Judgment:
Tapen Sen, J.
1. In this Writ Petition, the Petitioner prays for cancellation of the two Notices dated 11.5.1990 as contained in Annexure- F and Annexure- G (Pages 37 and 38 of the Writ Petition) whereby and whereunder the Respondents proposed to raise the valuation of the Premises in question to Rs. 19, 605/- and Rs. 23,760/- with effect from the 4th Quarter of 1978-79 and the 4th Quarter of 1984-85 respectively.
2. The Petitioner further prays for an Order for stay of the Orders passed on 16.10.1990 by the Assistant Assessor of the Kolkata Municipal Corporation (Annexure- I at Page 41 of the Writ Petition) whereby and whereunder the valuation was fixed at Rs. 15,373/- with effect from the 4th Quarter of 1978-79 and Rs. 15,380/- with effect from the 4th Quarter of 1984-85 respectively.
3. The Petitioner further prays for the issuance of a Writ of Mandamus commanding upon the Respondents not to implement the Judgments dated 29.8.1997 (Page 55 of the Writ Petition) passed by the Municipal Assessment Tribunal of the Kolkata Municipal Corporation in MA Appeal No. 177 of 1995 Dismissing the said Appeal on contest and holding that the annual valuation of Rs. 15,373/- with effect from the 4th Quarter of 1978-79 was confirmed. The Petitioner also prays for an Order commanding upon the Respondents not to give effect to the other Order dated 29.8.1997 passed by the Municipal Assessment Tribunal of the Kolkata Municipal Corporation in MA Appeal No. 178 of 1995 (Page 58 of the Writ Petition) Dismissing the Appeal on contest and holding that the annual valuation would be fixed at Rs. 15,380/with effect from the 4th Quarter of 1984-85.
4. The Petitioner further prays for an Order for quashing the Judgment dated 21.5.1999 (page 64 of the Writ Petition) passed by the Municipal Assessment Tribunal, whereby and whereunder the Review Petitions filed by the Petitioner in respect of both the Appeals stated above being MA Appeal No. 177 and 178 of 1995 referred to above were Dismissed. The Petitioner also prays for refund of the amount of Rs. 76,366.32 paise.
5. The short facts which are necessary to be taken note of for purposes of deciding this case and which could be gathered from the pleadings would appear in the paragraphs following hereafter:
6. According to the Petitioner, she is the owner of Flat Nos. 8D and 8D/1 in the building known as 'Embassy' which is situated on 4, Shakespeare Sarani and she acquired the same and then rented them out in 1972-73. The Respondents valued the entire building and apportioned the amounts amongst the Flats with effect from the 4th quarter of 1972-73 as a result of which the Petitioner's flat was assessed at Rs. 7182/- per annum vide Rate Bill for the 3rd Quarter of 1975-76 (Annexure- C). Objections were taken and the matters were heard on 16.7.1987 and pursuant to such hearing, the annual valuation of the Flat was fixed at Rs. 5678/- per annum as was recorded in the Assessment Register on 18.11.1987 and which was given effect to from the 4th Quarter of 1972-73. Photocopy of the Register is Annexure- E to the Writ Petition.
7. According to the further case of the Petitioner, within a period of two and half years thereafter on 11.5.1990, the Respondents issued the first impugned Notices (Annexure- F and Annexure- G) proposing to increase the annual value of the Flat to Rs. 19,605/- (increase by about threeand- a-half times) with effect from the 4th Quarter of 1978-79 and to Rs. 23,760/- (increase by about 4 times) with effect from the 4th Quarter of 1984-85. Objections were filed to both these two Notices but the annual valuation was nevertheless increased vide Rate Cards dated 16.10.1990 (Annexure-I) increasing the annual value to the extent of Rs. 15,373/- with effect from the 4th Quarter of 1978-79 and to Rs. 15,380/- with effect from the 4th Quarter of 1984 85.
8. The Petitioner then preferred two Appeals against the said two Orders before the Municipal Assessment Tribunal vide MA Appeal Nos. 177 and 178 of 1995 and both were heard analogous on 29.8.1997 and by Judgments of the same day i.e. 29.8.1997 both the Appeals were dismissed.
9. The Petitioner then filed a Review Petition against both the Orders but they were also dismissed by Judgment/Order dated 21.5.1999 (page 64 of the Writ Petition).
