A statutory provision that gives unbridled power to the executive to exercise discretion in the matter of following a stringent mode of recovery of tax, without providing any guidelines for the exercise of such power, is discriminatory and violative of Article 14 of the Constitution of India.

Bhaskar Bhattacharya, J.

In all these writ applications, the writ petitioners have challenged the validity of the amended provision of section 275(1)(aa) of the Kolkata Municipal Corporation Act, 1980 ('Act') on the ground that the same infringes the conditions imposed by Article 14 of the Constitution of India. In view of the aforesaid fact, notices were issued upon the learned Advocate General and pursuant to such notice, Mr. Kargupta, the learned counsel appearing on behalf of the State of West Bengal has supported the legislation.

2. The Kolkata Municipal Corporation ("KMC") has filed affidavit thereby opposing the prayer of the petitioners.

3. Mr. Mitra, the learned senior counsel appearing on behalf of the petitioners in the first two matters has attacked the aforesaid provision as ultra vires the Constitution of India by pointing out that prior to its amendment, section 275(1) of the Act contemplated only eleven specific contingencies in which the Municipal Commissioner was authorized to cut off connection between any water-works of the Corporation and the premises to which water is supplied from such works. Mr. Mitra contends that each of the said eleven eventualities bore nexus with and pertained to the use and/or storage of municipal water by the owner and/or occupier in a manner which contravened the provisions of the Act or the Rules and Regulations made thereunder or any function of KMC or a duty on the part of the owner or occupier in relation to municipal water and the supply and/or storage of water. But by the purported amendment, Mr. Mitra submits, the Municipal Commissioner is now empowered to cut off water connection of KMC for non-payment of property tax although charges for supply of water are fully paid and there is no default or delay whatsoever. Such a provision, according to Mr. Mitra, is wholly unreasonable, arbitrary and clashes with Article 14 of the Constitution of India. According to the petitioners, water is the basic minimum amenity of human life and deprivation of such facility despite due payment of water charges is Draconian and is also violative of Article 21 of the Constitution. He further points out that from the impugned notices in these writ applications it would appear that the Municipal Commissioner has purported to delegate his power under section 275 of the Act to a subordinate officer of KMC viz. Chief Municipal Engineer, Water Supply, who issued the notices. According to Mr. Mitra, power of disconnection of water supply given to the Municipal Commissioner under section 275 of the Act cannot and in any event should not be delegated to any other person or officer by the Municipal Commissioner having regard to the serious consequences of water disconnection.

4. Mr. Mitra further contends that mode and manner of recovery of taxes by KMC under the provisions of the Act and the procedure thereof are set out fully in Chapter XVI. Section 214 of the Act prescribes the manner of recovery of taxes under the Act and according to the said provision any tax levied under the Act may be recovered in accordance with the following procedures and such manner as may be prescribed:-

a) by presenting a bill, or

b) by serving a notice of demand, or

c) by distrait and sale of defaulter's movable property, or

d) by the attachment and sale of a defaulter's immovable property, or

e) in the case of consolidated rates on lands and buildings, by the attachment of rent due in respect of the land or the building, or

f) by a certificate under the Bengal Public Demands Recovery Act, 1913.

5. Over and above, the property tax constitutes a charge on the premises in question under section 232 of the said Act. However, KMC's additional mode of recovery of tax is filing of civil suit for enforcement of charge and recovery of amount of property tax in arrears.

6. Mr. Mitra contends that procedure for recovery of property tax by disconnection of water supply is more onerous and prejudicial to a defaulting tax payer than the