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2000 DIGILAW 205 (CAL)

Pravin K. Popot v. Calcutta Municipal Corporation

2000-04-24

MAHEMMAD HABEEB SHAMS ANSARI, Satyabrata Sinha

body2000
Judgment S.B. Sinha, J. This appeal arises out of a judgment and order dated 7th February, 2000 passed by a learned single Judge of this Court whereby and whereunder the writ petition filed by the appellant herein was disposed of directing:- "from the submission and counter submission advanced by both the learned counsel, I found that revision of annual taxation has to be made as per section 174 of the Calcutta Municipal Corporation Act. In case of increase in annual valuation, the tenants/lessees/sub-lessees/occupiers are also relatively affected as they shall also be liable to pay the difference of rent to the landlord. Therefore, it is true that the Corporation may not have legal obligation to serve individual notice to each and every occupier but at the same time when the matter has not been concluded, opportunity should be given to them for raising objection, if any, within a reasonable time. It is for the landlord to communicate to those tenants/lessees/sub-lessees or occupiers as regards such increase in annual valuation proposed by the Corporation." 2. The only question which has been raised in this appeal is as to whether keeping in view the Division Bench decision of this court in Machinnon Machenzie & Co. Ltd. vs. Calcutta Municipal Corporation & Ors., reported in AIR 1999 Cal 205 was a Special Bench decision in Land and Brick Entertainment Ltd. vs. The Calcutta Municipal Corporation & Ors., (A.P.O. No. 365 of 1996) disposed of on 13.10.1999 the learned trial Judge erred in issuing the aformentioned direction. 3. Ltd. vs. Calcutta Municipal Corporation & Ors., reported in AIR 1999 Cal 205 was a Special Bench decision in Land and Brick Entertainment Ltd. vs. The Calcutta Municipal Corporation & Ors., (A.P.O. No. 365 of 1996) disposed of on 13.10.1999 the learned trial Judge erred in issuing the aformentioned direction. 3. The appellant filed the writ application, inter alia, for the following reliefs :- "a) A writ in the nature of Mandamus and for order or orders and for direction or directions of like nature commanding the respondents to forthwith rectify the records of the Assessment Department of the Calcutta Municipal Corporation in respect of the rents of the tenants of premises No. P-41, C.I.T. Scheme VIIE, Calcutta - 700 072 before taking us the hearing of the assessment case of the said premises for the period 2nd quarter 1997-98; b) A writ in the nature of Mandamus and for an order or orders and or a direction or directions of like nature commanding the respondents to apportion the rental valuation of the said premises in accordance with section 174 and section 194 of the said Act before taking up the hearing of the assessment case of the said premises No. P-41, C.I.T. Scheme VIIE, Calcutta-700 072 for the period commencing 2nd quarter 1997-98; c) A writ in the nature of Mandamus and/or an order or orders and/or a direction or directions of like nature commanding the respondents to forthwith issue notice of hearing of the tenants of premises No. P-41, C.I.T. Scheme VIIE, Calcutta-700 072, before taking up the hearing of the assessment case; d) A writ in the nature of Certiorary and/or an order or orders and/or a direction or directions of like nature commanding the respondents to quash and/or set aside any order or direction for proceeding with the hearing without rectifying the records relating rents of tenants of premises No. P-41, C.I.T. Scheme VIIE, Calcutta-700 072 and without notifying the tenants of such hearing, in order to render conscionable justice; e) A writ in the nature of Prohibition and/or an order or orders and/or a direction or directions of like nature prohibiting the respondents from proceeding with the hearing of the assessment case of premises No. P-41, C.I.T. Scheme VIIE, Calcutta-700 072 for the period commencing 2nd quarter 1997-98 without rectifying the Assessment Department records, ascertaining the rental valuations and without notifying the tenants regarding such hearing;" 4. The appellants contend that in view of the specific provision contained in section 184(4) of the Calcutta Municipal Corporation Act, no special notice is required to be issued to the lessees or sub-lessees, as the case may be, by the Calcutta Municipal Corporation itself. 5. On the other hand, Mr. Das Adhikari the learned Counsel appearing on behalf of the respondents, inter alia, submitted that such is not the position in law as general public notice contemplated under sub-section (3) of section 184 and special notice contemplated under sub-section (4) thereof are operative in two different fields. Strong reliance in this connection has been placed in Asstt. General Manager, Central Bank of India & Ors. vs. Commissioner, Municipal Corporation for the City of Ahmedabad & Ors., reported in 1995(4) SCC 696 . 6. Sub-sections (3) and (4) of section 184 of the Calcutta Municipal Corporation Act reads thus :- "Section 184. Public notice and inspection of assessment list.-(1) …………………… (3) The Municipal Commissioner shall give public notice of the place, time and date, not less than one month after the preparation of the assessment list as aforesaid, when he will proceed to consider the annual valuation of lands and buildings entered in the assessment list, and in all cases in which any land or building is for the first time assessed, or the annual value of any land or building is increased, he shall also give written notice thereof to the owner or to any lessee, sub-lessee or occupier of such land or building and shall also specify in the notice the place, time and date, not less than one month thereafter, when he will proceed to consider such valuation. (4) When a revision in the annual valuation of any land or building has been made under a sub-section (2) of section 180, the Municipal Commissioner shall cause the respective valuation to be entered in the assessment list and shall give a written notice thereof to the owner or to any lessee, sub-lessee or occupier of such land or building, and shall also specify in the notice the place, time and date, not less than one month thereafter, when he will proceed to consider such valuation." 