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2019 DIGILAW 397 (CAL)

ABHIRATHI BHATTACHARYA v. STATE OF WEST BENGAL

2019-03-20

ABHIJIT GANGOPADHYAY

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JUDGMENT : ABHIJIT GANGOPADHYAY, J. 1. In this writ application the petitioner has prayed for reopening the case before the Municipal Assessment Tribunal (tribunal, in short, hereafter) of Kolkata Municipal Corporation (KMC, in short hereafter) being M.A.A. No. 3381 of 2006. 2. The facts of the case are as follows: 3. The petitioner constructed a one storied building of 773 sq. ft. in the city of Kolkata in accordance with the sanctioned building plan of KMC. 4. KMC determined annual valuation of the said building for the purpose of assessment of municipal tax is Rs. 25,670/- to which the petitioner raised objection. 5. Such objection was heard by the hearing officer and thereafter the annual valuation was reduced to Rs. 12,980. The petitioner was not satisfied by such reduction and he preferred an appeal before the Municipal Assessment Tribunal of KMC. The appeal was numbered as MAA 3381 of 2006. 6. After hearing the petitioner and the KMC the tribunal reduced the annual valuation to Rs. 10,320/- with effect from fourth quarter of the year 2005-2006. 7. Subsequently, the petitioner realized and understood that the said valuation was made by the tribunal considering the covered area of the building as 956 sq. ft. whereas the actual covered area of the building according to the petitioner is 773 sq. ft. This error was made by the KMC and the inflated covered area has been wrongfully mentioned in the Inspection Book of KMC. 8. Against this wrongful act the petitioner drew attention of the concerned authority of KMC and ultimately on 28.07.2010 the Chief Manager, Revenue of KMC expressed his opinion that the petitioner should approach the tribunal again seeking further order of the tribunal to reopen the issue of reference area in question and the said Chief Manager, Revenue further recorded that if the (assessment) tribunal considers the prayer of the petitioner and pass any order in the manner befitting to serve the petitioner's purpose then the assessor collector (Tolly Tax Department) will also thoroughly reexamination and revisit the matter. 9. Subsequently the petitioner made an application before the tribunal for reopening the case being M.A.A. No.3381 of 2006 for correcting the error in the order wherein the covered area was considered by the tribunal as 956 sq. ft. instead of 773 sq. ft. 10. 9. Subsequently the petitioner made an application before the tribunal for reopening the case being M.A.A. No.3381 of 2006 for correcting the error in the order wherein the covered area was considered by the tribunal as 956 sq. ft. instead of 773 sq. ft. 10. The tribunal rejected the application of the petitioner for correction of the said order (passed by the tribunal) by passing an order which is under challenge in this writ application with a prayer for reopening of the case being MAA 3381 of 2006. 11. Here, Rule 26 of CMC Taxation Rules is required to be referred: “Rule 26: Amendment of orders, and making of orders for ends of Justice. - The Tribunal may, on such terms and conditions as it thinks fit. - (a) amend any defect or error in any order of proceeding in an appeal, or (b) make such order may be necessary for the ends of justice or to prevent abuse of the process of the Tribunal.” 12. Under the law being Rule 26 of the KMC (Taxation) Rules 1987 the tribunal has the power to amend any defect or error in any order or proceeding in an appeal etc. 13. The tribunal referring to the above provision also held that there is no time limit for entertaining an application for correction of any error or defect which is apparent on the face of the record. 14. But suddenly the tribunal referred to order 47 Rule 1 of the Code of Civil Procedure in respect review of a matter under the said code and held that as, for review of a matter under Order 47 Rule 1 of the said code the limitation period is 30 days from the date of the order, the application of the petitioner for rectification of defect or error, the said period of one month from the date of judgment and order had expired. 15. Such stand taken by the tribunal is wholly unreasonable and self-contradictory. 16. The tribunal has failed to understand that said Rule 26 of KMC (Taxation) Rules 26 is not a provision which is equivalent to the provision of Review under order 47 of the Code of Civil Procedure. Why the tribunal referred to the provision of Review under Code of Civil Procedure is not known or understood. The application of the petitioner was not a review application under the said code. Why the tribunal referred to the provision of Review under Code of Civil Procedure is not known or understood. The application of the petitioner was not a review application under the said code. It was an application under Rule 26 of KMC (Taxation) Rule, 1987. 17. Further when there is no time limit which has been recognized and mentioned by the tribunal itself in its order No. 10 dated 18.12.2012, why one month's time limit will be imposed by the tribunal in the case of the petitioner is not understood and the same is wholly unreasonable. When there is no time limit prescribed for filing such an application, the tribunal has no business to import such a provision in the said Rules by referring to the provision of Review under the Code of Civil Procedure. While speaking about limitation (Which is not applicable in the matter) the tribunal not only has made a mistake in applying the law of limitation but also failed to understand to take note of the principles that (i) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice is defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. (ii) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. The above principles (and also other principles) have been laid down by the Supreme Court in COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANOTHER -Versus- Mst. KATIJI AND OTHERS, (1987) 2 SCC 107 . 18. The tribunal also held that the building plan sanctioned on 25.08.2003 was valid up to 24.08.2008 and based on that rectification of the judgment of the appeal (which was patently erroneous due to error in Inspection Book of KMC) cannot be done. The tribunal is wholly mistaken in this respect. Covered area in a sanctioned building plan has no connection with application for exercise of power by the tribunal under Rule 26 of the above Rules of 1987. 19. The tribunal is wholly mistaken in this respect. Covered area in a sanctioned building plan has no connection with application for exercise of power by the tribunal under Rule 26 of the above Rules of 1987. 19. Another aspect of the matter is that by an order of this Court dated 17.04.2015 a joint inspection of the premises was held when the covered area of ground floor was found to be 72.1956 sq. ft. (777.113 sq. ft.) which has been recorded in a document signed and sealed by A.E.(C)/ Bldg/Br.X. dated 20.05.2015. This measurement of the covered area of the ground floor of the building in question has not been challenged by any of the parties on any ground whatsoever. KMC has not used any affidavit also in this matter disputing the statements made by the petitioner against the order of the tribunal being order No. 10 dated 18.12.2012 in M.A.A. No. 3381 of 2006. 20. If there is any mistake in calculation the same cannot be perpetuated for all time to come to the detriment of the petitioner by rejecting his application on wrong application of legal principles of technicality. The application of the petition has to be heard on merit and a reasoned and speaking order thereon has to be passed. 21. In the circumstances this writ application is allowed with a direction on the tribunal to re-open the case being M.A.A. No. 3381 of 2006 and to hear it on merit. 22. In the proceeding, when the case would be re-opened the petitioner will be at liberty to use the joint measurement report which was done by order of this Court dated 17.04.2015. 23. The order of the tribunal No. 10 dated 18.12.2012 is set aside. No costs.