Calcutta High Court (Appellete Side)
The Kolkata Municipal Corporation vs Bikash Banerjee & Anr on 8 August, 2025
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Dinesh Kumar Sharma
CO 1002 of 2022
The Kolkata Municipal Corporation
Vs.
Bikash Banerjee & Anr.
For the petitioner: Mr. Aloke Kr. Ghosh, Adv.,
Mr. Fazul Haque, Adv.
For the opposite parties: Mr. Sagar Bandopadhyay, Adv.,
Mr. Bebdatta Saha, Adv.,
Mr. Diprav Deb, Adv.
Reserved on: 24.06.2025
Judgment on: 08.08.2025
Dinesh Kumar Sharma, J.:
1. Present petition has been filed challenging the order dated March 10, 2021
passed by Municipal Assessment Tribunal, Second Bench, Kolkata Municipal
Corporation whereby the MAA 597 of 2016 was allowed in part and the order
dated February 6, 2016 of hearing Officer No. XIII of the Kolkata Municipal
Corporation was modified and the annual valuation of Flat No. 3A and B entire
third floor of the Premises No. 26 FT.LT. Tapan Chowdhury Avenue, Kolkata-
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700026 having Assessee No. 11087080 w.e.f. 1/2014-2015 was fixed at
Rs.61,280/-. The petitioner Kolkata Municipal Corporation in the petition
challenging the impugned order has submitted that hearing Officer No.XIII on
February 6, 2016 fixed the annual valuation of the said flat at Rs. 1,12,640/-
taking into consideration reasonable rent of the said flat at Rs. 3.70 per sq. ft.
and the car parking space at the rate Rs.1.60 per sq.ft. for 1/2014-2015. The
petitioner has stated that the Learned Tribunal has not given any cogent
reason for the modification of the order of hearing officer and failed to
discharge the duty of quasi judicial appellant body. The petitioner stated that
the Learned Tribunal is duty bound to function in accordance with the
provisions laid down in the Kolkata Municipal Corporation, 1980 and the Rules
framed thereof.
2. The petitioner has further submitted that learned counsel for the opposite
parties relied upon a judgment passed by the Learned Tribunal being MAA 248
of 2010 relating to different premises and apparently the Learned Tribunal has
relied upon the said judgment without giving any reasons. The petitioner stated
that merely because property in the said referred judgment is situated under
the same ward of the Kolkata Municipal or within the same locality, where the
flat in question situated, cannot be the sole yardstick of assessment of the
annual valuation of the said flats.
3. The petitioner submitted that the impugned order is erroneous, unwarranted
and unsustainable both in law and facts and liable to be set aside. It has
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further been submitted that the learned tribunal did not consider the cost price
of the premises and the increase in the rent. The petitioner further submitted
that hearing officer had correctly assessed the rent at the rate of 3.70 per sq.ft.
of the premises and open car parking at the rate of 1.60 per sq.ft. to assess the
annual valuation, which has wrongly been interferred by the learned tribunal.
4. It is further been submitted that in MAA 248 of 2010 the annual valuation of
particular premises was fixed w.e.f. 3/1996-1997 and it should not have been
compared with the determination of annual valuation of the premises in
question w.e.f. 3/2007-2008 as there was a gap of more than 10 years. The
petitioner further stated that the impugned order is devoid of any reasons and
thus, against the principles of natural justice. It was stated that the revision
petition could not be filed earlier on account of pandemic.
5. Learned senior counsel for the petitioner submitted that the learned tribunal
has fallen into error by fixing the reasonable rent at Rs. 2 sq.ft. for covered area
and Rs. 1 per sq.ft. per month for car parking without any disclosing any
reason. Learned senior counsel submitted that the impugned order is
unsustainable in law and facts and, therefore, this Court must exercise its
jurisdiction under Article 227 of Constitution of India despite there being some
delay in filing the revision petition. Learned senior counsel further submitted
that there is no time limit provided in Article 227 of Constitution of India for
filing the revision petition. It has further been submitted that the learned
tribunal was duty bound to follow the rules and procedures under the Kolkata
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Municipal Corporation (Taxation) Rules, 1987 for fixing the reasonable rate of
rent. Learned senior counsel for the petitioner submitted that power of review
under Section 189 (10A) of Kolkata Municipal Corporation Act, 1980 cannot
curtail the constitutional power of the Court under Article 227.
