Calcutta High Court
Sahujain Charitable Society & Anr vs The Kolkata Municipal Corporation & Ors on 12 March, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
WP No. 1021 of 2011
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SAHUJAIN CHARITABLE SOCIETY & ANR.
Versus
THE KOLKATA MUNICIPAL CORPORATION & ORS.
Appearance
Mr. Samit Talukdar, Sr. Adv.
Mr. S.S. Banerjee, Adv.
Mr. P.K. Jhunjhunwala, Adv.
Mrs. Alpana Chowdhury, Adv.
Mr. Ashok Kr. Banerjee, Sr. Adv.
Mr. Biswajit Mukherjee, Adv.
Ms. R. Sen, Adv.
Ms. P. Sengupta, Adv.
Mr. J.K. Mitra, Ld. Advocate General
Mr. P.K. Dutta, Sr. Adv.
Mr. Samrat Sen, Sr. Adv.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : March 12, 2015.
The Court : This is a second writ petition at the behest of the writ petitioners relating to annual valuation of the basement, 11th, part of 12th and 13th to 16th floors of premises no. 8, Camac Street, Kolkata with effect from 4th quarter of 1984-85, 4th quarter of 1990-91, 4th quarter of 1996-97 and 4th quarter of 1999-2000.
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In course of hearing today, two points were canvassed on behalf of the writ petitioners. The first is the challenge to the vires to second proviso of Section 179(2)(d) of the Kolkata Municipal Corporation Act, 1980.
The second point canvassed is with regard to the new bills raised by the Corporation authorities for the period commencing from 4th quarter of 1984- 85 to 4th quarter of 1999-2000. It is contended that, the Kolkata Municipal authorities had withdrawn the bills for the period commencing from 4th quarter of 1984-85 to 4th quarter of 1999-2000 by a letter dated June 2, 2003 and had resubmitted such bills subsequently. This, according to the writ petitioners, could not be done as, according to the writ petitioners, the new bills must be preceded by a notice of hearing, hearing and an assessment order which has not been done in this case. The writ petitioners also contend that the new bills submitted are in violation of the ratio laid down in 2003 (10) SCC 533 (Calcutta Gujrati Education Society vs. Kolkata Municipal Corporation).
On behalf of the Advocate General, it is submitted that, the point of challenge of vires to the second proviso of Section 179(2)(d) of the Kolkata Municipal Corporation Act, 1980 does not survive the order dated April 20, 2007, passed by Court in the first writ petition filed by the writ petitioners which records the abandonment of the claim of the writ petitioners regarding the challenge to the vires of such proviso. Reference is also made to the order passed on the recalling application dated August 31, 2007 and the order passed by the Hon'ble Division Bench dated March 14, 2011 and the order of dismissal of the Special Leave Petition dated October 10, 2011.
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On behalf of the Kolkata Municipal authorities, it is submitted that, in the earlier round of litigation, the writ petitioners had challenged the legality, validity and/or correctness of the assessment of the annual valuation for the 4th quarter of 1984-85, 4th quarter of 1990-91, 4th quarter of 1996-97 and the 4th quarter of 1999-2000. It has been submitted that during the pendency of the writ petition and the appeal, the second bills were issued. Nothing prevented the writ petitioners from assailing the second bills for the same period in the earlier round of litigation. It is also submitted that, on the recall of the bill by the letter dated June 2, 2003, the liability of the writ petitioners to pay the property tax was not obviated. The writ petitioners continued to remain liable. The bills for the second time was raised in accordance with section 216 of the Kolkata Municipal Corporation Act, 1980 and that the same are payable by the writ petitioners.
In reply, it is contended on behalf of the writ petitioners that, the Division Bench had granted that liberty to agitate the point of Calcutta Gujrati Education Society (supra) at an appropriate forum. The vires to the second proviso of Section 179(2)(d) of the Kolkata Municipal Corporation Act was still available to them.
I have considered the rival contentions of the parties and the materials made available on record.
The writ petitioners claim to be the owner of various parts and portions of the basement, 11th floor, part of 12th floor and the 13th to 16th floors at premises no. 8, Camac Street, Kolkata. The writ petitioners had approached this Court by way of a previous writ petition being WP No. 460 of 2004. In such writ 4 petition, the legality, validity and/or correctness of the assessment of the annual valuation of such portions of the premises with effect from 4th quarter of 1984- 85, 3rd quarter of 1990-91 upto 3rd quarter of 1996-97 and 4th quarter of 1996-97 till 4th quarter of 1999-2000 were challenged on various grounds. The vires of the second proviso to Section 179(2)(d) of the Kolkata Municipal Corporation Act, 1980 was challenged also. The said writ petition was disposed of by a judgment and order dated April 20, 2007. Such order records that in the course of hearing of the writ petition, the writ petitioners had abandoned their challenge relating to the vires of such provisions of the Kolkata Municipal Corporation Act, 1980.
An application for recalling such recording in the order dated April 20, 2007 was made. Such application was disposed of by an order dated August 31, 2007, by recording that the challenge relating to the vires of such provision of the Kolkata Municipal Corporation Act was not pressed before the Court and that the Court had no occasion to consider such challenge while disposing of the writ petition.
