SUSHIL JASNANI Vs. CALCUTTA MUNICIPAL CORPORATION

JUDGEMENT

(1.) The Court: This writ petition relates to a dispute relating to stallage charges imposed by the Calcutta Municipal Corporation Authority. The notice impugned is dated 12th December, 2001. From the notice I find that the vertical extension of the 1st floor and 2nd floor of the concerned stall measuring 290.56 sq. feet and 308.36 sq. feet respectively will be regularised subject to payment of the scheduled charges as has been envisaged with appropriate circular 10 of 1999-2000 dated 7th August, 1999 from the date of completion of the work on 12th January, 1980. Schedule charges are as follows:

(2.) By challenging the aforesaid notice learned counsel appearing for the petitioners made two fold submissions. Firstly, the claim raised by the authority is barred by limitation under section 573 of the Calcutta Municipal Corporation Act. Secondly, fixation of any rate in respect of completion of the construction work in 1980 cannot be made on the basis of the rate of the year 1999. Fiscal statute cannot be made applicable retrospectively. He has brought my notice to the proviso of section 573 of the Act. The heading of the section says recovery of certain dues of Corporation. From the body of the section it appears that such recovery is in respect of any charge, cost, expense, fee, rate or rent or 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. Proviso said 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. From the plain reading of such section it appears that the nature of the claim is other than consolidated rate but comparable with consolidated rate. However as per section 171 of the Act consolidate rate means rates of tax upon the annual value of the lands and buildings. Section 214 onwards upto section 232 of the Act is made for payment of recovery of taxes. This chapter is called as chapter XVI.

(3.) Learned counsel appearing for the respondent authority contended that no question of limitation is applicable in respect of corporation rates and taxes to which there is a Division Bench judgment of this Court. Such judgment is reported in AIR 1998 Calcutta 345 (Calcutta Municipal Corporation & Ors. v. Abdul Gaznavi Molla & Ors.). According to me, submission on the part of the authority on the basis of such judgment suffers from misconception of law. The Division Bench clearly prescribed that such section 573 as above on a plain reading cannot have any application as regard payment of recovery of tax, interest or penalty provided under chapter XVI of the Act. In further in coming to conclusion the Division Bench held that such a special statute may provide for limitation or may not. In the instant case the proviso appended to section 573 of the Act only, provides for limitation. Section 573 cannot have any application in relation to taxes in as much as by reason thereof a legal fiction has been created. By creating a legal fiction or 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 the 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 (Distress) of the Act. 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.