Debangsu Basak, J.@mdashThe writ petitioners challenge the letter dated November 24, 2008 issued by the Licence Officer of the Kolkata Municipal Corporation demanding a sum of Rs. 96,200/- on account of failure of the first writ petitioner to obtain trade licence and the notice dated March 24, 2009 being a notice for execution of distraint warrant. The writ petitioners contend that as a private members club, the writ petitioners are not required to obtain any licence under the Kolkata Municipal Corporation Act, 1980. They also contend that none of the sections quoted in the letter dated November 24, 2008 of the Corporation are attracted to the first writ petitioner and as such the quantum charged to the first writ petitioner is not payable. The writ petitioners also contend that in view of Section 627 of the Kolkata Municipal Corporation Act, 1980, the Kolkata Municipal Corporation has no jurisdiction to claim any amount from the first writ petitioner as the club premises of the first writ petitioner is located in the part of Hastings which is under the control of General Officer Commanding of the Eastern Command.
2. On behalf of the Corporation authorities it is contended that, the first writ petitioner is liable to pay the fees claimed from it by the letter dated November 24, 2008. It is submitted that, the writ petitioners are enjoying municipal facilities at the club premises and, therefore, they are obliged to pay for the same. Relying upon
3. I have considered the rival contentions of the parties and the materials made available on record.
4. The first writ petitioner is a club having a premises falling in the Maidan area. It has its office at premises No. 12A, Lord Sinha Road, Kolkata. The first writ petitioner had applied for issuance of certificate of enlistment commonly known as trade licence with the Corporation in December 2005. In response thereto, the Kolkata Municipal Corporation authorities by the impugned letter dated November 24, 2008 demanded a sum of Rs. 96,200/-. This letter of demand was followed by a subsequent letter. The first writ petitioner replied to the demands through its Advocate stating that the provisions of the Kolkata Municipal Corporation Act, 1980 has no manner of application. The Corporation authorities issued the distraint notice dated March 24, 2009. The writ petitioners through their Advocates'' letter dated March 24, 2009 requested the Corporation authorities to withdraw the distraint proceedings. The Corporation authorities did not do so. The writ petitioners, thereafter, moved this Hon''ble Court by way of the present writ petition. By an Order dated April 3, 2009 passed in this writ petition, the distraint warrant was directed to remain stayed upon the writ petitioners depositing a sum of Rs. 50,000/- with the Corporation authorities. Such payment was directed to be made without prejudice to the rights and contentions of the parties. It is submitted in course of hearing and not disputed by the Corporation authorities that in compliance with the Order dated April 3, 2009 a sum of Rs. 50,000/- has been deposited by the writ petitioners with the Corporation authorities.
5. The letter dated March 24, 2009 requires the first writ petitioner to obtain a trade licence upon production of requisite papers and payments as enumerated therein. The Corporation authorities had identified Sections 199, 238(2), 307, 333, 435 and 421 as the sections under which the first writ petitioner is liable to pay fees to the Corporation authorities.
6. Section 199 of the said Act of 1980 requires every person engaged or intending to be engaged in any profession, trade or calling in Kolkata as mentioned in Schedule IV of the Act of 1980 to obtain a certificate of enlistment or to get the same renewed annually, as the case may be, from the Municipal Commissioner on payment on application fees as may be determined. Schedule IV of the Act of 1980 does not specify a club.
7. Reference is made to serial Nos. 14, 20 and 26 of Schedule IV of the Act of 1980 by the learned Counsel for the Corporation authorities contending that the first writ petitioner falls within the persons defined in such serials. Serial No. 14 refers to owner, lessee, licensee of a cinema house, theatre hall, planetarium, place of public entertainment where such place of entertainment is - (i) Air-conditioned, (ii) Non-air-conditioned. The club premises of the first writ petitioner cannot be said to be any of the items described in serial 14. A private members club cannot be said to be a place of public entertainment. Serial No. 20 of Schedule IV of the Act of 1980 speaks of keeper of a restaurant with floor shows or orchestra and serial No. 26 refers to licensed foreign liquor vendors, licensed country liquor vendors, licensed Ganja, opium, Pachwai, toddy or bhang vendors. The first writ petitioner cannot be said to be a keeper of a restaurant with floor shows or orchestra. The first writ petitioner as a private members club cannot be said to be a vendor of any of the substances mentioned in serial No. 26 of Schedule IV of the Act of 1980. A private members club cannot be said to be carrying on any profession, trade or calling. No business activity is carried out by a private members club. In such circumstance, Section 199 of the Kolkata Municipal Corporation Act, 1980 has no manner of application.
8. Section 238 of the Act of 1980 specifies that supply of water for domestic purposes would not include any supply for the purposes specified therein. Under sub-section (2) of Section 238 of the Act of 1980 the supply of water for domestic purposes would not be deemed to include any supply for the purposes mentioned therein. Nothing has been placed on record to demonstrate that water supplied at the club premises of the first writ petitioner at Maidan is used by the first writ petitioner for any of the purposes mentioned in sub-section (2) of Section 238 of the Act of 1980.
