Kolkata Municipal Corporation Vs. P.K. Commercial Company and anr. - Court Judgment

Excerpt:
- s.p. talukdar, j. 1. common questions of fact and law being involved in the three cases between the same parties, those have been heard at a time on consent of both sides.2. the kolkata municipal corporation, as petitioner, filed three applications under article 227 of the constitution. those are directed against order dated 01.03.2000 passed by the municipal assessment tribunal, (hereinafter referred to as the 'tribunal') in maa 388a/97, maa 387a/97 and maa 384a/97 arising out of the order passed by the hearing officer-iii dated 11.03.1997 in respect of space no. 4a, 4th floor, 119, park street, kolkata-700016.3. grievances of the petitioner/kmc may briefly be stated as follows :hearing officer-iii after due service of notice and hearing both parties by order dated 11.03.1997 fixed the annual valuation (av) in respect of the disputed case-property for three different periods of time. opposite party no. 1, m/s. p.k. commercial co. & ltd., preferred three separate appeals, as referred to earlier. relying upon the decision referred to by the appellant, in maa 542 of 1983 passed by small causes court, calcutta, the tribunal decided the said appeals. due to misplacement of the relevant file there has been delay in getting opinion of the counsel and consequently in filing the applications. the impugned order is bad and based on erroneous interpretation of law. the tribunal in passing the said order failed to exercise jurisdiction vested in it and exceeded the jurisdiction vested in it by calculating the annual valuation in such a way that it is even below the annual valuation prayed for by the appellant before it. it acted illegally in not granting any opportunity of hearing to the petitioner in respect of the additional evidence which was adduced by the appellant by way of referring to a decision without any formal application. 4. in the circumstances, prayer has been made for setting aside of the impugned judgment and order dated 01.03.2000.5. mr. das adhikary, learned counsel for the petitioner/kmc at the very outset has submitted that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. in this context, mr. das adhikary has referred to the decision in the case of ram chandra keshav adke (dead) by lrs. v. govind joti chavare and ors., reported in : [1975]3scr839 . in fact, there is no scope for any controversy in this regard.6. it is next submitted by mr. das adhikary that in the matter of determination of the annual value the onus is on the assessee to prove that the proposal of annual valuation is bad. mr. das adhikary in this context has drawn attention of this court to the decision in bela bestos' case, reported in 1998(1) chn 492.7. on the other hand, learned counsel for the opposite party has submitted that pursuant to three notices dated 01.02.1997 in respect of three different periods i.e, 1/86-87, 4/90-91 and 3/92-93, the hearing officer-iii passed three separate orders all dated 11.03.97 fixing valuation at rs. 2.48,400/-, rs. 3,04,560/- and rs. 4,53,600/-. on 2nd of july, 1997 the assessee deposited a sum of rs. 29,50,440/- with the petitioner/kmc on account of filing of the appeal. the tribunal by a common order dated 01.03.2000 disposed of all the three separate appeals. the assessee by a letter, received by the corporation on 31.03.2000, served copy of the judgment dated 01.03.2000 on the corporation with request to make revised bills. the petitioner/kmc raised rate bills for the period from 1/86-87 to 4/2000-01 in terms of the judgment passed by the tribunal. on 26.01.2001 the kmc by its letter informed the status of outstanding dues against assessee and confirmed deposit of rs. 17,45,651/- under suspense account with the corporation after adjustment of the bills pursuant to the judgment passed by the tribunal. the assessee demanded the said amount which was paid in excess. it further requested the corporation to adjust rs. 85,884/- towards rate bills for 1st/01-02 to 4/01-02 raised on the basis of the judgment being subject-matter of the revisional application and refund the balance rs. 16,59,767/-. by letter dated 5th september, 2001 the kmc requested the assessee to submit original pd bills for adjustment. assessee submitted the said bills on .12.09.2001. assessee, thereafter, filed a writ petition being no. 1137 of 2002 praying inter alia for refund of the sum of rs. 16,59,767/- on 23.05.2002. by order dated 2nd july, 2002, the hon'ble single judge of this court was pleased to direct the kmc to refund the excess amount after adjusting the current dues within 3 weeks from the date. on 17.09.2002 the assessee filed contempt application being c.c. no. 219 of 2002 for non-compliance of the directions of the hon'ble court. on 7th january, 2003, the kmc made second revaluation of the annual value based on judgment dated 01.03.2000. on 04.02.2003 the corporation by its letter of intimation informed the assessee that an amount of rs.13,75,070/-was lying under suspense account after adjustment of the bills being nos.166 and 167 