Satya Brata Sinha, J.
1. Both these appeals are directed against a judgment and order dated 19-9-97 passed by a learned single Judge of this Court in Writ petition No. 774/97 and Writ petition No. 633/97 whereby and whereunder the said learned Court allowed the writ applications filed by the first respondent in each appeal. Facts
The fact of the matter lies in a very narrow compass.
A huge amount was said to be due by way of payment of consolidated rate, interest and penalty imposed thereon from Abdul Halim Gaznavi Mollah and others who are Writ petitioners of W.P. No. 774/97. The premises No. 8, Lenin Sarani, Calcutta the annual valuation whereof was the subject-matter of the said writ application was owned by the writ petitioners. There had been a revision in the said valuation in the year 1972-73 as a result whereof the same was enhanced from Rs. 54,0717- to Rs. 1,05,1937-with effect from 4th quarter of 1972-73 without any notice. An objections was taken to the said decision consequent whereto the matter was referred to the special officer of the Corporation who by an order dated 23rd June, 1978 fixed the annual valuation of Rs. 91,708/- relying on or on the basis of alleged monthly rent of Rs. 10,200/-. Subsequently allegedly other structures had been put in and the annual valuation of the building was revised from time to time. The petitioners were alleged served with the bills by the Corporation which had been denied and disputed by them. A demand for a sum of Rs. 25,000/- was made thereafter a distress warrant was issued. While taking recourse to the recovery proceedings locks were put in some shops belonging to the tenant's and three cars were attached. The writ petition was filed, inter alia, stating :--
1. Keeping in view the fact that the/annual valuation since 4th quarter of 1973-74 had been stayed by this Court, no bill could be raised and realised on that basis and as such the demand made and consequently other steps taken for recovery of the amount in questions was bad in law.
2. The demand raised in 1986 has also been stayed by this Court by an ex parte order and, therefore, the said demand also could not be realised.
3. The appellant-Corporation had no right to stop the business of the tenants in respect of a shop-room which is owned by a private company, and thus, a separate entity.
4. Bills having not been served and demands having not been raised upon the owners of the property including the owners of the car, the Distress Warrant could not have been executed.
5. The bills in question were barred under the law of limitation.
The appellant-Corporation's case before the learned trial Judge was:--
1 .The writ petitioner being the landlords and they having let out a part of the premises to a company, it had no right to question the impugned action on the part of its officers. In any event, the said tenants having not approached to this Court, the writ petitioners had no locus standi to maintain the writ application.
2. The question of service of bills of demands involving disputed questions on fact; the writ proceeding could not have been taken recourse to for adjudication thereupon.
3. Since the building is the subject to first charge so far as the dues of Corporation are concerned, the appellant-Corporation was entitled to take recourse to the action taken.
4. The question of limitation in the recovery proceedings does not arise as the jural relationship between the parties continues. In any event, the limitation was saved by reason of the interim orders passed by this Court.
So far as the second writ applications is concerned, the same was filed by one Sahir Haque Molla who was owner of a Maruti car which was seized. By an interim order the said Maruti car was directed to be released on furnishing security to the extent of Rs. 2 lakhs which direction of this Court has been complied with.
Mr. Das Adhikari, the learned Counsel appearing on behalf of the appellant, inter alia, submitted that the learned trial Judge committed an error in passing the impugned orders in so far as it failed to take into consideration that the writ petitioners-first respondent in Appeal No. 581797 acceptable their liabilities and in fact, paid a sum of Rs. 6 lakhs which, according to the writ-petitioners-respondent is Rs. 8 lakhs, towards part satisfaction of the dues. The learned Counsel submitted that keeping in view the fact that the learned trial Judge did not enter into the question of applicability of the limitation for realisation of the dues must be held to have erred in passing the impugned order. In support of his aforementioned contention reliance has been placed on Uttam Namdeo Mahale v. Vithal Deo, reported : AIR1997SC2695 and Karnani Properties Ltd. v. The Corporation of Calcutta, reported in : AIR1973Cal488 .
