( 1 ) THIS appeal is arising out of an order passed by the Hon'ble first Court dated 28th February, 2002 dismissing the writ petition filed by the writ petitioner/appellant herein for refund of the mutation fees which were paid by the writ petitioner/appellant herein under the provisions of Calcutta municipal Taxation Regulations (1989) (hereinafter referred to as "the said regulations" ).

( 2 ) IN view of the fact that the said regulations was declared as ultra vires on the Hon'ble First Court and subsequently the order of the High Court was affirmed by the Hon'ble Supreme Court reported in 2005 (4) SCC 245 [calcutta municipal Corporation and Ors. vs. Shrey Mercantile (P) Ltd. and Ors. ].

( 3 ) IN the appeal the moot question is whether the writ petitioner/appellant herein is entitled to get the benefit of the order so passed by the Hon'ble First court declaring the said regulations as ultra vires.

( 4 ) THE fact as it appears before us that in August, 2002, the writ petitioner/ appellant herein filed an application claiming the refund of the mutation fees paid by him earlier in terms of the said regulations. It appears that the Hon'ble first Court held that the writ petitioner/appellant herein is not entitled to get the refund of the said mutation fees.

( 5 ) MR. Ambar Mazumdar, learned Advocate appearing in support of this appeal submitted before us that when the said regulations has already been declared as unconstitutional, the effect should be given retrospectively and not prospectively and he upon a decision reported in AIR 2000 Cal 193 (M/s. Shrey mercantiles Pvt. Ltd. and Ors. vs. Calcutta Municipal Corporation) in support of his contention.

( 6 ) HE also relied upon another decision reported in 1997 (5) SCC 536 (Mafatlal industries Ltd. and Ors. vs. Union of India and Ors.) and submitted that the fees so collected by the Corporation must be refunded and accordingly, he relied upon the decisions reported in 1999 (9) SCC 559 (State of H. P. and Ors. vs. Nurpur private Bus Operators' Union and Ors.); 2000 (2) CHN 181 (State of West Bengal vs. Shrey Merchantile Pvt. Ltd. and Ors.); 2007 (1) CHN 851 (Eastern Coalfields ltd. vs. Sudama Das and Ors.) and 2006 (4) CHN 476 (Abhijit Dey vs. West Bengal administrative Tribunal and Ors.) in support of his contention.

( 7 ) ON the contrary, Mr. Ashok Das Adhikary, learned Advocate appearing in support of the respondent contended that the writ petitioner did not protest while paying the mutation fees or did not even challenge the liabilities while paying such fees. The claim of the refund after 4 years is barred by limitation under the provisions of laws of limitation and the writ petitioner also cannot get the benefit of declaration of the said regulations as ultra vires at this stage.

( 8 ) HE further contended that the statutory provisions operates prospectively and not retrospectively and, therefore, declaring such collection as unconstitutional in the said order, should be given effect to prospectively and not retrospectively.

( 9 ) IN support of his such contention, he relied upon the decisions reported in 1997 (5) SCC 536 (supra) and 2007 (2) SCC 725 (A P. Steel Rerolling Mills Ltd. vs. State of Kerala) and submitted that if it is found that the Hon'ble Court has been approaching after a long delay, the same may be disentitled to obtain a discretionary relief.

( 10 ) AFTER hearing the facts of the case and after perusing the materials on record and after considering the decisions cited before us, it appears to us that in the decision of Shrey Mercantile (P) Ltd. (supra) the Court held that Part IV of the Calcutta Municipal Corporation Act (hereinafter referred to as "the said act") deals not only with the levy of taxes but it also deals with assessment, valuation, collection and recovery of taxes. The entire machinery for filing of reports, objections and inspections of records and properties given under the part which deals with taxation. The maintenance of assess

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