Calcutta High Court (Appellete Side)

The Kolkata Municipal ... vs Mr. Gopi Mali And Anr on 14 January, 2022

               IN THE HIGH COURT AT CALCUTTA
                CIVIL REVISIONAL JURISDICTION
                            APPELLATE SIDE


Present:

The Hon'ble Justice Ajoy Kumar Mukherjee.

                             C.O. No. 320 of 2019

                      The Kolkata Municipal Corporation .

                                       Vs.

                            Mr. Gopi Mali and Anr.

For the petitioner:            Mr. Alok Ghosh,
                               Mr. Fazlul Haque

For the opposite party:        None.


Heard on:                      24.12.2021



Judgement on:                  14.01.2022



Ajoy Kumar Mukherjee, J.

1. Being aggrieved and dissatisfied by judgment and order dated January

5th, 2018 allowing the appeal in part passed by the Learned 2 nd Bench,

Municipal Assessment Tribunal, The Kolkata Municipal Corporation (KMC) in

Municipal Assessment Appeal being M.A.A. No. 1825 of 2012 (Mr. Gopi Mali &

Shila Mali-Vs. The Kolkata Municipal Corporation), present petitioner has

preferred this revisional application under Article 227 of the constitution of

India on the ground that Learned Municipal Assessment Tribunal did not

consider the cost price of the premises and the rise of rent. He ought to have

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

assessment of Annual Valuation which was fixed as first time and also the rise

of reasonable rent of the premises, likely to be fetched during the period of the

Assessment w.e.f. 2nd quarter 2008-09.

2. It is further contended by the petitioner that Learned Municipal

Assessment Tribunal should have appreciated that the rate of rent fetched by

the premises in question @ Rs.2.75 per sq.ft, per month which was taken into

consideration to assess the annual valuation by the Hearing Officer should not

have been modified. Most importantly, Learned Municipal Assessment Tribunal

should not have relied upon the judgement of the Learned Municipal

Assessment Tribunal, K.M.C., passed in M.A.A. No. 1819/2012, to modify the

order of Hearing Officer because the said judgment has already been set aside

by this Hon'ble Court.

3. Further contention of the petitioner is that the Learned Municipal

Tribunal acted improperly and wrongfully by not considering the Inspection

Book copies referred to by the petitioner at the time of hearing of the appeal

since the same were the basis of orders of Hearing Officer and cannot be

replaced by the observation made by the Tribunal passed in M.A.A. No.

1819/2012 which has already been set aside. Lastly, Learned Municipal

Tribunal failed to make any effort to ascertain the estimated market reasonable

rental value of the flat for the purpose of determination of annual valuation of

the premises in question and also committed gross violation of principles of

natural justice, since the impugned order is not supported by proper

reasoning.

4. The facts of the case, material for the present is that a new high rise

building of XII storied was constructed at the premises No. 9A , Jatindra

Mohan Avenue, in ward no. 18, Kolkata-700006, consisting of several flats

after obtaining a sanctioned building plan. Construction of said building was

completed within 1st quarter of 2008-09.

5. Opposite party purchased a flat measuring a covered area of 861

square meter being flat No. 3D on the 3 rd Floor of the building at the said

premises No. 9A, Jatindra Mohan Avenue, in ward no. 18, Kolkata-700006.

Post purchase, the opposite party applied to the K.M.C./petitioner to

mutate their names against the said purchased flat and K.M.C. authorities

accordingly mutated their names and gave Assessee number.

6. After considering the objection raised by the opposite parties regarding

proposal of the amount of the assessment of Annual Valuation in respect

of the said flat w.e.f. 2nd quarter of 2008-09 and also after service of the

notice upon the opposite party, K.M.C. fixed the Annual Valuation of the

said flat at Rs. 25,570/- for the periods w.e.f. 2/2008-09 taken into

consideration their assessed reasonable rate, at the rate of 2.75 per square

feet , per month.

7. Opposite party being aggrieved by that order of fixing Annual Valuation

of the said flat by the K.M.C. preferred an appeal being No. M.A.A.1825/2012

and Learned Municipal 2nd Bench of the Municipal Assessment Tribunal upon

hearing the parties in the appeal passed the impugned order on January 5 th ,

2018 allowing the appeal in part, upon modifying of the order of the Hearing

Officer by reducing the amount of the annual valuation from Rs.25,570/- to

13,020/- for the periods w.e.f. 2/2008-09.