Mr. Ashoka Banerjee, the learned Counsel appearing on behalf of the first respondent, on the other hand, submitted that the actions of this appellant Corporation are bad in law in view of the decisions of this Court in the Indian Hotels Co. Ltd. v. The Calcutta Municipal Corporation, reported in 1994 (2) Cal LJ 491 and Bajoria Properties Pvt. Ltd. v. Calcutta Municipal Commissioner, reported in 1997 (1) Cal HN 40. The learned counsel submitted that the properties of the tenants could not have been attached. It had further been submitted that the learned trial Judge has rightly held that even a disputed question of fact as regard service of bills could have been gone into by the writ Court and in support of his aforementioned contention reliance has been placed on Babubhai Muljibhai Patel v. Nandlal Khodidas Brarot, reported in : [1975]2SCR71 . As regard Appeal No. 582/97 it was submitted that the writ petitioner was occupying a portion of the premises and as such his car was rightly attached. It was submitted that even as the owners had given in writing deposited by the said petitioner that the sum of Rs. 2 lakhs in compliance of the order of this Court for release of his case may be adjusted against the dues, it is evident that the said writ petitioner had some relationship with the owners of the building.
The learned Counsel appearing on behalf of the first respondent in W. P. No. 633 of 1997 on the other hand, submitted that he had running business in co-partnership and has no interest in the property. It is stated that the property was originally owned by Khan Saheb and after his death the same has devolved on his sons and daughters and the writ petitioner being his grandson, no title and interest has accrued upon him. It is submitted that if any notice of adjustment had been given by some other persons without his consent, the same is not binding on his client.
It appears that a notice of demand had been served upon Khan Saheb Wachel Mollah on 3-2-1996 in respect of the following dues :--
P.D.
4/78-89to 3/81-82 (Both)
@3840.27x4
= 92166.48
4/81-82to 4/83-84 (Both)
@4593.27x18
= 82678.86
1/84-85to 2/87-88 (Con)
@ 11106.00x14
= 155484.00
3/88-88to 4/94-95 ( ' )
@ 17496.00x30
= 524880.80
1/95-96to 2/96-97 ( ' )
(if not paid)
Suppl.2-4-79
@27810.00x6
= 166860.00
4/66-67to 4/71-72 (Both)
Suppl.20-7-79
@241.62x42
=10148.04
4/72-73to 3/78-79 (Both)
@ 1157.30x48
=555504.00
Supplon 2-1-82
4/78-79to 3/81-82 (Both)
@753.00x24
=18072.00
Supl.on 24-8-87
2/85-86to 2/87-88 (Con)
@6390.00x2
=575.00
S/A =Nil
11,63,349.78
Interest and penalty accrued on the principal amount will be Rs. 25,00,000/- (Appx.).
When no payment was made, a Distress Warrant was arbitrarily issued but the same is not on records of this case. The seizure memo was prepared in respect of 3 cars which were seized on 27-3-1973 one of them admittedly belongs to the writ petitioner of W. P. No. 633 of 1997.
It, however, appears that whether the said notice was served or not, the writ petitioners accepted that they had not paid their dues by reason of a letter dated 8-10-1982 which is contained in Annexure 'B' to the writ application.
From a perusal of the said letter it appears that they were aware that the annual valuation was made at Rs. 91708 which was sub-judice and thus, the Corporation had been asked not to realise the bills from 4th quarter of 1978-79 to 4th quarter of 1979-80 and Rs. 1156.30 p. each from 4th quarter of 1978-79 to 3rd quarter of 1981 -82 of Rs. 753/- each. It is further stated :--
'As regards the supplementary owners and occupiers bills from (4/68-69 to 4/71-72) each my client has already deposited Rs. 1000/-in S/A and he is arranging early payment of the balance due.'
In this view of the matter there cannot be any doubt that the appellants had all along been aware of their dues towards the Corporation.
From a perusal of the impugned judgment, it appears that the learned trial Judge has considered the technicalities of non-service of the bill. The learned trial Judge while allowing the writ application, however, directed :--
'The order will not, however, prevent the respondents from proceeding afresh to realise their outstanding dues, if any, in accordance with law and in the sequence contemplated under Sections 216 to 220 of the 1980 Act, after adjusting the amounts already paid.'
From a perusal of the impugned demand dated 3-2-1996 it appears that that no point of time the quantum of consolidated rate had been denied or disputed. The said demand, however, must be held to be vague as regard interest and penalty which was said to be Rs. 25 lakhs approximately. Although interest accrues on the principal amount automatically, a separate proceeding has to be initiated in respect of the imposition of penalty. In any event, even the amount of interest to be paid by the owners must be specifically calculated and a demand of specific sum has to be raised.
