- (1.) This revisional application is directed against order dated 13th May, 2008 passed by the Municipal Assessment Tribunal, Kolkata in M.A.A (Municipal Assessment Appeal) No.34 of 2006. By the order impugned the Assessment Tribunal has reduced the valuation of the property as assessed by the Hearing Officer and being aggrieved thereby the petitioner Kolkata Municipal Corporation has filed this revisional application before this Court. The Opposite Party Sri Rathindra Nath De Sarkar is the owner of Premises No. 25A, Baishnabghata Road, Kolkata-700 047 under Ward No. 100 (hereinafter referred to as the said premises) and is an assessee in respect of the said premises under the Kolkata Municipal Corporation having Assessee No. 21-100-03-0071-1. In terms of the provisions of the Kolkata Municipal Corporation Act 1980 (hereinafter referred to as the said Act), the Hearing Officer-1 by his order dated 1st December, 2005 determined the annual valuation of the said premises at Rs.26,000/- (Rupees Twenty Six Thousand) only, with effect from 1st quarter 2003- 2004. Being aggrieved by the said fixation of annual valuation, the Opposite Party herein preferred a statutory appeal before the Municipal Assessment Tribunal, Kolkata which was registered as M.A.A No. 34 of 2006. Municipal Assessment Tribunal by its order dated 13th May, 2005 allowed the appeal of the opposite party by reducing the annual valuation of the said premises at Rs.18,060/- (Rupees Eighteen Thousand Sixty) only, on contest.
(2.) In filing this revisional application there has been a delay and for which the petitioner made a composite prayer for condonation of such delay in Paragraph 5 of the revisional application the petitioner has stated the reasons for such delay and has submitted that for the ends of justice such delay should be condoned. Revisional application was admitted by this Court long ago. From the judgment and order passed by the Appellate Tribunal it appears that the premises is a two-storied building with an additional room on the 2nd floor. Covered area in the ground floor is 1212 square feet whereas the area of the room on the 2nd floor is 150 square feet. The learned Appellate Tribunal has recorded that the appellant in his evidence submitted that during 4th quarter 2000-2001 there was a tenant in the ground floor at a rental of Rs.2,500/- (Rupees Two Thousand Five Hundred) only, per month and annual valuation of the premises was fixed at Rs.25,060/- (Rupees Twenty Five Thousand Sixty) only, with effect from 4th quarter 2000-2001. Tribunal came to a finding that the letting value of the premises during 4th quarter 2000-2001 was considered by the Kolkata Municipal Corporation at Rs.2,320/- (Rupees Two Thousand Three Hundred Twenty) only, per month. The said amount was fixed for the entire premises including rented portion and owner's occupied portion. Opposite party has stated that the said tenant who used to pay a rent of Rs.1500/- (Rupees One Thousand Five Hundred) only, per month vacated his tenancy and this fact had also been intimated by the appellant/Opposite Party to the petitioner KMC submitting A-75 form. So, according to the opposite party, it was an undisputed fact that during 1st quarter 2003-2004 that is the period during which the appeal was pending the entire premises, that is, ground floor, 1st floor and room on the 2nd floor came under the occupation of the owner and the owner used the premises for residential purposes. It was argued by the appellant/Opposite Party that annual valuation whatsoever had been fixed by the Kolkata Municipal Corporation during 4th quarter 1994-1995 for the selfsame premises when there was tenant but when the premises was entirely occupied by the owner, it should be revised for the present period of appeal, that is, the 1st quarter of 2003-2004. It has been recorded by the Appellate Tribunal that appellant/Opposite Party submitted Xerox Copy of the Rate Card wherefrom it appeared that during 4th quarter 1994-1995 the annual valuation of the premises was Rs.3,400/- (Rupees Three Thousand Four Hundred) only. This argument, however, has not been accepted by the learned Tribunal. Tribunal held that during 4th quarter 2000-2001 when annual valuation of the premises was fixed at Rs.25,060/- (Twenty Five Thousand Sixty) only, which remain unchallenged, letting value of the tenanted portion, which was used for non-residential purpose was considered at Rs.1,050/- (Rupees One Thousand Fifty) only, per month and the letting value of the owner's occupied portion comprising 1st floor and the room on the 2nd floor measuring 150 square feet was considered at Rs.820/- (Rupees Eight Hundred Twenty) only, per month. Tribunal held that if the letting value of the owner's occupied portions was considered at Rs.820/- (Rupees Eight Hundred Twenty) only, per month, it cannot go back to the annual valuation fixed for the period of 4th quarter 1994-1995 which was Rs.3,400/- (Rupees Three Thousand Four Hundred) only. Tribunal further held that the entire premises came under the occupation of the owner and is used for residential purpose. In such a situation the Tribunal concluded that since there had been no tenant during 4th quarter 2000-2001 letting value of the premises would be Rs.820+700=1520/- (Rupees One Thousand Five Hundred Twenty) only. Tribunal considered Rs.120/- (Rupees One Hundred Twenty) only, as the letting value for the room with asbestos shed on the 2nd floor and letting value for the owner's occupied area at Rs. 700/- (Rupees Seven Hundred) only, aggregating total letting value comprising 1st floor and 2nd floor at Rs.820/- (Rupees Eight Hundred Twenty) only, with effect from 4th quarter 2000-2001. Tribunal considered the letting value of the ground floor at Rs. 700/- (Rupees Seven Hundred) only, per month as the ground floor is identical to that of the 1st floor. Tribunal considered the letting value of the entire premises at Rs.1,672/- (Rupees One Thousand Six Hundred Seventy Two) with effect from 1st quarter 2003-2004. Accordingly, Tribunal determined the annual valuation at Rs. 1,672 x 12 - 10%= 18,057.60 rounded off to Rs.18,060/- (Rupees Eighteen Thousand Sixty) only. With such finding and reducing the annual valuation the Tribunal allowed the appeal.
