IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Original Side W.P.No.55 of 2016 Rajesh P.
Thakkar versus Kolkata Municipal Corporation & ORS.For the petitioner:- Mr.Arindam Banerjee Mr.Rupak Ghosh Mr.Aishwariya Joyshree …Advocates For the K.M.C.:- Mr.A.K.
Ghosh Mr.F.Haque Mr.S.Chowdhury ….Advocates For the Respondent No.7:- Mr.V.K.Purohit …Advocate Judgement On: - 21st November, 2016 I.P.MUKERJI, J.
Section 192 of the Kolkata Municipal Corporation Act, 1980 is an extraordinary provision.
Under it, the Municipal Commissioner seems to have unlimited power to inter alia change the assessment of a land or building on the ground that it was made erroneously or that fraud, mistake or accident prevented its proper assessment.
I set out Section 192 (1) (vi) of the said Act, which is relevant in this case: “192.
Amendment of Municipal Assessment Book- (1) Notwithstanding anything contained in section 190 the Municipal Commissioner may, it any time, amend the Municipal Assessment Book--(vi) by altering the assessment on the land or building which has been erroneously valued or assessed through fraud, mistake or accident, in which case such alteration shall take effect from the date such erroneous valuation or assessment took effect.” The writ petitioner wants this court to reopen an assessment made much more than 20 years ago.
On 25th November, 1994 Vaghani BrotheRs.controlled by Anand P.
Vaghani, the seventh respondent purchased unit No.212 on the second floor of Lords Building at 7/1, Lord Sinha Road, Kolkata-71, by a registered deed of conveyance.
It measured 816 sq.ft.
From the third quarter 1993-1994 its annual valuation was Rs.4,40,064.
Mr.Vaghani retained the property till 13th June, 2006.
The petitioner says that Vaghani for most of this period used the property for his own use.
Only for the last two years he let it out to Priya Limited.
On 13th June, 2006 the petitioner bought this property from Vaghani.
As is usual, in the Deed of conveyance it was stated that upto the date of purchase, Vaghani would pay inter alia the municipal tax.
The case of the petitioner is that Vaghani assured him he was looking after the matter so that the valuation could be reduced.
The petitioner says that Vaghani became untraceable from 2013.
The petitioner upon enquiry came to learn that the so called exaggerated valuation was because of the fact that UTI Bank now Axis Bank was shown all along as the lessee of this unit.
The petitioner claims that this bank was not in occupation of the Unit No.212 at any point of time.
It was a tenant of Unit No.202 on the ground floor and had vacated it in November 2002.
Axis Bank is a party to this writ application.
They have been duly served but have not bothered to appear.
It appears that from 2013 onwards the writ petitioner tried to move the respondent corporation to exercise its powers under Section 192 to revise the valuation.
According to the petitioner, even if it was assumed that Axis Bank occupied unit No.212 and paid standard rent per square foot, in 1993-1994 this rent was below Rs.3 per sq.foot.
In that event the maximum annual valuation could not have exceeded Rs.15,000 as opposed to Rs.4,40,640 assessed by the Corporation.
On 17th June, 2013 the respondent corporation communicated a decision made on 11th June, 2013 to reduce the annual valuation from the third quarter 20062007.
Even as a result of this decision a huge amount of tax was due and payable by the petitioner from the third quarter 1993-1994 to the second quarter 2006.
This revision was made subject to the petitioner making payment of all outstanding taxes till the second quarter 2006.
It appears from a subsequent letter of intimation dated 3rd March, 2014 at page 76 of the writ petition that this decision was soon reversed by the respondent Corporation, most probably, because the writ petitioner did not pay the outstanding tax.
The writ petitioner preferred a writ application in this court (WP727of 2014 Rajesh P.
KMC and Ors.).This writ was disposed of by this court, on 19th November, 2014 directing the Municipal Commissioner to consider exercising his power under Section 192 (i) (vi) of the said Act.
The writ petitioner was asked to deposit Rs.10 lakhs with the Corporation to be kept in a suspense account.
The Municipal Commissioner did consider the matter and made the impugned decision on 18th August, 2015.
This decision reveals that before making it the Commissioner wanted information from his own department as well as from CESC Limited and Axis Bank.
His department maintained that Unit 212 on the second floor was at the material period occupied by UTI Bank.
Axis Bank maintained silence.
CESC provided no assistance.
They simply said that they provided high tension supply to the premises and did not provide any low tension supply to any unit therein.
In the absence of any other evidence the Commissioner considered the assessment books of the Corporation to be correct and relied upon them.
He declined to exercise his powers under Section 192 (1) (vi).Mr.Banerjee very heavily relies on the letter dated 22nd September, 2014 of S.K.Singhi and Company on behalf of Axis Bank Limited.
The letter runs as follows:“Our client states that it was the tenant over and in respect of ground floor of “Lords”, 7/1, Lord Sinha Road, Kolkata-700 071.
