Calcutta High Court
Tapati Bose & Anr vs Kolkata Municipal Corporation & Ors on 25 July, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Rai Chattopadhyay
WPO 593 of 2018
Tapati Bose & Anr.
Vs.
Kolkata Municipal Corporation & Ors.
For the Petitioners : Ms. Sabarni Mukherjee, Adv.
: Ms. Piyali Sengupta, Adv.
For the KMC : Mr. Ranajit Chatterjee, Adv.
: Ms. Manisha Nath, Adv.
Judgment on : 25/07/2025
Rai Chattopadhyay, J. :-
(1) An order of the Hearing Officer, Borough-X Kolkata Municipal
Corporation, dated September 1, 2017, along with the property tax bill
2018-‟19 (being Annexures- P.12 and P.13 respectively in the writ petition),
are under challenge, in the instant case. Vide the impugned order dated
September 1, 2017, the Hearing Officer, Borough-X KMC has confirmed the
revised annual valuation of the property concerned to the tune of Rs.
2,89,550/-, with effect from the 1st quarter of 2010-11, for the Assessee No.
11-069-43-0787-5, that are the instant writ petitioners.
Page 2 of 32
(2) While challenging as above, the petitioners have prayed for relief inter
alia that, the alleged illegal revised assessment of annual valuation of the
property concerned, to the tune of Rs. 2,89,550/- from the 1st quarter of
2010-11, be cancelled and revoked immediately, that the impugned order
dated September 1, 2017 be set aside, that the periodic property tax bill for
2018-‟19 being Annexure - P.13 with the writ petition be set-aside, that the
rate-card being Annexure - P.6, supplementary bills dated October 1, 2017
being Annexure - P.8 and the demand notice dated May 24, 2018 being
Annexure - P.10 with the writ petition, which are allegedly the offshoots of
the said alleged illegal revised valuation of the property concerned, may also
be set aside.
(3) The property is the 2nd and 3rd floors of the building in Block - A, at
the frontal portion of premises No. 26, Sarat Bose Road, Kolkata - 700020.
The premises as above comprises with two blocks, „A‟ and „B‟, „A‟ being the
building at the front portion and „B‟ being that at the rear portion of the
property. After being engaged in litigation for several years, the parties came
to an amicable settlement and a compromise decree was drawn by this
Court, in terms of the settlement between the parties, on November 30,
2009. Vide the terms of settlement and the decree as above the petitioner
with Amitava Bose (now deceased), became the joint owners of the 2nd and
3rd floors of Block-A, in the said premises, Block-A being a ground plus
three storied building at the front portion of the premises.
Page 3 of 32
(4) After owning and obtaining exclusive possession of the property as
above, the petitioners had applied for mutation cum apportionment of the
property against a separate assessee number, vide their letter dated May
26, 2017.
(5) The petitioner No.1, one of the joint owners received a notice of
hearing dated July 7, 2017, under sections 184(3) & 184(4) of the Kolkata
Municipal Corporation Act, 1980, allegedly purporting to communicate the
proposed enhanced assessment of annual valuation of the apportioned
share of the property, of the petitioners, pertaining to Assessee No. 11-069-
43-0787-5 at Rs. 2,89,550/-, with effect from 1st quarter of 2010-11.
According to the clauses mentioned in the said notice of hearing dated July
7, 2017, the revision of annual valuation of the apportioned property as
proposed was on account of the ground mentioned in the said notice of
hearing, that is, as follows:-
"New valuation on Separation/Apportionment/Amalgamation on estimated
annual rent less statutory allowance for repairs."
The petitioner is aggrieved that apportionment of the property, not
being a taxable event under the law, cannot be the basis of upward revision
of the annual valuation of the property, that, the proposed valuation was ex-
facie in violation of the statutory provision.
(6) The petitioners are also aggrieved that proposed annual valuation of
the property is exorbitant and disproportionate with the valuation of the
Page 4 of 32
other portion of the same premises. That the petitioner No. 2 has been sent
a separate notice of hearing dated August 12, 2017. In both the notices
addressed to the two petitioners, the date of hearing was mentioned as
September 1, 2017. That, on the said date, the petitioner no. 1 did attend
the hearing and submitted her written objection vide letter dated August 31,
2017. The petitioners have stated that neither receipt of the said written
objection was acknowledged by the Hearing Officer nor the same was
considered by the said Authority. That, she did not receive any co-operation
but was subjected to bias and malice. Allegedly, no copy of the order of
hearing dated September 1, 2017, was supplied to the petitioner No. 1 on
the said date. Instead a rate-card was handed over to her. The petitioners
have stated that in accordance with the statutory provision, the Hearing
Officer was duty bound to supply a copy of order of hearing, which he did
not. That, such inaction tantamounts to gross violation of law. That, in such
circumstances the respondent municipal authorities could not have lawfully
enforced any demand based on an enhanced annual valuation, which is also
illegal and not maintainable in the eye of law.
(7) On the next date, that is, September 2, 2017, the petitioner No. 1
submitted a representation to the respondent No. 3/The Chief Manager
(Revenue) (South), expressing her grievances as to the non-consideration of
her written objection by the Hearing Officer. Allegedly, the said letter has
also not drawn any consideration of the respondent Authorities. According
to the petitioners, hearing before the Hearing Officer has been only an empty
Page 5 of 32
formality and no meaningful exercise was ever undertaken by the Authority.