6. In support of his contention learned senior counsel has placed reliance upon
the Kolkata Municipal Corporation vs. Smt. Surama Singh, C.O. No. 1468 of
2015, wherein the Coordinate Bench of this Court vide its judgment dated May
14, 2024, while dealing with the objection as to the delay in filing of the
petition, inter alia, noted that though there is a justification in the submission
of the opposite party, but the issue involved is of a larger public interest as
property tax is to be paid by the owner of the property to the concerned
Municipal Authorities under the statutes, and if there are procedural lapse of
the department in preferring appeal within stipulated period of time, then the
Court should take a lenient view and condone the delay to allow the matter to
be decided on merits.
7. Learned senior counsel for the petitioner has further placed reliance upon the
Kolkata Municipal Corporation vs. Susanta Das , No. 1815 of 2015 wherein the
Coordinate Bench of this Court vide its judgment dated April 10, 2024 set
aside the order of the Tribunal as the Tribunal did not give any supportive
reasons for acceptance of the orders passed in different cases in case of
assessment of valuation of the flat though situated in the same premises.
Learned senior counsel submitted that it was further, inter alia, held that
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merely because the property in the said referred judgments are situated at the
same locality, the same cannot be a sole yardstick of assessment for computing
annual valuation of the case flat.
8. Learned senior counsel submitted that Kolkata Municipal Corporation vs.
Susanta Das ,the Coordinate Bench of this Court while setting aside the order
of the learned Tribunal, inter alia, held that the detailed procedure as
enshrined in the act and the rule is to be followed by the tribunal at the time of
discharging its duty as being a quasi judicial authority. It was further, inter
alia, held that if the order of the tribunal is devoid of any reason for
modification that cannot survive. It was further, inter alia, held that merely on
the basis of earlier judgment the order of hearing officer should not be modified
and it is a bounden duty of the tribunal to state the relevancy of the said
judgment.
9. Learned senior counsel submitted that the Coordinate Bench of this Court
relegated the matter back to the tribunal to hear the matter afresh in
compliance of the provisions of the Kolkata Municipal Corporation Act, 1980
and the Kolkata Municipal Corporation (Taxation) Rules, 1987.
10. Per contra, learned Senior Counsel for the opposite party took a preliminary
objection that the present petition has been filed at a belated stage without any
explanation of the delay and, therefore, is liable to be rejected outrightly.
Learned senior counsel submitted that in the entire petition the petitioner had
only stated that revisional application could not be filed earlier due to
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pandemic COVID-19 situation. Learned senior counsel submitted that in
Kolkata Municipal Corporation vs. Shibani Mukherjee, 2017 SCC Online Cal
5136 it was, inter alia, held that if the explanation for the delay is vague and
lacks resonableness and fairness it should not be accepted. Learned senior
counsel further submitted that in K. Chinnammal (Dead) Thr. Lrs. vs. L.R.
Eknath & Anr., 2023 SCC Online SC 611, the Apex Court, inter alia, held that
the extension of limitation by virtue of suo moto writ petition (c) no.3 of 2020
relates to extension of the limitation period for filing
petitions/applications/suits/appeals/all other judicial or quasi judicial
proceedings where the period of limitation is prescribed under the general law
of limitation or under any special laws both Central or State.
11. Learned Senior Counsel further submitted that the jurisdiction of this Court
under Article 227 is not unlimited. Learned Senior Counsel submitted that in
Astrella Rubber vs. Dass Estate Pvt. Ltd., 2001 (8) SCC 97 and M/S. Garment
Craft vs. Prakash Chand Goel, (2022) 4 SCC 11, it was, inter alia, held that
such power can only be exercised in cases of serious dereliction of duties and
fragment violation of fundamental principles of law or justice. Learned senior
counsel submitted that it was further, inter alia, held that such power cannot
be exercised to correct hardships or wrong decisions made within the limits of
the jurisdiction of the sub-ordinate court or tribunals. Learned Senior Counsel
submitted that it is a settled proposition that jurisdiction under Article 227
cannot be exercised as an Appellate Court.
