Calcutta High Court
M/S. Monotona Marketing (P) Ltd vs The Kolkata Municipal Corporation & Ors on 13 May, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Rai Chattopadhyay
WPO 903 of 2021
M/S. Monotona Marketing (P) Ltd.
Vs.
The Kolkata Municipal Corporation & Ors.
For the Petitioner : Mr. Dhiraj Trivedi
: Mr. Bikash Kr. Singh
: Mr. Sunil Gupta
: Ms. Swapna Jha
For the KMC : Mr. Alak Kr. Ghosh
: Mr. Manojit Pal
Judgment on : 13/05/2025
Rai Chattopadhyay, J. :-
1. The writ petitioner is the lessee of the premise in question, who
is aggrieved with the letter of intimation issued by the
respondent/Kolkata Municipal Corporation, dated March 25,
2021, enumerating there in the total outstanding property tax
of the petitioner to be Rs. 55,15,196/-. The petitioner is also
aggrieved and dissatisfied with the notice of demand issued by
the said respondent dated August 6, 2021, demanding payment
of Rs. 59,37,328/- as property tax including interest and
penalty for the premise No. 27, Ezra Street. The petitioner's
further grievance is that the said respondent Authority has not
even taken up it's written representation dated June 17, 2021
for consideration, by dint of which the petitioner has ventilated
its grievances and sought for redress thereof. The petitioner is
also aggrieved that in spite of the premises having been
declared as a Grade-I heritage property, the
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respondent/Corporation has willfully refuted to enter into any
agreement with the petitioner as per provision under section
425K of the Kolkata Municipal Corporation Act, 1980, in order
to exonerate the petitioner from payment of municipal taxes, in
respect of the said heritage property. According to the
petitioner, it's statutory and legal rights are infringed in this
way due to the inaction as above of the respondent Authority.
Hence, this petition is filed.
2. Mr. Tribedi, learned counsel, has represented the writ
petitioner. He says that the petitioner holds the legal and valid
leasehold rights over the premises No. 27 and 31, Ezra Street,
Kolkata - 700001 and also No. 19, Parsi Church Street,
Kolkata- 700001. Two separate lease deeds were executed on
December 9, 1994, by the trustee-shebait/lessor namely,
Rustomjee Cowasjee Fire Temple/Agiari Religious Endowment,
for a term of 99 years and having separate renewal clause.
That, the petitioner has been maintaining, preserving and
looking after the premise in terms of the said lease deed, since
the year 2003. It is stated that though a few tenants are
residing there in, but the property is heavily infested with illegal
occupants and trespassers. It is submitted that the petitioner's
endeavour for repair and expansion of the existing building, by
obtaining a sanctioned plan for the same from the
respondent/Corporation has gone in vain, in so far as, for
reasons unknown, the said respondent has refused to accept
the statutory fees for sanction of plan. Hence, according to the
petitioner, neither repair of the building could be done nor any
construction could be made at the same premise and the
existing building lies in a dilapidated condition.
