The Kolkata Municipal Corporation Act does not authorize the Corporation to pay any interest on the excess amount kept with the Corporation following the decision of the Tribunal reducing the valuation.

BHASKAR BHATTACHARYA, J.

( 1 ) BY this writ application, the petitioners owners of a building have prayed for direction upon the Kolkata Municipal Corporation ("corporation") to pay the excess amount deposited by them in compliance with the provisions contained in section 189 (6) of the Kolkata Municipal Corporation Act ("act") with interest at the rate of 12% per annum consequent to the decision of the Appellate Tribunal reducing the valuation assessed by the Hearing Officer.

( 2 ) BEING dissatisfied with the decision of the Hearing Officer fixing annual valuation of the premises at Rs. 18,580/- the petitioners preferred an appeal being M. A. No. 1990 of 1998 before the Municipal Assessment Tribunal and deposited a sum of Rs. 53,186/- in terms of section 189 (6) of the Act. Ultimately, the Tribunal allowed the appeal in part and after setting aside the order of Hearing Officer fixed the annual valuation at Rs. 11,000/- with effect from 3rd quarter, 1994-95. The petitioners wrote letter to the Corporation demanding refund of the excess amount with interest at the rate of 12% per annum after adjusting the tax payable by them in accordance with the appellate order but the Corporation having paid no heed to such demand, the petitioners have come up with the present application.

( 3 ) MR. Das, the learned counsel appearing on behalf of the petitioners has placed strong reliance upon the decision of D. P. Kundu, J in the case of Larsen and Toubro Limited and Others v. Calcutta Municipal Corporation and Others reported in 1999 WBLR (Cal) 527 and has contended that under similar circumstances His Lordship directed the Corporation to pay interest at the rate of 12% per annum upon the excess amount although in the said case Corporation refunded the excess amount. Mr. Das further submits that the said decision of Kundu, J has been affirmed by a Division Bench of this Court in APOT No. 276 of 2000 in an appeal preferred by Corporation against the said decision.

( 4 ) MR. Mukherjee, the learned counsel appearing on behalf of the Corporation has resisted this application by contending that a writ application is not maintainable for realization of interest on the excess amount lying with the Corporation. Mr. Mukherjee further submits that the Act does not authorize the Corporation to pay any interest on the excess amount kept with the Corporation following the decision of the Tribunal reducing the valuation. Mr. Mukerjee further points out that section 197 of the Act enables the Corporation either to refund the excess amount or to adjust the said amount towards present or even future demand of Corporation. Thus, Mr. Mukherjee continues, the petitioner having no right to even claim refund, no question of payment of interest arises. Mr. Mukherjee in this connection relies upon the following decisions of the Apex Court in support of his above contentions :-A) Union of India v. Kirloskar Pnehatic Company 1996 (84) ELT 401 (SC) b) Kirloskar Brothers Ltd. v. Union of India 2001 (132) ELT 14 (SC) c) Indian Carbon Ltd. v. State of Assam 106 Sales Tax Cases 460 (SC) d) Union of India and Anr. v. M/s. Orient Enterprises and Others AIR 1998 SC 1729 e) Ferro Alloy Corporation Ltd. v. A. P. State Electricity Board AIR 1993 SC 2005 f) M/s. Chingleput Bottlers v. M/s. Majestic Bottling Company AIR 1984 SC 1030.

( 5 ) AS regards the decision of Kundu, J in the case of Larsen and Toubro (supra) and the decision of the Division Bench in appeal against such decision, Mr. Mukherjee submits that in those two decisions, this Court failed to take note of the aforesaid Supreme Court decisions and as such the decisions in the case of Larsen and Toubro cannot be cited as a precedent.

( 6 ) BEFORE entering into the questions involved herein, it will be appreciated to refer to the scope of an application under Article 226 of the Constitution of India as laid down in various decisions by the Supreme Court. The power conferred by Article 226 of the Constitution of

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