Damodar Ropeways And Infra ... vs The Kolkata Municipal ...
2022 Latest Caselaw 2128 Cal/2

                  IN THE HIGH COURT AT CALCUTTA
                    Constitutional Writ Jurisdiction
                             Original Side

Present :-   Hon'ble Justice Amrita Sinha


                           WPO No. 300 of 2019
                            GA No. 1 of 2022

               Damodar Ropeways and Infra Limited & Anr.

                                    Vs.
                The Kolkata Municipal Corporation & Ors.


For the writ petitioners       :-    Mr.   Biswaroop Bhattacharya, Adv.
                                     Mr.   Jeeshan Haque, Adv.
                                     Mr.   Tanay Agarwal, Adv.
                                     Mr.   Tirthankar Nandi, Adv.

For the respondents            :-    Mr. Biswajit Mukherjee, Adv.

Ms. Manisha Nath, Adv.

Mr. Debangshu Mandal, Adv.

Heard on                       :-    06.07.2022 & 08.07.2022

Judgment on                    :-    04.08.2022


Amrita Sinha, J.:-

The petitioners are aggrieved by the assessment of annual

valuation with effect from first quarter 2010-11, second quarter 2012-13

and first quarter 2015-16 in respect of the apportioned share of the

eighth floor of the premises no. 11, Dr. U.N. Brahmachari Street,

Kolkata, Ward No. 63 under the jurisdiction of the Kolkata Municipal

Corporation.

According to the petitioners, there are serious procedural lapses on

the part of the Kolkata Municipal Corporation ('KMC', for short) at the

time of revising and re-fixing the annual valuation.

The petitioners refer to the communication dated 26th February,

2019 made by the Assistant Assessor Collector(s) mentioning the

proposed annual valuation and intimating the petitioners that its prayer

for allowing 28% rebate has been approved by the authority.

The petitioners refer to the property tax bills dated 28th February,

2019 mentioning the date of hearing and the date of presentation both as

28th February, 2019. It has been submitted that, under no

circumstances, the date of presentation, the date of hearing as well as

the date of the bill can be the same.

The petitioners refer to Sections 184(3), 184(4), 186, 187(1) & 188

of the Kolkata Municipal Corporation Act, 1980.

It has been submitted that, according to the aforesaid provisions

the Municipal Commissioner ought to have given one months' notice to

the petitioners specifying the proposed annual valuation within which

the petitioners could have filed the objection and only after hearing and

determining the objections, annual valuation could have been revised or

re-fixed.

It is the specific contention of the petitioners that prior opportunity

of hearing was not given to them and the prescribed procedure for

hearing and disposal of the objections was not followed at the time of

revising the annual valuation of the property in question.

The petitioners submit that, KMC in the affidavit-in-opposition,

have relied upon an authorization letter of one Mr. Ashok Kumar Agarwal

and erroneously accepted his admission of the annual valuation by

giving a complete go-by to the statutory provisions. It has been argued

that irrespective of the fact whether there is an authorization or not and

whether or not there is an acceptance of the proposed valuation, the

authority ought to have acted within the four corners of the Statute and

ought to have given opportunity of hearing to the petitioners to raise

objection to the proposed annual valuation.

It has been contended that the aforesaid provisions are mandatory

in nature and are meant to be complied with prior to revising or re-fixing

the annual valuation of any property.

In support of the aforesaid contention, the petitioners rely upon

the judgment delivered by the Hon'ble Supreme Court in the matter of

Kusheshwar Prasad Singh vs. State of Bihar & Ors. reported in

(2007) 11 SCC 447 paragraphs 15 and 16 on the proposition that a

wrong doer ought not to be permitted to make a profit out of his own

wrong.

The petitioners further rely upon the judgment delivered by the

Hon'ble Supreme Court in the matter of Motilal Padampat Sugar Mills

Company Limited vs. State of Uttar Pradesh & Ors. reported in

(1979) 2 SCC 409 paragraph 5 wherein the Court held that no plea of

waiver can be allowed to be raised unless it is pleaded and the factual

foundation for it is laid down in the pleadings.

In the present case the plea of waiver has neither been averred nor

pleaded in the affidavit filed on behalf of KMC.

The petitioners pray for setting aside the annual valuation fixed by

KMC and the property tax bills raised in terms of the said annual

valuation.

Learned advocate representing the respondents opposes the prayer

of the petitioners. It has been submitted that the petitioners all along had

knowledge of the entire process of revision of the annual valuation of the

aforesaid premises. The petitioners, on one hand, sought for the 28%

rebate in terms of the order dated 30th November, 2006 passed by the

Hon'ble Supreme Court in the matter of Calcutta Municipal

Corporation vs. Motilal Naresh Kumar in Civil Appeal No. 3950 of

2001, and on the other hand, contend that opportunity of hearing was

not given to them. The benefit of the order of the Supreme Court was

granted to the petitioners by the Hearing Officer after hearing the

authorized representative of the petitioners while revising the annual

valuation with effect from second quarter 2006-2007.

