Calcutta High Court
Calcutta Gujarati Education Society & ... vs The Kolkata Municipal Corporation & Ors on 20 August, 2010
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray, Harish Tandon
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
G. A. No.1205 of 2010
A.P.O. No.131 of 2010
W. P. No.742 of 2009
Calcutta Gujarati Education Society & Anr.
Versus
The Kolkata Municipal Corporation & Ors.
G. A. No.977 of 2010
A.P.O. No.313 of 2010
W. P. No.742 of 2009
The Kolkata Municipal Corporation & Ors.
Versus
Calcutta Gujarati Education Society & Anr.
Mr. Samit Talukdar, Sr. Adv. with
Mr. Suman Dutta, Adv.
Mr. Sakya Sen, Adv.
Mr. Suvadeep Sen, Adv.
..for the appellant in A.P.O. No.131 of 2010
and respondent in A.P.O. No.313 of 2010
Mr. A. K. Das Adhikari, Sr. Adv. with Mr. Sandip De, Adv.
..for the appellant in A.P.O. No.313 of 2010 and respondent in A.P.O. No.131 of 2010 BEFORE :
The Hon'ble Justice Pratap Kumar Ray And The Hon'ble Justice Harish Tandon __________________________________________________________________ Date: 20th August, 2010 __________________________________________________________________ Pratap Kumar Ray, J. (Oral) / Heard the learned Advocates appearing for the parties.2
Assailing the letter of intimation dated 29th June, 2009 issued by the Assessment-Collection Department of Kolkata Municipal Corporation referring a dues of Rs.83,974/- being the dues for arrear property tax for 2nd quarter of 1986, a writ application was moved registered as W. P. No.742 of 2009. The Learned Trial Judge passed a judgment and order on 12th February, 2010 by allowing the writ application partly directing that only an amount of Rs.4,199/- is payable together with interest and penalty under the law.
The writ petitioners have preferred an appeal assailing the said judgment and order dated 12th February, 2010, which has been registered as A.P.O. No.131 of 2010. The Kolkata Municipal Corporation has also preferred an appeal, which has been registered as A.P.O. No.313 of 2010. The impugned order of the Learned Trial Judge reads such:
"The Court : The subject matter of challenge in this writ petition is a letter of intimation dated 29th June, 2009 by which rates and taxes for the 2nd Quarter of 1986 amounting to Rs.83,974/- was claimed by the K.M.C. In addition thereto, interest amounting to Rs.2,99,787.18P and penalty amounting to Rs.12,596.1P were also claimed. They have also indicated deposit, to the credit of the aforesaid claim, of a sum of Rs.70,568/- which according to them is held in a suspense account.
Mr.Sen, learned Advocate appearing for the writ petitioner, drew my attention to the original bill for the 2nd Quarter of 1986 appearing at 3 page 34 of the writ petition. The net amount payable thereunder was Rs.79,970/-. The aforesaid sum it appears was paid by the petitioner by a cheque dated 13th September, 1986. The cheque was, however, dishonored upon presentation for payment. The petitioner in these circumstances on 26th November, 1986 replaced the dishonored cheque by a pay order drawn on Dena Bank in favour of the Corporation for an equivalent sum of Rs.79,970/-. Mr.Sen, therefore, contended that the letter of intimation seeking to put forward a claim for the rates and taxes allegedly due for the 2nd Quarter of 1986 is incorrect. He further submitted that when the principal sum is not due, then there is no question of there being anything due on account of interest or penalty.
