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1997 DIGILAW 259 (CAL)

Jaginder Singh v. Calcutta Municipal Corporation

1997-06-26

Tarun Chatterjee

body1997
JUDGMENT Tarun Chatterjee, J.: The writ petitioners jointly purchased the premises No. 48, Circus Avenue, Calcutta-700 017, at a consideration of Rs. 18 lakhs from the original owner Pradip Addi by a registered Deed of Conveyance dated 31st March, 1992. Prior to purchase of the said premises, the annual valuation of the same was Rs. 16,740/- and the consolidated rate was fixed at Rs. 1607/- per quarter. After purchase of the said premises, the writ petitioner made an application for mutation of their names in respect of the said premises before the concerned authority of the corporation who upon due consideration of all the papers including the application for mutation asked the writ petitioners to deposit certain amount towards fees for mutation. The writ petitioners thereafter duly deposited the required sum and on deposit of the said sum the names of the writ petitioners have been duly recorded in respect of the said premises in the relevant register of the Calcutta Municipal Corporation (hereinafter referred to as the 'CMC). After disposal of the aforesaid mutation case by recording the names of the writ petitioners in respect of the said premises a special notice under s. 184 sub-s. (4) of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as the 'Act') dated 28th April, 1993 was served upon the writ petitioners from which it is learnt that the annual valuation of the said premises was proposed to be enhanced at Rs. 1,21,500/- with effect from 1st quarter of 1992-93. From the said notice, it appears that the enhancement was made on the ground which is as follows:- "As re-valuation of the premises due to change of ownership with effect from 1st quarter of 1992-93 on reasonably yearly rental less statutory allowance for repairs." 2. From a plain reading of the aforesaid notice, it appears that the annual valuation of the said premises was sought to be enhanced on the ground of change of ownership under S. 180(2)(i) read with S. 180 sub-s. (3) and S. 178 sub-s. (4) of the Act with effect from 1st quarter of 1992-93. Being aggrieved of the said premises, the writ petitioners duly raised objection. After giving hearing to the writ petitioners, the Heading Officer XII passed an order on 31st of May, 1993 determining and/or fixing the annual valuation of the said premises at Rs. Being aggrieved of the said premises, the writ petitioners duly raised objection. After giving hearing to the writ petitioners, the Heading Officer XII passed an order on 31st of May, 1993 determining and/or fixing the annual valuation of the said premises at Rs. 89,000/- with effect from first quarter of 1992-93, accordingly the quarterly rate of tax was fixed at Rs. 9,011/-. 3. The writ petitioners have moved this Court under Art. 226 of the Constitution challenging the notice dated 28th April, 1993 and the order passed by the Hearing Officer-XII dated 31st of May, 1993 fixing the annual valuation of the said premises at Rs. 89,000/- with effect from first quarter of 1992-93 as communicated by the letter of the Assistant Assessor, Division 25, dated 31st of May, 1993 and also taking of any action or step in pursuance thereof. The writ petitioners have however, preferred an appeal against the order of the Hearing Officer-XII before the Municipal Assessment Tribunal, Calcutta and the said appeal has been registered as Municipal Assessment Appeal No. 293 of 1993. 4. Mr. Ghosh, appearing on behalf of the writ petitioners raised mainly two questions for my consideration. According to him, the order of the Hearing Officer-XII is not at all a speaking order and the same is absolutely without any reason and, therefore, the order of the Hearing Officer-XII shall be liable to be set aside. Mr. Ghosh also contended that when the fair rental value of the said premises had already been determined in the last general re-valuation and there was neither any addition or alteration nor any other change in the circumstances relevant to valuation at all material times, it was not open to the Calcutta Municipal Corporation Authorities to discard the rental value and determine the annual valuation on the basis of the sale price. Mr. Ghosh further contended that although an appeal has been preferred which has not yet been disposed of, the writ petitioners, have been advised that the rental relief as prayed for may be available in view of the present legal position and therefore, this writ application