That they have acted with closed mind and biased manner.
(8) That, pursuant to the hearing dated September 1, 2017 and without
supplying any copy of order of the Hearing Officer, the petitioners were
supplied with the supplementary bills for the period from 1st quarter of
2010 to 4th quarter of 2016, as per the alleged illegal enhanced property
annual valuation. According to the petitioners, the same is de hors the law
and the respondent Authority cannot lawfully enforce the enhanced property
valuation, that too retrospectively, without supply of copy of the order
passed in this regard by the Hearing Officer. Hence, according to the
petitioners, the purported action of the respondent Corporation, not only
violates the statutory provisions but also offends the rights guaranteed to
the petitioners, by the Constitution of India. A notice demanding justice
issued by the learned advocate for the petitioners vide letter dated May 8,
2018, has also remained unattended. Instead, a notice of demand, dated
May 24, 2018, under section 220 of the Kolkata Municipal Corporation Act,
1980, was issued against the petitioners, raising and making demands of
property tax, based on the impugned annual valuation, the validity, legality
and propriety of which has been challenged by the writ petitioners.
(9) A further demand justice letter was sent by the learned advocate
dated September 22, 2018, to the respondent, seeking cancellation of the
demand notice under Section 220 of the Kolkata Municipal Corporation Act
Page 6 of 32
1980, but in vain. It has been submitted by the petitioners that, a copy of
the assessment order of the Hearing Officer was handed over to them, only
on December 11, 2018, during course of hearing of this writ petition.
According to the petitioners, the order of the Hearing Officer impugned in
this writ petition is an unreasoned and non-speaking one. It is mechanical
and only an empty formality, as the objection raised by the letter submitted
by the writ petitioner No.1, has not been considered therein. That, the said
impugned order is baseless being silent as to on what basis such enhanced
annual valuation of the property has been arrived at, over and above the fact
that apportionment of the property being not a taxable event as per
provision under Section 180 of the Kolkata Municipal Corporation Act,
1980, the entire process which started with initiation and service of notice of
hearing, till the assessment and service of supplementary bills to the
petitioners, on the basis of the revised valuation, is bad in the eye of law.
The petitioners thus have prayed for the reliefs as mentioned above.
(10) The Kolkata Municipal Corporation has contested by raising challenge
to the contentions and prayers of the writ petitioners. Its first contention is
with regard to the non-maintainability of the instant writ petition for the
reason of unexplained delay in filing the same by the petitioners. It has been
stated that the writ petition is filed after more than 15 months after revision
of annual valuation of the property, which was determined vide order dated
September 1, 2017, that is, even after the statutory period of appeal being
over. That due to such inordinate and unexplained delay, the writ petition
Page 7 of 32
should be dismissed. The other point as regards non-maintainability of this
writ petition is stated to be availability of the statutory alternative remedy to
the writ petitioners, which they have wilfully avoided. According to the said
respondent an efficacious alternative remedy may prompt this Court to be
slow and circumspect to entertain the instant writ petition. That the factual
questions involved in the dispute, cannot be gone into by this Court but only
by the Tribunal.
(11) According to the said respondent, neither there is any illegality nor
any impropriety, regarding upward revision of the annual valuation of the
property concerned. It has denied that there is any procedural lapse in
arriving at a new enhanced annual valuation of the property. It has also
been denied that the petitioner’s objection to the proposed valuation, has
not been considered in hearing or that the action of the said respondent has
in any way violated the petitioner‟s right of audience. Contrarily, it has been
stated that by raising frivolous objections, the petitioners have virtually
enjoyed tax holidays. In the affidavit-in-opposition affirmed on January 24,
2023, the respondent Corporation has calculated and mentioned the
amount of outstanding tax payable by the petitioners (Assessee No. 11-069-
43-0787-5) to be Rs. 20,08,797/-. The said respondent has also stood by its
decision to impose the enhanced property valuation and tax in accordance
with the same, with respect to the concerned property, with effect from 1st
quarter of the year 2010-11. Challenges as to the period of taxation along
with the rate thereof, have been vehemently objected to.
Page 8 of 32
(12) The respondent/KMC has denied and disputed the fact alleged that
the revised valuation has been arrived at without any basis and it has
merely been an empty formality. It states that the petitioner no. 1 has
inspected the register namely “Inspection Book” (in short “IB”), which
contains all details of computation of the proposed annual valuation and
having taken an inspection of IB, the petitioner No. 1 is well acquainted as
to how the new enhanced valuation has been arrived at. The respondent has
given in the affidavit-in-opposition, the detailed calculation, as is available
in the I.B., which will be discussed later in this judgment, if necessary. Also
that the petitioner No. 1, upon inspection of I.B., has recorded her objection
there and put her signature.
(13) According to the respondent, its record does not reveal that the
petitioner No. 1 has ever submitted any written objection before the Hearing
Officer, as claimed. Also that it would not be correct to say that the
respondent’s action has violated the statutory provision, it having not
handed over the copy of the order of the Hearing Officer to the petitioners. It
is stated that a rate-card was immediately handed over to the petitioner No.
1, on the date of order itself, that is, September 1, 2017. According to the
respondent, for the purpose of filing of a statutory appeal under Section 188
(3) of the Kolkata Municipal Corporation Act 1980, the rate-card may
sufficiently satisfy the condition as provided thereunder. It has controverted
the allegation of non-consideration of objection of the petitioner No. 1 by the
Hearing Officer, by stating that, in absence of any written objection, there
Page 9 of 32
was nothing before the Hearing Officer to consider and determine. The
allegation of bias has also been denied.
