Kolkata Municipal Corporation v. Sk. Joynal Abedin
2020-02-19
SHAMPA SARKAR
body2020
DigiLaw.ai
JUDGMENT 1. The Kolkata Municipal Corporation is the petitioner before this Court. The petitioner was the respondent in M.A.A. 1072 of 2008. The said appeal was disposed of by the learned Municipal Assessment Tribunal, Kolkata Municipal Corporation, 2n d Bench, by an order dated September 5, 2017. The order of the Hearing Officer of the Kolkata Municipal Corporation with regard to the annual valuation was modified and the annual valuation of the premises concerned was fixed at Rs.97,970/-. The Hearing Officer had fixed the annual valuation at Rs.2,85,890/- with effect from 4t h Quarter of 2004-2005. 2. Mr. Ghosh, learned advocate appearing on behalf of the petitioner, submitted that the order impugned is perverse as the learned tribunal has failed to record any reason while fixing the reasonable rent of the premises in question for both residential and non-residential area of the locality around Dilkhusa Street at Rs.1.00 per sq. ft. per month with effect from 4t h quarter of 2004-05. It is further submitted that both the parties had referred to decisions of the tribunal with regard to fixation of annual valuation in appeals with reference to Dr. Biresh Guha Street and also AJC Bose Road. However, according to Mr. Ghosh, the tribunal has neither accepted the rate referred to by the assessee nor rejected the rate referred to by the KMC but, has arbitrarily decided that the annual valuation should be fixed at Rs.97,970/-. While fixing such annual valuation the learned tribunal has not even discussed as to why and how the Hearing Officer had erred in fixing the annual valuation at Rs.2,85,890/-. It is further contended by Mr. Ghosh that the building comprises of three floors and also is used for non-residential purpose and, thus, the annual valuation could not be as low as Rs.97,970/-. 3. Mr. Chakraborty, learned advocate appearing on behalf of the assessee/opposite party, submits that the revisional application could not be entertained by this Court on account of the delay in filing the same. He submits that there has been delay of two years and three months. He further submits that the explanation of delay was not acceptable. According to Mr. Chakraborty, on account of such delay a right has accrued in favour of his clients and, as such, entertaining the revisional application after two years and three months will be causing irreparable loss and injury to the opposite party. Mr.
He further submits that the explanation of delay was not acceptable. According to Mr. Chakraborty, on account of such delay a right has accrued in favour of his clients and, as such, entertaining the revisional application after two years and three months will be causing irreparable loss and injury to the opposite party. Mr. Chakraborty submits that the explanation for such delay was not bona fide but the usual explanation of the file being kept pending and the red tape involved in the process was given by the petitioner. In support of his contention, Mr. Chakraborty has relied on the decisions of the Honble Apex Court in the matter of 1) State of Uttar Pradesh and anr. vs. Amar Nath Yadav, reported in (2014) 2 SCC 422 and 2) Bithika Mazumdar vs. Sagar Pal, reported in (2017) 2 SCC 748 as also two orders of this Court in the matter of 1) The Kolkata Municipal Corporation vs. Smt. Shibani Mukherjee, reported in 2017 (3) CLJ (Cal) 593 and 2) The order dated July 26, 2018 in the mater of Kolkata Municipal Corporation vs. Subhas Chandra Halder & anr., in C.O. 882 of 2018. 4. Mr. Chakraborty, thereafter argues on the merits of the case and submits that annual valuation is fixed by a comparable method, i.e., the valuation of premises in Dilkhusa Street would be compared to valuations of premises in the same locality and in this case, Dr. Biresh Guha Street which is a street nearby Dilkhusa Street. He further submits that the Kolkata Municipal Corporation wrongly relied on the annual valuation of premises on the AJC Bose Road which is a major road running through the heart of the city and could not be compared to street in Park Circus area. He further submits that the annual valuation of Dr. Biresh Guha Street which was fixed @ Rs.0.65 and Rs. 0.70 per sq. ft. per month for residential area for the years 1988-89 and 1991-92, if enhanced @ 20%, the rate arrived at would be Rs.1.00 per sq. ft. per month. He submits that, this was the calculation on the basis of which the learned appellate tribunal had fixed the reasonable rent and as such, there was nothing arbitrary or erroneous with such assessment. 5. Considered the submissions made on behalf of the respective parties. 6. The point of entertainability of this revisional application is taken up first.
