BIDYUTLATA KUNDU v. STATE OF WEST BENGAL — 1999 DIGILAW 543 (CAL)

Y. R. MEENA, J. ( 1 ) BY this petition petitioner prayed that respondents be directed to revoke or quash the impugned notice dated 3. 1. 1997 demanding payment of overdue municipal tax and the respondents be directed to refund the excess amount of municipal tax collected from the petitioner on the basis of excess demand made wrongfully. ( 2 ) THE petitioner Smt. Bidyutlata Kundu is the owner of the premises No. 137, Poramatala Road, P. O. Nabadwip, District Nadia under the Nabadwip Municipality. ( 3 ) PETITIONER claimed that certain portion of the aforesaid premises had been let out to the 4 tenants for their business purpose since long as monthly tenancy basis with a monthly rate of rent as agreed upon. Then the monthly rent was increased as agreed upon and in the year 1984 the petitioner was collecting total rent about Rs. 2160/- per month. Out of this 4 tenants United Bank of India was one of the tenants and the bank was paying rent between of Rs. 2,020/- per month, M/s. Sadhana Oushadalay Rs. 60/-, M/s. R. S. Emporium Rs. 39/- per month and one more tenant was occupying the part of the building was paying Rs. 41/- per month. ( 4 ) ONE of the tenant that is United Bank of India have got possession of a better accommodation in the nearby area in town of Nabadwip and they vacated the accommodation provided by this petitioner since January, 1990. ( 5 ) THE petitioner had made a representation to the Chairman of said municipality and the Board of Commissioner Nabadwip Municipality requesting therein that in view of the provisions of West Bengal Municipal Act 1993, the part premises which is lying vacant for that the respondent municipality should remit or refund one-half of the amount of tax due for the period of such vacancy and also assess the rental income on the basis of rental income reduced. But they have not taken any action in this regard. No reply has been given to the petitioner. ( 6 ) THE grievance of the petitioner that neither the annual value of the building was reassessed nor accede to the request regarding refund or adjust payment of tax of the premises. ( 7 ) HEARD learned counsel for the parties, they have also filed the written submissions. No reply has been given to the petitioner. ( 6 ) THE grievance of the petitioner that neither the annual value of the building was reassessed nor accede to the request regarding refund or adjust payment of tax of the premises. ( 7 ) HEARD learned counsel for the parties, they have also filed the written submissions. The limited question for consideration in this petition is whether petitioner is entitled for remission or refund on account of part of his building lying vacant or unoccupied for the period from 1990. The exact facts are not before us as for what period the part of the property was remained unoccupied by the tenants. But the question remains whether the petitioner is entitled for any remission or refund one-half of the amount of tax due for the period of such vacancy. ( 8 ) LEARNED counsel for the petitioner has submits and also filed the written arguments. The case of the petitioner is that if any person pays the tax under West Bengal Act 1993 and any part of the building remained vacant or unoccupied for some period he can claim remission or refund one-half of the amount of tax due for the period of such vacancy. ( 9 ) THE definition of 'building' given in the sub-section (3) of section 2 which provides building includes the structure, foundation, plinth, wall, floor, roof, chimney, fixed platform, varandah, balcony, cornice or projection or 'part of a building'. He emphasised 'part of building' is a building within the definition of sub-section (3) of section 2 and when it remained unoccupied as per provisions of section 104 of the Act 1993 the petitioner is entitled for remission or refund one-half of the amount of tax payable on the building or the tax which has been paid for the building. He further submits when there is no ambiguity in the definition of 'building' in sub-section (3) of section 2, the word should be construed with its plain meaning. ( 10 ) LEARNED counsel for the respondents submits that in cases of partial vacancy in the building there shall be no proportionate reduction in tax. He submits and compared, the relevant provisions of Bengal Municipal Act 1932 with the provisions of West Bengal Act, 20 of 1993. ( 10 ) LEARNED counsel for the respondents submits that in cases of partial vacancy in the building there shall be no proportionate reduction in tax. He submits and compared, the relevant provisions of Bengal Municipal Act 1932 with the provisions of West Bengal Act, 20 of 1993. In the old Act that is the Bengal Municipal Act 1932 there was a provisions for assessing the holdings and holdings was defined in section 3 of the Act 1932. Holding means land hold under one title or agreement and surrounded one set of boundaries. Section 132 of the old Act provides the remission or refund on account of vacant holding when any holding has been unoccupied and unproductive of rent for 60 or more consecutive days, the Commissioner shall remit one-half of the owner's share of the rent due on account of such period. There was no such provision for assessment of separate units or holding in the Act 1993. ( 11 ) HE further drew my attention to the definition clause which starts with the word 'in this Act unless there is anything repugnant in the subject or context', than the definition are given of various words. He submits that this definition given in section 2 are subject to intention of legislation and in the context the word used in provision, the definition should be read as required in the provision. The meaning should be taken with the object in that provision. He placed reliance on the decision of apex court in The Vanguard Fire and General Insurance Co. Ltd. Madras v. M/s. Fraser and Ross and another, AIR 1960 SC 971 . ( 12 ) SECTION 104 of the Act 1993 provides that where any building had remained vacant or unproductive of rent