Judgment Satyabrata Sinha, J : 1. This appeal is directed against a judgment and order dated 20.8.1992 passed by Susanta Chatterjee, J. whereby and whether the writ petition filed by the writ petitioner was dismissed. 2. The petitioner filed the aforementioned writ application questioning a demand in respect of premises No. 53A, 53B and 55C, Diamond Harbour Road and as also an order for separation of the original premises. 3. Admittedly, the premises in question in 69 Diamond Harbour Road old having the annual valuation of Rs. 13,000/- only wherefor a sum of Rs. 2,916/- was payable by way of Municipal Taxes. On or about 5th September, 1984 a deed of lease was executed by all the trustees of Matilal Seal Trust who is the owner of the property in favour of Mis. Swadeshi Pesticides of which the appellant-company is the sole proprietor on a monthly rent of Rs. 22,000/- with a right to demolish the existing buildings and construct multi-storyed buildings and transfer or sub-lease the same. The said land messures an area of 4 bighas 10 cottahs and 6 chitacks and 37 sq. ft. of land. 4. The appellant applied for mutation of their names in the office of the Respondent Corporation. It may be noticed that the said deed of lease did not include a portion of the premises being 69 Diamond Harbour Road which comprises of a Thakurbari and a common passage. Allegedly a building plan was sanctioned but the validity thereof expired. Another litigation is pending in relation to the said matter. 5. According to the respondent a notice was issued to Swadeshi Pesticides on 19th December, 1984 for forwarding the relevant documents with copies for inspection on 8th January, 1985 which were produced on 16th January, 1985. Allegedly, a proposal was submitted as regards separation and mutation since a portion in the middle being Thakurbati along with the common patway was to be separated to which both the lessor and the lessees agreed and approved. The said assertion on the part of the Corporation is denied and disputed by the appellant. 6. On 25th May, 1985 the proposal was approved as desired by the parties. On 27th May, 1985 a notice of assessment was served upon M/s. Swadeshi Pesticides which was allegedly accepted by Mr. The said assertion on the part of the Corporation is denied and disputed by the appellant. 6. On 25th May, 1985 the proposal was approved as desired by the parties. On 27th May, 1985 a notice of assessment was served upon M/s. Swadeshi Pesticides which was allegedly accepted by Mr. M.C. Rungta but as despite the same no objection was filed, the premises were re-numbered upon separation thereof and valuation was made on the basis of the aforementioned monthly rental by an order dated 30th July, 1985. It is alleged that a letter was issued by Swadeshi Pesticides authorising Sri S.R. Nyer so as to enable its representative to explain as to why the explanation could not be filed within the stipulated parties. Allegedly no action can be taken on the said letters as the hearing officer had already determined the valuation. 7. The aforementioned facts are, however, denied and disputed by the appellant. It has been pointed out that prior to 15th February, 1990 neither the notice of amendment and valuation on hearing was served upon the appellant nor any notice regarding separation and mutation was ever given but only notice of demand was served upon it. It is further stated that only in the year 1990 the demands were served from 5th quarter of 1989-90. 8. Although parties have argued before us in great details, we are of the opinion that keeping in view of the facts and circumstances of this case it is not necessary to decide all the questions raised by the learned Counsel. 9. Admittedly, before the learned trial Judge no affidavit-in-opposition had been filed by the Calcutta Municipal Corporation. The entire purported assertion of fact is based upon the records of the case. Before us the records of the case had been produced which does not contain the alleged determination of valuation by the hearing officer. From the said records it appears that although a copy of the receipt showing receipt of the copy of the application for mutation and separation is on record but the said application itself is not on record. Before us the records of the case had been produced which does not contain the alleged determination of valuation by the hearing officer. From the said records it appears that although a copy of the receipt showing receipt of the copy of the application for mutation and separation is on record but the said application itself is not on record. As noticed hereinbefore, the appellant had categorically denied that they filed any application for separation and in fact, according to them, an application for separation had been made only by the trustees in respect of the Thakurbari and the common passage which was not subject matter of lease dated 8th September, 1984. 