Calcutta High Court
Calcutta Municipal Corporation And ... vs Board Of Trustees For The Port Of ... on 13 November, 2006
Equivalent citations: 2007(1)CHN401
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
JUDGMENT Ashim Kumar Banerjee, J.
1. What would be the effective date of a revised valuation in respect of a port premises, is the moot question to be decided in this appeal.
2. The Board of Trustees for the Port of Calcutta being the respondent No. 1 owned various properties in the city of Calcutta including premises No. P-1, Taratala Road, Calcutta.
3. Under the Calcutta Municipal Corporation Act, 1980, the municipal authority was empowered to levy tax after the assessment of an annual valuation of the premises in question situated within the municipal limits of Calcutta. However, under Section 171(7) of the said Act of 1980, a different mode of valuation was prescribed for the premises belonging to the Port Trust. Such procedure for valuation was prescribed under the Calcutta Port Act, 1890 (hereinafter referred to as the "said Act of 1890") which is still in force after undergoing several amendments including in 1895.
4. Under Section 59 of the said Act of 1890 procedure for fixing the annual valuation for the port premises was prescribed.
5. Under Section 60 of the said Act of 1890, the Port was to pay the sum payable as tax on the annual value determined in terms of Section 59 and such rate would be 9/10th of the amount in respect of the rate in which any other ordinary owner would have paid had the building being owned by him.
6. Section 61 stipulated payment by instalment.
7. Section 62 provided for determination of the annual value from time to time and for such determination provisions of Sections 130, 131, 133, 135 and 136 of the Municipal Act were made applicable.
8. Under Section 66, at the expiration of the first valuation made under the said Act of 1890, such valuation including any alteration made under Section 65 may, if so agreed upon by the Port Trust and the Corporation be renewed for a further period of six years and such renewal from time to time would be for six years.
9. On a composite reading from Section 59 to Section 66, it would appear that whatever might be the valuation after the first valuation such valuation has to be agreed valuation between the Corporation and the Port Trust.
10. Section 66A to Section 66N were brought in by way of amendment in 1895. By the said provisions the mode of valuation of building and structure erected on the port land under occupation as a tenant by any private party and/or individual was prescribed.
11. Under Section 66A, such building or structure was to be annually valued on the basis of the expenditure spent for erection of such building or structure. The other amended provisions prescribed the mode in which such valuation was to be arrived and/or to be given effect to.
12. Under Section 66K(4), such assessment and/or revised valuation subject to alteration in terms of the said provisions be deemed to be the amount payable during the whole period for which the valuation was in force and the period would be calculated from the commencement of the quarter next succeeding that in which any alteration was made and until such alteration was made the old valuation would continue to be in force irrespective of expiry of the fixed period.
14. Under Section 66N, Port was entitled to recover from the owner of the building and/or structure the whole of the tax so assessed on such building or structure. They would also be entitled to recover the tax assessed on the land under Section 59 to Section 65 an amount not exceeding half of the whole consolidated rate in respect of the land in occupation of such tenant.
15. In the instant case in 1970 an agreement was entered into between the Corporation and the Port wherein the annual valuation was fixed at Rs. 1,000/- per katha. Such agreement was in force for a long time. The municipal authority felt that there should be revision of the said annual valuation. On October 14, 1985, a joint meeting was held where various municipal issues were discussed. There were series of meeting as would appear from the xerox copies of the minutes produced by Mr. Das Adhikary appearing for the municipal appellant. Ultimately, the valuation was increased in 2001. Both the parties being municipal authority and the Port agreed to such enhanced valuation. On the date of hearing the Court was informed that the Port Trust duly paid Corporation Tax at the enhanced rate since November, 2001 and was still paying at the said rate. The municipal authority, however, had been insisting upon such enhanced rate and/or annual valuation to be given effect to with retrospective effect from first quarter 1990-91 and thereafter at a further enhanced rate with effect from first quarter 1996-97. Port did not agree to such proposal. They made objection to the proposed valuation to be given effect to retrospectively. The hearing officer by order dated November 21, 2001 enhanced the valuation and unilaterally made it applicable retrospectively. It was made a subject-matter of challenge in a writ petition filed by the Port Trust.
16. The learned Single Judge allowed the writ petition by the judgement and order dated June 19, 2002 wherein His Lordship quashed the order of the hearing officer. His Lordship was of the view that notwithstanding the power conferred under the Municipal Act to determine the annual valuation, since Section 171(7) of the said Act of 1980 specifically excluded the land and buildings vested in Port Trust such exercise was unlawful. His Lordship further observed that the land and building belonging to the Port Trust could only be assessed under the said Act of 1890 and such assessment could be enforced only by agreement of parties. On behalf of the municipal authority reliance was placed before His Lordship on Section 66K(4) by contending that the said provision could apply only to the case of construction of a structure by a tenant. His Lordship was of the view that the provisions of Section 66K(4) would apply to all properties vested in Port Trust, be it tenanted or otherwise.
