Calcutta High Court
Broadway Centre And Anr vs The Kolkata Municipal ... on 25 March, 2022
ORDER SHEET
OD-1
APO/5/2022
WITH
WPO/983/2016
IA NO:GA/1/2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
BROADWAY CENTRE AND ANR.
VS
THE KOLKATA MUNICIPAL CORPORATION AND ORS.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
The Hon'ble JUSTICE KAUSIK CHANDA
Date : 25th March, 2022
Appearance:
Mr.Raghunath Chakraborty, Adv.
For appellants
Mr. Biswajit Mukherjee, Adv.
Mr. Gurudas Mitra,Adv.
Mr. Debangshu Mondal, Adv.
Miss Manisha Nath, Adv.
For KMC
The Court : This is an appeal against the judgment and order dated
February 25, 2021 whereby a learned single Judge dismissed the writ petition
filed by the appellants with costs assessed at Rs. 1,00,000/-(one lakh) payable
to the respondent Corporation.
The writ petitioner/appellant no.1 is a partnership firm and is the owner
of premises nos. 14, 14/1, 14/2 and 14/3 Old China Bazar Street, Kolkata -
700001. The premises is commonly known as "Bikaramchand Market". The
premises is wholly tenanted. The tenants are shopkeepers, a few hundred of
them.
The writ petitioners challenged the annual valuation, inter alia, for the
period beginning 2nd quarter 1990-91, 4th quarter 1992-93 and 4th quarter
1998-99 respectively. A hearing notice dated March 11, 1998 was also
challenged. It was argued before the learned single Judge that the contractual
rent was liable to be taken into consideration but the same was not done for
fixing annual valuation of the premises in question. It was further urged that
no order or notice of hearing was served by the Corporation on the writ
petitioners which amounted to breach of the principles of natural justice.
The learned Judge dismissed the writ petition primarily on the ground of
inordinate delay on the part of the writ petitioners in approaching the Court.
The learned Judge held that by assailing the annual valuation for the period
beginning 1990-91, the writ petitioners were seeking to indirectly reopen the
entire issue of property taxes in respect of the premises for a period of more
than two decades. The learned Judge also noticed that the writ petitioners were
given due opportunity of hearing and their authorized representative
participated at the hearing. It was also recorded that taxes in respect of the
premises in question have been pending since 1990. Since that time, not a
penny has been paid by the writ petitioners on account of property tax. The
learned Judge held that it was mala fide writ petition and accordingly
dismissed it.
Before us, the appellants have urged primarily three points. Firstly, the
relevant Assessing Officer arbitrarily arrived at the annual valuation figure
without disclosing the foundation thereof. Secondly, copy of the proposed
assessment was never served on the assessee. Thirdly, the appellants' prayer
for revision under section 192 of the Kolkata Municipal Corporation Act, 1980
has been kept pending by the Corporation.
We had directed the Corporation to disclose the basis on which the
annual revaluation was arrived at for the relevant period. The Corporation has
done so. We are satisfied that the revaluation was on the basis of actual rent
that was collectable in respect of the concerned premises.
Mr. Chakraborty, learned advocate appearing for the appellants has
relied on several judgments which are noted as follows:-
i) Calcutta Municipal Corporation Vs. Motilal
Naresh Kumar : 2007 (2) CHN 143. This case
was relied upon in support of the proposition
that 28% deduction has to be made from the
annual valuation where the entire premises is
tenanted and used for commercial purpose.
ii) State of Tripura Vs. Manoranjan Chakraborty
and Others : (2001) 10 SCC 740. This decision
was relied upon to argue that the remedy of
statutory appeal is an onerous remedy and
hence writ petition is maintainable in spite of
existence of such alternative remedy.
iii) J. M. Baxi & Co., Gujarat Vs. Commissioner
of Customs, New Kandla And Anr. : (2001) 9
SCC 275. This case was also relied upon in
support of the proposition that where the
alternative remedy is onerous, the writ petition
would be maintainable.
iv) Sudhir Kumar Saha Vs. State of West Bengal
& Ors. 2009 (3) CHN 617. This decision of a
Coordinate Bench was relied upon to argue that
any order of a Tribunal or other adjudicating
authority must be a speaking order.
v) Turner Morrison & Co. Ltd. & Anr. Vs. State
of West Bengal & Ors. And Calcutta
Municipal Corporation & Ors. Vs. Anomoni
Narayan & Ors. : 2006 (4) CHN 905. This
Division Bench decision of this Court has been
relied upon in support of the proposition that
unless the order of reassessment is
communicated to the assessee, the Corporation
cannot raise supplementary bill. Merely
communicating that the valuation has been
enhanced will not suffice.
vi) Kolkata Municipal Corporation Vs. St.
