Calcutta High Court
Smt. Anima Basu & Another vs The Kolkata Municipal Corporation & ... on 30 January, 2009
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P No. 1440 of 2005
Smt. Anima Basu & Another.
Vs.
The Kolkata Municipal Corporation & Others.
For the writ petitioners: Mr. Aninda Mitra,
Mr. Ashoke Kumar Das Adhikari.
For the Respondents: Mr. Aloke Kumar Ghosh.
Judgment on: 30.01.2009 S. P. Talukdar, J.: Challenging the purported orders of assessment of Annual Valuation passed on 27th May, 2005 fixing the sum at Rs.87, 500/- for the 4th quarter 1989-1990 and at Rs.93, 500/- for the period 4th quarter1993- 1994 in respect of the premises No.1A, Madhav Chatterjee Street, the petitioners filed the instant application under Article 226 of the Constitution.
The facts of the case are: -
The petitioners purchased the premises being No.1A, Madhab Chatterjee Street, Kolkata-700 020 from Sri Labh Singh Khatra on 17th July, 1987. On 28th October, 1992, notice under Section 184(4) of the Calcutta Municipal Corporation Act, 1980 was issued by the respondents-authorities proposing assessment of the annual valuation of the said premises at Rs.23, 630/- from 4th quarter 1989-1990 onward. The petitioners filed their objection against such proposed valuation. The Hearing Officer by an order dated 19th November, 1992 reduced the said amount to Rs.15,660/- with effect from 4th quarter 1989-1990. Respondents-authorities proposed to assess the annual valuation of the said premises for 4th quarter 1993-1994. The petitioners filed their objection. By an order dated 13th February, 1995, Hearing Officer fixed the annual valuation at Rs.16, 090/- with effect from 4th quarter 1993-1994.
On 13th March, 1997 the petitioners received a hearing notice with regard to an alleged complaint against the valuation in respect of the premises. The petitioners through their advocate sent a reply on 19th March, 1997 and asked for details of the alleged complaint. This was followed by submitting a representation on 2nd April, 1997, 10th April, 1997 and then, 17th April, 1997. On 3rd July, 1997 the Assistant Assessor, Division XXV issued a notice informing the petitioners that their request for revision of assessment would be considered by the Deputy Municipal Commissioner (Revenue Headquarters). On 29th July, 1997 the petitioners through their advocate informed that they had not made any application for review. The petitioners, however, received two notices dated 22nd March, 1999 issued by respondent No.4 thereby proposing assessment of annual valuation of the said premises. The petitioners filed a writ petition being No.928 of 1999 challenging the said notices. On 20th July, 2004, the said writ petition was dismissed with a direction that the Hearing Officer shall decide the matter pursuant to the notices issued giving the petitioners an opportunity of hearing. The petitioners preferred an appeal against the said order of the learned Single Bench. The learned Division Bench by order dated 8th March, 2005 disposed of the same. On 18th April, 2005 the petitioners submitted two letters requesting the Municipal Authorities to supply a copy of the purported order containing the details and reasons for revoking the earlier valuation. On 2nd May, 2005, the petitioners wrote letters thereby raising objection to the proposed valuation and repeating the earlier request for furnishing details. On 13th May, 2005 the matter was taken up for hearing and the Hearing Officer by order dated 27th May, 2005 fixed the annual valuation at Rs.87, 500/- with effect from 4th quarter 1989-1990 and Rs.93, 500/- with effect from 1993-1994. The petitioners, thus, were left with no option but to seek redress before this court.
The respondent-authorities contested the case by filing affidavit-in- opposition wherein all the material allegations made by the writ petitioners had been denied. Apart from raising dispute regarding maintainability of the instant writ petition, it was alleged that the writ petitioners in connivance with some employees of the Corporation managed to get the premises in question assessed for fixation of annual valuation on the basis of fictitious purchase of the premises at Rs.3, 50,000/- in stead of actual purchase price of Rs.35, 00.000/-. A complaint was received in this regard on 28th January, 1997. On receipt of the same, the Deputy Municipal Commissioner (Revenue Headquarters) directed the Assistant Collector, South to enquire into the matter either by himself or by a trusted official. Disciplinary proceeding was initiated against the Inspector who acted in connivance with the petitioners. The petitioners were asked to appear on 14th March, 1997 in the chamber of D.M.C. (Revenue Headquarters) along with a certified copy of the Deed. Vide notice dated 13th March, 1997, the petitioners were also called upon to appear for hearing under Section 192 of the C.M.C. Act, 1980 pursuant to the allegations made by the complainant. The petitioners did not turn up and were given a further opportunity and were asked to appear on 2nd April, 1997. The learned Advocate for the petitioners sought for adjournment and hearing of the matter was, thus, adjourned to 17.4.1997. It was thereafter shifted to 15.5.1997. The writ petitioners refused to accept the hearing notice. The matter was then again adjourned to 31st July, 1997. The petitioners were represented by their learned Advocate Mr. G.S.Dhole, who filed an application seeking adjournment. The petitioners were requested to produce either original or the certified copy of the Deed in question on the basis of which she applied for mutation under Section 183 of the C.M.C. Act, 1980. The matter was again adjourned to 21st August, 1997. Subsequently, on receipt of the certified copy of the Deed, it was found that the consideration money paid for purchase of the premises was Rs.35, 00,000/-. Accordingly, the earlier valuation was cancelled and proposal was made for revised valuation of the property in consideration of the aforesaid value of Rs.35, 00,000/- and also in consideration of the market value of the land then prevailing at the time of transfer of the property in question.