Mr.Das Adhikari, learned senior Advocate appearing for the Kolkata Municipal Corporation, submitted that the pay order for a sum of Rs.79,970/- submitted by the writ petitioner was kept in a suspense account as would appear from a chart disclosed by the Corporation by way of an annexure to the affidavit affirmed by Smt.Rakhi Ganguly on 1st February, 2010. He submitted that the aforesaid sum of Rs.79,970/- has been used by the Corporation in paying up the earlier dues of the petitioner as indicated in the aforesaid chart. He added that long after the aforesaid deposit, a waiver scheme was introduced and the petitioner has obtained credit for the said sum of Rs.79,970/- as would appear from annexure P-4 to the writ petition. It is, therefore, no longer open to the writ petitioner to contend that the rates and taxes for the 2nd Quarter of 1986 have already been paid. The last contention advanced by Mr.Das Adhikari was that in any event the payment of the sum of Rs.79,970/- was not for the gross amount of the bill. The acknowledgement issued on 26th November, 1986 would make it clear that the dishonored cheque was replaced long after the due date. Therefore, the petitioner was not entitled to the benefit of the rebate and the petitioner did not make payment of the full amount which should have been done. Therefore, the following questions arise for determination:4
(a) Whether the KMC was entitled to appropriate the payment of a sum of Rs.79,970/- towards the previous dues of the petitioner?
(b) Whether the claim of the Corporation appearing from the letter of intimation dated 29th June, 2009 is legal in view of the submission made by Mr.Das Adhikari recorded hereinabove?
It is not in dispute that the cheque for Rs.79,970/- was made over by the petitioner towards payment for the dues of the 2nd Quarter of 1986 as would appear from annexure P-1 to the writ petition. The cheque was dishonored and was replaced by a pay order as would appear from annexure P-2 to the writ petition. In such a case the provision of law contained in Section 59 of the Contract Act would become squarely applicable which provides as follows :-
"S.59. Application of payment where debt to be discharged is indicated :- Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying, that the payment is to be applied to the discharge of some particular debt, the payment, if accepted, must be applied accordingly."
It was, therefore, not open to the KMC to apply the proceeds of the pay order for a sum of Rs.79,970/- towards discharge of any previous debt due by the petitioner. Therefore, the first question is answered in the negative. In so far as the legality of the letter of intimation, a copy whereof is annexure P-10 to the writ petition is concerned, I am inclined to hold that this demand is equally illegal for the following reasons :
(a) The dues of the 2nd Quarter of 1986 have already been paid as would appear from the answer to the first issue;
(b) The letter of intimation itself goes to show that the Corporation is holding a sum of Rs.70,568/- under 5 suspense account. Therefore, this militates against the submissions advanced by Mr.Das Adhikari;
(c) There is no evidence before me to show that the chart disclosed by way of an annexure to the affidavit of Smt.Rakhi Ganguly affirmed on 1st February, 2010 was made available to the writ petitioner at any stage at the time of allowing him to avail himself of the opportunity of the waiver scheme;
(d) There is no evidence available on the record to indicate that the petitioner was made aware that credit for the aforesaid sum of Rs.79,970/- was given to him at the time of calculating the dues of the K.M.C. as a prerequisite for availing the benefit of the waiver scheme. The fact that K.M.C. has itself indicated in the impugned letter of intimation that a sum of Rs.70,568/- paid by the petitioner is held in a suspense account furnishes further assurance to the Court that the contention of Mr. Das Adhikary is factually incorrect.
I am as such inclined to hold that the claim appearing in the letter of intimation dated 29th June, 2009 is illegal which is therefore, set aside. This shall not, however, prevent the KMC from raising demand for a sum of Rs.(84,169-79,970)= 4,199/- together with interest and penalty as may be permissible under the law. Parties shall bear their own costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities."
It is the contention of the appellant-Corporation in their appeal that the property tax of 2nd quarter of 1986 was initially paid by cheque which was dishonoured and after expiry of time 6 limit when the rebate could not be granted, the property tax, as earlier tendered by dishonoured cheque, was deposited by Pay Order. As the said amount was not the actual bill amount with reference to the tax bill of 2nd quarter of 1986 due to the reason that the amount as paid by Pay Order was not inclusive of the amount of the rebate and the interest, said amount was kept in suspense account. The property tax of 2nd quarter of 1986, accordingly, remained as unpaid in the accounts of the Corporation. Subsequently, Corporation by letter dated 29th November, 2006 made an offer of one time payment of arrear property tax by a bill amounting to Rs.1,04,01,356/- showing the arrear dues by adjusting the all payments on account of property tax which were kept in suspense account. The letter of Corporation reads such:
"To, Sri P. K. Popet, 29, Pollock Street, Kolkata - 700 001.