10. The Kolkata Municipal Corporation has filed an Affidavit-in-Opposition wherein they have stated that the Flat consisting of two bed rooms, two attached baths and Privies, Living-cum- Dining room, Terrace on one side and one kitchen is collectively known as Flat No. 8D/1 and another Flat comprising of one bed room with attached bath and Privies and one office-cum-study room, Terrace on the one side, one store room and open car parking space is collectively known as Flat 8D. It has also been stated that Flat No. 8D/1 was rented at a monthly rent of Rs. 1050/- while Flat 8D was rented at a monthly rental of Rs. 850/-. These Respondents have referred to Annexures-A and B in support of such a contention and have submitted that there are two Flats and not one Flat as alleged by the Petitioner.
11. The Respondents have further stated that from her own showing vide Annexures-A and B appended to the Writ Petition, the two Flats being 8D/1 and 8D are two different units having different accommodations which were rented out at two different rates of rents mentioned above and therefore, the valuations made by the Corporation were justified. According to the Respondents, if the two rents are added together i.e. Rs. 1050 + Rs. 850, the same would come to Rs. 1900/- per month and therefore, the said amount of Rs. 1900/- multiplied by 12 comes to Rs. 22,800 and after 10% thereon (Rs. 2,280/) for maintenance is deducted then it comes to Rs. 20,520/- and the Hearing Officer had even lowered the same to Rs. 15,380/- which was affirmed by the Tribunal. Such being the position, the arguments of the Petitioner to the effect that the annual valuation is excessive, is totally misconceived. The Respondents, on the aforesaid facts and circumstances and submissions, have prayed that the Writ Petition be dismissed.
12. Mrs. Smritikana Mukherjee, learned Counsel appearing for the KMC has further submitted that the Respondents have, on the basis of the aforementioned reasoning, proceeded to correctly assess the annual valuation and therefore, the Appellate Authority and/or Revisional Authority did not commit any illegality or error when they proceeded to dismiss the Appeals as well as the Petition for Review.
13. The aforementioned submissions of the learned Counsel for the Respondents does not appeal to this Court. In this context, if one were to look into the 1st impugned Notices (Annexures- F and G) [ by which it was proposed to increase the annual value to Rs. 19, 605/- for the 4th quarter of 1978-79 and Rs. 23,760/- for the 4th Quarter of 1984-85 ], it would be noticed that all that the Special Officer did was merely to fill up the blanks of a printed form informing the Petitioners to take notice that the Premises had been assessed at the aforementioned values. It appears that thereafter, the amounts were reduced to Rs. 15,373/- and Rs. 15,380/- by the impugned Annexure- I at page 41 informing, once again, that the Hearing Officer, on hearing the objections on 20.6.1990, had fixed the annual valuations for the aforementioned period at the aforementioned amounts.
14. On a simple perusal of both these two communications at page 41, it will again appear that all that was done was to mechanically fill up the blanks. No reasons were given. The provisions in relation to the Kolkata Municipal Corporation for hearing of objections stand codified by the KMC Act 1980 and under Section 188 thereof, it is evident that the person filing an objection is not only entitled to be heard either in person or through his authorised agent, but the Hearing Officer is required to determine the said objections. Once an objection is determined, the same is necessary to be recorded in the Register and a copy of the said Order is to be supplied to the person filing the objection within 30 days. This becomes essential because under the provisions of Section 189 (5), a right of Appeal is given to a person who may be dissatisfied with the determination of Objection under Section 188 referred to above. The person filing such an Appeal must be equipped with the mind of the Officer who had passed the Order. In the absence of any reasons, the Appeal itself would be rendered an empty formality depriving the assessee to be aware of the reasons against which he can file the Appeal. The aforementioned proposition has been set at rest by the Hon'ble Supreme Court in the case of Mahabir Prasad Santosh Kumar v. State of U.P. and Ors. reported in : [1971]1SCR201 wherein their Lordships, in paragraphs 5 and 7, have held that if the aggrieved party is not supplied with reasons, the right of Appeal becomes an empty formality. The Supreme Court has further held in paragraph 7 that if an Order is subject to Appeal the necessity to record reasons is greater because without recorded reasons the Appellate Authority has no material on which it may determine whether the facts were properly ascertained, the relevant law correctly applied or the decision taken by the subordinate authority was just and fair.