7. In Mackinnon Mackenzie & Co. In Mackinnon Mackenzie & Co. Ltd. as also in Lands & Bricks Entertainment Ltd. (supra), this court has held that lessees are also entitled to file their objection as regard commercial surcharge as the burden would ultimately fall upon them. However, commercial surcharge is one of the components of consolidated rate and assessment as regard consolidated rate has to be made by the Calcutta Municipal Corporation in terms of the provision of Calcutta Municipal Corporation Act. 8. Whereas in a case of annual valuation under sub-section (2) of section 179 or general valuation under sub-section (1) of section 180 is contemplated, a public notice is required to be given as regard preparation of assessment list by the Municipal Commissioner for a hearing to all concerned so as to enable him to consider the annual valuation of the lands and buildings entered in the assessment list and in all cases in which any land and building is for the first time assessed or the annual valuation of any land or building is increased. 9. In the instant case, sub-section (2) of section 180 is not applicable. 9. In the instant case, sub-section (2) of section 180 is not applicable. As the assessment is sought to be revised in terms of sub-section (2) of section 180 which reads thus :- "The (Municipal Commissioner) may cause any revision to be made in the annual valuation of any land or building in the following cases:- i) When there is a transfer, inter vivos, of its ownership; or ii) when any tenancy or any rent changes; or iii) when the nature of its use changes; or iv) (when new building is erected or an existing building is) redeveloped or substantially altered or improved during the period the annual valuation remains in force; or v) when, on the application made in writing by the owner or the person liable to pay its consolidated rate, it is established that during the period of the annual valuation remaining in force its value has been reduced by reason of any substantial demolition or has suffered depreciation from any accident or any calamity proved to the satisfaction of the Municipal Commissioner to have been beyond the control of such owner or such person; or vi) (when any land or building or portion thereof is acquired by purchase or otherwise) by the State Government or the Corporation or any statutory body mentioned in clause (a) of sub-section (8) of section 171 during the period of the annual valuation remaining in force; or vii) when any land or building, or portion thereof, is sold or otherwise transferred by the State Government or the Corporation or any statutory body mentioned in clause (a) of sub-section (8) of section 171: Provided that all land for roads and other public purpose shall be excluded from such revaluation; or viii) when, upon the acquisition or transfer of any land or building in part, a residual portion remains; or ix) When it becomes necessary so to do for any other reason to be recorded in writing." 10. In Mackinnon Mackenzie & Co. Ltd. vs. The Calcutta Municipal Corpn. & Ors., reported in AIR 1999 Cal 205 , the Division Bench was concerned with the primarily liability to pay the consolidated rate, which, in terms of section 193 of the Calcutta Municipal Corporation Act, was upon the lessor or superior lessor. It was in that context observed:- "Section 184 merely provides for public notice and inspection of the assessment list. It was in that context observed:- "Section 184 merely provides for public notice and inspection of the assessment list. Upon revision in the annual valuation the Municipal Commissioner is under statutory obligation to cause the respective valuation to be entered in the assessment list and give a written notice thereof to every person claiming to be the owner, lessee, sub-lessee or occupier of any land or building. Reference to section 184(4) by Mr. Das Adhikary appears to be misplaced. The notices of revision evidently are also issued upon owner, lessee or sub-lessee so as to enable them to file objection as in terms of the provision of the statutes ultimately he would be liable therefor keeping in view the clear provision laid down in section 193(1). Assuming such a notice had been issued under section 184(4), the petitioners or their sub-lessees cannot be made liable for payment of consolidated rate which would clearly be contrary to or inconsistent with the provision of section 193 of the Act. In other words, section .193 being related to the incidence of tax and the liability thereunder having been fixed on the lessor or the superior lessor, as the case may be, such liability cannot be fastened upon the lessee or the sub-lessee in violation of the provision of the statute." The persons who are entitled to specific notice did not, thus, fall for consideration in the said case. 11. In Lands and Bricks Entertainment Ltd. (supra) the court was concerned with the vires of the provisions levying commercial surcharge in terms of section 171(4) read with section 230 of the Calcutta Municipal Corporation Act. 12. While considering the question as to whether the lessee or the sub-lessee, as the case may be, upon whom ultimately the burden of payment of such surcharge would fall, it was observed:- "So far as the submission of Mr. Ghosh is concerned that principles of natural justice is not complied with in the cases of the tenants, the same cannot be accepted. Ghosh is concerned that principles of natural justice is not complied with in the cases of the tenants, the same cannot be accepted. In terms of sub-section (3) of section 184 a Municipal Commissioner is required to give public notice of the place, time and date not less than one month after the preparation of the assessment list as to when he would proceed to consider annual valuation of the lands and buildings entered in the assessment list and in all cases in which any land or building is for the first time assessed, or the annual value of any land or building is increased, he shall also give written notice thereof to the owner or to any lessee, sub-lessee or occupier of such land or building and shall also specify in the notice the place, time and date, not less than one month thereafter, when he will proceed to consider such valuation." 