Re: Payment of O/s. amount Rs.1,04,01,356/- (after waivery 99 P.C. Waiver of penalty deducting S/A deposit & pay at one shot by 30.11.06. "Sir, It is requested from your representative that it is difficult for you to pay referred o/s due there bankers cheque. But it is possible to pay if it is deposited by A/c payee cheque in favour of K.M.C. We understand your position and state that we are ready to accept such cheque but it should be paid by 2 P.M. on 30/4/06, otherwise no waiving of penalty will be considered further.7
Thanking you,"
In response to the said letter, the writ petitioners agreed to pay the said amount of Rs.1,04,01,356/- by adjustment of the deposit as kept in suspense account. The belated deposit of some portion of property tax of 2nd quarter of 1986 which was kept in suspense account, accordingly, was adjusted with reference to the bills of arrear property tax figured after deducting the amounts kept in suspense account, as Rs.1,04,01,356/-.
As per our direction, a list has been produced showing the periods for which the arrear property tax was adjusted by the said amount. On perusal of the same, it appears that the payment as made on account of 2nd quarter of 1986 property tax was adjusted. The writ petitioners also agreed to such adjustment as it appears from the letter dated 29th December, 2006 which reads such:
"To The Assessor/Collector (North) The Calcutta Municipal Corporation, 5, S. N. Banerjee Road, KOLKATA - 700 013 Re : Premises No.29, Pollock Street, Kolkata-700001 Assessee No. 11-045-39-00-15-0 Ref : Your letter AC/N/DIV-XV/597/06-07 dated 29-11-06.
Dear Sir, We are in receipt of your above letter asking us to pay Rs.1,04,01,356/- in the suspense account to clear all out standing dues upto date. Xerox copy of the said letter is enclosed herewith for your honours kind perusal. You are aware that we had duly deposited with the Municipal Corporation a cheque drawn on the Dena Bank, Brabourne Road Branch by Cheque No.895704 dated 29.11.06 on 30.11.06. Your honour is requested to adjust the said amount of the Cheque of Rs.1,04,01,356/- (Rupees One Crore Four Lakhs One 8 Thousand three Hundred Fifty-six only) with the outstanding amount of Rs.1,04,01,356/- and oblige.
Hoping for your early action in the matter."
It is the case of the writ petitioners-appellants in their appeal that no amount is payable so far as the arrear property tax for 2nd quarter of 1986 is concerned, in view of the fact that the property tax for 2nd quarter of 1986 was already deposited which was kept in suspense account by Corporation and that amount cannot be adjusted with reference to the earlier arrear property tax. The Learned Trial Judge accepted this contention applying Section 59 of the Contract Act and thereby came to a finding that the amount which was tendered as property tax for 2nd quarter of 1986, even if such tendering was belatedly done and not the full amount of bill, but the said amount could not be adjusted for arrear property tax of earlier period, save and except the particular bill for which the said amount was paid.
The appellants have further contended that the Corporation has intimated them by letter of intimation dated 15th February, 2007 that an amount of Rs.7,568/- was lying in the suspense account. This amount was not even adjusted with reference to the property tax of 2nd quarter of 1986, but a demand made adding the penalty and interest thereof.
9
The writ petitioners-appellants challenged the provision of imposition of interest and penalty as ultra vires. This challenge, however, had not pressed as it appears from the judgment under appeal. From the impugned judgment, it appears that there is no whisper about the vires issue, as such, it would be deemed that this point had not pressed by the learned Advocate before the Learned Trial Judge at the time of hearing. Before us, the writ petitioners-appellants, however, intended to submit that though the vires issue was urged before the learned Trial Judge but the Hon'ble Court below had not recorded anything about that.
