Calcutta High Court
Amar Nath Roy & Ors vs Kolkata Municipal Corporation & Ors on 3 February, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
WP 209 of 2014
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
AMAR NATH ROY & ORS.
Versus
KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 3rd February, 2015.
Mr.Sakya Sen, Adv,
Mr.Sunil Sinhania, Adv.
Mr.B.Mukherjee, Adv.
Mr.Fazlul Haque, Adv.
Mr.S.Panda, Adv.
Mr.D.Das, Adv.
The Court: The writ petitioners have challenged two
hearing notices issued by the Kolkata Municipal Corporation
for assessment of the annual valuation with effect from
second quarter 2012-2013 and fourth quarter 2010-2011.
The writ petitioners contend that, they are the owners
of the premises in which there are four tenants. The four
tenants are enumerated at page 26 of the writ petition. The
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writ petitioners contend that, the occupants of the
premises have not been heard in fixing the annual valuation
of the premises. It is also contended that, the occupiers'
portion of the tax payable has not been adjudicated.
Consequently, the writ petitioners are not in a position
to recover the occupiers' share from the occupants as the
occupants have not paid the Corporation taxes on the plea
that, the occupiers' share have not been apportioned by the
Municipal Authorities.
Reliance is placed on 2013 volume 10 Supreme Court
Cases page 533 (Calcutta Gujrati Education Society and
Another versus Calcutta Municipal Corporation and Others)
in support of the contention that, the occupants should be
given a notice of the hearing before fixation of annual
valuation. It is pointed out on behalf of the writ
petitioners that, the Corporation Authorities has allotted
the rent payable by one of the occupants being Canara Bank
being the respondent no.3 herein. Canara Bank is liable to
pay Rs.1,70,77,998/- as tax to the Corporation. The Canara Bank has not paid such Corporation dues. The Kolkata Municipal Corporation authorities has adjusted the rent payable by the Canara Bank to the writ petitioners. Consequently, the writ petitioners are suffering due to 3 the non-payment occupiers' share of the municipal tax by Canara Bank.
The Canara Bank is represented. It is submitted on their behalf that, the Municipal taxes have not been apportioned in their presence. During the pendency of the writ petition, Canara Bank has made enquiries with the Corporation authorities and have found that a sum little over Rs.57 lakhs to be payable by them to the Corporation as tax. In such circumstances, Canara Bank has brought a pay order for Rs.50 lakhs in favour of the Corporation authorities as their share of corporation taxes in respect of the area under their occupation.
The Kolkata Municipal Corporation authorities are represented. It is submitted on their behalf that, the liability of Canara Bank to pay Corporation taxes have been notified to them by the letter dated May 26, 2012. The claim is for a sum of Rs.1,70,77,998/-. Canara Bank has to pay such sum unless such sum is reduced in an appropriate proceedings. With regard to the hearing notices it is contended on behalf of the Municipal Authorities that, individual notices need not be served on the occupiers, in the event the Corporation authorities are not aware of the persons in occupation of the premises.
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It is pointed out that, the notice of hearing has been served on the recorded owner and that the recorded owner have not taken any steps with regard thereto. Consequently, it is submitted that, the writ petition is not maintainable at the behest of recorded owner.
I have considered the rival contentions of the parties and the materials made available on record.
The recorded owner of the premises has challenged two hearing notices dated September 16, 2013 for different periods.
The contention of the recorded owner that, the Corporation ought to hear the occupiers of the premises in view of the ratio laid down by Calcutta Gujrati Education Society (Supra) has some force in the facts and circumstances of the instant case. The writ petitioners disclose that, there are four tenants in respect of the premises. The area under occupation as well as the rate of rent paid by such tenants has been disclosed at page 26 of the writ petition. At least now the Corporation authorities have notice of all the persons in occupation of the premises as tenants, the quantum of rent payable by them and the area under their occupation.
The provisions of the Kolkata Municipal Corporation Act, 1980 as rightly pointed out by the learned Counsel for 5 the writ petitioners requires the Kolkata Municipal Corporation authorities to apportion the respective shares of the owner and the occupier in respect of the premises where the premises is occupied by persons other than the owner. Such exercises is ideally done in presence of both the owner and the occupier as laid down in Calcutta Gujrati Education Society (Supra). Following the ratio of the Calcutta Gujrati Education Society (Supra), therefore, in the fitness of things, the Kolkata Municipal Corporation authorities are directed to issue a fresh notice for hearing to the writ petitioners as the recorded owner as well as to the occupier specified in page 26 of the writ petition for assessment of annual value for the period with effect from second quarter 2012 onwards. The Kolkata Municipal Corporation will apportion tax payable by the respective persons in occupation of the premises as well as that of the recorded owner.
So far as the liability of the respondent no.3 to pay the arrears of the occupiers' share and the municipal taxes is concerned I find that, by a letter dated May 26, 2012, the Kolkata Municipal Corporation authorities had called upon the recorded owner with a copy to the respondent no.3 to pay a sum of Rs.1,70,77,998/-. This quantum may or may not consist of interest and / or 6 penalty. The quantum demanded is in the letter dated May 26, 2012 is payable by the respondent no.3 in the absence of any competent forum finding otherwise. The respondent no.3 has voluntaried to pay a sum of Rs.50 lakhs on the basis of its contention that, a sum slightly in excess of Rs.57 lakhs is payable on account of arrears of occupiers' share of the respondent no.3 in respect of the premises. Till such time, the quantum made by the Kolkata Municipal Corporation in the letter dated May 26, 2012 is revisited by a forum competent to do so, I am afraid, the respondent no.3 is liable to pay such sum to the Kolkata Municipal Corporation. The respondent no.3 will therefore, take immediate steps to discharge such liability to the respondent no.3. Any payment made by the respondent no.3 to the Kolkata Municipal Corporation will be subject to the adjustment of the liability that may be found payable by the respondent no.3 to the Kolkata Municipal Corporation on the apportionment of the Municipal Taxes payable by the occupiers of the building as well as the recorded owner of the building.
The hearing officer of the Kolkata Municipal Corporation will issue a fresh notice to the recorded owner and the persons mentioned at page 26 of the writ petition for assessment of annual valuation with effect from second 7 quarter 2012 onwards. The hearing officer will endeavour to conclude the hearing within twelve weeks from the date of communication of this order to him. All points raised by the parties are kept open. Needless to mention that the hearing officer will give reasonable opportunity of hearing to the parties and will pass a reasoned order.
I clarify that the merits on the rival claims made in the writ petition with regard to the liability of any four parties to pay the municipal taxes to the Kolkata Municipal Corporation are kept open.
Learned Counsel for the respondent no.3 seeks four weeks time to pay the sum demanded in the letter dated May 26, 2012 by the Kolkata Municipal Corporation. Such time is granted. Upon receipt of such sum the Kolkata Municipal Corporation will withdraw the notice of attachment of rent issued to the respondent no.3.
With the aforesaid direction WP No.209 of 2014 is allowed. No order as to costs.
(DEBANGSU BASAK, J.) dg2