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1979 Supreme(Cal) 291
HIGH COURT OF CALCUTTA
Sankar Prasad Mitra C.J. & S. K. Datta. J
Al Haj Amir Hasan Properties P. Ltd.
Vs.
The Corporation of Calcutta
MANDAMUS APPEAL No. 161 of 1978
Decided On : August 2. 1979
Advocate Appeared:
Dipankar Gupta, P.K. Ray, Mrs Namita Gopal for the appellant
Somnath Chatterjee, Anindya Mitra, Tapas Roy, Pradip Ghosh for the respondent.
Headnote:
SURCHARGE - IMPOSITION ON LANDS AND BUILDINGS USED FOR COMMERCIAL OR NON-RESIDENTIAL PURPOSES - NOT PART OF CONSOLIDATED RATE - RECOVERABLE BY CORPORATION UNDER SEPARATE PROVISIONS - CALCUTTA MUNICIPAL ACT, 1951, SS. 165(1), 191, 191A, 200, 205, 206, 246, 247, 253, 254, 255, 256.
Fact of the Case:
The appellant, the owner of several immovable properties in Calcutta, challenged the imposition of a surcharge on lands and buildings used for commercial or non-residential purposes under the Calcutta Municipal (Second Amendment) Ordinance, 1976, and the Calcutta Municipal (Third Amendment) Act, 1976. The appellant argued that the surcharge was not part of the consolidated rate and could not be recovered by the Corporation as such.
Finding of the Court:
The Court held that the surcharge was not part of the consolidated rate but a separate levy imposed on lands and buildings used for commercial or non-residential purposes. The Court noted that the surcharge was payable by the owner or occupier who used the property for such purposes, while the consolidated rate was payable by the owner and occupier in equal shares. The Court also noted that 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 for certain types of properties.
Issues: Whether the surcharge imposed on lands and buildings used for commercial or non-residential purposes under the Calcutta Municipal (Second Amendment) Ordinance, 1976, and the Calcutta Municipal (Third Amendment) Act, 1976, was part of the consolidated rate and could be recovered by the Corporation as such.
Ratio Decidendi: The Court held that the surcharge was not part of the consolidated rate but a separate levy imposed on lands and buildings used for commercial or non-residential purposes. The Court noted that the surcharge was payable by the owner or occupier who used the property for such purposes, while the consolidated rate was payable by the owner and occupier in equal shares. The Court also noted that 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 for certain types of properties.
Final Decision: The Court allowed the appeal and issued a writ of mandamus commanding the respondents to cease including the surcharge in any bills of consolidated rates or treating it as part of the consolidated rate.
Sankar Prasad Mitra, C.J. : The appellant is the owner of several immovable properties in Calcutta which have been the owner of several 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 par 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 Govern’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.
65. 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 percent on the annual valuation – where the annual valuation does not exceed one thousand rupees.
(ii) Eighteen percent on the annual valuation – where the annual valuation exceeds one thousand rupees, but does not exceed three thousand rupees
(iii) Twenty-two percent on the annual valuation – where the annual valuation exceeds three thousand rupees, but does not exceed twelve thousand rupees ; and
(iv) twenty-three percent 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 exceed in g fifty per cent of the consolidated rate as may be determined by the Stale 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 turns 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 sewarage rate:
Provided that the amount due as welter rate shall be basis of the actual reading after water-meter is attached to ding where water h 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 are 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 be payable on or before the last day of the month as shown in the