9. Section 307 of the Act of 1980 gives power to the Municipal Commissioner to levy fees for drainage and sewerage service. The club premises of the first writ petitioner do not enjoy any drainage or sewerage service of the Kolkata Municipal Commissioner. This is not disputed at the time of hearing.
10. Section 333 of the Act of 1980 empowers the Municipal Commissioner to issue directions for removal of solid wastes accumulated on non-residential premises.
11. The writ petitioners contend that the Municipal Commissioner cannot issue directions under Section 333 of the Act of 1980 in view of Section 627 thereof. Section 627 of the Act of 1980 gives control over the Government lands and buildings to the General Officer Commanding of the Presidency District. The proviso to such section states that it shall in no way derogate from the powers vested in the Corporation or any other municipal authority enabling the Corporation in the interest of public health to require the owner or occupier of any land or building in such part of Hastings to remedy or abate any sanitary defects on or in such land or building.
12. Section 627 of the Act of 1980 cannot be pressed into service to deny the right of the Kolkata Municipal Corporation to issue a direction under Section 333 of the Act of 1980. Section 627 of the Act of 1980 does not take away the land situated within the part of Hastings governed by such section out of the scope and ambit of the Kolkata Municipal Corporation Act, 1980 altogether. It allows the General Officer Commanding of Presidency District the control over the land and building belonging to the Government in that part of Hastings. Such control cannot be stretched to mean that the occupants of such land are immune to the provisions of the Act of 1980 or that the Act of 1980 will not apply.
13. Calcutta Swimming Club and Anr. (supra) after considering the various provisions of the Kolkata Municipal Corporation Act, 1980 and Article 285 of the Constitution of India has held that, the club is liable to pay property tax in respect of building, structure and swimming pool constructed over Government land.
14. Section 333 of the Act of 1980 however requires a notice to be issued by the Municipal authorities calling upon the owner or occupier to undertake the activities enumerated in such notice in terms of such section. In the instant case, no such notice has been given. Consequently, the Corporation authorities are not entitled to claim any amount in respect of section 333 of the Act of 1980 from the writ petitioners.
15. Section 435 of the Act of 1980 prohibits a premises not to be used for non-residential purpose without municipal licence. The section refers to the use of premises for non-residential purposes mentioned in Schedule V. Serial No. 8 of Schedule V is referred to on behalf of the Corporation authorities to suggest that the club premises of the first writ petitioner falls thereunder. Schedule V relates to purposes for which premises may not be used without permission. Serial No. 8 of Schedule V would read as follows:-
"Carrying out any of the following trades or operations connected with traders:-
8. Eating house or catering establishment. Keeping of an-"
16. The activity referred to in serial No. 8 of Schedule V therefore relates to a trade or operation connected with traders. The first writ petitioner cannot be held to be carrying on any business or trade. Therefore, Section 435 of the Act of 1980 will have no manner of application.
17. Section 421 of the Act of 1980 stipulates that no eating house, hotel, boarding house, tea shop, coffee house, cafe, restaurant, refreshment room, snack shop, snack bar, sweet meat shop, liquor house, tavern, wine shop, beer shop, spirit shop, arrack shop, toddy shop, ganja shop, bhang shop, opium shop, tobacco shop, bidi shop, cigarette shop, zarda shop, betel shop or betel leaf masalla shop or any place, where the public are admitted for repose or consumption of any food or drink not to be established without the permission of the Corporation authorities. The first writ petitioner cannot be said to be carrying on any activity where the public are admitted. The admission of persons to its premises is confined to the members of the first writ petitioner and their guests. None of them can be considered to be "public" within the meaning of Section 421 of the Act of 1980. Moreover, the activities described in Section 421 of the Act of 1980 relate to trade. The first writ petitioner cannot be held to be carrying on any business activity or trade. Section 421 of the Act of 1980 is, therefore, not applicable to the first writ petitioner.
18. The demand of the Corporation in such circumstances cannot be sustained. The letter dated November 24, 2008 is required to be set aside and is, therefore, set aside. Since the Corporation authorities are not entitled to raise the demand as noted in the letter dated November 24, 2008 and since the distraint proceedings were sought to be initiated on the basis of such demand, the distraint proceedings are also set aside.
19. The writ petitioners have paid a sum of Rs. 50,000/- to the Corporation authorities in terms of the Order dated April 3, 2009. They are not liable to pay so. The first writ petitioner however has an office at premises No. 12A, Lord Sinha Road, Kolkata. The writ petitioners will be entitled to have the sum of Rs. 50,000/- deposited by them to the Corporation authorities in terms of the Order dated April 3, 2009 adjusted against any property tax, fees or any other rates and taxes in respect of the said office.
20. With the aforesaid directions W.P. No. 284 of 2009 is disposed of. No order as to costs.