Our client states that it has terminated/vacated the said leasehold premises in and about November, 2002 and thereby shifted their branch office from “Lords”, Ground Floor, 7/1, Lord Sinha Road, Kolkata-700 071 to No.5 & No.7, Shakespeare Sarani, Kolkata-700 071 since November, 2002, it is an admitted fact from your letter under reference.” He wants this court to infer from this document that UTI Bank was never a lessee or tenant of unit No.212.
He argued that this letter ought to have been considered by the Commissioner and had not been so considered by him.
The writ petitioner also seeks reliance on a letter of the “maintenance service provider” of the building, “Amrapali Business Combines PVT.Ltd.” dated 4th January, 2016 which was brought on record by filing a supplementary affidavit.
They state that Axis Bank was never a tenant of room 212 of the building.
Mr.Banerjee for the petitioner also relied on a declaration dated 28th December, 2015 made by the fifth respondent to the effect that he purchased unit 212 on 25th November, 1994 and used it for his personal business purpose till 29th February, 2014.
During this period Axis Bank never occupied any portion of this unit.
From 2004 to 2006 the said office space was rented out to Priya Limited.
On 13th June, 2006 it was transferred by him to the petitioner.
Learned counsel for the petitioner argues that this substantial evidence was not taken into account by the Commissioner which resulted in miscarriage of justice.
In the impugned order the submission of the lawyers for the petitioner that the unit was not let out to UTI Bank was recorded.
The statement of CESC Limited, records of his own department, Axis Bank were recorded by the Commissioner.
There was no whisper that the petitioners wanted to adduce the above documents as evidence and that the Commissioner did not give them an opportunity to rely on them.
It was upto the petitioner to produce those documents and obtain a ruling.
Neither was it argued on behalf of the Corporation in this court that the said documents were being produced for the fiRs.time in my court.
On 13th June, 2006 the writ petitioner purchased the property.
This court has every reason to believe that he is a prudent man.
Even if casual enquiries were made regarding the property he bought, it would be clear to the petitioner that there was a huge outstanding of municipal tax.
Any prudent businessman would have caused the seller to pay off this liability fiRs.before executing the conveyance.
Or he would have paid a lower price and taken the liability on his head.
We do not know what was the deal between the writ petitioner and his seller?.
Nor did the Commissioner go into this question.
In my opinion the Corporation has admitted its own mistake, to a large extent.
On the application made by the petitioner it allowed him reduction in assessment from third quarter 2006-2007.
Now, this revaluation was granted by the Chief Manager (Revenue) on 11th June, 2013.
Therefore, the Corporation was convinced that from the time the writ petitioner came into the premises on 13th June, 2006 there was no Axis Bank.
If in 2013 the Corporation could determine that on and from 13th June, 2006 unit 212 was utilised for the purposes of the owner and that there was no Axis Bank as tenant or lessee, what prevented it from making a determination as to whether Axis Bank was a tenant of this unit at any point of time?.
This decision was reversed only for the reason that the writ petitioner could not pay the property tax which was made a condition precedent and not for any mistake on the merits.
Most importantly the documents now relied upon by the petitioner prima facie are very substantial to prove that UTI or Axis Bank was never a tenant or lessee of unit 212.
Now, the question is whether on this evidence the Municipal Commissioner will exercise the extraordinary power vested in him in Section 192 to reduce the valuation of the property for a period of nearly 25 yeaRs.on the ground that a valuation made on 1993 – 1994 was made by “mistake or accident”, to quote the language of Section 192 (1) (vi) of the said Act.
This power of the Municipal Commissioner under Section 192 (1) (vi) is extremely wide and can cover an unlimited period, irrespective of the laws of limitation.
It is not in each and every case the Municipal Commissioner should exercise his discretion.
This power is to be used sparingly to rectify long standing errORS.only if the error is causing according to the Commissioner great loss or grave injustice to a party.
In my opinion if UTI Bank or Axis Bank had been wrongly treated as a lessee or tenant without the bank being so, then great loss and injustice had been caused to the owner of the property.
More so, if he is asked to pay the large amount of extra tax without the liability being shared by the erstwhile owner.
In the impugned order all the above facts were not considered by the Commissioner.
It could be said to have been based on insufficient evidence and lack of proper appreciation of the scope and effect of Section 192 of the said Act.
The impugned order dated 18th August, 2015 is set aside.
I direct the Commissioner to re adjudicate the case, by allowing the parties to produce fresh evidence, by hearing them, following the above observations and by a reasoned order within three months from date.
No coercive steps are to be taken by the respondent corporation against the petitioner for the said period.
The deposit of Rs.10 lacs in the suspense account of the Corporation, further to the order dated 19th November, 2014 will abide by the decision of the Commissioner.
This writ application is allowed to the above extent only.
Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.