SUDIP KUSARYE Vs. KOLKATA MUNICIPAL CORPORATION

JUDGEMENT

(1.) The writ petitioners/assessees have prayed for a writ of Mandamus to command the respondents to set aside and cancel the assessment orders of the Hearing Officer -XIII KMC dated April 25, 2019 by virtue of which assessments of premises No. 144A Rashbehari Avenue, Kolkata-700029 were made for 4 periods starting from 3rd Quarter 2001 till the period starting from 2nd Quarter, 2013.

(2.) The writ petitioners claim to be the co-owners of the premises no. 144A Rashbehari Avenue, Kolkata-700029 (for short" the said premises") which is a three-storeyed building. The petitioners further claim that the said property is partly occupied by the tenants and the remaining portion is occupied by the petitioners for their residential purpose. Petitioners received the hearing notices containing the proposals for enhancement of annual valuation of the said premises in respect of four assessment periods. Petitioners filed Written Objection against the proposed annual valuations and attended the hearing through a learned advocate. The Hearing Officer passed the orders dated April 25, 2019 thereby confirming the proposed annual valuations.

(3.) Mr. Banerjee, learned advocate for the petitioners contended that the authorities of the Kolkata Municipal Corporation (for short "KMC") sought to revise the Annual Valuations for the periods starting from 3rd Quarter, 2001 till the beginning of 2nd Quarter, 2013 by issuance of notices all dated January 21, 2019 when the same has become time barred in view of the decision of the Hon'ble Division Bench of this Court in the case of Sahujain Charitable Society and Others vs. The Kolkata Municipal Corporation and Ors. reported at 2018 (3) CHN (Cal) 328. He also contended that the principles of natural justice has been grossly violated as the writ petitioners did not get an effective opportunity to file written objections to the proposed Annual Valuations. By referring to the provisions of Sec. 174 of the Kolkata Corporation Act, 1980 (for short "the Act"), Mr. Banerjee contended that the annual value is to be determined on the basis of the gross annual rent at which such premises might be reasonably expected to let from year to year. By placing reliance upon the decision of the Hon'ble Supreme Court in the case of India Automobiles (1960) Ltd. vs. Calcutta Municipal Corporation and another reported at (2002) 3 SCC 388, Mr. Banerjee contended that actual rent received cannot be the sole criteria for determination of the annual valuation. He also relied upon the unreported decision of the Hon'ble Division Bench in the case of Commissioner, Kolkata Municipal Corporation and Ors. vs. Hastings Property and Ors in APO No. 213 of 2004; WP NO. 1050 of 1996 delivered on 11/2/2011 with regard to the interpretation of the word "reasonably expected rental" appearing in Sec. 174. Mr. Banerjee submitted that the decision making process was vitiated as the Hearing Officer did not take into consideration the aforesaid wellsettled legal position. Mr. Banerjee further contended that the Hearing Officer erroneously clutched on to the jurisdiction by not appreciating that the revision of assessment for the periods in question cannot be made as it had become time barred. He placed reliance upon the decision of the Hon'ble Supreme Court of India in the case of Raza Textiles Ltd. vs. Income Tax Office, Ranpur reported at (1973) 1 SCC 633 in support of his contention that the petitioners are entitled to a writ of certiorari as the Hearing Officer had clutched onto the jurisdiction by deciding the jurisdictional fact erroneously. Mr. Banerjee concluded by submitting that the case on hand falls within the exceptions carved out by the Hon'ble Supreme Court of India in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai reported at (1998) 8 SCC page 1 and the existence of alternative statutory remedy cannot be a bar in invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. He also contended that the precondition for deposit of the property tax as laid down under Sec. 189 (6) is also onerous.