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2017 DIGILAW 339 (CAL)

Nemai Chand Dutt v. Kolkata Municipal Corporation

2017-03-29

HARISH TANDON

body2017
JUDGMENT : Harish Tandon, J. This is an application for restoration of the writ petition which was dismissed for default on 26th September, 2016. After perusing the averments made therein and the submissions advanced on behalf of the respective parties, this Court finds that the petitioner was prevented by sufficient cause in not appearing on the said date when the matter was dismissed for default. The application is, thus, allowed. The writ petition is restored to its original file and number. 2. After the restoration of the writ petition, the same is taken up for final disposal. The challenge is made to a notice of demand dated 1st October, 2003 by which the annual valuation of the property w.e.f. 2nd quarter 1988-89 was enhanced. Further relief in the form of cancellation of the rate card and consequently issuance of the supplementary bills are also a subject-matter of challenge in the instant writ petition. 3. Admittedly, the petitioner is the owner of the land and building situated at premises no.20A, Nalin Sarkar Street, Kolkata - 700 004 and is used for residential purposes. The petitioner alleges that in March 1991 he came to know that the annual valuation of the premises has been astronomically increased four times w.e.f. 1st quarter 1984-85 allegedly on the ground of increase in rent since last valuation. Subsequently, a notice was issued for general valuation of the property w.e.f. 2nd quarter 1988-89. The petitioner filed a petition before the Hearing Officer and the dates were fixed from time to time. The petitioner alleges that without letting the petitioner know about the fate of such objection, a rate card is issued upon the petitioner depicting that the annual valuation is increased with effect from the said quarter and subsequently the supplementary bills are raised upon the petitioner demanding the payment of the tax on the basis of the said annual valuation. 4. The challenge is founded in the instant writ petition on two fold grounds. Firstly, no order enhancing the valuation was ever communicated to the petitioner. Secondly, there is no basis or ground for such enhancement is either reflected or made known to the petitioner. 5. Before proceeding to deal with the points raised in the instant writ petition, it would be appropriate and profitable to quote the relevant provisions of the Kolkata Municipal Corporation Act, 1980, which are as under : "184. Secondly, there is no basis or ground for such enhancement is either reflected or made known to the petitioner. 5. Before proceeding to deal with the points raised in the instant writ petition, it would be appropriate and profitable to quote the relevant provisions of the Kolkata Municipal Corporation Act, 1980, which are as under : "184. Public notice and inspection of assessment list.- (1)When [* * * ] a general revaluation under sub-section (1) of section 180 in any ward of the Corporation or part thereof, as the case may be, has been completed, the Municipal Commissioner shall cause the respective valuation to be entered in an assessment list in such form and containing such particulars with respect to each land or building as may be prescribed. (2) When the assessment list has been prepared, the Municipal Commissioner shall give public notice thereof and of the place where the list or a copy thereof may be inspected, and every person claiming to be the owner, lessee, sub-lessee or occupier of any land or building include in the list and any authorised agent of such person shall be at liberty to inspect the list and to take extracts therefrom free of charge. (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 valuations 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) Before making any revision of annual value under sub-section (2) of section 180 and clause (a), clause (b) and clause (c) of section 185, the Municipal Commissioner shall give the owner, any lessee, sub-lessee or occupier of any land or building, notice of not less than thirty days that he proposes to make the revision and consider any objection which may be made by such owner, lessee, sub-lessee or occupier.] [Explanation.—a written notice under this section shall be deemed to be duly served if it is sent by post under certificate of posting to the owner or to any lessee, sub-lessee or occupier of any land or building and, in such case, the date of the certificate of posting shall be deemed to be the date of service of the notice to the owner or to the lessee, sub-lessee or occupier of such land or building.] 185. Amendment of assessments.