Annual valuation is determined under Section 174 of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to and called for the sake of brevity as the 'said Act').
A periodic assessment is to be made in terms of Section 179 whereas Section 180 provides for revision of assessment. Section 182A which provides for a non-obstante clause imposes a liability on any owner or person to pay consolidated rate on the basis of self-assessment. Section 182 provides for submission of returns for purposes of revision in the annual valuation of lands and buildings. Section 184 provides for public notice and inspection of the assessment list. If any objection is filed as regard annual valuation of the land or building, the same is to be heard by a hearing officer in the manner provided for in terms of Section 188 of the Act. Section 189 provides for an appeal. Chapter XVI provides for payment and recovery of taxes. Section 214 provides for the modes of recovery which clearly shows that presentation of bill is a sine qua non for imposing any interest of penalty. Section 217(3) and (4) read thus :--
'Section 217 -- Notice of demand, notice fee. interest and penalty. (1) ...................
(2) .................................
(3) On the amount of the bill remaining unpaid after thirty days of presentation of the bill under Section 216 simple interest at such rate as may be determined by the State Government from time to time shall be payable for the period commencing on the first day of the quarter following that in which the bill is presented and ending with the month preceding the month in which payment is made.
(4) When the person liable for payment of any tax fails to pay the tax within the quarter for which the bill has been presented under Section 216, such sum, not exceeding fifteen per cent. of the amount of the tax as may be determined by the Corporation by regulation shall be recovered from him by way of penalty, in addition to the amount of the tax, the notice fee payable under Sub-section (2) and simple interest in accordance with Sub-section (3).'
(Underlining is mine for emphasis)
Whereas in terms of Sub-section (3) of Section 217, interest accrues automatically, keeping in view the phraseology used under Sub-section (4) thereof, a proceeding for imposition of penalty appears to be necessary wherein a question of mens rea may also be taken into consideration. Reference in this connection may be made to A.P.O. No. 734 of 1991 (Silverline Investment Company Ltd. v. The Calcutta Municipal Corporation, wherein this Court has taken in to consideration Akbar Badrudin Jiwani v. Collector of Customs, reported in : 1990(47)ELT161(SC) and Tapan Sinha. v. West Bengal State Electricity Board, reported in 1997 (4) ICC 257.
The question relating to validity of seizure may now be considered :--
'Section 220. Distress.--(1) It shall be lawful for any officer or other employee of the Corporation to whom a warrant issued under this Chapter is addressed to distrain, wherever it may be found in any place in Calcutta, any movable property belonging to the person (liable) subject to the following conditions, exceptions and exemptions, namely :--
(a) the following property shall not distrained :--
(i) the necessary wearing apparel and bedding of the defaulter, his wife and children and their cooking and eating utensils ;
(ii) tools or artisans ;
(iii) books of account;
(b) the distress shall not be excessive, that is to say, the property distrained shall be as nearly as possible equal in value to the amount recoverable under warrant, and if any property has been distrained which, in the opinion of the Municipal Commissioner, should not have been distrained, it shall forthwith be released.
(2) The person charged with the execution of a warrant shall in the presence of two witnesses forthwith make an inventory of the property which he seizes under such warrant, and shall, at the same time, give a written notice in such form as may be specified by the Corporation by regulations to the person in possession thereof at the time of seizure that the said property will be sold as therein mentioned.
(3) If there is reason to believe that any property seized under a warrant (under subsection (2) of Section 220), if left to the place where it is found, is likely to be removed by force, the officer executing the warrant may take it to the office of the Corporation or to any other place appointed by the Municipal Commissioner.
(4) An Officer or other employees of the Corporation charged with the execution of a warrant, if he has reasons to believe that abuilding contains property liable to be distrained, may exercise the power of entry into the building in accordance with the provisions of Section 546).'
Section 220 in our opinion should be construed strictly inasmuch as it does not authorise an officer or other employee of the Corporation to attach any or every moveable property found in the premises but such property must be belonging to the person liable to pay taxes.
Section 193 of the Act clearly states as to who would be the person liable for payment of such taxes.
