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2017 DIGILAW 842 (CAL)

Alakanannda Sett v. Kolkata Municipal Corporation

2017-11-03

SUBRATA TALUKDAR

body2017
JUDGMENT : 1. The Court : The issues raised in the writ petition are of a nature which have been recurring from time to time through several individual petitions. In short, the writ petitioner/assessee claims protection from depositing the enhanced property tax to the Kolkata Municipal Corporation (for short KMC), till such time the KMC fulfills its mandate: (a) of transmitting to the petitioner the reasoned order of the Hearing Officer (HO) along with the rate card (viz. the computation of the enhanced valuation); and (b) the apportionment of the tax between the owner and the occupier/occupiers of the premises as provided under Section 178(6) of the KMC Act, 1980 (for short the KMC Act). 2. Mr.Chatterjee, learned Counsel for the petitioner, submits that only a small fraction of the premises in issue is occupied by the petitioner/owner for residential purpose. The remaining and larger portion of the premises on its ground, first and third floors respectively are in the occupation of several establishments, viz. a bank, a jewellery shop etc. 3. Mr.Chatterjee submits that pursuant to the communication of the enhanced annual valuation in the format as permitted under Section 188(3) of the KMC Act, the petitioner submitted a representation to the Municipal Commissioner dated the 4th of August, 2017 to forthwith furnish information connected to the apportionment of the property tax of the said premises in issue amongst all its occupiers, including the petitioner. Mr. Chatterjee complains of inaction on the part of the respondents/KMC for not fulfilling the statutory procedure prescribed under Section 178(6) of the KMC Act. 4. Learned Counsel for the petitioner further submits that in the absence of compliance of the provisions of Section 178(6) of the KMC Act, the respondents/KMC do not enjoy the right to insist upon deposit of the enhanced property tax as communicated under Section 188(3)(supra). Relying on a judgment of the Hon’ble Division Bench of this Court reported in 2006(4) CHN 905 , In Re : Turner Morrison & Co. Ltd., Mr. Relying on a judgment of the Hon’ble Division Bench of this Court reported in 2006(4) CHN 905 , In Re : Turner Morrison & Co. Ltd., Mr. Chatterjee submits that the Bench, inter alia, directed in no uncertain terms, that so long the communication of the reasoned order of the HO is not made to the Objector, it would not be appropriate for the KMC to raise a supplementary bill and compel the Objector to pay the same without exercising his right under the statute to have an appeal preferred before the learned Municipal Assessment Tribunal (MAT). 5. Next relying upon a judgment in In Re : Calcutta Gujarati Education Society reported in 2003(10) SCC 533 , Mr.Chatterjee submits that the onus of depositing the property tax by the person primarily liable to do so as provided by Section 231 of the KMC Act has been discussed to elucidate the intention of the legislature directing the furnishing of information of the tax burden between the owner/owners, the lessor and other tenants/sub-tenants/occupiers of the said premises. The intention of the legislature (supra) has been to treat the tax as deemed rent or, in other words, create a legal fiction of rent connected to such tax so that the landlord is not encumbered in any manner whatsoever from recovering the apportioned portion of the tax from the tenant/sub-tenant/occupier through appropriate proceedings. 6. Arguing for the respondents/KMC authorities, Mr.Biswajit Mukherjee, learned Counsel takes this Court to paragraphs 10 and 11 of the writ petition and submits that the disputes raised by the petitioner are inter se the landlord and the occupiers. Relying on the averments made in the aforementioned paragraphs, Mr.Mukherjee argues that the petitioner is already aware of the apportionment of 100% of the property tax and the entire commercial surcharge, upto the periods mentioned against each of the above-noted items of charge, to be paid by each of the tenants/occupiers of the premises in issue. Mr. Mukherjee points out that the property tax, which is the income of the KMC, cannot be allowed to suffer because of such inter se disputes which are purely civil in nature and cannot acquire the colour of a writ proceeding merely on the grounds (a) and (b) as recorded earlier in this order. 7. Mr. Mukherjee points out that the property tax, which is the income of the KMC, cannot be allowed to suffer because of such inter se disputes which are purely civil in nature and cannot acquire the colour of a writ proceeding merely on the grounds (a) and (b) as recorded earlier in this order. 7. Furthermore, Mr.Mukherjee submits that the procedure of Section 231 of the KMC Act shall apply and, the petitioner has the avenue open before her to recover the enhanced property tax pay from the occupiers. 8. Mr.Mukherjee submits and, in the opinion of this Court correctly so, that a legal fiction in the name of grounds (a) and (b) above is being created before the writ court to invoke jurisdiction only for diluting the effect of Section 231(supra) although vires of such section is not under challenge. 9. On behalf of the respondent/State Bank of India, appearance is entered by Mr.Pal Choudhury, learned Advocate. 10. Having heard the parties and considering the materials placed, this Court is of the view that the principles enshrined In Re : Turner Morrison and In Re : Calcutta Gujarati Education Society (supra) are required to be considered for ushering in a practical solution to the issues raised in the writ petition. At the very outset, this Court must notice that In Re : Calcutta Gujarati Education Society, the Hon’ble Apex Court was pleased to, inter alia, hold that there can be no general direction for redressing grievances stated to be falling within the purview of Section 178(6) (supra). 11. Further, this Court must also notice that In Re : Turner Morrison Co. Ltd. (supra) the objector/petitioner has the right to be informed of the reasons passed by the HO prior to the KMC insisting upon compliance of its supplementary bills. The right of appeal under Section 189(6) of the KMC Act cannot be fettered by insisting on deposit of the tax fixed without informing the apportionment. 12. At the same time the observations In Re : Calcutta Gujarati Education Society connected to Section 231 of the KMC Act obligate that the section cannot be read down to insist on a priori compliance of Section 178(VI). 13. 12. At the same time the observations In Re : Calcutta Gujarati Education Society connected to Section 231 of the KMC Act obligate that the section cannot be read down to insist on a priori compliance of Section 178(VI). 13. Therefore, applying the law to the facts of this case, this Court is of the view that the obligation to pay the tax by the person primarily responsible under Section 231 of the KMC Act cannot be read down in a manner to usher in a mandatory prior compliance of Section 178(VI). 14. However, the insistence of the petitioner to receive a copy of the reasoned order along with rate card under Section 188(3) shall stand controlled by the observations of the Hon’ble Division Bench In Re : Turner Morrison (supra) connected to the right of the petitioner to prefer an appeal against such order. 15. At this stage, learned Counsel for the KMC submits that the information on apportionment along with the reasoned order of the Hearing Officer shall be supplied to the petitioner within three weeks from the date of communication of this order. 16. the backdrop of the above discussion, affidavits are not invited. WP No.548 of 2017 stands, thus, disposed of.