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12. Learned Senior Counsel for the opposite party has further submitted that
Section 189 (10A) of the Kolkata Municipal Corporation Act specifically
provides that the Municipal Commissioner within 90 days from the date of the
order by the Municipal Assessment Tribunal may prefer a petition before the
Municipal Assessment Tribunal for review of the order. Learned senior counsel
submitted that since the legislature has provided an alternative remedy, the
present petition on the face of it is not maintainable. Reliance has been placed
upon Commissioner of Income Tax & Ors. vs. Chhabil Dass Agarwal, (2014) 1
SCC 603. Learned senior counsel submitted that the Apex Court has
specifically held that the High Court should refrain from entertaining petition
under Article 226 of Constitution, if an effective alternative remedy is available
to the aggrieved person or the statute, under which the action complained of
has been taken itself contains a mechanism for redressal of grievances, except
in the exceptional circumstances for invoking special jurisdiction.
13. Learned senior counsel submitted that in the entire petition there are no
grounds for invoking the special jurisdiction and, therefore, in view of the
mechanism for remedy of review available, the present petition is liable to be
dismissed on the face of it.
14. Learned senior counsel further submitted that the present application is also
liable to be dismissed as the limitation for filing the review petition had also
expired at the time of the filling of the present petition. Reliance has been
placed upon Calcutta Electricity Supply Corporation Limited & Anr. vs.
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Kalavanti Doshi Trust & Ors., 2010 SCC Online Cal 2278.
15. Thus, before proceeding further it is necessary to examine whether the present
writ petition should be entertained in view of the remedy of review provided
under the concerned statute. It is no longer re integra that the High Court
while exercising supervisory jurisdiction under Article 227 does not act as a
Court of appeal to re-appreciate evidence or facts, upon which the
determination under challenge is based. The High Court cannot substitute its
own opinion on facts and conclusion. The power under Article 227 is to be
exercised sparingly in appropriate case, where the finding is so perverse that
no reasonable person can possibly come to a conclusion that the Court or
tribunal has come to. It has repeatedly been held that such a jurisdiction must
be exercised to ensure that there is no miscarriage of justice. Reliance can be
placed upon Ahmedabad Manufacturing and Cailco Ptg. Co. Ltd. vs. Ramtahel
Ramanand, AIR 1972 SC 1598.
16. There is a substance in the contention of the learned senior counsel for the
opposite party that even when the limitation for filing the review had expired,
the maintainability of the present petition comes under cloud. In Calcutta
Electricity Supply Corporation Limited & Anr. vs. Kalavanti Doshi Trust & Ors.,
the division bench of this Court, inter alia, held as under:
“12. After hearing the learned Counsel for the parties and after going
through the aforesaid materials on record, we are of the view that
apart from the aforesaid illegalities committed by the writ-petitioners in
obtaining the interim order by giving wrong information about the
moving of application, His Lordship should not have entertained the
9writ application at all in view of the fact that efficacious alternative
remedy prescribed under taw had become barred and there is no
provision of even condonation of delay for preferring any appeal
against such order of final assessment. (emphasis supplied)
13. As pointed out by the Supreme Court in the case of Chattrisgarh
State Electricity Board v. Central Electricity Regulatory Commission,
2010 (5) SCC page 23), in this type of cases, there is even no scope of
application of section 5 of the Limitation Act by taking aid of section
29(2) of the Limitation Act and as such, it is apparent that on the date
of presentation of the writ-application, the remedy of the writ
petitioners was totally barred. It is now settled law that a Writ Court
should not by invoking jurisdiction under Article 226 of the Constitution
of India revive a barred remedy”.
17. In Assitant Commissioner (CT) LTU. Kakinada & Ors. vs. Glaxo Smith Kline
Consumer Health Care Ltd., (2020) 19 SCC 681 it was, inter alia, held as
under:
14. In the backdrop of these facts, the central question is: Whether the
High Court ought to have entertained the writ petition filed by the
respondent? As regards the power of the High Court to issue directions,
orders or writs in exercise of its jurisdiction under Article 226 of the
Constitution of India, the same is no more res integra. Even though the
High Court-can-entertain a writ petition against any order or direction
passed/action taken by the State under Article 226 of the Constitution,
it ought not to do so as a matter of course when the aggrieved person
could have availed of an effective alternative remedy in the manner
prescribed by law (see Baburam Prakash Chandra Maheshwari v.
