Remission or refund of municipal tax under section 104 of the West Bengal Municipal Act, 1993, is available only for buildings that have been assessed as a whole and not for parts of a building that have not been independently assessed or taxed.

( 1 ) BY this petition petitioner prayed that respondents be directed to revoke or quash the impugned notice dated 3. 1. 1997 demanding payment of overdue municipal tax and the respondents be directed to refund the excess amount of municipal tax collected from the petitioner on the basis of excess demand made wrongfully.

( 2 ) THE petitioner Smt. Bidyutlata Kundu is the owner of the premises No. 137, Poramatala Road, P. O. Nabadwip, District Nadia under the Nabadwip Municipality.

( 3 ) PETITIONER claimed that certain portion of the aforesaid premises had been let out to the 4 tenants for their business purpose since long as monthly tenancy basis with a monthly rate of rent as agreed upon. Then the monthly rent was increased as agreed upon and in the year 1984 the petitioner was collecting total rent about Rs. 2160/- per month. Out of this 4 tenants United Bank of India was one of the tenants and the bank was paying rent between of Rs. 2,020/- per month, M/s. Sadhana Oushadalay Rs. 60/-, M/s. R. S. Emporium Rs. 39/- per month and one more tenant was occupying the part of the building was paying Rs. 41/- per month.

( 4 ) ONE of the tenant that is United Bank of India have got possession of a better accommodation in the nearby area in town of Nabadwip and they vacated the accommodation provided by this petitioner since January, 1990.

( 5 ) THE petitioner had made a representation to the Chairman of said municipality and the Board of Commissioner Nabadwip Municipality requesting therein that in view of the provisions of West Bengal Municipal Act 1993, the part premises which is lying vacant for that the respondent municipality should remit or refund one-half of the amount of tax due for the period of such vacancy and also assess the rental income on the basis of rental income reduced. But they have not taken any action in this regard. No reply has been given to the petitioner.

( 6 ) THE grievance of the petitioner that neither the annual value of the building was reassessed nor accede to the request regarding refund or adjust payment of tax of the premises.

( 7 ) HEARD learned counsel for the parties, they have also filed the written submissions. The limited question for consideration in this petition is whether petitioner is entitled for remission or refund on account of part of his building lying vacant or unoccupied for the period from 1990. The exact facts are not before us as for what period the part of the property was remained unoccupied by the tenants. But the question remains whether the petitioner is entitled for any remission or refund one-half of the amount of tax due for the period of such vacancy.

( 8 ) LEARNED counsel for the petitioner has submits and also filed the written arguments. The case of the petitioner is that if any person pays the tax under West Bengal Act 1993 and any part of the building remained vacant or unoccupied for some period he can claim remission or refund one-half of the amount of tax due for the period of such vacancy.

( 9 ) THE definition of 'building' given in the sub-section (3) of section 2 which provides building includes the structure, foundation, plinth, wall, floor, roof, chimney, fixed platform, varandah, balcony, cornice or projection or 'part of a building'. He emphasised 'part of building' is a building within the definition of sub-section (3) of section 2 and when it remained unoccupied as per provisions of section 104 of the Act 1993 the petitioner is entitled for remission or refund one-half of the amount of tax payable on the building or the tax which has been paid for the building. He further submits when there is no ambiguity in the definition of 'building' in sub-section (3) of section 2, the word should be construed with its plain meaning.

( 10 ) LEARNED counsel for the respondents submits that in cases of partial vacancy in the building there shall be no proportionate reduction in tax. He submits and compared, the relevant provisions of Bengal M