ft. per month. He submits that, this was the calculation on the basis of which the learned appellate tribunal had fixed the reasonable rent and as such, there was nothing arbitrary or erroneous with such assessment. 5. Considered the submissions made on behalf of the respective parties. 6. The point of entertainability of this revisional application is taken up first. It is settled law that there is no period of limitation prescribed under any statute or any law for invoking the inherent powers of the High Court under Article 227 of the Constitution of India . Article 227 confers upon the High Court general power of superintendence over all subordinate courts and tribunals. Such power can be invoked in situations where aggrieved parties can produce materials before the High Court to show that a subordinate court or tribunal has failed to exercise jurisdiction or has acted without jurisdiction or has committed error on the face of record. The proposition that there is no prescribed period of limitation under Article 227 of the Constitution of India has been upheld by the Honble Apex Court in the judgment cited by Mr. Chakraborty himself. In the decision of Bithika Mazumdar (supra) the Honble Apex Court held thus: '4. It is an admitted position in law that no limitation is prescribed for filing application under Article 227 of the Constitution. Of course, the petitioner who files such a petition is supposed to file the same without unreasonable delay and if there is a delay that should be duly and satisfactorily explained. In the facts of the present case, we find that the High Court has dismissed the said petition by observing that though there is no statutory period of limitation prescribed, such a petition should be filed within a period of limitation as prescribed for applications under Section 115 of the Code of Civil Procedure. This approach of the High Court cannot be countenanced. As mentioned above, in the absence of any limitation period, if the petition is filed with some delay but at the same time, the petitioner gives satisfactory explanation thereof, the petition should be entertained on merits. 5. In the present case, we find that sufficient reasons were given by the appellants in the petition filed under Article 227.
As mentioned above, in the absence of any limitation period, if the petition is filed with some delay but at the same time, the petitioner gives satisfactory explanation thereof, the petition should be entertained on merits. 5. In the present case, we find that sufficient reasons were given by the appellants in the petition filed under Article 227. Moreover, the High Court should have also kept in mind that Gautam Mazumdar, who was the only earning member, died in the said accident and appellants are the widow and minor daughter of the deceased. In a case like this, the High Court should have considered the revisional application on merits rather than dismissing the same on the ground of delay. 6. In the aforesaid circumstances, the order of the High Court does not stand judicial scrutiny and, therefore, is liable to be set aside.' 7. The next question to be taken up for consideration is whether the delay of two years three months in filing the revisional application was sufficiently explained. The Kolkata Municipal Corporation in paragraphs 17 to 19 of the application has categorically explained the reason as to why the revisional application was filed after two years. It is not denied that the communication of the orders were not received. It has been stated that after the Assessor Collector (South), K.M.C. received a letter from the learned advocate of the assessee for adjustment, the letter was placed before the Assistant Assessor Collector (South) to give a report in respect of the case. Such report was prepared around December 2017 and forwarded to higher authorities. The Joint Municipal Commissioner upon considering the facts sent the matter to the Chief Law Officer, KMC for opinion and consideration whether the corporation should approach the higher forum. Thereafter, the certified copy was obtained on January 9, 2018 and the decision to prefer a revisional application was taken. The learned advocate for the KMC was approached in the second week of April, 2018 and the learned advocate called for some documents. Those documents being for the year 2008, the officers took some time to brief the learned advocate and finally draft revisional application was made ready on October 30, 2019. The same was vetted and received by the learned advocate on record for the petitioner herein on November 25, 2019. The revisional application was affirmed on December 4, 2019 and filed.
