Calcutta High Court (Appellete Side)

The Kolkata Municipal ... vs Mr. Rupen Mondal on 6 September, 2023

                IN THE HIGH COURT AT CALCUTTA
                 CIVIL REVISIONAL JURISDICTION
                         APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                          C.O. 1607 of 2018
                  The Kolkata Municipal Corporation
                                 Vs.
                          Mr. Rupen Mondal


For the petitioners                 :       Mr. Alok Kumar Ghosh
                                            Mr. Swapan Kumar Debnath

For the opposite party              :       Mr. Sankha Subhra Dutta


Heard on                            :       28.08.2023

Judgment on                         :       06.09.2023



Ajoy Kumar Mukherjee, J.

1. Felling aggrieved by the order dated 24th July, 2017 passed by learned

First Bench Municipal Assessment Tribunal , Kolkata Municipal Corporation

(KMC) in MA Appeal No. 1844 of 2012, arising out of an order dated 24th

April, 2017 passed by the Hearing Officer KMC relating to fixation of annual

valuation, present application under Article 227 of the Constitution of India

has been preferred.

2. Petitioner states that a new twelve storied building was constructed

at 9A, Jatindra Mohan Avenue, Kolkata-700006, consisting of several flats.

According to the petitioner said building is the best building on the said

road and locality with all amenities of drainages, sewerage, electricity, road,

water supply etc. of the KMC, which was completed within the first quarter

of 2008-09.

3. The opposite party purchased a flat measuring an area of 861 sq.ft.,

being Flat No. 8D, at 8th Floor of the building and a car parking space

measuring an area of 134 sq.ft. at the said premises.

4. Opposite party herein applied to the KMC to mutate her name against

the said purchased flat and the KMC authorities in due compliance with the

law mutated the name of the opposite party and gave assessee number.

KMC also issued notice, proposing the amount for assessment of annual

valuation in respect of the said flat w.e.f. second quarter of 2008-09. After

service of notice upon the opposite party, with the said proposal, the

opposite party herein raised her objection and by an order dated 6th August,

2012 the Hearing Officer of KMC after considering the objection fixed annual

valuation in respect of the said flat and car parking space at Rs.27,020/- for

the period w.e.f. 2/2008-09 taking into consideration, rent at the rate of

2.75 per sq.ft. per month for the flat and Rs. 1 per sq.ft. per month for open

car parking space.

5. Being aggrieved by the said order opposite party herein filed an appeal

being no. MAA No. 1844 of 2012 before the Municipal Assessment Tribunal

and learned 1st Bench of the Municipal Assessment Tribunal upon hearing

the parties in the appeal, passed the order impugned allowing the appeal in

part. The Tribunal modified the order of the hearing officer by reducing the

amount of annual valuation and fixed the same at Rs. 14,030/- for the

periods w.e.f. 2/2008-09.

6. Mr. Alok Kumar Ghosh, learned Counsel appearing on behalf of

petitioner submits that the tribunal should not have held that the annual

valuation of the premises in question would be Rs. 14,030/-. The Tribunal

committed wrong in fixing the annual valuation of the premises in question

at Rs. 14,030/- upon taking into account the rate of rent as fixed in the

Judgment passed in MAA No. 1819 of 2012 in respect of other flat which

was based on the judgment passed in MAA No. 335 of 2010 in respect of the

Premises situated on a lane namely Ram Chandra Ghosh Lane. Mr. Ghosh

further submits that the Tribunal failed to assign any reason having due

regard to the statutory provisions of law in support of it's determination of

annual valuation and as such the order of the Tribunal is not sustainable.

He further contended that the Tribunal failed to make any effort to ascertain

the estimated market rental value of the flat for the purpose of

determination of annual valuation of the premises in question and he also

did not consider the inspection book copies referred to by the petitioner at

the time of hearing of the appeal in it's true perspective. Accordingly Mr.

Ghosh has prayed for setting aside the order impugned.

7. Mr. Dutta learned Counsel appearing on behalf of the opposite party

submits that the assessment made by the hearing officer of KMC was

exorbitant and has been made without taking into consideration the

relevant provisions of law. Such assessment made by the hearing officer was

arbitrary and as such the Tribunal rightly allowed the appeal in part which

does not call for any interference.

