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2002 DIGILAW 29 (CAL)

KOTHARI MEDICAL CENTRE v. STATE OF WEST BENGAL

2002-01-24

SEN GUPTA

body2002
SEN GUPTA, J. ( 1 ) IN this writ petition the petitioner has two fold grievances. One for not taking any action in deciding the application for exemption from payment of rates and taxes made on 20/12/1990 and also the legality and validity of two orders dated 7/09/1990 making valuations of the building and property of the writ petitioner. At the threshold Mr. J. K. Mitra, learned senior counsel fairly submits that there is a formal defect in the writ petition as the office-bearer of the society/writ petitioner has not been made a party herein and this should have been done under the provisions S. 19 of the West Bengal Society Registration Act, 1961 which has been interpreted to be a mandatory one as has been observed in the judgment of the Division Bench reported in AIR 1977 Calcutta 437. Mr. Mitra, however, submits that the aforesaid judgment of the Division Bench has not taken note of other two earlier decisions, one of which is of this Court ( AIR 1960 Cal 409 ) and another one is of Bombay High Court (AIR 1946 Bombay 516), both of them are of learned single Judges. The reasoning and discussion as made in the aforesaid judgment by the learned single Judges are very apposite to this case and had those reasoning been shown to their Lordships of the Division Bench of the aforesaid decision then perhaps the law might have been laid down otherwise. While sitting singly I cannot ignore the observation and decision of the Division Bench. Therefore, I am of the view that the observation of the Division Bench does not preclude the Court to exercise power under Order 1, Rule 10 to add a party in a fit case. Therefore, I think on the aforesaid grounds for not making necessary party in the petition, the writ petition should not be dismissed at least at the time of final hearing when the respondent has not taken the plea of maintainability. Mr. Sarkar in his usual fairness submits that this is a question of law. However, he left this matter with the Court as to how it should be appropriately dealt with. I have checked up the petition and found that the petition has been verified by the Secretary of the writ petitioner No. 1. However, one of the members has been made party to the writ petition. However, he left this matter with the Court as to how it should be appropriately dealt with. I have checked up the petition and found that the petition has been verified by the Secretary of the writ petitioner No. 1. However, one of the members has been made party to the writ petition. In my view the member of the Society is not the office bearer. Therefore, Chand Ratan Damani is impleaded as party/petitioner and his name should be added accordingly and before this order is drawn up, completed and filed the department is directed to incorporate the amendments inserting the name of Chand Ratan Damani as Secretary of the writ petitioner No. 1. Mr. Mitra learned senior counsel appearing in support of the writ petition contends that his client is running a Charitable Medical Facilities to the public at large and even the appropriate official of the respondent observed while visiting the Hospitals run by the petitioner that this is a Charitable one. Under such circumstances, it was the duty coupled with the power as provided under S. 172 of the Calcutta Municipal Corporation Act to consider and dispose of the same. Without disposing of such application the respondents authorities should not have demanded payment of rates and taxes sought to be made levied on the strength of the impugned valuation orders taking the said property as being the other property. Therefore, this valuation order should be set aside and the Municipal Authority should be asked to decide the aforesaid application in accordance with law first. Mr. Mitra further contends that his client however, is going on depositing the rates and taxes pursuant to the valuation as has been decided by the Small Causes Court on an appeal preferred by his client challenging the previous valuation. ( 2 ) MR. Sircar, learned counsel appearing on behalf of the Municipal Authorities submits and in fact, concedes that the application for exemption should have been decided by his client but it could not be done so because the application was not made to the proper authority. Instead of making the application to the Commissioner it should have been made to the Mayor-in-Council and as such this application could not be heard and disposed of. However, he submits that his client still is willing to consider this application ignoring technicality. Instead of making the application to the Commissioner it should have been made to the Mayor-in-Council and as such this application could not be heard and disposed of. However, he submits that his client still is willing to consider this application ignoring technicality. The effect of the decision so to be taken even if in favour of the writ petitioner, should not be given retrospectively and only prospective effect should be given. He further submits that the date should be the date from the date of passing of the order not from the date of making such application. ( 3 ) HAVING heard the respective contentions of the learned senior counsel I am of the view that the Municipal Authority on receipt of the application dated 