- The Municipal Commissioner may, at any time, - (a) make, suo motu, assessment in any case where a return on the basis of self-assessment has not been filed; (b) revise any assessment where the information furnished in the return of self-assessment if found to be incorrect; (c) re-open any assessment at any time where it has been detected that there is wilful suppression of information; (d) impose a penalty not exceeding thirty per cent, of property tax arising from non-filing of a return in time or thirty per cent, of the difference in property tax arising from, giving wrong information or wilful suppression of facts : Provided that in the case of such determination of valuation, a notice stating the proposed valuation shall be issued to the owner or to any lessee, sub-lessee or occupier of the land or the land comprising building or the building, or the portion thereof and such notice shall specify the place, time and date, not less than one month thereafter, when the Municipal Commissioner, or his representative will proceed to consider such valuation : Provided further that no public notice need be given in such case.] 186. Objections against valuation of assessment.- Any objection to the annual value determined by Corporation under sub-sections (1) and (2) of section 180 or clause (a), clause (b) or clause (c) of section 185, shall be made by the owner or the person liable to pay the property tax, in writing, to the Municipal Commissioner before the date fixed in the notice under sub-section (4) of section 184 and shall state in what respect the annual value is disputed. 187. Appointment of an officer to hear objections.- (1) [The Corporation shall, with the approval of the State Government, appoint an officer on such terms and conditions as the State Government] may determine to hear and determine the objections to the annual valuations of lands or buildings entered in the assessment list. (2) The officer appointed under sub-section (1) shall be paid from the Municipal Fund such salary and allowances as the State Government may determine. (3) The officer as aforesaid may make such queries and observations in relation to any entry in the assessment list and call for such records, returns and explanations as he thinks fit. (4) Every such query and observation shall be promptly taken into consideration by the officer of the Corporation to whom it may be addressed and shall be returned by him with the necessary records, returns and explanations. 188. Hearing of objections. - (1) Objections filed under section 186 shall be entered in a register maintained for the purpose in such manner as may be prescribed. (2) On the date, time and place specified under subsection (3) or sub-section (4) of section 184 and after giving the person filing the objections an opportunity of being heard, either in person or through an authorised agent, the officer appointed under section 187 shall determine the objections. (3) When an objection has been determined, the order in this behalf shall be recorded in the register maintained under sub-section (1) with the date, and a copy of the order shall be supplied within [thirty days] thereof [to the person filing the objection] in such form and manner as may be prescribed. (4) The procedure for hearing and disposal of objections shall be such as may be prescribed. (4) The procedure for hearing and disposal of objections shall be such as may be prescribed. (5) The valuation fixed after determination of objection under this section shall take effect from the quarter in which such valuation would have taken effect and shall continue to remain in force during the period such valuation would have remained in force, had no objection been filed. 189. Appeal before the Municipal Assessment Tribunal.- (1) There shall be a Municipal Assessment Tribunal for hearing and disposal of an appeal against an order passed under section 188. (2) The Tribunal shall consist of a Chairman and such number, of other members not exceeding five as the State Government may determine. [Provided that the Chairman may constitute one or more separate Benches, each Bench comprising two or more members, one of whom shall be a member of the West Bengal Higher Judicial Service (hereinafter referred to as the Judicial Member), and may transfer to any such Bench any appeal for disposal or may withdraw from any such Bench any appeal before it is finally disposed of: Provided further that no such Bench shall be constituted with any member of the West Bengal Higher Judicial Service other than one who is or has been a member of that Service for a period of not less than three years.] [(2A) Where a separate Bench is constituted under the first proviso to sub-section (2), the Judicial Member shall exercise and perform all the powers and functions of the Chairman under this Act or the rules made thereunder.] (3) The Chairman and other members shall be appointed by the State Government on such terms and conditions as it may determine and shall be paid from the Municipal Fund. (4) The Chairman shall be a person who is or has been a member of the West Bengal Higher Judicial Service for a period of not less than three years and the other members shall have such qualifications and experience as the State Government may prescribe. (5) Any owner or person liable to payment of [property tax] may, if dissatisfied with the determination of objection under section 188 appeal to the Tribunal: Provided that such appeal shall be presented to the Tribunal within forty-five days from the date of service or [a copy of the order] under section 188 and shall be accompanied by a copy of the said order. [(6) No appeal under this section shall be entertained unless the property tax, including penalty, together with interest on such property tax, if any, in respect of any land or building for the period ending on the date of presentation of the appeal on the valuation determined under section 174 or section 188 has been deposited in the office of the Corporation and the appeal shall abate unless such property tax, together with the interest on such property tax, if any, is continued to be deposited regularly till the appeal is finally disposed of : Provided that, if the provision of this section is not complied with, due to misrepresentation or, otherwise, any proceedings in the Municipal Assessment Tribunal will stand ipso facto void.] (7) The provisions of Part II and Part III of the Limitation Act, 1963 (36 of 1963) relating to appeal shall apply to every appeal preferred under this section. (8) The procedure for hearing and disposal of appeals [as well as realisation of fees in connection with appeals] shall be such as may be prescribed. (9) The decision of the Tribunal with regard to valuation or assessment shall be final and no suit or proceeding shall lie in any Civil Court in respect of any matter which has been or may be referred to or have been decided by the Tribunal. (10) The valuation fixed after disposal of the appeal under this section shall take effect from the quarter in which such valuation would have taken effect and shall continue to remain in force during the period such valuation would have remained in force, had no appeal been filed. [(10A) The Municipal Commissioner may, within ninety days from the date of passing the order by the Municipal Assessment Tribunal by giving reasons in writing, prefer a petition before the Municipal Assessment Tribunal under this section, for review of the order passed by the said Municipal Assessment Tribunal.] [(11) The Tribunal shall have an establishment consisting of such officers and other employees appointed on such terms and conditions as may be prescribed. The expenses of the establishment shall be paid out of the Municipal Fund.] 6. The expenses of the establishment shall be paid out of the Municipal Fund.] 6. On conjoint reading of the aforesaid provisions, it is manifest that where the general valuation has been completed it has to be entered into the assessment list in the prescribed form and the same may be available for inspection to every person claiming to be the owner, lessee or the occupier of a land or building included in the list and objection may be filed by such person in writing to the Municipal Commissioner before the date is fixed in the said notice disputing the annual valuation entered into the assessment list. Such objection is required to be determined by the Hearing Officer appointed by the State Government and after affording an opportunity of hearing and taking into account all the materials placed before him shall pass an order which would be recorded in the register maintained in this regard with the date and the copy of the order shall be supplied within 30 days thereof in such form and the manner as may be prescribed. If the person feels aggrieved by determination of the said objection the remedy by way of an appeal before the Municipal Assessment Tribunal is provided under Section 189 of the said Act. There is no hesitation in my mind that the statute requires the communication of the order passed by the Hearing Officer disposing of the objection in a prescribed format. In exercise of such Rule making power, the Calcutta Municipal Corporation Taxation Rules, 1987 has been framed and Rule 9 thereof contains an exhaustive provisions pertaining to the disposal of the objection filed under Section 186 or Subsection( 2) of Section 192 of the Act. The said Rule is reproduced as under : "9. In exercise of such Rule making power, the Calcutta Municipal Corporation Taxation Rules, 1987 has been framed and Rule 9 thereof contains an exhaustive provisions pertaining to the disposal of the objection filed under Section 186 or Subsection( 2) of Section 192 of the Act. The said Rule is reproduced as under : "9. Objections.- (1) Objection filed under section 186 or under sub-section (2) of section 192 shall be entered in register maintained in Form G. (2) When an objection is determined and order is passed, the Municipal Commissioner shall cause to be given or tendered or sent by hand or under registered post a copy of such order to the person filing the objection in Form H. (3) The procedure for hearing and disposal of an objection filed under section 186 shall be as follows: (a) The objection in writing made under section 186 together with returns furnished under section 181 and/or under section 182 shall be placed before the officer at the time of hearing of objection under section 188 along with a sheet of paper on which orders and queries are to be noted. (b) Queries and observations made and records, returns and explanations called for by the officer under sub-section (3) of section 187 together with the order passed under sub-section(2) of section 188 shall be recorded by him on the sheet. The date on which such order is passed shall also be recorded on the sheet. (c) The officer may, at the time of hearing the objection, call upon the person appearing before him at the hearing to file a written statement, supported by a duly sworn-in affidavit, if necessary, giving particulars of his submission in support of the disputes raised. (d) The officer hearing the objection under section 188 may, for reasonable cause, adjourn the hearing and fix a date for further hearing and while fixing the date may direct a fresh enquiry to be made. (e) While determining the objection, the officer hearing the objection shall specifically note the reasonable rent determined by him in respect of every individual occupier who uses his portion for commercial or non-residential purpose. (f) The order passed shall be read out to the person appearing at the hearing who shall put his signature with date on the sheet in proof of his presence and knowledge of the order passed." 7. (f) The order passed shall be read out to the person appearing at the hearing who shall put his signature with date on the sheet in proof of his presence and knowledge of the order passed." 7. It is obligatory on the part of the Municipal Authorities to communicate the order determining the objection in Form H. The said form appended to the said Rules imbibes within itself the copy of the order determining the valuation at a particular amount. 8. The learned Advocate appearing for the petitioner relies upon a decision of the Division Bench of this Court rendered in case of Turner Morrison and Co. Ltd. and Anr. v. State of West Bengal and Ors. reported in (2007) 1 CALLT 505 (HC) in support of the contention that mere issuance of a rate card does not absolve the statutory authority from communicating the order based on determining the objection filed under Section 186 of the Act. The relevant excerpt from the said judgment is quoted here-in-below : "8. Mr. Das Adhikari, on the other hand, contends that Section 188(3) stipulates communication of the order. Rule 9(2) prescribes the mode of communication whereas Form H prescribes the format in which the order is to be communicated. As and when the order is communicated to the objector, the objector is made known the decision of the hearing authority which empowers the Corporation to raise supplementary bill on the basis of the said order. Mr. Das Adhikari has also drawn our attention to Sub-section (4) of Section 188 wherein it obligates the Hearing Officer to read out to the objector his order after the same is passed and to obtain signature of the objector on the sheet in proof of his presence and knowledge of the order passed. Hence, the objector is first made known the fate of his objection by the Hearing Officer as and when the order is passed and read out in his presence and then through a written communication in the form of red card and the objector is free to prefer appeal, if he so chooses. Mr. Das Adhikari also contends that there is a provision for obtaining certified copy of the said order. Mr. Das Adhikari also contends that there is a provision for obtaining certified copy of the said order. If the objector wants to have true copy of the said order, he can apply for certified copy and on such application being made the Corporation would be bound to deliver the same to him. That would, however, not in any way create any impediment on the objector to prefer appeal as contemplated under Section 189." "9. We have considered the rival contentions of the parties. We have also benefited ourselves by the views of two learned Judges of this Court. We are of the view that the approach made by the learned Judges in interpreting the particular provisions of the statute is accurate and we do not find any scope of interference on that score. We are in full agreement with Their Lordships to the extent that it is the mandate of the legislature upon the Corporation to provide for a copy of the order passed by the Hearing Officer to the objector. So long such communication is not made it would not be proper for the Corporation to raise supplementary bill and compel the objector to pay the same without exercising his right under the statute to have an appeal preferred before the Tribunal." "10. Next question comes as to the mode of communication. Mr. Das Adhikari submits that under Rule 9(2) the format has been prescribed and order is communicated through Form H. We have perused Form H. As we have recorded hereinbefore, Form H does stipulate the words "copy of order". We are unable to accept Mr. Das Adhikari's contention to the extent that mere communication of the enhanced valuation is sufficient compliance of the statutory mandate as contemplated under Section 188(3). We are in total agreement with Their Lordships to the extent that the Corporation with the red card." 9. The methodology and the mechanism for determining the objection against the proposed annual valuation discernible from the various provisions of the Act as quoted above leaves no doubt that such order must be reflected in the register maintained in this regard in Form G and such order shall be sent by hand or under registered post to a person filing an objection in Form H. As indicated above, Form H includes the copy of the order, which is commonly known as rate card. It is an admitted position that the petitioner received the rate card as the same has been annexed with the writ petition. What is sought to be contended in the writ petition is that the copy of the order passed by the Hearing Officer has not been served and, therefore, the petitioner is unable to prefer an appeal before the appellate authority. 10. Rule 10 of the Taxation Rules contains an elaborate provision pertaining to form, presentation and the registration of the appeals. Sub-rule (3) thereof obligates the aggrieved person to file the memorandum of appeal accompanying an order under appeal. Sub-section(5) of Section 189 provides a remedy to an owner or a person dissatisfied with the determination of the objection to prefer an appeal to the Municipal Assessment Traveller within 45 days from the date of service of the copy of the order under Section 188. 11. Since Form H prescribed under Rule 9(2) of the Taxation Rules is prescribed for communication of the order and if the same has been communicated to a person, this Court does not find any difficulty in maintaining the appeal in absence of an elaborate order being not communicated. It will be a matter before the Municipal Assessment Tribunal to interfere with the communication of the order in prescribed form if it does not contain the elaborate reasons recorded by the Hearing Officer disposing of the said objection. It is one thing to say that the remedy by way of an appeal is not available, it would be totally different when a point is raised that a reasoned order is communicated. This Court, therefore, does not find that there is any difficulty or fetter on the part of the petitioner in preferring an appeal on the basis of the rate card issued in prescribed Form H. 12. The decision in case of Turner Morrison and Co. Ltd. and Anr (supra) cannot be a pointer to issue involved in the instant writ petition. As indicated above, the communication of the enhanced valuation in terms of the order passed by the Hearing Officer stands on a different pedestal than the communication of the reasoned order which forms basis of such enhancement. Once the copy of the order may be in a truncated or cryptic form is communicated, there is no difficulty in maintaining an appeal before the Municipal Assessment Tribunal. 13. Once the copy of the order may be in a truncated or cryptic form is communicated, there is no difficulty in maintaining an appeal before the Municipal Assessment Tribunal. 13. The second limb of argument advanced before this Court assumes significance and importance more particularly on perusal of the rate card issued before this Court. The rate card does not depict the reasons for enhancement of the annual valuation w.e.f 2nd quarter 1988-89 nor w.e.f. 2nd quarter 2000-01. It simply proceeds that the annual valuation is fixed at a particular amount upon determining the objection filed by the petitioner. 14. The learned Advocate appearing for the Corporation vehemently opposes such submission that there is no pleading in the writ petition in this regard. What is sought to be contended before this Court is that the Court cannot make out a new case for the parties in absence of any specific or express pleading in this regard. It is a settled proposition of law that the pure question of law can be raised and/or agitated at any point of time provided no new or fresh facts are required to be looked into. 15. In paragraph 10 of the writ petition the petitioner has categorically stated that he was never informed the basis or the ground for such arbitrary increase. There is no reflection of the word 'reason' from the said sentence but one can reasonably understand the meaning of such sentence that the petitioner wanted to impinge the said enhancement of the valuation in absence of any reasoned order to be communicated to him. 16. In the affidavit-in-opposition filed by the Corporation there is no whisper that the reason for enhancing the annual valuation was communicated to the petitioner. However, a justification is sought to be made which laid foundation for such increment of the annual valuation in paragraph 5 of the said opposition. Neither order passed by the Hearing Officer is annexed to the opposition nor the same is quoted within the four corners of the affidavit-in-opposition wherefrom this Court can satisfy itself that the reasons have been provided in an order passed by the Hearing Officer. 