WP250of 2017 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE MANIMALA DASGUPTA Versus THE KOLKATA MUNICIPAL CORPORATION & ORS.BEFORE: The Hon'ble JUSTICE HARISH TANDON Date : 28th April, 2017.
Mr.Moloy Kumar Basu,Sr.Advocate Mr.Durga Prasad Dutta,Advocate Mr.Souvik Sen,Advocate Ms.Aditi Dutta,Advocate appeaRs.appeaRs.appeaRs.appeaRs.Mr.Alak Kr.
Ghosh,Advocate appeaRs.Mr.Biswajit Mukherjee,Advocate appeaRs.Mr.Dilip Chatterjee,Advocate appeaRs.The Court :- The challenge is made to an order of assessment passed by the Hearing Officer revising the annual valuation of the building on the basis of the rental value pertaining to a mobile tower affixed on the roof thereof.
The challenge appears to have been founded more on a legal aspect than on the factual matrix.
This Court, therefore, permitted the learned Advocates appearing for the respective parties to address this Court on the legal points involved in the writ petition without waiting for the affidavits to be exchanged in this regard.
The learned Advocate for the petitioner in his usual eloquence submits that the mobile tower affixed on the roof of the building cannot be included within the definition of a covered space given in the explanation appended to sub-section 2(a) of Section 171 of the Act.
According to the learned Advocate, the covered space though contains any kind of a projection, but the same must be determined by virtue of a Regulation and unless the Regulation provides so, the Hearing Officer ought not to have proceeded to determine the annual valuation treating the construction of a mobile tower within the periphery of the covered space.
According to the learned Advocate, Section 182A of the Act contains the provision relating to self-assessment and submission of return only after a scheme is framed in this regard and so long such a scheme is not framed, owner or the occupier or the person liable to pay the property tax shall continue to pay the same at the existing rate in terms of the provision of the Act.
According to him, the scheme could see the light of the day only on March 30, 2017 when the notification was published in the Kolkata Gazette.
It is, therefore, submitted that the Hearing Officer erred in determining the annual valuation on the basis of the aforesaid provision when neither the Regulation nor the Scheme was framed and published and, therefore, the order impugned suffers from illegality and/or infirmity.
The second limb of argument advanced by the petitioner before this Court is that an identical point or issue was involved in a spat of litigations before this Court and the Division Bench of this Court has stayed the operation of the order passed by the learned Single Bench holding otherwise and, therefore, the petitioner is entitled to an equal protection as the identical and similar points are involved in the instant writ petition.
Thirdly, it is submitted that if the entire process by which the statutory authority has decided the matter is vitiated, the Writ Court can interfere with the impugned order even if there is an existence of an alternative remedy by way of an appeal before the Municipal Assessment Tribunal.
On the other hand, the learned Advocate appearing for the Corporation submits that the determination of the annual valuation was done on the basis of an unamended provision and strictly on the basis of the rent which the petitioner receives from the company which installed the mobile tower on the roof of the said building.
It is thus submitted that the Hearing Officer did not take into account the area covered by the mobile tower for the purpose of assessment of the annual valuation.
It is further submitted that though the amendment to the relevant provision of the Act was made as far back as in the year 2006, yet its operation remains suspended until the scheme is framed by virtue of Section 232A of the said Act.
It is lastly submitted that the remedy is available to the petitioner to challenge the impugned order before the Assessment Tribunal and such remedy being efficacious, this Court should not entertain the writ petition.
Before proceeding to deal with the points as emerged from the respective submissions of the Counsel, salient undisputed facts are required to be adumbrated as under: The petitioner is an owner of plot of land along with the three-storeyed building constructed thereupon and comprised in premises No.11, Jheel Road, New Land, Jadavpur, Kolkata- 700075.
The said building is primarily used for residential purposes except when the teleCo.infrastructure service provider approached him for installation of a mobile tower on the roof of the said building.
The mobile tower was installed on the roof after taking necessary permission and sanction from the Kolkata Municipal Corporation and other authorities and an agreement was entered into between the petitioner and the said teleCo.service provider which includes the rate of rent to be paid to the petitioner on monthly or periodical basis.
The Corporation proposed to revise the annual valuation under Section 180 of the Kolkata Municipal Corporation Act because of such improvement being made in the building and the rent being increased.
