Calcutta High Court (Appellete Side)
The Kolkata Municipal Corporation vs Smt. Shibani Mukherjee on 5 April, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1 05-04-17 Item No. 1 AD C.O. 4078 of 2016 The Kolkata Municipal Corporation
-vs-
Smt. Shibani Mukherjee Mr. Alok Kumar Ghosh, Mr. Swapan Kumar Debnath ... for the petitioner.
Mr. Raghunath Chakraborty, Mr. M. Ahmed.
... for the opposite party Mr. Ghosh, learned Advocate, being assisted by Mr. Debnath, learned Advocate representing the petitioner is present. Mr. Chakraborty, learned Advocate, being assisted by Mr. Ahmed, learned Advocate representing the opposite party is also present.
Heard the learned Advocates of both sides.
The application under Article 227 of the Constitution of India has been directed assailing the order dated 27th January, 2015 passed by learned 1st Bench, Municipal Assessment Tribunal, the Kolkata Municipal Corporation in M.A. Appeal No. 2538 of 2007 (Smt. Shibani Mukherjee -vs- The Kolkata Municipal Corporation) arose out of an order dated 5th September, 2007 passed by the Hearing Officer-XI The Kolkata Municipal Corporation relating to fixation of Annual valuation in respect of the premises no. 25, Shyama Charan Mookherjee Street, 2nd floor, Flat, Kolkata-700 002 for the period from 3rd quarter of 2003-2004.
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Admittedly, the premises in question is a newly built building and the assessment in question was held for the first time.
Mr. Ghosh argued that the Assessing Officer, while assessing the valuation, had taken all pros and cons of the locality in question and fixed the rate of valuation for the purpose of tax payable to the Municipal Corporation by the Assessee @ Rs. 1.40 paise per sq.ft. per month then learned Tribunal committed wrong reducing the said rate payable @ 0.90 paise per sq.ft. per month. Mr. Ghosh criticized the impugned order, since the reducement in the assessed valuation was without any basis and reason as well. Therefore, Mr. Ghosh concluded his argument with prayer for setting aside such order of the learned Tribunal and to allow the revisional application or alternatively, the matter may be sent back to the Tribunal for re-hearing of the appeal.
Mr. Chakraborty at the very threshold per contra replied that the revisional application, itself, is not maintainable. He argued that since his client after assessment by the Assessing Officer in terms of Rule 16 of the Kolkata Municipal Corporation (Taxation) Rules, 1987 by depositing the assessed tax preferred the appeal and while after disposal of the appeal by the Tribunal on 27th January, 2015 when his client knocked the door of the Corporation authority for adjustment and re-fund from the amount so deposited in terms of the order of the Tribunal, the petitioner woke up from the slumber, and, with a view to further harass the opposite party, filed this belated revisional application without any satisfactory explanation. To justify the point of maintainability in view of filing of such belated application under Article 227 of the Constitution of India, 3 Mr. Chakraborty relied upon a decision of the Division Bench of this Court as held in the case of State of West Bengal & Ors. -vs- Borjora Ashar Alo & Ors. reported in (2017)1 CAL LT 274 (HC) and relied specially in paragraphs 14 and 15 of the said case.
He argued that in the text of application, save and except taking vague plea in the name of giving explanation, the belated application has been filed. It is further argued that though in the matter of filing application within writ jurisdiction as such there is no prescribed law of limitation but in the judicial pronouncement there are some embargo, if within reasonable period the writ court is not approached. In support of such contention, Mr. Chakraborty relied upon the case of Calcutta Electric Supply Corpn. Ltd. & Anr. -vs- Kalavanti Doshi Trust & Ors. reported in 2011(1) CHN (CAL) 182 and the case of Single Bench of this High Court delivered in the case of Parimal Kr. Das & Ors. -vs- Prasun Kr. Das; reported in 2004(2) CHN 465.
It is needless to reiterate that when the Tribunal had entertained the appeal and recorded the impugned final order on 27th January, 2015 it shall be deemed that the opposite party had complied Rule 16 of the Kolkata Municipal Corporation (Taxation) Rules, 1987 specially when there was no adverse indication in the order impugned, meaning thereby on the basis of the valuation as assessed by the Assessing Officer, the opposite party had deposited the Municipal tax @ Rs. 1.40 paise per sq.ft. per month with effect from the period as was directed.
