Calcutta High Court
Vishal Barmecha vs Kolkata Municipal Corporation And Ors on 28 November, 2023
OD-04
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WPO/188/2021
VISHAL BARMECHA
VS
KOLKATA MUNICIPAL CORPORATION AND ORS.
BEFORE:
The Hon'ble JUSTICE RAI CHATTOPADHYAY
Date : 28th November, 2023.
Appearance:
Mr. Ankit Agarwal, Adv.
Mr. Sujit Banerjee, Adv.
Mr. Nilay Sengupta, Adv.
....... For Petitioners.
Mr. Biswajit Mukherjee, Adv.
Ms. Manisha Nath, Adv.
....... For KMC.
The Court :- The petitioner has filed the present writ petition to pray for
orders directing the respondent authorities to act in accordance with law and
to set aside the demand of enhanced tax as against the property of the
petitioner.
The concerned property is at premises No. 12/1C/A and 12/1C/B,
Monohorpukur Road, P.S: Tollygunge, Kolkata-700026. The residential unit is
measured about 965 Sq ft super built up area. By dint of the deeds of
conveyance dated 9th August, 2006 and 15th April, 2007 respectively, the
petitioner is said to have purchased the said property, and subsequently
mutated it.
By referring to the annexed documents Mr. Agarwal representing the
petitioner has pointed out that so far as the "premises No. 12/1C/A", is
concerned, his client used to pay taxes on demand made, to the tune of Rs.
142/- for four quarters of a year. He says that his client has been duly
remitting the tax as calculated by the respondent authority. Allegedly, all on a
sudden with effect from 1st quarter of the year of 2021, the respondent
municipal authority have enhanced tax of the property in respect of the said
premises No. 12/1C/A to the tune of Rs. 1,34,209/-. At the same time a
demand of total amount of Rs. 509566/- was also made vide by the demand
notice dated 23.12.2002.
The petitioner is aggrieved on the following scores:-
Firstly, the petitioner is expressing grievances as regards the
maintainability, legality and propriety of the said enhanced amount of tax
made applicable to him. It is stated that the respondent authority without
issuing any statutory notice to the petitioner and without granting any
opportunity to him in terms of the applicable statute for hearing, has
unilaterally enhanced the property tax and made demand. It is submitted that
unless the assessee, that is, the writ petitioner here, is heard upon duly serving
him the notice, no such demand could lawfully be made by the respondent
authority.
Secondly, the petitioner says that the assessment of tax as above at the
enhanced rate and also the demand as raised by the municipal authorities
could not stand in the eye of law in view of the fact that the municipal
authority have failed to comply with the mandatory statutory provision of
supplying him a copy of the order of the assessment officer, by dint of which
the rate has ultimately been enhanced. Finally the petitioner says that his
grievance letter, i.e, letter dated 18th January, 2001, is still to be considered by
the respondent corporation and thus he has been deprived of exercise of the
vital rights of audi alteram partem, at the instance of the respondent
corporation. The petitioner seeks appropriate relief on the basis of the above
facts and grounds.
Mr. Mukherjee, has appear on behalf of the corporation/respondents.
Mr. Mukherjee has raised strong objections as to the grievance ventilated on
behalf of the petitioner. According to Mr. Mukherjee the petitioner has
changed the nature and usage of the property and purposefully has
suppressed the same from the respondent corporation, with the ulterior motive
to deprive the public authority to gain taxes as per law. Mr. Mukherjee has
referred to the annexed documents with the affidavit-in-opposition submitted
by the respondents, to show that in the year 2016 the petitioner has entered
into an agreement by virtue of which the concerned property has been
transferred as a commercial property from its previous nature and category of a
domestic household property. Therefore the actions of the respondent
corporation is justified, he says. That in such an event the corporation is
empowered to assess the property at an applicable rate, in view of the change
of nature of the same. So far as due service of notice of hearing upon the
petitioner is concerned, Mr. Mukherjee submits with conviction by referring to
certain documents annexed with the writ petition that under 'certificate of
posting' the notices as well as copy of the order have been served upon the
petitioner and the endorsement of the postal authorities justify the same.