20/12/1990 should have at least given a reply to the writ petitioner that the present application would not be disposed of by reason of the fact that the same was not made to the appropriate authority. At least this minimum courtesy from the statutory authority particularly an official of the stature of the Commissioner can reasonably be expected. However, the Commissioner himself remains silent and thereafter the petitioner has approached this Court with this grievance in the year 1991, of course, on receipt of the order of valuation which is under challenge before me. ( 4 ) HAVING regard to the wordings of S. 172 of the said Act I am of the view that the power given in the aforesaid section is not the power simpliciter, it is a power coupled with a duty as the decision which might be rendered under the aforesaid section by the appropriate authority creates some right or privilege. When a decision of the statutory authority has got the effect of creation and extinguishment of a right, title or interest then exercise of such a power under the statutory provision cannot be termed to be a power simpliciter but a duty as well. Therefore, I hold while accepting the argument of Mr. Mitra that the application for exemption shall be considered and decided by the appropriate authority namely Mayor-in-Council though the application has been addressed to the Commissioner in accordance with the provisions of section 172 (1) (b) (ii ). Therefore, I hold while accepting the argument of Mr. Mitra that the application for exemption shall be considered and decided by the appropriate authority namely Mayor-in-Council though the application has been addressed to the Commissioner in accordance with the provisions of section 172 (1) (b) (ii ). Therefore, I direct the Mayor-in-Council of the respondent No. 1 to consider the application dated 20/12/1990 being Annexure-B at Page-38 of the writ petition being made under the aforesaid section itself and the same shall be decided within a period of three months from the date of communication of this order in accordance with law. The aforesaid authority shall take note of all the materials which might be produced and if necessary inspection may be carried out of the building, and records being maintained by the writ petitioners. The writ petitioner would be entitled to produce all materials which might be relevant or necessary for deciding the issue as to whether the petitioner is entitled to any exemption as provided in the aforesaid section or not. Since the application has been made on 20/12/1990 and having found inaction on part of the Municipal Authority the present writ petition has been filed on 8/10/1991 almost after 8 months preceded by another representation dated 6/05/1991. The decision which might be taken if in favour of the petitioner, that shall be given effect from January, 1991. Therefore, if any rates and taxes that has already been levied and demanded from the last quarter of 1991, shall be reviewed after the decision on the application for exemption is taken. ( 5 ) AS far as the impugned orders are concerned I cannot decide sitting in the Writ Jurisdiction right now as the aforesaid valuation was made prior to making the application for exemption. So any decision which might be taken on the application will not have any effect on the valuation which is impugned herein. On this score this petitioner would be entitled to prefer appeal before the Tribunal in accordance with law. All the grounds and points taken in this writ petition are kept open for adjudication by the Tribunal. So any decision which might be taken on the application will not have any effect on the valuation which is impugned herein. On this score this petitioner would be entitled to prefer appeal before the Tribunal in accordance with law. All the grounds and points taken in this writ petition are kept open for adjudication by the Tribunal. The writ petitioner would be entitled to make appropriate application for interlocutory relief before the Tribunal if so advised and the Tribunal concerned shall take note of all materials if so placed before it while deciding the interlocutory application as well as the appeal itself if it is admitted and needs to be heard in accordance with law. Interim order which has been passed herein will continue for a period of eight weeks from date. In the event any appeal is sought to be preferred or any application for condonation of delay is required to be made before the Tribunal within the time as aforesaid then the tribunal would be entitled to consider and dispose of the application under S. 5 of the Limitation Act first, while doing so the Tribunal shall take note of the period of pendency of the writ petition as well as 8 weeks time period. Accordingly, in the event no step is taken within eight weeks from date as above by the writ petitioner then the interim order will stand automatically vacated and the Corporation Authority would be entitled to proceed in accordance with law for realisation of the balance rates and taxes after giving adjustment so far made and/or deposited pursuant to the interim order of this Court. ( 6 ) THUS, this application is disposed of. There will be no order as to costs. ( 7 ) ALL parties concerned including the Mayor-in-Council are to act on the signed copy of the minutes of the operative portion of this Judgment and order on the usual undertakings. Order accordingly.