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Appreciating the submission of Mr. Chakraborty that in reality there is no law of limitation prescribed in period putting embargo upon the writ court in the matter of entertaining, or otherwise, of any application if the writ court is approached by making inordinate delay, still the writ court is supposed to look after to render justice as far as practicable basing upon the principle of equity. The principle of equity must not be looked on one side, meaning thereby, it is desirable to be examined both sides as far as it would be practicable. Therefore, by virtue of any conduct of a party, a valuable right if is accrued in favour of other lawfully and legitimately, the same should not be robbed out by a court of equity at the instance of the other, if the party at fault failed to approach the writ court within reasonable time. The term reasonable time means to carry the sense of all reasonability, so that a man of ordinary prudence can understand and interpret to accept the same as a normal conduct.
For proper appreciation as to whether the petitioner in the matter of filing of this application assailing the impugned order had carried out that sense of reasonability, paragraphs 18 and 19 from the revisional application are set out hereunder :
"18. Your petitioner states that after passing of the impugned order dated 27th January, 2015 by the Municipal Assessment Tribunal, Kolkata Municipal Corporation, the records of the case was misplaced and could not be traced out due to rearrangement of the Department and also renovation of the Departmental rooms. As such the records could not be placed before the Higher Authorities to decide the course of action to be taken by the authorities and the concerned officer of the Kolkata Municipal Corporation diligently searched the Department to find out the records and to place the same before the Higher Authority to take decision in 5 respect of the impugned order of the Assessment Tribunal passed in MAA No. 2538 of 2007. Ultimately some papers of the case were traced out in or about 1st week of May, 2016 without any copy of the order dated 27th January, 2015 passed in MAA No. 2538 of 2007 and the Department took step to make an application for certified copy of the said order dated 27th January, 2015 before the Learned Assessment Tribunal on 16.05.2016 and the certified copy of the said order was ready and delivered on 11.08.2016.
19. Your petitioner states that after obtaining the certified copy of the said order, dated 27th January, 2015 the concerned department send the file to the Higher authority of the Kolkata Municipal Corporation for taking steps further in or about 18th August, 2016 and the authority decided that the order is to be challenged before the Hon'ble Court as such the file of the case was sent to the Law Department of the Kolkata Municipal Corporation for taking course of action in the matter and took some time and it was decided to file a Revisional Application before the Hon'ble Court at Calcutta. Thereafter the papers and documents along with the said order dated 27th January, 2015 was handed over to the Learned Advocate for Kolkata Municipal Corporation to file the instant Revisional Application before this Hon'ble Court. In the aforesaid facts and circumstances your petitioner could not be able to file the instant Revision Application earlier which is unintentional and beyond control of the petitioner".
In view of the above quoted text showing the alleged explanation if a man of ordinary prudence interprets the same then it reveals that the text is nothing but an exposure of making show of as an explanation for the sake of explanation without giving exposure of any sense of reasonability which can be accepted to grant any favour. In the sequence let me quote the departing portion from the impugned order which is set out hereunder.
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"Let a signed copy of this judgment be sent to the Ld. Municipal Commissioner for information under the provision of Rule-25 of the K.M.C. (Taxation) Rules, 1987".
The above quoted order clearly indicates communication of such order immediately to the Municipal Commissioner so that the result of the appeal would be known to it thenceforth. Therefore, the plea of the petitioner that the petitioner came to learn about the impugned order and started taking steps only after obtaining certified copy is held to be not a fair approach. This Division Bench of this Court in the case of State of West Bengal & Ors. -vs- Borjora Ashar Alo taking note of the lethargic attitude in the matter of court proceeding by a different State machinery had taken the opportunity not only to put some observations but also communicated the copy of the judgement to the Hon'ble the Chief Minister of the State so that the machineries, like the petitioner as well would remain vigilant in the matter of courts proceedings, if those machineries actually do want to proceed before the court assailing any order or action, so that by virtue of the said order or action the party on the other side in whose favour some valuable right had been accrued by that time may not be robbed by such belated proceeding preferred by the machinery like the petitioner who are equipped with full infrastructure to look after the court's proceeding. Any lethargic attitude in the name of time taking business due to movement of file from table to table should not be readily accepted. Paragraphs 14 and 15 from the case of State of West Bengal & Ors. -vs- Borjora Ashar Ali & Ors. (supra) accordingly set out in support of the observations made above. 7
"14. Therefore Mr. Mahapatra rightly put on record his objection as against the application for condonation of delay which suffers really from vagueness far to speak of giving sufficient causes to the satisfaction of the Court for its acceptance on taking to some extent lenient view when there is some procedural methods to be adopted by the State particularly in the matter of preferring appeal, although the laches on the part of the advocate stood to represent the State in not communicating the impugned order of the Court immediately after coming in the server is noticed to be unexplained laches. Further at the end when the certified copy as the alleged 2nd attempt was obtained on 22.9.2014 then delay in the matter of filing appeal on 27.11.2014 is not at all satisfactory. We have already pointed out that in the middle, save and except putting some dates of events in no way delay was explained as to for which cause or causes the intervening days were consumed, so that making departure from the principle of "equality before law" we could have taken some lenient view.
