TMI Blog1983 (6) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... aid appeal is pending. 2. The Calcutta Municipal (3rd Amendment) Act, 1976, which came into effect on 22nd June, 1976, has inserted the following Sub-section (3-A) in Section 183 of the Calcutta Municipal Act, 1951 :-- No appeal under, this section shall be entertained unless the consolidated rate payable up to the date of presentation of the appeal on the valuation determined- (a) by an order under Section 182, in the case of an appeal to the Court of Small Causes, (b) by the decision of the Court of Small Causes, in the case of an appeal to the High Court, has been deposited in the municipal office and such consolidated rate is continued to be deposited until the appeal is finally decided. The petitioners have obtained the present Rule, inter alia, challenging the vires of said Sub-section (3-A) of Section 183 of the Calcutta Municipal Act, 1951 and also contending that the learned Chief Judge of the Small Causes Court, Calcutta has no jurisdiction to call upon the petitioners to deposit consolidated rates payable up to the date of the presentation of the appeal on the valuation determined by the impugned order under Section 182 of the Calcutta Municipal Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d rates and Sub-section (3-A) of Section 183 also amounts to an illegal exaction. After the disposal of the appeal under Section 183 the right to obtain, retain, refund or adjustment of the excess amounts deposited under Section 183 (3-A) of the Act is practically illusory. Mr. Ghosh has also submitted that the right of effecity approach to Court is a Basic Right implies for enjoyment of the Fundamental Rights guaranteed by the Constitution. By depriving, in effect, such right to obtain ad-dress by way of appeal against determination of annual value, Sub-section (3-A) of Section 181 of the Calcutta Municipal Act, 1951 violates the Basic Structure of the Constitution. 5. It is now settled law that taxation laws are not beyond the pale of constitutional limitations prescribed by Articles 14 and 19 of the Constitution. Tax Laws are also subject to Fundamental Rights (See East India Tobacco Co. v. State of Andhra Pradesh, [1963]1SCR404 , Rai Ramakrishna v. State of Bihar, [1963]50ITR171(SC) 6. Sub-section (3-A) of Section 183 of the Calcutta Municipal Act, 1951, according to the petitioner, is invalid not on the ground that the said sub-section denies equal protection and is ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that it imposes an unreasonably high burden or that the provision is harsh (vide Jagannath Baksh Singh v. State of Uttar Pradesh, [1962] 46 ITR 169 (SC) . It is for the legislature to decide on what objects to levy what rate of tax. The said Sub-section (3-A) of Section 183 of the Calcutta Municipal Act neither gives uncanalised discretionary powers to the authorities nor the Act seeks to make any differentiation or classification. Persons who may feel aggrieved by orders passed under Section 182 (2) of the Act, prefer appeals under Section 183, from one class and they have been equally treated. All appellants under Section 183 (1) of the Act required to fulfil the condition imposed by Section 183 (3-A) of the Act in order to avail of the opportunity of hearing before the Small Causes Court. 10. In deciding the reasonableness of taxing statutes the Court is also bound to give due consideration to the principle that power of taxing people and property is an essential attribute of the Government. The quantum of tax levied by the taxing statute, the conditions subject to which it is taxed, the manner in which it is sought to be recovered are all within the legislative compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to hold that the said Sub-section (3-A) of Section 183 of the Act is unfair, fanciful, oppressive and arbitrary. 13. I find no substance in the petitioner's submission that Section 183 (3-A) of the Calcutta Municipal Act, 1951 in any way affects the basic structure of the Constitution. Decisions in the cases of Sm. Indira Gandhi v. Rajnarayan, [1976]2SCR347 , Minerva Mills Ltd. v. Union of India, [1981]1SCR206 and Fertilizer Corporation, Kamgar Union v. Union of India AIR 1981 SC 344, inter alia considered the extent of the Parliament's power to amend the Constitution affecting its basic structure. These reported cases do not at all warrant the view that the right to file an appeal under a municipal law is a part of the basic structure of the Constitution. Krishna Iyer, J. in his separate judgment in the case of Fertilizer Corporation, Kamgar Union v. Union of India (supra), had referred to the right of effective access to justice in the context of the question whether or not a registered union of workers of a factory can maintain a writ application under Article 32 of the Constitution challenging the sale of a plant and its equipment In Fertilizer Corporation's case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nced as unreasonable. In my view, the observations made in para 40 of the Supreme Court decision in Anant Mills v. State of Gujarat. [1975]3SCR220 , are directly against the above submission of the petitioners. With reference to Section 406 (2) of the Bombay Provincial Municipal Act, the Supreme Court upheld the power of the legislature to impose similar condition for deposit while granting right of appeal. According to the Supreme Court, there was no legal or constitutional impediment to imposition of such a condition. I respectfully agree and apply the aforesaid