(14) Ms. Sabarni Mukherjee, learned advocate appearing for the writ
petitioners has submitted that the respondent Authority though is
empowered to revise the annual valuation of the property, but it has to do
the exercise within the precincts of the statute and not otherwise. In that
event such imposition would only be de hors the law, as it has been done in
case of the writ petitioners here. She says that apportionment of the
property has not been provided in the statute to be a taxable event. In that
case the process undertaken by the respondent/Corporation to revise the
annual valuation of the property is arbitrary and illegal. A judgment in
Reeta Basu vs Kolkata Municipal Corporation and others reported in
2014 SCC OnLine Cal 18791, has been referred to in this regard, wherein
the court has held that:-
“Section 180(2) of the Kolkata Municipal Corporation Act, 1980 empowers the
authority to revise the annual valuation provided the conditions laid down
therein are fulfilled.
The Corporation is bestowed with the power to make an assessment under the
said Act with further power to revise but such power of assessment should be
exercised within the precinct of the Act and any action to bring an incident or
assessment or property tax de hors the provisions thereto cannot be sustained.”
(15) In her argument, Ms. Mukherjee has also put forth, several alleged
procedural latches which according to her, has jeopardised the procedure
adopted by the respondent and thereby rendered it to be invalid and illegal.
She submits that the only ground mentioned in the notice of hearing for
Page 10 of 32
proposed revision of annual valuation of the property (as quoted above) is
not a legally tenable ground, being de hors the provisions under Section 180
of the Kolkata Municipal Corporation Act, 1980. Hence, the notice itself is
bad in law. Secondly, that the Hearing Officer acted in a mechanical and
biased manner, in not considering the objections raised by the petitioner No.
1. He has acted in a premeditated manner and his order does not bear any
reason at all. That only arbitrary exercise of power by the Hearing Officer is
manifested through the said one-liner order, which does not stand the test
of law. According to the petitioners, the Hearing Officer has not even heard
the petitioner No. 1 and also refused to accept the written objection
submitted by her. That, it is virtually forcefully the petitioner No. 1 was able
to write her remark ‘objected’, in the objection docket. Hence, the petitioners
have alleged biasness. Ms. Sabarni Mukherjee has mentioned thereafter that
further illegality has been committed by the respondent Authority, by not
supplying a copy of the order of the Hearing Officer dated September 1,
2017, to the petitioners. She says that supply of copy of the order of the
Hearing Officer is a statutory mandate and the respondent Authority has,
therefore, flouted the same. Here she refers to a judgment of this court in
Turner Morrison & Co. Ltd. & Anr. Vs. State of West Bengal & Ors.
reported in 2006 SCC OnLine Cal 461, where it has been held that
“It is the mandate of the legislature upon the corporation to provide for a
copy of the order passed by the Hearing Officer to the objector. So long, such
communication is not made, it would not be proper for the Corporation to raise
supplementary bill and compel the objector to pay the same without exercising his right
under the Statute to have an appeal preferred before the Tribunal.”
Page 11 of 32
(16) Ms. Mukherjee has also referred to a judgment of this court in
Narendra Dev Narayan Vs. Calcutta Municipal Corporation and Others
reported in 2002 SCC OnLine Cal 312 in which the court has held that
“The right to prefer appeal in reality be accrue only on service of copy of the order
when the period of limitation for preferring appeal will start running and thus,
before service of the copy of the order, no demand can be made on the basis of the
determination.”
She says that in accordance with the ratio decided therein, the alleged
action of the respondent has jeopardised the petitioner’s statutory right to
prefer an appeal before the Tribunal.
(17) Ms. Sabarni Mukherjee has submitted that not only by not affording
opportunity of hearing to the petitioners, but also by issuance of an order
which is devoid of any reason whatsoever, the principles of natural justice
has largely been violated. She says that an unreasoned order is a nullity in
the eye of law and assignment of reason is one of the important limbs of
principles of natural justice. That in such view of the fact, the writ court
would be justified to interfere with that and set it aside. In support of her
submissions as above, Ms. Sabarni Mukherjee has referred to the judgments
of The Calcutta Municipal Corporation & Ors. Vs. Paresh R. Kampani
& Ors. reported in (1998) 2 Cal LJ 87.
(18) On the similar proposition, another judgment has been referred to, in
Sri Nemai Chand Dutt Vs. Kolkata Municipal Corporation and Others
reported in (2017) 3 CAL LT 342 (HC) in which the court has held that
Page 12 of 32
“It is imperative on the part of the authority to record the reason before determining
and/or deciding the disputes or the objections raised before it. The reason is the heart
and soul of the order without which it cannot survive, the importance of providing the
reasons becomes more necessary when such order is amenable to be challenged before
the higher forum. If the reason is recorded, it would assist and help the higher authority
to decide the cause and to ascertain the state of mind of the authority.”
(19) Lastly, it has been submitted that, supplementary bills cannot be
raised without supplying the copy of the order of assessment made by the
Hearing Officer in contravention of the law settled by the Hon‟ble High Court
at Calcutta to the extent that no demand can be enforced without service of
such copy of the exact order of assessment upon the assesse.
