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Mathura Prosad Rajghoria v. Corporation Of Calcutta

Calcutta High Court

Jan 14, 1944

Judgment

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Factual and Procedural Background

Three suits were instituted by the Corporation of Calcutta to recover consolidated rates in respect of three premises: No. 104, Narkel-danga Main Road; No. 1, Bahir Surah Road; and No. 29, Kankurgachi Road. The defendants in all three suits included Bhowaniprosad Banerjee (the recorded owner and a lunatic), Mathuraprosad Rajghoria and his four sons (Sohanlal, Balkissen, Raj Kumar and Bejoy Kumar). In one suit additional defendants (the Sarkars and another) were named but those parties no longer had an interest in the property.

With court sanction the Manager of Bhowaniprosad, Sankar Lall Chatterjee, granted a lease on 29 September 1927 to Tansukray Rajghoria (the deceased father of Mathuraprosad) for sixty years; subsequently Mathuraprosad became lessee. The lessees applied to the Corporation for registration as owners. The lessees paid municipal rates up to 1930 but Mathuraprosad ceased payment from the first quarter of 1931–1932 after the Corporation refused to register him as owner or to exempt the premises under section 161 from section 159.

The three suits sought arrears of consolidated rates for the relevant quarters (the precise periods vary slightly by suit and are set out in the plaints), a declaration of a charge on the premises under section 205 of the Calcutta Municipal Act, and a decree for sale of the premises under Order 34 of the Code of Civil Procedure. By petition dated 12 August 1938 the Corporation informed the court that it did not desire personal decrees against any defendants and later stated it intended to enforce the charge only on the lands (not the structures) to meet the defence of non-joinder of bustee tenants (the occupants who owned huts were not impleaded).

The learned Subordinate Judge overruled the defendants' defenses, entered decrees for the Corporation, charged the lands of the premises with the decretal amounts and passed preliminary decrees for sale of the lands. Defendants Nos. 2–6 (the Rajghorias) appealed. The principal points raised on appeal were the same in all three matters.

Legal Issues Presented

Whether the suits were premature because (a) the tax bills had not been properly presented and (b) no demand notice under section 190 of the Calcutta Municipal Act had been served.
Whether the Corporation of Calcutta has no statutory charge for consolidated rates where the subject of assessment is a bustee (i.e., whether bustees fall outside the scope of section 205).
Whether, even if there is a statutory charge, that charge necessarily operates on the entire premises (both land and huts) and the Corporation cannot split the statutory charge and elect to proceed against the land only.

Arguments of the Parties

Appellants' Arguments

The suits were premature because the rate bills had not been properly presented (challenging compliance with section 189).
No demand notice as required by section 190 had been served, and thus the statutory procedure for recovery was not followed.
Section 205 does not create a charge over bustees; bustees are a distinct class and are not included within the words "land" or "building" used in section 205.
Even if section 205 creates a charge, the statutory charge operates on the whole premises (land plus huts) and the Corporation could not elect to enforce the charge only against the land while abandoning the huts (i.e., it cannot split the statutory charge).

Respondent's (Corporation of Calcutta) Arguments

As to prematurity: The Corporation argued that the word "defaulter" in section 204 should be understood as a person who fails to pay rates within the time fixed by section 149; on that construction a suit under section 204 lies without strict presentation of a bill under section 189 in every case.
The Corporation also argued, on the facts, that the Rajghorias were the persons liable to pay the rates (relying on the covenant in the lease) and that therefore the rate bills had, in effect, been presented to those persons.
In short, the Corporation advanced (1) a substantive interpretation of "defaulter" tied to the payment timetable in section 149 and (2) a factual argument that the bills had been presented to those who in practice were liable.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wolverhampton New Water Works Company v. Hawkesford	Principle that a statutory authority can pursue only such remedies for recovery as are provided by the statute which creates the right.	The court applied this general principle to conclude that the Corporation could only pursue the remedies (distraint or suit) provided in the Calcutta Municipal Act; if a suit did not fulfil section 204 it would be not maintainable.
Nayan Manjuri Dasi v. Chairman, Howrah Municipality	Construction of section 205: the charge operates both on the land and on the structures standing thereon; the word "or" in that section was held to have the force of "and".	The court relied on this prior construction to hold that the statutory charge under section 205 applies to bustees and operates on both land and structures; this supported rejection of the argument that bustees were outside section 205.

