Calcutta High Court (Appellete Side)

The Kolkata Municipal ... vs Sri Prasun Banerjee on 25 February, 2022

              IN THE HIGH COURT AT CALCUTTA
                CIVIL REVISIONAL JURISDICTION
                            APPELLATE SIDE


Present:

The Hon'ble Justice Ajoy Kumar Mukherjee.

                              C.O. No. 96 of 2019

                       The Kolkata Municipal Corporation
                                      Vs.
                              Sri Prasun Banerjee



For the petitioners:           Mr. Alak Kumar Ghosh,
                               Mr. Swapan Kr. Debnath



Heard on:                      17.02.2022



Judgment on:                   25.02.2022



Ajoy Kumar Mukherjee, J.

1. A combined order was passed in Municipal Assessment Appeal No.

M.A.A. No. 2362/2013, M.A.A. No. 2361/2013 and M.A.A. No. 2363/2013 by

the learned Second Bench of Municipal Assessment Tribunal, Kolkata

Municipal Corporation on 17.06.2016, whereby learned Tribunal was pleased

to allow the aforesaid three Appeals in part. Felling aggrieved in respect of

valuation made for the period w.e.f. 1st quarter of 2012-2013, in connection

with premises in question by that combined order dated 17.06.2016, petitioner

has preferred this Revisional Application under Article 227 of the Constitution

of India.

2. Petitioners case in a nutshell is that a new high rise building of G+4

storied was constructed with all modern facilities at the premises being no.

6B, Kali Charan Ghosh Road, Ward No. 02, Kolkata -700050, consisting of

several flats, after obtaining sanctioned building plan. The said flat /building

is on the road and locality with all amenities of drainages, sewerage, electricity,

road, water supply etc. of the Kolkata Municipal Corporation hereinafter called

as KMC. The said construction of the building was completed within the period

of 4th quarter, 2008-2009.

3. Opposite party purchased a flat in the said building measuring 1760

sq.ft on the 4th floor and a car parking having an area of 140 sq. ft. in the said

premises being no. 6B, Kali Charan Ghosh Road, ward no. 02, Kolkata -

700050 and the opposite party applied for mutation under the Kolkata

Municipal Corporation Act 1980 and the KMC authority duly mutated the

name of the opposite party and allotted an assessee number. Thereafter for the

purpose of assessing the annual valuation of the said flat at the 4 th floor, the

Kolkata Municipal Authority served notice to the opposite party, proposing the

Annual Valuation for the period w.e.f. 1st quarter of 2012-2013. The opposite

party raised objection to the said proposed valuation and on 27.08.2013, the

hearing officer of KMC, upon hearing the opposite party and also considering

objection as raised, passed an order fixing the annual valuation of Rs. 40550/-

for the 1st quarter of 2012-2013, taking the reasonable rent at Rs.2.05/- per

sq.ft. per month for covering area and Rs.1.05/- per sq. ft. per month for car

parking area for the period w.e.f. 1 /2012- 2013.

4. Opposite party being aggrieved by and dissatisfied with the fixation of

annual valuation, preferred an appeal before the Municipal Assessment

Tribunal KMC, challenging the said order dated 27.08.2013. Learned Second

Bench of the Municipal Assessment Tribunal of KMC upon hearing the

appellant and KMC allowed the appeal in part by its order dated 17.06.2016

upon modifying of the order of the hearing officer by reducing the amount of

the annual valuation from Rs. 40550/- to Rs 16,810/- for the period w.e.f.

1/2012-2013.

5. Feeling aggrieved by the said order dated 17.06.2016, petitioner herein

preferred the present revisional application on the ground that learned tribunal

committed wrong in fixing the annual valuation of the premises in question at

Rs. 16810/- for the period w.e.f. 1/2012-2013, upon taking into account the

rate of rent as fixed in the judgment passed by same Tribunal in M.A.A. No.

1258/2002 in respect of a different premises situated at 22/2 Kali Charan

Ghosh Road, Ward No. 02, Kolkata -700050. Learned Tribunal did not consider

the judgment passed by the same tribunal in M.A.A. No. 3056/2009 which

was referred and relied upon by the petitioners. Moreover the learned tribunal

failed to assign any reason having due regard to the statutory provisions of law

in support of his determination of annual valuation. Learned tribunal should

have considered the provisions of Section 174 of KMC Act 1980, including

provisions under Sub-Section (2) and (3) of Section 174 to the extent that the

reasonable rent should have assessed on the basis of the existing market rate

to be fetched at the rate of per sq. ft. per month at the time of fixation of

annual valuation. Learned tribunal failed to make any effort to assign the

estimated market rental value of the flat for the purpose of determination of

annual valuation of premises in question. Learned Tribunal did not consider

the inspection book copies which were referred by the petitioner and he ought

to have considered that the Hearing Officer did not commit any wrong while

fixing the reasonable rent at Rs.2.05/- per sq. ft. per month in respect of the

flat area and @Rs 1.05/- per sq. ft. per month in respect of the car parking

area for the period w.e.f. 1/2012-2013. Learned tribunal did not consider the

substantial development with provisions of all facilities in the locality within

past few years, which justifies fixation of aforesaid rent and the flat in question

is situated in a newly constructed building, which cannot be equated with old

building for the purpose of assessing annual valuation . Tribunal also ought to

have considered the rise of cost price of the premises as well as the assessment

of annual valuation which was fixed as first time and also raised reasonable

rent of the premises likely to be fetched during the period for assessment w.e.f.