(20) Mr. Ranajit Chatterjee, Learned advocate, while representing the
respondent Kolkata Municipal Corporation, has firstly contended that the
petitioner’s conduct has not been bona fide and they have caused
intentional delay, not only in filing the writ petition, but also in applying
before the said respondent for mutation of the property. It is stated that the
petitioners have submitted their application for mutation of the property,
nearly eight (08) years after they have entered into possession of the
property, pursuant to the compromise decree of the High Court dated
November 30, 2009. The date of their application for mutation of the
property is May 26, 2017. Also that the instant writ petition has been filed
by them after more than 15 months, after revision of annual valuation of the
property. He says on either occasion, neither any reason for such delay is
shown nor is deductible from the records or circumstances. Hence, virtually
the petitioners have allowed themselves unauthorised tax holidays, he says.
Page 13 of 32
The delay occurred should render the writ petition as not maintainable, he
submits.
(21) He has submitted further that the present writ petition would not be
maintainable due to availability of efficacious, alternative statutory remedy
to the writ petitioners. He submits that Municipal Tribunal is the creature
under the statute, which is empowered to adjudicate the petitioner’s
grievances, if any, against the property valuation. Also, that since the same
would involve various questions related to the factual aspects of the matter,
the Tribunal would be the only Authority to go into those factual issues by
allowing parties to adduce evidence. That the writ Court would not
determine the questions of fact. Hence, for all these reasons the writ petition
should stand as not maintainable and be dismissed, he says.
(22) Mr. Ranajit Chatterjee has submitted further that the allegation of the
notice having not been served upon the petitioner No. 2 is only frivolous, in
so far as the petitioners are related as mother and son and stay together.
Hence, notice being served on any one of them would constitute knowledge
of the other. Even then, he says, notice of hearing has been served by the
respondent/Corporation, upon both the petitioners. That the petitioner No.
1 has taken part in hearing before the Hearing Officer She has taken
inspection of the I.B. maintained by the Kolkata Municipal Corporation.
Hence, she has got personal knowledge about the details of computation on
the basis of which annual valuation of the property, has been arrived at by
Page 14 of 32
the Corporation. She has endorsed her signature and objection therein. It
has been submitted that copy of order is only to be provided to the objector.
The petitioners having not submitted any written objection, cannot therefore
be considered as ‘objectors’, in accordance with the law. That, they are not
entitled to receive a copy of order of the Hearing Officer as per law. Even
then, the petitioners have been served with a rate-card, on the date of the
order itself and a copy of the order, at a later stage. Hence, allegations raised
by the petitioners regarding violation of principles of natural justice in their
case, has been objected to and denied by the respondent/Kolkata Municipal
Corporation. Instead, Mr. Ranajit Chatterjee for the respondent/Kolkata
Municipal Corporation has prayed for dismissal of the writ petition.
(23) Mr. Chatterjee, learned advocate has relied on the following judgments
in support of his argument: –
(i) Institute of Hotel Management And Anr. Vs. Union of India
And Others reported in (2017) 11 SCC 72
(ii) Salvation Army & Anr. Vs. Calcutta Municipal Corporation
& Ors. reported in (2011) (1) CHN (CAL) 782
(iii) Power Tools & Appliances Co. Pvt. Ltd. Vs. Kolkata
Municipal Corporation & Ors. in (MAT 153 of 2017) dated
01.03.2017
Page 15 of 32In the case of Institute of Hotel Management (supra), the Hon’ble
Supreme Court has held in view of alternative remedy being available and
that being not exhausted, the High Court’s decision refusing to interfere,
was proper.
In Salvation Army (supra) the Hon‟ble Division Bench of this Court
has held that mere breach of natural justice will not suffice for quashing any
order on such breach unless and until a party who alleges breach of natural
justice satisfies the point that he was prejudiced by such breach.
In Power Tools case (supra) a Division Bench of this Court has
upheld the judgment of a Single Judge, where the Hon’ble Single Judge has
held as below : –
“The Writ Court should not enter into such question of fact and it is open to the
petitioner to ventilate such point before the appellate forum provided under the
statute.
This Court does not find that the petitioner has been able to make out any case of
violation of principle of natural justice and if the order suffers from illegality and/or
infirmity, it is open to the appellate forum to interfere with such order and the Writ
Court should not act as an appellate authority under Article 226 of the Constitution of
India.
I am conscious of the proposition of law that mere existence of alternative
efficacious remedy cannot act as a deterrent to the High Court in exercising the powers
conferred under Article 226 of the Constitution of India but the Court has imposed self-
restraint in entertaining the writ petition where the party has an alternative efficacious
remedy provided under the statute.
There are well-known principles when the High Court should interfere with the
decision of the authority and one of the grounds are when the authority has acted
without following the principle of natural justice.
Since this Court does not find that case of such nature has been made out by the
petitioner, this Court, therefore, refuses to exercise such power and relegate the
petitioner to agitate all points available to it before the statutory forum.
The writ petitions are, accordingly, dismissed.”
Page 16 of 32
(24) Since in this case, a point of maintainability of the writ petition has
been taken up by the respondent/ KMC, the Court finds it proper to take up
that point for discussion at the threshold.