Hence, according to Mr. Mukherjee it is only purposeful and after thought by
the petitioner to submit that no statutory notice or copies of order have been
served upon him. Mr. Mukherjee submits that thus the action of the petitioner
suffers from firstly, suppression of material fact, and also by non-compliance of
statutory duties and willfull avoidance of the statutory obligations. On these
facts and circumstances, according to Mr. Mukherjee, if the petitioner is able to
secure an order from this Court as prayed for, the same would hamper the
right of the respondent public authority to realise the tax as well as penalty
and other charges from the petitioner which the respondent authority is
obligated under law to materialise. So far as the pendency of the writ
petitioner's representation dated 18th January, 2001 is concerned, Mr.
Mukherjee has not offered any contradictory fact.
That the petitioner is the owner of the concerned premises, is a fact
unchallenged in this case. So is not denied, the facts of enhancement of tax as
regards the said premises, w.e.f 1st quarter of 2021. The petitioner says the
same to be illegal and arbitrary whereas according to the respondent authority,
in due exercise of its empowerment under the law, it acted. The counter
allegation is of suppression by the petitioner, regarding changing the nature
and usage of the property, which brings it within the perview of the enhanced
tax liability, where as petitioner has denied the same by referring to the fact
that his venture to enter into an agreement to allow the commercial use of the
property has been halted, by termination of such an agreement, with the other
party, upon refund of the advance amount of money. Hence, any change made
in the nature and usage of the property, is denied by the petitioner.
Therefore whether or not the characteristic of the property and its usage
has been converted from domestic purpose to a commercial purpose or not, is
lying at the core of the dispute between the parties. It is necessary that the
authorities reach at the core after hearing the petitioner. Admittedly the
petitioner was not heard, before the order of the Hearing Officer dated
30.10.2018 was passed. The said order of the Hearing Officer is the basis for
raising demands against the petitioner. The same, naturally appears to have
been passed without the Hearing Officer coming to any satisfaction and
decision as regards his conclusive finding, as to the alleged change in the
nature of the property. The order the Hearing Officer dated 30.10.2018 is
manifestly silent, in this regard.
On the premises as above, it is found proper that the petitioner be heard
by the Hearing Officer, before any order could be passed for enhancement of
the property valuation.
The submission made by Mr. Mukherjee appearing for the respondent
authorities, that under no circumstances the assessment in question and the
demand raised may be interfered into. The same is however, found not to be
acceptable on the following two scores. Firstly, that the order of the Hearing
Officer must contain the reasons leading to whatever decision is taken, which,
as discussed earlier, is manifestly absent in this case. An unreasoned order is
not sustainable. Secondly, that not only it is the petitioner's right that he be
heard before an order of enhanced liability is foisted upon him but also the
same would only facilitate the authorities to consider the matter in its right
perspective. It would always be open for the authorities to pass an appropriate
order as regards the rate of tax and the applicable tax of the house property for
the period for which it is outstanding, after affording the petitioner the
opportunity of hearing or otherwise the opportunity of hearing of the petitioner
before the authority would only be an empty formality and futile.
On the above premises this writ petition is allowed, setting aside the
impugned order of the Hearing Officer dated 30.10.2018 and impugned
demand notices of the respondent authority for tax as regards premises No.
"12/1C/A" and "12/1C/B". The respondent authority is directed to consider
petitioner's representation dated 08.01.2021, after affording opportunity of
hearing to the petitioner and also to consider his written objection, if any,
submitted for the purpose of this hearing, to come to a reasoned decision. This
exercise shall be concluded within a period of six weeks, from the date of
communication of this order, to the concerned authorities.
Writ petition no. WPO 188 of 2021 is disposed of.
Urgent photostat certified copy of this judgment, if applied for, be given
to the parties, upon compliance of requisite formalities.
(RAI CHATTOPADHYAY, J.)
Tudu
p.a