1st quarter, 2012-2013. Municipal Assessment Tribunal committed gross

irregularity in not properly considering the comparative method in respect of

the determination and fixation of the annual valuation of the premises in

question as provided under the KMC Act and it should not have held that the

annual valuation of the premises in question should be at Rs. 16,810/- w.e.f.

1st quarter of 2012-2013, without stating basis of such modification.

6. On perusal of the said impugned order passed by the Learned

Municipal Assessment Tribunal on February 13 th , 2018 it appears that the

points for determination before the said Tribunal was:-

a) Whether the impugned order passed by the Learned Municipal Hearing

Officer suffers from any irregularity or illegality deserving interference

from the Tribunal and,

b) If so, what should be the Annual Valuation.

7. Needles to say that the order passed by the Tribunal on 17.06.2016 is

not supported by reason. The entire judgment is based on the reference made

by the opposite parties herein, in connection with a separate premises at 22/2,

Kali Charan Ghosh Road, in ward No. 02, Kolkata-700050 which might have

situated in the same road and under the same postal Zone. The learned

Tribunal did not consider that the valuation in respect of the said premises

took place at least 10 years back. Accordingly fully relying upon the Annual

Valuation of the said separate premises, which took place ten years back,

valuation in respect of the present premises in question was fixed at Rs.

0.85/- per sq.ft. per month for covered area and Rs.0.43/- per sq.ft. per month

for car parking area w.e.f.01/2012-2013.

8. The relevant portion of observation made by the Tribunal in support of

their order passed on 17.06.2016 may be reproduced below:-

"The Ld. Advocate for the appellant has argued that the Ld Hearing Officer arbitrarily fixed the A.V. without paying any respect to the provision of the

Act of 1980. In support of her contention copy of judgment of the Tribunal In M.A.A.-1258 of 2002 is relied on, wherein the R.R. was fixed at Rs. 0.60 per sq.ft per month for covered area w.e.f. 4/99-00.

On the other hand, it is argued by the Ld. Advocate for the respondent that the order of the ld Hearing Officer 1st assessment of this assessee is reasonable and should be affirmed. The Ld. Advocate for the respondent to contradict the referred case of the appellant has filed a copy of the judgment of MAA 3056 of 2009 of the ld. 1st bench wherein the RR was fixed at Rs. 1.50 w.e.f. 1/2004-05.

It is not out of place to mention here that the premises of the referred case of the appellant is situated at premises no. 22/2 kali Charan Ghose Road, ward no. 02, Kol-50(same road and same postal zone) but the premises referred by the Respondent situated on different road i.e. premises no. 5/51/1B, Dum Dum Road, Kol-30, ward no-02(different road to which premises in question belongs).

Ld. Advocate for the Respondent also stated that a gap of ten years in between the premises of the referred case of appellant and the present premises in question.

Having regard to the submission of both the parties, documents relied on specially the location, R.R & the effective Qtr of the referred cases of the parties, we are of the considered view that the R.R of the premises in question should be fixed at Rs. 0.80, Rs.0.82 & Rs.0.85 per sq.ft per month for covered area & Rs. 0.40, Rs. 0.41 & Rs. 0.43 per sq. Ft per month for C.P area w.e.f. 1/2009-10, 1/2010-11 & 1/2012-13 respectively. Thus the present AV of the premises in question will be:-

Rs. (1760x0.80x12)-10%+Rs. (140x0.40x12)-10% = Rs.15811.20 or say Rs. 15,810/-w.e.f. 1/2009-10 & Rs.(1760x0.82x12)-10%+Rs. (140x0.41x12)-10% = Rs.16206.41 or say Rs. 16,210/- w.e.f. 1/2010-11.

                            &
              Rs.(1760x0.85x12)-10%+Rs. 9140x0.43x12)-10%
       =      Rs.16806.96 or say Rs.16,810/-w.e.f.1/2012-13."

9. Needless to mention that section 174 of the Kolkata Municipal

Corporation Act 1980 have laid down detailed procedure regarding

determination of annual valuation. On perusal of the reasoning as cited by the

Tribunal as above in its order dated 17.06.2016, it is quite clear from quoted

abstract that the impugned order is passed on the basis of assessment made

in connection with another premises of the locality namely 22/2 Kali Charan

Ghosh Road in ward no. 02, Kolkata -700050, in reference to a judgment

passed by the self same Tribunal long back in M.A.A. No. 1258/2002.

10. Moreover while modifying the order of the Hearing Officer, learned

Municipal Corporation assessment tribunal had not given any cogent reason

and has not disclosed the basis for modification of valuation which is in

violation of the principle of the natural justice and also in violation of the

statutory obligations, including calculation as casted upon by law for assessing

the annual valuation under section 174 of the KMC Act 1980.

11. In view of the above and considering the fact that the impugned

judgment/order was passed on the basis of judgment passed in M.A.A. No.

1258 in the year 2002 and in connection with a separate premises at 22/2,

Kali Charan Ghosh Road, in Ward No. 02, Kolkata 700050 and that while

modifying the order of the Hearing Officer Tribunal had not given the basis on

which modification was made, nor has followed the principles as laid down in