It has been submitted that vide memo dated 1st February, 2019 the

petitioners were asked to submit a copy of the agreements with the

occupiers for the relevant period and to deposit rupees fifty lakh in the

suspense account for availing the benefit of the judgment in Motilal

Naresh Kumar (supra). The petitioners accordingly put in the cheque

dated 8th February, 2019 of rupees fifty lakh.

Vide communication dated 26th February, 2019 the petitioners

were informed that their prayer for revision of annual valuation has been

approved allowing the rebate. One Ashok Kumar Agarwal appeared

before the concerned department of KMC with an authorization letter

wherein it was clearly mentioned that the representative was duly

authorized to accept the proposal of the valuation intimated vide the

aforesaid communication letter dated 26th February, 2019 and to sign

and to do all work on behalf of the petitioners. The signature of the

authorized person was duly attested by the petitioner no. 2, being the

General Manager of the petitioner no. 1.

The aforesaid authorized representative of the petitioner accepted

the annual valuation for the disputed period by endorsing that the

annual valuation was accepted without any objection and put his

signature in the inspection book on 27th February, 2019. It is thereafter

that the property tax bills were generated by KMC on 28th February,

2019.

The subsequent communication of the petitioners dated 4th March,

2019 received in the office of the KMC on 7th March, 2019 clearly

mentions that the property tax bills could not be cleared due to acute

financial problem. Prayer was made to give benefit of the waiver so that

the petitioners could clear the dues indicated in the property tax bills

dated 28th February, 2019.

It has been contended that in the letter dated 4th March, 2019

there is no indication made by the petitioners that the authorized

representative did not have the authority to accept the annual valuation

assessed by KMC. The said representation also does not mention that the

representative was not authorized by the petitioners to deal with the

matter and settle the same with KMC. The petitioners with mala fide

intention deliberately suppressed the aforesaid letter dated 4th March,

2019.

It has been argued that the rent that is received by the petitioners

is inclusive of the municipal tax. The petitioners have not challenged the

annual valuation prior to the first quarter of 2010-11. The conduct of the

petitioners implies that they have waived their statutory right to raise

objection by admitting the annual valuation assessed by KMC for the

period prior to 2010-11. The petitioner no. 2 has given a declaration

clearly mentioning that they accept the annual valuation with effect from

3/06-07, 1/10-11, 2/12-13 and 1/15-16.

In this context the respondents rely on the decision delivered by

the Hon'ble Supreme Court in the matter of Commissioner of Customs,

Mumbai vs. Virgo Steels, Bombay & Anr. reported in (2002) 4 SCC

316 paragraphs 6, 7, 8, 14 and 15 on the proposition that even though a

provision of law is mandatory in its operation, if such provision is one

which deals with the individual rights of the persons concerned and is for

his benefit, the said person can always waive such a right.

Reliance has also been placed on the judgment delivered by the

Hon'ble Supreme Court in the matter of Graphite India Limited & Anr.

Vs. Durgapur Projects Limited & Ors. reported in (1999) 7 SCC 645

paragraphs 23 and 24 wherein the Court relied upon an earlier decision

of the Supreme Court on the principle that even a mandatory

requirement can be waived by the person concerned if such requirement

is in his interest and not in public interest.

Prayer has been made for dismissal of the writ petition.

I have heard and considered the rival submissions made on behalf

of both the parties.

The contention of the petitioners that the statutory rules have not

been followed at the time of reassessment of the annual valuation of the

property does not appear to be well founded. From the documents that

are available on record, it is abundantly clear that the petitioners,

through their authorized representative, accepted the annual valuation of

the property. The acceptance is clearly recorded in the inspection book.

Though the petitioners have contended that there was no other

alternative but to sign on the dotted line, but the same also does not

appear to be correct. It appears that there are signatures of both the

petitioner no. 2 and the authorized representative of the petitioners

accepting the annual valuation. The petitioners even went to the extent of

applying before the Corporation praying for further waiver of interest

citing acute financial crisis.

It appears that after negotiating the matter with the KMC and

settling the annual valuation, the petitioners have approached this Court

citing procedural lapses on the part of KMC. Had the petitioners been

genuinely aggrieved by any omission on the part of KMC to abide by the

statutory rules, then the petitioners ought to have approached the KMC

highlighting the lapses. The same has not been done.

The petitioners presently are trying to make their authorized

representative the scapegoat and trying to disapprove the settlement and

the acceptance recorded in the inspection book by their said authorized

representative. The petitioners lost site of the fact that apart from the

acceptance by the authorized representative there is also a declaration by

the petitioner no. 2 plainly accepting the annual valuation determined by

KMC. It cannot be accepted that on each and every occasion the

petitioners were compelled to sign on the dotted line.

The sequence of events makes it evidently clear that only after the

proposed annual valuation was accepted by the petitioners and the same

was recorded in the inspection book, the property tax bills were

generated by KMC. The requirement of Sections 184, 186, 187 and 188 is

primarily for the purpose of granting an opportunity of hearing to the

assessee in case there is an objection to the proposed annual valuation.

The aforesaid provision appears to have been duly complied with as the

representative of the petitioners was duly heard and it is only after the

acceptance of the proposed annual valuation that the property tax bills

were generated.