Those documents being for the year 2008, the officers took some time to brief the learned advocate and finally draft revisional application was made ready on October 30, 2019. The same was vetted and received by the learned advocate on record for the petitioner herein on November 25, 2019. The revisional application was affirmed on December 4, 2019 and filed. The Kolkata Municipal Corporation being a statutory authority, has to go through the bureaucratic procedure. A single officer or their learned advocate cannot, unlike private parties, decide to challenge orders passed by tribunals. There is an admitted bureaucratic procedure which has to be adhered to as all the officers involved in the process are jointly and severally liable for any action and/or incorrect action that may be taken. 8. The explanation contained in this revisional application satisfies the test that the Kolkata Municipal Corporation was not sleeping over their rights. Moreover, the revisional application if entertained, would not take away a vested right. If the petitioner is entitled to adjustment, the said adjustment will be available even after the entire process is over. In this case, no third party rights have been created and such delay cannot be termed as fatal. 9. The decision of the Honble Apex Court in the matter of Amar Nath Yadav (supra) does not help the opposite party, inasmuch as, the Honble Apex Court did not condone the delay of 480 days in filing the Special Leave Petition. The Honble Apex Court came to a conclusion that by mentioning various dates without any cogent or sufficient explanation a huge delay could not be condoned. The said judgment was passed while considering the delay in filing a special leave petition beyond the prescribed period of limitation. Unlike Article 227 there is a period prescribed for filing a special leave petition before the Honble Apex Court. The decision relied on by Mr. Chakraborty in the matter of Shibani Mukherjee (supra) also does not help the opposite party in view of the fact that, in that case the learned court disbelieved the explanation of KMC that is, KMC had come to know of the order challenged before His Lordship only after obtaining the certified copy although records revealed that the Municipal Commissioner was immediately sent a copy of the order. 10.
10. In this case, the KMC has not disputed that a copy of the order was sent to the Municipal Commissioner. It is also not the case of KMC that the order impugned came to the knowledge of KMC only after obtaining the certified copy. The grounds set forth in this application for condonation of delay has already been stated hereinbefore. As such, I have no hesitation to hold that even if there has been a delay of two years and three months in filing the revisional application such delay has been sufficiently explained and the delay is not fatal. 11. Reference is made to the decision of the Honble Apex Court in the matter of Executive Officer, Antiyur Town Panchayat vs. G. Arumugam, reported in (2015) 3 SCC 569 , wherein it was held that the Court while considering an application for condonation of delay must take a justice oriented approach and in view of the larger public interest should take a lenient view and condone the delay. In a decision dated December 18, 2017, in the matter of the Kolkata Municipal Corporation vs. Kajari Banerjee & another in C.O. 2623 of 2017, another coordinate Bench of this Court under similar facts and circumstances came to a conclusion that when the order impugned before the Court was bereft of any reason, such delay or laches on the part of the Corporation cannot be an excuse to turn a blind eye to a colossal act of impropriety by an adjudicatory body in abdicating all its duties and functions and passing an order that leaves sufficient room for the worst of inferences to be drawn therefrom. 12. For the reasons above, I hold that the revisional application is entertainable by this Court. 13. Coming to the merits of the case as argued by Mr. Chakraborty in defence of the order impugned, I hold that the leaned tribunal completely failed to exercise its jurisdiction. The learned tribunal was obliged to adjudicate the issue and indicate reasons for finding the assessment of the Hearing Officer to be incorrect or palpably erroneous. 14. The order of assessment of the learned tribunal is not based on any parameters whatsoever.
The learned tribunal was obliged to adjudicate the issue and indicate reasons for finding the assessment of the Hearing Officer to be incorrect or palpably erroneous. 14. The order of assessment of the learned tribunal is not based on any parameters whatsoever. Even if the learned tribunal had accepted the rates put forward by the assessee, it was its bounden duty as an adjudicatory body to assign reasons for accepting the rates put forward by the assessee and to further assign reasons for not accepting the rates professed to be the correct rate by the KMC. 15. The order impugned is, thus, perverse and is set aside. The learned tribunal is directed to hear M.A.A. 1072 of 2008 afresh, and in accordance with law and pass an order upon considering the materials on record. 16. The learned tribunal is directed to dispose of M.A.A. 1072 of 2008 within two months from the date of communication of this order. The L.C.R., if has gone down to the department of the KMC be sent back to the learned tribunal within a week from date of receipt of communication of this order. 17. The revisional application is thus allowed. 18. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible subject to compliance of all usual formalities.