has been moved against the aforesaid notice and the order of valuation passed by the Hearing Officer-XII in the year 1993. Mr. Ghosh further contended that in a recent decision of this Court reported in 1995(2) CHN 125 (Smt. Mahamaya Mining and Industry Pvt. Ltd. and Ors. Mr. Ghosh further contended that in a recent decision of this Court reported in 1995(2) CHN 125 (Smt. Mahamaya Mining and Industry Pvt. Ltd. and Ors. vs. Calcutta Municipal Corporation and Ors.) in which a learned Judge of this Court held that s. 180(2)(i) of the Act 1980 is ultra vires the Constitution and, therefore, in view of the aforesaid decision it was not open to the Authorities to re-value the said premises on the ground of change of ownership. 5. Accordingly, Mr. Ghosh contended that not only the order of the Hearing Officer-XII is bad, but also the notice issued on the aforesaid ground for re-valuation was bad. 6. Mr. Das Adhikari contested the submission so made by Mr. Ghosh. According to Mr. Das Adhikari the decision of this Court declaring s. 180(2)(i) of the Act cannot be applied to the facts and circumstances of this case, it would appear from the notice itself that the re-valuation of the premises was not only done in terms of change of ownership, but also such revaluation was made on reasonable yearly rental value less statutory allowances for repairs. 7. According to Mr. Das Adhikari, this section would become ultra vires only from the date of aforesaid judgment was delivered. As admittedly in this case, the Judgment was delivered in the year 1995 and the order of the Hearing Officer-XII was made in 1993, it cannot be said that the decision of this Court can be applied in the facts and circumstances of this case. In support of this contention, Mr. Das Adhikari has relied on a decision of the Supreme Court in the case of Orissa Cement Ltd. vs. State of Orissa, AIR 1991 SC 1676 and also on a Division Bench decision of this Court in the case of Kesoram Industries Ltd. vs. Coal India Ltd. AIR 1993 Cal 78 . Reliance was also placed in this connection by Mr. Das Adhikari on the decision of the Supreme Court reported in AIR 1991 SC 1925 (Mehtab Singh Gulati vs. State of Gujarat). Mr. Das Adhikari also contended that a litigant is not permitted to take advantage of two parallel remedies. According to Mr. Reliance was also placed in this connection by Mr. Das Adhikari on the decision of the Supreme Court reported in AIR 1991 SC 1925 (Mehtab Singh Gulati vs. State of Gujarat). Mr. Das Adhikari also contended that a litigant is not permitted to take advantage of two parallel remedies. According to Mr. Das Adhikari, as in this case, the writ petitioners against the order of the Hearing Officer passed in the year 1993-92 has moved this Court under Art. 226 of the Constitution and at the same time they have also preferred an appeal before the Municipal Assessment Tribunal against the self-same order, they cannot be permitted to do so. In support of this contention, Mr. Das Adhikari has relied on two decisions, one of the Kerala High Court reported in AIR 1994 Ker page 19 (A. V. Georgekutty vs. State), and the other reported in AIR 1994 Mad page 14 (Chemech Engineers Pvt. Ltd. vs. Director of Industries and Commerce). Mr. Das Adhikari also contended that even assuming that the writ petitioner has a right to challenge the order of valuation in this Court under Art. 226 of the Constitution when an appeal has been preferred already by the writ petitioner against the self-same order, even then question of entertaining the writ application cannot arise at all. Mr. Das Adhikari contended that when there is efficacious alternative remedy available to the writ petitioner against a particular order, the writ jurisdiction of the High Court should not be invoked unless it can be shown that the order of challenge is arbitrary and without jurisdiction of the order has been passed without any application of mind or the principle of natural justice has been denied. 