Bhavesh Rajnikant Kampani v. Kolkata Municipal Corporation
2012-08-28
HARISH TANDAN
body2012
DigiLaw.ai
Judgment :- Harish Tandon, J. The petitioner being assessee have assailed the order dated December 20, 2010 passed by the hearing officer revising the annual valuation of the premise no. 28/3A Convent Road. The petitioner alleged that the proceeding for reassessment of the annual valuation of the said property was initiated on the basis of the alleged complaint of a mother being the co-owner of the said premises which was never written by her. It is further alleged that the said letter was take out of personal vengeance and in fact, she lodged a complaint with the local police station and also filed objection before the hearing officer and the assessor-collector from placing any reliance thereupon. A notice was issued by the Municipal Authority relating to the proposed reassessment of the annual valuation of the said property under Section 184 (3) read with Section 184 (4) of the Kolkata Municipal Corporation Act, 1980. A written objection was filed by the petitioner on 19.6.2009 contending that the reassessment of the annual valuation cannot be made on the basis of the alleged letter written by his mother, as the mother has already denied to have written such letter and also disputed the signature appended thereto. Thereafter, several date were fixed and ultimately on 20th December, 2010, the hearing officer revised the annual valuation at Rs.9,34,160/-. In spite of the said order, a notice was served upon the petitioner, whereby and whereunder, the petitioner was informed to appear before the hearing officer on 24th January, 2011. On the said date, it was informed that the said notice was issued inadvertently, in as much as, the final order revising the annual valuation has already been passed on 20th December, 2010. According to the petitioner, he asked for supply of the said order dated 20th December, 2010 and on refusal, the petitioner moved before this court by filing a writ petition being W.P. No. 4927 (w) of 2011. While the said writ petition was pending the photocopy of the said order dated 20th December, 2010 was served upon the petitioner under the covering letter dated 09.3.2011. In this writ petition, the petitioner is assailing the said order dated December 20, 2010 being violative of the principles of natural justice as no opportunity of hearing was given to the petitioner. Mr.
In this writ petition, the petitioner is assailing the said order dated December 20, 2010 being violative of the principles of natural justice as no opportunity of hearing was given to the petitioner. Mr. Saptangsu Basu, the learned Senior Advocate appearing for the petitioner vehemently submits that the order dated December 20, 2010 is passed without giving an opportunity of hearing which would be evident from the fact that a notice was issued by the said authority fixing a further date for hearing on 24th January, 2011. He further submits if an order is passed in gross violation of principles of natural justice, the same is capable of being assailed in writ jurisdiction irrespective of existence of alternative remedy by way of statutory appeal. He audaciously submits that the said order dated 20th December, 2010 is passed in mechanical manner without recording the reasons for revision of the annual valuation. Lastly, he submits that the order impugned in the writ petition is liable to be quashed and set aside as having passed without considering the written objection filed by the petitioner. Per contra, Mr Sandip Kumar De, the learned Advocate appearing for the Kolkata Municipal Corporation, however, submits that the hearing officer passed the order dated 20th December, 2010 after affording an opportunity of hearing and on the basis of the written argument filed by the petitioner on the said date. He, however, submits that due to bonafide mistake, a further notice was issued fixing another date for hearing i.e. 24th January, 2011 inadvertently which does not makes the order dated 20th December, 2010 liable to be quashed and set aside which, in fact, is passed after giving an opportunity of hearing. He vehemently submits that there is an alternative remedy available to the petitioner by way of a statutory appeal before the Municipal Assessment Tribunal under Section 188 of the Kolkata Municipal Corporation Act, 1980 and the writ court should not invoked its power of judicial review. In support of the aforesaid contention, he placed reliance upon an unreported judgment of this court in case of M/s Hotelier & Associates & Ors. vs. The Kolkata Municipal Corporation & Ors.( W.P. 2823 (w) 2012 decided on 6.3.2012). Having heard the respective submissions, it is undisputed that existence of alternative remedy is not an absolute bar in entertaining the writ application. It is a self-imposed restriction by the writ court.
vs. The Kolkata Municipal Corporation & Ors.( W.P. 2823 (w) 2012 decided on 6.3.2012). Having heard the respective submissions, it is undisputed that existence of alternative remedy is not an absolute bar in entertaining the writ application. It is a self-imposed restriction by the writ court. One of the parameter for invocation of the writ jurisdiction despite existence of alternative remedy if the court is satisfied that the order impugned is passed in gross violation of principles of natural justice. The foundational fact as pleaded in the writ petition is based on the violation of principles of natural justice as no opportunity of hearing was given to the petitioner on 20th December, 2010. Paragraph 12 of the writ petition reveals that the petitioner along with his representative was personally present before the hearing officer and submitted the written argument. The said paragraph 12 has been dealt by the municipality in paragraph 5 of the said affidavit-in-opposition in the following manner: “5. With regard to the statements made in paragraphs 7 to 12 of the said petition I deny the same save and except those which are admittedly the matters of record and relying on and referring to the statements made in paragraph 3 hereinabove relevant to the particular context, I say that the disputed questions of fact raised by the petitioner in the paragraph 7 requires finding of fact and for such purpose, the petitioner should approach the Municipal Assessment Tribunal. I further say that in the paragraphs under reply, there is no dispute regarding the decision making process by the Hearing Officer. I further say that hardship is no ground to challenge the annual valuation.” However, in paragraph 3 (c) of the said opposition, it is pleaded that the petitioner did not file written objection. Whereas, it is specific stand of the municipality that the order dated 20th December, 2010 was passed in presence of the petitioner and is representative. From the respective pleading, it is gathered that the petitioner along with his representative was present before the hearing officer on 20th December, 2010 and filed the written argument. But the order passed by the hearing officer on the said date was passed without considering the written objection as according to the municipality, no written objection is filed by the petitioner.
But the order passed by the hearing officer on the said date was passed without considering the written objection as according to the municipality, no written objection is filed by the petitioner. The document annexed to the writ petition reveals the written objection which was filed by the petitioner before the hearing officer. Section 186 of the Kolkata Municipal Corporation Act, 1980 (the said Act in short) provides for filing of an objection in writing before the date fixed in the notice under Section 184 or Section 185 of the said Act disputing the said annual valuation. Section 188 of the said Act requires such objection to be entered in a register maintained for the purpose in such manner, as may be, prescribed and a person filing an objection should be given an opportunity of hearing either in person or through authorized agent before determining the objections. The cumulative effect of the aforesaid provisions cast a mandate duty on the hearing officer to determine the objection after giving an opportunity of hearing which necessarily imbibed within itself the recording of the reason. The order dated 20th December, 2010 is also annexed to the writ petition which, on perusal, as it appears, does not disclose the reasons for increment of the annual valuation at Rs. 9,34,160/-. The recording of reason is a paramount duty of the authority, as a person has right to know the reason for rejection of his objection. In case of S.N. Mukherjee vs. Union of India reported in AIR 1990 SC 1984 , the Apex Court observed that the requirement to record the reason is one of the cannon of the principles of natural justice while exercising the power by the administrative authorities in these words: “38. * * * * * * * * * * * * * * * * * * * * * * The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority.
* * * * * * * * * * * * * * * * * * * * * * The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. * * * * * * * * * * * * * * * * * * * * * * * *” The principles behind the recording of the reasons are summarized by the Supreme Court in case of Kranti Associates Pvt. Ltd & anr. vs. Masood Ahmed Khan & Ors. reported in (2010) 9 SCC 496 as: “47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them.
This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor.) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain EHRR, at 562 para 29 and Anya v. Universityof Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”. The unreported judgment relied upon by Mr. Sandip De, in case of M/s. Hotelier & Associates & ors.(supra) is not applicable in the facts and circumstances of the present case. In the said judgment, the municipal authority considered the written objection filed by the assessee which does not contain unnecessary facts leading to allowing the said objection and were merely bald in nature.
Sandip De, in case of M/s. Hotelier & Associates & ors.(supra) is not applicable in the facts and circumstances of the present case. In the said judgment, the municipal authority considered the written objection filed by the assessee which does not contain unnecessary facts leading to allowing the said objection and were merely bald in nature. In the backdrop of the aforesaid fact, it was held that if it does not contain any factual disputes required to be dealt by the hearing officer, the order should not be assailed on the ground of insufficiency of the reason given in the order by the hearing officer. It is axiomatic to record that on one hand, the respondent contends that the petitioner did not file written objection but on the other hand, it is contended that the objection was not filed in terms of the relevant statutory provision disputing the proposed annual valuation. The aforesaid mutually destructive stand is self-evident. It is one hand to say that no objection was filed but it is quite different that though the objection is filed but it does not contain a sufficient material requiring determination by the hearing officer under Section 188 of the said Act. Furthermore, the written objection submitted by the petitioner clearly demonstrate the rate of rent received from the tenant which is shockingly low what has been proposed to be made by the municipality. There was a sufficient material enclosed with the aforesaid objection which is required to be dealt by the authorities while determining the objection. Thus I find that the hearing officer have passed the assessment order dated 20th December, 2010 in slipshod manner without considering the written objection and, therefore, cannot withstand on the anvil of principles of natural justice. The impugned order dated 20th December, 2010 is hereby quashed and set aside. The hearing officer is directed to determine the objection filed by the petitioner afresh upon giving an opportunity of hearing to the petitioner or his authorized agent and shall, thereafter, passed the reasoned order. The writ petition is allowed. However, there shall be no order as to costs.