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

Municipal Assessment Tribunal on January 5 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 this Tribunal and,

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

9. It further appears that the said judgment and order dated January 5 th ,

2018 is cryptic one and the said judgment is based upon the contention

made by the Learned Advocate for the opposite parties herein, who relied upon

the judgment of the self same Tribunal passed in M.A.A. No. 1819/2012 in

relation to another flat of the self same building . Relying upon annual

valuation made in the said case, the rate of rent was fixed in the present case

also at Rs. 1.40 per square feet per month for covered area w.e.f. 2/2008-

2009.

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

of their order on January 5th , 2018 may be reproduced below:

"Keeping in mind the settled principle as laid down as to the applicability of same rate of rent in respect of another flat in the same premises possessing identical characteristics and identical period of assessment, we feel inclined to fix rate of rent of the demised flat at par with the rate of rent as fixed in the referred judgment as comparable unit.

Thus the present AV of the premises in question will be:-

Rs. (861x1.40x12) - 10%

= Rs.13018.32 or say, Rs. 13020/-"

11. Needless to mention that, section 174 to 178 of the KMC Act, 1980

have laid down detailed procedure regarding determination of Annual

Valuation. Provision for revision of assessment has also been made in

section 180 of the said Act and Section 189 of the Act also provides for

appeal before the Municipal Assessment Tribunal and section 189(10A)

makes the provision for preferring a petition before the self same Municipal

Assessment Tribunal for review of the order passed by the said Municipal

Assessment Tribunal.

12. In the present case, K.M.C., petitioner had not filed any review

application, instead they had preferred for the revisional application. Be that

as it may , on perusal of the aforesaid judgment dated January 5 th , 2018 it is

quite clear from the quoted abstract that the impugned order was passed

simply on the basis of the assessment as made by the self same Tribunal in

M.A.A. 1819/2012.

13. Fact remains that, the judgment passed in M.A.A. 1819/2012,

relying upon which the impugned judgment was passed, has been set aside in

C.O. No. 3368/2017.

14. It is also pertinent to mention that while passing the said judgment in

M.A.A. 1819/2012, the Learned Tribunal relied upon another judgment

passed by self-same Tribunal in M.A.A. 335/2010. Said Bench of this Court

while setting aside the order passed in M.A.A. 1819/2012 was pleased to hold

in C.O. No. 3368/2017 :

".....16. The Tribunal before relying on it's said judgment must come into the conclusion regarding the relevancy of the said judgment in the facts and circumstances of the appeal before it. Merely because the property in the said referred judgment is situated under the same ward of the Kolkata Municipal Corporation or within the same locality where the said flat is situated cannot be the sole yardstick of assessment of the annual valuation of the said flat.

17. The detailed procedure since has been laid down under the said Act and the said rules for disposal of an appeal under Section 189 (5) of the said Act, the Tribunal being the quasi judicial authority is bound to follow the said procedure in discharging it's duty. There is manifest dereliction of discharge of the statutory obligation by the Tribunal as the Tribunal has failed to follow any of the said procedure in allowing the appeal before it.

18. The order of the hearing officer, no doubt is also lacking the statutory requirement but the Tribunal has vested with the power under the said Act and the said Rule to assess the annual valuation of the flat in question even by the taking additional evidence under Rule 19(6) of the said Rule. The Tribunal choose not to resort to the said provisions of the said Act and the said Rule in assessing the annual valuation of the said flat."

15. In view of the aforesaid specific observation made in C.O. 3368/2017

by a Bench of this court, it is quite clear that the basis or the foundation by

which the impugned judgment was written by the Municipal Assessment

Tribunal of K.M.C. in M.A.A. No. 1825/2012, does not exist anymore.

16. Furthermore while modifying the order of the Hearing Officer, Learned

Municipal Assessment Tribunal had not given any cogent reason for such

modification, in violation of the principles of natural justice and also in

violation of the statutory obligation as casted upon the Tribunal for

assessing the Annual Valuation.

17. In view of the fact that the judgment passed in M.A.A. 1819/2012

based on which the impugned judgment is written has been set aside by a

Bench of this court in C.O. No. 3368 of 2017 and also considering the fact