‘surcharge’ may exceed the celling of 33 per cent prescribed by the first proviso to S. 165(1). This sub-section has to be read as a whole. The first proviso was the original proviso. The second proviso has created possibilities for enhancement of the limit which the first proviso had prescribed. 27. Learned Counsel then invited us to read sub-s. (1A) of S. 165. We have quoted it one, but may quote it again for the sake of convenience. It is as follows : “ Out of the amount of consolidated rate calculated in terms of the provisions of clause (i), (ii), (iii) or (iv) of sub-s. (1) twenty five per cent, shall be deemed to be the amount due as water-rate and five per cent as the amount due as sewerage rate. It is as follows : “ Out of the amount of consolidated rate calculated in terms of the provisions of clause (i), (ii), (iii) or (iv) of sub-s. (1) twenty five per cent, shall be deemed to be the amount due as water-rate and five per cent as the amount due as sewerage rate. Provided that the amount due as water-rate shall be calculated on the basis of the actual reading after water-meter in attached to any land or building where water is supplied.” 28. Sub-section (1A) and the second proviso to sub-s. (1) were introduced by the same amending Act. Water-rate and sewerage rate would not come out of the surcharge component of the consolidated rate. 29. Sub-clause (i), (ii), (iii) and (iv) of sub-s (1) are some of the methods of arriving at the consolidate rate. Something more has been added by the second proviso to sub-s (1). The consolidated rate, therefore, is a consolidation of several Municipal rates. 30. For all the reasons aforesaid, Learned Counsel for the respondents has argued that, the views of the Learned Trial Judge should be accepted by us and we should hold that 'surcharge' is a part and parcel of 'consolidated rate' and can be included. In the occupier share of the fate bills which can be recovered from the owner or the occupier, as the case may be, except that when the owner makes tile payment, he would be entitled to recover it from the occupier. 31. In construing a Statute the role of a 'proviso' is well known. The effect of an excepting or qualifying proviso according to the ordinary rules of construction is to except out of the preceding 'portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it; and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly Construed without attributing to it that effect. But sections, though framed as provisos upon proceeding sections, may contain matter which is in substance a fresh enactment, adding to and not merely qualifying what goes before : vide Craies on Statute Laws, 3rd Edition. Pp. 194 and 195. 32. A proviso, therefore, is normally un exception or qualification carved out of a substantive provision; but it may in some cases be a substantive provision itself. Pp. 194 and 195. 32. A proviso, therefore, is normally un exception or qualification carved out of a substantive provision; but it may in some cases be a substantive provision itself. This is what the Supreme Court emphasised in the Madras case reported in AIR 1966 SC at page 59. which we have noted earlier. 33. Keeping this principle construction in mind we have to see whether the second proviso to S. 165(1) of the Calcutta Municipal Act, 1951 bas created an exception to the substantive provision or is a substantive provision itself Our Court in Calcutta pinjrapoly Society v. Habu Channdra Ghose reported in 77 CWN page 1 at page 12 has pointed out that the question is always of one interpretation of the proviso on Its terms and there is no binding rule that the proviso must always be confined to the scope and ambit of the main section to which It is appended. There may be instances where a proviso is not related to the subject matter of the main provision or contains matters extraneous to that section. 34. In order to appreciate whether the second proviso to S.165(1) creates a substantive provision or is a mere exception. Let us go to the source of the power under which a surcharge has been imposed. 35. Entry 49 in List II of the 7th Schedule to the Constitution enables the State Legislature to impose taxes on lands and buildings. The Statements published in the Newspapers. (b) taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tram cars subject to the provisions of Entry 35 of List III, (d) taxes on animals and boats. (e) taxes on professions. Trade callings and employments and (f) fees in respect of any matters in List II but not including fees taken in any Court under Entries 55, 57, 58, 60 and 66 of List II. 36. It is to be noted that taxes on land and buildings are not concerned with division of interests of ownerships of various units of lands and buildings. 37. The Calcutta Municipal Act, 1951 has been broadly divided into several Parts. Each Part is also divided into various Chapters. In this appeal we are concerned with Part IV which is the Part on "Taxation.' Chapter XI in Part IV is the Chapter on 'imposition of consolidated rate'. 