Calcutta High Court (Appellete Side)
Kolkata Municipal Corporation vs Kripendra Lal Dey & Anr on 13 March, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE
C.O. 1505 of 2020
With
C.O. 1494 of 2020
With
C.O. 1495 of 2020
With
C.O. 1496 of 2020
With
C.O. 1497 of 2020
With
C.O. 1499 of 2020
With
C.O. 1500 of 2020
With
C.O. 1501 of 2020
With
C.O. 1502 of 2020
With
C.O. 1503 of 2020
With
C.O. 1504 of 2020
Kolkata Municipal Corporation
Vs
Kripendra Lal Dey & Anr.
Partha Pratim Ghosh
Mr. Amlan Sengupta & ors.
Saikat Konar & Ors.
Bhartesh Samrani
Sanjukta Roy & ors.
Premanjan Paul & Ors.
Mrs. Sarika Mehra & Ors.
Mrs. Gouri Ghosh & Ors.
Mrs. Anubha Sanyal
Sri Archana Mukherjee & Smt. Jayeeta Mukherjee
1
For the Petitioner /KMC : Mr. Alok Ghosh
Mr. Fazlul Haque
Heard on : 08.02.2023
Judgment on : 13.03.2023
Ajoy Kumar Mukherjee, J.
1. Opposite parties are not represented inspite of services.
2. As issue involved in all the aforesaid applications under Article 227 of
the constitution of India are same, all the applications are heard together and
are hereby governed by this common order.
3. Being aggrieved and dissatisfied with the order passed by the learned 2 nd
Bench, Municipal Assessment Tribunal, The Kolkata Municipal Corporation
arising out of an order dated November 12, 2014, passed by the Hearing
Officer-IV, The Kolkata Municipal Corporation, relating to fixation of annual
valuation in respect of the different flats at 46, Chanditola Lane, Kolkata-
700040 for the period with effect from 4 th quarter of 2013-2014, present
applications under Article 227 of the Constitution of India have been preferred.
4. For better understanding a short description about the cases are given
below:
Case number MAA Appeal Date of order Flat no. & Annual Annual
No. period of valuation Valuation
assessment fixed by fixed by the
Hearing Ld. Tribunal
Officer
MAA 504 of 16.04.2018 3A , 3rd 39,860/- 17,240/-
1.C.O 1505 /2020 KMC
2015 Floor Block-
-Vs-Kripendra lal Dey
2, 46
Chanditola
Lane,
kolkata-40
4/2013-
MAA 689 of 13.08.2018 2E , 2nd 39,380/- 17,070/-
2.C.O 1494 /2020 KMC
2015 Floor Block-
Vs-Partha Pratim Ghosh
2, 46
Chanditola
Lane,
kolkata-40
4/2013-
MAA 493 of 17.07.2018 3F , 3rd 36,600/- 15870/-/
3.C.O 1495/2020 KMC
2015 Floor Block-
Vs-Amlan Sengupta &
1, 46
ors
Chanditola
Lane,
kolkata-40
4/2013-
MAA 488 of 04.07.2018 2A , 2nd 37,950/- 16,410/-
4.C.O 1496/2020 KMC
2015 Floor Block-
Vs Saikat Konar Sons
1, 46
Chanditola
Lane,
kolkata-40
4/2013-
MAA 502 of 23.04.2018 4A , 4th 36,600/- 15,870/-
5.C.O 1497 /2020 KMC
2015 Floor Block-
Vs. Bhartesh shomrani
1, 46
Chanditola
Lane,
kolkata-40
4/2013-
MAA 500 of 17.07.2018 1D , 1st 29,870/- 12,940/-
6.C.O 1499/2020 KMC
2015 Floor Block-
Vs. Sanjukta Roy
1, 46
Chanditola
Lane,
kolkata-40
4/2013-
MAA 492 of 13.07.2018 3D , 3rd 28,820 12,480/-
7. C.O 1500 /2020 KMC
Vs. premanjan paul & 2015 Floor Block-
sons 2, 46
Chanditola
Lane,
kolkata-40
4/2013-
MAA 688 of 13.08.2018 4E , 4th 44,750/- 18,420/-
8. C.O 1501 /2020 KMC
2015 Floor Block-
Vs. Sarika Mehra &
2, 46
sons
Chanditola
Lane,
kolkata-40
4/2013-
MAA 490 of 08.06.2018 1A , 1st 38,510/- 16,700/-
9.C.O 1502 /2020 KMC
2015 Floor Block-
Vs. Gouri Ghosh and
2, 46
sons
Chanditola
Lane,
kolkata-40
4/2013-
MAA 501 of 14.06.2018 1A , 1st 36,600/- 15870/-
10.C.O 1503 /2020
2015 Floor Block-
KMC Vs. Anubha Sanyal
1, 46
Chanditola
Lane,
kolkata-40
4/2013-
MAA 491 of 25.06.2018 3E , 3rd 39,380/- 17080/-
11. C.O 1504 /2020
2015 Floor Block-
KMC Vs. Archana
2, 46
Mukherjee
Chanditola
Lane,
kolkata-40
4/2013-
5. Petitioner contended that a multistoried building has been constructed
at the premises No.46, Chanditola Lane, Ward No. 097, Kolkata-700040
consisting of several flats after obtaining building plan sanctioned with all
modern facilities. The said building according to petitioner is the best building
on the said record with all amenities of drainages sewerage, electricity, road,
water supply etc. of the Kolkata Municipal Corporation. The opposite parties
purchased their respective flats in the said building as stated in the tabular
statement. The petitioner issued a notice proposing amount of assessment of
Annual Valuation in respect of the said flats with effect from 4 th quarter 2013-
14. After service of notice upon the opposite parties, with the said proposal the
opposite parties raised their objection and by an order dated 12 th November,
2014 the Hearing officer-IV of the Kolkata Municipal Corporation, considering
the objections, fixed the Annual Valuation of the said flats as above