8. I have considered submissions made by both the parties.

9. On perusal of the order impugned it appears that the said order was

passed relying upon the judgment referred to by the appellant /opposite

party herein passed in MAA No. 1819 of 2012 which relates to other flat of

the premises in Appeal, wherein RR has been fixed by the said bench of

Tribunal at the rate of Rs. 140 per sq.ft. per month for flat area and at the

rate of Rs. 0.70 per sq.ft. per month for car parking space w.e.f. 2008-2009.

Learned counsel appearing on behalf of the petitioner, Mr. Ghosh during

argument submitted that the order passed in the said MAA no. 1819 of 2012

has already been set aside by this High Court in C.O. No. 3368 of 2017 on

12.12.2018 and as such he submits that the judgment on the basis of

which the impugned order was passed, does not exist any more.

10. In fact in the present case, the Tribunal has modified the valuation of

the flat in question on the sole consideration of the order passed in MAA

1819 of 2012, which has got no existence at present. Further more the order

impugned is bereft of any cogent reason. Needless to say that Tribunal being

the quasi judicial authority is bound to follow the procedure laid down in

the KMC Act of 1980 and Rule of 1987 while discharging their duty.

11. On careful reading of section 174 (a) of the Kolkata Municipal

Corporation Act, 1980 it appears that the corporation is empowered to fix

the annual valuation of a premises for the purpose of determining, the tax to

be paid in respect of said premises. Apex Court while dealing with Municipal

laws in force in different states in India laid down guidelines for

determination of annual rent, which should be determined on the basis of:-

(a) Actual gross annual rent, where the premises has been let out.

(b) If the premises has not been let out then on rent of hypothetical

tenancy basis.

(c) Valuation arrived on the basis of capital value from which the

annual value has to be found applying a suitable percentage,

where either of the first two modes is not available.

(Bombay Municipal Corporation Vs. LIC, AIR 1970 SC 1584: 1970

(1) SCC 791 (para-8) & Guntur Municipal Council Vs. Guntur town

Rate Payers' Association (AIR 1971 SC 353): 1970 (2) SCC 803

(para 5& 6).

12. In this context it should be made clear that fixation of annual

valuation arbitrarily is not permissible under the law. Neither the

corporation nor the Tribunal is free to assess any arbitrary annual value

and corporation has to look to what is "fair rent" which would be payable for

the premises in question during the year of assessment under the West

Bengal premises Tenancy Act, 1997. The premises in question, if not

actually let out, then the hypothetical fair rent, rent of neighbouring

premises and other attending facts and circumstances of the potentialities

should be taken into account for the purpose of assessment of annual

valuation.

13. In India Automobiles Vs. Calcutta Municipal Corporation,

reported in AIR 2022 SC 1089, Apex Court observed:-

24. "......... We are of the view that the basis for determination of annual rent value has to be the standard rent where the Rent Control Act is applicable and in all other cases reasonable determination of such rent by the municipal authorities keeping in view various factors as indicated herein earlier, including the rent which the tenant is getting from his sub-tenant. In appropriate cases the owner of the property may be in a position to satisfy the authorities that the gross

annual rent of the building of which the annual valuation was being determined cannot be more than the actual rent received by such owner from his tenant. The municipal authorities shall keep in mind the various pronouncements of this Court, the statutory provisions made in the specified Municipal Acts, keeping in mind the applicability or non-applicability of the Rent Act and the peculiar circumstances of each case, to find out the gross annual rent of the building including service charges, if any, at which such land or building might, at the time of assessment, be reasonably expected to let from year to year in terms of Section 174 of the 1980 Act."

14. Since the Tribunal below failed to exercise jurisdiction vested in it by

law and reassessed annual valuation on the basis of a judgement, which has

already been set aside and that the Tribunal did not pass cogent speaking

order while refixing annual valuation of the premises, which caused grave

miscarriage of justice, I hereby set aside the impugned order concerning

annual valuation in respect of the premises in question for the period w.e.f.

2nd quarter of 2008-09, with a direction to decide MAA No. 1844 of 2012

afresh, keeping in mind the aforesaid guidelines and also on the basis of the

available materials on record, including the inspection book copies and also

following statutory rules in respect of determination and fixation of annual

valuation as laid down in the relevant provisions of the Kolkata Municipal

Corporation Act and Rules thereunder, within a period of six months from