37. The Calcutta Municipal Act, 1951 has been broadly divided into several Parts. Each Part is also divided into various Chapters. In this appeal we are concerned with Part IV which is the Part on "Taxation.' Chapter XI in Part IV is the Chapter on 'imposition of consolidated rate'. Chapter XII gives power to the Corporation to impose tax on carriages and animals, Under Chapter XIII the Corporation can impose tax on professions, trades and callings. Chapter XIV is the Chapter On scavenging tax. Chapter XV in the Chapter on tax on cars. Chapter XVI authorises the Corporation to impose tax on advertisement. Chapter XVII makes provisions for recovery of the consolidated rate and other taxes. There are elaborate provisions for recovery of consolidated rate by distraint or suit in Ss. 235 to 253 in Chapter XVII. For recovery of taxes other than consolidated rates, there is a separate section and that is S. 254 which runs thus : "Section 254. Power of the Corporation to prosecute or serve notice (If demand. -I. When any sum is due from any person on account of (a) the tax on carriages and animals. (b) the tax on professions. trades and callings. (c) the scavenging tax. Or (d) any other tax or fee leviable under the Act. the Commissioner may either prosecute such person if prosecution lies under the provisions of this Act or cause to be served on him a notice of demand in the form in Schedule VIII or in a from to the like effect (2) The provisions of S 236. sub-s (2). S. 238 and clause (a) of S.249 shall. with all necessary modifications. apply to every 5uch notice of demand" 38. It should be mentioned at this stage that a notice of demand in the form in Schedule VIII or in the form to the like effect has to state inter alia. (a) the nature of tax or fee leviable or payable (b) the period for which it is due and (c) the time within which the payment is to be mode either into the Municipal Office or to an officer appointed to receive the same. Moreover. by sub-s (2) of S. 254 the procedure for recovery of consolidated rate by distraint has also been made applicable with necessary modification' to the recovery of fees and other taxes payable under S.254. 39. Moreover. by sub-s (2) of S. 254 the procedure for recovery of consolidated rate by distraint has also been made applicable with necessary modification' to the recovery of fees and other taxes payable under S.254. 39. For each of the taxes and fees imposable by the Corporation the Statute also prescribes who is liable to make the payment. For instance, taxes on carriages and animals are payable by the owners or the keepers (Sections 208 and 210); tax on dogs is also payable by the owner or the keeper (sub-s. (3) of S. 216); and tax on grant of licence hr advertisements is payable by the person who erects, exhibits fixes or retain I them upon or over any land, building, wall, boarding or structure. 40. Let us now examine the nature of character of consolidated rate Under S. 165 the consolidated rate is imposed upon all lands and buildings in Calcutta. It varies from 15 per cent to 23 per cent on the annual valuation. The maximum is 33 per cent with the approval of the State Government. 41. Then, S. 166 says that the percentages referred to in S. 165 shall be fixed annually, in the manner provided in Chapter VIII, with reference to the requirement of the Municipal Fund. 42. Section 166, therefore, takes us back to Chapter VIII in Part III which deals with 'Finance'. Chapter VIII is the Chapter on "Budget Estimates'. Under clause (c) of S. 126 in Chapter VIII the Commissioner shall, on or before the 15th day of December each year, prepare and submit to the Standing Finance Committee in such form as the Corporation may from time to time approve a statement of the proposals as to taxation which it will in his opinion be necessary or expedient to impose under this Act in the said year. Under clause (3)(b) of, S. 127, the Budget Estimates prepared by the Standing Finance Committee shall be laid before the Corporation on the 15th February or as soon as possible thereafter and the Corporation shall consider the same. Under clause (3)(b) of, S. 127, the Budget Estimates prepared by the Standing Finance Committee shall be laid before the Corporation on the 15th February or as soon as possible thereafter and the Corporation shall consider the same. It may refer the estimates back to the Standing Finance Committee for further consideration and re-submission within a specified time and shall determine subject to the provisions of Part IV the levy of the consolidated rate and taxes for the said year at such rates as are necessary to provide for the purposes mentioned In sub-s. (4). The purposes mentioned in sub-s. (4) relate to the financial requirements of the Corporation. 43. The consolidated rate, therefore, is a tax it is a nomenclature given to a tax. This tax has an upper limit which the legislature has fixed. The Corporation determines the actual rate annually subject to the maximum limit which the legislature has indicated. The actual rate is linked to the annual value of the property. The annual value is again linked to the capital value of the property. The actual rate, therefore, is a fraction of the capital value. This is the method by which the quantum of the consolidated rate is imposed on all lands and buildings in Calcutta irrespective of the purposes for which they are used. 44. The surcharge which the second proviso to S. 165 (1) has imposed by the Calcutta Municipal (3rd Amendment) Act, 1976 is not on all lands and buildings. It operates in a field different from the field delineated for consolidated rate. The surcharge is on some of the lands and buildings only satisfying a particular description. 