17. Neither order passed by the Hearing Officer is annexed to the opposition nor the same is quoted within the four corners of the affidavit-in-opposition wherefrom this Court can satisfy itself that the reasons have been provided in an order passed by the Hearing Officer. 17. The reference can safely be made in the Single Bench decision of this Court in case of Paresh R. kampani v. State of West Bengal reported in (1997) 2 CLJ 262 where the Single Bench emphasised on the responsibility of the statutory authorities to record the reasons before passing the order in these words : "3. In my view this is not at all a reasoned order. No reason has been given by the Hearing Officer as to why the reasonable rent could be fixed at Rs. 1,000/-. The writ petitioner filed an objection which is Annexure-B to the writ petition at page 31. Several objections were raised in the same. From the order indicated above it does not appear that the Hearing Officer while coming to such conclusion has at all applied his mind. In that view of the matter I set aside the order of valuation which is Annexure-G to the writ petition and direct the Hearing Officer to decide the same afresh in accordance with law within four months from the date of communication of this order after giving hearing to the writ petitioner and other parties, if there be any, and after passing a reasoned order in accordance with law." "4. I am not unmindful of the fact that a provision of appeal has been provided under Section 189 of the CMC Act, 1980 against an order of valuation made under Section 188 of the CMC Act, 1980. A point may be raised that in view of such alternative remedy available to the writ petitioner the writ petition cannot be entertained. It is now well settled by various decisions of the Supreme Court as well as of this Court that when an authority passes any order without application of mind and such order is passed without giving any reasons the Writ Court is entitled to entertain the writ application without directing the writ petitioner to avail the alternative remedy by way of appeal." 18. The order of the Single Bench was challenged by the Kolkata Municipal Corporation before the Division Bench. The order of the Single Bench was challenged by the Kolkata Municipal Corporation before the Division Bench. The Division Bench in case of The Calcutta Municipal Corporation & Ors. v. Paresh R. Kampani & Ors. reported in (1998) 2 CLJ 87 affirmed the order of the Single Bench with the following observations : "4. The learned Trial Judge, in our opinion, has rightly held that the said order is not a reasoned order. The Hearing Officer while disposing of the objection filed by an assessee is statutorily obliged to pass a reasoned order. It is now well settled principles of law that assignment of reason is also one of the limbs of principles of natural Justice and an unreasoned order is a nullity particularly when an appeal lies therefrom. When an unreasoned order is passed, even the Appeal Court would feel great difficulty in considering the same in its proper perspective." 19. It is imperative on the part of the authority to record the reason before determining and/or deciding the disputes or the objections raised before it. The reason is the heart and soul of the order without which it cannot survive. The importance of providing the reason becomes more necessary when such order is amenable to be challenged before the higher forum. If the reason is recorded it would assist and help the higher authority to decide the cause and to ascertain the state of mind of the authority. There is no difficulty in maintaining the writ petition despite the existence of an alternative efficacious remedy by way of an appeal provided under the statute if the order per se is non-speaking order. This Court, therefore, set aside and quash the rate card determining the valuation w.e.f. 2nd quarter 1988-89. Since the letter of demand and the supplementary bills were issued on the basis of the determination of the annual valuation by the Hearing Officer those cannot survive independently and have to consequently fall upon, the moment the rate card issued to the petitioner is quashed and set aside by this Court. 20. Since the Corporation could not satisfy this Court that any reason was recorded by the Hearing Officer at the time of disposal of the objection, this Court, therefore, set aside the said order as well being a non-reasoned order in view of the ratio laid down in case of Paresh R. Kampani (supra). 21. 20. Since the Corporation could not satisfy this Court that any reason was recorded by the Hearing Officer at the time of disposal of the objection, this Court, therefore, set aside the said order as well being a non-reasoned order in view of the ratio laid down in case of Paresh R. Kampani (supra). 21. It is open to the Corporation to initiate a proceeding afresh following the procedures and the provisions applicable therefor and it goes without saying that a reasonable opportunity of hearing should be afforded to the petitioner. 22. WP No.10 of 2004 is, thus, disposed of. I make no order as to costs. 23. Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.