(25) According to the said respondent, since a statutory alternative remedy
is available which may be espoused by the writ petitioners to redress their
grievances if any as regards the revision in annual valuation of the property,
the Court may find the writ petition not to be maintainable. In this regard
the respondent has relied on the judgment of Institute of Hotel
Management (supra) of the Supreme Court to submit that in spite of there
being a question raised by the appellants regarding validity of imposition of
property tax on the appellants the same being an educational institution,
the Supreme Court has upheld the decision of the High Court, which has
earlier declined to go into the question as above, in view of the alternative
remedy available to the appellants under section 93 of the Cantonments Act,
2006. Relying on the ratio thereof, it has been submitted that even on the
question of law, leaving aside any disputed question on fact which the High
Court, sitting in writ jurisdiction would not be empowered to determine, the
Supreme Court has upheld non-maintainability of the writ petition, for the
only reason that the statute has provided an alternative remedy for the
appellants to place grievances. Similarly, in the instant case, the Court may
not interfere, it has been urged.
Page 17 of 32
(26) Maintainability is about the legal validity of bringing a case to Court.
A case is maintainable if it adheres to legal rules and procedures, and the
Court has the Authority to hear it. Entertainability is about the Court’s
discretion to actually hear and decide a case. Even if a case is maintainable,
a Court might choose not to entertain it due to factors like the availability of
an alternative remedy or if it doesn’t serve the public interest. In the context
of writ petitions under Article 226 of the Indian Constitution, a writ petition
might be maintainable if the petitioner’s fundamental rights are violated and
they approach the High Court. However, the High Court may not entertain
the petition if an equally effective alternative remedy exists, and the
petitioner has not made out an exceptional case for interference under
(27) It is the settled law that “entertainability” and “maintainability” of a
writ petition are distinct concepts. The law is well settled that availability of
an alternative remedy does not operate as an absolute bar to the
“maintainability” of a writ petition. The rule which requires a party to
pursue the alternative remedy provided by a statute is a rule of policy,
convenience and discretion rather than a rule of law.
(28) In the case of Whirlpool Corporation vs Registrar of Trade Marks,
Mumbai & Ors. reported in (1998) 8 SCC 1 the Supreme Court has carved
out exceptions when a writ Court would be justified in entertaining a writ
petition despite the party not having availed the alternative remedy provided
by the statute. The same are as follows:
Page 18 of 32
where the writ petition seeks enforcement of any of the fundamental
rights,
where there is a violation of principles of natural justice,
where the order or the proceedings are wholly without jurisdiction; or
where the vires of an Act is challenged.
The same principles were reiterated in the case of Assistant
Commissioner of State Tax and Others Vs. Commercial Steel Limited
reported in 2021 SCC Online SC 884. The Supreme Court has held that a
controversy related with the question of law may not be discarded at the
threshold for the reason of alternative statutory remedy being available
[Union of India and Anr. Vs. State of Haryana and Anr. reported in
(2000) 10 SCC 482].
(29) The Kolkata Municipal Corporation (KMC) Act, 1980 provides for
appeal mechanisms, primarily in cases of building violations and property
tax assessments. Specifically, Section 415 of the KMC Act, 1980 allows
appeals to the Municipal Building Tribunal against orders passed by the
Special Officer (Buildings). Similarly, Section 189 outlines provisions for
appealing property tax assessments to the Municipal Assessment Tribunal,
with the crucial condition that disputed taxes and penalties, along with any
interest, must be deposited for the appeal to be entertained. Let the relevant
provision be quoted as herein below:
“189. Appeal before the Municipal Assessment Tribunal.
Page 19 of 32
(1)There shall be a Municipal Assessment Tribunal for hearing and
disposal of an appeal against an order passed under section 188.
** ** ** ** **
(5) Any owner or person liable to payment of [property tax] [Substituted
by section 2 of the Calcutta Municipal Corporation (Amendment) Act,
2001 (West Bengal Act VIII of 2001), w.e.f. 23.3.2001, for the words
“consolidated rate”] may, if dissatisfied with the determination of
objection under section 188 appeal to the Tribunal.
Provided that such appeal shall be presented to the Tribunal within
forty-five days from the date of service of [a copy of the
order] [Substituted by section 17(1) of the Calcutta Municipal
Corporation (Second Amendment) Act, 1984 (West Bengal Act 13 of
1984), w.e.f. 15.5.1984, for the words “the order”.] under section 188
and shall be accompanied by a copy of the said order.
** ** ** ** ** ”
(30) The question is since availability of the alternative remedy is not an
absolute bar to entertain a writ petition, whether having regard to the
dispute between the parties in the present writ petition, this Court would be
justified in entertaining this writ petition or not. As discussed earlier, the
petitioners have alleged about violation of their right of audience before the
Authority and violation of the principles of natural justice not only in this
way but also for the reason that the Authority/Hearing Officer has passed
an order which is a nonspeaking one, devoid of any reason therefor. Also,
there are other legal questions involved like whether the Authority was
obliged to supply copy of an order of the Hearing Officer to the petitioners,
immediately after completion of hearing or that if apportionment of the
property is at all a taxable event as per law to attract an exercise by the
Authority like upward revision of annual valuation of the property in
Page 20 of 32
question. Therefore, in such a circumstance, when there are various
questions of law stand for adjudication by the Court, it would not be
prudent to discard the writ petition at the very threshold for the reason that
the statute has also provided for the remedy of appeal before the Municipal
Assessment Tribunal.
(31) On the premise as mentioned above, the Court holds both the points
of maintainability as well as entertainability of this petition, in favour of the
writ petitioner.
