IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE W.P.472 OF2017M/s Banwarilal Goel & Sons & ORS.-VSKolkata Municipal Corporation & ORS.Before: HON’BLE Mr.JUSTICE HARISH TANDON Mr.Arindam Banerjee, Mr.S.E.Huda, Mr.Ritoban Sarkar, Mr.Ashok Kumar Singh ….
For the PetitioneRs.Mr.Achinta Banerjee, Mr.Ambar Nath Banerjee, Mr.Amrita Panja Moulick ….
Mr.Arnab Dutt … For Proforma Respondents.
Date: 18.09.2017 The Court: The Petitioner has not only challenged the hearing notices issued by the competent authority proposing to enhance the annual valuation of the property in question but also challenged the final order of the Hearing Officer determining the annual valuation for the purpose of ascertaining the property tax laviable on the premises owned by the Petitioner.
The Petitioner claimed to be the owner of the municipal premises number 17, Shyama Prasad Mukherjee Road, Kolkata – 700 025.
A letter dated 11th September, 2014 was issued upon the Petitioner No.1 by the Assistant Assessor Collector (South) of Kolkata Municipal Corporation proposing to revise the annual valuation due to induction of a tenant by the Petitioner at the said premises.
Thereafter, three hearing notices were served upon the Petitioner under Section 183(3) / 184(4) of the Kolkata Municipal Act, 1980 indicating the proposed annual valuation and invited the objection from the Petitioner before the Hearing Officer on 15th December, 2014.
It is an admitted fact that they appeared before the Hearing Officer and filed the objection on multiple grounds.
The Hearing Officer concluded the hearing and subsequently determined the annual valuation, as a consequence whereof, a letter of intimation dated 21.04.2015 was served upon the Petitioner No.1.
The Petitioner alleged that the order determining the annual valuation was not served upon him and therefore it could not be ascertained what swayed the mind of the said officer to arrive at the said annual valuation.
Subsequently, the Petitioner applied for certified copy of the order dated 15.12.2014 and noticed that various aspects have not been considered therein.
A representation was made to the Municipal Officer on 20th August, 2015 to recall the purported assessment of annual valuation by invoking the powers under Section 192 of the Kolkata Municipal Corporation Act, 1980.
Though the Writ Petition is silent on what steps were taken on such representation, yet, the Court can safely proceed that it was entertained as fresh hearing notices were served upon the Petitioner incorporating the proposed annual valuation of the property under Section 183(3) read with 184(4) of the Act.
A fresh opportunity to file objection was given to the Petitioner, which was duly availed of.
The Hearing Officer afforded an opportunity of hearing to the representative of the Petitioners on several dates and passed an order on 27th February, 2017, partly confirming the proposed annual valuation and partly determining the fresh annual valuation of the property.
The Petitioner applied for certified copy of the said order, which was given to the Petitioner on 15th March, 2017.
In the instant Writ Petition, the Petitioner has challenged the said order dated 27.
02.2017 as well as the hearing notices, which led the foundation of the said proceeding, which culminated into the said impugned order.
The challenge is founded primarily on the ground that the annual valuation should not be fixed on an actual rent received by the Petitioner but should be made at reasonable rental value / fictional value in terms of the ratio laid down by the Supreme Court in India Automobiles (1960) LTD.–versus Calcutta Municipal Corporation & Anr.
reported in (2002) 3 SCC388 It is further contended that the actual rent received by the Petitioners from a single tenant cannot be the basis for valuation of the premises in question as the rent paid by the other tenant should also be taken into account by the said Hearing Officer.
The learned Advocate for the Petitioner relies upon the aforesaid judgment of the Supreme Court in support of his contention that the Hearing Officer has, in fact, acted contrary to the ratio laid down therein and, therefore, the Court should set aside the said order.
The inspiration appears to have been drawn while laying the foundation of challenge from the observations of the Apex Court in paragraph number 24 of the said report which runs thus:“24.
We do not find any conflict in the judgments of this Court so far as the determination of annual value of the property under the municipal laws is concerned.
Distinction, if any, is based upon the relevant provision of the statute of a State with which this Court was dealing, particularly with respect to such statutes which contained a non obstante clause.
We are of the view that the basis for determination of annual rent value has to be the standard rent where the Rent Control Act is applicable and in all other cases reasonable determination of such rent by the municipal authorities keeping in view various factors as indicated herein earlier, including the rent which the tenant is getting from his sub-tenant.
