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2017 DIGILAW 890 (CAL)

Nandu K. Belani v. Kolkata Municipal Corporation

2017-11-20

BISWANATH SOMADDER, MOUSHUMI BHATTACHARYA

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JUDGMENT : 1. The Court : By consent of the parties, the appeal is treated as on day’s list and taken up for consideration along with the application for stay. 2. The instant appeal arises out of a judgment and order dated 14th September, 2017, passed by a learned Single Judge in W.P. No. 327 of 2017 (Nandu K. Belani & Ors. vs. Kolkata Municipal Corporation & Ors.). 3. The appellants before us were the writ petitioners who had approached the learned Single Judge in respect of an order passed by a Hearing Officer of Kolkata Municipal Corporation, which, according to them, was rendered without any reason or contains some reasons which may not ultimately be supported by the materials available on the record. 4. During the course of hearing before the learned Single Judge, it was observed by the Court that the writ petitioner should exhaust the statutory remedy provided under the Kolkata Municipal Corporation Act, 1980. The points taken in the writ petition were amenable to be taken before the statutory appellate forum which was otherwise competent to decide the same on its merits. 5. The matter was heard at length and various decisions of the Hon’ble Supreme Court were considered by the learned Single Judge. The learned Single Judge also took into consideration various provisions of law, particularly section 189 of the Kolkata Municipal Corporation Act, 1980, which is in respect of statutory appeals before the Municipal Assessment Tribunal. Considering all aspects of the matter, the learned Single Judge proceeded to make the following observation: “In the backdrop of the above proposition of law, it is to be seen whether the order passed by the Hearing Officer is without any reason or contains some reasons, which may not ultimately be supported by the materials available on the records. The facts which emanate from the Writ Petition are that the Petitioner is the owner of the mutistoried building and was served with several notices proposing to enhance the annual valuation to take effect from different quarters for the purpose of property tax. It is not in dispute that the Petitioner received those notices and appeared before the Hearing Officer on the date so fixed. It is an admitted fact that the Petitioner has sought for an adjournment on several dates and was represented on the date when the impugned orders were passed. It is not in dispute that the Petitioner received those notices and appeared before the Hearing Officer on the date so fixed. It is an admitted fact that the Petitioner has sought for an adjournment on several dates and was represented on the date when the impugned orders were passed. According to the Petitioner, an adjournment was sought before the Hearing Officer to inspect the assessment list required to be prepared under sub-Section 1 of Section 184 of the said Act and its publication under sub-Section 2 thereof. In other words, the Petitioner wanted to inspect whether the general revaluation in any ward of the Corporation or part thereof has been entered into in an assessment list by the Municipal Commissioner and a public notice in this regard has been given, so that the Petitioner would be able to take the extract there from free of charge. From the Adjournment Application annexed to the Writ Petition, this Court is unable to find any such averment having made therein for the purpose of adjournments. The aforesaid pleas are taken for the first time in the instant Writ Petition without having taken before the authority. The Corporation has specifically denied the above statement in the Affidavit-in-Opposition filed by them in the instant matter. Such disputed question of facts cannot be decided in a Writ Jurisdiction. It is further submitted by the Petitioner that the reasons provided in the impugned order is completely alien and foreign to the grounds on which the proposal for enhancement of the annual valuation is founded. It is again a matter to be decided by the Appellate Court whether the reasons recorded in the impugned order is the proper reason in the perspective of the materials available before the Hearing Officer. According to the Corporation, the documents which were unearthed in course of the investigation, leading to the proposed enhancement of valuation was available before the Hearing Officer and the Petitioner could not dispute the existence thereof. The Petitioner retorted the aforesaid stand of the Corporation on the ground that there is no reflection in the order whether those documents were taken into consideration. The remedy by way of an appeal against the order of the Hearing Officer is provided under Section 189 of the said Act and therefore, in my opinion, the Petitioner can take all such pleas before the Appellate Forum. The remedy by way of an appeal against the order of the Hearing Officer is provided under Section 189 of the said Act and therefore, in my opinion, the Petitioner can take all such pleas before the Appellate Forum. By virtue of the powers conferred under Section 170 of the Kolkata Municipal Corporation Act, 1980 the Rules namely Kolkata Municipal Corporation (Taxation) Rules, 1987 has been framed. The said Rules contains the exhaustive provisions relating to the procedure, powers of the Appellate Authority and is therefore a complete Code by itself. The power is also conferred upon the Appellate Authority to take any additional evidence to be brought and therefore there is no difficulty on the part of the Petitioner to rely upon any materials, which he has not produced before the Hearing Officer. The Statutory Appellate Forum is vested with the power to determine the matter both on facts as well as law. This Court, therefore, feels that it would not be proper to act as a Court of Appeal and decide the highly disputed facts. This Court, therefore, finds that it is a fit case where the Petitioner should exhaust the statutory remedy of appeal provided under Section 189 of the Act and it is not such case where the Court should interfere with the order of the Hearing Officer in exercise of power under Article 226 of the Constitution of India. The Writ Petition is thus dismissed. However, the dismissal of the Writ Petition shall not prevent the Petitioner from challenging the impugned orders before the Statutory Forum and if it is so challenged the Appellate Forum shall decide the same on merit without being influenced by the fact that this Court has refused to entertain the Writ Petition.” 6. Even a bare perusal of the impugned judgment and order, as reproduced hereinbefore, reveals that the same has been rendered with cogent reasons. In an Intra-Court Mandamus Appeal, palpable infirmity or perversity is required to be noticed before the Court of Appeal intervenes. No such palpable infirmity or perversity is noticed on a plain reading of the impugned judgment and order. 7. The appeal and the application for stay, therefore, are liable to be dismissed and stand accordingly dismissed.