- (1.) Heard the learned Advocates appearing for the parties.
(2.) Assailing the order dated 26th February, 2010 passed by the learned Trial Judge in W.P. No. 1147 of 2005, this appeal has been preferred. The impugned order reads such: The Court: The subject matter of challenge in this writ petition is a valuation made by the KMC at Rs. 5 lakh for the quarter commencing from 4th quarter of the financial year 2001-02. The KMC by its notice dated 13th December, 2002 proposed the annual valuation of Rs. 6,78,830/-on the following amongst other grounds: i) Revision in area and/or rise to market value of land. ii) Increase in estimated annual rent (less statutory allowance for repairs) on account of (a) redevelopment, addition, alteration or improvement, (b) rise of rent since last valuation, (c) change of the nature of use. The writ Petitioner filed an objection dated 11th January, 2003. In the objection not a word dealing with the grounds of revision was spent. The KMC in its affidavit-in-opposition in paragraph 5 sought to justify the valuation made at Rs. 5 lakh on the grounds as follows: In the enquiry I was found a portion of the premises is being used as Nursing Home etc., by the tenant. However, the portion of the premises is being used for non-residential or commercial purpose being a Nursing Home and as such, the same is a factor for letting out value of the premises for the purpose of determination of Annual Valuation. Considering these aspects including the objection an fresh inquiry report, the Annual Valuation was fixed at Rs. 5 lac and now the Petitioner, if aggrieved by the such fixation, is required to approach the Tribunal for challenging the same. In the affidavit-in-reply the aforesaid allegations to be found in the affidavit-in-opposition were not dealt with. Therefore, prima facie the grounds assigned by the KMC for upward revision of the valuation appear to have some justification. Learned Advocate appearing for the Petitioner, however, drew my attention to sub-paragraph (e) of paragraph 3 of the affidavit-in-reply affirmed by one Mr. Masih on 11th September, 2007 wherein the following statements were made: (e) The Petitioner through their authorized representative, M/s.Talbot & Co. filed a similar objection as was filed against the fixation of annual valuation with effect from 1989-90. It was also specifically noted that there has been no change either in the nature of use of the subject premises or in its occupation since the earlier general revaluation. There has also not been any enhancement of rent or in the additional and alternation in the subject premises. As such as per the provisions of the said Act the Municipal Authorities was intended to enhance the annual valuation of the subject premises by 20% upto the existing annual valuation". Learned Advocate appearing for the Petitioner submitted that since an identical objection was taken to the proposed assessment in the past which found favour with the KMC there was no reason why the same reasoning should not have been adopted this time. This submission of the learned Advocate is not acceptable. It is well-settled that in the matter of taxation previous assessment cannot create any estoppel nor is the principle of res judicata applicable. If any authority is needed, reference may be made to the judgment in the case of Maharana Mills Pvt. Ltd. v. Income Tax Officer, Porbunder, 1959 AIR(SC) 881. Therefore, this submission of the learned Advocate for the Petitioner is rejected. Considering that the Petitioner did have the right to prefer an appeal against the valuation this petition is disposed of by granting the Petitioner leave to prefer an appeal within three weeks from date. In the event such appeal is preferred within the aforesaid period, the same shall be treated to have been filed in time. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(3.) Assailing the. annual valuation for the quarter commencing from 4th quarter of the financial year 2001-02, the writ application was moved alleging inter alia the breach of principle of natural justice on the foundational fact that in the notice as served asking to file any objection with reference to such annual valuation as was fixed as Rs. 6,78,830/- ground for annual valuation only was taken as increase in estimated annual rent on account of redevelopment, addition alteration or improvement which was mentioned in the reverse page of the notice under ground for revision in the annual value assessed, but annual valuation was fixed taking note of change of nature of use by considering the use of one portion of the premises as nursing home by the tenant. It is the contention of the writ Petitioner/Appellant that the nursing home was already existing at the stage when annual valuation was made prior to the present annual valuation and this issue of change in use was considered at that time. However from the writ application, opposition and reply and from the records of the Hearing Officer, it appears that in the notice there was no ground mentioned about the reason for such proposed annual valuation namely on ground of "change of nature of use", but in the objection as filed by the Petitioner/Appellant before us, a categorical contention made about the unauthorised occupation of south-eastern block by one Mr. N.K. Chatterjee and at the time of hearing the writ Petitioner/ Appellant submitted the documents of eviction suit which was in the appeal stage at the material time. The documents relating to title appeal No. 61 of 1992 was filed. Copy of Memorandum of title appeal has been produced before us. From the grounds as taken in the said title appeal being ground No. II, IV, XII, XX, XXX, XXXIV and XL. It appears that facts of illegal construction by the tenant as well as the use of premises as nursing home were taken categorically in the grounds for eviction of the concerned tenant. Those grounds are set out hereinbelow: II. For that the learned Judge ought to have held that the Defendant committed diverse breaches of the terms of the tenancy because inter alia, he wrongfully and illegally constructed a gate in the main boundary wall causing material deterioration and damage to the demised premises and thus he committed acts contrary to the provisions and Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act; IV. For that the Defendant has caused nuisance and annoyance to the Plaintiff and, though his tenancy covers and extends only to the ground floor room measuring 96'x 40' and first floor room measuring 166.4 x 40', he has been mala fide and illegally using the second floor of the said premises to which he has no right; XII. For that the Defendant opened a Nursing Home on the first floor of the suit premises without the Plaintiffs permission and, in making the Nursing Home, the Defendant caused many changes and alterations against the terms of the tenancy causing damage and injury to the suit premises ; XX. For that in converting the entire first floor building into a Nursing Home the Defendant made substantial additional structures and constructed a kitchen, urinal, bath and privy and partitioned the first floor by partitions fixed permanently in the walls and floors; XXX. For that the learned Judge ought to have held that the Defendant wrongfully and illegally constructed several rooms including kitchen, bath, privy and also made other substantial additions or alterations to the suit premises and thereby became liable for eviction; XXXIV. For that the learned Judge erred in not holding that the Defendant after forcibly occupying the second floor further started and began a Nursing Home in the name and style of Sree Sree Mahananda Brahmachari Seva Pratisthan which is contrary to the terms of the agreement of tenancy ; XL. For that the learned Judge should have held that in running a business under the name and style of Sree Sree Mahananda Brahmachari Seva Pratisthan the Defendant was acting in violation of the terms of tenancy.;