6. Being aggrieved by the said order opposite parties herein preferred
appeal against the said orders of the Hearing Officer-IV of the Kolkata
Municipal Corporation dated 12.11.2014, before the learned Municipal
Assessment Tribunal, Kolkata Municipal Corporation. The 2 nd Bench of the
Municipal Assessment Tribunal upon hearing the parties in the Appeal passed
orders as above allowing the appeal in part, upon modification of the order of
the Hearing Officer-IV by reducing the amount of the Annual Valuation as
mentioned in the table.
7. Mr. Ghosh Learned Counsel appearing on behalf of the petitioners
submits that the learned Tribunal having due regard to the facts and
circumstances of the case and also the law, should not have reduced the
Annual Valuation of flats in question which is about cent percent. He further
submits that the Mayor's guideline can not prevail over the law or the
guidelines framed by the court but unfortunately the learned Tribunal
considered the Mayor's guidelines as the only parameter without taking into
account the parameters laid down by the Hon'ble Apex Court and thereby
Learned Tribunal Committed wrong in passing the impugned order. He further
submits Learned Tribunal failed to make any effort to ascertain the reasonable
rental value of the flat in a newly constructed multistoried building for the
purpose of determination of Annual Valuation of the premises in question and
Municipal Tribunal committed gross violation of principles of Natural Justice
since impugned orders under challenge are not supported by reason. The
learned Tribunal did not consider the copies of inspection books referred to by
the petitioner at the time of hearing of the appeal in its true perspective and
wrongly rejected the same. His further contention is Learned Tribunal
committed wrong in taking into account its own order passed in MAA 108 of
2005 in respect of premises No. 32/36 Chandi Ghosh Road, Kolkata and failed
to appreciate that the said valuation in respect of premises no. 32/36 was
decided ten years back and does not relate to same road of the premises in
question and no comparable issue is reflected in the order under challenge.
Accordingly Mr. Ghosh has prayed for setting aside the orders impugned.
8. On perusal of the said impugned orders passed by the Municipal
Assessment Tribunal, KMC it appears that point for determination before the
said Tribunal was
(i) whether the impugned order passed by the learned Hearing Officer
suffers from any irregularity or illegality deserving interference
(ii) if so, what should be the Annual Valuation.
9. It further appears that learned Tribunal while passing the order has
merely recorded the submissions of the respective parties and though learned
Tribunal has referred the judgment passed by the Apex Court in India
Automobile (1960) Limited Vs. Calcutta Municipal Corporation and
another, reported in (2002) 3 SCC 388 but the learned Tribunal has failed to
discuss anything with reference to the said judgment consequently there is no
finding or observation as to how the Mayors order are applicable in the present
case. It further appears that learned Tribunal while passed the orders has
taken into consideration another judgment passed in a different case being
MAA No. 108/2005 which was relied by the opposite parties herein, but the
said judgment has also not been discussed with reference to the facts of the
present case. The Annual Valuation of the premises being 32/36 Chandi
Ghosh Road was decided with effect from February, 2002 -2003. It is
submitted by corporation that the said premises is old one and does not relate
to same road, where as present premises are new one and has been newly
assessed. It has not been explained in the orders impugned as to how said
premises can be considered as comparable unit with the present Flats which
are within newly constructed building. Since the Annual Valuation of the
premises No. 32/36 Chandi Ghosh Road was decided almost 12 years back,
obviously during this long period of twelve years, the rental value has been
substantially increased. Even learned Tribunal has not discussed anything
about the entries made in inspection Book. He thus prayed for setting aside the
orders.
10. The Kolkata Municipal Act 1980 provides the detailed provisions of
taxations and property tax under part-IV Chapter XII of the said Act. Under
section 180 of the said Act the Annual Valuation of a land or building may be
revised on the grounds mentioned in the said provisions under the said Act.
