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1970 Supreme(Cal) 193
HIGH COURT OF CALCUTTA
Arun Kumar Mukherjee, Sabyasachi Mukherji
ADMINISTRATOR UTTAR PARA KOTRUNG MUNICIPALITY - Appellant
Versus
GIRIJA PROSAD PAUL - Respondent
. Of .
Decided On : September 8, 1970
BISWA RANJAN GHOSAL, KANAI LAL KHAN, M.M.SEN, S.K.RAI CHOAUDHARY, SUNIL BOSE
The Bengal Municipal Act, 1932 requires the Municipality to serve the notice of demand on the owner of the property in accordance with the provisions of Section 155(4) of the Act, and that service by registered post is not sufficient.
Headnote:
BENGAL MUNICIPAL ACT, 1932 - SECTION 155(4), 156, 165, 510 - DISTRESS - SERVICE OF NOTICE OF DEMAND - OWNER - OCCUPIER - LIMITATION.
Fact of the Case:
The Kotrung Municipality sought to levy distress on the petitioners' property for alleged unpaid municipal taxes and license fees. The petitioners challenged the distress, arguing that proper notice of demand had not been served on the owner of the property, the Corporation of Calcutta, as required by the Bengal Municipal Act, 1932. The petitioners also claimed that they were not liable for the dues as they were not the owners of the property and that the claim was barred by limitation.
Finding of the Court:
The High Court held that the distress levied was improper because the Municipality had failed to serve the notice of demand on the owner of the property in accordance with the provisions of Section 155(4) of the Bengal Municipal Act, 1932. The Court also held that the limitation period provided under Section 165 of the Act did not apply to the proceedings under Section 156 and, therefore, the claim was not barred by limitation.
Issues: 1. Whether the Municipality had properly served the notice of demand on the owner of the property as required by Section 155(4) of the Bengal Municipal Act, 1932? 2. Whether the petitioners were liable for the dues as they were not the owners of the property? 3. Whether the claim was barred by limitation under Section 165 of the Bengal Municipal Act, 1932?
Ratio Decidendi: 1. The Court held that the Municipality had not properly served the notice of demand on the owner of the property as required by Section 155(4) of the Bengal Municipal Act, 1932. The Court noted that the Act required the notice to be served by "the person authorized to receive payment" and that service by registered post was not sufficient. The Court also held that the Municipality could not rely on Section 510 of the Act to justify the service of the notice by registered post, as that section applied only to cases where the owner could not be found. 2. The Court did not decide whether the petitioners were liable for the dues as they were not the owners of the property, as it held that the distress was improper on the ground of improper service of the notice of demand. 3. The Court held that the limitation period provided under Section 165 of the Bengal Municipal Act, 1932 did not apply to the proceedings under Section 156 and, therefore, the claim was not barred by limitation. The Court noted that Section 165 applied only to cases where the owner of the property was non-resident and the dues were more than one year old, and that the present case did not fall within those parameters.
Final Decision: The High Court dismissed the Municipality's appeal and confirmed the trial court's order making the rule absolute. The Court also directed the Municipality to refund the amount of the sale proceeds kept in the custody of the Registrar of the Court.
( 1 ) IN this appeal we are concerned with the right of the erstwhile Kotrung Municipality to realize, in the facts and circumstances of this case, by distress, the alleged dues on account of municipal tax for the period from 1st quarter of 1962-63 and license fee for the period from 1st half of 1958-59 to the 2nd half year of 1962-63. it appears that holding No. 1, Shankaripara Ghat Lane in word No. 1, Kotrung, was originally acquired by the Corporation of Calcutta for the purpose of manufacturing bricks to meet the requirements of the said Corporation of Calcutta. Subsequently, the Corporation of Calcutta leased out the said property and one Krishnamohan Banerjee, become a lessee thereof. It has been alleged that Sri Girija Prasad Paul, hereinafter, referred to as the petitioner No. 1 became a sub-lessee under the said Kishori Mohan Banerjee and it has been further asserted that he become a direct lessee under the Uttarpara Kotrung Municipality in respect of the aforesaid holding. It has been further alleged that Friend's Bureau, which had registered partnership firm and hereinafter referred to as the petitioner No. 2, is working the brick field in the aforesaid holding since 1st of November, 1960, as a licensee under the petitioner No. 1. The Corporation of Calcutta is the owner of aforesaid holding in the records of the municipality. By a notification issued the Kotrung Municipality has been amalgamated with the Uttarpara Municipality and is now known as Uttarpara Kotrung Municipality, hereafter in referred to as the appellant. By the notice dated 17th of July, 1963 fixed in the aforesaid holdings the appellant purported to attach 1,25,000 bricks on account of the alleged arrears of holding rates in respect of the aforesaid holding for the period from the 1st quarter of 1958-59 to the end of the 4th quarter of 1962-63 and alleged arrears of licence fee for the period from the first half of 1958-59 to the end of the second half year of 1962-63. The petitioners Nos. 1 and 2 are the occupiers in respect of the aforesaid holding as contemplated under the Bengal Municipal Act, 1932 and the Corporation of Calcutta is the owner thereof. The petitioners thereupon moved his High Court under Art. 226 of the Constitution. In the petition it was alleged that in accordance with Section 132 of the Bengal Municipal Act, 1932 the Corporation of Calcutta being the owner of the holding was liable in respect of the same. It was further alleged that no bill or notice of demand, as required under the provisions of the said Act had been served on the Corporation of Calcutta. It was further alleged that no notice of demand and no bills in respect of the dues had been served upon the petitioners. It was further alleged that the petitioners were not liable for licence fees because the petitioners had always been ready and willing to pay fee for trade licence and had ask for the issuance of trade licence but they were refused and as such they were not liable. In those circumstances it was contented that the appellant was not entitled to levy any distress or to sell the said goods belonging the petitioner and lying in the said holding. A rule nisi was issued and after affidavits and further affidavits were field, the matter came up for hearing before D. Basu, J. By an order passed and judgment delivered by D. Basu, J. , on the 10th of December, 1968 the learned Judge has made the rule absolute and the appellant was restrained from taking any further steps in pursuance of the impugned notice and the appellant was restrained from taking any further steps in pursuance of the impugned notice and the appellant was restrained from taking any further steps in pursuance from taking any further steps in pursuance of the impugned notice and the appellant was directed to refund the amount of sale proceeds kept in the custody of the Municipality as per order of this Court dated 14th August, 1963. But the appellant was given liberty to p