45. Secondly, it is apparent from the provisions of Ss. 166 and 167 to which we have already made reference that the function of determining the quantum of consolidated rate has been entrusted with the Corporation. The surcharge is determined by the State Government by Notification published in the Official Gazette. 46. Thirdly, the consolidated rate has a ceiling. If surcharge is to be treated as a part of the consolidate rate, the ceiling would be exceeded. 47. Fourthly S.191 makes it clear that one-half of the consolidated rates shall be payable by the owners and the other half by the occupiers. 46. Thirdly, the consolidated rate has a ceiling. If surcharge is to be treated as a part of the consolidate rate, the ceiling would be exceeded. 47. Fourthly S.191 makes it clear that one-half of the consolidated rates shall be payable by the owners and the other half by the occupiers. But S. 191 S. 191A a separate provision that surcharge shall be payable by the owner or the occupier as the case may be, who uses such land or building for commercial or non-residential purpose. Upon reading Ss. 191 and 191A one is left with the impression that consolidated rate and surcharge are two different levies altogether. 48. There are also other provisions of the Act which need our attention. We have already said that by S. 200 power bas been given to the Commissioner to levy the entire consolidated rate from the owner in certain cases, "notwithstanding anything contained in S.191." Significantly, the Calcutta Municipal (3rd Amendment) Act, 1976 bas omitted to include S. 191 A in S. 200 There are provisions in S. 201 for recovery from occupier of portion of rate paid by owner under S. 200. These two sections are confined to consolidated rate only and can have no application to surcharge. Then again, when the Corporation does not know or is unable to ascertain the name of the owner, the Commissioner may be written notice require the occupier under S. 205 to furnish him within 15 days with the name and address of the owner. And on the occupier’s failure to do so the occupier would be liable to pay the owner’s rate under S. 206. These provisions also can have no application to surcharge although they are applicable to consolidated rate. Surcharge is payable by the user of the property for commercial or non-residential purposes. The same arguments can be advanced with regard to S.246 which has made provisions for recovery of owner’s share of rate from the occupier or his sub-tenant, and deduction of amount from rent. This is also a section applicable only to the owner’s share of consolidated rate and has no application to surcharge. 49. We next come to S. 247. This selection is as order : “247. Liability of purchaser for vendor’s share of consolidated rate. This is also a section applicable only to the owner’s share of consolidated rate and has no application to surcharge. 49. We next come to S. 247. This selection is as order : “247. Liability of purchaser for vendor’s share of consolidated rate. – The purchaser of – (a) any land or building ------- or (b) any share divided or undivided in any land or building…….." in respect of which any sum is due at the time of purchase from the previous owner on account of the consolidated rate, shall be liable for the said sum : Provided that such purchaser shall not be liable for any sum so due for any period exceeding one year prior to the date of purchase." 50. This section also cannot be applied to a surcharge which is payable by the user for commercial or non-residential purposes only. 51. Then, S.253 creates a charge on the property. It says that consolidated rate would be a first charge on premises. The charge is attached to the land or building and to movable property, if any, found within or upon such land or building. It would be unreasonable to hold that the first charge envisaged by S.253 should extend to surcharge as well which is dependent purely on the user of the property. For the recovery of surcharge, we have already pointed out that, there is provision in S.254. Section 254 gives power to the Commissioner to prosecute or serve notice of demand in respect of “any other tax or fee leviable under this Act.” Then, S. 255 provides for election by defaulter to pay or the appeal before Commissioner. Section 256 provides for decision of Commissioner in case of contest by defaulter does not appear before Commissioner. These sections appear to be a complete machinery for recovery of “any other tax or fee” leviable under the Calcutta Municipal Act, 1951. For recovery of surcharge, therefore, the Corporation has to resort to these provisions. 