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Dover Road Co-operative Housing Society Ltd. and ors. Vs. Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberMatter No. 988 of 1978
Judge
Reported inAIR1980Cal141
ActsCalcutta Municipal Act, 1951 - Sections 174 and 180
AppellantDover Road Co-operative Housing Society Ltd. and ors.
RespondentCorporation of Calcutta and ors.
DispositionPetition allowed
Cases ReferredHousing Society Ltd. v. Corporation of Calcutta. Sabyasachi Mukharji
Excerpt:
- .....of a 10 storied building with 50 self contained flats entirely independent and capable of separate enjoyment and under an agreement for sale the society allotted a flat to each of its members at prices varying in accordance with the covered area of the flat and its allocation. the members of the society have been in possession and enjoyment of the flats since october 1971. each of the petitioners has a right of egress and ingress from his flat through the common passage, stair case and lifts by way of easement right.3. it is the petitioners' case that the annual valuation of the entire premises no. 22, dover road, calcutta, under the calcutta municipal act, 1951 has been assessed by the assessor, corporation of calcutta, at rs. 1,32,080/- of the 4th quarter of 1973-74 until.....
Judgment:
ORDER

Padma Khastgir, J.

1. The present application has been taken out under Article 226 of the Constitution of India by 42 members of a Co-operative Housing Society Limited who are residents of 22, Dover Road, Calcutta, against the Commissioner, Corporation of Calcutta, the Dy. Commissioner, Corporation of Calcutta, The Collector, Corporation of Calcutta, the Assessor, Corporation of Calcutta, Sub-Inspector, Corporation of Calcutta, Sub-Assessor, Corporation of Calcutta and the State of West Bengal for necessary reliefs.

2. The petitioner No. 1 is a Co-operative body registered under the name and style as 'Dover Road Co-operative Housing Society Limited' and the other petitioners are its members. The Dover Road Co-operative Housing Society Ltd. was formed with the object of establishing on Co-operative basis, for providing family accommodation for persons with moderate income by affording each member facilities for owning or acquiring a flat. The society purchased the said premises No. 22, Dover Road, Calcutta measuring about 17 kattas, 3 chattacks and thereafter the society completed construction of a 10 storied building with 50 self contained flats entirely independent and capable of separate enjoyment and under an agreement for sale the society allotted a flat to each of its members at prices varying in accordance with the covered area of the flat and its allocation. The members of the society have been in possession and enjoyment of the flats since October 1971. Each of the petitioners has a right of egress and ingress from his flat through the common passage, stair case and lifts by way of easement right.

