Calcutta High Court (Appellete Side)
The Kolkata Municipal Corporation vs Sri Vivek Kumar Agarwal And Anr on 12 December, 2018
Author: Biswajit Basu
Bench: Biswajit Basu
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Biswajit Basu, J.
C.O. No. 3368 of 2017 The Kolkata Municipal Corporation Vs. Sri Vivek Kumar Agarwal and Anr.
For the petitioner : Mr. Alok Kumar Ghosh.
Mr. Swapan Kumar Debnath.
For the Opposite Party: Mr. Rupak Ghosh.
Heard on : 27.11.2018
Judgment on : 12.12.2018
Biswajit Basu, J.
1. The revisional application under Article 227 of the Constitution of India is directed against the order dated December 07, 2016 passed by the learned Second Bench, Municipal Assessment Tribunal, the Kolkata Municipal Corporation in M.A Appeal No. 1819 of 2012 thereby, modifying 2 the order dated August 06, 2012 passed by Hearing Officer X of Kolkata Municipal Corporation in objection registered being serial No. 860 of Ward No. 018.
2. The opposite parties are the owners of Flat No. 1C at the 1st floor of the multi-storied building at premises No. 9A Jatindra Mohan Avenue, Kolkata. 700006 within the Ward No. 018 of the Kolkata Municipal Corporation (hereinafter referred to as the 'Said Flat' in short)
3. The petitioner served a notice to the opposite parties under Section 184(4) of the Kolkata Municipal Corporation Act, 1980 proposing the annual valuation of the said flat. The opposite parties objected to the said proposed annual valuation of the said flat. The hearing officer by the order dated August 06, 2012 fixed the annual valuation of the said flat at Rs. 35,690/- with effect from second quarter 2008-2009.
4. The opposite parties aggrieved by the said order of the hearing officer preferred an appeal before the Municipal Assessment Tribunal, being M.A Appeal No. 1819 of 2012.
5. The Tribunal by the order impugned modified the aforementioned order of the hearing officer by reducing the annual valuation of the said flat to Rs. 18,450/- from Rs. 35,690/- with effect from the said second quarter 2008-2009.
6. The Kolkata Municipal Corporation has assailed the said order of the Tribunal in the present revisional application under Article 227 of the Constitution of India.
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7. Learned counsel for the petitioner submits that the order under challenge is not only bad in law for lack of reasoning but also, the Tribunal only on the basis of an earlier judgment of it passed in M.A Appeal No. 335 of 2010 has modified the assessment of the annual valuation of the hearing officer without adverting to the relevancy of the said judgment in the context of the present case.
8. On the other hand the learned counsel for the opposite parties submits that the Tribunal has assessed the annual valuation of the said flat on the basis of materials available on record.
He further submits that the Tribunal relied on it's earlier judgment passed by it in respect of a flat situated in the same locality where the flat of his client is situated, therefore, the said judgment was only the relevant document available before the Tribunal in assessing the annual valuation of the said flat. Therefore, according to him the Tribunal has rightly relied on it's said earlier judgment in assessing the annual valuation of the said flat. The finding of the Tribunal being passed on appreciation of factual aspect of the matter there is no scope of interference in the said factual finding under Article 227 of the Constitution of India.
9. The learned advocates for the opposite party in support of his aforesaid submission placed reliance on the decisions of the Hon'ble Apex Court in the case of RAJKAMAL KALAMANDIR (P) LTD.... Appellants - versus- INDIAN MOTION PICTURES EMPLOYEES' UNION AND OTHERS....Respondent reported in (1963) 1 LLJ 318 and in the case of 4 PURAN RAM.....Appellant -versus- BHAGURAM AND ANOTHER......... Respondents reported in (2008) 4 Supreme Court Cases 102.
10. Heard learned advocates for the parties perused the materials on record.
The Kolkata Municipal Corporation Act, 1980 (hereinafter referred to the said Act in short) provides the detail provisions of taxation and property tax under Part. IV Chapter. 12 of the said Act.
Under Section 180 of the said Act the annual valuation of a land or building may be revised on the grounds mentioned in the said provision of the said Act. Section 184(4) of the said Act mandates that before making any revision/fixation of annual valuation municipal commissioner shall give notice of not less than thirty days to the owner any lessee or sub-lessee or occupier of land or building in respect of which he proposes to make the revision/fixation of the annual valuation enabling the said persons to raise objection to the proposed annual valuation.
In terms of Section 186 of the said Act the objection must be in writing, stating in what respect the annual value is disputed and shall be submitted before the date of hearing of the said objection, fixed in the said notice.
11. The State Government by virtue of Section 600 of the said Act has framed the Kolkata Municipal Corporation (Taxation) Rules, 1987 (hereinafter referred to as the said Rule in short). The objection filed under 5 Section 186 of the said Act is required to be entered in register maintained in Form No. G Section 188 of the said Act read with Rule 9(3) of the said Rule provide the detailed procedure for hearing and disposal of an objection to the proposed annual valuation of the property in question.
12. It is clear from a plain reading of the aforementioned provisions of the said Act and the said Rule that the duty casts upon the hearing officer to adhere to the said procedure while dealing with an objection under Section 186 of the said Act.
The hearing officer under Rule 9(3) (C) of the said Rule is even vested with the jurisdiction to call upon the person appearing before him at the time of hearing to file written statement supported by duly sworn in affidavit, if necessary giving particulars of his submission in support of the disputes raised against the proposed annual valuation of the property.