52. It is well Known, that very often the method of computation of two different taxes is similar; but they remain different all the same. Reference may be made in this connection to Assistant Commissioner of Urban Land Tax, Madras & ors. v. Buckingham & Carnatic Co. Ltd. AIR 1970 SC 169 . 52. It is well Known, that very often the method of computation of two different taxes is similar; but they remain different all the same. Reference may be made in this connection to Assistant Commissioner of Urban Land Tax, Madras & ors. v. Buckingham & Carnatic Co. Ltd. AIR 1970 SC 169 . It is true that in computing ‘surcharge’ and ‘consolidate rate’ a percentage of the annual value is the basis ; but this only shows that the same standard is being adopted for two different taxes. This had happened in the Supreme Court case cited above. Two different taxes is two different lists in the 7th Schedule to the Constitution had similar methods of computation. If two different taxes in two different list could have the same or similar method of computation, two different taxes in the same list may also have the same or similar method of computation. Both consolidated rate and surcharge are impossible under List II; but one is imposed on user the other is imposed irrespective of user. 53. To case, another example, Entry 84 in List I of the 7th Schedule authorize the Union Government to impose duties of excise on tobacco and other goods manufactured or produced in India except – (a) alcoholic liquors for human consumption ; (b) opium, Indian hemp and other narcotic drugs and narcotics 54. Section 34 (1) of the Finance Act of 1935 amended the Central Excise and Salt Tax Act, 1944 to impose an auxiliary duty of excise. This auxiliary duty was not, strictly speaking an additional excise duty ; but under sub-s. (5) of S.34 the procedure for recovery of the auxiliary duty was the same as that of the recovery of excise duty already chargeable under the said Act. This shows that even when the procedure of the recovery is the same, the nature of the tax or levy may not be the same. 55. We are unable to agree that surcharge, is an enhancement of the consolidated rate. Consolidated rate is impossible on a graduated scale under S. 165(1). The second proviso to S. 165 (1) does not provide that the consolidated rate may be enhanced in the case of a person who uses a land or building wholly or in part for commercial or non-residential purpose. 56. Consolidated rate is impossible on a graduated scale under S. 165(1). The second proviso to S. 165 (1) does not provide that the consolidated rate may be enhanced in the case of a person who uses a land or building wholly or in part for commercial or non-residential purpose. 56. The argument of Learned Counsel or the Corporation that surcharge is an enhancement of he consolidated rate or is a levy which is an addition to the consolidated rate weakens his contention that the second proviso to S.165 (1) should be given its normal meaning Section 165 (1) confers powers on the Corporation to impose consolidated rates. Rates are the principal means by which money to defray Local Government expenses is raised by direct levy on occupiers, or in certain cases owners, of property within the area of authority making the rate ; Halsbury’s Laws of England, 3rd Edition, Volume 32, Article 1, at page 3. In S.123 of the Bengal Municipal Act, 1932 power has been given to the Commissioners of Municipalities to impose taxes. The different types of rates and taxes that they can impose, have been shown differently in various sub-clauses of S.123 (1) starting from “a value” and ending in “any other tax which the Commissioners are empowered to impose under any law for the time being in force.” This is an indication that a Municipality or a Corporation can be given power to impose different types or varieties of rates and taxes. A rate on holding is something different from water-rate or lighting rate or conservancy. Latrine and drainage rage. In the instant case also, in our opinion, ‘surcharge’ cannot be equated to consolidated rate. 57. It is true both ‘surcharge’ and consolidated rate’ are in the same Chapter. The reason is that the computation of both ‘surcharge’ and ‘consolidated rate’ is linked to the annual value. The entire Chapter is devoted to the determination of annual value. 58. Etymologically surcharge may stand for an additional or extra charge or payment. But nomenclature does not always control interpretation of statutes. 59. The sine qua non of an enhanced rate is that it must be co-extensive with the original imposition. There may be an inflation of the original imposition. But the incidence must be the same. Here, the incine does are different. But nomenclature does not always control interpretation of statutes. 59. The sine qua non of an enhanced rate is that it must be co-extensive with the original imposition. There may be an inflation of the original imposition. But the incidence must be the same. Here, the incine does are different. So far as consolidated rate is concerned one-half is payable by the owner and one-half by the occupier on the entirety of all lands or buildings within the limits of the Corporation of Calcutta. The surcharge is not payable in that manner at all. The characteristics of ownership and occupancy arc irrelevant to a surcharge, For purposes of surcharge the concept of user has been introduced which is absent in consolidated rate. The first proviso to S. 165 (1) may be a case of inflation or enhancement of consolidated rate as the incidence is the same; but this argument does not apply to the second proviso. 