15. In this case also, a bare perusal of the Order referred to above goes to show that they are bereft of reasons and therefore, it cannot be said that the Hearing Officer, being a quasi-judicial authority under the provisions of the statute, had applied his mind and /or determined the objections in terms required under Section 188 (2) and (3) of the said Act. Reference in this context may be made to the case of Turner Morrison and Co. v. State of West Bengal reported in (2002) 3 CHN 448 at 465 (Para 31).
16. We need not therefore go into the other submissions of the learned Counsel for the Petitioner because upon a perusal of the Orders passed by the Appellate authorities also, there exists similar irregularity because even in those Orders the portion under the heading 'Decisions with reasons' contains 6 paragraphs in MA Appeal No. 177 of 1995 and only the last Paragraph is the one in which the Tribunal dismisses the case on contest after affirming the annual value fixed by the Hearing Officer but does not deal with any of the Grounds of Appeal which the Petitioner had taken in her Memo of Appeal. Similar is the irregularity pertaining to MA Appeal No. 178 of 1995 in which the portion under the heading 'Decisions with reasons' contains only 4 Paragraphs out of which, only two sentences are made to the effect that in the opinion of the Tribunal the annual valuation fixed by the Hearing Officer was confirmed. No reasons have been given as to why the Tribunal thought it fit to disagree with the Grounds of Appeal filed by the Petitioner and which have been brought on record in the Writ Petition vide Annexures- J and K.
17. Similar was the fate in relation to the Petition for Review when the Reviewing Authority straightway dismissed the Petition for Review.
18. Moreover, the grounds which are being sought to be taken by the Respondents at the stage of this Writ Petition are in the shape of an Affidavit. This Court has already held that both the Hearing Officer as well as the Appellate Authority and also the Reviewing Authority, proceeded to pass their Orders without assigning any reasons. They are all statutory functionaries and their Orders have to be tested on the basis of the reasons mentioned or not mentioned in the impugned Orders themselves. Their Orders cannot be allowed to be supplemented or complemented by the addition of fresh grounds because if it were to be so allowed, there would be a risk of the same getting validated at a stage later when the Orders are challenged. This proposition is now well known in the case of Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. reported in : [1978]2SCR272 . Consequently, the points being submitted through the Affidavit-in-opposition cannot be allowed to be taken at this stage.
19. Since the Orders passed by the Hearing Officer, the Appellate Authority and the Reviewing Authority are without any reasons, they are accordingly held to be bad and are consequently set aside and quashed.
20. As a result, the impugned Notices dated 11.5.1990 as contained in Annexures- F and G, the impugned Order of the Hearing Officer passed on 16.10.1990 as contained in Annexure- I, the impugned Orders passed by the Tribunal on 29.8.1997 (Pages 55 and 58 of the Writ Petition) as well as the Order dated 21.8.1999 (Page 64) passed by the Reviewing authority are hereby set aside and quashed.
21. As a consequence, the matter stands remanded to the KMC to pass a fresh Order in accordance with law and in accordance with the Statute by giving an opportunity of hearing to the Petitioner and/or to her authorised representative. So far as the relief pertaining to the refund of Rs. 76,366.32 paise is concerned, this Court directs the authorities to keep the said amount in a short term fixed deposit in any nationalised Bank. The refund of the said amount shall depend on the fate of the fresh Order that may be passed. If the Petitioner succeeds, she will be entitled to the refund together with the interest that the deposit would earn during the time it lies fixed in the Bank but in the event of her losing, the KMC would then be entitled to pray for release of the said amount in their favour. The Writ Petition is allowed to the extents indicated above. No Order as to costs.
CAN No. 566 of 2009
The Petitioner, during the pendency of the Writ Petition, has filed this Interlocutory Application wherein she has prayed that the hearing in relation to the fixation of the annual valuation for the 4th Quarter of 1996-97 has been fixed before the Hearing Officer- III in January 2009. Prayer has been made for restraining the said Officer from proceeding with the hearing of the same.
Since this Writ Petition was confined only to the annual valuation of the period 4th Quarter of 1978-79 and the 4th Quarter of 1984-85, no Order is required to be passed on this Interlocutory Application, save and except to grant liberty to the Petitioner to file an appropriate independent Application/Petition before the appropriate Forum and at the appropriate stage in the event she is aggrieved by the final Order of assessment for that period. The Interlocutory Application is thus disposed of.
Upon appropriate Application(s) being made, urgent Xeroxed Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions.