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2004 DIGILAW 278 (CAL)

BINAPANI DAS v. C. M. C.

2004-04-19

AMITAVA LALA

body2004
AMITAVA LALA, J. ( 1 ) THIS review application is arising out of an order which was passed by this Court on 18th September, 2003. Such order was passed in presence of both the parties. In disposing of the writ I directed the matter to be heard by appellate authority on the basis of the submission of the Learned counsel appearing for the respondents. This review application arises on that score. ( 2 ) MR. Jayanta Kumar Mitra, Learned Counsel, appearing for the petitioner contended that the cause of action for filing of the writ petition before this court was for not giving an opportunity of hearing to the petitioner by the hearing Officer. Therefore, the matter is to be heard by the Hearing Officer first. If the appellate authority is directed to hear out on the basis of the submission of the respondents, in that case, they will lose one of the valuable opportunities of hearing before the Hearing Officer. No notice was served upon the appropriate address of the petitioner so that she could not be present before the appropriate authority. Therefore, in absence of the petitioner an ex parte order was passed by the Hearing Officer. ( 3 ) MR. Barin Banerjee, Learned Counsel, appearing on behalf of the respondent authorities, contended before this Court that forum of appeal is available from the original order. Without invoking the jurisdiction of such appellate forum the petitioner straightaway invoked the writ jurisdiction of this Court. In disposing of the writ it was rightly held by this Court that the matter would be heard by the appellate authority and for such reason alone he had conceded before this Court that if the appeal is filed no plea of limitation will be taken by him. There is no prayer in the writ petition to proceed before the Hearing Officer. In the prayer the petitioner himself sought for a direction to file an appeal. ( 4 ) IN reply, Mr. Mitra contended before this Court that this Court can mould the relief if the same is not available for the ends of justice. There is no prayer in the writ petition to proceed before the Hearing Officer. In the prayer the petitioner himself sought for a direction to file an appeal. ( 4 ) IN reply, Mr. Mitra contended before this Court that this Court can mould the relief if the same is not available for the ends of justice. As per Rule 53 of the Writ Rules made for this Court to hear out the applications under Article 226, the procedure which is provided in the Code of Civil Procedure, in regard to the suits, shall be followed as far as it can be made applicable, in all proceedings for issue of a writ. Learned Counsel, appearing for the respondents, made his submission in respect of the first part of the prayer "a" of the writ petition whereunder the petitioner wanted to file an appeal but he did not see the next part of the order which speaks about the cancellation of annual valuation and quashing of the whole proceeding and making fresh assessment for the periods on proper notice to the petitioner arid after giving opportunity of filing objection and giving hearing etc. Therefore, a comprehensive prayer has been made therein. ( 5 ) AS regards law I have considered three judgements of recent times. Firstly, in paragraph 11 of 1991 (2) CLJ 343 , Rabindra Nath Ghosal vs. University of calcutta and Ors. , a Bench of this Court held that the Court can undoubtedly take note of changed circumstances and suitably mould the relief to be granted to the party concerned in order to make out justice in the case. As far as possible the anxiety and endeavour of the Court should be to remedy an injustice when it is brought to its notice. In paragraph 19 of 2002 (2) SCC 475 , Food Corporation of India vs. S. N. Nagarkar, I find it is well-settled that in exercise of writ jurisdiction, the Court may mould the relief having regard to the facts of the case and interest of justice. In paragraph 17 of 1999 (1) SCC 566 , Municipal board, Saharanpur vs. Imperial Tobacco of India Ltd. and Anr. In paragraph 17 of 1999 (1) SCC 566 , Municipal board, Saharanpur vs. Imperial Tobacco of India Ltd. and Anr. , I find that the supreme Court held that High Court could not act as a Court of Appeal and only patent errors of law as found in the orders of the authorities below could be corrected in exercise of its jurisdiction. ( 6 ) ACCORDING to me, jurisdiction of the Writ Court, in hearing the review application arising out of writ matters in which the order is passed, is much wider than the normal review application to be heard by the Civil Court. In hearing the review application the Writ Court is mainly guided more by the principles laid down under section 151 than the section 114 of the Code of Civil procedure. Therefore, the review application should not be taken up with the rigidity of section 114 of the Code of Civil Procedure. In other words, right of the writ jurisdiction is flowing directly from the Constitution. But to maintain check and balance it can not allow flood gate. ( 7 ) FROM the facts and circumstances of this case I find that the entire writ petition is made for non-service of notice of hearing and fixation of annual valuation of the premises making abruptly higher than the original amount. But nowhere in the body of the petition they have either made out a case to allow them to go to the Hearing Officer for reconsideration of the matter as there is procedural impropriety or irregularity or it has categorically stated that the action on the part of the Hearing Officer is in violation of principles of natural justice. Tenor of the writ petition is that the petitioner is eager to go to the appellate authority for the purpose of cancellation of annual valuation or a leave to deposit the enhanced amount in easy instalment or to have it cancelled by the Court of Law instead of the appellate authority. Therefore, when no case has been made, out to go before the Hearing Officer, no relief to that extent can be granted even moulding the same. ( 8 ) HOWEVER, I have experienced from the arguments advanced by the parties that the appellate authorities are very rigid in respect of pre-deposit of the enhanced rates and taxes fixed by the Hearing Officer. Treatment is too harsh. ( 8 ) HOWEVER, I have experienced from the arguments advanced by the parties that the appellate authorities are very rigid in respect of pre-deposit of the enhanced rates and taxes fixed by the Hearing Officer. Treatment is too harsh. ( 9 ) ACCORDING to me, municipal authorities are made for public utility service of some areas. Various sections of the people might have been the users of the areas. Very often we see that slum areas and highrises are standing side by side. Can it be said that imposition of rates and taxes on both the areas are similar ? The obvious answer is 'no'. The reason is imposition of rates and taxes are variable state of affairs. Similarly determination of imposition is also variable state of affairs. Appeal is a continuance of original proceeding where the imposition was initially determined. If someone accepts such determination matter ends. If not, it will continue until it is decided by higher forum/s. Therefore, till such time municipal authorities can not be treated as claimants. On the other hand, public utility service can not be rendered by the authorities without revenue. Therefore, earning of revenue is an essential part. But if one being dissatisfied with the order of the Hearing Officer or the appropriate authority prefers an appeal, he can not be put on condition for preferring an appeal. It is clear interference of right of appeal but the present legal position is otherwise. However, since I have not called upon, I do not interfere with the same. Possibly condition of pre-deposit is made only to stay hands of the unscrupulous litigants. But neither all are unscrupulous nor pre-deposit is a claim of the authority. Since when the present law will exist the condition of pre-deposit will exist. Deposit can not be avoided. But neither any mode of deposit is prescribed under the law nor the appellate authority or Tribunal is powerless in considering the question of hardship nor also could say that even if the authorities loose in the appeal such sum, so deposited, would not be refunded. ( 10 ) THEREFORE, in dismissing the application I am of the view that the petitioner can apply to the appellate authority or Tribunal for any relief whatsoever in respect of the pre-deposit and the appellate authority or Tribunal is empowered to consider the same and pass an appropriate order to that extent. ( 10 ) THEREFORE, in dismissing the application I am of the view that the petitioner can apply to the appellate authority or Tribunal for any relief whatsoever in respect of the pre-deposit and the appellate authority or Tribunal is empowered to consider the same and pass an appropriate order to that extent. ( 11 ) HOWEVER, no order is passed as to costs. ( 12 ) LET an urgent xeroxed certified copy of this judgement if applied for be given to the learned Advocates for the parties within two weeks from the date of putting the requisites. Review application dismissed.