Antarim Zila Parishad and also Nivedita Sharma v. COA). In Thansingh
Nathmal v. Supt. of Taxes, the Constitution Bench of this Court made it
amply clear that although the power of the High Court under Article
226 of the Constitution is very wide, the Court must exercise self-
imposed restraint and not entertain the writ petition, if an alternative
effective remedy is available to the aggrieved person. In para 7, the
Court observed thus: (Thansingh Nathmal case, AIR p. 1423)
“7. Against the order of the Commissioner an order for reference
could have been claimed if the appellants satisfied the
Commissioner or the “High Court that a question of taw arose out
of the order. But the procedure provided by the Act to invoke the
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jurisdiction of the High Court was bypassed, the appellants
moved the High Court challenging the competence of the Provincial
Legislature to extend the concept of sale, and invoked the
extraordinary jurisdiction of the High Court under Article 226 and
sought to reopen the decision of the taxing-authorities on question
of fact. The jurisdiction of the High Court under Article 226 of the
Constitution is couched in wide terms and the exercise thereof is
not subject to any restrictions except the territorial restrictions
which are expressly provided in the Articles. But the exercise of
the jurisdiction is discretionary: it is not exercised merely because
it is lawful to do so. The very amplitude of the jurisdiction
demands that it will ordinarily be exercised subject to certain self-
imposed limitations. Resort to that jurisdiction is not intended as
an alternative remedy for relief which may be obtained in a suit or
other mode prescribed by statute. Ordinarily the Court will not
entertain a petition for a writ under Article 226, where the
petitioner has an alternative remedy, which without being unduly
onerous, provides an equally efficacious remedy. Again the High
Court does not generally enter upon a determination of questions
which demand an elaborate examination of evidence to establish
the right to enforce which the writ is claimed. The High Court does
not therefore act as a court of appeal against the decision of a
court or tribunal, to correct errors of fact, and does not by
assuming jurisdiction under Article 226 trench upon an alternative
remedy provided by statute for obtaining relief. Where it is open to
the aggrieved petitioner to move another tribunal, or even itself in
another jurisdiction for obtaining redress in the manner provided
by a statute, the High Court normally will not permit by
entertaining a petition under Article 226 of the Constitution the
machinery created under the statute to be bypassed, and will
leave the party applying to it to seek resort to the machinery so
set up.”
(emphasis supplied)
15. We may usefully refer to the exposition of this Court in Titaghur
Paper Mills Co. Ltd. v. State of Orissa, wherein it is observed that
where a right or liability is created by a statute, which gives a special
remedy for enforcing it. the remedy provided by that statute must only
be availed of. In para 11, the Court observed thus: (SCC pp. 440-41)
“71. Under the scheme of the Act, there is a hierarchy of
authorities before which the petitioners can get adequate redress
against the wrongful acts complained of. The petitioners have the
right to prefer an appeal before the Prescribed Authority under
sub-section (1) of Section 23 of the Act. If the petitioners are
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dissatisfied with the decision in the appeal, they can prefer a
further appeal to the Tribunal under sub-section (3) of Section 23
of the Act, and then ask for a case to be stated upon a question of
law for the opinion of the High Court under Section 24 of the Act.
The Act provides for a complete machinery to challenge an order of
assessment, and the impugned orders of assessment can only be
challenged by the mode prescribed by the Act and not by a
petition under Article 226 of the Constitution. It is now well
recognized that where a right or liability is created by a statute
which gives a special remedy for enforcing it, the remedy provided
by that statute only must be availed of. This rule was stated with
great clarity by Willes, J. in Wolverhampton New Waterworks Co.
v. Hawkesfords in the following passage:
‘There are three classes of cases in which a liability may be
established founded upon statute. But there is a third class
viz. where a liability not existing at common law is created
by a statute which at the same time gives a special and
particular remedy for enforcing it…. The remedy provided by
the statute must be followed, and it is not competent to the
party to pursue the course applicable to cases of the second
class. The form given by the statute must be adopted and
adhered to.’The rule laid down in this passage was approved by the
House of Lords in Neville v. London Express Newspaper Ltd.
and has been reaffirmed by the Privy Council in Attorney
General of Trinidad & Tobago v. Gordon Grant & Co. Ltd. 10
and Secy, of State v. Mask & Co.11 It has also been held to
be equally applicable to enforcement of rights, and has been
followed by this Court throughout. The High Court was
therefore justified in dismissing the writ petitions in limine.”