8. Having heard the learned counsel for the parties and after giving anxious consideration to the submissions made on behalf of the parties, I am of the view that the contentions raised by Mr. Ghosh, appearing for the writ petitioners cannot be accepted. So far as the applicability of the decision of the learned Single Judge in the case of Smt. Mahamaya Mining and Industry Pvt. Ltd. and Ors. vs. Calcutta Municipal Corporation and Ors. 1995(2) CHN 125 is concerned, I am of the view that the said Single Bench decision would not be applicable to the facts and circumstances of this case. So far as the applicability of the decision of the learned Single Judge in the case of Smt. Mahamaya Mining and Industry Pvt. Ltd. and Ors. vs. Calcutta Municipal Corporation and Ors. 1995(2) CHN 125 is concerned, I am of the view that the said Single Bench decision would not be applicable to the facts and circumstances of this case. It is true that in that decision a learned Judge of this Court has held that s. 180(2)(i) of the Act is ultra vires the Constitution. But, in my view, that decision could not be applicable to the facts and circumstances of this case as rightly submitted by Mr. Das Adhikari, because the said judgment was rendered in the year 1995 whereas the order of the Hearing Officer-XII and the notice issued to the writ petitioners were rendered in the year 1993, at least two years prior to the delivery of the aforesaid decision. It is now well settled that the judgment declaring a particular section of any Act 'unconstitutional' shall operate prospectively and not retrospectively. Reliance can be placed immediately in this connection on the reported decision of the Supreme Court in the case of Orissa Cement Ltd. vs. State of Orissa, AIR 1991 SC 1676 . This decision was also followed by a Division Bench of this Court in the case of Kesoram Industries Ltd. vs. Coal India Ltd. AIR 1993 Cal 78 . In paragraph 58' of the aforesaid Division Bench decision of this Court, paragraph 70' of the aforesaid Supreme Court decision was relied. After considering the aforesaid paragraph of the decision of the Supreme Court in the Orissa Cement Case, the Division Bench of this Court came to a conclusion that the judgment declaring the particular section of any Act as 'unconstitutional' shall operate prospectively i.e. to say from the date of judgment declaring the said section as unconstitutional. In view of the aforesaid decision of the Supreme Court as well as of this Court, I am unable to accept the submissions of Mr. Ghosh. Accordingly, this part of the submission of Mr. Ghosh is hereby rejected. So far as the question whether parallel remedy can be taken a report to by a litigant or not is concerned, according to Mr. Das Adhikari, parallel remedies are not available to be taken by any litigant. In support of this contention, Mr. Ghosh. Accordingly, this part of the submission of Mr. Ghosh is hereby rejected. So far as the question whether parallel remedy can be taken a report to by a litigant or not is concerned, according to Mr. Das Adhikari, parallel remedies are not available to be taken by any litigant. In support of this contention, Mr. Das Adhikari relied on a decision of the Madras High Court in the case of Chemech Engineer Pvt. Ltd. vs. Director of Industries and Commerce, AIR 1994 Mad 14 and also in the case of A. V. Georgekutty vs. State, AIR 1994 Ker 19 . It. is not disputed that in respect of one order passed against which the writ petitioners were aggrieved, they cannot take resort to parallel remedies. The aforesaid decision of the Madras High Court has held that such parallel remedy cannot be available to a litigant. I am in full agreement with the views expressed by the Madras High Court. In the present case the writ petitioners have already preferred an appeal against the order passed by the Hearing Officer-XII which is pending till today. The reason for filing the writ petition is that mandatory provision in the Calcutta Municipal Corporation Act, 1980 would force the writ petitioners to deposit the taxes payable by them in terms of the order passed by the Hearing Officer-XII. In my view, the facts disclosed in the writ application would clearly show that this writ petition has been moved by the writ petitioners to stall realisation of taxes payable by the writ petitioners in terms of the mandatory provisions made in the Calcutta Municipal Corporation Act, 1980. So far as the Division Bench decision of the Kerala High Court in the case of A. V. Georgekutty vs. State of Kerala, AIR 1994 Ker 19 is concerned, I am of the view that in that decision it has been made clear that the jurisdiction of the High Court under Art. 226 of the Constitution to deal with the orders passed by the Tribunals is not and cannot be ousted even where the legislature creates a separate tribunal hierarchy of appeals. It has also been made clear in that decision that the High Court has a discretion to entertain writ petitions even if an alternative provision for filing the appeals against the orders of the Tribunal has been provided. It has also been made clear in that decision that the High Court has a discretion to entertain writ petitions even if an alternative provision for filing the appeals against the orders of the Tribunal has been provided. Therefore, from this judgment, it would be clear that in an appropriate case, the writ Court has the jurisdiction to entertain a writ application in spite of the fact that the provision has been made in the statute to file appeal against an order of the Tribunal. So far as the argument of Mr. Ghosh to the effect that the order of the Hearing Officer-XII must be set aside as the said order is not a speaking and a reasoned order is concerned, I am of the view that this argument of Mr. Ghosh is also devoid of any merit. It is well settled law now that when there is efficacious alternative remedy. available to a litigant against a particular order, the writ jurisdiction of the High Court should not be invoked, unless it is shown that the order is either arbitrary or without jurisdiction or the said order has been passed without application of mind or the principle of natural justice has been denied. It is equally well settled that an order which is not a reasoned and speaking order must be held to be bad in law if in passing such order, the Authority has not applied its mind. So far as the question of principle of natural justice is concerned, Mr. Ghosh could not satisfy me that in this case the Hearing Officer-XII has violated the principle of natural justice in determining the annual valuation of the said premises. So far as the application of mind is concerned, it appears that the order of the Hearing Officer communicated to the writ petitioners is not the exact order passed by the Hearing Officer-XII. From a perusal of the record, it appears that a reasoned order has been passed by the Hearing Officer-XII. That being the position, I am unable to hold that in the facts and circumstances of this case and when there is an alternative remedy to the writ petitioners which the writ petitioners have availed of by filing an appeal, the writ jurisdiction of this Court can be invoked by the writ petitioners against the order which was passed in the year 1993. 9. According to Mr. 9. According to Mr. Ghosh, the order passed by the Hearing Officer-XII was without any application of mind as it appears from the communication made to the writ petitioner that the order of valuation was arrived at without giving any reason whatsoever. As noted hereinearlier the actual order that was passed by the Hearing Officer-XII was a reasoned order which would be evident from the records of this case which was produced by Mr. Das Adhikari before me. 10. The copy of the order that was passed by the Hearing Officer-XII which was communicated to the writ petitioner is annexed in the writ application. From the record, it appears that the Hearing Officer has passed a reasoned order, but from the communication of the said order, it does not appear that the Hearing Officer while disposing of the objection of the writ petitioner has passed a reasoned order. In view of s. 188 sub-s. (3) of the Act, it is true that a copy of the order shall be supplied within 30 days from the date of passing of the said order to the owner or to the person filing the objection in such form and manner as maybe prescribed. In terms of s. 188 sub-s. (3) of the Act, the model form has been framed by the Calcutta Municipal Corporation Authorities and a copy of same form of the order is sent to the persons who have filed objections. There is no dispute that the writ petitioners are entitled to obtain a certified copy of the said order also. It is also not in dispute that in filing an appeal, the certified copy of the said order shall be required to be filed. In this case, the writ petitioners have already filed an appeal. It is presumed that the writ petitioners have also obtained a certified copy of the order otherwise the appeal ought to have been dismissed by now. Therefore, I am unable to accept the submission of Mr. Ghosh, that the order passed by the Hearing Officer was not a reasoned and a speaking order, as noted hereinearlier that a reasoned order has been passed by the Hearing Officer-XII which would be evident from the records which was produced by Mr. Das Adhikari before me. Before parting with this judgment, I may mention another aspect of this matter. Ghosh, that the order passed by the Hearing Officer was not a reasoned and a speaking order, as noted hereinearlier that a reasoned order has been passed by the Hearing Officer-XII which would be evident from the records which was produced by Mr. Das Adhikari before me. Before parting with this