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1979 Supreme(Cal) 292
High Court Of Calcutta
Sankar Prasad Mitra, S. K. Dutta
AL HAJ AMIR HASIAN PROPERTIES PVT LTD - Appellant
Versus
CORPORATION OF CALCUTTA - Respondent
Appeal from Original order No.161 of 1978 Matter No. 640 of 1977
Decided On : 08/02/1979
Dipankar Gupta, NAMITA GOPAL, P.K.ROY CHAUDHARY, PRADIP GHOSH, SOMNATH CHATTERJI, TAPAS ROY
Headnote:
SURCHARGE - CALCUTTA MUNICIPAL ACT, 1951 - SECTIONS 165, 191, 191A, 200, 208, 209, 216, 218, 223, 236, 246, 247, 253, 254, 255, 256, 257 - CONSTITUTION OF INDIA, 1950 - SEVENTH SCHEDULE - LIST II - ENTRIES 49, 84 - FINANCE ACT, 1935 - SECTION 34(1) - CENTRAL EXCISE AND SALT TAX ACT, 1944 - SURCHARGE IMPOSED ON LANDS OR BUILDINGS USED FOR COMMERCIAL OR NON-RESIDENTIAL PURPOSES IS NOT PART OF CONSOLIDATED RATE - CORPORATION CANNOT INCLUDE SURCHARGE IN OCCUPIER'S SHARE OF CONSOLIDATED RATE BILL - CORPORATION CANNOT RECOVER SURCHARGE AS PART OF CONSOLIDATED RATE PAYABLE BY OWNER OR OCCUPIER - CORPORATION TO ADOPT OTHER METHODS FOR RECOVERY OF SURCHARGE IN ACCORDANCE WITH LAW.
Fact of the Case:
The appellant, the owner of several immovable properties in Calcutta, challenged the imposition of a surcharge on lands or buildings used wholly or in part for commercial or non-residential purposes, contending that it was not part of the consolidated rate and could not be included in the occupier's share of the rate bills.
Finding of the Court:
The Court held that the surcharge was not part of the consolidated rate and could not be included in the occupier's share of the rate bills. The Court found that the surcharge was a separate levy imposed on lands or buildings used for commercial or non-residential purposes, and that the Corporation could not recover it as part of the consolidated rate payable by the owner or occupier. The Court directed the Corporation to cease including the surcharge in any bills of consolidated rates or treating it as part of the consolidated rate.
Issues: Whether the surcharge imposed on lands or buildings used for commercial or non-residential purposes was part of the consolidated rate and could be included in the occupier's share of the rate bills.
Ratio Decidendi: The Court held that the surcharge was not part of the consolidated rate and could not be included in the occupier's share of the rate bills. The Court found that the surcharge was a separate levy imposed on lands or buildings used for commercial or non-residential purposes, and that the Corporation could not recover it as part of the consolidated rate payable by the owner or occupier. The Court relied on the following factors in reaching its decision: * The surcharge was imposed by a separate provision of the Calcutta Municipal Act, 1951, and was not included in the definition of consolidated rate. * The surcharge was payable by the owner or occupier who used the property for commercial or non-residential purposes, while the consolidated rate was payable by the owner and occupier in equal shares. * The surcharge was not subject to the same provisions as the consolidated rate, such as the provisions for objection to valuation, appeal to the Small Cause Court, and exemption from payment. * The surcharge was not included in the calculation of the amount due as water-rate and sewerage rate, which were components of the consolidated rate. * The surcharge could exceed the maximum limit prescribed for the consolidated rate.
Final Decision: The Court allowed the appeal, set aside the judgment and order of the lower court, and issued a writ of mandamus directing the Corporation to cease including the surcharge in any bills of consolidated rates or treating it as part of the consolidated rate.
( 1 ) THE appellant is the owner of several immovable properties in Calcutta which have been let out to various 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 part 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 Governor'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. 165 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 per cent on the annual valuation - where the annual valuation does not exceed one thousand rupees. (ii) eighteen per cent on the annual valuation - where the annual valuation exceeds one thousand rupees, but does not exceed three thousand rupees. (iii) twenty-two per cent on the annual valuation - where the annual valuation exceeds three thousand rupees but does not exceed twelve thousand rupees; and (iv) twenty-two per cent 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 exceeding fifty per cent of the consolidated rate as may be determined by the State 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 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 is attached to any land or building where water is 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 and 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 instalments in respect of lands and buildings in different Wards shall