A photocopy of the order of the hearing officer dated August 06, 2012 has been supplied by the learned counsel for the petitioner which is taken on record. The said order reads as under:
"A.R. appears AAC is present. Ld. Heard them AV is fixed at Rs. 35,690/-"
13. It is really shocking that the hearing officer did not at all bother to follow the minimum statutory requirement as contemplated in the aforementioned provisions of the said Act and the said Rule for disposal of an objection to the proposed annual valuation.
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Such an order was assailed by the opposite parties before the Tribunal constituted under Section 189 of the said Act.
14. Rule 10 of the said rule prescribed the Form, presentation and registration of such appeals. The Tribunal by virtue of Rule 15 enjoys the power of Civil Court to secure and to summon any witness or for production of any document which the Tribunal may require for disposal the appeal before it. That apart details procedure for hearing of the appeals have been provided under Rule 19 of the said rule.
Therefore, it is apparent from the aforementioned provisions of the said Act and the rules framed there under that the Tribunal being a quasi judicial appellate body is under the obligation to dispose of the appeals before it in accordance with the provisions laid down in the said Act and the said rules.
15. The Tribunal by the order impugned has modified the annual valuation of the said flat only on the basis of a judgment passed by it in M.A Appeal No. 335 of 2010. A photocopy of the said judgment has been supplied by the learned advocate for the opposite parties which is taken on record. On perusal of the said judgment of the Tribunal it appears that the conclusion of the said judgment is also not supported by any reason.
16. The Tribunal before relying on it's said judgment must come into the conclusion regarding the relevancy of the said judgment in the facts and circumstances of the appeal before it. Merely because the property in the said referred judgment is situated under the same ward of the Kolkata 7 Municipal Corporation or within the same locality where the said flat is situated cannot be the sole yardstick of assessment of the annual valuation of the said flat.
17. The detailed procedure since has been laid down under the said Act and the said rules for disposal of an appeal under Section 189(5) of the said Act, the Tribunal being the quasi judicial authority is bound to follow the said procedure in discharging it's duty. There is manifest dereliction of discharge of the statutory obligation by the Tribunal as the Tribunal has failed to follow any of the said procedure in allowing the appeal before it.
18. The order of the hearing officer, no doubt is also lacking the statutory requirement but the Tribunal has vested with the power under the said Act and the said Rule to assess the annual valuation of the flat in question even by the taking additional evidence under Rule 19(6) of the said Rule. The Tribunal choose not to resort to the said provisions of the said Act and the said Rule in assessing the annual valuation of the said flat.
19. There is no dispute with regard to the proposition of law laid down by the Hon'ble Apex Court in the decision relied on by the learned advocate for the opposite parties, reported in (1963) 1 LLJ 318 (Supra) that the High Court in exercise of jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the decision of the Tribunal or cannot upset it's discretionary order.
But the said decision does not suggest that the High Court has no jurisdiction under Article 227 of the Constitution of India to interfere with 8 an order which is perverse on the face of it, particularly when such order is passed by a quasi judicial authority in total disregard of it's statutory obligation. Therefore, in the facts of the present case the said decision of the Hon'ble Apex Court has no manner of application.
20. The next decision of the Hon'ble Apex Court relied on by the learned advocate for the opposite parties reported in (2008) 4 Supreme Court Cases 102 (Supra) is of no help for his client inasmuch as in the said decision the Hon'ble Apex Court has held that the High Court ought not have interfere with the order of the Trial Court passed on consideration of law and facts and when it cannot be said the order of the Trial Court was either without jurisdiction or perverse or arbitrary, but in the present case the modification of the order of the hearing officer by the Tribunal is based on no material as such perverse and warrants, interference of this Court in exercise of the jurisdiction under Article 227 of the Constitution of India.
21. The Hon'ble Apex Court in the case of ACHUTANANDA BAIDYA - Versus- PRAFULLYA KUMAR GAYEN AND OTHERS reported in (1997) 5 Supreme Court Cases 76 has held that the power of superintendence of the High Court under Article 227 of the Constitution is not confined to the administrative superintendence only but such power includes within it's sweep the power of judicial review. The paragraph 10 of the said report being relevant to the context is quoted below:
"10. The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power 9 and duty of the High Court under Article 227 is essentially to ensure that the Courts and tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material or resulting in manifest injustice. As regards finding of fact of the inferior court, the High Court should not quash the judgment of the subordinate court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 of interfere with the finding of fact if the subordinate court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse."
In the present case the order of the Tribunal demonstrates flagrant violation of it's statutory obligation. The High Court, therefore, in exercise of it's jurisdiction under Article 227 of the Constitution of India for keeping the subordinate Courts and Tribunals within the bound of their jurisdiction must interfere with such kind of orders particularly when such order is being passed by a quasi judicial authority.
22. That apart the order under challenge, supplies no reason to modify the order of the hearing officer. The requirement of recording adequate 10 reason by a quasi judicial authority is must. In this context it is profitable to quote paragraph 47(n) of the decision of the Hon'ble Apex Court in the case of KRANTI ASSOCIATES PRIVATE LIMITED AND OTHER -Versus- MASOOD AHMED KHAN AND OTHERS reported in (2010) 9 Supreme Court Cases 496.
"(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence."
23. In view of the discussion made above the order impugned is set aside. The Municipal Assessment Tribunal 2nd Bench, Kolkata Municipal Corporation is directed to decide the M.A Appeal No. 1819 of 2012 afresh in strict compliance of the provisions of the said Act and the said Rule.
C.O 3368 of 2017 is allowed. There will be no order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Biswajit Basu,J.)