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2002 DIGILAW 270 (CAL)

SUSHIL JASNANI v. CALCUTTA MUNICIPAL CORPORATION

2002-04-23

AMITAVA LALA

body2002
AMITAVA LALA, J. ( 1 ) THE Court: This writ petition relates to a dispute relating to stallage charges imposed by the Calcutta Municipal Corporation Authority. The notice impugned is dated 12th December, 2001. From the notice I find that the vertical extension of the 1st floor and 2nd floor of the concerned stall measuring 290. 56 sq. feet and 308. 36 sq. feet respectively will be regularised subject to payment of the scheduled charges as has been envisaged with appropriate circular 10 of 1999-2000 dated 7th August, 1999 from the date of completion of the work on 12th January, 1980. Schedule charges are as follows: (I) Stallage will be levied @ 2/- per sq. ft. per month for 606. 92 sq. ft. from 12. 1. 80 to 31. 12. 2001 (251 month 20 days)3,05,471. 98 (ii) Premises of 100 months enhanced stallage @ Rs. 1213. 84 per month 1,21,384. 00 total 4,26,855. 98 ( 2 ) BY challenging the aforesaid notice learned counsel appearing for the petitioners made two fold submissions. Firstly, the claim raised by the authority is barred by limitation under section 573 of the Calcutta Municipal Corporation Act. Secondly, fixation of any rate in respect of completion of the construction work in 1980 cannot be made on the basis of the rate of the year 1999. Fiscal statute cannot be made applicable retrospectively. He has brought my notice to the proviso of section 573 of the Act. The heading of the section says recovery of certain dues of Corporation. From the body of the section it appears that such recovery is in respect of any charge, cost, expense, fee, rate or rent or any other account under this Act or the rules or the regulations made thereunder shall be recoverable from the person from whom such sum is due as if it were a consolidated rate. Proviso said that no proceeding for the recovery of any such sum under this section shall be commenced after the lapse of three years from the date on which such sum becomes due. From the plain reading of such section it appears that the nature of the claim is other than consolidated rate but comparable with consolidated rate. However as per section 171 of the Act consolidate rate means rates of tax upon the annual value of the lands and buildings. From the plain reading of such section it appears that the nature of the claim is other than consolidated rate but comparable with consolidated rate. However as per section 171 of the Act consolidate rate means rates of tax upon the annual value of the lands and buildings. Section 214 onwards upto section 232 of the Act is made for payment of recovery of taxes. This chapter is called as chapter XVI. ( 3 ) LEARNED counsel appearing for the respondent authority contended that no question of limitation is applicable in respect of corporation rates and taxes to which there is a Division Bench judgment of this Court. Such judgment is reported in AIR 1998 Calcutta 345 (Calcutta Municipal Corporation and Ors. v. Abdul Gaznavi Molla and Ors. ). According to me, submission on the part of the authority on the basis of such judgment suffers from misconception of law. The Division Bench clearly prescribed that such section 573 as above on a plain reading cannot have any application as regard payment of recovery of tax, interest or penalty provided under chapter XVI of the Act. In further in coming to conclusion the Division Bench held that such a special statute may provide for limitation or may not. In the instant case the proviso appended to section 573 of the Act only, provides for limitation. Section 573 cannot have any application in relation to taxes in as much as by reason thereof a legal fiction has been created. By creating a legal fiction or putative or imaginary state of affairs is treated to be a real state of affairs although it is not. The wordings of a provision particularly the words employed in a provision of restrictive statute should be construed in such a manner so as to enable the Court to give full effect thereto. The proviso appended to section 573 which makes out the exception provides for a limitation as regard the recovery of imposts stated therein which was to be recovered as a consolidated rate meaning thereby such recoveries, inter alia, could be made in terms of the provision of section 220 (Distress) of the Act. But if any limitation for recovery of any taxes was to be provided for, the same should have been done by using a clear and unequivocal language by the legislature in chapter XVI itself. But if any limitation for recovery of any taxes was to be provided for, the same should have been done by using a clear and unequivocal language by the legislature in chapter XVI itself. ( 4 ) THEREFORE, Division Bench wanted to