10. Mr. Jayanta Mitra, the learned Counsel appearing on behalf of the appellant inter alia, submitted that the purported valuation was illegal inasmuch as keeping in view the fact that the appellant could not construct the multi-storyed buildings for which the aforementioned lease was obtained, the valuation of the premises can not be based on actual rent payable in terms of the said deed of lease. The learned Counsel submitted that keeping in view the decision of the Supreme Court of India in Devan Daulat Rai Kapoor vs. New Delhi Municipal Committee and Ors. reported in AIR 1980 SC 541 , Dr. BalbiI' Singh & Ors. vs. M/s. M.C.D. & Ors. reported in AIR 1985 SC 339 , Bhagwant Rai & Ors. vs. State of Punjab & Ors. reported in AIR 1996 SC 95 , the premises could only be assessed on the basis of the hypothetical rent. 11. On the other hand, Mr. Das Adhikari, the learned Counsel relying on the various decisions, i.e. in Pushpalata Mondal & Anr. vs. Corporation of Calcutta reported in 81 CWN 437, Corporation of Calcutta vs. East India Commercial Company Pvt. Ltd. reported in 1982(1) CHN 360 , Municipal Corporation, Indore & Ors. vs. Smt. Ratnaprabha & Ors. reported in AIR 1977 SC 308 , Srikant Kashinath Jituri & Ors. vs. Corporation of the City of Belgaum reported in JT 1994 (6) SC 496, Indian Oil Corporation Ltd. vs. Municipal Corporation & Ors. reported in JT 1995(3) SC 626, Assistant General Manager, Central Banh of India Etc. Etc. vs. Commissioner, Municipal Corporation for the City of Ahmedabad etc. etc. vs. Corporation of the City of Belgaum reported in JT 1994 (6) SC 496, Indian Oil Corporation Ltd. vs. Municipal Corporation & Ors. reported in JT 1995(3) SC 626, Assistant General Manager, Central Banh of India Etc. Etc. vs. Commissioner, Municipal Corporation for the City of Ahmedabad etc. etc. reported in JT 1995(4) SC 310, and Fertilizer Corporation of India Ltd., Gorallhpur vs. Nagar Mahapalika, Gorakhpur reported in JT 1996(4) SC 488 submitted that the decisions of the Supreme Court in Devan Daulat Rai's case (supra) and Dr. Balbir Singh's case (supra) cannot have any application in view of the fact that there exists a non-obstante clause in the said Act. Such a non-obstante provision being absent in the provisions of Delhi Rant Control Ad and Punjab Municipal Act (3 of 1911) (s. 61), the decisions relied on by the learned Counsel have no application at all. 12. Upon perusal of the records although we are satisfied that the appellant had knowledge about the mutation and assessment proceedings as far back in the year 1985, there being no document to show as to whether the appellant had filed any application for separation and/or whether any actual order had been passed by the hearing officer in the year 1985, we are of the opinion, that the matter should be considered afresh by the hearing officer upon giving an opportunity of hearing to the appellant and/or its authorised representative. Our reason for the aforementioned conclusion is based on the fact that neither the order of the hearing officer is available on record nor there is anything to show that the appellant had themselves prayed for separation of the holdings. In fact, according to Mr. Mitra, if such separation of hearing is directed, the same would give rise to a great hindrance in the petitioner's attempt to get the building plan sanctioned. 13. Furthermore, prima facie it appears that the area of 53A and 53C of the Diamond Harbour Road do not tally with the area of the demised premises. 14. If the trustees had filed any application for separation, the area which was in their possession being not the subject matter of lease could have been separated. Such separation although may be passed under the provision of Calcutta Municipal Corporation Act such an order should be passed only after giving an opportunity of hearing to the parties who would be affected thereby. Such separation although may be passed under the provision of Calcutta Municipal Corporation Act such an order should be passed only after giving an opportunity of hearing to the parties who would be affected thereby. We are further of the view in a situation of this nature, the principles of natural justice should be complied with. 15. In view of our findings aforementioned that the matter should require a fresh hearing it is not necessary for us to consider as to whether any actual notice had been served upon the appellant and whether in the hearing the appellant was represented by Sri M.C. Rungta or not. However, there cannot be any doubt whatsoever that the appellant was aware of the pendency of the proceedings in view of the letters dated 31.7.1985 and 13.8.1985 which are on records whereby and whereunder they sought for an opportunity to explain as to why they could not file their objection within the stipulated period. 