for ninety or more consecutive days, the Board of Councilors, on an application in writing from the owner, remit or refund one-half of the amount of tax due for the period of such vacancy. ( 13 ) THE question for my consideration whether part of the building is 'building' for the purpose of section 104 of the Act 1993? ( 13 ) THE question for my consideration whether part of the building is 'building' for the purpose of section 104 of the Act 1993? The definition of 'building' has been given in the Act 1993 which reads as under :-"building means a structure constructed for whatsoever purpose or of whatsoever materials, and includes the foundation plinth, wall, floor, roof, chimney, fixed platform, verandah, balcony, cornice, or projection or part of a building or anything affixed thereto or any wall (other than boundary wall of less than three metres in height) enclosing or intended to enclose any land, sign or outdoor display structure, but does not include a tent, samiana or tarpaulm shelter;" ( 14 ) AS per the provisions of the definition of 'building' even 'part of the building' is a building but these definitions are subjective. The definition clause starts with, unless there is anything repugnant in the subject or context. ( 15 ) SECTION 104 provides that where any building remained vacant there was remission or refund of one-half of the amount of tax. Here the building has referred to a 'building' which has been assesseed for tax, not a part of the building. If any part of the building has not been assessed independently, there is no question of any remission of tax on account of unproductive of rent or unoccupied part of the building. Here the remission or refund of tax on account of unoccupation should be read in a context of the building with has been assessed as a whole for the purpose of municipal tax. ( 16 ) TO consider the refund or remission under section 104 we cannot ignore the tax assessed on valuing the building. Therefore, the remission goes by the tax assessed for that building. ( 17 ) IF I accept the submission of learned counsel for the petitioner that if any part of the building is unoccupied or remained unoccupied or unproductive for that period the assessee is entitled for refund one-half of the amount of tax. Assuming there is a building assessed, consisting 100 rooms. One room out of 100 rooms remained unoccupied for 11 months. Does it mean that assessee is entitled for refund or remission of one-half of the amount of tax due for a period of such vacancy? In my view that interpretation of the section 104 of the Act would be absurdity. Assuming there is a building assessed, consisting 100 rooms. One room out of 100 rooms remained unoccupied for 11 months. Does it mean that assessee is entitled for refund or remission of one-half of the amount of tax due for a period of such vacancy? In my view that interpretation of the section 104 of the Act would be absurdity. ( 18 ) IN such cases to consider the meaning of building referred in section 104 of the Act, opening words in definition clause of section 2 of the Act 1993, 'unless there is anything repugnant in the subject or context' cannot be ignored. Therefore, we have to consider the definition of building referred in section 104 of the Act in a context the word 'building' has been used in section 104 of the Act. ( 19 ) IN definition clause the effect of the words 'unless there is anything repugnant in the subject or context has been considered by the apex court in the case of The Vanguard Fire and General Insurance Co. Ltd. Madras v. M/s. Fraser and Ross and another (supra), their Lordships observed as under:-"?????therefore, though the ordinary meaning to be given to the word insurer is as given in the definition clause section 2 (9) and refers to a person or body corporate etc. carrying on the business of insurance, the word may also refer in the context of certain provisions of the Act to any intending insurer or quondam insurer. The contention therefore that because the word "insurer" has been used in section 33 or section 2d those sections can only apply to insurers who are actually carrying on business cannot necessarily succeed, and we have to see whether in the context of these provisions and insurer will also include a person who was an insurer but has closed his business. " ( 20 ) IN para 8 Their Lordships further observed as under:-"????? Obviously this section applies to those insurers who have closed their business. It was not necessary to enact this section if the word "insurer" here also meant a person actually carrying on the business of insurance for the provisions of the Act apply to such a person proprio vigore. Therefore, when the word "insurer" is used in section 2d it must mean a person who was carrying on the business of insurance but has closed it. Therefore, when the word "insurer" is used in section 2d it must mean a person who was carrying on the business of insurance but has closed it. If that is so, section 33, which provides for investigation, would apply to such an insurer who has closed his business, by virtue of section 2d. " ( 21 ) THEREFORE, considering the context in which word 'building' has been used in section 104. Building means the building assessed for the purpose of municipal tax or for valuation of the building under Municipal Act. If any part of the building has not independently assessed or taxed, in that case if that part of the building remained vacant or unproductive for some period for that period no remission or refund of one-half of the tax can be given to the owner of the building under section 104 of the Act. ( 22 ) WHEN the petitioner is not eligible for any remission or refund under section 104 of the Act 1993, on account of the part of the building remained unoccupied or unproductive of the rent income. There is no question of interfering in the impugned notice or demand as there is no question of any adjustment on account of refund or remission under section 104 of the Act 1993. In the result the petition is failed and dismissed. Petition dismissed.