In terms of the direction of the D.M.C. (Revenue Headquarters) dated 21st August, 1997, a proposal for revaluation process on 22nd September, 1997 under Section 184 of the C.M.C. Act, 1980 was served upon the petitioners with a proposed annual valuation of Rs.2, 62,500/- with effect from 4th quarter 1989-1990 and Rs.2, 80,010/- with effect from 4th quarter 1993-1994. The petitioners moved writ application against the same. The petitioners in collusion with some employees of the Corporation fraudulently misrepresented that the property was purchased at a consideration of Rs.3, 50,000/-. The petitioners were given all opportunities to participate at the hearing before passing of the order of cancellation of the earlier valuation. The respondents denied that the Municipal Authority applied for the provision of Section 180 (2) ( i ) of the K.M.C. Act, 1980 in making the intermediate assessment for 4th quarter 1989-1990 because of change of ownership from the previous owner to the petitioners as alleged. The respondents claimed that there were cogent reasons for enhancement of the valuation since the valuation was initially made on the basis of misrepresented facts. It was further claimed that the annual valuation as fixed could not be said to be beyond the norms of reasonableness. The respondents further stated that the rental value of the property definitely increases depending on the enhancement of the value of the property. Dismissal of the application with costs was so prayed for.
Mr. A. Ghosh, appearing as learned Counsel for the respondents-authority, first raised dispute regarding maintainability of the present proceeding. He submitted that the petitioners could very well approach the Tribunal, if at all, being aggrieved by the order of the Hearing Officer. For proper appreciation of the controversies raised, it is perhaps necessary to first refer to the relevant portion of the order dated 8th March, 2005 of the learned Division Bench in the appeal being APOT No.464 of 2004 (G.A.No.2351 of 2004) which was preferred against the order of dismissal of the earlier writ petition. The same is as follows: -
"After hearing is over the Hearing Officer may pass an order. It is also made clear that if the order goes against the interest of the writ petitioner-appellant, the writ petitioner-appellant can challenge the same before the Hon'ble Court by filing a writ petition, if so advised, provided question of jurisdiction is involved and this exercise may be undertaken by the petitioner-appellant despite the fact that there is a statutory forum for appeal. This court further makes it clear that it does not make any observation on the merits of the case of either of the parties."
So, in view of the said order, the writ application can be entertained provided question of jurisdiction is involved despite availability of statutory forum for appeal.
On behalf of the petitioners, it was submitted that the order dated 27th May, 2005 is without jurisdiction since it was not within the competence of the Hearing Officer to cancel the earlier order and also, on the ground that assessment of annual valuation had been made on the basis of purchase price.
Mr. A. Ghosh on behalf of the respondents-authority submitted that it cannot be said that the Hearing Officer did not have jurisdiction to pass the order dated 27th May, 2005 and the petitioners, if aggrieved, could prefer an appeal.
Mere availability of an efficacious alternative remedy does not make an application under Article 226 of the Constitution not maintainable but the court in exercise of its extraordinary writ jurisdiction may not choose to entertain such an application. Maintainability and entertainability are not synonymous. Besides, when public authority passes an order without having any power to do so, it acts without jurisdiction and, this makes the writ petition maintainable. Merits of the grievances may now be looked into.
On behalf of the petitioners, learned Sr. Counsel Mr. Aninda Mitra appearing with Mr. Das Adhikari, submitted that there had been no communication of cancellation of the earlier assessment order and such non- communication makes the order ineffective. It was emphatically submitted that without serving copy of the cancellation order upon the assessee, the C.M.C. could not make any fresh assessment.
In this context, reference was made to the decision of the learned Division Bench of this court in the case of Turner Morrison & Co. Ltd. Anr. vs. State of West Bengal & Ors. Learned Division Bench held in that case that it is the mandate of the legislature 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.
Annexure P-6 is the copy of the communication dated 13th March, 1997 whereby the assesses were asked to attend a hearing in respect of a complaint.
It appears that the writ petitioners in response to the same submitted representations thereby asking for copy of the complaint and detailed particulars.
Respondents-authority then sent two notices dated 22nd March, 1991. Challenging the impugned notice, a writ application was filed. It was subsequently dismissed by order dated 20th July, 2004 but merits of the grievances were not dealt with. The said order was challenged by way of an appeal and the order of the Division Bench while disposing of the appeal has been referred to earlier.
It cannot be denied that the impugned order dated 27th May, 2005 though refers to irregularity in earlier assessment, it does not clearly spell out the exact nature of the irregularity.
Order dated 27th May, 2005 was made in cancellation of the earlier order. It was submitted on behalf of the petitioners that the order of cancellation was not communicated. Since that did not prevent the petitioners from filing written objection, I do not think any prejudice could be caused as a result thereof.