judgment, I may mention another aspect of this matter. Even assuming that the writ petitioners did not prefer any appeal against the order of the Hearing Officer-XII, then in my view; the writ jurisdiction of this Court cannot be invoked against the order of the Hearing Officer-XII for the simple reason that the Act which is a special statute makes provision for appeal in the form of s. 189 against such order of the Hearing Officer-XII. I have already held under what circumstances in spite of availability of an alternative remedy the writ Court has the jurisdiction to entertain the writ application. In my view, when there is an alternative remedy to file an appeal against the order of the Hearing Officer-XII, the power of this Court under Art. 226 of the Constitution which is discretionary in nature in the facts and circumstances of this case shall not be invoked. Reliance can be placed on recent decision of the Supreme Court in the case of State of Goa vs. M/s. A. K. Zaffar, AIR 1995 SC 333 . 11. There is another aspect for which the writ jurisdiction of this Court should not be invoked. Section 189 of the Act makes provision for filing appeal before the Municipal Assessment Tribunal against an order passed under s. 188 of the Act. Section 189(6) of the Act however, says that no appeal under this section shall be entertained unless the consolidated rate in respect of any land or building for the period ending on the date of presentation of the appeal on the valuation determined under s. 188 has been deposited in the Office of the Corporation and the appeal shall abate unless consolidated rate is continued to be deposited till the appeal is finally disposed of. In my view, in order to avoid payment of taxes on the basis of the valuation determined by the Hearing Officer-XII, this writ application has been moved by the writ petitioners in this Court against the order of valuation passed by the Hearing Officer-XII. In my view, in order to avoid payment of taxes on the basis of the valuation determined by the Hearing Officer-XII, this writ application has been moved by the writ petitioners in this Court against the order of valuation passed by the Hearing Officer-XII. It is surprising that long before this application was moved, an appeal was preferred by the writ petitioners against the said order of the Hearing Officer. No step had been taken to ask for stay of recovery of tax in terms of s. 189(6) of the Act only because this section clearly says that if any order of stay is to be passed by the Appellate Authority, the assessee must continue to deposit the taxes on the valuation determined under s. 188 of the Act. In view of the above, no step was taken by the writ petitioners to ask for stay of recovery of taxes, on the other hand after about 4 years of the order passed by the Hearing Officer, the present writ application has been moved. A question arose as to whether in view of s. 189(6) of the Act the appeal is an efficacious alternative remedy of the assessee. The constitutionality of a similar provision as in 189(6) of the Act in the Delhi Municipal Corporation Act, 1957 was challenged before the Supreme Court in the case of Shyamkishore and Ors. vs. Municipal Corporation of Delhi and Anr. AIR 1992 SC 2297. In that decision, s. 170(b) of the Delhi Municipal Corporation Act was found to be intra vires the Constitution of India. In that decision of the Supreme Court it has been held that an appeal against an order of the Assessing Officer can be admitted or entertained, but only cannot be heard or disposed of without pre-deposit of the disputed Taxes. It was held that the Appellate Authority can adjourn the hearing of the appeal for giving time to the assessee to deposit tax, only the Appellate Authority cannot stay recovery of tax till disposal of the appeal. In view of the aforesaid decision of the Supreme Court, it is no longer res-integra that s. 189 can be said to be ultra vires the Constitution of India. That being the position, only to avoid payment of taxes, in my view, this writ application has been moved after about 4 years from the date of the passing of the said order. That being the position, only to avoid payment of taxes, in my view, this writ application has been moved after about 4 years from the date of the passing of the said order. 12. For the reasons aforesaid, there is no merit in this writ application. The writ application is, therefore, dismissed. There will be no order as to costs. If there is an interim order in this writ application that shall stand vacated. Writ application dismissed.