say that no limitation is applicable even in section 573 of the Act for the purpose of recovery of tax which is not in subject matter herein. According to me such judgment strengthened the case of the petitioners which is other than the taxes where the limitation is applicable under the proviso. The petitioner cited an unreported judgment being Matter No. 3025 of 1992 (Golam Samdani and Ors. v. Calcutta Municipal Corporation) dated 16th February, 1995 where the issue was considered by holding that the corporation can at best demand from the petitioners the stallage charge at the enhanced rate uniformly payable for the period of 3 years prior to the date on which the impugned notice was made and the remaining portion of the demand will have to be dealt with under section 229 of the Act. On enquiry I have come to know that the petitioners are ready and willing to pay the entire sum of stallage charges for three years prior to the notice dated 12th December, 2001 within three days from the date of the order to be passed by this Court. According to me, the observation and order of the Division Bench as a binding effect upon this Court wherein an observation or order of a single Judge has a persuasive effect upon this Court. Therefore, if both are properly blended it will be seen that the claim other than taxes are covered by section 573 of the Act to which a period of limitation is fixed for three years. Admittedly, claim is not arising out of taxes but claim of stallage charges in respect of vertical extension of the stallage in question with the knowledge of the corporation that such work was completed on 12th January, 1980. Therefore, since it is a charge it comes under the proviso of section 573 and hit by law of limitation. Once it is hit by law of limitation claim, if any, prior to the period of three years before 12th December, 2001 is a bogus claim which cannot be sustainable in the eye of law whatever rate it may be. Therefore, since it is a charge it comes under the proviso of section 573 and hit by law of limitation. Once it is hit by law of limitation claim, if any, prior to the period of three years before 12th December, 2001 is a bogus claim which cannot be sustainable in the eye of law whatever rate it may be. Therefore, I do not find any reason to send the matter for consideration of the claim in the hands of the Calcutta Municipal Corporation under section 229 of the Act. It is automatically cancelled under the observation and order of the Court and an intimation to that extent to the Corporation under section 229 of the Act would be mere formality which will be carried out by themselves. I do not want to see any reason that such formality will be complied with by the petitioner. Even if such application is not made any application the Corporation cannot claim any sum on this account because this Court held that the claim under the notice prior to the period of three years from the date i. e. , 12th December, 2001 is clearly barred. Incidentally too it is to be taken notice that there is no provision of taking premium by the Governmental authority. Therefore, such claim is honest in the eye of law and even cannot be claimed under section 573 of the Act. Therefore, such claim premium is declared hereunder as unjust and improper. ( 5 ) THEREFORE, taking into totality of the matter I am of the view that the Corporation is not entitled to any claim prior to the period of three years from the date of the notice dated 12th December, 2001. For all practicable purposes, the Corporation is directed to struck off any order recorded in their books under section 229 of the Act. Such striking off or deletion will be made within a period of two weeks from the date of communication of this order and if it is not made within such period it will be deemed to struck off immediately after expiry of the period. ( 6 ) HOWEVER, the petitioner will pay the entire sum for the three years, prior to the notice dated 12th December, 2001 deducting the sum of Rs. ( 6 ) HOWEVER, the petitioner will pay the entire sum for the three years, prior to the notice dated 12th December, 2001 deducting the sum of Rs. 75,000/- already paid on the basis of the interim order within a period of three days from the date of the communication of this order. Since this Court considered the claim of the Corporation prior to the period of three years from the date of the notice dated 12th January, 2001 is not genuine, there is no necessity to deal with the point of fixation of rate being superfluous. Thus, the writ petition stands disposed of. However, no order is passed as to costs. Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment. All parties are to act on a signed copy minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the officer of the Court in respect as above. Petition disposed of.