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HIGH COURT OF CALCUTTA
Salil Kumar Datta
COMMISSIONERS OF BASIRHAT MUNICIPALITY - Appellant
Versus
ANUKUL CHANDRA DAS - Respondent
AFAD 1723 Of 1962
Decided On : MARCH 20, 1973
BENGAL MUNICIPAL ACT, 1932 - SECTIONS 102, 156, 157, 159, 162, 524 - DISTRESS WARRANT - RENT - LEASE - VALIDITY - SALE - IRREGULARITY - COMPENSATION.
Fact of the Case:
Plaintiff took settlement of land from the municipality for 3 years at an annual rent of Rs. 75/-. He deposited Rs. 45/- and was to execute a kabuliat within 15 days. The municipality did not supply the particulars and area of the land and informed the plaintiff that the lease would be canceled if the kabuliat was not executed by a certain date. No particulars were supplied and no written lease was executed or registered. The municipality issued a distress warrant and attached and seized the plaintiff's goods worth about Rs. 400/- in his absence. The plaintiff filed a suit for a declaration of his title to the movable properties seized, that there was no valid lease, that he was not bound to pay any rent, and that the distress warrant was illegal, void, and inoperative. He also sought an injunction restraining the municipality from selling the seized goods and a decree for Rs. 400/- as compensation for the goods seized and Rs. 45/- for refund of the deposit.
Finding of the Court:
The trial court held that the suit was maintainable, that there was no lease between the plaintiff and the municipality, that the seizure and attachment by distress were illegal and void, and that the plaintiff was entitled to Rs. 400/- as compensation for the seized goods. The appellate court upheld the trial court's decision, holding that the distress warrant was illegal and void as the municipality did not have the power to issue it for the recovery of rent. The court also held that the sale of the seized goods was irregular and illegal.
Issues: 1. Whether the distress warrant issued by the municipality was legal and valid. 2. Whether the plaintiff was liable to pay rent for the land. 3. Whether the sale of the seized goods was regular and legal. 4. Whether the plaintiff was entitled to compensation for the seized goods.
Ratio Decidendi: 1. The distress warrant was illegal and void as the municipality did not have the power to issue it for the recovery of rent. Section 156 of the Bengal Municipal Act, 1932, only authorized the issue of distress warrants for the recovery of taxes, tolls, fees, and rates, and not for rent. 2. The plaintiff was liable to pay rent for the land as there was a valid lease between him and the municipality. The lease was accepted by the municipality as subsisting, and the plaintiff remained in possession of the land on the basis thereof. 3. The sale of the seized goods was irregular and illegal as the municipality did not comply with the mandatory provisions of Sections 157(4) and 159(1) of the Bengal Municipal Act, 1932, which required proper publicity of the sale. 4. The plaintiff was entitled to compensation for the seized goods as the municipality was liable for its lapses in regard to the holding of the sale.
Final Decision: The appeal was partly allowed. The findings of the courts below that there was no lease of the suit land and that Rule 263 of the Municipal Account Rules was ultra vires of the Bengal Municipal Act were set aside. It was held that there was a valid lease of the suit land in favor of the plaintiff by the Commissioners and that Rule 263 of the Municipal Account Rules was not ultra vires of the Bengal Municipal Act. It was further held that the impugned distress and the proceeding following were unconstitutional and that the plaintiff was entitled to a decree for compensation as claimed. The decree of the court below for Rs. 400/- with proportionate costs was affirmed. There was no order for costs in the appeal.
( 1 ) THIS is an appeal by the defendants the Commissioners of Basirhat Municipality against a judgment of affirmance. The plaintiff instituted a suit on the following allegations. There is a piece of land known as landing ghat near the post office of the town formerly used for coming over to river Ichhamati. This land was being settled temporarily by the municipality to different persons from time to time. The plaintiff took settlement of the land from 1953-54 at an annual rent of Rs. 30/- and on erection of shop room thereon had been carrying on business there. Municipal Commissioners put a notice on March 16, 1956 for settlement of the landing ghat for three years. At the auction held on March 23, 1956 the plaintiff took the land with the highest bid of Rs. 75/-as annual rent and deposited Rs. 45/- on that date. A kabuliat was to be executed within 15 days under the terms of auction. In spite of requests the Commissioners did not supply the plaintiff the particulars and the area of the land and on the contrary informed the plaintiff by a letter dated April 19, 1956 that if the kabuliat was not executed by April 27, 1956 the lease would be cancelled. Even thereafter no particulars were supplied and no written lease was executed or registered as required under the letter. In fact according to the letter of the Commissioners the lease was cancelled and rent was being collected from some other person called Haran. There was thus no lease and the plaintiff was never a lessee and nor bound to pay any rent and the lease if any was wholly void and illegal. The Commissioners being displeased with the plaintiff illegally issued and served a distress warrant on 7th March, 1958 by its employees and in pursuance thereof attached and seized his goods worth about Rs. 400/-in his absence. Criminal proceeding was started against the said employees but the plaintiff has referred to the Civil Court. The suit was accordingly filed on due notice under Section 535 of the Bengal Municipal Act, 1932 (hereinafter referred to as the said Act) praying for a declaration of plaintiffs title to the movable properties seized and, that there was no valid lease by the Municipality to the plaintiff, that the plaintiff was not bound to pay any rent, and that the distress warrant was illegal void and inoperative. There was a prayer for injunction restraining the defendants the Commissioners of the Municipality from selling the seized goods by auction and if the goods were sold in the mean time, it was prayed that there should be a decree for Rs. 400/- as compensation for the goods seized and Rs. 45/- for refund of the deposit as stated above. The suit was instituted on September 6, 1958.
( 2 ) THE suit was contested by the defendants Commissioners by filing written statement. Apart from formal objections, it was stated that the plaintiff was a lessee of the disputed land measuring one decimal in dag No. 4924 from April 1, 1953 to March 31, 1956 and he took further settlement at an annual rent of Rs. 75/ -. The plaintiff however neglected to execute the necessary document and the plea taken by him was untrue. Even so, the plaintiff was a temporary lessee of the suit land. The allegation of the land being leased out to some other person or rent being collected from him was also untrue. The lease in favour of the plaintiff was valid upto March 31, 1959 and he was in possession of the suit land. It was further stated that no illegal warrant was issued on the plaintiff and such warrant had to be issued as the plaintiff failed to pay his dues to the Municipality. The distress warrant, attachment etc. were all according to law. Even if the plaintiff was not a lessee he was a licensee and therefore he was bound to pay the Municipal dues under Section 65 of the Indian Evidence Act. The suit was speculative and harassing and should be dismissed.
( 3 ) ON a trial on evidence the learned Munsif held that the suit was maintainable in law and the pla
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