DR. ROMA SUR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner is the owner of a built up covered area of 2 cottahs 8 chittaks more or less being premises No. 336, CIT Road, Scheme VI(M) in the town of Calcutta. In this writ application the petitioner has prayed for a declaration that Ss. 171, 174, 182, 189, 195, 219 and 442 of the Calcutta Corporation Municipal Act, 1980 (hereinafter referred to as the said Act) as unconstitutional and void and for striking down the provisions by appropriate writ. The petitioner has also prayed 'or a writ of mandamus commanding and directing the respondents not to give effect to the aforesaid Ss. of the said Act and also prayed for appropriate writs directing the municipal authorities not to take any step pursuant to aforesaid Ss. of the said Act'. The petitioner has also prayed for appropriate writ and direction prohibiting the respondents from realising and/or collecting the water fees mentioned in the consolidated rate bill issued and for appropriate directions upon the respondents to withdraw, recall and/or cancel the rate bills issued under the 1980 Act.

(2.) The learned Advocate for the writ petitioner submitted that under Sec. 234 of the Calcutta Municipal Act, 1980 it is the incumbent duty of the Corporation to supply water and also to take steps from time to time for ascertaining sufficiency of fees or tax for supply of water amounts to imposition of unreasonable restrictions to enjoyment life and property. Prior to coming into force of the 1980 Act the Corporation used to issue the consolidated rate bills one for the owners' share and the other for occupiers' share of taxes. The said two bills were consolidated rate bills including charges for water at the rate of 25% and swerage at the rate of 5% as the amount charged. Since 1980 when the said Act came into force, only one rate bill has been issued by the Corporation. By issuing such rate bill the Calcutta Municipal Corporation effected substantial increase in the amount of taxes payable by the petitioner arbitrarily. The learned Advocate for the petitioner submitted that Sec. 234(b) of the Calcutta Municipal Act, 1980 inter alia provides that the Corporation may at any time levy an annual fee subject to the regulations made in this behalf on the occupier of every house to which such supply is made. The said provision according to the learned Advocate for the petitioner is not enforceable in law inasmuch as the corporation by issuing one consolidated rate bill containing the water fee under the said Sec. 234(b) in the name of the owner only has cast an obligation on the owner although under Sec. 234(b) the said water fee is payable by the occupier. It has further been contended on behalf of the petitioner that rate bill for 4th quarter 1935 -86 (January to March 1986) in respect of the said premises No. P -338 CIT Scheme No. VI (M) Calcutta which is annexure 'D' to the writ petition shows that the respondents illegally included or imposed water fee of Rs. 195/ - in the said consolidated rate bill for 4th quarter 1985 -86 on the basis of the regulation purported to have been made by the Calcutta Municipal Corporation. According to the Learned Advocate for the petitioner there is no provision at all in the Calcutta Municipal Corporation Act, 1980 for imposition of water fees in the consolidated rate bill which under Sec. 171(1) is void, arbitrary and amounts to double taxation". It has further been contended that the said purported regulation was framed with the sole object of imposition of levy of annual fee for supply of water for domestic purposes. According to the learned Advocate for the petitioner such issuing and framing of regulation is bad in law and has not been made in accordance with the provisions of the said act. Rate of Annual fee for supply of water has been prescribed and/or mentioned in Clause 5 of the said regulations as hereunder :

(3.) It is the case of the writ petitioner as appears from the consolidated rate bill which is annexure 'D' to the writ petition that water fee has been charged at the rate of Rs. 195/ - on the annual valuation of the premises in respect of premises No. 12A, Raja Rajkrishna Street, Calcutta also known as p -333 CIT Scheme VI (M) and in respect of premises no. 25, Baranasi Ghosh Street, Calcutta which belonged to one Smt. Snehalata Ghosh a sum of Rs. 61/ - has been charged as water fee on the basis of annual valuation as appears from annexure 'E' to the writ petition. It is the contention of the writ petitioner that the purported regulation does not contain and/or prescribe fees of Rs. 61/ - as charged by the Calcutta Municipal Corporation which is evident from the said annexure to the writ petition. It is also the contention of the writ petitioner that the said regulation is contrary to law and is not in accordance with the schedule of water fees mentioned at the back of rate bill issued to the petitioner as also to the other house owners Calcutta. It has further been contended on behalf of the writ petitioners that fees on supply of water are being paid a throughout by every owner of every building including the petitioner which are always included in the consolidated rate bills by the Calcutta Municipal Corporation all throughout until 3rd quarter 1985 -86 (October, November, December 1985) at the rate of 25% as water charges and 5% charges for sewerage etc. It is also the contention of the writ petitioner that by issuing only one consolidated rate bill the Calcutta Municipal Corporation has imposed unreasonable restrictions to all owners of lands and buildings to hold property within the Calcutta Municipal area and the same is ultra vires the Constitution of India particularly of Articles 14 and 19 thereof. It has also been contended that by reason of issuance of one consolidated rate bill and including within the same the water fee the entire liability for payment of water fee has been fixed upon the owner of the said premises although it may be that in a given case the premises in question has been let out entirely and it is the tenant who enjoys the water. The learned Advocate for the petitioner in this connection referred to Sec. 234(1) of the Calcutta Municipal Corporation Act, 1980 and sub -section (b) of the said Act and also to Sec. 261 of the Act which provides for Corporation's power to install meter. The learned Advocate also refers to Sec. 265, Sec. 29 and Sec. 170 of the Calcutta Municipal Corporation Act. The learned Advocate submitted that the regulation framed by the Calcutta Municipal Corporation Act which provided for imposition of water fee on the basis of size of the ferrule is absolutely arbitrary in as much as ferrule size does not show the actual measure of the water being received by the person concerned. He also submitted that there is a distinction between fee and tax and the fee should correspond with the actual benefit or advantages being received by the person paying fee to the authorities concerned. In this connection he referred to following cases :