No appeal was carried against the order dated August 31, 2007. An appeal was carried against the order dated April 20, 2007. Such appeal was disposed of by a judgment and order dated March 14, 2011.
The abandonment of the challenge relating to the vires of the said provision of the Kolkata Municipal Corporation Act, 1980 by the writ petitioners as explained by the order dated August 31, 2007 that such point was not pressed at the hearing of the writ petition was not reversed by the Hon'ble Appeal Court. 5
By reading the order dated April 20, 2007 with the order dated August 31, 2007, I am of the view that, the writ petitioners voluntarily and unconditionally gave up the challenge to the vires of the second proviso to Section 179(2)(d) of the Kolkata Municipal Corporation Act, 1980 at the hearing of WP No. 460 of 2004. The vires of such portion of the said Act of 1980 was not given up as a concession of law as sought to be contended by the learned Counsel on behalf of the writ petitioners. Such is not the recording in the orders passed in the earlier writ petition. In such circumstances, I do not think, it would be prudent to allow the writ petitioners to canvas the vires of the second proviso to Section 179(2)(d) of the Kolkata Municipal Corporation Act, 1980 afresh after they had unconditionally abandoned and not pressed the challenge to the vires of the said provisions of the Act of 1980.
The challenge in the present writ petition is directed against the bills appearing at pages 119 to 127 of the writ petition. They relate to the same period as that of the assessment order with effect from the 4th quarter of 1996-97 and which were subject matter of the first writ petition. With regard to the assessment order for such period and which was the subject matter of the first writ petition, while disposing of the writ petition by the order dated April 20, 2007, the Court had disposed of the writ petition by directing the Municipal authorities to supply copies of the order of assessment of the annual valuation of the premises in question for the period of time disputed in the writ petition to the writ petitioners within a period of one week from the date of the order. The said order also records that the writ petitioners had preferred an appeal against the 6 order of assessment. By the said order, leave was granted to the writ petitioners to amend the ground of the memorandum of appeal before the Appellate Tribunal. The Appellate Tribunal was directed to dispose of the appeals expeditiously. The writ petitioners at the time prior to the filing of the present petition had a copy of the order of assessment for such period of time.
The bills impugned herein are dated June 24, 2003. The order passed by the Trial Court in WP no. 460 of 2004 is dated April 20, 2007. The order is, therefore, subsequent to the bills presented and assailed in the present writ petition. When the order dated April 20, 2007 was passed, the writ petitioners had the new bills with them. In such factual scenario, the writ petitioners had invited the Writ Court to allow the amendment to the memorandum of appeal before the Appellate Tribunal and the hearing and disposal of the appeal by the Appellate Tribunal.
An appeal was carried by the writ petitioners against the order dated April 20, 2007. The said appeal was disposed of by the Judgment and Order dated March 14, 2011. Again no point was taken by the writ petitioners with regard to the bills which are presently under challenge. The point raised with regard to Calcutta Gujrati Education Society (supra) was kept open by the appellate Court.
Instead of pursuing the appeal before the Appellate Tribunal, the writ petitioners have come by way of the present writ petition for the second time assailing the bills raised on the basis of the subsisting assessment orders. The assessment orders have not been set aside till date. The writ petitioners have not 7 submitted any material on record to suggest that the writ petitioners have proceeded with the hearing and disposal of the appeal before the appellate authority in terms of the order dated April 20, 2007 or in terms of the judgment and order passed by the Division Bench dated March 14, 2011.
The bills which are under challenge before me are on the basis of the assessment orders passed by the Hearing Officer. Until and unless such assessment orders are reversed by an authority competent to do so, the liability of the writ petitioners to pay in terms of such assessment orders remains. In my view, the action of the Kolkata Municipal authorities in recalling the bills on June 2, 2003 does not tantamount to the assessment orders on the basis of which they were issued were recalled. This position is also established from the stand of the parties as recorded in the order dated April 20, 2007 also. On April 20, 2007, the writ petitioners had invited the Court to issue directions with regard to the hearing of the appeal pending against the subsisting assessment orders. The parties, therefore, accepted that the assessment orders were subsisting at least on April 20, 2007.
In such circumstances, I find no substance in the contention of the writ petitioners that, the recalling of the bills on June 2, 2003, the order of assessment forming the basis of such bills stood recalled also and that the Corporation authorities are required to initiate fresh proceedings for assessment of the annual valuation for such period of time by issuing a notice of hearing, hearing objections, if any, and to pass a reasoned order thereon by the Hearing 8 Officer, for the municipal authorities to raise the bills for the second time as at pages 120 - 127 of the writ petition.
The right of the parties with regard to assessment orders and the bills under challenge are guided by the judgment and order dated April 20, 2007. The writ petitioners are attempting a second attack to the same assessment orders on the basis of new bills being issued to them. They cannot be permitted to do so as the new bills are on the basis of the earlier orders of assessment.
In such circumstances, I find no merit in the present writ petition. WP No. 1021 of 2011 is dismissed, however, without any order as to costs.
The payments, if any, made by the writ petitioners pursuant to any order that may have been passed in the present writ petition will be given adjustment to by the Corporation authorities against its claims of property tax.
(DEBANGSU BASAK, J.) sg.