(32) The petitioners have challenged maintainability of the notice dated
July 7, 2017 under Sections 184(3) and 184(4) of the Kolkata Municipal
Corporation Act, 1980, for the reason that the incident of assessment of
property tax of the portion of the building, is something extraneous to the
incidents of taxation as provided in the statute. According to the petitioner,
apportionment of the property is not a taxable event as per the provisions
under the Kolkata Municipal Corporation Act, 1980. Petitioners have
accepted that as per Section 180 (2) of the Act of 1980, the
respondent/Corporation is empowered to revise the annual valuation of the
property for upward change thereof. They say that the action of the
respondent would only be justified and lawful provided the conditions laid
down in the statute for such revision of annual valuation are fulfilled.
Page 21 of 32
(33) In this regard, one may have regard to the provisions under Section
180 of the Kolkata Municipal Corporation Act, 1980. According to Section
180 (2) of the said Act, revisions of annual valuation of any land or building
can be caused to be made by the Municipal Commissioner. For that, under
the Clauses thereof, certain incidents have been provided, fulfilment of
which would empower or entitle the Authority for revision of the annual
valuation of the property, for the purpose of taxation thereon. Those may be
quoted as hereinbelow: –
“180. Revision of Assessment-
(1) ……
(2) …….
(i) * * *
(ii) when the nature or the financial terms of occupancy changes; or
(iii) when the nature of its use changes; or
(iv) when a new building is erected or an existing building is redeveloped or
substantially altered or improved during the period the annual valuation remains in
force; or
(v) when, on the application made in writing by the owner or the person liable to pay
its property tax, it is established that during the period of the annual valuation
remaining in force its value has been reduced by reason of any substantial demolition
or has suffered depreciation from any accident or any calamity proved to the
satisfaction of the Municipal Commissioner to have been beyond the control of such
owner or such person; or
(vi) when any land or building or portion thereof is acquired by purchase or otherwise
by the State Government or the Corporation or any statutory body mentioned in
clause (a) of sub-section (8) of section 171 during the period of the annual valuation
remaining in force; or
(vii) when any land or building, or portion thereof, is sold or otherwise transferred by
the State Government or the Corporation or any statutory body mentioned in clause
(a) of sub-section (8) of section 171:
Provided that all land for roads and other public purposes shall be excluded from
such revaluation; or
Page 22 of 32
(viii) when, upon the acquisition or transfer of any land or building in part, a residual
portion remains; or
(ix) when it becomes necessary so to do for any other reason to be recorded in
writing.”
Clause (i) under Section 180 (2) of the said Act was omitted vide the
Kolkata Municipal Corporation (Amendment) Act, 2006 [(West Bengal Act
XXXII of 2006), with effect from May 1, 2007]. The omitted provision was as
follows: – “2….
i) When there is a transfer, inter vivos, of its ownership, or”.
(34) It appears that the incident of transfer of ownership of property inter
vivos has been omitted to be cogent incident for the Corporation to revise
annual valuation of the land or building. In this regard, the Court may
mention the judgment of Shree Mahamaya Mining and Industries
Private Limited Vs. The Calcutta Municipal Corporation reported in
1995 (II) CHN 125, in which Section 180(2)(i) has been held to be ultra
vires to the Constitution. The following paragraph is to be noted:
“121. For the reasons indicated hereinabove, the provisions of clause (i) of subs. (2) of s.
180 of the Calcutta Municipal Corporation Act, 1980 are held to be ultra vires the provisions
of the Constitution and are struck down.”
(35) Save and except the same, the other eight conditions which are now
prevalent under the law, have been mentioned as above. In this case,
admittedly, the petitioners have obtained ownership of the 2nd or 3rd Floor of
the Block-A at Premises 26, Sarat Bose Road at frontal portion by dint of a
Page 23 of 32
settlement decree passed by this Court on November 30, 2009. There is no
material on record to either suggest that nature of occupancy in or usage of
the same has changed or any new construction or redevelopment
substantially altering or improving the structure has been made during the
period, for which the revision of annual valuation was proposed. Also that,
on careful reading of the provisions made under Section 180 (2) of the
Kolkata Municipal Corporation Act, 1980, one can find that the taxable
incidents as provided therein are not in fact satisfied in case of the present
writ petitioners. A somewhat general term has been incorporated under
Section 180 (2) Clause (ix) that the Authority can do so when it becomes
necessary so to do for any specific reason recorded in writing. The Court has
however found that it is not a case here that any special reason has been
shown by the respondent Authority requiring upward revision of the annual
valuation of the concerned property, particularly when there is no change in
the nature of its usage or the financial terms of occupancy therein. As a
matter of fact, the reason for revision of the property valuation has been
noted in the notice of hearing dated July 7, 2017 as “New valuation on
Separation/Apportionment/Amalgamation on estimated annual rent less
statutory allowance for repairs.”
(36) In this regard, the Court may beneficially refer to the portion of the
judgment in Reeta Basu‘s case (Supra) which is as follows: –
“Clause (i) which permits the revision of assessment on change of
ownership or transfer inter vivos of the ownership having been declared ultra
vires to the constitution and subsequently was omitted and deleted from the said
subsection it logically and necessarily follows that the aforesaid ground cannot
Page 24 of 32be pressed in action while invoking or exercising the power under clause (ix) of
subsection 2 of section 180 of the said Act. The incident of partition amongst the
recorded co-owners or admitted co-owners of the single holding is neither
covered under clauses (ii) to (viii) nor can be brought under clause (ix) of sub
section 2 of section 180 of the said Act. The corporation is bestowed with the
power to make an assessment under the said act with further power to revise but
such power of assessment should be exercised within the precinct of the Act and
any action to bring an incident or assessment of property tax de hors the
provisions thereto cannot be sustained. The Chief Manager (Revenue), the
delegate of the Municipal Commissioner lacks jurisdiction to issue the notice and
subsequent order passed thereupon cannot be sustained.
