Amitava Lala, J - (1.) This writ petition is made for restraining the enforcement of notice issued by the Govt. of West Bengal on 15th October, 2001 being annexure P-4 to the writ petition. By such notice public in general was intimated that unless the registration is made within one year from the date of construction of the building or any part thereof or the transfer of possession of such building within 21st January, 2002, whichever is later the concerned party or parties will have to compulsorily pay building tax according to Section 4 of the law of Building Tax of 1996 to the tune of 5% of the annual value (i.e. market value) of the transferred building or the part thereof. Although such notice came out in the local newspaper much before but challenge was thrown by affirming an affidavit in support of the writ petition only on 16th January, 2002. That apart it has come to the notice of this Court that the petitioners had obtained possession of the respective lands in 1998. However, the petitioners have contended before this Court that a completion certificate obtained by them only on 15th of May, 2001 that too by an order of the Court. Therefore, their right, if any, for making such application arose only after having such completion certificate.
(2.) Two sections of said Act are very relevant for the purpose. First of such Section is Section 2(e) by which meaning of "owner" as defined as follows:- "(e) "Owner" means any person- (i) Who has constructed a building in his own name or in the name of any other person under the authority of such person for the purpose of transfer of the possession or ownership, of such building or part thereof, otherwise than by way of any instrument registered under the Registration Act, 1908 (16 of 1908), and where such person does not use or occupy the building or part thereof himself, or (ii) Who in occupation or possession of such building or part thereof, or who uses such building or part thereof, and delivery or transfer of such possession, or ownership, of such building or part thereof, has been made to him, otherwise than by a conveyance referred to in clause (10) of Section 2 of the Indian Stamp Act, 1899 (2 of 1899), and registered under the Registration Act, 1908, but does not include any person who is in possession of such building or part thereof, or who uses such building or part thereof, as a bona fide tenant."
(3.) Therefore, it appears that the notice under challenge was issued in consonance with such definition clause under the Act. Therefore, the same cannot be construed that unless and until a completion certificate has not been obtained by the flat owners they are not covered by the Act. They can only avoid the scope and ambit if they are bona fide tenant which is not the case of the petitioners at all.;