16. We may, however, now consider as to whether the Calcutta Municipal Corporation has the requisite jurisdiction to make the valuation on the basis of the actual rental payable by the lessee to the lessor. 16A. In terms of s. 185 of the said Act, the Municipal Commissioner may for reasons to be recorded in writing, amend any annual valuation in the Assessment List prepared under s. 184. However, prior there to a notice is required to be served. 17. An opportunity to file objection to provided under s. 188 of the said Act. Sub-so (3) of S. 188 postulates hearing of an objection and the hearing officer is required to supply the determination within 30 days to the person concerned. It is really strange that despite the communication dated 31.7.1985 and 13.8.1985 the authorities of the Calcutta Municipal Corporation did not intimate to the appellant that an annual valuation in respect of the holdings in question have already been determined. In fact, as notice hereinbefore evidently the demands had been raised only in the year 1990 for the 5th quarter of 1989. Such a communication, when asked for, appear" to be neeessary keeping in view the fact that any person aggrieved by such an order is entitled to prefer an appeal in terms of s. 189 of the said Act as also in certain cases, file an application for review under s.192 thereof. 18. Such a communication, when asked for, appear" to be neeessary keeping in view the fact that any person aggrieved by such an order is entitled to prefer an appeal in terms of s. 189 of the said Act as also in certain cases, file an application for review under s.192 thereof. 18. There cannot be any doubt whatsoever that the Corporation being State within the meaning of Article 12 of the Constitution of India, must act fairly and reasonably. However, it is not a case where we can hold that the appellant had not been noticed at all and in this view of the matter it is not necessary to refer to the decisions cited at the Bar. 19. However, the contention of Mr. Mitra to the effect that the valuation of the holdings could not have been done on the basis of the actual rental as per the terms of the deed of lease cannot be accepted. Section 174 of the Act begins with a non-obstante clause to the effect "notwithstanding anything contained in the West Bengal Premises Tenancy Act, 1956 or any other law for the time being in force" and goes on to say that "for the purpose of assessment the consolidated rate the anual rent including service charges, if any, at which such rent or building might at the time of assessment be reasonably expected from year to year......" 20. Section 174 therefore, does not run counter to the proposition that such valuation has to be only on the basis of a hypothetical rent and not on the basis of actual rent. It even need not be on the basis of the fair rent as s. 174 of the Calcutta Municipal Corporation Act contains on overriding provision and thus valuation of a holding is not dependent on determination of fair rent. In any event in this case no such rent has been assessed. If any fair rent has been assessed the same may be held to be payable-by the tenant to landlord. But unless such fair rent is assessed, the tenant is bound to pay the contractual rent to the landlord which per se is not illegal. However, it does not mean that the Corporation is bound to assess only on the basis of actual rent. 21. In Devan Daulat Rai Kapoor etc. vs. New Delhi Municipal Committee and Anr. etc. But unless such fair rent is assessed, the tenant is bound to pay the contractual rent to the landlord which per se is not illegal. However, it does not mean that the Corporation is bound to assess only on the basis of actual rent. 21. In Devan Daulat Rai Kapoor etc. vs. New Delhi Municipal Committee and Anr. etc. reported in AIR 1980 SC 541 upon which strong reliance has been placed by Mr. Mitra, the Supreme Court was considering the provision of Punjab Municipal Act. In the said decision he Apex Court relied upon a judgment of the Supreme Court in The Corporation of Calcutta vs. Sm. Padma Debi & Ors. reported in AIR 1962 SC 151 . 