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High Court Of Calcutta
S. P. Talukdar
KAPOOR - Appellant
Versus
KOLKATA MUNICIPAL CORPORATION - Respondent
C. O. 1155 Of 2003
Decided On : 03/09/2004
KOLKATA MUNICIPAL CORPORATION - ANNUAL VALUATION - INTERPRETATION OF STATUTORY PROVISIONS - SECTION 174 OF THE KOLKATA MUNICIPAL CORPORATION ACT, 1980 - PROCEDURE FOR DETERMINING ANNUAL VALUATION - APPLICATION OF SUB-SECTION (1) AND SUB-SECTION (4A) - COMPARISON WITH EARLIER ACT - ROLE OF BROCHURE IN VALUATION - APPLICABILITY OF ESTOPPEL AGAINST STATUTE - JURISDICTIONAL ISSUES - RELEVANCE OF SIZE, LOCATION, AND AMENITIES - JUDICIAL PRECEDENTS - RELEVANCE OF BROCHURE IN VALUATION - EXERCISE OF DISCRETION - ADMISSIBILITY OF DOCUMENT VS. CONCLUSIVENESS OF CONTENTS - CALCULATION OF VALUATION UNDER SECTION 174 (4A) - EQUALITY AMONGST UNEQUALS - TAXATION AND CIVIC RESPONSIBILITIES - JUDICIAL INTERVENTION UNDER ARTICLE 227 OF THE CONSTITUTION.
Fact of the Case:
The petitioner, M/s. Kapoor and Company Private Limited, challenged the order of the Municipal Assessment Tribunal that increased the valuation of their four units at 3, Lord Sinha Road, Kolkata, from Rs. 1.85 per sq. ft. per month to Rs. 4.75 per sq. ft. per month. The petitioner argued that the Tribunal erred in relying on a brochure published by the petitioner, which was not a conclusive evidence of the actual state of affairs, and in not following the statutory provisions under section 174 (1) of the Kolkata Municipal Corporation Act, 1980.
Finding of the Court:
The Court held that the Tribunal failed to appreciate the evidence adduced by the petitioner and erred in relying upon the brochure without checking its accuracy. The Court further held that the Tribunal should have determined the annual valuation under section 174 (1) of the Act, which requires consideration of the gross annual rent, before resorting to section 174 (4a), which applies when the gross annual rent cannot be easily estimated. The Court also held that the Tribunal's calculation of valuation under section 174 (4a) was not proper, as it did not take into account the different sizes and locations of the petitioner's units.
Issues: 1. Whether the Tribunal erred in relying on a brochure published by the petitioner, which was not a conclusive evidence of the actual state of affairs? 2. Whether the Tribunal erred in not following the statutory provisions under section 174 (1) of the Kolkata Municipal Corporation Act, 1980? 3. Whether the Tribunal's calculation of valuation under section 174 (4a) was proper?
Ratio Decidendi: 1. A brochure published by a petitioner is not a conclusive evidence of the actual state of affairs and should be evaluated with caution. 2. The Tribunal should have determined the annual valuation under section 174 (1) of the Kolkata Municipal Corporation Act, 1980, which requires consideration of the gross annual rent, before resorting to section 174 (4a), which applies when the gross annual rent cannot be easily estimated. 3. The Tribunal's calculation of valuation under section 174 (4a) was not proper, as it did not take into account the different sizes and locations of the petitioner's units.
Final Decision: The Court allowed the petitioner's application, set aside the impugned order of the Tribunal, and remanded the matter back to the Tribunal for redetermination of the annual valuation of the property in question after hearing both sides.
( 1 ) THIS arises out of an application under Article 227 of the Constitution of India. It is directed against order dated 29. 04. 2003 passed by the Municipal Assessment Tribunal in MAA Nos. 400, 407, 412 and 418 of 2000.
( 2 ) GRIEVANCES of the petitioner-M/s. Kapoor and Company Private Limited, may briefly be stated as follows : petitioner is the owner of the aforesaid four units being unit Nos. 250, 263, 260 and unit No. Basement IV having an area of 77. 74 sq. ft, 95. 30 sq. ft, 74. 59 sq. ft, and 18. 537 sq. ft. respectively, all situated at 3, Lord Sinha Road, Kolkata-700 001. The said units were proposed to be assessed by the respondent/the kolkata Municipal Corporation at the rate of Rs. 10/- per sq. ft. per month with effect from 3rd quarter 1999-2000 for six years. The Basement Unit No. IV was proposed at a rate of Rs. 3/- per sq. ft. per month. The petitioner filed objection against such proposal. The Hearing Officer-VI finalized the said valuation reducing the rent of Rs. 10/- per sq. ft. per month to Rs. 5/- per sq. ft. per month and similarly valuation for the Basement Unit No. IV was fixed at Rs. 2/- per sq. ft. per month. Though the petitioner is entitled to receive copy of such order of the Hearing Officer dated 16. 12. 1999 in terms of section 188 of the Kolkata municipal Corporation Act, 1980, it was not given to him. The petitioner preferred four separate appeals being MAA Nos. 400, 407, 412 and 418 of 2000 before the Municipal Assessment Tribunal, hereinafter referred to as the 'tribunal'. The Tribunal after hearing the parties reduced the valuation and calculated the same on the basis of rent at the rate of Rs. 1. 85 per sq. ft. per month for all the units except the Basement-IV and it fixed the valuation at a rate of Re. 1/- per sq. ft. per month for the Basement.
( 3 ) THE K. M. C. filed four applications under Article 227 of the Constitution against the said orders of the Tribunal dated 01. 02. 2001, 22. 08. 2000, 07. 11. 2000 and 02. 02. 2001. Hon'ble Single Judge of this Court by four separate orders dated 04. 04. 2002 disposed of the said four applications. The petitioner filed four special leave petitions against the said judgment and order dated 04. 04. 2002 and the Supreme Court of India by its order dated 23. 09. 2002 disposed of the said four special leave petitions by directing that the petitioner should be permitted to pay property tax as fixed by the Tribunal in its earlier orders during the pendency of the proceedings of the Tribunal. While sending the matter back, the Hon'ble Court observed that it finds no substance in the contentions of the learned Advocate of the Kolkata Municipal Corporation that the Tribunal has adopted "comparable method" which is not permissible under the law. This Court observed that the Tribunal did not arrive at any finding on the basis of the comparable method as argued by the learned Counsel for the k. M. C. The order was set aside and it was remanded on the technical ground that Rule 19 (6) of the Kolkata Municipal Corporationtaxation Rules, 1987 has not bee a complied with inasmuch as no formal application was filed for adducing additional evidence though the same was referred to in the judgment of the tribunal. The Tribunal committed the same error while passing the impugned judgment and relied upon the various judgments, orders and other documents placed by the K. M. C. without appreciating that no formal application under rule 19 (6) was filed. In view of the judgment and order dated 04. 04. 2002, it was not open to the Tribunal to reopen the assessment afresh and increase the valuation from Rs. 1. 85/- per sq. ft. per month to Rs. 4. 75a per sq. ft. per month without any reason. By order dated 29. 04. 03 the Tribunal fixed the valuation of the said basement Unit No. IV at Rs. 2/- per sq. ft. per month. The impugned judgment and order of the Tribunal dated 29. 04. 03 is bad, illegal and should be set aside on the reason amongst others
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