Calcutta High Court (Appellete Side)
Sri Monoranjan Sarkar vs Kolkata Municipal Corporation & Ors on 8 October, 2013
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 5848(W) of 2011
Sri Monoranjan Sarkar
Vs.
Kolkata Municipal Corporation & Ors.
For the petitioner : Mr. Raghunath Chakraborty, Advocate
Mr. Mahaboob Alam, Advocate
For the K. M. C. : Mr. Biswajit Mukherjee, Advocate
Ms. Tanusree Dasgupta, Advocate
Heard on : 13.06.2013
Judgement on : 08.10.2013
Sambuddha Chakrabarti, J.:
By this writ petition the petitioner has inter alia prayed for a writ in the nature of Mandamus commanding the respondents to set aside the order dated November 3, 2009 passed by the Hearing Officer with regard to the determination of annual valuation of the concerned premises and for other reliefs.
The case of the petitioner inter alia is that he purchased the property being 75, Pataldanga Street, Kolkata - 700 009.
Thereafter, he had received two notices from the Kolkata Municipal Corporation (KMC, for short), i.e., the respondent no. 1 under Sections 184(3) and 184(4) of the Kolkata Municipal Corporation Act, 1980 (the Act, for short) for the assessment periods with effect from 4/2006-07 and 4/2007-08. The petitioner submitted his detailed objection to the assessing officer. The Hearing Officer passed an order dated November 3, 2009 which has been assailed in the present writ petition. The petitioner alleges that although no copy of objection docket indicating the basis of the order was served upon the petitioner only the rate cards were issued on the same date showing the annual valuation being fixed at Rs. 52,600/- for the period 4/2006-07 and Rs. 54,100/- for the period 4/2007-08.
The petitioner has assailed the said rate card on various grounds. According to him the objection docket upon which the order of the Hearing Officer was recorded was not supplied to the petitioner and no copy of the Hearing Officer's order has also been supplied to him. The petitioner has made a further grievance that the KMC had violated Section 186 of the Act by issuing the hearing notices to the petitioner only but not upon the tenants and as such the tenants could not make any representation.
The petitioner not being satisfied with the annual valuation filed an application before the Lok Adalat of the KMC in December, 2009 but the parties had failed to arrive at an amicable settlement and, therefore, by an order dated April 17, 2010 the said petition was dropped. Therefore, the petitioner has filed this petition in the year 2011.
The respondent Corporation has not filed any affidavit controverting the allegations made by the petitioner.
However, at the hearing of this application the learned advocate for the respondents has taken a point that the writ petition should not be entertained as the petitioner has not availed himself of the remedy of filing an appeal as provided in the Act. He has referred to the case of State of Punjab and Others -Vs.- Gurdeb Singh, Ashok Kumar, reported in AIR 1991 SC 2219 wherein the Supreme Court had approvingly quoted a passage from Prof. Wade's Administrative Law and observed that it will be clear that the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order passed is inoperative and not binding upon him. He must approach the court within the prescribed period of limitation. If the statutory time limit expires the court cannot give the declaration sought for.
Again in the case of Calcutta Electric Supply Corporation Limited and Another -Vs.- Kalavanti Doshi Trust and Others, reported in 2011(1) CHN (Cal) 182 a division bench of this court (to which I was a party) held that the writ application should not have been entertained at all in view of the fact that equally efficacious alternative remedy prescribed under law had become time barred and there was no provision of even condonation of delay for preferring any appeal against the order concerned. It was further held that a writ court should not by invoking the jurisdiction under Article 226 of the Constitution of India revive a barred remedy.
Based on these two judgements the learned advocate for the Corporation submitted that since the petitioner had filed the writ petition in 2011 challenging an order of 2009 the claim became barred and as such the writ jurisdiction may not be invoked.
Mr. Raghunath Chakraborty, the learned advocate for the petitioner, submits that the authority concerned had not supplied any copy of the order and it is necessary that the appeal is to be accompanied by a copy of the order impugned. Therefore, they could not file any appeal. Otherwise, Mr. Chakraborty submits, the petitioner had even filed an application before the Lok Adalat of the Corporation for the redressal of the grievance.
It may be mentioned that the petitioner had also taken this point in the petition that the objection docket upon which the order of the Hearing Officer was recorded was not supplied to him and the respondents acted in violation of the statute by not serving a copy of the Hearing Officer's order/ objection docket upon the petitioner within the stipulated period of 30 days as laid down in Section 188(3) of the Act. Mr. Chakraborty submitted that even till date such copy had not been supplied to the petitioner.
Section 188(3) of the Act says that when an objection has been determined the order in this behalf shall be recorded in the register maintained and a copy of the order shall be supplied to the person filing the objection within 30 days thereof in such form and manner as may be prescribed.
Again under Section 189(5) of the Act the time for filing appeal by an aggrieved objector is 45 days from the date of service of a copy of the order under Section 188. Therefore, the period of limitation shall begin from the date of service or receipt of the order passed under Section 188 of the Act and by virtue of Section 189(7) the provisions of Part II and Part III of the Limitation Act relating to appeal applies to every appeal preferred under this provision. In substance this means that Section 5 of the Limitation Act shall also apply before the Municipal Assessment Tribunal. Therefore, the delay in filing the appeal may also be condoned.
That by not supplying a copy of the order the respondents cannot take away the right to file an appeal which has been statutorily conferred upon the petitioner.
Since the Act provides for an efficacious remedy and since the writ petitioner could not file any appeal only because of the failure on the part of the respondents to supply a copy of the order which they are statutorily required to send to the objector this Court is of the view that the petitioner should be given an opportunity to file an appeal.
It has been decided in Turner Morrison & Co. Ltd. And Another
-Vs- State of West Bengal and others, reported in (2007)1 Cal LT 505 (HC) that it is the mandate of the legislation upon the Corporation to provide for a copy of the order passed by the Hearing Officer to the objector, so long such communication is not made it would not be proper for the Corporation to raise supplementary bill and compel the objector to pay the same without exercising his right under the statute to have an appeal preferred before the Tribunal. This court further held that the Corporation would be free to held supplementary bill simultaneously with the communication of the order of the Hearing Officer.
In such view of it, I dispose of this petition by directing the respondents to supply a copy of the order to the petitioner within two weeks from the date of the communication of the order and upon such order being served upon the petitioner the petitioner will be at liberty to file an appeal before the appropriate forum after complying with the procedural requirements as laid down in the relevant provisions of law. Till the time for filing the appeal does not run out the bills raised by the Corporation pursuant to the revised annual valuation shall remain stayed.
The writ petition is disposed of.
There shall, however, be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee/C. Mondal