Section 184(4) of the said Act mandates that before making any revision/
fixation of Annual Valuation, Municipal Commissioner shall give notice of not
less than thirty days to the owner enabling the said person to raise objection to
the proposed Annual Valuation . Section 188 of the Act deals with hearing and
determination of objections of valuation. Section 189 of the Act of 1980
provides for preferring appeal before the Municipal Assessment Tribunal for
disposal of appeal preferred against order passed under section 188 of the Act.
11. The State Government by virtue of section 600 of the Said Act of 1980
has framed the Kolkata Municipal Corporation (Taxation) Rules, 1987. Section
188 of the said Act read with Rule 9(3) of the said Rule, provides detailed
procedure for hearing and disposal of an objection to the proposed Annual
Valuation of the property in question. Said provisions make it clear that the
duty casts upon Hearing Officer to adhere to the said procedure while dealing
with the objection under section 186 of the Act. The Hearing Officer under Rule
9(3) (c) of the said Rule is vested with the jurisdiction to call upon the person
appearing before him at the time of hearing to file written statement supported
by duly sworn-in affidavit, if necessary giving particulars of his submission in
support of the disputes raised against the proposed Annual Valuation of the
property. Similarly Tribunal by virtue of Rule 15 enjoys the power of Civil
Court to secure and to summon any witness or for production of any
document which the tribunal may require for disposal of the appeal before it
and the detailed procedure for hearing of the appeal has been laid down in
Rule 19 of the said Rule, which includes local inspection, in case of necessity,
of such premises, which are the subject matter of appeal as provided in Rule
20 of the Rules of 1987.
12. Here the Tribunal by the order impugned has modified Annual Valuation
of the said Flat on the basis of judgment passed by the self same Tribunal in
MAA 108/2015 and Mayor's report. Merely because property in the said
referred judgment is situated under the same ward of the Kolkata Municipal
Corporation or may be within the same locality where the said Flats are
situated, cannot be the yardstick of assessment for computing the Annual
Valuation of the present Flats, in a newly constructed premises. The Tribunal
being the Quasi Judicial authority is bound to follow the procedure while
discharging its duty.
13. That apart the order under challenge is not supported by reason though
the requirement of recording adequate reason by a quasi judicial authority is
must under Rule 21 of the Rule of 1987. Learned Tribunal though referred
India Automobiles Limited Case (supra) but did not consider the Apex
Court's observation in Paragraph 25 where it has been clearly stated that the
Appellate Tribunal shall consider the appeals in the light of the judgment by
keeping in mind all the circumstances including the rent actually received by
the owner of the building and the rent being paid to the tenant by his sub-
tenant. The Appellate Tribunals are also directed to keep in mind the peculiar
circumstances of the case, if any, for determining the gross Annual rent at
which the building in controversy at the time of assessment is reasonably
expected to let from year to year, less the allowance and other considerations
referred to in section 174 of the Act of 1980. The court has also framed a
guideline to this context in paragraph 23 of the judgment.
14. Accordingly it is apparent, while modifying order of the Hearing Officer,
the learned Tribunal had not given any cogent reason for such modification in
violation of the principle of Natural Justice and also in violation of statutory
obligations as stated above, which is casted upon the Tribunal for assessment
of Annual Valuation.
15. In view of above facts and circumstances of the case I find that the order
impugned are not sustainable as modification of the Annual Valuation has not
been done on the basis of the norms laid down in the statue and has been
arbitrarily settled without following the procedure laid down in the judgment.
Accordingly I have no other option but to set aside the impugned orders
passed by Municipal Assessment Tribunal in MAA 504 of 2015, MAA 689 of
2015 , MAA 493 of 2015 , MAA 488 of 2015 , MAA 502 of 2015 , MAA 500 of
2015 , MAA 492 of 2015 , MAA 688 of 2015 , MAA 490 of 2015 , MAA 501 of
2015 , MAA 491 of 2015 with a direction to decide the aforesaid appeals afresh
in compliance with the provisions as laid down in the Kolkata Municipal
Corporation Act, 1980, rules thereunder as well as guidelines as laid down by
the court, and also considering available materials on record including the
inspection book copies, preferably with a period of six months from the date of
communication of the order.
16. C.O. 1505 of 2020, C.O. 1494 of 2020, C.O. 1495 of 2020, C.O. 1496 of
2020, C.O. 1497 of 2020, C.O. 1499 of 2020, C.O. 1500 of 2020, C.O. 1501 of
2020, C.O. 1502 of 2020, C.O. 1503 of 2020, C.O. 1504 of 2020 are
accordingly allowed. Let a copy of this order shall be placed in the record of
each of the aforesaid cases.
There will be no order as to costs.
17. Urgent photostat certified copy of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(AJOY KUMAR MUKHERJEE, J.)