15. We are constrained to observe that the State machineries are bound to come out from such lethargic attitude in the matter of Court proceedings of which the State has a bulk share and the cases or appeals once admitted are being carried out by heaping pendency of course on the other hand, depriving the opponent, mostly the private individual from the right accrued, if any, by the order impugned. Upon such observations and the ratio of the cases discussed above being not applicable in this case, we refrained from giving unnecessary any extra latitude to the said appellant to enjoy of the unfettered liberty in the matter of preferring appeal by the state in accordance to their convenience or when they so chose to file remaining within its lethargic dimension".
With the application, however, no separate application has been accompanied proposing condonation of delay. Even if the alleged explanation offered in paragraphs 18 and 19 in the application under Article 227 of the Constitution of India be taken as granted as the so-called explanation but due to its vagueness and its lacking from all reasonability and fairness the said 8 explanation should not be accepted as satisfactory explanation for presentation of such a belated revisional application on 2nd November, 2016, though the order impugned was passed at the instance of the representatives of the petitioner on 27th January, 2015.
Nonetheless of the above observations let me test the merit of the application. It appears from the order impugned that two instances were presented showing probable rate of valuation before the Tribunal, of course one related to assessment of the first quarter of the year 1988-1989, where the rate assessed for ascertaining annual valuation was fixed as Re. 0.61 per sq.ft. per month, and, the other as was placed by the petitioner for the year 2003-2004 @ Rs. 1.10 per sq.ft. per month. Both the instances, as submitted by learned Advocates of both sides, though were of the same locality but were standing on the different road, the Tribunal held "the amount of A.V. impugned in both the referred judgments with the present appeal it will not be difficult to arrive at a conclusion that they are in the same locality.
Indeed, the demised flat is situated in a thickly populated area and well connected with the other parts of the Metropolitan City-Kolkata. That apart all K.M.C. amenities, as stated above, are available.
Keeping all these in mind and considering the submissions of both sides, we think it to be proper and reasonable to fix rent in respect of the demised flat @ Re. 0.90 per sq. ft per month w.e.f. 3/2003-2004".
During course of hearing on query of the Court, Mr. Ghosh, however, could not produce or satisfy the very basis on which the Assessing Officer had fixed up 9 the tax payable @ Rs. 1.40 per sq. ft per month. This Court also has no hesitation to observe that within the order of the Tribunal save and except comparing the instances offered before them, no other basis either was produced nor was considered on their own.
Be that as it may, since the impugned premises is the new building, and, the assessment has been made for the first time, and, it can be presumed well that at a period of an interval of 10 years or so as per the prescribed norms and rules there would be modification in the rate, and while the Tribunal upon hearing both sides and comparing the instances, whatever it was produced, had arrived at the conclusion reducing the rate of the tax payable @ Re 0.90 per sq. ft per month with effect from 3rd quarter of 2003-2004, and, it may be also that by this time the period of revision of such tax might had been intervened, in the decision-making process, this Court finds no latches as such to make interference with the impugned order by holding belated application as maintainable, since this Court failed to accept that there is any arguable merit.
Therefore, both on the point of maintainability as well as on merit, the revisional application stands dismissed affirming the order of the learned Tribunal passed on 27th January, 2015 in M.A Appeal No. 2538 of 2007. As such, the order of the Tribunal shall remain binding upon the parties, provided it reaches at the finality.
There will, however, be no order as to cost.
10Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Mir Dara Sheko, J.)