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3. Mr. Tribedi learned counsel has stated that the said property at
premises No. 27, Ezra Street, Kolkata 700001, has been
declared as a Grade-I heritage property by incorporating the
same into the 'List of heritage properties, volume -XI',
published as on February 25, 2009, by the Heritage
Conservation Committee of the respondent Corporation. The
petitioner as the lessee thereof and possessing the valid
leasehold rights for 99 years, therefore having status akin to
that of the owner of the premises, has been duly discharging
the responsibility for preservation, conservation, and
maintenance of the said premises that being a heritage
property. As the premises is largely occupied by the illegal
occupants, the petitioner has expressed grievance that it is
deprived of the usufructs by utilisation of the premises for
generating income sufficient for maintenance of the said
premises. In such circumstances, the petitioner has sought for
that the respondent/Corporation may invoke provision under
section 425K of the Kolkata Municipal Corporation Act, to enter
into an agreement with the petitioner for exemption of taxes
and charges with respect to the said property. Mr. Tribedi has
mentioned about a writ petition earlier filed by the present
petitioner, with respect to the self-same property. He says that
in the order of the Court dated June 14, 2023, in WPO 2346 of
2022, the Court has mentioned about the illegal occupants and
trespassers within the premises of the said heritage building
and it's dilapidated condition. A conservation architect was
appointed by the Court to chalk out a plan for preservation and
conservation of the heritage premises 26, Ezra Street. It is the
submitted that the conservation architect appointed by the
Court has submitted his report that due to non-demarcation of
the boundary wall of the premises No. 26, 27 and 31 Ezra
Street and due to serious hindrance in egress and ingress to
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and from the said premises due to the occupation by the
unauthorised occupants and trespassers, the said appointee
was not at all able to enter the premise. Hence, in spite of
paying remuneration to the Court appointed conservation
architect, the petitioner has not been able to obtain a plan as
desired by the Court. According to the petitioner, the income
from rent collected from the tenants in the said premises is
insufficient for maintenance thereof and there is serious crunch
of adequate fund, so that a Grade-I heritage building like that
at premises No. 26, Ezra Street, can be maintained as per the
standards akin to its status. That with such meagre income,
the petitioner is also unable to bear the tax burden of the said
heritage property. Mr. Trivedi has argued that the petitioner's
case is the apt one in which the respondent should invoke
provisions under section 425K of the Kolkata Municipal
Corporation Act and enter into an agreement with the
petitioner, to exonerate it from the tax burden of the said
heritage building.
4. The writ petitioner's further contention is that certificates of
enlistment have been unauthorisedly and illegally issued by the
respondents to the persons who have illegally occupied the
premises, without any verification whatsoever. That, such
certificates have been issued as against the premises numbers,
which do not actually even exist.
5. The writ petitioners have prayed for the reliefs as enumerated in
the said writ petition.
6. The respondent Corporation is not in unison with the ground
pleaded by the petitioner that the petitioner is entitled for the
benefit and appropriate action under the statutory provision as
per section 425K of the Kolkata Municipal Corporation Act. It
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has been submitted that the petitioner is only the occupier and
not the owner of the premises in question. It is submitted
further that there are categories prescribed under the said
provision of law as regards the persons who would be eligible to
be entered into an agreement with the respondent Corporation.
It is submitted that the same includes an owner of the premises
but not an occupier thereof. Therefore, according to the
respondent, the petitioner lacks the eligibility, competence and
authority under the law for the statutory provision as above to
be invoked for it. That the petitioner does not come within the
meaning of the word "owner" under the Explanation-II of
section 425A of the Act of 1980 for the purpose of Chapter-
XIIIA thereof. It is stated that entering into an agreement for
exemption from payment of property tax in respect of declared
heritage building is not a matter of course, but there should be
a genuine and valid requirement for the same. That, the power
of the Corporation to execute such an agreement is absolutely
discretionary. Therefore, according to the respondent, it is the
matter of objective satisfaction of the respondent Authority, as
to whether or not the legal provisions as afore stated, may be
invoked in case of the petitioner. It is submitted that the Court
sitting in writ jurisdiction may not extend any such relief as
prayed for in the instant case in so far as the petitioner is
unable to bring on record any violation of its statutory or legal
rights to be successful to obtain relief from the writ Court, as
prayed for. Instead, according to the respondent, the petitioner
is a habitual defaulter who has intentionally avoided paying
property tax for the said property. It is also submitted that
commercial activities are being carried on from the said heritage
building. The respondent has stated that in order to avoid
paying property tax, as stands outstanding for the said
premises, this case has been filed only involving one premise,
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out of the total four premises numbers which have been
declared as Grade-I heritage property. It is submitted that the
Parsi Fire Temple actually situates in the other adjoining
premises being 26 Ezra Street. According to the said
respondent, the petitioner's alleged action of evading taxes for
the said premises is in violation of the lease agreement, under
which it has claimed rights as regards the premises in question.