The said provision, furthermore is, required to be considered along with Section 232 of the Act which provides that the consolidated rate on lands and buildings due from any person shall, subject to the prior payment of land revenue (if any) due to the Government thereupon, be a first charge upon the land or the building belonging to such person and upon the moveable property (if any) found within or upon such land or building. The word 'moveable property' used in Section 232, in our opinion, shall also bear the same meaning.
So far as the occupiers arc concerned, in liability is confined to Section 225 of the Act.
Thus, unless and until a person's name is mutated; be he a purchaser or a lessee, his liability under the Act must be held to be confined to Section 225 and not otherwise. Only rent could be attached from the occupiers but not their personal properties.
There is no doubt that there exists no provision for limitation so far as the recovery proceedings are concerned. Mr. Banerjee, however, has relied upon Section 573 of the said Act which provides for recovery of certain dues and reads thus:--
'Section 573. Recovery of certain dues of Corporation. Save as otherwise provided in this Act or the Rules or the regulations made thereunder, any sum due to the Corporation on account of any charge, cost, expense, fee, rate or rent or on any other account under this Act or the Rules or the Regulations made thereunder shall be recoverable from the person from whom such sum is due as if it were a consolidated rate :
Provided that no proceeding for the recovery of any such sum under this section shall be commenced after the lapse of three years from the date on which such sum becomes due.'
Section 573 occurs in Part III Chapter XVI which deals with power, procedure, offences and penalties. Section 573 on a plain reading cannot have any application as regard payment of recovery of tax, interest or penalty provided for in Chapter XVI of the Act. It is now well settled principles of law that a due of a person reliable from another does not efface nor the claim of such person stands extinguished even in a case where Limitation Act applies. In terms of the provisions of the Limitation Act, 1963, recovery of a sum by taking recourse to filing a suit becomes barred, Limitation Act, 1963 cannot have any application in relation to recovery of public dues unless a statutory provision exists therefor. Section 29 of the Limitation Act, 1963 reads thus :--
'29. Savings.-- (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which they are not expressly excluded by such special or local law.
(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition of'easement' in Section 2 shall not apply to casesarising in the territories to which the IndianEasements Act, 1982, may for the time beingextend.'
A special statute may provide for limitation or may not. In the instant case the proviso appended to Section 537 of the Act only, provides for limitation. Section 537 cannot have any application in relation to taxes inasmuch as by reason thereof a legal fiction has been created. By creating a legal fiction a putative or imaginary state of affairs is treated to be a real state of affairs although it is not. The wordings of a provision particularly the words employed in a provision of restrictive statute should be construed in such a manner so as to enable the Court to give full effect thereto. The proviso appended to Section 573 which makes out an exception provides for a limitation as regard the recovery of imposts stated therein which was to be recovered as a consolidated rate meaning thereby such recoveries, inter alia, could be made in terms of the provision of Section 220. But if any limitation for recovery of any taxes was to be provided for, the same should have been done by using a clear and unequivocal language by the Legislature in Chapter XVI itself. Recovery of tax is also an incidence of taxation. It is now well known that there cannot be any intendment so far as the imposition of tax is concerned and in that view of the matter there cannot be any intendment so far as recovery of tax is concerned nor any presumption can be raised that upon expiry of certain period such taxes cannot be recovered. A provision for limitation can only be brought about by a statute. Such a statute in certain cases may be statutes of repose but the legislature in its wisdom may not make any provision therefor.
In Uttam Namdeo Mahale v. Vithal Deo, reported in : AIR1997SC2695 the Apex Court held at page 2696; of AIR
'Mr. Bhasme, learned counsel for the appellant, contends that in the absence of fixation of the rule of limitation, the power can be exercised within a reasonable time and in the absence of such prescription of limitation, the power to enforce the order is vitiated by error of law. He places reliance on the decisions in State of Gujarat v. Patil Raghav Natha, : [1970]1SCR335 . Ram Chand v. Union of Indian : (1994)1SCC44 and Mohd. Kavi Mohammad Amin v. Fatmabai Ibrahim, : (1997)6SCC71 . We find no force in the contention. It is seen that the order of ejectment against, the applicant has become final. Section 21 of the Mamlatdar's Court Act does not prescribe any limitation within which the order needs to be executed. In the absence of any specific limitation provided thereunder, necessary implication is that the general law of limitation provided in the Limitation Act (Act 36 of 1963) stands excluded. The Division Bench, therefore, has rightly held that no limitation has been prescribed and it can, be executed at any time, especially when the law of limitation for the purpose of this appeal is not there. Where there is statutory rule operating in the field, the implied power of exercise of the right within reasonable limitation does not arise,'
In Corporation of Calcutta v. Gopal Das Mohta, reported in (1984) 88 Cal WN 309 upon which reliance has been placed by the writ petitioners is misplaced. In that case a suit was filed and in that situation the provision of the Limitation Act, 1963 was applied.
