- (1.) In this writ petition, M/s. Victor Apartments Private Limited, and its Directors, have challenged the order dated 2nd July, 2003 passed by the Hearing Officer-XI of the Kolkata Municipal Corporation enhancing the annual valuation from Rs. 26,680/- to Rs. 1,99,800/- on the ground that it was passed without giving an opportunity of hearing and without assigning any valid reason. Challenge has also been made to the Letter of Intimation dated 5th November, 2008 intimating the petitioners to pay the municipal tax dues amounting to Rs. 15,16,412/- including penalty accruing from 22nd March, 2003. The writ petition, which was affirmed on 14th January, 2009, was moved on 19th January, 2009 when directions were issued for filing of affidavits. Order was also passed directing the parties to maintain status quo and the authorities were also directed not to resort to any coercive measures against the petitioners. Pursuant to the directions, parties have filed their affidavits and are on record.
(2.) Mr. B.R. Bhattacharya, learned Senior Advocate and Mr. Supradip Roy, learned Advocate for the petitioners, reiterating the statements in the writ petition submitted that while passing the impugned order dated 2nd July, 2003, no proper hearing was granted. Though section 184(3) of the Kolkata Municipal Corporation Act, 1980 (for short "the Act") postulates that notice has to be given to the occupier, no such notice was given to Krishna Agencies, an occupier on the said premises and the impugned order was passed on the basis of the rent derived from the said occupier. Moreover, though the impugned order refers to a report, however, the report has not been disclosed as evident from the order itself. Therefore, the impugned order and the consequent Letter of Intimation dated 5th November, 2008 intimating that there are dues to the tune of Rs. 15,16,412/- are illegal. On a query it was submitted that till date no dues have been paid. So far as the undertaking given by the petitioners as evident from annexure P6 to the writ petition, it was submitted that it was withdrawn by letter dated 10th December, 2008 issued on behalf of the petitioner.
(3.) Mr. Biswajit Mukherjee, learned Advocate appearing for the Kolkata Municipal Corporation, has submitted that the challenge to the order dated 2nd July, 2003 by filing a writ petition is not warranted under the law as the petitioners should have preferred appeal before the Kolkata Municipal Assessment Tribunal as stipulated under the proviso to section 189(5) of the Act within forty five days from the date of receipt of the certified copy of the impugned order which they had received on 8th January, 2004. Since no appeal was preferred, the impugned order passed by the Hearing Officer had become final under section 190 of the Act and therefore, challenge to the same is belated. Moreover, though an order can be challenged in a writ jurisdiction on the ground that either it was in violation of the principles of natural justice or the authority lacked jurisdiction, however, since it is evident from the impugned order that hearing was granted and as in the petition there is no averment that the Hearing Officer lacked jurisdiction, the petition is misconceived. So far as the Letter of Intimation dated 5th November, 2008 is concerned it has been submitted that challenge to the same is without basis as it is the outcome of the impugned order dated 2nd July, 2003. That apart though the petitioner was granted an opportunity to file objection to the Letter of Intimation, no objection was filed. Submission was though the petitioner on 26th November, 2008 by a written undertaking undertook to pay the municipal dues in installments, no payment has been made. The allegation of coercing the petitioners to file such undertaking is baseless as no complaint was lodged with the law enforcing authorities. The argument, as evident from paragraph 6 of the affidavit in reply, that appeal could not be preferred as the petitioners were unable to deposit the taxes is contrary to the provisions contained in section 189(6) of the Act and the settled principles of law.;