Though the petitioners argue that the authorized representative

did not have the authority to accept the proposed annual valuation, but

the petitioners cannot be heard to contend that opportunity of hearing

objection was not given to the petitioners. The proposed annual valuation

was finalised only after hearing the objection of the petitioners. The same

is enough compliance of the aforesaid provisions relied upon by the

petitioners.

The Hon'ble Supreme Court in Graphite India (supra) and Virgo

Steels (supra) reiterated the settled principle that even though a

provision of law is mandatory in its operation if such provision is one

which deals with the individual right of the person concerned and is for

his benefit, the said person can always waive such a right. The right of

notice being personal in nature can always be waived by that person.

The petitioners in reply have tried to contend that the authorized

representative's concession or admission would not bind the petitioners,

but the same cannot be accepted by the Court, primarily because it is

not only the authorized representative who accepted the annual

valuation but also the petitioner no. 2 who filed a declaration accepting

such valuation.

The petitioners, as a last resort, have relied upon the principle that

no man shall be permitted to take advantage of his own wrong. According

to the petitioners, KMC was under statutory obligation to issue the

hearing notice and thereafter finalise the annual valuation. By not doing

so, KMC is right now trying to take advantage of the situation by shifting

the burden on the authorized representative of the petitioners.

The aforesaid contention of the petitioners also cannot be accepted

by the Court as it appears that the petitioner no. 2 and the authorized

representative of the petitioners both accepted the annual valuation in

writing and never raised any objection to the proposed valuation, as

such, the aforesaid principle cannot be made applicable in the facts and

circumstances of the present case. There is hardly any error on the part

of KMC which the authority is taking advantage of. On the contrary, it

can be said that the petitioners themselves took advantage of the

opportunity of hearing given to them prior to generating the bills and

now trying to turn around alleging statutory lapses on the part of KMC.

The petitioners have relied upon Articles 14 and 265 of the

Constitution of India. Law empowers the Corporation to levy property tax

and KMC has acted in accordance with the same. In the facts of the case

it does not appear that the petitioners have been discriminated in any

manner in the matter of imposition of tax. Moreover, the petitioners have

not challenged the proposed annual valuation for the period preceding

the first quarter of 2010-11 and have accepted the same.

In Kusheshwar Prasad Singh (supra) the Hon'ble Supreme Court

reiterated the well-recognized and established legal maxim that no man

shall take advantage of his own wrong. In the present case, though the

petitioners intend to portray that KMC erred in law in not following the

procedure laid down in the Act by affording an opportunity of hearing for

consideration of the objection to the proposed annual valuation, but fact

remains that the petitioners through their authorised representative

accepted the proposed annual valuation after negotiation with the

officers of KMC. The mutual conduct of the parties makes it very clear

that the petitioners were comfortable with the proposed annual valuation

of the property and after acceptance of the same by the petitioners,

property tax bills were raised by KMC. The same cannot be taken as any

wrong committed by KMC which they are taking advantage of at this

stage.

In Motilal Padampat (supra) the petitioners were relying on the

principle of waiver to be pleaded in the affidavit. The KMC in the affidavit

in opposition averred that at no point of time did the KMC force the

petitioners to accept the proposed annual valuation. The petitioners

being satisfied with the proposed annual valuation accepted the proposal

and endorsed the acceptance without objection in the inspection book.

After accepting the proposed annual valuation, the petitioners prayed for

availing the 50% interest waiver facility. It is only when the annual

valuation is accepted that there can be a chance to pray for further

waiver. Making a prayer for waiver of interest implies that the petitioners

accepted the proposed annual valuation and were satisfied with the

same. The conduct of the petitioners is enough indication that they

waived their right to raise any further objection to the proposed annual

valuation.

In Motilal Naresh Kumar (supra) the Hon'ble Supreme Court laid

down the formula for determining the share of the occupier's tax and the

share of the tax payable by the owner. Applying the formula fixed by the

Hon'ble Supreme Court, KMC already granted the 28% waiver of the

occupier's share of taxes and thereafter fixed the annual valuation of the

property after due consultation with the representative of the petitioners.

The petitioners never disapproved the said stand taken by their

authorised representative before KMC.

The act of the representative cannot be treated as a concession

given by the representative on behalf of the petitioners. The petitioners

take benefit of the act of the representative which are advantageous to

them and disown the portion where the proposed annual valuation has

been accepted. After the proposed annual valuation was finalised and

property tax bills raised by KMC, the petitioners resorted to the blame

game and are presently trying to nullify the permission and authority

granted by the petitioners to their authorised representative to settle the

issue of taxes with the concerned officer of KMC.

On one hand the petitioners accept the rebate granted by KMC and

on the other dispute the annual valuation, both of which were fixed after

hearing. Such contrary stand cannot be permitted to be adopted by the

petitioners.

No interference is warranted in the facts and circumstances of the

present case.

The writ petition along with connected application fails and is

hereby dismissed.

No costs.

Urgent certified photocopy of this judgment, if applied for, be

supplied to the parties or their advocates on record expeditiously on

compliance of usual legal formalities.

(Amrita Sinha, J.)