We are afraid to this submission. It is a settled legal proposition of law that whatever is observed in the order sheet by any Court of Law that should be considered as right state of affairs and any contrary submission which is not exclusively reflected from the order itself could not be considered even if it is submitted by filing an affidavit by the litigant in the higher forum. If there is any mistake on the part of any presiding officer of court not to record any submission of ld. Advocate on any issue properly, the remedy is not to challenge the same by an affidavit or by oral submission to the higher forum. Remedy lies to approach the concerned court by filing appropriate application by taking all those 10 points. This is a settled legal proposition of law. Reliance may be placed in the case of Somasundaram Chetty vs. Subramanian Chetty reported in AIR 1926 PC 136 where Lord Atkinson observed "We are bound to accept the statement of Judges recorded in their judgments as to what, transpired in Court. We cannot allow the statement of Judges to be contradicted by statement at the Bar or by affidavit and by other evidence. If the Judges say in their judgments that something was done, said or admitted before them, that has to be the last word on the subject and remedy to call attention of the Court on such issue". The same view was expressed by Lord Buckmaster in the case of Madhu Sudan Chowdhuri vs. Chandrabati Chowdhrain reported in 1921 CWN
897. Sir Asutosh Mukherjee, J. also considered this issue in the case of Sarat Chandra vs. Bibhabati Dasi reported in AIR 1922 Cal 584 by observing, inter aila, that in such type of case litigant is to apply a Judge without delay praying rectification or review of the judgment. The other Bench of Calcutta High Court took same view in the case of King Emperor vs. Birendra Kumar reported in AIR 1924 Cal 257. The similar view echoed by the Apex Court in different times in different cases namely, in the cases of State of Maharashtra vs. Ramdas Shrinivas Nayek reported in AIR 1982 SC 11 1249, Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. reported in 2003(2) SCC 111, Panam Singh & Ors. vs. State of Punjab & Ors. reported in 1985 SC 221, D. P. Chadha vs. Triyugi Narain Mishra & Ors. reported in (2001) 2 SCC 221, a three Judges Bench, Guruvayoor Devaswom managing Committee & Anr. Vs. C.K. Rajan & Ors. reported in (2003) 7 SCC 546, a three Judges Bench, Central Bank of India vs. Vrajlal Kapurchand Gandhi & Anr. Reported in (2003) 6 SCC 573, Shankar D. Mandal & Ors. vs. State of Bihar & Ors. reported in (2003) 9 SCC 519.
In the case of Mount Carmel School Society vs. Delhi Development Authority reported in (2008) 2 SCC 141, the Apex Court held that if an issue taken before the Learned Single Judge but was not dealt with, remedy available is to approach that Court by filing an application for review before the said Judge. The relevant paragraphs 15 and 16 of the said Judgment reads such:
"15. No argument also appears to have been advanced in this behalf before the learned Single Judge. The memo of appeal of the appellant was not supported by any affidavit affirmed either by one of its authorised representatives who was present in Court or by the advocate appearing on its behalf, stating that the contention in regard to the discriminatory treatment was raised before the learned Single Judge but was not dealt with.12
16. A Judge's record, as is well known, must be accepted as correct. The appellant, thus, could have filed an application for review before the learned Single Judge. The same was not done."
The said judgment of Mount Carmel School Society (supra) is clearly applicable in this case. The writ petitioner appellant has intended to argue that the vires issue though urged before the Learned Trial Judge but no finding to that effect was recorded by the ld. Trial Judge. We cannot accept such plea by oral submission of the learned Advocate for the appellant taking note of above discussed settled legal position.
Before us a new point has been taken orally by the writ petitioner/appellant that the property tax which is payable by the occupier under the old provision of the Act namely, the Calcutta Municipal Act, 1951 was placed in the shoulder of the owner concerned, writ petitioner and thereby the said amount was included in the total amount of 1 crore 4 lakhs and odd as mentioned above. It is contended that the same is not permissible relying upon the provision of Section 191 of the said Act. Section 191 of the said Act reads such :
"191. Payment of consolidated rate. - One-half of the consolidated rate shall be payable by the owners of the lands and buildings and the other half by the occupiers thereof. The payment shall be made in quarterly instalments and the 13 quarters shall be taken to commence on the first day of April, the first day of July, the first day of October and the first day of January. The instalments shall be payable on or before the fifteenth day of May, the fifteenth day of August, the fifteenth day of November and the fifteenth day of February, respectively, for such quarters."