Also, that the petitioner has not been discharging its statutory
obligation under section 425A of the Kolkata Municipal
Corporation Act by duly maintaining, preserving and conserving
the heritage property. According to the respondent, it bears no
statutory obligation under section 425K of the Act of 1980
towards the petitioner, who is the lessee and occupier of the
premises and not the owner, to enter into an agreement with as
per the said provision of law. On the contrary, the petitioner, in
terms of the lease agreement as mentioned above and as it is
the lessee thereof, is obliged to pay property taxes to the
respondent for the said premises, which it has admittedly
defaulted to pay.
7. It is also an admitted fact in the instant case that, the premises
at 27, Ezra Street, along with the adjoining premises No. 26 and
31, Ezra Street 19, Parsee Church Street have been declared as
heritage premises being religion/Parsee Fire Temple, of Grade-I
category. The duties and responsibilities for maintenance,
conservation and preservation of the heritage premises as
above, lies with the person in charge of maintenance thereof, in
this case being the writ petitioner in his capacity as lessee and
possessing leasehold right of the said property.
8. The factual background is more or less undisputed in this case.
The petitioner is the lessee with respect to the premises in
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question, by dint of a lease deed being executed by the trustee
thereof in its favour. Since the date of execution of the lease in
favour of the petitioner for 99 years, the petitioner is in
possession of the premises and resides therein. These are the
admitted facts in the case. Also admitted is that, a letter of
intimation dated March 25, 2021 and notice of demand dated
August 6, 2021 have been served upon the writ petitioner being
the occupier of the premises for payment of Rs. 5937328.18/-
including interest and penalty as the property tax of the
premises.
9. Therefore, the solitary issue remains for adjudication in this
case is whether the lessee/occupier/writ petitioner shall have a
right under Chapter XXIII A of the Kolkata Municipal
Corporation Act, 1980, more precisely under Section 225 K
thereof, that the provisions thereunder be invoked in this case
and an agreement be entered into with it by the
respondent/Corporation, granting exemption to the writ
petitioner to remit taxes for the said heritage property.
10. Chapter XXIII A of the Act of 1980 has been introduced by
dint of the Kolkata Municipal Corporation (Amendment) Act,
1997 (West Bengal Act XXVI of 1997). Chapter XXIII A is to
introduce provisions as to how the heritage buildings within the
jurisdiction of Kolkata Municipal Corporation can be identified,
declared, maintained, preserved and conserved. The same has
provided for obligation of the owner/occupier in case of the
property having been declared heritage, constitution of the
Heritage Conservation Committee and its powers and functions
and many other facets relating to identification, preservation
and conservation of the heritage property including power of the
respondent to exercise discretion to exempt for payment of
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property tax partly or fully for a property declared as a heritage
property.
11. The respondents have raised objection to the contentions
and prayer of the writ petitioner for the reason that in terms of
Section 225 K, the petitioner would not be eligible for benefit
thereunder in so far as the petitioner is not the owner of the
premises. It is stated that the owner of the premises has never
come up seeking for exemption of taxes thereof.
12. It is necessary that relevant statutory provisions be gone into
to ascertain the status of a lessee/occupier of the premises like
the petitioner who possesses leasehold right of the property by
virtue of a lease of 99 years. The word "occupier" has been
defined under Section 2(60) in the following words:-
"(60) "occupier" includes any person for the time being paying or liable
to pay to the owner the rent or any portion of the rent of the land or
building in respect of which the word is used or for damages on
account of the occupation of such land or building, and also a rent-free
tenant.