This Court, therefore, quashed and set aside the impugned notices as well
as the assessment of the periodic tax as communicated in the form of the rate
card. It is informed that the mutation has already been effected and, therefore,
rejection of those notices as well as the rate card shall not have any impact on
the mutation effected by the corporation.”
(37) Therefore, in view of the fact that transfer of property inter vivos
having been declared as ultra vires to the Constitution and the petitioner‟s
case having not been covered under the other Clauses under Section 180 (2)
of the Act of 1980 and also following the ratio in the case of Reeta Basu
(Supra) this Court finds that the impugned notice of hearing, proposing
upward revision of the property valuation of the petitioner from the 1st
quarter of 2010-2011, would not be in compliance with the statutory
prescriptions. In such circumstances, the Court is constrained to hold that
the notice of hearing as above, dated July 7, 2017 should not stand as valid
in the eye of law. That, the same is not maintainable being unlawful and de
hors the statute.
(38) The other point agitated by the petitioners is regarding violation of
their right of audience and they having been subjected to an unreasoned
Page 25 of 32
order passed by the Hearing Officer as regards the revised valuation of
property. According to the petitioners, firstly, on the date of hearing, though
a written objection in terms of Section 186 of the Act of 1980 was desired
and tried to be submitted by the petitioner No. 1 to the Hearing Officer, the
same was not accepted, acknowledged and recorded and eventually not
considered by the Hearing Officer. Contrary statement has been made by the
respondent/Corporation, that no written objection has been submitted by
the petitioner No. 1. Hence, according to the respondent, the petitioners
were not “objectors” in terms of law and the respondent was not under any
legal obligation to allow the petitioners any opportunity of hearing, they not
being “objectors” in terms of law. The Court notices that while inspecting the
IB, the petitioner No. 1 has recorded her objection therein. The presence of
the petitioner No. 1 before the Hearing Officer on the particular date has
also not been challenged. There is no convincing material available on
record as to construe that in spite of being physically present and raising
objection by making endorsement in the IB, the petitioner No. 1 would not
have made an endeavour to submit her written objection before the Hearing
Officer. Also that, once having said that the petitioner would not be “an
objector” as per law and would not thus be entitled for the order of the
Hearing Officer, it can be noted that ultimately, the respondent has served
the order of the Hearing Officer dated September 1, 2017 to the petitioners
during course of hearing of this writ petition, on December 11, 2018. It
appears that, the respondent itself has considered the petitioners as the
objectors by serving copy of the order of the Hearing Officer to them. Be that
as it may, fact remains that the order of the Hearing Officer September 1,
Page 26 of 32
2017 is an one-liner which was passed without hearing the writ petitioner
No. 1, present before the Hearing Officer on the date of hearing. Had it been
otherwise, the Hearing Officer would have noted her contentions and his
reasons and grounds for declining her contentions.
(39) Having taken into consideration the ground for revision as mentioned
in the notice of hearing dated July 7, 2017 which is, “New valuation on
Separation/Apportionment/Amalgamation on estimated annual rent less
statutory allowance for repairs” and the order of the Hearing Officer dated
September 1, 2017 which says that the proposed enhanced annual
valuation of the property to the tune of Rs. 2,89,550/- is confirmed, it
appears that the ground for proposing change in annual valuation as above,
has been approved and confirmed by the Hearing Officer. However, as stated
earlier, the said ground cannot be construed to be a statutory ground not
being enlisted as a ground for revision of annual valuation of the property as
enumerated under Section 180(2) of the Kolkata Municipal Corporation Act,
1980.
(40) According to the petitioners, the Corporation would not be eligible to
raise any bill to compel the objector to pay property tax without serving copy
of the order passed by the Hearing Officer to the objector. As a matter of
fact, the objector in receipt of copy of the order of the Hearing Officer, would
only be eligible to espouse if required, the statutory provision of appeal to
Page 27 of 32
challenge the same and not otherwise. In the case of Turner Morrison and
Co. Ltd. (Supra), this Court has held as below: –
“It is the mandate of the legislature upon the corporation to provide for a copy of the
order passed by the Hearing Officer to the objector. So long, such communication is not
made, it would not be proper for the Corporation to raise supplementary bill and
compel the objector to pay the same without exercising his right under the Statute to
have an appeal preferred before the Tribunal.”
(41) Also, in case of Narendra Dev Narayan (supra), this Court has held
that:-
“The right to prefer appeal in reality be accrue only on service of copy of the order
when the period of limitation for preferring appeal will start running and thus,
before service of the copy of the order, no demand can be made on the basis of the
determination.”
