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2018 DIGILAW 819 (CAL)

Subrata Sen v. Kolkata Municipal Corporation

2018-11-26

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : 1. By consent of the parties, the appeal is treated as on the day’s list and taken up for consideration along with the application for stay. 2. The instant appeal has been preferred against an order dated 12th June, 2018, passed by a learned Single Judge in W.P. No. 192 of 2018 (Subrata Sen vs. The Kolkata Municipal Corporation & Ors.). By the said impugned order, the learned Single Judge proceeded to dispose of the writ petition on the ground that if an appropriate writ in the nature of mandamus was issued, it would tantamount to non-suiting the corporation authorities in respect of a revisional application that was filed by the said authorities before this Court under Article 227 of the Constitution of India against the order dated 13th October, 2014, passed by the Municipal Assessment Tribunal. 3. The instant appeal has been preferred by the writ petitioner, Subrata Sen. 4. It is an admitted position that the order of the Municipal Assessment Tribunal dated 13th October, 2014, is a final order. The revisional application under Article 227 of the Constitution of India cannot be held – by any stretch of imagination – as a continuation of the original proceeding. By the order of the Municipal Assessment Tribunal, the annual valuation of the premises-in-question was reduced from Rs. 48,880/- to Rs. 23,850/-. If this valid and subsisting order is allowed to remain in abeyance till such time the revisional application is finally heard and disposed of, it would simply render nugatory the due process in law which was required to be followed by the parties in the instant case. It will also mean that no order passed by any competent legal forum – which has attained finality – shall be given effect to or complied with by the concerned authority for an indefinite period of time on the specious plea that the said authority has decided to seek remedies which are essentially discretionary in nature. It would have been a different matter altogether had there been a substantive statutory right of appeal by the aggrieved party subsisting against the order of the Municipal Assessment Tribunal and the period of limitation for filing such an appeal was not over. That, however, is not so and in fact far from it. It would have been a different matter altogether had there been a substantive statutory right of appeal by the aggrieved party subsisting against the order of the Municipal Assessment Tribunal and the period of limitation for filing such an appeal was not over. That, however, is not so and in fact far from it. As stated earlier, revisional application which has been preferred by the concerned authority of Kolkata Municipal Corporation is essentially invoking the discretionary jurisdiction of this Court under Article 227 of the Constitution of India. That apart, no order of stay has been passed by the Revisional Court in respect of that application. 5. It is quite well-settled in law that till an order passed by a competent Court or forum is set aside and/or stayed and/or varied and/or modified, the said order remains valid and subsisting and is required to be complied with, both in law and in spirit. If a stand is taken by any person that he/she is unable to comply with a valid and subsisting order simply because an appeal is pending before a higher forum, it would render the concept of adherence to due process of law to a state of absolute farce. This is neither desirable nor acceptable nor permissible. If one has to accept a stand taken on behalf of the Kolkata Municipal Corporation, it would mean that no order passed by any competent legal forum will ever be complied with till the person aggrieved by the said order has exhausted all further remedies even if such remedies are essentially discretionary in nature. This is certainly not in conformity with the scheme for rendering effective justice in the matter. In this context, one may take notice of the observations contained in a judgment rendered by a Single Bench of this Court in the case of Sk. Abdul Matleb vs. R.P.S. Khalon & Ors. reported in AIR 2016 Calcutta 235. 6. For reasons stated above, we are of the view that the impugned order dated 12th June, 2018 cannot be sustained and is liable to be set aside and is accordingly set aside. The concerned authority of Kolkata Municipal Corporation is directed to forthwith implement the order of the Municipal Assessment Tribunal dated 13th October, 2014. 7. 6. For reasons stated above, we are of the view that the impugned order dated 12th June, 2018 cannot be sustained and is liable to be set aside and is accordingly set aside. The concerned authority of Kolkata Municipal Corporation is directed to forthwith implement the order of the Municipal Assessment Tribunal dated 13th October, 2014. 7. We, however, make it clear that implementation of the order passed by the Municipal Assessment Tribunal dated 13th October, 2014, shall not cause any prejudice to the rights of the Kolkata Municipal Corporation in respect of the revisional application, which shall be decided on its own merit without being influenced in any manner by any observation made herein. 8. The appeal and the application for stay stand disposed of accordingly.