Provided that an owner living in or otherwise using his own
land or building shall be deemed to be the occupier thereof;"
13. Under the Kolkata Municipal Corporation Act, 1980 an
"occupier" is primarily defined in relation to property taxes and
the enforcement of building regulations. Essentially, an
occupier is a person who has possession or control of a land or
building and may be required to pay property taxes or to carry
out work required by the Corporation. It is evident in this case
that according to its own assertion, the Corporation has raised
bills for property tax against present petitioner. Obviously it
being "occupier" of the premises by virtue of the lease deed, has
been entrusted for payment of property tax for the same to the
Corporation, in accordance with law.
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14. For the purpose of this case, one need to understand that an
"occupier" in accordance with the statutory provision as
mentioned above, is a person who pays rent for the property
kept by him, to the owner thereof. The Act of 1980 outlines
provisions for recovery of property tax from occupiers. Section
225 K of the Act permits the Municipal Commissioner to issue
notices to the occupiers requiring them to pay to the
Corporation to satisfy property tax dues. The Municipal
Commissioner can also direct the occupiers to undertake work
that the owner might otherwise be required to perform under
the statute, as laid down in Section 299 of the Act of 1980.
Occupiers are also bound to carry out such work with
provisions for them to deduct expenses from rent or recover
them from the owner, unless there is an agreement to the
contrary. Occupiers are also subject to the building regulations
and other provisions of the said Act, related to use and
maintenance of buildings for example, they may be required to
comply with safety regulations or to cover their building that it
does not cause a nuisance. Section 181 of the Act outlines the
requirement for the owners and the occupiers to comply with
the notices issued by the Corporation to provide returns related
to their property. Occupiers may also have obligations related to
the maintenance of public areas within their premises,
compliance with zoning regulations and other provisions of the
Act. In view of "explanation" under Section 266 of the Act of
1980 it appears that the words 'the person at whose instance'
shall mean the owner, occupier or any other person, who
causes the creation of any building or execution of any work to
be done, including alterations or additions if any, or does it by
himself.
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15. Therefore, on a careful perusal of the provisions in the
statute in general it appears that, the law has bestowed similar
responsibility to the occupier of the building that is, a person
who pays rent for his occupation therein to the original owner
of the building, akin to the original owner and the occupier is
responsible for discharging of all statutory liabilities in respect
of the building as if he was the owner thereof, in the event of
his occupation in the building, in lieu of rent.
16. The scheme of the Act as above cannot be understood to
have been diverted from while promulgation of Chapter XXIII A
containing Sections 425 A to 425 P, introduced by the Kolkata
Municipal Corporation (Amendment) Act, 1997 (West Bengal
Act XXVI of 1997), with effect from December 22, 1997.
17. Section 425 A bears the heading "Owner to Maintain,
Preserve and Conserve Heritage Building". The Section itself
has considered the owner and occupier of any heritage building
on similar footing which would be evident from the words used
in the Section as above. Let those be mentioned has
hereinbelow:-
"Every owner or occupier of the heritage building declared as
such by the Corporation shall maintain, preserve and conserve
it..."
18. Explanation II says that the word "owner" under Section 425
A includes a joint owner or successor in title of any joint owner
or the Manager, trustee, person vested with power of
management of a heritage building or successor in office of
such Manager or trustee. Pertinent is to note that none of the
provision as contained in the said Chapter has excluded in
express terms, either the word "occupier" or any of the
responsibilities/statutory liabilities of the "occupier", has to be
performed by him as per the statute and in place instead of the
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owner of the property. For the sake of reiteration, it would also
be beneficial to mention that Section 425 A has bestowed the
right for maintenance, preservation and conservation of the
heritage building, either upon the owner or the occupier
thereof.
19. Keeping in mind the scheme of the Act including that
contemplated in Chapter XXIII A as regards the status of an
occupier in the heritage building, let the provisions under
Section 425 K be considered for once:-
"425K. If the owner of a heritage building enters into an
agreement with the Corporation to maintain, preserve and
conserve such heritage building property at his own expenses,
the Corporation may, in such case, exempt wholly or partly the
owner of such heritage building from payment of rates or taxes
or fees for supply of water or any other charge in respect of such
heritage building."