After a notice proposing the annual valuation was served upon the petitioner, the petitioner filed an objection and the Hearing Officer determined the said objection in the following manner: “I beg to acknowledge to receipt of your letter …………………dated the …………………………….and to say that to inform your Mobile Tower Valuation & Quaterly tax – the Annual Valuation for Mobile Tower is Rs.1,99,720/- the quarterly tax for Mobile Tower is Rs.28,579/-(Net) including surcharge Rs.9986/- w.e.f.04/2014-15.” It is apparent from the said order that the annual valuation was revised by the Hearing officer on and from fourth quarter 2014-15 on the basis of the rent which the petitioner receives from the service provider for such mobile tower being installed on the roof of the said building.
The petitioner is trying to extract something from the aforesaid order to bring within the four corners of the definition of a covered area which is sought to be introduced by way of an amendment act of 2006 when this Court finds no difficulty and ambiguity upon reading the language used in the said order.
The petitioner was very much vocal that the mobile tower erected on the roof cannot be brought within the covered area unless a Regulation in this regard is framed by the Corporation.
I have failed to find out any whisper in the impugned order in this regard.
Rather the impugned order proceeds on the basis of the rental value of the building used for commercial purposes.
From the bare reading of the proposed amendment having brought by virtue of an amended Act, 2006, the covered area must confirm to the definition given in the explanation appended to clause (a) of sub-section (2) of Section 171 of the Act and determination thereof must be on the basis of a regulation framed in this regard.
Admittedly, the regulation sees the light of the day only in the month of March, 2017 when the scheme is framed and notified in the Official Gazette.
There is a fallacy in the submission of the petitioner in taking shelter under Section 182A of the Act which contains the exhaustive provision relating to the filing of the return for self-assessment for the purpose of determination of the annual valuation and the recovery of property tax.
The entire argument founded upon the amended provision which was proposed to be introduced by virtue of an amended Act of 2006 to which this Court finds the reliance and reference cannot be made because of Section 232A of the said Act.
The said Section reads thus: “S.232A.
Certain Provisions applicable prior to the enactment of the Kolkata Municipal Corporation (Amendment) Act, 2006 shall continue to be in force.Notwithstanding anything contained in this Act, the provision of Section 171, sub-section(1) of Section 174, Sections 175,179, 180, 182A, 184, 185, 186, 189, 190, 191, 193, 197, 215, 217 and 221A which were in force immediately prior to the commencement of the Kolkata Municipal Corporation(Amendment) Act, 2006(West Ben.
Act XXXII of 2006).shall continue to be in force until final publication of the scheme under sub-section(1) of Section 174 of this Act as amended by the Kolkata Municipal Corporation(Amendment) Act, 2006: Provided that the preparatory works under sub-section(1) of Section 174 of this Act as amended by the Kolkata Municipal Corporation(Amendment) Act, 2006 leading to final publication of the scheme shall continue.” The said provision starts with the non-obstante clause and expressly excludes the operation of the amended provisions brought in various sections of the said Act by virtue of the amended Act of 2006 until the final publication of the Scheme under sub-section(1) of Section 174 of the Act.
The intention is apparent and evident that the amended provision was not brought into the statute book or given effect to until the publication of the Scheme and so long such final publication was not made, the unamended provision was continued to guide the authorities and govern in their respective fields.
The unamended provision of Section 171 does not contain the concept of covered space which was only thought of by virtue of an amendment in the year 2006.
The annual valuation of the property is determined in terms of unamended provision of Section 174 and based upon the gross annual rent received or reasonably expected to have been received, if let out.
The said unamended provision under Section 174 is quoted hereinbelow: “S.174.
Determination of annual valuation.- (1) Nothwithstanding anything contained in the West Bengal Premises Tenancy Act, 1956(West Ben.
Act XII of 1956) or in any other law for the time being in force, for the purpose of assessment to the property tax, the annual value of any land or building shall be deemed to be the gross annual rent including service charges, if any, at which such land or building might at the time of assessment be reasonably expected to let from year to year, less an allowance of ten per cent for the cost of repairs and other expenses necessary to maintain such land or building in a state to command such gross rent: Provided that where there is a transfer, inter vivos, of ownership of any land or building since the last preceding periodical assessment under Section 179, the annual value of such land or building shall be fixed at seven and a half per cent of the amount stated in the deed of transfer as consideration for such transfer or, if no consideration is stated in such deed of transfer, at seven and a half per cent of the estimated market value thereof: Provided further that while determining the annual value in the case of any land or building or portion thereof exclusively used by the owner for his residential purpose, the gross annual rent of such land or building or portion, as the case may be, shall be reduced,- (a) where the gross annual rent does not exceed six hundred rupees, by thirty per cent; (b) where the gross annual rent exceeds six hundred rupees but does not exceed eighteen thousand rupees, by such percentage of the gross annual rent as is worked out by dividing the gross annual rent by six hundred and substracting the quotient from thirty-one, the difference being rounded off to the nearest place of decimal: Provided also that no such reduction in gross annual rent shall be made(a) in case the total covered area in any land or building under occupation for residential purpose by the owner exceeds one hundred and fifty square metres, or (b) where a person owns or occupies for residential purpose more than one plot of land or building or portions thereof within the municipal limit of Kolkata.” It is a trite law that the amended provision shall not be made applicable unless the legislatures intended to operate the same retrospectively.
If the amended provision was kept in abeyance or under suspended animation by introducing Section 232A of the Act, any action taken on the basis of an unamended provision cannot be impinged as the authorities did not follow the amended law.
When the enforceability of the amended provision was to take effect from the date of the finalisation of the Scheme and, admittedly, the scheme was finalised and published on 30th March, 2017, the decision cannot be said to be bad, illegal and infirm as it offends the amended provision of the Act.
This Court, therefore, does not find the submission advanced by the petitioner that the authority in fact proceeded to revise the annual valuation taking into account the definition of a covered area, but in effect proceeded to revise the annual valuation on the basis of the rent which the petitioner receives from the service provider who installed the mobile tower on the roof.
The matter can be viewed from another angle.
Sections 171 and 174 of the Act contain the modalities for determining the annual valuation of a building or land for the purpose of recovery of the property tax.
The building is defined under Section 2(5) of the said Act to mean a structure constructed for whatsoever purpose and of whatsoever materials and includes the foundation, plinth, walls, floORS.roofs, chimneys, fixed platforMs.verandas, balcony, cornice or projection or a part of a building or anything affixed thereto or any wall (other than boundary wall less than three meters in height) enclosing or intended to enclose any land, signs and outdoor display structures, but does not include a tent, samiana or tarpaulin shelter.
The mobile tower is definitely affixed to the building and is a projection above the height for which the sanction was granted.
Anything which is fastened to the structure or affixed thereto and cannot be segregated therefrom, is included within the definition of a building.
If the annual valuation is to be determined in respect of building for the purpose of property tax, this Court does not find any difficulty in taking into account such affixation on the building fetching rent and the value.
So far as the second limb of argument advanced before this Court is concerned, this Court does not find that once the Division Bench has passed the interim order staying the operation of the order passed by the learned Single Judge, may ipso facto act as a deterrent to a Co-ordinate Bench in proceeding to deal with the writ petition and to pass an interim order.
Before the Court proceeds to rely upon the interim order passed by the higher Court in hierarchical system of the Courts enshrined in the Constitution of India, it is imperative on the part of the learned Judge to see whether the points involved in those litigations are in parity with the present form.
An additional or little difference in fact may attract diametrically opposite decision.
Furthermore, my endeavour has failed to find out from the judgement rendered in the case of Indus Towers LTD.& ORS.versus The Kolkata Municipal Corporation & ORS.reported in 2015 (1) Calcutta Law Journal 114 Cal that Section 232A of the Act was taken into account.
Though an argument was advanced that the Corporation cannot proceed on the basis of the covered space till the regulation is framed, but factually it was found that the valuation was revised on the rental basis.
The point which is urged in the instant writ petition, does not appear to have been raised in the said writ petition and a minor overlapping cannot stand in the way of deciding the writ petition on merit.
Furthermore, the legal efficacious and/or binding effect of the judgement does not automatically get wiped off, even the same has been entertained by the Appellate Court and order of stay is passed.
The interim order passed by the Appellate Court shall bind the parties to the litigation and does not really take away the ratio laid down in the judgement nor destroys its legal value unless set aside.
This court does not find that the interim order passed by the Division Bench, in effect, accrues any right in favour of the petitioner to stay the effect of the impugned order and, therefore, I am unable to accept the contention of the learned Advocate for the petitioner in this regard.
On a plea of alternative efficacious remedy this Court does not feel it necessary to delve deep into those aspects.
It would suffice that mere existence of alternative remedy does not take away the jurisdiction of the High Court conferred under Article 226 of the Constitution of India.
It is not an absolute bar but the Court has imposed self-restraint if the statute has provided the efficacious remedy to the aggrieved person.
It is mere a rule of discretion than of compulsion.
Since the point of law agitated in the instant writ petition has been allowed to be canvassed before this Court and decided against the petitioner, the plea of demurer has virtually become academic.
In view of my findings recorded hereinabove, the writ petition is dismissed.
However, there will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties within three days therefrom upon compliance of requisite formalities.
(HARISH TANDON, J.) S.Chandra/K.
Banerjee A.Rs.[C.R.].