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1997 DIGILAW 317 (CAL)

JOHN JEFFERY MADAN v. COMMISSIONER

1997-08-13

ALTAMAS KABIR

body1997
A. KABIR,J. ( 1 ) THE petitioner claims to be the lessee of premises No. 58, Lenin Sarani, Calcutta-700013, with "opera Cinema", a partnership firm, as a tenant under him in respect of the said premises. According to the petitioner, a part of the premises is being used for residential purposes and the rest for non-residential and commercial purposes. ( 2 ) THE petitioner appears to have been served with a notice dated 26th May, 1996, under section 134 (3) of the Calcutta Municipal Corporation Act, 1980, hereinafter referred to as the "1980 Act", informing him that upon revision the Annual valuation of the premises had been fixed at Rs. 2,28,130/- with effect from the 2nd Quarter of 1991-92 and the same was to remain in force for a period of 6 years. ( 3 ) AN objection was filed on behalf of the petitioner to the said revision of the Annual Valuation stating that in the absence of any increase in the rents received from the tenants the enhanced valuation was unjust and arbitrary and the old valuation should be restored. The said objection was disposed of on 19th November, 1996, by the Hearing officer-VII, who maintained the enhanced valuation. ( 4 ) ACCORDING to the petitoner, he is desirous of filing an appeal before the Municipal Assessment Tribunal, but he has been prevented from doing so because of the onerous provisions of section 189 (6) of the 1980 Act which provides that no appeal under the said section is to be entertained unless the consolidated rates in respect of any land or building for the period ending on the date of presentation of the appeal on the valuation determined under section 188 had been deposited and the appeal would abate unless such consolidated rate was continued to be deposited till the appeal was finally disposed of. ( 5 ) APPEARING in support of the writ petition, Mr. Aloke Biswas urged that the provision for appeal, as contained in section 189 of the 1980 Act, had been rendered infructuous and/or illusory in view of the provisions of sub-section (6) thereof, as it was beyond the petitioner's capacity to deposit the rates and taxes as per the revised valuation, a major portion whereof was the tenant's liability. Mr. Aloke Biswas urged that the provision for appeal, as contained in section 189 of the 1980 Act, had been rendered infructuous and/or illusory in view of the provisions of sub-section (6) thereof, as it was beyond the petitioner's capacity to deposit the rates and taxes as per the revised valuation, a major portion whereof was the tenant's liability. Mr. Biswas urged that having been saddled with such third party liability, the petitioner's right of appeal had been rendered nugatory notwithstanding the provisions of sections 230 and 231 of the 1980 Act which empowered the person primarily liable for payment of the rates and taxes to recover the occupier's share of the rates and taxes, as also the surcharge, from the occupants on whose account such surcharge had been levied. ( 6 ) MR. Biswas urged that unless the person primarily liable had the means to comply with the requirements of sub-section (6) of section 189 of the 1980 Act, despite the extent of his personal liability, his right of appeal to the extent of such liability was illusory. ( 7 ) MR. Biswas urged that, although, provisions similar to those incorporated in sub-section (6) of section 189 of the 1980 Act, namely, sub-section (3a) of section 183, introduced by way of amendment in the Calcutta Municipal Act, 1951, hereinafter referred to as the "1951 Act", had been challenged in the case of Chatter Singh Baid v. Corporation of Calcutta, reported in AIR 1984 Calcutta, Page 283, and such challenge had been repelled and the amended provisions of sub-section (3a) of section 183 of the 1951 Act were held to be valid, the Hon'ble Supreme Court also had occasion to consider a similar provision in the Delhi Municipal Corporation Act, 1957, in the case of Shyam Kishore v. Municipal Corporation of Delhi, reported in AIR 1992 SC at Page 2279, where the aforesaid question had been kept open for decision in an appropriate case. ( 8 ) MR. ( 8 ) MR. Biswas submitted that in Shyam Kishore's case (supra) the Hon'ble Supreme Court, while considering the vires of section 170 (b) of the Delhi Municipal Corporation Act, 1957, had occasion to consider some of its earlier decisions, including the decision of this court in Chatter Singh Baid's case (supra), and, although, the impugned provisions were held to be intra vires in the facts of the case, the Hon'ble Supreme Court quoting from an earlier decision in the case of Nandalal v. State of Haryana ( AIR 1980 SC 2097 ) observed that the right of appeal is a creature of statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory. The Hon'ble Supreme Court went on to observe that the question whether the imposition of a condition which makes a right of appeal illusory can be valid may need careful consideration in an appropriate case. ( 9 ) MR. Biswas urged that in view of the aforesaid observations of the Hon'ble Supreme Court, the provisions of sub-section (6) of section 189 of the 1980 Act which were onerous and rendered the right of appeal under section 189 illusory, were liable to be declared ultra vires Article 14 of the Constitution and was also liable to be struck down. ( 10 ) APPEARING for the Calcutta Municipal Corporation, hereinafter referred to as "the Corporation", Mr. Aloke Ghosh submitted that the decision in Chatter Singh Baid's case had been confirmed by the Division Bench while considering the decision of the learned Single Judge in the said case and