(emphasis supplied)
In the subsequent decision in Mafallal Industries Ltd. v.
Union of India, this Court went on to observe that an Act
cannot bar and curtail remedy-under Article 226 or 32 of the
Constitution. The Court, however, added a word of caution
and expounded that the Constitutional Court would certainly
take note of the legislative intent manifested in the provisions
of the Act and would exercise its jurisdiction consistent with
the provisions of the enactment. To put it differently, the fact
that the High Court has wide jurisdiction under Article 226 of
the Constitution, does not mean that it can disregard the
12substantive provisions of a statute and pass orders which
can be settled only through a mechanism prescribed by the
statute.
18. It may also be mentioned that there is distinction between being maintainable
and entertainble. The petition may be maintainable, but whether it is to
entertained or not should be guided by sound principles of law. Even it may be
reiterated at the cost of brevity that the power of the High Court under Article
226 is to be exercised with circumspection taking into account the intention of
the legislature. The Court while exercising its power under Article 226 cannot
disregard the substantive provision of the statute and can allow the party to do
indirectly what it could not do directly. It is correct that in the matter of House
Tax, it relates to the public exchequer but merely on this ground the
mechanism provided under the act cannot be waived. The Court is under duty
bound to balance the right and interest of the parties. The court while
exercising such jurisdiction cannot give an unnecessary advantage to the state
at the cost of right and interest of an individual citizen. Every citizen of this
country is entitled to equal protection of the law. It has been repeatedly been
held that the public bodies or the statutory authorities cannot be given a
special treatment to cover up their negligence.
19. The petition in the present case has admittedly been filed after a considerable
delay and that too after the expiry of the limitation for filling of review as
provided under Section 189(10A). The Court had already expressed its opinion
that the government authorities cannot be given any special treatment. The
Apex Court in the State of Madhya Pradesh & Ors. vs. Bherulal in Special
13Leave Petition (C) No. 9217 of 2020, inter alia, observed as under:
“2. We are constrained to pen down a detailed order as it appears that
all our counseling to Government and Government authorities have
fallen on deaf ears i.e., the Supreme Court of India cannot be a place
for the Governments to walk in when they choose ignoring the period of
limitation prescribed. We have raised the issue that if the Government
machinery is so inefficient and incapable of filing appeals/petitions in
time, the solution may lie in requesting the Legislature to expand the
time period for filing limitation for Government authorities because of
their gross incompetence. That is not so. Till the Statute subsists, the
appeals/petitions have to be filed as per the Statues prescribed.
3. No doubt, some leeway is given for the Government inefficiencies but
the sad part is that the authorities keep on relying on judicial
pronouncements for a period of time when technology had not
advanced and a greater leeway was given to the Government
(Collector, Land Acquisition, Anantnag & Anr vs. Mst. Katiji & Ors.
(1987) 2 SCC 107). This position is more than elucidated by the
judgment of this Court in Office of the Chief Post Master General & Ors.
v. Living Media India Ltd. & Anr. (2012) 3 SCC 563 where the Court
observed as under:
“12) It is not in dispute that the person(s) concerned were well
aware or conversant with the issues involved including the
prescribed period of limitation for taking up the matter by way of
filing a special leave petition in this Court. They cannot claim that
they have a separate period of limitation when the Department
was possessed with competent persons familiar with court
proceedings. In the absence of plausible and acceptable
explanation, we are posing a question why the delay is to be
condoned mechanically merely because the Government or a wing
of the Government is a party before us.
Though we are conscious of the fact that in a matter of
condonation of delay when there was no gross negligence or
deliberate inaction or lack of bonafide, a liberal concession has to
be adopted to advance substantial justice, we are of the view that
in the facts and circumstances, the Department cannot take
advantage of various earlier decisions. The claim on account of
impersonal machinery and inherited bureaucratic methodology of
making several notes cannot be accepted in view of the modern
technologies being used and available. The law of limitation
undoubtedly binds everybody including the Government.