Considering the contention of the respective parties, namely, the learned Advocate for the Corporation as well as the learned Advocate for the writ petitioner, it appears before us that a dispute has been raised on factual determination and identification of the amount as is payable by the writ petitioner under the provisions of law namely, the old Act and the present Act. It is settled legal proposition of law that if any factual dispute is raised in a Writ Court on a particular issue, the Writ Court will be slow to interfere on that issue by adjudicating the factual matrix. It is not the function of the Writ Court to decide any disputed question of fact. If the facts are admitted, the Writ Court very much can decide the issue but when the fact is disputed, Writ Court seldom exercises the power which however does not mean that Writ Court has no jurisdiction to decide.
It is the settled proposition of law that the writ proceedings is finally adjudicated on affidavit evidence. This point has been considered in the case in Barium Chemicals Ltd. vs. Company Law 14 Board reported in AIR 1967 SC 295, a judgment of Constitution Bench wherein the Court held that the writ proceeding is finally decided on the basis of the affidavit evidence. A civil suit is decided on the basis of trial on evidence and Writ Courts decide the issue on affidavit evidence. Writ Court will not interfere on disputed facts and will remand the matter back to the appropriate authority. In the instant case it appears further that no positive demand made inviting attention of the Kolkata Municipal Corporation about payments of arrear property tax for the period namely, second quarter of 1986. In absence of any such demand and refusal to adjudicate that point by the concerned authority, we are of the view that the writ application was not maintainable. The writ proceeding is for judicial review of the action and inaction of the authorities concerned. Unless a positive demand is made pointing out the facts as are required to be determined, naturally no foundational ground could be made for filing the writ application straightway. On that score we are of the view that this writ application was not maintainable in the High Court at Calcutta as the writ petitioner did not file any demand justice notice by pointing out all legal question and factual matrix to the authority concerned for their remedy. Learned Advocate for the writ petitioner/appellant however 15 intended to satisfy us on this point by referring the letter dated 22nd October, 2008. The said letter reads such :
"To The Assistant Assessor/Collector (North) The Kolkata Municipal Corporation, 5, S.N. Banerjee Road, Kolkata - 13 Sub : No outstanding Certificate Case No. 71701 dated 13-3-08 Re : Premises No. 29, Pollock Street, Kol-1 ASSESSEE No. 110453900150 Dear Sir, Please refer to our application for grant of a No Outstanding Certificate regarding taxes against the above premises and our Case No. 71701 dated 13-3-2008. Considerable time has passed and we are yet to get the Certificate. All bills are paid upto date and there is no outstanding. You are requested to expedite the delivery of the Certificate and oblige.
Thanking you"
On a bare reading of the said letter it appears that no point was taken on the said letter seeking remedy on the issue concerned as has been urged in the writ application as well as before us.
Having regard to the aforesaid factual issues, we are of the view that the writ petitioner ought to have approached the Corporation by filing a detail demand justice notice disclosing legal questions and factual points for adjudication and thereafter in the event of failure of the Corporation to pay any heed, they could have approached the Writ Court for appropriate remedy thereon, of 16 course by setting up the case of judicial review as permissible under the law.
Having regard to the aforesaid findings, we are of the view that the learned Trial Judge was not correct to express the view about the applicability of Section 59 of the Contract Act with reference to the arrear property tax and its demand are concerned.
Having regard to our discussion above, the writ was not maintainable for the following reasons :-
1)That no demand justice notice was served in the Sense which could be considered as a proper demand justice notice.
2)That a disputed question of fact has been raised by the parties concerned in the writ application for adjudication.
Hence, we are holding that the writ application is not maintainable. As such the impugned order stands set aside and quashed. The writ application also stands dismissed on the ground of maintainability. However, dismissal of the writ application will not debar the writ petitioner to approach the Chief Manager ( Revenue) a delegatee of Municipal Commissioner of Kolkata Municipal Corporation to decide the question as raised in the writ 17 application by filing appropriate representation on taking all points as to be permissible under the law.
Both appeals stand disposed of with the aforesaid findings. It is made clear that the writ petitioner would be at liberty to take all points including the rate of interest, imposition of penalty and all other factual points and we have not decided or adjudicated any point as writ application is not maintainable and it is rejected only on that ground.
Urgent certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
( Pratap Kumar Ray, J. ) I agree ( Harish Tandon, J. ) AKGoswami/TR/