Josephs & Mary's School & Anr. : 2005 (2)
CHN 132. This decision has been relied upon to
argue that unless a copy of the revaluation order
is made available to the assessee, the period of
limitation for preferring statutory appeal will not
start running.
Some of the aforesaid propositions of law and the decisions may probably
have helped the appellants, had they not been sleeping over their alleged legal
right. They approached the Writ Court in 2016 assailing assessment orders
dating back to the 2nd quarter of 1990-91. The appellants say that in 1994 they
made an application to the Corporation for amendment and/or revision of
annual valuation of the premises in question for the period commencing 2nd
quarter 1990-91. However, in spite of repeated reminders, the Corporation did
not consider or dispose of such application. Such application is still pending.
Learned advocate says that without disposing of such application, the
Corporation cannot legitimately demand any property tax on the basis of
enhanced valuation.
We are not impressed with such submission. Firstly, the appellants are
not entitled to be heard at all having approached the Court after an inordinate
delay of 25 years without sufficiently explaining such delay. The learned single
Judge was of the opinion that by making representations before the
Corporation and keeping the same pending, the writ petitioners adopted a ploy
for not paying a single penny on account of property tax starting from the year
1990. We are inclined to agree with the learned single Judge. According to the
Corporation, an amount in excess of Rs.9 Crores is due on account of property
tax in respect of the concerned premises. Such figure, of course, includes
interest and penalty. The principal amount due is in the region of Rs.2.81
Crores as on March 14, 2022. Additional interest due as on the same date, is
approximately Rs.6.21 Crores. Additional penalty due as on March 14, 2022 is
approximately Rs.40.54 Lakhs. The learned Judge had enquired of the writ
petitioners as to how much amount they were prepared to deposit to show
their bona fide, even on an interim basis. The writ petitioners declined to make
any offer towards payment of any amount, at all. That was another reason for
the learned Judge to hold that the writ petitioners are not entitled to any
equity. We again agree with the learned single Judge.
It would indeed be unfair to a statutory authority if its actions which are
over two decades old, are permitted to be challenged by a citizen after huge
delay. The authorities cannot be expected to preserve all relevant documents
for an indefinite period. Of course, for a reasonable period, the authorities
should preserve necessary documents. However, if an act of the Corporation is
called in question in a court of law by a citizen, who claims to be aggrieved by
such an act, after 25 years, the Corporation cannot be faulted if it says that
some of the documents are no more available and hence the grievance cannot
be looked into. The Corporation has said so. In this case, we do not think that
it is an unreasonable explanation.
The appellants say that their application which they made in 1994 is still
pending and from time to time, they have sent reminders to the Corporation to
dispose of that application and hence, it cannot be said that the appellants
took no steps in the matter. We do not agree. Merely writing letters at regular
intervals would not amount to taking adequate steps to ensure that their
application is disposed of by the Corporation. They should have approached
the Court much earlier and not as late as in 2016. Pendency of the application
before the Corporation was one of the reasons for the appellants not to pay any
single penny on account of property tax. It suited the appellants very well that
the application was pending for a long time and still pending today.
On an overall assessment of the facts and circumstances of the case, we
are of the view that the learned Judge rightly dismissed the writ application.
The conduct of the appellants has been dubious and lacking in bona fide. We
had also enquired as to what amount the appellants are prepared to deposit,
without prejudice, to demonstrate their bona fides. Their offer was Rs.33 lakhs,
which is a pittance compared to the outstanding claim of the Corporation
which is in the region of Rs. 9 crores. We see no reason to interfere with the
order assailed before us. It is well known that one who seeks equity must do
equity and approach the court with clean hands. We are of the view that the
appellants have not done so.
The appeal and the connected application are accordingly dismissed.
(ARIJIT BANERJEE, J)
(KAUSIK CHANDA, J)
sb.
