KOTHARI MEDICAL CENTRE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this writ petition the petitioner has two fold grievances. One for not taking any action in deciding the application for exemption from payment of rates and taxes made on 20/12/1990 and also the legality and validity of two orders dated 7/09/1990 making valuations of the building and property of the writ petitioner. At the threshold Mr. J. K. Mitra, learned senior counsel fairly submits that there is a formal defect in the writ petition as the office-bearer of the society/writ petitioner has not been made a party herein and this should have been done under the provisions S. 19 of the West Bengal Society Registration Act, 1961 which has been interpreted to be a mandatory one as has been observed in the judgment of the Division Bench reported in AIR 1977 Calcutta 437. Mr. Mitra, however, submits that the aforesaid judgment of the Division Bench has not taken note of other two earlier decisions, one of which is of this Court (AIR 1960 Cal 409) and another one is of Bombay High Court (AIR 1946 Bombay 516), both of them are of learned single Judges. The reasoning and discussion as made in the aforesaid judgment by the learned single Judges are very apposite to this case and had those reasoning been shown to their Lordships of the Division Bench of the aforesaid decision then perhaps the law might have been laid down otherwise. While sitting singly I cannot ignore the observation and decision of the Division Bench. Therefore, I am of the view that the observation of the Division Bench does not preclude the Court to exercise power under Order 1, Rule 10 to add a party in a fit case. Therefore, I think on the aforesaid grounds for not making necessary party in the petition, the writ petition should not be dismissed at least at the time of final hearing when the respondent has not taken the plea of maintainability. Mr. Sarkar in his usual fairness submits that this is a question of law. However, he left this matter with the Court as to how it should be appropriately dealt with. I have checked up the petition and found that the petition has been verified by the Secretary of the writ petitioner No.1. However, one of the members has been made party to the writ petition. In my view the member of the Society is not the office bearer. Therefore, Chand Ratan Damani is impleaded as party/Petitioner and his name should be added accordingly and before this order is drawn up, completed and filed the department is directed to incorporate the amendments inserting the name of Chand Ratan Damani as Secretary of the writ petitioner No.1. Mr. Mitra learned senior counsel appearing in support of the writ petition contends that his client is running a Charitable Medical Facilities to the public at large and even the appropriate official of the respondent observed while visiting the Hospitals run by the petitioner that this is a Charitable one. Under such circumstances, it was the duty coupled with the power as provided under S. 172 of the Calcutta Municipal Corporation Act to consider and dispose of the same. Without disposing of such application the respondents authorities should not have demanded payment of rates and taxes sought to be made levied on the strength of the impugned valuation orders taking the said property as being the other property. Therefore, this valuation order should be set aside and the Municipal Authority should be asked to decide the aforesaid application in accordance with law first. Mr. Mitra further contends that his client however, is going on depositing the rates and taxes pursuant to the valuation as has been decided by the Small Causes Court on an appeal preferred by his client challenging the previous valuation.

(2.) Mr. Sircar, learned counsel appearing on behalf of the Municipal Authorities submits and in fact, concedes that the application for exemption should have been decided by his client but it could not be done so because the application was not made to the proper authority. Instead of making the application to the Commissioner it should have been made to the Mayor-in-Council and as such this application could not be heard and disposed of. However, he submits that his client still is willing to consider this application ignoring technicality. The effect of the decision so to be taken even if in favour of the writ petitioner, should not be given retrospectively and only prospective effect should be given. He further submits that the date should be the date from the date of passing of the order not from the date of making such application.

(3.) Having heard the respective contentions of the learned senior counsel I am of the view that the Municipal Authority on receipt of the application dated 20/12/1990 should have at least given a reply to the writ petitioner that the present application would not be disposed of by reason of the fact that the same was not made to the appropriate authority. At least this minimum courtesy from the statutory authority particularly an official of the stature of the Commissioner can reasonably be expected. However, the Commissioner himself remains silent and thereafter the petitioner has approached this Court with this grievance in the year 1991, of course, on receipt of the order of valuation which is under challenge before me.