Calcutta High Court
Sahujain Charitable Society & Anr vs Kolkata Municipal Corporation & Ors on 14 March, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
APO No. 473 of 2007
WP No. 460 of 2004
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
SAHUJAIN CHARITABLE SOCIETY & ANR.
Versus
KOLKATA MUNICIPAL CORPORATION & ORS.
Mr. Abhrajit Mitra,
Mr. Sarbapriya Mukherjee, Advs.
...for the Appellants
Mr. Bimal Chatterjee, Sr. Adv.
Mr. Sandip De, Adv.
Mr. Anupam Das Adhikari, Adv.
...for K.M.C.
BEFORE:
The Hon'ble JUSTICE PRATAP KUMAR RAY
The Hon'ble JUSTICE MRINAL KANTI SINHA
Date : 14th March, 2011.
Pratap Kumar Ray, J. : Heard the learned Advocates
appearing for the parties.
Assailing the judgment and order dated 20th April, 2007
passed in W.P. No. 460 of 2004, this appeal has been preferred. The
impugned judgment and order reads such :
"The Court : In this writ petition the legality,
validity and/or correctness of the assessment of the annual
valuation of the basement, 11th, part of 12th and 13th to 16th floor of
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premises no. 8, Camac Street, Kolkata w.e.f. 4th quarter of 1984-85,
4th quarter 1990-91, 4th quarter of 1996-97 are under challenge on
various grounds.
The vires of the 2nd proviso to section 179(2)(d) of
the Kolkata Municipal Corporation Act, 1980 is also under challenge
in this writ petition.
However, in course of hearing of this writ
petition the petitioner has abandoned his claim regarding the
challenge relating to the vires of the said provision of the Kolkata
Municipal Corporation Act. As such, the petition is taken up for
consideration with regard to the remaining part of the challenge in
the writ petition. It is contended by Mr. Chowdhury, learned
Advocate appearing for the petitioner that no reasoned order was
passed by the concerned authority on the objection filed by the
petitioner to the proposed assessment of the annual valuation of the
portion of the said building in question. Rate cards were forwarded
to the petitioner intimating the annual valuation of the portion of the
said premises in question for the aforesaid periods.
Mr. Chowdhury further submits that in view of
the provision contained in section 188(3) of the Kolkata Municipal
Corporation Act, 1980, whenever objection is determined, the order
in this behalf is required to be recorded in the Register maintained
under sub-section 1 with that date and a copy of the order is
required to be suppplied within 30 days thereof to the person filing
the objection in such form or manner as may be prescribed. Mr.
Chowdhury further submits that unless copies of the said orders are
supplied to the petitioner the Municipal Authority cannot raise any
demand towards the rates and taxes of the flats in question on the
basis of such revised valuation. According to Mr. Chowdhury the
demand so made by the Municipal Authority which is impugned in
this writ petition cannot be retained on record as the Municipal
Authority failed to discharge its statutory duty regarding supply of
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the copy of the said orders in terms of the provision of sub-section 3
of Section 188 of the Kolkata Municipal Corporation Act.
Mr. Chowdhury further tries to impress upon
this Court about the other irregularities committed by the municipal
authority in the process of assessment of the annual valuation of the
portion of the premises in question. A copy of the objection which
was submitted by the petitioner against the impugned assessment
has been produced by Mr. Das Adhikary in Court today. On perusal
of the said objection this Court finds that the points which Mr.
Chowdhury is now trying to agitate before this Court do not find any
place in the said objection. As such this Court restricts its
consideration with regard to the non-compliance of the provision
under section 188(3) of the Kolkata Municipal Corporation Act only.
Mr. Das Adhikary also is unable to produce any evidence before this
Court to show that the copies of the order passed in connection with
the disputed assessments were forwarded to the petitioner. On
perusal of the record produced before this Court by Mr. Das
Adhikary this Court finds that speaking order was passed in
connection with all the aforesaid disputed assessments. The
representative of the petitioner also signed on the order sheets in
respect of all the said disputed assessments.
Mr. Chowdhury however, submits that since
those documents were not disclosed in the affidavits filed by the
Municipal authority he is unable to apprise this Court with regard to
those documents.
Be that as it may, fact remains that the copies of
the order passed by the concerned authority with regard to the
disputed assessment periods have not been supplied to the
petitioner in terms of the provisions as contained in section 188(3) of
the Kolkata Municipal Corporation Act. Unless the copies of the said
order are supplied to the petitioner, the petitioner cannot effectively
challenge the propriety and/or correctness of the said order in
appeal as provided under section 188(6) of the said Act.
