Calcutta High Court
Merlin Projects Limited And Ors vs Kolkata Municipal Corporation ... on 24 July, 2023
OD-2
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
APO/83/2023
with
WPO/1320/2023
IA NO:GA/1/2023
MERLIN PROJECTS LIMITED AND ORS.
VERSUS
KOLKATA MUNICIPAL CORPORATION AND ANR.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
And
The Hon'ble JUSTICE APURBA SINHA RAY
Date : 24th July, 2023.
Appearance:
Mr. Abhrajit Mitra, Sr. Advocate
Mr. Arindam Banerjee, Advocate
Ms. R. Kajaria, Advocate
...for the appellants
Mr. Alak Kumar Ghosh, Adocate
Mr. Gurudas Mitra, Advocate
.for the KMC
The Court: A judgment and order dated June 23, 2023, whereby
the appellants' writ petition being WPO 1320 of 2023 was disposed of, is
the subject matter of challenge in this appeal.
In an earlier round of litigation, the appellants had approached
the learned single Judge in the writ jurisdiction challenging notices of
hearing issued by the Municipal Commissioner. The writ petitioners took
exception to the methodology adopted by the Corporation in assessing the
concerned property.
2
The learned Judge had disposed of the writ petition by directing
the Municipal Commissioner to take a decision on the representation made
by the writ petitioners.
The order of the learned single Judge was carried in appeal. It
was submitted before the appeal Court on behalf of the appellants/writ
petitioners that the notices of hearing could not be sustained in view of the
provisions of, inter alia, Section 176 read with Section 171(8) of the
Kolkata Municipal Corporation, 1980 as also the decision of a Single Judge
of this Court in (2016) 3 Cal LT 249 (Fabworth Promoters Pvt. Ltd. & Anr. Vs.
Kolkata Municipal Corporation & Ors.), affirmed by an Hon'ble Division
Bench of this Court in the case of The Kolkata Municipal Corporation & Anr.
Vs. Fabworth Promoters Pvt. Ltd. & Ors., reported in (2016) 3 Cal LT 509.
The appeal was disposed of by an order dated March 20, 2023
with the following observations:
"We are not inclined to go into the merits of the disputes between
the parties at this stage. Since a representation has been made by the
appellants, let such representation dated December 24, 2019, be disposed of
as directed by the learned Single Judge. We clarify that the appellants will
be at liberty to rely on all such materials as they may be advised including
decisions of Courts. We do not interfere with the order of the learned Single
Judge as we do not find any apparent infirmity therein.
However, in the event the representation of the appellants is
rejected or any other adverse order is passed, the same shall not be given
effect to and/or the assessment shall not be proceeded with for a period of
3
fortnight from the date of communication of the order to the appellants. This
is to give an opportunity to the appellants to challenge any such adverse
order before the appropriate forum."
It appears that pursuant to the aforesaid order, the Municipal
Commissioner started the hearing. Three hearings have been held.
With the grievance that their representation has still not been
disposed of and the Municipal Commissioner is from time to time calling
for documents and information which are not relevant for the purpose of
deciding their representation, the appellants approached the learned Single
Judge in the present round of litigation by filing WPO/1320/2023.
By the impugned judgement and order dated June 23, 2023, the
learned Judge disposed of the writ petition with the following observations
and directions :
"The Municipal Commissioner, Kolkata Municipal Corporation
may proceed to conclude the hearing upon calling for
documents/evidences that may be required for arriving at a logical
conclusion of the representation filed by the petitioners. Endeavour
shall, however, be taken to ensure that the representation stands
disposed of at the earliest.
Since the Hon'ble Division Bench did not fix up any time frame
within which the appeal is required to be disposed of, this Bench is,
accordingly, not fixing up any time limit and the Municipal
Commissioner, Kolkata Municipal Corporation will take a decision in the
matter pursuant to the orders passed by this Court.
The parties will, however, be obliged to produce documents as may
be required for effective consideration of the disputes pending
consideration before the Municipal Commissioner, Kolkata Municipal
Corporation.
4
The Court also notices that the petitioners are adequately protected
by the order passed by the Hon'ble Division Bench, whereby the
Court directed the Kolkata Municipal Corporation not to proceed
with any adverse order, if passed, against the petitioners in the
representation filed.
The writ petition stands disposed of."
Being aggrieved, the writ petitioners are before us by way of this
appeal.
We have heard learned counsel for the parties. We did not fix any
time period within which the Municipal Commissioner was required to
decide the representation of the appellants, while disposing of the earlier
appeal by our order dated March 20, 2023. We also did not bind the hands
of the Municipal Commissioner in any manner in the sense that the
Commissioner was not required to decide the representation in any
particular manner. However, the Commissioner will naturally take the final
decision considering the entire material placed before him and also in light
of the relevant decisions of Courts. The representation has to be decided as
per the law prevalent as on the date of the assessment. We do not want to
put any restriction on the Commissioner as regards the documents and
information that he may call for from the appellants. However, we would
definitely expect that being a highly placed and responsible officer of the
Corporation, he will not call for documents or information which may have
no relevance for deciding the representation. We, however, direct that the
representation shall be disposed of by a final order within six weeks from
the date of communication of this order. This time limit will be adhered to
5
irrespective of whether or not the appellants, in spite of being called upon,
fail to file documents or furnish information.
We again clarify that we have not touched upon the merits of the
dispute. The Municipal Commissioner shall decide the concerned
representation in accordance with law in the light of the above
observations.
The appeal and the connected application are disposed of
accordingly.
Since we have not called for any affidavits, allegations made in
the application are deemed not to have been admitted by the respondents.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY J.)
sm