raised after the revaluation based on the said judgment. assessee forwarded two cheques to the corporation on account of the bill nos.q/166 and q/167 but corporation refused to accept the same and preferred to adjust out of the deposited amount relying on the said judgment. thereafter, on 09.07.2003 rule was issued in contempt application and copy of the rule was served upon the authorities. thereafter, on 18.08.2003 the revisional application was listed.8. it is not an easy, certainly not pleasant, job to fix up the valuation of property and assess tax on its basis. but taxes are the dues that people pay for the privileges of membership in an organised society. people need water, electricity, clean roads and various other civic facilities which the municipalities or other authorities like that arrange with tax-payers' money. lord denning m.r. observed that 'the avoidance of tax may be lawful, but it is not yet a virtue.'9. opposite party no 1, herein had it's grievances and it is not happy in the manner its liability was fixed up by the hearing officer, who is the competent authority. edmund burke said that 'to tax and to please, no more than to love and be wise, is not given to men.' it sought redress before the tribunal. relying upon the valuation made in respect of another flat in the said premises, it rushed to the tribunal for redress. no doubt, 'that which angers men most is to be taxed above their neighbours.'10. but the tribunal, as it is reflected from the impugned judgment, in its zeal and anxiety went out of its way to deliver justice perhaps more than it was sought for. justification for adopting 'comparable method' is another question but there is hardly any comparison either -- in respect of location, size, shape etc. etc. and, what could be seen, thereafter, can be best termed as conspiracy of silence and inaction.11. lord diplock observed that 'there are few greater stimuli to human ingenuity than the prospect of avoiding fiscal liability. experience shows that under this stimulus human ingenuity outreaches parliamentary prescience.'12. learned counsel, mr. das adhikary, has submitted that the judgment of the tribunal is not a precedent and is merely an additional evidence which can be taken into consideration only after compliance of rule 19 of the taxation rules. in this context he has referred to the decision in kapoor & company's case, reported in 2002(2) chn 377. there is no doubt that additional evidence can be admitted before the appellate authority if the conditions laid down in rule 19(6) are satisfied with and, the tribunal records reasons for acceptance for such additional evidence. learned single bench of this court in the said decision held that 'the principles of natural justice demand that once a party is permitted to adduce additional evidence, the other party should also be given opportunity to give evidence in rebuttal so far the additional evidence is concerned.'13. before proceeding further it is perhaps necessary to reproduce rule 19(6) of the kmc (taxation) rules which stands as follows :'(6) the parties to an appeal shall not be entitled to produce before the tribunal any evidence in addition to the evidence adduced at the hearing under section 188 :provided that if - (a) the officer hearing the appeal under section 188 has refused to take evidence which, in the opinion of the chairman, ought to have been taken, or(b) the chairman considers the production of any evidence to be essential in order to enable the tribunal to pronounce judgment, the chairman may, after recording his reasons therefore, allow such evidence to be produced.' 14. it is quite natural that while allowing introduction of such evidence at the time of hearing of the appeal, an opportunity must be given to the opposite party to have its say in regard to the said document. it will be denial of basic natural justice if the o.p. is not allowed to respond to the challenge of such additional evidence/material. unfortunately, on perusal of the impugned judgment and order it does not appear that any such opportunity was given to the petitioner/kmc while relying upon the decision of maa 542/83 in respect of a flat in the same premises. the tribunal relied heavily on such judgment as referred to earlier and the same practically was the trump card for the o.p. before the tribunal. in the backdrop of the present case, denial of an opportunity to rebut the evidentiary value of such a judgment amounted to abuse of process of law and it was in effect in violation of the basic principles of natural justice.15. on behalf of the o.p., however, attention has been drawn to the observation of the tribunal in the impugned judgment that the 'respondent could not oppose such valuation.' it is difficult to give any undue importance to such a stray observation made by the tribunal in the impugned judgment.16. it has been strongly argued on behalf of the opposite party that the impugned order dated 01.03.2000 which though has been sought to be assailed herein has been complied with by the kmc from time to time. referring to this, it has been further submitted