17. Being aggrieved by, and dissatisfied with, the said judgement and the order under the appeal, the present appeal was filed by the municipal authority and was heard by us on behalf of the mentioned dates.
18. Mr. Ashok Kumar Das Adhikary, learned Senior Counsel appearing in support of the appeal contended as follows:
(i) Sections 59 to 66 of the said Act of 1890 would apply only in case of land possessed by Port whereas, Sections 66A to 66N would apply only in case of building or structure erected by any private party. Hence, Section 66K(4) would have no application in the instant case.
(ii) For the purpose of revision of the annual valuation, attempts were made by the Corporation since 1985 as would appear from the minutes of the meetings and/or the correspondence exchanged between the parties. The Port Trust, for the first time, raised objection in 1999 that stood disposed of by the order of the hearing officer passed in 2001. The Port Trust did not challenge the valuation so arrived at by the hearing officer. Hence, there could not have been any grievance for which the writ petition could be held to be maintainable.
19. Opposing the appeal Mr. Anindya Kumar Mitra, learned Senior Counsel contended as follows:
(i) Section 66K(4) of the Act of 1890 clearly provided that revised valuation could be given effect to after agreement between the parties and so long it was not done the old valuation would continue. The agreement was arrived at in 2001 and the same was given effect to immediately thereafter. The proposition that the annual valuation of the structure would be prospective and the revised valuation of the land would be retrospective, was absurd and it was devoid of any logic.
(ii) Whatever might be the revised valuation that could only be given effect to by agreement of parties. Hence, the Corporation was not entitled to enforce something that was not agreed upon by the Port Trust.
(iii) Assuming that the Municipal Act of 1980 could be made applicable there was no provision for retrospective revision as would appear from Sections 179 and 184 of the said Act of 1980.
(iv) The provisions of Section 66K(4) would apply in case of land as well as building and the submissions to the contrary did not have any statutory support.
20. In support of his contention, Mr. Mitra cited the Apex Court decision in the case of Zile Singh v. State of Haryana and Ors. of the said judgement was relied upon by Mr. Mitra. The said paragraph is quoted below:
It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only- 'nova constitutio futuris forman imponere debet non praeteritis'- a new law ought to regulate what is to 'follow, not the post. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at p.438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., p 440).
21. Relying on the paragraph quoted (supra) Mr. Mitra, contended that unless there was any express provision in the statute to make any action binding retrospectively any action taken under the statute would have a prospective effect and not retrospective.
22. On a combined reading of the provisions of the Municipal Act, 1980 and the Port Act of 1890, it would appear to us that in case of Port property, the revised valuation could only be given effect to by agreement and agreement only as was done in 1970. Revision of the annual valuation so prescribed in the agreement of 1970 could only be had and/or given effect to by agreement of parties. From the documents disclosed by the municipal authority we would find that the process started in 1985 which culminated in 2001. The hearing officer fixed the annual valuation in 2001. The Port Trust agreed to the same as would appear from their letter dated March 19, 2002, and April 9, 2002 appearing at pages 130-131 and 142-144 of the Paper Book. In the first letter the Port Trust contended that unless and until the revision was given effect to by agreement of parties the same could not be enforced. The revision so made by the municipal authority was accepted by the Port Trust in 2001 and they made payments accordingly. In the second letter, Port Trust reiterated such stand.
23. There was no challenge to the revision made by the municipal authority and as such question of raising objection thereto could not arise. The Port Trust agreed to the revision when it was arrived at and started making payment therefor.
24. The provisions of Sections 59 to 66 of the Act of 1890 as well as the amended provisions being Sections 66A to 66N provided for the process of revision as well as the mode of recovery. However, the same could only be given effect to only by agreement of parties. Even if we accept the contention of Mr. Das Adhikary to the extent that 66K(4) would only apply in case of building and structure erected by the tenants on a composite reading of the relevant provisions of the said Act, it would appear that the entire process would depend upon mutual agreement between the Corporation and the Port to make such revision binding upon the Port Trust.
25. The appeal, therefore, fails and is hereby dismissed.
26. There will be no order as to costs.
27. Urgent xerox certified copy would be given to the parties, if applied for.
Tapan Mukherjee, J.
28. I agree.