20. The respondents have heavily relied on this provision of law
and their contention is that, excepting owner no one would be a
competent person as per the said provision of law to enter into
an agreement with the Corporation for exemption wholly or
partly of the rates of taxes or fees to the said heritage building.
21. The Court is afraid that the submission of the respondent
runs contrary to the scheme of the Act itself. As discussed
elaborately hereinabove, the occupier of a premises has been
bestowed with the similar responsibility to comply with the
statutory provisions as that of the owner. His occupation in the
building is acknowledged so much so, that in case of the
property being declared as a heritage building, an occupier has
been bestowed with the responsibility of maintaining,
preserving and conserving the said heritage building. Therefore,
one cannot find any difference between the occupier and the
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owner of a building so far as control of the building is
concerned as well as compliance with the statutory provision
towards the respondent/Corporation for the said building is
concerned. By arguing as above, the respondents have intended
to create a class between the class. Though, the said
respondent has not denied petitioner's liabilities as an occupier
and lessee of the concerned premise, to comply with the
statutory provisions. But in case of extending benefit under the
statute itself, it raised objection which is not only irrational but
arbitrary.
22. After discussing the statutory provisions as above, the Court
is of considered opinion that the legislature has not made a
discrimination between the owner and the occupier in lieu of
rent, so far as application of provision of this statute upon them
is concerned. Hence, if an occupier in lieu of rent of the
premises, is entrusted for due compliance with the liabilities as
provided under the Act with respect to the said building, it
would only be arbitrary and unjust to find that he cannot
similarly, rightfully claim benefit under the said Act, in this
case particularly, in terms of Section 425K. The Court finds
that the statutory scheme has put the occupier in lieu of rent in
a premises including in a heritage building, in the shoes of the
owner and virtually no classification between the owner and the
occupier in lieu of rent can be made so far as the provisions of
1980 Act is concerned.
23. Therefore, the Court is of considered opinion that the word
owner occurring in Section 425K would mean and include the
owner and the occupier who resides in the premises in lieu of
rent. The petitioner would definitely come within the said
category being the lessee over there, who has been inducted by
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dint of a validly executed lease deed. It is pertinent also to note
that the said lease deed has not been challenged in the instant
case.
24. For the reasons as discussed above, the Court is of
considered opinion that it would be irrational, arbitrary and
illegal to distinguish the petitioner from that of an owner of the
premises, in view of the statutory scheme as discussed above.
In such view of the fact, the Court further finds that the
petitioner would be eligible for being granted the benefit as per
Section 425K of the Kolkata Municipal Corporation Act, 1980
by entering into an agreement with it by the Corporation.
Hence, this writ petition is allowed with the following
directions:-
i. The notice of demand issued by the
respondent/Corporation dated August 6, 2021 for
payment of Rs. 59,37,328.18/- be kept in abeyance
till completion of the process as directed bellow;
ii. Let the Corporation consider entering into an
agreement with the petitioner in terms of Section
425K and in order to grant exemption wholly or
partly of the taxes or fees for such heritage
building.
iii. In doing so, the respondent/Corporation shall seek
attendance of the petitioner for a meeting with it
and pass a detailed resolution in the said meeting.
The resolution as above, shall bear the reasons, if
not an agreement is immediately entered into by the
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Corporation with the writ petitioner, in accordance
with law;
iv. The entire exercise as above, should be concluded
by the respondent/Corporation within a period of 8
weeks from the date of communication of this
judgment.
v. A fresh demand notice may be issued, if at all
necessary, only after conclusion of the exercise as
directed above and in terms of the decision arrived
at during the course.
25. Urgent certified website copy of this judgment, if applied for,
be supplied to the parties upon compliance with all requisite
formalities.
RAI Digitally signed by
RAI
CHATTOP CHATTOPADHYAY
Date: 2025.05.13
ADHYAY 13:32:33 +05'30'
(Rai Chattopadhyay, J.)