that any further grievance in the matter of determination of the annual valuation in respect of the case property is hit by the principle of estoppel by conduct. it is difficult to accept such contention as it is settled principle of law that there cannot be any estoppel against statute. mr. das adhikary has categorically stated that the kmc by complying with the order and the directions therein given by the tribunal from time to time has just discharged its statutory obligations and challenging the said order by itself cannot be hit by the principles of estoppel. it is submitted that the petitioner has every right to challenge the legality and validity of the said order of tribunal by filing an application under article 227 of the constitution. mr. das adhikary has further submitted that mere fact that the kmc could not oppose the value before the tribunal does not take away the duty of the tribunal to determine valuation in compliance with the statutory legal provisions. in fact, even consent of the parties cannot supersede the process of law. while determining annual valuation the competent authority is to apply its mind to section 174 of the kmc act. if the exercise cannot be easily done in accordance with section 174(1) of the said act, the appropriate authority is required to proceed in terms of section 174(4a) of the said act. the materials on record do not at all reveal that there has been any attempt on the part of the tribunal to make such an endeavour.17. learned counsel for the o.p. has sought to strike the present application at its root by submitting that the kmc cannot be allowed to raise its voice of protest after such a long period of time i.e., more than three years after passing of the impugned order. he, of course, has submitted that there may not be any limitation in regard to filing of an application under article 227 of the constitution but that does not necessarily suggest that it does not have its own self-imposed discipline, as otherwise allowing a party to challenge an order in exercise of power under article 227 at any stage may amount to abuse of process of law. anxiety of the learned counsel for the o.p. in this regard can be well-appreciated but this court has to be extremely discreet in order to ensure that in the name of ethics and discipline, an intrinsically bad, illegal and unsound order cannot remain unassailed.18. it has been rightly pointed out by the learned counsel for the petitioner that while deciding the annual valuation, the appropriate authority is to take into consideration all relevant factors which include location, situation and the circumstances of the premises. in this context learned counsel for the petitioner has referred to the decision in the lt. col. p.r. chowdhury's case, reported in : (2000)4scc577 and subrata basil mullick's case, reported in 2002(1) chn 181. it is true that the o.p. is well-equipped with materials to show that the appropriate authority of the kmc has from time to time proceeded on the basis of the valuation already made and has thereby accepted the judgment of the tribunal. but it does not take away the right of the kmc to challenge the order. learned counsel for the o.p. has further referred to the direction of the court in connection with w.p. no.7137/02 given by order dated 2nd july, 2002. it relates to the assurance given by the kmc that it will refund the excess amount after necessary adjustment. but the said order does not at all change the complexion of the present case.19. after due consideration of all relevant facts and circumstances and having regard to the submission made by the learned counsel for the parties, i am inclined to hold that the impugned order suffers from inherent illegality and impropriety which certainly call for interference by this court. it is unfortunate that the tribunal has relied upon a judgment with such loyalty that it has failed to take into consideration the relevant statutory provisions of law while determining the annual valuation of a property. the tribunal, for reasons best known to it, has not paid any regard to the guidelines given by the apex court and has practically remained indifferent to the relevant factors like location, situation and other circumstances.20. accordingly, the present applications under article 227 of the constitution being c.o. 1738 of 2003, c.o. 1739 of 2003 and c.o. 1740 of 2003 succeed and the same be allowed. the impugned judgment and order dated 01.03.2000 stands set aside.21. the mailer is sent back on remand to the tribunal for fresh determination of the annual valuation after giving both parties opportunity to place respective materials and after hearing both sides. this should be done as expeditiously as possible preferably within a period of three months from the date of communication of this order. the opposite party, however, may continue to act on the basis of the existing valuation till further determination subject to future adjustment.22. there is no order as to costs.23. urgent xerox certified copy, if applied for, be supplied to the parties on payment of requisite fees.