Court's Reasoning and Analysis

The court proceeded issue by issue, construing the relevant statutory provisions of the Calcutta Municipal Act (the "Act") and applying established principles of statutory interpretation.

On Prematurity (presentation of bill and section 190 notice)

The court analyzed Chapter XVI of the Act, distinguishing the two recovery methods the Act provides for consolidated rates: distraint (secs. 191–203) and suit (sec. 204). Sections 189 and 190 were treated as introductory provisions setting out presentation of bills and the notice required for distraint respectively.
Section 189 requires the Corporation to present a bill for the amount due; section 190 provides that if the bill is not paid within seven days the Corporation may serve a notice of demand (Schedule X) — a preliminary notice for distraint. The court emphasized that the word "may" in section 190 shows that the notice is required only if the Corporation chooses the distraint remedy.
Therefore a notice under section 190 is not a prerequisite to bringing a suit under section 204. The court asked whether presentation of the bill under section 189 is a condition precedent to suit and held that the ordinary meaning of "defaulter" in section 204 (a person who has failed to pay when obliged to do so) must be applied unless the Act indicates otherwise.
The court located the timing and obligation to pay in section 149 (as modified by section 159 for bustees). In bustee cases the owner is liable to pay the whole consolidated rate (less one-eighth) by the 15th day of April, July, October and January; accordingly the person becomes a "defaulter" on the 10th day of each such month for the quarter commencing on the first day of those months.
Conclusion on this issue: presentation of a bill under section 189 is not a condition precedent to filing a suit under section 204. The court accepted the Corporation's primary contention on the interpretation of "defaulter" and therefore overruled the Appellants' prematurity objection in this regard.

On Who Is the "Person Liable" (presentation of bills to Rajghorias)

The court rejected the Corporation's separate factual argument that the Rajghorias were the persons liable to pay under the Act merely because they had covenanted in the lease to pay the rates. The court held that "person liable to pay" within section 189 must be the person made liable under the Act (for example, the registered owner as defined in the Act).
The court observed that although lessees such as Tansukray and Mathuraprosad fell within the statutory definition of "owner" (section 3, sub-sec. (50)) in some senses (as rent-receivers), the proper procedure to determine and register an owner was set out in section 144(2). The lessees' applications to be entered as owners had been summarily rejected and the Corporation could not later treat them as owners for the purpose of fastening liability under section 159.
Thus the court did not accept the Corporation's second contention that bills had been properly presented to the Rajghorias as the persons liable under the Act.

On Whether Bustees Fall Within the Charge in Section 205

The court examined definitions in the Act: "building" (section 3(7)) includes huts (section 3(36)), and "bustee" (section 3(10)) denotes a collection of huts on land not less than ten cottas or a piece of land of similar area intended for such huts. Thus the statutory definitions show that bustees involve both land and structures and are contemplated by the Act.
Section 124 authorizes imposition of consolidated rates on "all lands and buildings." The court read the "and" disjunctively (i.e., rates can be imposed on land or on buildings as separate classes) but also reasoned that bustees must fall within one of those classes because otherwise they could not be assessed at all; this is reinforced by provisions that specifically address bustees (e.g., proviso (i) to section 127, section 159 and section 161).
The court relied on the prior decision Nayan Manjuri Dasi v. Chairman, Howrah Municipality construing section 205 to hold that the charge operates both on land and on structures (the "or" in the statute having the force of "and"). It further explained that "building" should be given its natural sense and includes the edifice together with so much of the adjoining land necessary for the enjoyment of the edifice; the Act expands the term to include mud structures and huts.
Conclusion on this issue: the statutory first charge created by section 205 applies to bustees; the charge operates on both land and structures.

