Calcutta High Court (Appellete Side)
Dolly Mullick & Ors vs The Kolkata Municipal Corporation & Ors on 8 April, 2011
Author: Indira Banerjee
Bench: Indira Banerjee
1
4.
08.04.2011.
d.d.
W. P. No.21725 (W) of 2010 Dolly Mullick & Ors.
Vs. The Kolkata Municipal Corporation & Ors.
Mr. D. S. Mullick, Mr. B. N. Jaiswal ....... For the Petitioners.
Mr. Sandip Kumar De ....... For the K. M. C. This writ application has been filed, inter alia, challenging a notice of hearing relating to revision of annual valuation of Premises No.237/H, Satin Sen Sarani (formerly known as 'Manicktala Main Road'), Kolkata-700 054. It is not necessary for this Court to go into the family history of the Mullicks, who owned the premises in question. Suffice it to mention that in or about November, 2007, the petitioners were served with notice under Section 184(3) and 184(4) of the Kolkata Municipal Act, 1980 (hereinafter 'the 1980 Act') for revision of annual valuation of the premises referred to above, to Rs.18,410/- from the first quarter of 2005-2006. The annual valuation was determined for a period of six years from the first quarter of 2005-2006, that is, upto the first quarter of 2011-2012. According to the petitioners, the petitioners have duly paid municipal rates and taxes as assessed every quarter.
In this writ petition, the petitioners have challenged a notice of hearing dated 4th August, 2010, informing the petitioners that the annual valuation of the premises in question had been 2 enhanced to Rs.10,80,000/- with effect from the first quarter of 2009-2010. A copy of the notice has been annexed to the writ petition.
Section 180(2) provides for revision in annual valuation of any land or building in any one or more of the following circumstances
- (i) change of nature of occupancy, (ii) change of nature of use, (iii) erection of new building or redevelopment or substantial alteration or improvement during the period of the annual valuation, (iv) on the application of an owner when the annual value has been reduced by reason of substantial demolition, accident, calamity and such reasons, (v) acquisition by the Government or the Corporation or any statutory body of the land or buildings or part thereof, (vi) sale of land, building or part thereof, (vii) acquisition or transfer of any land or building or part thereof or (viii) when it becomes necessary so to do for any other reason to be recorded in writing.
The impugned notice reads:
" The revised annual valuation so assessed is due to the ground as stated in item overleaf. "
Since the second page of the notice in question had not been photocopied, this Court directed the petitioners to produce the impugned hearing notice. The impugned hearing notice was produced in Court.
Information is printed on the reverse page of the notice. Paragraph (1) reads as follows:
" 1. Grounds for revision in the Annual Value assessed :3
i. Revision in area and/or rise to market value of land.
ii. Increase in estimated annual rent (less statutory allowance for repairs) on account of (a) redevelopment, addition, alteration or improvement, (b) rise of rent since last valuation, (c) change of the nature of use.
iii. (a) Valuation in estimated annual rent less statutory allowance for repairs, the valuation having been made on estimated cost of construction and market value of land.
(b) Valuation having been made on the basis of cost of acquisition.
iv. New valuation on separation/ apportionment/amalgamation on estimated annual rent less statutory allowance for repairs.
v. Valuation of the new building on estimated annual rent less statutory allowance for repairs.
vi. Revaluation of the premises on estimated annual rent less statutory allowance for repairs or revaluation of the premises due to rise of market value of the land or building. "
The grounds, on which the assessed annual value of premises might be revised, have been printed in the reverse page of the impugned notice, for general information. Those are the grounds for general revision in the annual value. In this case, as observed above, the earlier valuation was to remain in force for a period of six years from the first quarter of 2005-2006. Even though revision in annual valuation has been proposed during the currency of earlier annual valuation for six years with effect from 2005-2006, and on the face of the notification, the revision is on grounds as stated overleaf, there are no grounds disclosed.4
Mr. De, appearing on behalf of the Kolkata Municipal Corporation, submitted that it is not necessary to specify grounds in a notice under Section 184(3) or 184(4). In support of his submission, Mr. De cited the judgment in the case of Vikram Murarka & Anr. Vs. Assessor-Collector (North-South) Division XXVII, The Kolkata Municipal Corporation & Ors., reported in (2006) 2 CAL LT 30 (HC). In Vikram Murarka's case (supra), the assessment of the flat in question had been made for the first time by the municipal authority with effect from second quarter, 2003-2004. Hearing notices under Section 184(3)/Section 184(4) were served on the petitioners. The petitioners were aggrieved by assessment of annual valuation at Rs.42,360/- by application of the mode of assessment as specified in the ground being item no.3 overleaf. Ground no.3 consisted of two clauses, which were as follows:
" (a) Valuation in estimated annual rent less statutory allowance for repairs, the valuation, having been made on estimated cost of construction and market value of land.
(b) Valuation having been made on the basis of cost of acquisition. "
The Court held:
" 18. Once the annual valuation of any premises under sub-section (2) of section 179 or a general revaluation under sub-section (1) of section 180 in any ward of the Corporation or part thereof, as the case may be, has been completed, the Municipal Commissioner under sub-section (1) of section 184 of the said Act, shall cause the respective valuation to be entered in the assessment list in the prescribed form containing such particulars with respect to each land or building.
