Calcutta High Court
Smt. Ashalata Jayaswal And Ors vs The Kolkata Municipal ... on 9 June, 2022
OD-3
ORDER SHEET
WPO/2165/2022
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SMT. ASHALATA JAYASWAL AND ORS.
Versus
THE KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE AMRITA SINHA
Date : 9th June, 2022
Appearance:
Mr. Rupak Ghosh, Adv.
Mr. Debmalya Ghosal, Adv.
Mr. Dilip Kr. Ghosh, Adv.
For petitioners
Mr. Sankarsan Sarkar, Adv.
Mr. Anjan Bhattacharya, Adv.
For respondent nos.5 to 7
Mr. Jayabrata Basu Ray, Adv.
For respondent no.12
Ms. Sananda Ganguli, Adv.
Mr. Shubradip Roy, Adv.
For respondent no. 13
Mr. Biswajit Mukherjee, Adv.
Mr. Arijit Dey, Adv.
For Kolkata Municipal Corporation
The Court: The issue relates to the property at premises no.18/1,
Abanindra Nath Thakur Sarani, (formerly known as Camac Street) Kolkata -
700 017.
A portion of the property in question was at one point of time sold in
favour of one Bhutoria Dealers Private Limited being the respondent no.12
in the present writ petition. The name of Bhutoria Dealers Private Limited
was incorporated in the records maintained by the Kolkata Municipal
Corporation.
The said sale was set aside by orders of Court which was ultimately
affirmed by the Hon'ble Supreme Court.
There are several co-owners of the property. There is a partition suit
pending between the co-owners. A Receiver has been appointed and the
Receiver has been impleaded as the respondent no.4 in the instant writ
petition.
The immediate cause of action for filing the writ petition is the act of
the Kolkata Municipal Corporation invoking provision of Section 220(2) of
the Kolkata Municipal Corporation Act, 1980. The men and agents of the
Corporation put padlock in the main gate of the said premises and seized
certain movable properties which were lying in the said premises as
specified in the inventory set out in Form "C" on 2nd April, 2022.
The petitioners are aggrieved by the same.
It has been submitted that as per provision of Section 220(2) of the
Kolkata Municipal Corporation Act, 1980, the Corporation is not entitled to
seize moveable properties. In this connection the petitioners rely upon the
judgment delivered by this Court in the matter of Calcutta Municipal
Corporation & Ors. Vs. Abdul Halim Gaznavi Molla & Ors. reported in AIR
1998 Calcutta 345.
It has further been submitted that as the Letter of Intimation has been
raised in favour of Bhutoria Dealers Private Limited, the petitioners were not
the persons liable to pay the tax in respect of the said property. It has been
submitted that tax bills were never raised in favour of the petitioners.
Prayer has been made for removing the padlock and to release the
moveable goods that have been illegally seized by the Corporation.
The petitioners have relied upon a letter which was written by their
learned advocate to the Assistant Assessor/Collector, Kolkata Municipal
Corporation on 10th January, 2005 wherein the fact of setting aside the sale
has been intimated to the Corporation. A prayer was made for reverting
records back to the earlier position.
The petitioners have filed a supplementary affidavit wherein a copy of
the Inspection Book of the Assessment Department in respect of the said
property has been annexed. It appears therefrom that the land in question is
used as car shed and garage. The person liable to pay tax has been
mentioned as "Bhutoria Dealers Private Limited". The name of Bhutoria
Dealers Private Limited has been incorporated by deleting the name of Sri
Mangal Prosad Jayaswal and Sri Rukmini Sevak Jayaswal. The said
mutation was done on 12th June, 2002.
Learned advocate representing the respondent nos. 5, 6 and 7
submits that they are the co-owners of the said property. Submission has
been made with regard to the pendency of the partition suit in between the
parties.
Learned advocate representing the respondent no.13 submits that the
respondent no.13 has purchased the shares of the respondent nos. 8 to 11.