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13) In our view, it is the right time to inform all the government bodies,
their agencies and instrumentalities that unless they have reasonable
and acceptable explanation for the delay and there was bonafide
effort, there is no need to accept the usual explanation that the file was
kept pending for several months/years due to considerable degree of
procedural redtape in the process. The government departments are
under a special obligation to ensure that they perform their duties with
diligence and commitment. Condonation of delay is an exception and
should not be used as an anticipated benefit for government
departments. The law shelters everyone under the same light and
should not be swirled for the benefit of a few. Considering the fact that
there was no proper explanation offered by the Department for the
delay except mentioning of various dates, according to us, the
Department has miserably failed to give any acceptable and cogent
reasons sufficient to condone such a huge delay.”
Eight years hence the judgment is still unheeded!
4. A reading of the aforesaid application shows that the reason for
such an inordinate delay is stated to be only “due to unavailability of
the documents and the process of arranging the documents”. In
paragraph 4 a reference has been made to “bureaucratic process
works, it is inadvertent that delay occurs”.
20. Recently also the Apex Court in State of Madhya Pradesh vs. Ramkumar
Choudhary, 2024 SCC OnLine SC 3612 was dealing with a petition which was
filed after an inordinate delay and no satsifactory reason was adduced for the
same. The Apex Court, inter alia, expressed its anguish as under:
“6. At the same time, we cannot simply brush aside the delay occurred
in preferring the second appeal, due to callous and lackadaisical
attitude on the part of the officials functioning in the State machinery.
Though the Government adopts systematic approach in handling the
legal and preferring the petitions/applications/appeals well within the
time, due to the fault on the part of the officials in merely
communicating the information on time, huge revenue loss will be
caused to the Government exchequer. The present case is one such
case, wherein, enormous delay of 1788 days occasioned in preferring
the second appeal due to the lapses on the part of the officials
functioning under the State, though valuable Government lands were
involved. Therefore, we direct the State to streamline the machinery
touching the legal issues, offering legal opinion, filing of cases before
15the Tribunal/Courts, etc., fix the responsibility on the officer(s)
concerned, and penalize the officer(s), who is/are responsible for
delay, deviation, lapses, etc., if any, to the value of the loss caused to
the Government. Such direction will have to be followed by all the
States scrupulously”.
21. It is pertinent to mention here that in the present case also the petitioner has
not given any sufficient reason for the delay. The present case simply
demonstrates the casual manner in which the Kolkata Municipal Corporation
has invoked the jurisdiction of this Court, without any cogent or plausible
ground for condonation of delay, and that too where these was alternative
equally effacious remedy available under the law. The Courts have time and
again reminded the authorities that they cannot walk into the Courts at their
pleasure ignoring the period of limitation. Though Article 226 does not provide
any limitation, but at the same time, inordinate delay without any “sufficient
cause” has always been discouraged by the Courts. It is also a settled
proposition that the term “sufficient cause” as used in Section 5 of the Act
cannot be construed liberally, merely because the party is an instrumentality of
the Government. Reliance is placed upon Postmaster General vs. Living Media
India Ltd., (2012) 3 SCC 563. Thus, the Court cannot treat the Government
Agencies differently. Rather there is an added obligation on the Government
Agencies to ensure that law is strictly adhered to.
22. In case the Municipal Commissioner was aggrieved of an order passed by the
Municipal Assessment Tribunal, the legislature provided an alternative
effacious remedy for filing of a review of the order passed by the said Municipal
Assessment Tribunal within 90 days.
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23. In view of the discussion made herein above, it is an established position that
the revision petition should not be entertained, if there is an efficacious
alternative remedy prescribed under law had become time barred. In the
present case also the revision petition had been moved much beyond 90 days
of the impugned order. The reason given by the petitioner in the revision
petition is hardly any reason. The petitioner seems to have acted in most
casual and negligent manner. This Court cannot grant concession to the
petitioner merely because it happens to be the Kolkata Municipal Corporation.
Thus, in view of the discussion made herein above the revision petition is
dismissed.
(Dinesh Kumar Sharma, J.)