13. Thus, in neither of the cases it had been held that despite notice to an owner, a notice to the lessee would be required to be served. In the instant case, it is not disputed that the petitioners are landlords and they have been served with notices. It has also not been disputed that general public notice had been issued as it is not a case of revision of consolidated rate within the meaning of sub-section (2) of section 180 of the Calcutta Municipal Corporation Act, section 184(4) thereof is not attracted. A person is entitled to be heard but under the statute modes may be provided for issuance and/or service of such notice. Such modes having been provided for under sub-sections (3) and (4); in the cases covered thereunder, in our opinion, it cannot be said that only because assessment of consolidated rate inter alia involves an element of commercial surcharge, each lessee, sub-lessee or occupier must be given separate individual notices so as to enable them to make their respective objections. 14. In Astt. G.M. Central Bank of India vs. Commr. Municipal Corpn., reported in 1995(4) SCC 696 , the Apex Court while acknowledging that the tenant may have also a right of appeal held :- "This is also a relevant circumstances in favour of reading a right (to object and appeal) in the tenant. 14. In Astt. G.M. Central Bank of India vs. Commr. Municipal Corpn., reported in 1995(4) SCC 696 , the Apex Court while acknowledging that the tenant may have also a right of appeal held :- "This is also a relevant circumstances in favour of reading a right (to object and appeal) in the tenant. At the same time, it cannot be predicated that the special notice contemplated by Rule 15(2) has necessarily to be served upon the tenant. No such right can be claimed by the tenant nor such an obligation be cast upon the Corporation. The tenant has to be visilant. There will be a public notice under Rule 15(1) wherever an enhancement is proposed. Even the special notice under Rule 15(2) may, in the normal course, be served upon him because he is in occupation of the premises but that mayor may not happen. (In a given case, the landlord may be residing in a portion of the same building; there may be more than one tenant in the building and so on.) Even if the special notice is not served upon him, he has to file the complaint within the time prescribed by the notices and the Rules. He is equally bound to observe the conditions prescribed in sub-section (12) of section 406 while filing an appeal. Inter alia, he is not only obliged to file the appeal within the prescribed period of limitation but also to make the deposit as contemplated by clause (e) of sub-section (2) of section 406, subject, of course, to the proviso to the said clause." 15. In this view of the matter it cannot be said that apart from notice in terms of sub-section (3) of section 184 any special notice is required to be issued upon the lessee. Furthermore in this case the appellant having been served with a notice cannot be urged to state that notice having not been issued upon the tenants the entire proceedings is vitiated in law particularly in view of the fact that tenants are not aggrieved by the action or inaction on the part of the Calcutta Municipal Corporation. The appellant cannot take the cudgel of the tenants as he has no locus standi in relation thereto. The appellant cannot take the cudgel of the tenants as he has no locus standi in relation thereto. Even assuming for the sake of argument that such a notice was required to be served upon the lessee the appellant herein had no locus standi in relation thereto. 16. In State of West Bengal vs. Anil Ch. Chowdhury, reported in 2000 (1) CLJ 39, this court has noticed:- “Furthermore, the appellant herein cannot collaterally be permitted to question the order dated 23.12.96 passed by the Sub-divisional Land Reforms Officer, Cooch-behar which was the subject-matter of any proceeding before any higher Court. The appellant had not also preferred any appeal against the said order." 17. In the case of State of Punjab vs. Gurdev Singh, reported in AIR 1991 SC 2219, the law has been laid down in the following terms:- “5. In the instant case, the respondents were dismissed from service may be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them, the order of dismissal was illegal, inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs. 6. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs. 6. But none the less, the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court, In Smith vs. East Elloe Rural District Council, (1965) AC 736 at page 769 Lord Redcliffe observed:- 'An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless, the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.' 7. A propos to this principle, Prof. Wade States: 'the principle must be equally true even where the 'brand of invalidity' is painly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the court (See : Administrative Law 6th Edn p. 352), Prof. Wade sums up these principles; 'the truth of the matter is that the Court will invalidate an order only if the right of remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiffs lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case, the 'void' order remains effective and is in reality valid it follows that an order may void for one purpose and valid for another, and that it may be void for one purpose and valid for another, and that it may be void against one person but valid against another' (Ibid p. 352)." 18. For the reasons aforementioned there is no merit in this appeal which is accordingly dismissed. However, in the facts and circumstances of this case there will be no order as to costs. Appeal dismissed.