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Mr. Das Adhikary also informs this Court that
the petitioner has already preferred appeals challenging the
propriety and/or correctness of the orders passed in connection with
the disputed assessment before the Municipal Assessment Tribunal
but since the statutory deposits were not deposited by the petitioner,
no date was fixed by the Tribunal for hearing of those appeals.
Mr. Chowdhury however, submits that the
orders passed in connection with the disputed assessment cannot be
challenged effectively unless copies of the said orders are supplied to
the petitioner.
I fully agree with the submissions of Mr.
Chowdhury to this effect that the petitioner cannot challenge the
correctness of the propriety of the said order in the appeal unless
copies of the orders are supplied to the petitioner. Under such
circumstances, this Court disposes of this writ petition by directing
the Municipal authority to supply copies of the orders of assessment
of the annual valuation of the premises in question for the aforesaid
disputed period, to the petitioner positively within a period of one
week from date.
Liberty is also given to the petitioner to amend
the grounds of challenge taken by him in the Memoramdum of
Appeal before the appellate tribunal. The appellate tribunal is also
directed to dispose of those appeals as expeditiously as possible and
positively within a period of eight weeks from the date of deposit of
the statutory deposits by the petitioner in terms of the provision
contained in 189(6) of the Kolkata Municipal Corporation Act. It is
made clear that all points regarding the challenge of the disputed
assessments are kept open to be decided by the appropriate
authority in accordance with law. The writ petition is thus disposed
of.
Let it be recorded that immediately after the
passing of this order, the copies of those orders duly certified by the
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Municipal authority are supplied by Mr. Das Adhikary to Mr.
Chowdhury in Court today.
Let an urgent certified copy of this order be given
to the parties, if applied for, upon compliance of requisite
formalities."
From the pleading of the writ application, it appears that
the writ petitioner/appellant was heard by the assessing officer and
objection was filed against the notice of intermediary revision of annual
valuation. In the writ application, the only ground was taken that copy of
the order of assessment relating to impugned bills as raised was not
supplied to the petitioner and as such petitioner is not in a position to
prefer statutory appeal. Before the learned Trial Judge argument was
confined only on that point and no other points were placed or argued. The
learned Trial Judge, accordingly, passed an order directing the Corporation
to supply the assessment order and granted liberty to the appellants to
prefer a statutory appeal under the Kolkata Municipal Corporation Act,
1980. Now before us, a new point has been thrust by the appellants that
some portion of premises is occupied by different tenants and some
portions have been transferred, those persons were required to be heard
prior to assessing the annual valuation and thereafter separate assessment
ought to have been done fixing liability pay tax by different category of
persons. Reliance has been placed to agitate this point on the judgment
delivered by the Apex Court passed in the case of Calcutta Gujarat
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Education Society -versus Calcutta Municipal Corporation & Others reported
in (2003) 10 SCC 533, more particularly paragraph-51 of the said Report.
Since in the writ application, there was no pleading and no foundational
ground on that point and in the appeal also, no prayer is made for
amendment of the writ application to make the said fact as a foundational
fact of the writ application and also no application has been filed seeking
amendment of the Memorandum of Appeal on the factual foundation of
the amended portion of the writ application after taking necessary leave to
amend the writ application, we are of the view that this point cannot be
considered by us in this appeal now.
It is settled legal position of law that Court will pass
necessary order on the basis of the pleading. As there was no pleading on
the new point as taken, we are not inclined to consider that point.
However, it is open to them to take that point by filing proper application
or by filing statutory appeal in accordance with law as will be considered
by them fit and proper.
Mr. Bimal Chatterjee, learned Senior Advocate appearing
for the Respondent-Corporation, submitted that having regard to the
observation made in paragraph-52 of the said Report [ (2003) 10 SCC 573 ], the judgment is prospective and not retrospective. In the instant case, the assessment was made on 15th November, 1999. The judgment of the 7 Apex Court as referred to was delivered on 25th August, 2003. With that submission, it is the further contention of Mr. Chatterjee, learned Senior Advocate appearing for the Respondent-Corporation, that the judgment has no applicability. Be that as it may, as we have already held that we are not taking note of that legal point due to lack of foundational ground in the writ application, the question is kept open for decision, as and when that will arise for decision by Court.
Having regard to the admitted position and the pleading as made in the writ application, we are not finding any illegality to quash the impugned judgment passed by the learned Trial Judge.
The appeal, accordingly, stands dismissed. No order as to costs.
All parties concerned are to act on a signed xerox copy of this order on the usual undertakings.
(PRATAP KUMAR RAY, J.) I agree.
(MRINAL KANTI SINHA, J.) TR/rnc.
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