(42) In this regard, the contention of the respondent is that, on the date of
hearing that is, September 1, 2017, the petitioner No. 1 has been provided
with the rate-card then and there and thus she cannot plead no knowledge
about the order of the Hearing Officer. This contention is though not
seriously challenged by the petitioner, even if considering that the petitioner
No. 1 was in receipt of rate-card on the date of Hearing itself, the Court finds
that the same would definitely fall short of due compliance with the
statutory provision, as regards supply of copy of order passed by the
Hearing Officer to the objectors, writ petitioner No. 1 in this case. It is
because of the fact that the rate-card is the follow up document after the
Hearing Officer passes his order containing his reasons and decision. The
order of the Hearing Officer always precedes the rate-card and to justify the
Page 28 of 32
property valuation contained in the rate-card, the reasons for the decision of
the Hearing Officer would be imperative. For the petitioners/objectors,
knowing the new property valuation but not knowing the reason therefor,
would amount to part knowledge of the decision of the Hearing Officer and
not the order of him in its entirety. Thus, even if the rate-card has been
provided to the petitioner No. 1 after conclusion of the hearing, that would
not suffice the specific requirement under law that the objector should be
provided with the copy of the order passed by the Hearing Officer.
(43) So far as the order dated September 1, 2017 of the Hearing Officer
being unreasoned and thus being not maintainable in the eye of law, would
also find support from finding of the Court in the case of Sri Nemai Chand
Dutt (supra), the relevant paragraph thereof may be quoted as herein
below:-
“It is imperative on the part of the authority to record the reason before determining
and/or deciding the disputes or the objections raised before it. The reason is the heart
and soul of the order without which it cannot survive, the importance of providing the
reasons becomes more necessary when such order is amenable to be challenged before
the higher forum. If the reason is recorded, it would assist and help the higher authority
to decide the cause and to ascertain the state of mind of the authority.”
There is statutory mandate for providing reasons by the Hearing
Officer in his order. Section 188(4) of the Kolkata Municipal Corporation Act,
1980 explicitly requires the Hearing Officer to consider objections and pass
an order that is, “speaking and reasoned”. By referring to the judgment of
this Court in Manoshi Moholanobish Vs. Kolkata Municipal Corporation
& Ors. reported in 2007 SCC OnLine Cal 285 has held that the provision
Page 29 of 32
mandates that the order of the Hearing Officer must be “reasoned”, implying
that the order should contain the grounds and the reasons for the decision,
ensuring transparency and accountability.
This court again in Nandu K Belani Vs. Kolkata Municipal
Corporation reported in 2017 SCC OnLine Cal 21516 has held that the
order passed by a quasi-judicial Authority, such as the Hearing Officer
under the Kolkata Municipal Corporation Act must be supported by reasons
that, this is essential for the order to be valid and for the parties to
understand the basis of the decision, though the Court ultimately remanded
the matter to the statutory appellate forum, finding the same to be a proper
forum.
In Narendra Dev Narayan (Supra), the Court has clarified that the
communication of the order must include the reasons and mere mention of
the decision without reasons, would be contrary to the statutory
requirement.
(44) Keeping in mind the law as settled by the Court in this regard this
Court finds that even if for the argument‟s sake it is held that the petitioner
No. 1 could not have been termed as an “objector”, in terms of the statutory
provision (this point has been dealt with by the Court earlier), the Hearing
Officer was obliged under law to provide reasons on the basis of which he
might have come to a finding as enumerated in his order dated September 1,
2017. Since reasons are for the purpose of maintaining transparency and to
Page 30 of 32
let the applicant (in this case the present petitioners) to have sufficient
knowledge about those, providing reasons supporting the finding by the
Hearing Officer is a mandatory, inescapable and compulsory compliance to
be made by him. Evidently, in this case, the order of the Hearing Officer
does not contain any reason whatsoever. Therefore, none is able to ascertain
as to the reason for the Hearing Officer to come to the said conclusion. The
Court is constrained to hold that an unreasoned order is not maintainable
in accordance with the law.
(45) For all the reasons discussed as above, the Court is constrained to
find in the present case that the impugned order passed by the Hearing
Officer dated September 1, 2017 as well as the supplementary bills raised by
the respondent/Corporation dated October 1, 2017 for the period from 1st
quarter of 2010-2011 for the property comprised at 26, Sarat Bose Road,
Block-A, 2nd and 3rd Floor, at the frontal portion would be arbitrary and
unlawful being de hors the statutory provisions and thus liable to be set
aside.
(46) In such circumstances, the present writ petition being WPO 593 of
2018 is allowed with the following directions: –
i) The notice of hearing dated July 7, 2017 and the supplementary
bills dated October 1, 2017 for the period from 1st quarter of 2010
to 4th quarter of 2016 as against the property comprised at 26,
Page 31 of 32Sarat Bose Road, Block-A, 2nd and 3rd Floor, at the frontal portion
are set aside.
ii) In case the respondent/Corporation thinks it proper to enhance
the annual valuation of the concerned property, the exercise
thereof as provided under the statute may be done by it with due
compliance with the statutory provisions and in accordance with
law.
iii) In the meantime, the respondent/Corporation shall be at liberty to
raise property tax bill as to the proportionate portion of property,
which is now owned by the petitioners, at the rate prevalent prior
to the date from which an enhancement in the annual valuation of
the said portion of property, has been proposed, without prejudice
to rights and contentions of both the parties.
iv) Let exercise as above, if any, be initiated by the
respondent/Corporation within a period of four (04) weeks from the
date of receipt of copy of this judgment and completed within a
reasonable period of time, in accordance with law.
(47) With the findings and directions as above, the writ petition no.
WPO 593 of 2018 is disposed of.
Page 32 of 32
(48) Urgent certified website copy of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(Rai Chattopadhyay, J.)
[ad_1]
Source link