Learned advocate representing Bhutoria Dealers Private Limited,
respondent no. 12 submits that the respondent no. 12 is not liable to pay
tax as by virtue of the order passed by the Hon'ble Supreme Court the
Company is no longer the owner of the said property and in view of the order
passed on 16th December, 2003 in CO No.445 of 2003 with CAN 5129 of
2003 (Bhutoria Dealers Private Ltd. vs. Debts Recovery Tribunal), all the
consequential steps taken pursuant to the sale have been set aside and the
possession of the property has been restored to the Joint Special Officers.
According to the Letter of Intimation which was issued in the name of
Bhutoria Dealers Private Limited, it appears that a total sum of
Rs.74,91,660/- is the amount that is due and payable on account of
property tax in respect of the said property. The Letter of Intimation was
issued on 2nd April, 2022 and fifteen days' time was granted for making
payment of outstanding dues. As the outstanding dues were not paid, a
distress warrant under Section 219(1) of Kolkata Municipal Corporation Act,
1980 was issued in the name of Bhutoria Dealers Private Limited. Thereafter
the padlock has been put on the main gate of the said premises along with
the moveable properties standing in the said land.
Learned advocate representing the Kolkata Municipal Corporation
submits that the parties who are liable to pay tax did not make any formal
application under Section 183 of the Kolkata Municipal Corporation Act in
the prescribed format. In the absence of such application being made, it was
not possible for the Kolkata Municipal Corporation to make necessary
correction in their records.
It has further been submitted that assuming that a communication
was made by the learned advocate for the petitioner in January, 2005 and
relying on which if the records are to be reverted back, then the persons
liable to pay tax will be Sri Mangal Prosad Jayaswal and Sri Rukmini Sevak
Jayaswal. Both the aforesaid persons are no longer alive and the
Corporation cannot proceed against dead persons.
From the submissions made on behalf of all the parties and upon
perusal of the documents annexed to the writ petition it appears that more
than Rs.74 lakh and odd is due and payable on account of property tax in
respect of the said premises. The Letter of Intimation has been raised in the
name of Bhutoria Dealers Private Limited. By virtue of the order passed by
the Court affirmed by the Hon'ble Supreme Court, Bhutoria Dealers Private
Limited cannot be considered as a person liable to pay tax.
Accordingly, the Corporation is required to raise the tax bill in respect
of the persons who are actually liable to pay tax in respect of the said
premises.
The petitioners as well as some of the respondents have claimed
ownership of the property in question. The persons who claim themselves to
be the owners of the property are directed to make appropriate application(s)
in the prescribed format before the Kolkata Municipal Corporation along
with all supporting documents within seven days from date. On receipt of
the said application(s), the Kolkata Municipal Corporation shall consider the
same upon giving opportunity of hearing to the parties or their authorised
representatives within a period of three weeks from the date of receipt of the
application(s).
After a decision is taken with regard to the application(s) filed by the
parties, the Kolkata Municipal Corporation shall raise proper tax bills/Letter
of Intimation in favour of the person(s) liable to pay tax. The tax assessed by
the Kolkata Municipal Corporation has to be paid by the persons liable to
pay tax within a period of fifteen days from the date of raising the bills.
In the event payment of the assessed amount is not made within the
time stipulated herein above, it will be open for the Kolkata Municipal
Corporation to take steps, strictly in accordance with law, for realisation of
the dues in respect of the said property upon giving proper notice to the
parties.
If appropriate application(s) is not made by all the persons claiming
themselves to be the owners of the property liable to pay tax, it will be open
for the Corporation to incorporate the name(s) of the persons willing to pay
tax and collect tax from them.
It is only upon payment of the arrear tax assessed by the Corporation
that mutation will be effected in the records by incorporating the name(s) of
the person(s) who clears the dues.
The notice issued under Section 220(2) of the Kolkata Municipal
Corporation Act, 1980 as well as the distress warrant issued under Section
219(1) of the Kolkata Municipal Corporation Act, 1980 are accordingly set
aside. The Kolkata Municipal Corporation is directed to remove the padlock
immediately.
As the writ petition is being disposed of without calling for any
affidavits, allegations made therein are not admitted by the parties.
Supplementary affidavit filed in Court be taken on record.
The writ petition stands disposed of.
Urgent photostat certified copy of this order be supplied to the parties,
if applied for, as early as possible.
(AMRITA SINHA, J.)
sb.
