Kolkata Municipal Corporation Vs. Harbans Lal Malhotra and Sons Pvt. Ltd. and anr. - Court Judgment

Excerpt:
- alok kumar basu, j.1. both sides are present at the time of resumed hearing. after hearing, the learned advocate for the appellant kolkata municipal corproation and the opposite party on the last occasion the points for determination arose whether the tribunal in its order impugned in this application was justified for the purpose of making annual valuation of the property in dispute to treat the vacant land as part of the building standing on it.2. mr. das adhikary submits that the tribunal in its order relied on earlier assessment for the third quarter of 1976-77 and third quarter of 1982-83 to hold that in earlier assessment vacant land was not treated as a separate unit for assessment of valuation, but, according to mr. das adhikary, this observation of the tribunal was neither legal nor justified simply because in the 1980 act there has been section 174(2) read with sub-section (4a) which would come to indicate that under section 174(1) there must be separate assessment for the purpose of annual valuation both of standing building and also of vacant land.3. mr. das adhikary contends by making a comparative study of section 168 of the old act 1951 with section 174 sub-section (2) and sub section (4a) of act 1980 one would find that with definite purpose of such insertion was made so that corporation may not be deprived of its revenue for non-assessment of vacant land. mr. das adhikary, therefore, contends that the annual valuation for the year third quarter of 1998-99 ahould be set aside and the tribunal should be called upon for hearing both sides to make assessment regarding the vacant land and, thereafter, to arrive at annual valuation as permissible under the rules.4. mr. talukdar appearing on behalf of the opposite party has strongly opposed this submission of mr. das adhikary contending, inter alia, that there was nothing new in 1980 act and in fact, there may be certain variation in the language of 1980 act, but, the original scheme of 1951 act was very much retained in 1980 act and if sections 168(1) and (2) of the act, 1951 is read together, section 174(1) and (2) of the new act, 1980, it will at once appear that there was always the same intention that both building and land would be taken as a single unit for purpose of assessment of annual valuation.5. mr. talukdar in order to substantiate his view has put stress on the word 'or' appearing in both section 168 of the old act as also in section 174(1) of act of 1980. according to mr. talukdar the word 'or' appearing in section 174(1) would mean and include the both land and bulding together and there is no scope to make any other interpretation as desired by mr. das adhikary.6. mr. talukdar to substantiate his point has taken me through paragraph 9 of the judgement reported in 1999(5) scc 138 to show that the world 'or' and the word 'and' sometimes used in rules, laws or bye-laws with specific intention of its maker and the meaning of 'or' and the word 'and' shall depend on the factual background under which such conjunction was used. mr. talukdar with reference to the judgement as indicated above, submits that here the word 'or' was meant to join alternatives suggesting that any of the course was open for acceptance of the learned court. though the second judgement reported in 1987(3) scc page 208 at paragraph 3 mr. talukdar has sought to establish that here the word 'and' was used as disjunctively giving two alternatives for acceptance.7. mr. talukdar submits that from the above observation of the apex court, it would appear that the word 'or' used both in section 168 of 1951 act and 174(1) of 1980, wanted to mean that vacant land and building would be taken together otherwise the purpose of new sub-section (4a) would be nugatory. thus mr. talukdar concludes that the tribunal was totally justified on relying earlier decision whereby the scheme of 1951 act was followed and it was held that there should not be separate assessment for the land and the building.8. i have heard the submission of both mr. das adhikary and mr. talukdar and i have also considered the submission of both the learned advocates on the point of interpretation of section 174(1) and (2) of act of 1980.9. on examination of paragraph 9 of the judgement of the apex court appearing in 1999(5) scc 138 as well as paragraph 3 of the judgement reported in 1987(3) scc page 208 it is very clear that the apex court was of the view that the conjunction 'and' or 'or' can never be given a definite and dogmatic interpretation and the entire interpretation would depend on the intention of the maker laws or bye-laws using such conjunction. it would appear from decision reported in 1999(5) scc 138 that while in the background of interpretation of prevention of corruption act and the amendment brought thereto by the government of tamil nadu, the apex court was of the view that the word 'or' would give the scope of al tentative remedy and in the case reported in 1987(3) scc 208, the apex court thought that in the special background of labour law legislation the word 'and' should be taken as disjunctively used conjunction to interpret the correct intention of the legislature. thus, from the above two reported decisions one thing is very much clear and it cannot be disputed by either of the parties that what would be the actual meaning of the word 'and' or 'or' would certainly depend on the background and intention of the act in force and keeping this interpretation in mind, when i look at section 174(1) and (2) together with sub-section (4a), i am of the opinion that the intention of the statute was to treat vacant land at a separate unit of assessment otherwise the interpretation would take a probable source of revenue of the municipal authority which was not the intention of the statute.10. thus, having regard to the submission of both sides and after giving the interpretation given by mr. das adhikary on behalf of the kolkata municipal and for that matter, i hold that the tribunal was not justified in accepting the proposition that there should not be a separate assessment for the land. accordingly, this part of the observation of the tribunal is required to be set aside and the matter should be remitted back on this question to hold what should be assessment for the purpose of annual valuation regarding vacant land and the buildings and this exercise should be done by corporation on hearing both the sides within three months from the date of communication of this order. this application therefore, succeeds.11. there will be no order as to costs.12. urgent xerox certified copy of this order be supplied to the petitioner, if applied for, as expeditiously as possible after complying with all legal formalities.