19. Sub-section (2) of section 184 of the said Act provides that when the assessment list has been prepared, the Municipal Commissioner shall give public notice thereof and of the place where the list or a copy thereof may be inspected, and every person claiming to be the owner, lessee, sub-lessee or occupier of any land or building included in the list and any 5 authorised agent of such person shall be at liberty to inspect the list and to take extracts therefrom free of charges.
20. Sub-section (3) of section 184 of the said Act provides that the Municipal Commissioner shall give public notice of the place, time and date, not less than one month after preparation of the assessment list as aforesaid, when he will proceed to consider the annual valuation of lands and buildings entered in the assessment list and in all cases in which any land or building is for the first time assessed, or the annual value of any land or building is increased, he shall also give written notice thereof to the owner or to any lessee, sub- lessee or occupier of such land or building and shall specify in the notice the place, time and date not less than one month thereafter, when he will proceed to consider such valuation.
21. Sub-section (4) of section 184 of the said Act provides that when a revision in the annual valuation of any land or building has been made under sub-section (2) of section 180, the Municipal Commissioner shall cause the respective valuation to be entered in the assessment list and shall give a written notice thereof to the owner or to any lessee, sub-lessee or occupier of such land or building, and shall also specify in the notice the place, time and date not less than one month thereafter, when he will proceed to consider such valuation.
22. Thus, it appears that sub-section (3) of section 184 and sub-section (4) of section 184 of the said Act contemplate service of notice of hearing of the assessment proceeding. Notice under sub-section (3) of section 184 of the said Act is required to be served in case assessment is made either under sub-section (2) of section 179 or under sub-section (1) of section 180 of the said Act. Notice served in case of revision of the annual valuation of the land and building as per the provisions as contained in sub-section (2) of section 180 of the said Act.
23. Notice either under sub-section (3) of section 184 of the said Act or under sub-section (4) of section 184 of the said Act, is nothing but a notice of hearing simpliciter. In the said notice, the Municipal authority is required to specify the place, time and date when the valuation of the premises in question will be considered and/or finalised by the Municipal authority.6
24. On perusal of the impugned notice, this Court does not find lack of any such requisite particulars. The place, time and date when the valuation of the said premises will be considered and/or finalised by the Municipal authority have been specifically mentioned in the said notice.
25. Neither sub-section (3) of section 184 of the said Act nor sub-section (4) of section 184 of the said Act provide for giving any further particulars in the said notice. As such, this Court is unable to find out any vagueness and/or lack of particulars in the said notice. "
A judgment is a precedent for what the judgment decides. What was in issue before His Lordship was first valuation and not revision of valuation during the period of currency of annual valuation.
General revaluation of land is done periodically. During the currency of such valuation, revision might be only be done in the circumstances specified in sub-section (2) of Section 180 of the 1980 Act. Any notice, which proposes further revision during the currency of the period of valuation, would necessarily have to indicate the grounds for revision.
In case of general assessment, it may not be necessary for the Kolkata Municipal Commissioner to disclose the mode of computation of valuation in the hearing notice, for it might be open to the assessee to produce documents to pursuade the assessing authority otherwise. However, the conditions precedent for revision of valuation during the currency of valuation, having been stipulated in Section 180 (2), a notice of hearing for such revision would necessarily have to indicate which of the grounds stipulated in the said sub-section was attracted.
7The object of a hearing notice is to enable an assessee to make effective submissions. It is necessary for any notice to specify the grounds, to enable an assessee to make effective submissions.
The judgment in Special Director & Anr. Vs. Mohd. Ghulam Ghouse & Anr., reported in (2004) 3 Supreme Court Cases 440, cited by Mr. De, was rendered in the context of a show-cause notice for violation of the provisions of the Foreign Exchange Regulation Act and/or Foreign Exchange Management Act and was rendered having regard to the particular facts and circumstances of the case. The Supreme Court held that unless the High Court was satisfied that a show-cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, was a jurisdictional issue which could even be urged by the recipient of the notice and such issues could also be adjudicated by the authority issuing the notice initially, before the aggrieved could approach the court.
Where exercise of jurisdiction is dependent on existence of certain facts, this Court is entitled to examine whether the jurisdictional facts necessary for exercise of jurisdiction exist or not. In the instant case, the condition precedent for exercise of jurisdiction to initiate revision is existence of one or more of the circumstances specified in Section 180(2). Satisfaction of existence of one or more of the conditions specified in sub-section (2) of Section 180 gives jurisdiction to initiate revision proceedings.
8In any case, there are well-recognized exceptions to the rule of alternative remedy, one of them being violation of principles of natural justice. A notice of interim revision which does not indicate the grounds for interim revision during the period of currency of valuation is necessarily in violation of principles of natural justice.
The legal proposition that any effective notice must indicate grounds to enable the recipient to make effective submissions is well-established and does not need reiteration.
The impugned notice is unsustainable in law and the same is set aside and quashed. This order will not prevent the Kolkata Municipal Corporation from issuing a fresh notice in accordance with law indicating the grounds for revision during the currency of the valuation. It is made clear that this Court has not adjudicated the correctness or otherwise of the proposed revision.
The writ application is disposed of.
Affidavits not having been called for, the allegations in the writ petition, shall be deemed not to have been admitted.
Urgent certified photostat copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
( Indira Banerjee, J )