Impugned order clearly reflects that fresh assessment was made in accordance with Section 174(4A) of the K.M.C. Act, 1980 and the guidelines dated 18th January, 1989.
Mr. Mitra submitted that no reason worth mentioning had been assigned in the impugned order. It was contended that the authority could proceed under Sub Section (4A) of Section 174 of the K.M.C. Act, when determination of the annual valuation cannot be made under Section 174 (1) of the C.M.C. Act, 1980. Such grievances, as ventilated on behalf of the writ petitioners, cannot just be brushed aside.
Mr. A. K. Ghosh on behalf of the respondents-authority submitted that two notices, both dated 22nd March, 1999 were issued for fresh determination of the annual valuation of the premises in question with effect from 4th quarter 1989- 1990 and 4th quarter 1993-1994 respectively. The petitioners allegedly in connivance with some employees of the C.M.C. suppressed the actual purchase price of Rs.35, 00,000/- and proceeded on the basis that the property was purchased at Rs.3, 50,000/- only. On such representation, a notice dated 18th October, 1992 was issued to raise the annual valuation at Rs.23, 630/- with effect from 4th quarter 1989-1990 on the following grounds: -
"Revaluation of the premises on estimated early reasonable rental value less statutory allowance for repairs due to change of ownership under Section 180 (2) read with Section 180 (3) of the C.M.C. Act, 1980". The said annual valuation was ultimately fixed at Rs.15, 660/- by an order of the Hearing Officer dated 19th November, 1992. Subsequently, by order dated 13th February, 1995 it was decided at Rs.16, 090/- with effect from 4th quarter 1993-1994.
But on detection of the misrepresentation regarding actual purchase price there was need for fresh consideration. The petitioners were repeatedly asked to produce original Deed of conveyance or its certified copy but the petitioners consciously failed to respond, as claimed by leaned Counsel, Mr. Ghosh.
Deputy Municipal Commissioner (Revenue Headquarters) considered the matter for passing final order on 21st August, 1997. Taking into consideration the actual purchase price of Rs.35, 00,000/-, the annual valuation, as made earlier, was cancelled. The Assessee- Collector (South) was directed to revise the earlier annual valuation. The petitioners were quite aware of the earlier order dated 21st August, 1997 and paid the balance amount of Rs.80, 500/- towards mutation fees on the basis of consideration amount of Rs.35, 00,000/-.
True, in accordance with Section 180 (4) (ii) of the K.M.C. Act, 1980, if the valuation is cancelled on the ground of irregularity, fresh valuation may be made by the Municipal Commissioner at any time after such cancellation.
Section 192 (1) (VI) of the C.M.C. Act provides that "notwithstanding anything contained in Section 190, the Municipal Commissioner may, at any time, assessed the Municipal assessment book by altering assessment on the land or building which has been erroneously valued or assessed through fraud, mistake or accident, in which case such alteration shall take effect from the date such erroneous valuation or assessment took effect".
In such view of the matter, the respondents-authority, as submitted by Mr. Ghosh, was under obligation to issue fresh notice dated 22nd March, 1999.
But learned Counsel for the petitioners quite rightly submitted that the previous valuation was not made on the basis of the purchase price but it was made on the basis of reasonable rent.
Learned Single of this court in the case of Sree Mahamaya Mining vs. C.M.C., reported in 1995 (1) CHN 125, declared Section 180 Sub-section (2) Clause ( i ) ultra vires and so, such provisions could not be taken recourse to on the date of the impugned order dated 21st August, 1997.
It is settled law that transfer of a property is not a taxable event. Section 174 (4A) of the K.M.C. Act provides that the costs of erecting the building plus market value of the land shall be taken into consideration only when the annual rent of the property cannot easily estimated. Impugned order does not indicate any reason as to why annual rent could not be assessed. Thus, there can be no rational justification for taking recourse to Section 174 (4A) of the K.M.C. Act.
Thus, order dated 27th May, 2005 which relates to assessment of annual valuation with effect from 4th quarter 1989-1990 and order of revaluation with effect from 4th quarter 1993-1994, which is again without any reason being assigned, cannot pass the test of judicial scrutiny.
To sum up, it cannot be disputed that fraud vitiates everything and any action or order based on fraud is bad. The respondents-authority certainly has power to make fresh assessment on discovery of fraud. But to proceed on the basis of a wrong assumption is not permissible. Orders under challenge, thus, suffer from inherent weakness and latent impropriety and so, are liable to quashed.
Thus, the present writ application being W.P. No.1440 of 2005 succeeds and be allowed. Impugned orders dated 27th May, 2005 in respect of premises No.1A, Madhab Chatterjee Street, Kolkata- 700 020 for the two periods i.e., 4th quarter 1989-1990 and 4th quarter 1993-1994 are accordingly quashed. Respondents-authority may, however, take appropriate steps in accordance with the law for fresh assessment of annual valuation in respect of the disputed premises for the periods as referred to earlier.
There is no order as to costs.
Xerox certified copy be supplied to the parties, if applied for, on urgent basis.
(S.P.Talukdar, J.)