3. It is the petitioners' case that the annual valuation of the entire premises No. 22, Dover Road, Calcutta, under the Calcutta Municipal Act, 1951 has been assessed by the Assessor, Corporation of Calcutta, at Rs. 1,32,080/- of the 4th quarter of 1973-74 until fresh valuation was made. For the 3rd quarter of 1970-71 the annual value was assessed at Rs. 37,500/- and after hearing it was reduced to Rs. 12,500/-. The petitioner duly objected to the appropriate authority against the said valuation of Rs. 1,32,080,00/-. Corporation of Calcutta assessed three separate flats separately and fixed annual valuation and quarterly tax payable by each flat owners and after such assessment notices or demands were made for payment of the quarterly tax made in respect of the said three different flats (Nos. 34, 7, 37). Although separate assessment has been made in respect of the said flats subsequent notices have been also served on them on the basis that new valuation of the premises on apportionment on estimated yearly rental value less statutory allowance for repairs for substantial alterations and improvements made to the building has been made. So far the petitioner No. 34 is concerned, service of the said notice is bad because there could not have been any new valuation when, in fact, separate valuation has been made earlier in respect of the said flats along with two others. The original separate assessment was made in the year 1973 at Rs. 27,000/- fixing the quarterly tax at Rs. 124.88 P. and the tax assessed worked out at 18%. Thereafter it has been claimed at 33% on the ground of apportionment of the tax assessed on the total valuation of the entire premises No. 22, Dover Road, Calcutta. After having it assessed underSections 174 (2) and 174 (3) of the Municipal Act, 1973 respondents are incompetent in law to issue fresh notice under Section 180 pretending it to be a new valuation and issue rate bills at the maximum rate of 33% as the other flat belonging to the petitioner No. 34 was not valued for the first time as the valuation previously made was objected to and that objection was still pending for decision. Similarly in the case of petitioners Nos. 7 and 37 on their applications separate valuation was made and assessment made in respect of their flats determining annual valuation at Rupees 1,270/- and Rs. 2,134/- respectively on 30th of October, 1975 and intimated them by notices on 14th of Jan. 1976 and the quarterly consolidated rate payable by the said petitioners in respect of their shares were assessed at Rs. 29.37 P. and Rs. 49.37 P. which worked at 18 1/2% on the annual valuation which, according to the petitioners, have been made correctly and such valuation was made under Sections 174 (2) and 174 (3). But again the respondents in violation of the provisions of Calcutta Municipal Act sent rate bills to the petitioners Nos. 7 and 37 at the maximum rate in derogation of and without complying with the separate assessment made earlier. Thereafter all the petitioners applied to the respondents for separate assessment of each of the 50 flats but the respondents on the same application valued the said premises in entirety and taking into consideration of the yearly rental value less statutory allowance, apportioned the said valuation against the 50 flat owners. The said valuation was excessive as it was charged at the maximum rate under the said Act and consolidated rate bills for each quarterly was sent to the petitioners at the maximum rate of 33% applicable on annual valuation. The petitioners Nos. 7, 34 and 37, although separate assessment has been made in respect of their flats at the rate 18 1/2%, started receiving rate bills at the rate 33% being the highest slab permissible under the Act. Apprehending that a mistake has been committed by the respondents, the Chairman of the petitioner No. 1 personally met respondent No. 3 and at the advice of the respondent No. 3 whereby directions were given till disposal of the application, for deposit of the rates in the suspense account to avoid payment of interest until the hearing was made and finalised on 9th of December, 1976. According to the petitioners, once the separate valuation and assessment has been made on the application of the petitioners Nos. 7, 34and 37 under Sections 174 (ii) and 174 (iii) the respondents are also under an obligation in law to value and assess the shares of the remaining co-owners on separate assessment basis under Sections 174 (ii) and 174 (iii) and charge consolidated rate on graduated rate on the annual value of flats and cannot charge 33% as under Section 174 if the owner of any land or building is subdivided into separate shares and are independent and capable of separate enjoyment the Commissioner may in accordance with such rules sub-divide valuation of such land or building and apportion the same amongst the co-owners'. In the case reported in (1977) 4 Cal HC (N) 889 Sana institute of Nuclear Physics Co-operative Housing Society Ltd. v. Corporation of Calcutta. Sabyasachi Mukharji, J. held that 'while valuing the property the Corporation was in error in considering the entire valuation of the whole property and not valuing the property on separate value of each flat'. The learned Judge further held that the valuation of the building in its entirety cannot be sustained. In the case reported in (1974) 78 Cal WN 590 in which S. K. Dutta, J. of this High Court had to consider the provisions and effect of Section 174 of the Calcutta Municipal Act, 1951 and the learned Judge observed that it would be unreasonable to ask the owners of such flats to pay taxes for the entire premises. The learned Judge further observed that the provisions of the Act should receive liberal and harmonious interpretation for the benefit of all. The learned Judge held that Section 174 (i) covered the cases of ownership flat because it contemplated a subdivision of ownership, of land and building with or without separate allotments and in that particular case Mr. Justice Dutta directed the Corporation of Calcutta to value the separate flats separately. The learned Judge further observed that in that case the valuation of the property was not made on the separate valuation of each flat and the Corporation was in error in considering the value of the whole property in assessing such taxes. Sabyasachi Mukharji, J., also held that the Apartment Act is an optional Act and as the petitioners in that case did not make any declaration to that effect the provisions of the Act could not be made applicable' and held that 'the valuation made on the basis of entire valuation cannot be sustained' and in that particular case the learned Judge set aside the demand notices and bills and directed the Corporation to determine annual valuation of the petitioners flat separately from the day the petitioners applied for separate valuation and made the rule absolute.

4. Applying the same principles as laid down in the cases mentioned above in this case it would appear that the society has made allotment of flats to each member which are entirely independent and capable of separate enjoyment. Moreover separate valuation and assessment has been made in respect of the three flats stated above. There is no difficulty in valuing and assessing the other remaining flats separately and so far the valuation has been made in respect of flats stated above it would appear that there has been no apportionment of the valuation after taking into consideration of the total valuation but each of the flat has been assessed separately according to their valuation.

5. Considering the facts and law as laid down in the above case and also considering the grounds as set out in para 32 of the petition, I make the rule absolute.


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