several other appeals which were heard together since the same question of law was involved (Gillanders Arbuthnot v. Corporation of Calcutta 6 Ors. , 1986 (1) CHN, Page 262 ). ( 11 ) MR. Ghosh urged that even the vires of sub-section (6) of section 189 of the 1980 Act had been challenged in the case of Mohammad Farooque v. State of West Bengal and Ors. , 1986 (1) CHN, Page 262 ). ( 11 ) MR. Ghosh urged that even the vires of sub-section (6) of section 189 of the 1980 Act had been challenged in the case of Mohammad Farooque v. State of West Bengal and Ors. , reported in AIR 1984 Calcutta, Page 109, and a learned single Judge of this court had held the said provision to be valid but it was indicated that the appeal could be entertained even if the entire rates and taxes, as envisaged in section 189 (6) of the 1980 Act, was not paid, but the hearing of the appeal may be kept in abeyance and time may be granted to deposit the amount as per the discretion of the court. ( 12 ) MR. Ghosh submitted that the order of the learned Single Judge was affirmed in appeal and the appeal court was, inter alia, of the view that the provisions of sub-section (6) of section 189 of the 1980 Act were not onerous or unreasonable and harsh and the right of appeal was not illusory (AIR 1995 Calcutta, Page 98 ). ( 13 ) APART from placing reliance on the decision of the Hon'ble Supreme Court in Shyam Kishore's case (supra), Mr. Ghosh also relied on two other decisions of the Supreme Court in (1) St. Mary's School v. Cantonment Board, Meerut, reported in AIR 1996 SC, Page 3160, and in (2) State of Gujarat v. Narayan Engineering Works and Others, reported in 1995 Suppl. (2) SCC, Page 730, where provisions similar to those of section 189 (6) of the 1980 Act were under consideration and were held to be valid with reference to the earlier decision in Shyam Kishore's case (supra ). ( 14 ) MR. Ghosh urged that since the Division Bench of this court had already upheld the validity of sub-section (6) of section 189 of the 1980 Act, in line with the decision of the Hon'ble Supreme Court in Shyam Kishore's case (supra), there was no further scope of contending otherwise and the writ petition was liable to be dismissed. ( 15 ) APPEARING for the State of West Bengal, Mr. Pabitra Basu adopted Mr. Ghosh's submissions and also laid stress on the decision in the St. Mary's School case (supra ). ( 15 ) APPEARING for the State of West Bengal, Mr. Pabitra Basu adopted Mr. Ghosh's submissions and also laid stress on the decision in the St. Mary's School case (supra ). ( 16 ) CONSIDERING the issues involved, I have given my anxious consideration to the submissions made on behalf of the respective parties and the different decisions cited before me. It is apparent that the consistent view has been that provisions similar to those of sub-section (6) of section 189 of 1980 Act, particularly sub-section (3a) of section 183 of the 1951 Act, were intra vires and could not be said to be so onerous and harsh as to render the provisions of appeal illusory. In fact, in Md. Farooque's case (supra) the provisions of sub-section (6) of section 189 of the 1980 Act was under challenge and were held to be valid. Following the decision of the Hon'ble Supreme Court in Shyam Kishore's case (supra), what was sought to be added was that the appeal could be entertained even though the entire dues as per the revised valuation had not been paid, but the appeal could not be taken up for hearing until the same was paid. ( 17 ) IT is no doubt true that in Shyam Kishore's case the Hon'ble Supreme Court had referred to the observation made in Nandalal's case (supra) that the legislature could impose conditions for exercise of a right of appeal so long as such condition were not so onerous and unreasonable so as to render such right almost illusory. But at the same time, the Hon'ble Supreme Court upheld the vires of section 170 (b) of the Delhi Municipal Corporation Act, 1957, and observed that such a question would require careful consideration in an appropriate case, thereby indicating that the case before it was not such a case. ( 18 ) HAVING regard to the above, the challenge thrown to the vires of sub-section (6) of section 189 of the 1980 Act must once again be repelled as was done by the Appeal Bench in Md. Farooque's case (supra) and it must be held that the said provision in intra vires. ( 18 ) HAVING regard to the above, the challenge thrown to the vires of sub-section (6) of section 189 of the 1980 Act must once again be repelled as was done by the Appeal Bench in Md. Farooque's case (supra) and it must be held that the said provision in intra vires. In keeping with the said decision and the decision in Shyam Kishore's case (supra), it must also be added that entertainment of an appeal under the aforesaid provisions would not be dependant on payment of the rates and taxes due on the date of filing of the appeal, on the basis of the revised valuation, but the said appeal would not be taken up for hearing before the said dues were paid. ( 19 ) THE writ application, accordingly, fails and is dismissed but this will not prevent the petitioner from preferring a statutory appeal before the Municipal Assessment Tribunal within fifteen days from date. In the event the appeal has become time-barred, the petitioner will be entitled to file the appeal along with an application for condonation of the delay in filing the appeal and the Tribunal shall condone such delay in view of the fact that this writ application has been pending before this court. ( 20 ) THERE will be no order as to costs. ( 21 ) ALL parties to act on a signed copy of the operative portion of this judgment on the usual undertakings. Application dismissed.