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High Court Of Calcutta
PRABIR KUMAR MAJUMDAR, JAGDISH KUMAR
FAROOQUE - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Matter 4844 Of 1991
Decided On : 05/16/1994
CALCUTTA MUNICIPAL CORPORATION ACT - SECTION 189(6) AND RULE 16 - VALIDITY - RIGHT TO LIVELIHOOD - ARTICLE 21 - REASONABLE RESTRICTION - ARTICLE 14 - APPEAL - DEPOSIT OF TAX ASSESSED - VALIDITY OF PROVISIONS - REASONABLENESS AND FAIRNESS.
Fact of the Case:
The petitioner, who runs a guest house in Calcutta, challenged the vires of provisions of Section 189 (6) of the Calcutta Municipal Corporation Act and Rule 16 of the Calcutta Municipal Corporation (Taxation) Rules of 1987 as being violative of Articles 14 and 19 (1) (g) and Article 21 of the Constitution.
Finding of the Court:
The court held that the provisions requiring the petitioner to pay the assessed dues before maintaining appeal do not offend against the provision of Article 21.
Issues: 1. Whether the provisions requiring the petitioner to pay the assessed dues before maintaining appeal violate the provisions of Article 21 of the Constitution? 2. Whether the provisions are unreasonable and onerous, rendering the right of appeal almost illusory?
Ratio Decidendi: 1. The right to livelihood as protected by Art. 21 of the Constitution is only the right to earn such livelihood as is necessary for the sustenance of persons and the deprivation of which would threaten their existence. This right cannot be equated with the right to earn to the extent of augmenting one's opulence. 2. In the present case, the petitioner's guest house is one amongst other businesses run by him and there is no allegation that in case he is required to pay the amount demanded from him, he would not be left with any other source of income to sustain himself. Therefore, the impugned provisions do not affect the right of the livelihood of the petitioner and, therefore, this does not deprive the petitioner of his right to life as guaranteed by Art. 21. 3. The tax is assessed and recovered in accordance with the procedure provided by law. 4. The provisions have already been tested on the anvil of Articles 14 and 19 and found to be reasonable and valid in the case of Gillander Arbithnot and Co. (1986 (1) Cal HN 262) and because the correctness of that decision has not been challenged, the reasonableness and fairness of these provisions stands tested and need not be examined again. 5. The provisions requiring the petitioner to pay the assessed dues before maintaining appeal do not offend against the provision of Article 21.
Final Decision: The appeal was dismissed.
( 1 ) MD. Farooque the appellant before us claims that he owns a property No. T-44a, Rabindra Sarani, Calcutta and runs a guest house, in it. It yielded a gross amount of Rs. 4,13,144/during the year 1986-87. His earnings from this came to Rs. 5000. 00 per month approximately. In 1986, the valuation of the building was enhanced. The petitioner filed an objection. He received a notice from the assessor of the Calcutta Municipal Corporation requiring him to appear before Hearing Officer with evidence in support of his objection, under Section 188 of the Calcutta Municipal Corporation Act, 1980. He was required to appear on 5-6-1986. As he received the letter after the aforesaid date, he would not appear but wrote a letter on 7-6-1986, requesting the assessor to fix another date. The petitioner did not get any reply but received a bill in the month of July 1987. In that bill the valuation was fixed at Rupees 4,12,365/ -. The petitioner was required to pay a net amount of Rs. 39,850. 00 as tax. The petitioner approached this Court. An order was passed in the writ petition moved by him staying the enforcement of the bill and permitting Calcutta Municipal Corporation to afford an opportunity to the petitioner to be heard. He was thereupon informed that he would be heard on 6th Nov. 1986. The petitioner appeared before the Hearing Officer and submitted that the provisions of Section 174 (4) of the Calcutta Municipal Act would be applicable and that the tax could not be determined under any other provision. The Hearing Officer, however, rejected this objection and assessed valuation of the premises at Rs. 3,03,210. 00 -. He again filed a writ petition against this order which petition was disposed of by Ld. Single Judge, directing the petitioner to file an appeal before the assessment Tribunal. The petitioner came to know that the appeal would abate without hearing in case he did not deposit the enhanced tax due till the date of filing of appeal. This amount comes to Rs. 6,00,000. 00. In this petition, the petitioner challenged the vires of provisions of Section 189 (6) of the Calcutta Municipal Corporation Act and Rule 16 of the Calcutta Municipal Corporation (Taxation) Rules of 1987 as being violative of Articles 14 and 19 (1) (g) and Article 21 of the Constitution and asked for a writ in the nature of mandamus requiring the authority not to give effect to these provisions.
( 2 ) THE writ petitioner was heard and decided by the Ld. Single Judge who finding that the entire set of contentions raised on behalf of the petitioner had been considered by the Supreme Court in the case of Shyam Kishore v. Municipal Corporation of Calcutta reported in AIR 1992 SC 2279, and similar provisions were found to be valid, dismissed the writ petition.
( 3 ) AGAINST this decision the petitioner has filed this appeal.
( 4 ) WE have heard the Ld. Counsel for the petitioner. The main contention raised on behalf of the petitioner/appellant is that the provisions impugned in this case have the effect of depriving the petitioner of his right of livelihood and are, therefore, violative of Article 21 of the Constitution.
( 5 ) THE provision vires of which has been challenged are Section 189 (6) of the Calcutta Municipal Corporation Act and Rule 12 of the Taxation Rules framed under the aforesaid Act. There provisions run as follows :section 189 (6) "no appeal under this section shall be entertained unless the consolidated rate in respect of any land or building for the period ending on the date of presentation of the appeal on the valuation determined under S. 188 has been deposited rules, to within deposited amount person be (in the office of the Corporation) and the appeal shall abate unless such consolidated rate is continued to be deposited till the appeal is finally disposed of. "rule 12 - "summary dismissal or rejection of appeal and application - The appeal or any application made thereunder shall be liable to forthwith di
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