Calcutta High Court
Vicky Promoters & Developers Pvt Ltd. & ... vs The Kolkata Municipal Corporation & Ors on 5 February, 2020
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
OD-25
WP 473 of 2017
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
VICKY PROMOTERS & DEVELOPERS PVT LTD. & ANR.
Versus
THE KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
Date : 5th February, 2020.
Appearance:
Mr. Sibsankar Das, Adv.
...for the petitioner.
Mr. Biswajit Mukherjee, Adv.
Mr. Debangshu Mondal, Adv.
...for the K.M.C. The Court : The petitioner is a real estate developer. The premises in question is premises no. 247, Purnadas Road, Kolkata-700029. The said premises, was owned by one Ajitsaria family. In or about 2007, the Ajitsaria's approached the petitioner to develop the said premises. Ultimately, a development agreement was entered into between the parties on 6th February, 2007. It appears that such agreement was also registered with the Registrar of 2 Assurances, Kolkata. A power of attorney was also entered into between the petitioner company and the Ajitsaria's. It is alleged in the petition that the petitioner is in possession of the said premises and has commenced development work. In this proceeding, the petitioner has impugned a notice issued by the Chief Manager (Revenue), Kolkata Municipal Corporation demanding a sum of Rs. 2,93,25,456/- on account of corporation rates and taxes along with penalty and interest. It is alleged on behalf of the petitioner that the sudden escalation of annual valuation is arbitrary and whimsical and has been made without any notice to the petitioner. The petitioner complains that the entire exercise of increase of annual valuation was done behind the back of the petitioner and no notice of any such proceeding was made to the petitioner. Counsel on behalf of the Corporation submits that this is misconceived and mischievous petition and has been filed with the sole aim of procrastinating and frustrating payment of property tax by the petitioner to the Corporation. He relies on Article 9.1 of the Development Agreement (appearing at 30 of the petition) to show that by virtue of the development agreement the developer i.e. the petitioner had unequivocally 3 undertaken to pay all arrears and future taxes and other dues and outgoings in respect of the said premises. He further submits that there has been no notice by the developer to the Corporation that he was the appropriate person to make payment of the Municipal dues and taxes in respect of the aforesaid premises. He relies on Section 183 of the Kolkata Municipal Corporation Act to submit that the developer was under an obligation to give the Corporation notice of transfer being the person primarily liable to pay the property tax in respect of the said premises. He also relies on a judgment reported in Kolkata Municipal Corporation vs. Ram Niranjan Kajaria & Ors., reported in (2009) 1 CHN 382 paragraph 17 to urge that the writ petitioner does not have any right of a notice under Section 184 of the Act and there is nothing on record to show that the petitioner ever informed the Kolkata Municipal Corporation that notices ought to have been served on him.
I have considered the rival submission of the parties. I have also perused the petition and gone through the documents annexed to the petition. The petition is directed against two bills dated 4th August, 2017 and 22nd September, 2016 annexed to the petition. On the grievance of the petitioner that there was no 4 notice served on the petitioner prior to the increase of annual valuation in respect of the said premises, I have considered the documents relied on by the petitioner, I have also considered Section 183 of the said Act and the judgment reported (2009) 1 CHN 382. I am of the view that the writ petitioner has been unable to show an iota of evidence whereby he had ever informed the Corporation that he was the recorded owner or occupier or person, who was liable to pay the tax under the Kolkata Municipal Corporation Act, 1980 in respect of the aforesaid premises. Accordingly, the grievance of the petitioner that he was lawfully entitled to any notice is without any basis either in law or on facts.
It is significant to mention that the dues in respect of the aforesaid premises are a staggering amount of approximately Rs. 3 crores estimated in the year 2017. I am of the view that these is a clear and unequivocal obligation taken upon the petitioner to pay all arrears and future taxes and other dues and outgoings in respect of the said premises as contained in clause 9.1 of the Development Agreement. The petitioner cannot have any lawful reason or excuse in not making payment of the demand raised by the Corporation. It is also the 5 admitted position that the owner of the said premises being the Ajitsaria's have not come forward to challenge the impugned notice or to challenge the impugned demand raised by the Corporation. I also find that the grievance of the petitioner, insofar as the annual valuation of the premises is concerned, has no substance or legal basis whatsoever.
In view of the aforesaid, I find that there is not merit in the petiton. The writ petition is misconceived, frivolous and has been filed in abuse of process of this Hon'ble Court.
WP 473 of 2017 is dismissed. Costs are assessed at Rs. 1 lakh payable to the Kolkata Municipal Corporation by the petitioner for filing such frivolous litigation. The KMC is forthwith directed to take all steps for recovery of their dues in respect of the aforesaid premises in accordance with law.
(RAVI KRISHAN KAPUR, J.) SK.