KAUSHALYA KHATRI Vs. CALCUTTA MUNICIPAL CORPORATION

JUDGEMENT

(1.) An assessment made sometimes in July, 1996 in respect of the concerned premises has since been challenged in this writ petition on the ground that the assessment is ex facie bad. Mr. Mihirlal Bhattacharya, learned Advocate appearing on behalf of the petitioner, points out that the assessment was sought to be made from the 1st - quarter 1993-94 and 2nd quarter 1993-94 at Rs. 6,83,320/-. Relying on Annexure 'A', he points out that on 13th August, 1996, a notice was issued intimating the petitioner that the valuation of premises was Rs. 51,250/- with effect from 4th quarter 1990-91. Mr. Bhattacharya very fairly concedes that, that was in effect a revision of the valuation under Section 180 on account of an agreement which is Annexure 'D' to this writ petition. The agreement was effective from 1st May, 1994 till 30th April, 1997. Therefore, at best, there could be an intermediate revision under Section 180 of the Calcutta Municipal Corporation Act, 1980 from the 2nd quarter 1994-95 till 1st quarter 1997-98 and not beyond. Whereas, the assessment has since been made from 2nd quarter 1993-94 and is continuing even though the agreement had expired and the tenancy did not continue. He further contends that the petitioner had filed an appeal without complying the provisions of Section 189 (6) of the said Act and, therefore, there is no appeal in the eye of law and as such, it cannot be said that the petitioner had availed of alternative remedy. He then contends that the alternative remedy cannot be a bar particularly when the remedy is onerous. The alleged delay had also been explained by him. He contended further that the delay could not be fatal in every case. Having regard to the facts and circumstances of the case, the filing of the writ petition in 2000 would not be fatal, particularly when ex facie the assessment is perverse.

(2.) Mr. Ashoke Das Adhikary, learned Advocate appearing on behalf of the Calcutta Municipal Corporation, on the other hand, contends that in view of Section 190 ofthe said Act, if the appeal is not an appeal in the eye of law, the assessment has become final. He further contends that the writ petition has since been filed only to avoid compliance of Section 189 (6). Whether there is any appeal in the eye of law or not, the petitioner having availed of alternative remedy, he cannot approach this Court which is a discretionery remedy. He further contends that there has been an inordinate delay in preferring this writ petition. He then contends that, it is a disputed question of fact which cannot be gone into by this Court, since according to him, the occupancy started in 1993-94 and not on 1st May, 1994 as was found on inspection. According to him, as soon it requires a decision on a question of fact, writ Court should not exercise its jurisdiction. On these grounds, he proposes that the writ petition should be dismissed.

(3.) I have heard both the counsel at length. Both of them had cited certain decisions to which reference would be made at appropriate stage.