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2020 DIGILAW 416 (CAL)

Premier Auto Finance Ltd. v. Kolkata Municipal Corporation

2020-03-12

RAVI KRISHAN KAPUR

body2020
JUDGMENT 1. The Court : The petitioner is an occupant of a portion of premises no.57, Chowringhee Road, Kolkata-71. The grievance of the petitioner is directed against an order of assessment dated 21 February, 2017 passed by the Hearing Officer XIV (Kolkata Municipal Corporation) in confirming the annual assessment orders in respect of the aforesaid premises. The petitioner challenges the valuation by the Corporation for the period from 4t h quarter 2010-11, 2n d quarter 2012-13 and 4t h quarter 2013-14. The valuation impugned by the petitioner aggregates to approximately Rs.85 lacs. The petitioner challenges the valuation arrived at by the Hearing Officer primarily on the ground that the same has been passed on the basis of actual rental value payable. The petitioner submits that this cannot be the basis of valuation. The petitioner also contends that no notice of the assessment was given to the lessor and as such the assessment is time barred. The petitioner further submits that no assessment could have been conducted for a period of three years prior to the date of revising order. The petitioner relies a decision reported in India Automobiles vs. Kolkata Municipal Corporation reported in (2002) 3 SCC 388 and also relies an unreported decision passed in Commissioner of Kolkata Municipal Corporation vs. Hastings Property dated 11 February, 2011 passed by the Division Bench. 2. Mr. Alok Kumar Ghosh appearing on behalf of the Kolkata Municipal Corporation submits that the petitioner had been given an adequate opportunity of hearing and had availed of such opportunity and appeared before the Assessing Officer. He relies on Section 189(5) of the Kolkata Municipal Corporation Act, 1980 which provides for a remedy by way of a statutory appeal and submits that the writ petition is barred on the ground of alternative remedy. In any event, he further submits that the impugned order does not call for any interference whatsoever. In reply, Counsel on behalf of the petitioner submits that the point of alternative remedy was not taken when the writ petition was admitted on 5 September, 2017. He further submits that this is a clear case of respondent authorities having acted in excess of jurisdiction and in view of the jurisdictional error the point of alternative remedy should not be entertained. 3. I have perused the pleadings and I have also considered the submissions made on behalf of the parties. He further submits that this is a clear case of respondent authorities having acted in excess of jurisdiction and in view of the jurisdictional error the point of alternative remedy should not be entertained. 3. I have perused the pleadings and I have also considered the submissions made on behalf of the parties. The property in question is situated in the heart of Kolkata. The periods of assessment which have been impugned by the petitioner are for a staggering period of approximately nine years. The dues which are demanded by the Corporation in respect of the aforesaid premises are approximately Rs.85 lacs. 4. Ordinarily, a High Court ought not to entertain a writ petition when the petitioner has an alternative remedy available to him. The rule that an alternative remedy must be exhausted before the jurisdiction under Article 226 has been characterised as a rule of policy, convenience and discretion and is a self-imposed restrained by Court rather than a rule of law. I am also aware that there are exceptions to this principle namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of natural justice; or (iii) the orders of proceedings are wholly without jurisdiction. 5. In the instant case, the primary grievance of the petitioner pertains to the purported methodology and the basis by the concerned respondent in calculating the annual valuation of the aforesaid premises. This is a question which squarely falls within the scope and jurisdiction of the Municipal Assessment Tribunal which has been statutorily conferred with the powers to consider disputes of such nature. It is true that when the writ petition was admitted on 5 September, 2017 the question of alternative remedy had not been raised by the respondent. However, as a proposition of law, I am not convinced that once a petition is admitted it could never be dismissed on the ground of alternative remedy ( Genpact India Pvt. Ltd. vs. Deputy Commissioner of Income Tax, arising out of SLP (Civil) 20728 of 2019 dated November 22, 2019 and State of U.P. vs. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti & Others (2008) 12 SCC 675 ). There is no earthly reason which the petitioner has been able to demonstrate as to why the High Court in its extraordinary jurisdiction should entertain the writ petition notwithstanding an efficacious alternative statutory remedy available to the petitioner. I am of the view that the petitioner has not been able to make out any case for applicability of any of the aforesaid exceptions to the well settled principle that ordinarily a High Court does not entertain a petition under Article 226 when the petitioner has an alternative remedy available to him. I am of the view that there is no jurisdictional error committed by the Hearing Officer in passing the impugned order nor has there been any violation of the principles of natural justice. In any event, the issues raised in the writ petition insofar as the annual valuation is concerned can always be dealt with by the Municipal Assessment Tribunal. 6. In view of the available statutory remedy to the petitioner, the writ petition being WP 309 of 2017 is dismissed. However, the petitioner will be at liberty to agitate all points available to him as permitted in law before the Tribunal. 7. After pronouncement of the judgment, the petitioner submits that there is also a challenge to the vires of Section of 227 of the Kolkata Municipal Corporation Act, 1980 in the petition (not submitted at the stage of opening arguments nor the reply). I am of the view that this submission on behalf of the petitioner at such a belated stage is malafide and illmotivated is outrightly rejected.