On the Corporation's Election to Enforce Part of the Security

The court noted that section 205 creates a charge on land and structures but there is nothing in the Act that prevents the Corporation from relinquishing or abandoning part of the security. A party may waive benefits conferred by law; consequently the Corporation may elect to abandon the whole security and take a personal decree, or abandon only part of it.
By parity of reasoning, if the Corporation can abandon the entire security it can also abandon a part of it; therefore there is no legal bar to its electing to enforce the charge only on the land and not on the huts/structures.
Conclusion on this issue: the Appellants' contention that the Corporation could not split the charge and proceed against land only was overruled.

Holding and Implications

Holding: The appeals were dismissed and the decrees entered in favour of the Corporation of Calcutta were upheld. The court overruled all points urged by the appellants and ordered costs. The opinion also assessed hearing-fees (noting that First Appeal No. 57 of 1940 was below Rs. 5,000 and fixing its hearing-fee at 2 gold mohurs; other appeals' hearing-fees to be according to the Appellate Side scale).

Implications:

Direct effect on the parties: the charges and preliminary decrees for sale on the lands of the three premises as entered by the Subordinate Judge stand; the Corporation's election to enforce the charge on the lands (and to forgo personal decrees or enforcement against structures) is legally permissible and was upheld.
The court applied existing statutory construction and precedents (including the authority construing section 205) rather than announcing a novel principle; the decision rests on interpretation of the Act's definitions and the statutory remedies it provides.

End of summary. This summary is prepared solely from the content of the provided opinion and does not include material beyond that text.

Show all summary ...

1. These three appeals are in three suits instituted by the Corporation of Calcutta for the recovery of consolidated rates, in respect of three premises, No. 104, Narkel-danga Main Road, No. 1, Bahir Surah Road and No. 29, Kankurgachi Road. The Defendants in all the three suits are Bhowaniprosad Bannerjee, Mathuraprosad Rajghoria and his four sons Sohanlal, Bal-kissen, Raj Kumar and Bejoy Kumar. In one suit there are some other Defendants— the Sarkars and another, who have no interest now in the property. Mathura Prosad's sons have been joined as Defendants apparently because Mathura Prosad is governed by the Mitakshara School of Hindu Law. The suits are for recovery of the arrears by enforcement of charges which the Corporation of Calcutta claims to have on the premises under the provisions of sec. 205 of the Calcutta Municipal Act (Bengal Act. III of 1923, hereafter called the Act). It is the common case of the parties that all three premises are bustees and the huts which have been let out to tenants belong to the occupants. Those tenants have not been impleaded as Defendants in the suit. The questions raised in the three appeals are the same.

2. The owner of the aforesaid three premises is Bhowaniprosad Banerjee, a lunatic. With the sanction of the Court his Manager, Sankar Lall Chatterjee, granted on the 29th September, 1927, a lease of the aforesaid three premises to Tansukray Rajghoria, the deceased father of Mathuraprosad Rajghoria, for a term of sixty years. As between the lessor and the lessee, the latter agreed to pay the Municipal rates. After getting the lease Tansukray Rajghoria applied to the Corporation of Calcutta for registration of his name as owner of the bustees. After Mathuraprosad became the lessee, he also applied to the Corporation of Calcutta for registration of his name as owner. While those applications were pending, the lessees, Tansukray and thereafter Mathuraprosad, paid the rates on the tax bills being presented to them up to 1930. Mathuraprosad stopped payment from the 1st quarter of the year 1931–1932 when the Corporation of Calcutta finally refused to register him as owner of the said premises or to exempt under sec. 161 the three premises from the operation of sec. 159 of the Act. In the first suit, No. 60 of 1937, the claim is for arrears of consolidated rates from the 1st quarter of 1931–1932 to the second quarter of 1937–1938 due in respect of premises No. 104, Narkeldanga Main Road. In the second suit, No. 76 of 1937, the claim is for the same period. That suit relates to the consolidated rates clue in respect of No. 1, Bahir Surah Road. In the third suit, No. 21 of 1938, the claim is from the first quarter of 1931–1932 to the first quarter of 1937–1938 of consolidated rates due in respect of premises No. 29, Kankur-gachi Road. In the plaints of all the three suits the Corporation of Calcutta prayed for decrees for the amounts in arrear, for a declaration of charge on the premises and for a decree for sale of the premises in terms of OR. 34 of the Code of Civil Procedure. By an application made on the 12th August, 1938, the Corporation of Calcutta intimated to the Court that it did not want personal decrees against any one of the Defendants. By a further petition filed on the same day it stated that it wanted to enforce the charge only on the lands of the aforesaid premises and did not wish to enforce any charge on the structures. This petition was filed for the purpose of meeting the defence of non-joinder of parties, as the bustee tenants who were the owners of the huts had not been made parties Defendants. The learned Subordinate Judge has overruled all the defences and has granted decrees in favour of the Corporation of Calcutta. The lands of the premises have been charged with the payment of decretal amounts, and preliminary decrees for sale of the lands of the said premises have been passed. The Rajghorias only—Defendants Nos. 2 to 6—have preferred the aforesaid appeals. On their behalf three points have been urged before us:

(I) that the suits are premature in as-much as:

(a) the tax bills had not been properly presented;

(b) no demand notice required by sec. 190 of the Act had been served;

(II) That the Corporation of Calcutta has no charge for consolidated rates, where the subject of the assessment is a bustee; and

(III) even if there is such a charge the statutory charge operates on the entire premises,—the land and the huts of a bustee— and the Corporation cannot split up the statutory charge and elect to proceed against the land only.

3. These, points were urged before the learned Subordinate Judge but overruled. We may at once say that his conclusions are right, though we cannot agree with some of the reasons given by him.

4. I. Chapter XVI of the Act deals with recovery of consolidated rates and other taxes. The first part, which begins from sec. 189 and ends with sec. 204, deals with recovery of consolidated rates and sec. 205 makes the consolidated rate due in respect of “land or building” a statutory first charge upon that “land or building.” The second part, which begins with sec. 206 and ends with sec. 211, deals with recovery of other taxes —taxes on carriages, taxes on professions, trades and callings, etc. The third part consists of two secs. 212 and 213, under the heading of “Supplemental Provisions.” Generally speaking, two alternative methods depending upon the choice of the Corporation are provided for the recovery of consolidated rates:—(1) by distraint, (2) by suit. Secs. 191 to 203 define the power of distraint and lay down the procedure. Sec. 204 deals with suits. Secs. 189 and 190 are two introductory sections in this part of Chapter XVI. Sec. 189 requires the Corporation to present to the person liable a bill for the amount due on account of consolidated rates. Sec. 190 provides that if the Bill is not paid up within seven days of the presentation, the Corporation may serve upon the person liable a notice of demand in the form given in Schedule X of the Act or in a form to the like effect. The form given in Schedule X is a preliminary notice for distraint. The effect therefore is this: When the consolidated rate is not paid within seven days of the presentation of the Bill, the Corporation has the option of proceeding in either of two ways. If it chooses to levy distraint it must give a notice under sec. 190. If it does not desire to levy distraint, it need not give that notice. That is the significance of the word “may” in sec. 190. A notice of demand under sec. 190 is not accordingly a preliminary requirement for a suit for the recovery of arrears of consolidated rates. The question then is, whether presentation of the Bill to the person liable is a condition precedent to the institution of a suit. The object of the presentation of the Bill is to apprise the person liable of the fact that he is in arrear and of the amount due from him. Expediency and fairness demands the presentation of the Bill, but it does not necessarily follow that a suit for recovery of consolidated rates would not lie, if the Bill is not presented in terms of sec. 189. To have that result the legislature must use appropriate language. Sec. 204, which deals with suits, has not been worded in a form similar to sec. 80 of the Code of Civil Procedure. We have, however, to see if by necessary implication presentation of the Bill to the person liable is made a condition precedent to the institution of a suit for recovery of consolidated rates.

5. The Act authorises the Corporation of Calcutta to impose consolidated rates upon land and buildings within the limits of Calcutta. Apart from sec. 124, it would not have had the right to impose such rates. The right of the Corporation to get consolidated rates is therefore the creation of the Act. The general principle formulated in the third proposition laid down by Willes, J. in Wolverhampton New Water Works Company v. Hawkesford(1) must apply. So the Corporation can pursue only such remedies for the recovery of consolidated rates as are provided for in the Act. Those remedies are distraint and a suit under sec. 204 of the Act. The learned Subordinate Judge is not right either in holding that the three suits do not come within sec. 204 or that apart from sec. 204, the Corporation has the right to sue under the general law. If the suits do not fulfil the requirements of sec. 204, they must be dismissed as being not maintainable.

6. Sec. 204 gives the right to the Corporation to sue “the defaulter” for the sum due, or the balance of any sum due on account of consolidated rates. The question is what meaning should be attributed to the word “defaulter.” The Appellants contend that a person liable to pay the consolidated rate becomes a defaulter only when he does not pay the Bill within seven days of its presentation, so if no Bill is presented to him tinder sec. 189, he does not become a “defaulter” with the result that no suit is maintainable against him under sec. 204. Through the word “defaulter” used in sec. 204, he wants to introduce sec. 189 as a condition precedent to the institution of a suit for recovery of consolidated rates. If that be the effect, the special procedure must be followed by the Corporation, for special procedures are saved by see. 4 of the Civil Procedure Code. If his contention is correct, the suits would be bad, on the footing that Bhowaniprosad Banerjee was the person liable to pay the consolidated rates, because rate bills for the consolidated rates in suit had not been presented to him. They had been presented to Mathuraprosad Rajghoria. The learned Advocate appearing for the Corporation of Calcutta meets the argument in a twofold manner. He urges (1) that a defaulter is a person who does not pay up the rates within the time mentioned in see. 149 and (2) that on the facts of this case the Rajghorias must be taken to be the persons liable to pay the consolidated rates. In our judgment his first but not the second contention is sound.

7. The ordinary meaning must be attributed to the word “defaulter,” unless otherwise indicated in the Act. The word means a person who has failed to pay in time what he is under an obligation to pay. Both the obligation of the person to pay consolidated rates and the time within which that obligation has to be discharged have been defined in see. 149. In the case of bustees only the first part of that section has been modified by sec. 159. The whole of the consolidated rate, and not half as in other cases less one-eighth part thereof, has to be paid by the owner. In the case of a bustee, therefore, the owner is under the obligation to pay the whole of the consolidated rates, less one-eighth, within the 15th day of April, July, October and January for the quarters respectively commencing from the first day of each of those months. On the 10th day of each of those months he becomes a defaulter for the quarter commencing from the first day of each of those months. There are no indications in the Act which would lead us to hold that the legislature used the word “defaulter” in sec. 204 in any other sense. If the legislature had intended the presentation of a Bill as a condition precedent to a suit it would have said so in plain words.

8. The learned Advocate for the Respondent further contended that even if presentation of a rate Bill is a condition precedent to the institution of a suit for recovery of consolidated rates, the bills had in fact been property presented, for according to him the Rajghorias were the persons liable to pay those rates. For supporting his contention that the Rajghorias were the persons liable to pay the rates, he relies upon the covenant in the lease by which the lessees agreed to pay the consolidated rates. As between them and the lessor, Bhowaniprosad Banerjee, they were no doubt bound to bear the burden of the rates, but that is a different matter. In our judgment “the person liable to pay” within the meaning of sec. 189 is the person who is made liable to pay under the Act. That person in this case was Bhowani Prosad, the registered owner of the bustees in question. Where there is a gradation of rent-receivers, each one of them would satisfy the definition of an owner as given in sec. 3, sub-sec. (50) of the Act, but in such a case the Executive Officer has to determine who among them is to be entered as owner in the assessment book [sec. 144(2)]. Both Tunsukray Rajghoria and Mathuraprosad Rajghoria applied for registration as owners in the place of Bhowaniprosad. They were rent-receivers as much as Bhowani Prosad was. They came within the definition of owner but instead of following the procedure laid down in sec. 144, sub-sec. (2), their applications for registration as owners were summarily rejected. In these circumstances the Corporation of Calcutta cannot turn round and treat the Rajghorias as owners for the purpose of fastening on them liability for the rates under the provisions of sec. 159. We do not accordingly see our way to accept the second contention of the Advocate appearing for the Respondent.

9. Accepting his first contention, we overrule the first point urged by the Appellant,

10. II. The second point urged depends upon the construction of sec. 205 of the Act. That section gives the Corporation of Calcutta a first charge (subject to prior payment of land revenue) on “land or building” for consolidated rates due in respect of “such land or building.” The argument of the Appellants' Advocate is that as bustees are not mentioned in the section, no charge has been created by the statute on bustees. This argument proceeds on the footing that bustees constitute a class by themselves and are not included either in the word “land” or “building.” According to him the word “land” means vacant land,—land unburdened by structures,—and the word “building” signifies the structures without the land, but the word bustee signifies both the land and the structures. This argument has to be examined in the light of relevant provisions of the Act.

11. The definition of building in sec. 3, sub-sec. (7) would include a hut, which is defined in sec. 3, sub-sec. (36). A bustee is a collection of huts on land which is not less than ten cottas in area. The definition [sec. 3, sub-sec. (10)] would also include a piece of vacant land of not less than ten cottas in area which is intended to be built upon with huts. There are thus two connotations in the word “bustee” (1) The land must have on it buildings of a certain type or must be intended for buildings of a certain type and (2) the area of the land must not be less than ten cottas.

12. Sec. 124 is the charging section. It authorizes the imposition of consolidated rates on “all lands and buildings” in Calcutta. The word “and” must in our judgment be read in a disjunctive way. Consolidated rates can be imposed on “land.” That is one class. It can also be imposed on “buildings.” That is another class. The legislature has expressed its intention to the effect that consolidated, rates can be imposed on bustees. That intention is indicated by proviso (i) to sec. 127, sec. 159 and sec. 161 of the Act. A bustee must therefore come either within the class “land” or the class “building,” for if it did not, it could not be assessed to consolidated rates at all. That is also indicated by sec. 127, for proviso (i), which deals with bustees is a proviso to sec. 127, cls. (a) and (b), which lay down the methods of assessment of lands and buildings.

13. A first charge which has been created by sec. 205 on land or building would therefore operate on bustees also. In Nayan Manjuri Dasi v. Chairman, Howrah Municipality(2), sec. 20.5 of the Act was construed. This Court held that the charge created by sec. 205 operates both on the land and structures standing thereupon, the word or in that section having the force of the word and. This disposes of the argument of the learned Advocate for the Appellant, but we may further point out that a bustee would come within the description “building,” used in the secs. 124, 127 and 205. That word must be taken in its natural sense. It means an edifice, a house. It does not connote the structure without the site. It is the pucca structure plus the site and something more. It would include so much of the adjoining land as is necessary or is actually used for the convenience of the enjoyment of the edifice. The provisions of the Act do not curtail the natural meaning of the word “building” but on the other hand enlarge its meaning by bringing within that term something which would not otherwise have been regarded as building, for instance, mud structures [sec. 3, cl. (7)].

14. III. The third point can be disposed of shortly. Sec. 205 of the Act creates a charge on the land and the structures. There is nothing which can prevent the Corporation of Calcutta from giving up the security. A person can always waive a benefit intended for him. It can therefore at its option, take a personal decree against the person liable to pay the consolidated rates. If it could abandon the whole security it would necessarily follow that it can abandon a part thereof. We accordingly overrule all the points urged by the Appellants' Advocate and dismiss these appeals with costs. As the value of the First Appeal No. 57 of 1940 is below Rs. 5,000 we assess the hearing-fee in that appeal at 2 gold mohurs. The hearing-fee in the other two appeals would be according to the scale mentioned in the rules of the Appellate Side.

C.C