60. In view of the three lists in the seventh schedule to the Constitution, namely, the Union List. the State List and the Concurrent List and the numerous entries in each of these lists, different taxes may be levied on the same land and building either under different lists or within the same lists. We have already seen the different types of municipal taxes that can be imposed. It is interesting to study in this connection, some of the provisions of the West Bengal Urban land Taxation Act, 1976. Sections 3, 4, 5 and 6 of this Act have made provisions for the levy of (a) Land Tax, (b) Urban Land Tax. (c) Development charge and (d) Conversion charge on land or building within the purview of the Act. Then S. 29 prescribes as follows : "The tax or charge payable under this Act in respect of any land or building shall be in addition to any other tax or charge payable under any other law for the time being in force." 61. Merely because the fax or charge payable under the Urban Land Taxation Act, 1967, is an additional tax or charge, it does not follow that it is part of an earlier tax or charge already imposed by any other Statute. Merely because the fax or charge payable under the Urban Land Taxation Act, 1967, is an additional tax or charge, it does not follow that it is part of an earlier tax or charge already imposed by any other Statute. Each tax or charge has to be judged on its own merits – its nature incidence and characteristics have to be secutinsed before it can be described either as an independent tax or charge or as a part of an existing tax or charge. 62. In the instant appeal the first proviso to S. 165(1) allows the Corporation to increase the maximum percentage upto 33% with the approval of the State Government; but surcharge depends on user and can be determined by the State Government and the State Government alone. We have already shown that some of the subsequent sections in which other provisions relating to consolidated rate have been made, surcharge does not fit in. Consolidated rate has always been linked up with the concept of owner or occupier. These concepts are not relevant to the levy of surcharge which proceeds on the basis of the user of the property irrespective of whether the user is the owner or the occupier. If we do not treat surcharge as a separate of independent levy, many complications would arise. For example, we have said that ‘surcharge’ can be recovered by resorting to the relevant provisions of S. 254 of the Act. This section attracts with necessary modifications the provisions of Ss. 236 and 237, that is, (a) notice of demand and (b) distraint in Calcutta, Sub-clause (b) of S.237 makes it clear that for occupier’s share of the consolidated rate, distress and sale of movable property found on the premises are permissible. If these sections with necessary modification are to be applied to surcharge. it necessarily follows that distress and sale of the movable property of the person who uses any land or building or portions thereof for commercial or nonresidential purposes would be justified. It is not at all fair that moveable property of any person who is not using the land or building for commercial or non- residential purposed should be subjected to distraint. 63. Learned Counsel for the Corporation advanced arguments baaed on placement, nomenclature and form. It is not at all fair that moveable property of any person who is not using the land or building for commercial or non- residential purposed should be subjected to distraint. 63. Learned Counsel for the Corporation advanced arguments baaed on placement, nomenclature and form. These are some of the aids to construction of Statutes; but the Court in every case has to concentrate on the substance of the right which the legislature has created and construe it accordingly. 64. For all the reasons aforesaid, we are of opinion that the Corporation cannot include 'surcharge' in the occupier' share of the consolidated rate bill. The Corporation cannot, as a matter of right, recover 'surcharge' as a part of the consolidated rate payable either by the owner or by the occupier. For the recovery of 'surcharge' the Corporation has to adopt other method in accordance with law of which some indications have been given by us in this judgment. 65. In the result, this appeal is allowed; the judgment and order under appeal set aside; we direct the issue or a writ in the nature of mandamus commanding the respondents to act according to law by erasing to include the 'surcharge' that may be imposed upon any land of building which is used wholly or in part for commercial or non-residential purpose in any bills of consolidated rates or ceasing to treat the said 'surcharge' as any part of the consolidated rate. The rule is accordingly made absolute; but we make no order as to cost.. S.K. Datta, J: I agree Appeal allowed, Rule made absolute.