In appropriate cases the owner of the property may be in a position to satisfy the authorities that the gross annual rent of the building of which the annual valuation was being determined cannot be more than the actual rent received by such owner from his tenant.
The municipal authorities shall keep in mind the various pronouncements of this Court, the statutory provisions made in the specified Municipal Acts, keeping in mind the applicability or non-applicability of the Rent Act and the peculiar circumstances of each case, to find out the gross annual rent of the building 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 in terms of Section 174 of the 1980 Act.” At the very outset, this Court must bear in mind that Section 189 of the Kolkata Municipal Corporation Act, 1980 provides a remedy by way of appeal before the Municipal Assessment Tribunal against the order passed by the Hearing Officer under Section 188 thereof.
The Writ Court should be slow and circumspect in entertaining the Writ Petition if the points raised therein requires the facts and the documents relied upon by the parties to be gone into.
The Writ Court should not convert itself into a Court of Appeal and decide the matter in thread bear.
Though there is no absolute bar in entertaining the Writ Petition if the efficacious alternative remedy is available to the aggrieved person, yet the Court should not encourage such litigant to approach directly to the Court without exhausting the statutory remedy.
It is a self imposed restriction by the Court and in a case where the point raised in the Writ Petition can be conveniently adjudicated by the Statutory Forum, the Writ Court should refuse to exercise the discretion and relegate the party to exhaust such statutory remedy.
I am not oblivion of the proposition of law that the Writ Court can entertain the Writ Petition if the case is made out to the exception laid down in Whirlpool Corporation –versus Registrar of Trade Marks reported in (1998) 8 SCC1 The Apex Court in the said report held that it would be a sound exercise of discretion to refuse the interference under Article 226 of the Constitution of India if there is an existence of an alternative, efficacious remedy available to an aggrieved person unless there are good reasons therefore indicating that it would not operate as an absolute bar.
The exhaustion of statutory remedy is a rule of policy, convenience and discretion rather than the Rule of Law.
It is, therefore, a rule of discretion than of compulsion.
The observations of the Apex Court are quoted herein“15.
Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition.
But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction.
But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.
16.Rashid Ahmed v.
Municipal Board, Kairana [AIR1950SC163: 1950 SCR566 laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs.
This was followed by another Rashid case, namely, K.S.Rashid & Son v.
Income Tax Investigation Commission [AIR1954SC207: (1954) 25 ITR167 which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226.
This proposition was, however, qualified by the significant words, “unless there are good grounds therefor”, which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances.”
17. A specific and clear rule was laid down in State of U.P.v.
Nooh [AIR1958SC86: 1958 SCR595 as under: “But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.” 18.
This proposition was considered by a Constitution Bench of this Court in A.V.Venkateswaran, Collector of Customs v.
Ramchand Sobhraj Wadhwani [AIR1961SC1506: (1962) 1 SCR753 and was affirmed and followed in the following words: “The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy.
We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.” 19.
Another Constitution Bench decision in Calcutta Discount Co.Ltd.v.ITO, Companies Distt.
I [AIR1961SC372: (1961) 41 ITR191 laid down: “Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction.
Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences.
Writ of certiorari and prohibition can issue against the Income Tax Officer acting without jurisdiction under Section 34, Income Tax Act.” 20.
Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.” This Court finds from the perusal of the impugned orders that all the points raised before him by the Petitioner had been dealt with and the findings are also recorded thereupon, even the Hearing Officer noticed the judgment of the Apex Court rendered in India Automobiles (Supra) and gave his findings on its applicability.
The impugned order cannot be said to be bereft of reasons, which is one of the facets of the principles of natural justice.
This Court finds that all the points are essentially a question of facts and dependant upon the various documents relied upon by the respective parties and therefore it would be proper that the Petitioner should be relegated to the Statutory Forum provided there for.
This Court, therefore, does not find that it is a fit case to entertain the Writ Petition.
The Writ Petition is, thus, dismissed.
However, it will not prevent the Petitioners to challenge the impugned orders and the hearing notices before the Tribunal, who is otherwise competent to decide the same.
For abundant precaution hereby it is recorded that the Tribunal shall not be swayed by the fact that this Court has dismissed the Writ Petition nor any observations recorded herein above would have any persuasive effect on the merit of the appeal, which shall be decided independently in accordance with law.
Urgent photostat certified copy of this order shall be given to the parties within three days from the date of the application.
(Harish Tandon, J.)