observations in upholding the validity of Section 183 (3-A) of the Calcutta Municipal Act. I am unable to accept Mr. Dipankar Gbosh's submission, that, the Court's power under Section 406 (2) of the Bombay Provincial Municipal Act to relax the condition for deposit the tax due had at all weighed with the Supreme Court in making the aforesaid observations in Anant Mills v. State of Gujarat (supra). The ratio of the said decision is that the right of appeal is a creature of statute and while granting the right of appeal the legislature can impose conditions for exercise of such right and there is no constitutional o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d procedure, an original decree or order is not suspended by presentation of an appeal. I may point out that only when the appellate decision is given, the trial Court's judgment or decree merges in the appellate judgment and decree. This theory of merger further does not override the concept that the filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified, it remains effective. The person who makes an objection under Section 181 of the Calcutta Municipal Act has been given right to pay according to the previous valuation pending disposal of the said objection (vide Sub-section (1) of Section 207 of the Act). I find nothing unreasonable when Sub-section (3-A) of Section 183 of the Calcutta Municipal Act, 1951 enjoins that during pending of all appeals against an order disposing of an objection under Section 181 of the Act, no further stay shall be granted of realization of consolidated rate payable on the valuation determined under Section 182 (2) of the Calcutta Municipal Act. As a condition for entertaining his appeal, the appellant must deposit such consolidated rate according to the valuation determined, subject to his r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th owner and the occupier of the land or building in respect Of which an order under Section 182 of the Act has been passed. According to Section 183 (3A), pre-condition for entertaining an appeal is that the appellant must deposit his share of the consolidated rate payable up to the date of the presentation on the valuation determined under Section 182 or by the Court of Small Causes as the case might be and the appellant must also continue to deposit his share of the consolidated rate until his appeal is finally decided. In other words, Sub-section (3A) of Section 183 does not create any new or additional liability for payment of consolidated rate by a person who prefers an appeal under Section 183 of the Act, but requires the appellant to deposit up-to-date consolidated rate which he is liable to pay under Section 191 or which might be otherwise lawfully recoverable from him under the provisions contained in Chap. XVII of the Act. Thus, I conclude the expression consolidated rate payable in Sub-section (3A) of Section 183 of the Act is identical with the amount which the appellant would be lawfully liable to pay under the other relevant provisions of the Calcutta Municipal Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coverable and the Corporation has been given an arbitrary power to decide whether the excess sum paid would be refunded or adjusted against its present or future demands. Section 207 (2) imposes a duty upon the Corporation and Mr. Pradip Ghosh himself has conceded that the person who has paid the excess sum has the choice whether he would claim refund or allow the excess sum to be adjusted against demands of the Corporation. The expression demand in Sub-section (2) of Section 207 obviously means demand of consolidated rate which could be lawfully made upon the person who has paid or deposits is entitled to refund or may allow the excess sum paid or deposited by him to be set off and adjusted against his liability for past or future demands by the Corporation. The expressions presented and presentation used respectively in Sub-sections 12) and (3A) of Section 183 of the Calcutta Municipal Act, 1951 have been obviously used in their ordinary meaning of filing or instituting . The other expression entertained in the context of Sub-section (3A) of Section 183 of the Act clearly carries a meaning different from that of the word presented . In the context, the word entertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Assessment Books are public documents and certified copies of the entries made in the said Books may be obtained by a person who intends to prefer an appeal under Section 183 of the Act. Secondly, Sub-section (3) of Section 182, inter alia, provides that a copy of the order together with a copy of the reasons for the Order shall be sent by registered post to the person who gave the notice of objection under Section 181 of the Act within a fortnight from the date of the order and the order shall also be supplied on an application made in this behalf accompanied by a fee of Re. 1/- to every owner and occupier of the building who is affected by the order. I have perused the original records of Municipal Appeal No. 141 of 1982 presented by the petitioners in the Presidency Small Causes Act, Calcutta. I find that the petitioners have annexed to their said Memorandum of Appeal a copy of the said order under Section 182 of the Act served upon them. The said order is in Form No. 1 37A, para 137 of the Assessment Manual which is, however, not statutory. On the reverse side of the postcard quarterly rate in each share on the decided valuation has been mentioned. A copy of the said sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