22. Padma Debi's case (supra) was rendered at a point of time when the Calcutta Municipal Corporation Act was not amended. Padma Debi's case (supra) was distinguished by the Supreme Court in Municipal Corporation. Indore and Ors. vs. Smt. Ratnaprabha and Ors. reported in AIR 1977 SC 308 , wherein it was held :- "While, therefore, the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be as 'notwithstanding anything contained in any other law for the time being in force'. It appears to us that it would be a proper interpretation of the provisions of clause (b) of s. 138 of the Act to hold that in a case where the standard rent of a building has been fixed under s. 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, but, where this is not so, and the building has never been set out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permissible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. While, therefore, we are in agreement with the view taken to Padma Debi's case (supra) that it would not be reasonable to consider fixation of rent beyond the limits fixed by the Rent Control Act as reasonable, it would not a proper interpretation of s. 138(b) of the Act to ignore the significance of its non-obstante clause altogether. While, therefore, we are in agreement with the view taken to Padma Debi's case (supra) that it would not be reasonable to consider fixation of rent beyond the limits fixed by the Rent Control Act as reasonable, it would not a proper interpretation of s. 138(b) of the Act to ignore the significance of its non-obstante clause altogether. That is why we have taken the view that it would be a fair and reasonable interpretation of s. 138(b) to hold that as no standard rent has been fixed so far in respect of the Viram Lodge, the Municipal Commissioner was justified in adopting another suitable criterian for determination the annual value of the building. There is in fact nothing in the Act to make it obligatory for the Commissioner to follow the provisions of the Madhya Pradesh Accommodation Control Act inspite of the non-obstante clause and to limit the annual value to any standard rent that the building might fetch under that Act." 23. It is, therefore, clear that where any non-obstante clause exists the matter will have to be considered on a different footing. Padma Debi's case (supra) proceeded on the basis that the hypothetical rent cannot exceed the limits of 1950 Act as such hypothetical rent must be commensurate with the market rent and not rent which the landlord may ask for from the tenants in an arbitrary manner. The aspect of the matter has been considered in Devan Daulat Rai Kapoor vs. New Delhi Municipal Committee and Anr. reported in AIR 1980 SC 541 , in the following terms :- "But it is not necessary for the purpose of the present appeals to probe further into the question of correctness of this decision, since there is no non-obstante clause either in s. 3(1) (b) of the Punjab Municipal Act, 1911 or in S. 116 of the Delhi Municipal Corporation Act, 1957 and this decision has therefore, on application." 24. In Dr. Balbir Sinha & Ors. vs. M/s. M.C.D, and Ors. reported in AIR 1985 SC 339 , the Supreme Court was again considering the Delhi Municipal Corporation Act the provisions of which were in pari materia with the Punjab Municipal Act and relying upon the decision of Balbir Singh (supra) it held that the standard rent determinable on the principles set out the Rent Act should be the upper limit for such valuation. 25. 25. In Bhagwant Rai and Ors. vs. State of Punjab and Ors. reported in AIR 1996 SC 95 , the Supreme Court again was dealing with the provisions of Punjab Municipal Act and relied upon its earlier decision in Dr. Balbir Singh's case (supra) and Devan Daulat Rai's case (supra). However, this aspect of the matter has also been considered by a Division Bench of this court in Pushpalata Mondal & Anr. vs. Corporation of Calcutta reported in 81 CWN 437 wherein Division Bench was considering the earlier Act namely, Calcutta Municipal Corporation Act, 1951. It is stated that when a revaluation is made the owner gets a fresh right to file objection. However, in Corporation of Calcutta vs. East India Commercial Company Pvt. Ltd. reported in 1982(1) CHN 360 , a Division Bench of this court has clearly held that valuation may be based on the contractual rent unless a fair rent is fixed. 