Calcutta High Court
Pawan Kumar Jhunjhunwala vs The Kolkata Municipal ... on 24 February, 2023
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present :- Hon'ble Justice Amrita Sinha
WPO 1303 of 2015
Pawan Kumar Jhunjhunwala
Vs.
The Kolkata Municipal Corporation & Ors.
For the writ petitioner :- Mr. Meghnad Dutta, Adv.
Mr. Samit Rudra, Adv.
For the KMC :- Mr. Ashok Kr. Banerjee, Sr. Adv.
Mr. Barin Banerjee, Adv.
Mr. Dilip Kr. Chatterjee, Adv.
Mr. Jayanta Kumar Dhar, Adv.
Hearing concluded on :- 17.02.2023
Judgment on :- 24.02.2023
Amrita Sinha, J.:-
The issue to be decided in the present writ petition is whether any fee
under Section 435/435A of the Kolkata Municipal Corporation Act, 1980
('the Act' for short) is payable for running advocates' chamber in a non
residential building.
The petitioner claims to be an advocate engaged in legal profession. He
is carrying on profession under the name and style of Jhunjhunwala &
Company from an office space measuring about 425 sq.ft. in the fifth floor of
the building known as Hastings Chambers at 7C, Kiran Sankar Roy Road,
Kolkata 700001.
A certificate of enlistment for carrying on the legal profession under the
name and style of Jhunjhunwala & Company was obtained from the Kolkata
Municipal Corporation in the year 1984-85 and the same was renewed upto
1989-90. At the time of renewal the petitioner paid the necessary charges
imposed by the Corporation including fee u/s 435 of the Act.
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Apart from payment of tax on profession to the Corporation, the
petitioner regularly pays professional tax under the West Bengal State Tax on
Profession, Trades, Callings and Employment Act, 1997.
The petitioner stopped paying profession tax to the Corporation from
the year 1990-91. In December, 2008 the petitioner filed fresh application for
obtaining certificate of enlistment. An inspector of the Corporation inspected
the office of the petitioner and intimated him that for renewing the certificate
of enlistment the petitioner is required to pay Rs. 26,600/- only.
On good faith the petitioner paid the aforesaid sum and the
Corporation accepted the money and issued the certificate of enlistment. The
receipt of the aforesaid sum issued by the Corporation mentions that a sum
of Rs. 25,200/- only has been appropriated by the Corporation on account of
arrears from 1990-91 to 2007-08 and a sum of Rs. 1,300/- only is the fee for
use of premises for non-residential use with AC under Section 435 and Rs.
50/- is the fee for issuance of certificate of enlistment under Section 199 of
the Act. Rs. 50/- has been charged as processing fee.
The petitioner continued payment of fees under Section 435 of KMC
Act for the subsequent years.
The petitioner thereafter realized that no fee is required to be paid
under Section 435 of the Act for using an advocate's chamber in a non
residential building. The petitioner, accordingly, sought for issuance of the
certificate of enlistment for the years 2012-13 and 2013-14 without insisting
upon payment of fee under Section 435 of the Act. The Corporation refused
to issue/ renew the certificate of enlistment in favour of the petitioner.
The petitioner contends that the profession of the petitioner does not
fall within the category of trade and operations mentioned in Schedule V of
the Act and, as such, the petitioner is not required to obtain any license
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under Section 435 of the Act for carrying on legal profession from his air
conditioned chamber cum office in a non residential building.
Learned advocate for the petitioner has relied upon Sections 435 and
435A, Schedules V and VA of the Act in support of his case.
It has been submitted that the issue in question has already been
decided by a coordinate Bench of this Court in WP No. 1302 of 2015 (P.K
Advisory Services Private Limited vs. The Kolkata Municipal
Corporation & Ors.).
The petitioner prays for a direction upon the Corporation to renew the
certificate of enlistment in his favour without insisting upon payment of any
fee under Section 435 of the Act. Further prayer of the petitioner is to direct
the Corporation to refund the amount accepted by the Corporation under
Section 435 of the Act along with interest.
The prayers of the petitioner have been opposed by the learned senior
advocate representing the Corporation. It has been mentioned in the affidavit
in opposition filed by the license officer of the Corporation that lawyer's
chamber comes under the permissible category of the business activity that
is non-residential in nature. It has been averred that the municipal authority
can charge license fees from lawyers under Section 435 (4) and 435A (1)
under Schedule VA of the Act. It has been contended that the municipal
authority rightly charged the sum for renewal of the certificate of enlistment.
A further affidavit has been filed by the license officer of the
Corporation mentioning that as per the books of records maintained by the
Corporation there are one hundred eleven apportioned shares at the subject
premises. The entire property is recorded as fully non-residential in the
books of records of the Assessment Collection (North) Department.
The building in question is a G+5 storied building. Upto G+4 storey is
used for commercial purpose and the top floor is used for residential
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purpose. A joint inspection was conducted by the Deputy License Officer and
the Assistant Officer on 1st February, 2023 at the subject premises and it
was found that all the floors (G+5) of the building are used for commercial
purpose. A structure with asbestos shed approximately 400 sq. ft. was
located on the fifth floor that is the roof of the building and it was found that
some people reside there.