The submission of Mr. Banerjee to the effect that the provision of the Limitation Act shall apply in forms of Section 599 of the Calcutta Municipal Corporation Act is stated to be rejected as thereunder only the Corporation or Municipal Authority or any officer is not authorised to disregard any law for the time being in force save as otherwise provided in the said Act. By reason of the said provision no incorporate of statute by reference can be presumed nor any such presumption can be raised.
We have gone into the question of limitation despite the fact that the learned trial Judge has refused to do so in view of submission of Mr. Banerjee to the effect that he is entitled to raise the said question in this appeal even as a respondent.
It may be true that a writ Court in certain situations may go into the disputed question of fact but if such a question cannot be decided on the basis of an affidavit, the Court in our opinion, would not embark upon such a question.
In Babubhai Muljibhai Patel v. Nandlal Khodidas Barot reported in : [1975]2SCR71 , the fact of the matter was absolutely different. In that case some persons were summoned for cross-examination although a prayer had been made for cross-examination of a large number of witnesses. In that situation it was held that the Court had such a power under Article 226 of the Constitution of India.
It is relevant to note that Sabyasachi Mukherjee, J. (as His Lordship then was) in Karnani Properties Ltd. v. The Corporation of Calcutta, reported in : AIR1973Cal488 , in a case where the rate bills were sent under Certificate of Posting, observed at pages 490-491 :--
'In view of the fact that it has been stated that the said rate bills had been sent under certificates of posting and in view of the fact that the documents were offered for inspection, I am inclined to accept the version of the Corporation of Calcutta on this aspect. Furthermore, it appears to me that the question whether or not the rate bills had been sent or presented to the petitioner in this case, raises a dispute of fact of such a nature which it would not be appropriate to decide in this application under Article 226 of the Constitution. In the aforesaid view of the matter I am unable to accept the first contention urged in support of his application.'
Keeping in view the peculiar facts and circumstances of this case and particularly in view of the fact that despite admission the petitioner had not paid the consolidated rate for a long time, in our opinion, the learned trial Judge ought not to have exercised its discretion in favour of the writ petitioner so far as the realisation of the amount of Rs. 11,63,349.78 P. is concerned. The amount of the annual valuation was known to them. They had been stalling of a huge amount for a long time. Their contention that they are not liable to pay any amount in view of the alleged illegalities committed in respect of 1973-74 is concerned could not have been accepted.
However, the demand made in respect of interest and penalty being vague, no distress warrant could have been issued for realisation of the said sum. As noticed hereinbefore, the writ petitioners have paid certain amount and as such they are directed to pay the balance amount within 4 weeks from date. The appellant shall also be at liberty to calculate the amount of interest payable in terms of Sub-section (3) of Section 206 of the Act and if it thinks fit and proper may also initiate penalty proceeding and in case of non-payment of such amount, it may take recourse to law.
However, so far as the Appeal No. 582/97 is concerned, evidently the petition has rightly been allowed. No demand had been served upon him. He was not a person liable in terms of Section 193 of the said Act. In fact, in paragraph 12 of the affidavit-in-opposition it has been admitted that his car had been released only on furnishing a sum of Rs. 2 lakh. Furthermore, as there is nothing on record to show that the said writ petitioner was liable to pay any amount, no distress proceedings could have been initiated against him. Assuming that he is a tenant in respect of one of the outlets only his rent could only have been attached.
The Appeal No. 581 of 1997 is therefore, allowed without any order as to costs and Appeal No. 582/97 is dismissed with costs. Advocates fee assessed at 200 Cms.
D.B. Dutta, J.
5. I agree.