26. In Srikant Kashinath Jituri & Ors.. vs. Corporation of the City of Belgaum reported in JT 1994(6) SC 496, the Supreme Court already expressed doubts as to the roundness and continuing relevant of fair rent alone as the determinative factor for property tax keeping in view the fact that the Municipality has to render a public service on the basis of the tax realised by it. Furthermore in Indian Oil Corporation Ltd. vs. Municipal Corporation & Anr. reported in JT 1995(3) SC 636, Ratnaprava (supra) was followed. The Supreme Court deprecated the High Court which refused to follow the Ratnaprava on the' basis of the subsequent decision holding :- "As has been stated, clause (b) of s. 138 of the Act provides that the annual value of any building shall notwithstanding anything contained in any other law for the time being in force be deemed to be the gross annual rent for which the building might reasonably at the time of the assessment be expected to be let from year to year', While therefore, the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be as 'notwithstanding anything contained in any other law for the time being in force'. It appears to be that it would be a proper interpretation of the provisions of clause (b) of s. 138 of the Act to held that in a case where the standard rent of a building has been fixed under s. 7 of the Madhya Pradesh Accommodation Control Acts and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, but, where this is not so, and the building has never been let out, and is being used in a manner where the question of fixing its standard rent does not arise, it would be permissible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. This view will, in our opinion give proper effect to the non-obstante clause in clause (b), with due regard to its other provision that the letting value should be reasonable." 27. There was no non-obstante clause (which has been inserted later on) and such a provision being there in Madhya Pradesh Rent Control Act, the law was stated in the following terms :- "There is in fact nothing in the Act to make it obligatory for the Commissioner to follow the provisions of the Madhya Pradesh Accommodation Control Act in spite of the non-obstante clause and to limit the annual value to any standard rent that the building might fetch under that Act." 28. In Assistant General Manager, Central Bank of India vs. Commissioner, Municipal Corporation for the City of Ahmedabad reported in JT 1995(4) SC 310, it was held that the Supreme Court distinguished Devan Daulat Rai's case and followed Ratna Prava as also the decision in Srikant Kashinath Jituri & Ors. vs. Corporation of the City of Belgaum reported in JT 1994(6) SC 496, and held :- "Where the standard rent is not fixed, the actual rent received shall be deemed to be the annual rent in which the property might reasonably be expected to be let, notwithstanding anything contained in any other law. The non-obstante clause prevents the application of the "Bombay Rent Act to cases falling under proviso(s) for determing the rent at which the property might reasonably be expected to be let. The provisions concerned herein are akin to the provision considered in Ratna Prabha and not with the provisions concerned in the decisions relied upon by the appellants." 29. The non-obstante clause prevents the application of the "Bombay Rent Act to cases falling under proviso(s) for determing the rent at which the property might reasonably be expected to be let. The provisions concerned herein are akin to the provision considered in Ratna Prabha and not with the provisions concerned in the decisions relied upon by the appellants." 29. However, this does not mean that the assessing office would mechanically follow the contractual rent if, there exists any other material therefor. It is upon the hearing officer to consider the materials which may be placed by the parties before passing a final order, we have, however, dealt with this matter in view of the fact that a great deal of arguments have been advanced before us that contractual rent cannot be the basis for determination of the annual valuation. 30. For the reasons aforementioned this appeal is allowed in part. The judgement and order passed by the learned trial judge is set aside and the matter is remitted back to the hearing officer for a decision after giving an opportunity of hearing to the appellant. Keeping in view the facts and circumstances of the case we direct the hearing officer to pass an appropriate order as early as possible and preferably within a period of four weeks from the date of communication of this order. The appellant, it does without saying shall render all co-operation in disposal of the matter. It will also be open to the hearing officer, keeping in view that the notices served upon the appellant to make assessment with retrospective effect. In the facts and circumstances of this case there will be no order as to costs. Satya Narayan Chakraborty, J.: I agree. Appeal allowed in part. The judgement and order of the learned trial fudge set aside.