It has been contended that as a portion of the building is used for
residential purpose, the building cannot be treated as a non residential one,
and fee for using the building for non residential purpose will be payable.
The respondent authority prays for dismissal of the writ petition.
I have heard and considered the rival submissions made on behalf of
both the parties.
The Corporation contends that license fee can be charged under
Section 435 (1), 435A (4) and under Schedule VA.
Section 435 of the Act deals with premises not to be used for non-
residential purpose without municipal license. Section 435 (1) of the Act
mentions that except as provided in the Act, no person shall use or permit to
be used any premises for any of the non-residential purposes mentioned in
Schedule V without or otherwise than in conformity with the terms of a
municipal license granted by the Municipal Commissioner.
The purposes for which premises may not be used without permission
do not include an advocate's chamber/ office. The same implies that no
license is required to be obtained under Section 435 for running an
advocate's chamber/ office either in a residential or non residential building.
Section 435(4) mention that the Corporation shall by regulation
determine the fees to be paid in respect of a municipal license to be granted
under sub-Section (1) and may specify different fees for different categories of
non-residential uses in different parts of Kolkata.
The submission of the respondent that the Corporation can determine
fees under Section 435 (4) in respect of lawyer's chamber is absolutely
misplaced and contrary to the provision of law. If no license is required to be
obtained for using a premises for non-residential purpose in accordance with
Section 435 (1), there is no question of determination of fees under Section
435 (4).
Section 435A has been inserted in the Act by way of an amendment
with effect from 15th January, 2015. Section 435A (1) mentions that in
residential buildings alongside major roads, commercial or trade activities,
non hazardous in nature as specified in Schedule VA may be allowed by
issuance of certificate of enlistment against receipt of license fees.
The premises from where the petitioner is carrying on profession is
categorized and recorded as a fully non-residential building in the municipal
records and, accordingly, the provision of Section 435A cannot be made
applicable in this case. Schedule VA of the Act deals with business activities,
non-residential in nature, in residential buildings. The premises of the
petitioner, not being a residential building, Schedule VA will also not be
applicable in this case.
Finger was pointed at the 400 sq. ft. room in the roof of the building
used for residential purpose to contend that the building is not exclusively
meant for non residential purpose but is of mixed occupancy. Learned
advocate for the petitioner has cleared the doubt by mentioning that the said
structure, although an illegal and unauthorized one, is the durwan's /
caretaker's room. A G+V storied building with one hundred eleven apportions
will certainly require a durwan/care taker to look after and manage the
building. Provision has to be kept aside for such purpose. The durwan/
caretaker's room will not change the character of the building from non
residential to residential.
The key word in the statute to determine as to whether the aforesaid
provision will apply or not is 'residential premises'. The law applicable for
residential premises cannot be invoked in respect of non residential
premises, unless the same is specifically mentioned in the Act. The
Corporation has categorized the buildings within its jurisdiction in two
distinct sets; residential and non residential. The tax component of the two
sets is different. The fee payable in respect of any profession, trade or calling
carried on from a residential property and a non residential building is
separate.
A non residential building is necessarily meant for commercial use; but
residential premises can be used for non residential purpose, only if the law
permits, otherwise not. This is not a case of a residential building used for
non residential purpose. The building from where the petitioner is carrying
on his profession is recorded as fully non residential and the profession for
which the petitioner is using the office in the said premises does not require
a separate licence, accordingly, there is no scope for levying further tax/fee
upon the petitioner.
Section 199 of the Act deals with certificate of enlistment of profession,
trade and calling. Schedule IV of the Act deals with the class of persons
required for obtaining certificate of enlistment for carrying on any profession,
trade and calling. The aforesaid provision mentions that every person
engaged or intending to be engaged in any profession, trade and calling
categorized in Schedule IV shall obtain a certificate of enlistment and renew
the same with such application fee as specified in the guideline at such rate
as may be determined by the Corporation.
The profession of the petitioner, being incorporated in Schedule IV of
the Act, will require a license under Section 199 of the Act, but the petitioner
cannot be subjected to payment of any fee under Section 435/435A of the
Act or the Schedules corresponding thereto.
In view of the discussions made herein above, it is evident that Section
435 or 435A cannot be made applicable in respect of a lawyer's chamber
running from a non-residential premises.
The Corporation is, accordingly, directed to issue necessary certificate
of enlistment in favour of the petitioner on the basis of the application made
by the petitioner subject to payment of the application fee.
The prayer of the petitioner for refund of the money paid by him under
Section 435 of the Act, however, cannot be accepted, as the petitioner
voluntarily deposited the money without raising any objection at the initial
stage. Moreover, the present writ petition seeking refund of the amount
erroneously collected by the Corporation was filed after the prescribed period
of limitation. The claim of the petitioner for refund is thus barred under the
law of limitation.
Writ petition stands disposed of.
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.)