(3.) In this revisional application the petitioner Kolkata Municipal Corporation has contended that it is the admitted position that the covered area in the ground floor is 1212 square feet and the covered area at the 1st floor is also 1212 square feet. There is a room having covered area of 150 square feet on the 2nd floor. Therefore, total covered area at the premises is 2574 square feet. It has been strenuously argued by Mr. Mukherjee on behalf of the Corporation that it is an admitted position that the tenant at the ground floor was paying rent at Rs. 2500/-per month during the period with effect from 4th quarter 2000-2001 and the annual valuation was determined at Rs. 25,060/- (Rupees Twenty Five Thousand Sixty) only. Such valuation remained unchallenged. He further submits that such annual valuation at Rs. 25,060/- (Rupees Twenty Five Thousand Sixty) only, was accepted by the Opposite Party. Now, the question arises here even after ground floor tenant leaves the tenancy whether the annual valuation remains the same. Fixation of annual valuation is made under Section 174 of the Kolkata Municipal Corporation Act, 1980. The provisions of Section 174 is quoted below:- "Section174. Determination of annual valuation (1) Notwithstanding anything contained in the West Bengal Premises Tenancy Act, 1956 (West Bengal Act XII of 1956) or in any other law for the time being in force, for the purpose of assessment to the (property tax), the annual value of any land or building shall be deemed to be the gross annual rent including service charges, if any, at which such land or building might at the time of assessment by reasonably expected to let from year to year, less an allowance of ten percent for the cost of repairs and other expenses necessary to maintain such land or building in a state to command such gross rent: (Provided that there is a transfer, inter vivos, of ownership of any land or building since the last preceding periodical assessment under Section 179, the annual value of such land or building shall be fixed at seven and a half percent of the amount stated in the deed of transfer as consideration for such transferor, if no consideration is stated in such deed of transfer, at seven and a half percent of the estimated market value thereof:) (a) Where the gross annual rent does not exceed six hundred rupees, by thirty per cent; (b) Where the gross annual rent exceeds six hundred rupees but does not exceed eighteen thousand rupees, by such percentage of the gross annual rent as is worked out by dividing the gross annual rent by six hundred and subtracting the quotient form thirty-one, the difference being rounded off to the nearest place of decimal: (Provided also) that no such reduction in gross annual tent shall be madea) In case the total covered area in any land or building under occupation for residential purpose by the owner exceeds one hundred and fifty square meters, or b) Where a person owns or occupies for residential purpose more than one plot of land or building or portions thereof within the municipal limit of Kolkata. ..." Mr. Mukherjee draws the attention of this Court to the provisions of second proviso to the aforesaid Section 174 of the said Act. Second proviso says that no such reduction in gross annual rent shall be made in case of total covered area in any land or building under occupation for the residential purpose by the owner which exceeds 150 square meters. In the present case the covered area of the building is more than 150 square meter. In such a situation once the owner admits certain rent to be a reasonable rent for a particular area, he cannot subsequently withdraw the same even in case of non-continuation of the said area by the tenant. Once certain amount of rent has been admitted by the owner to be a reasonable amount of rent for a certain given area according to his own assessment, he cannot be allowed to take a different stand when the area under his occupation exceeds 150 square meter. Therefore, the annual valuation which was made by the Hearing Officer, based on the rate of rent admitted by the owner, appears to be justified. Assessment of annual valuation does not depend upon the owners getting rent from the tenant but it depends upon the valuation of the property and the possible income derivable therefrom by way of rental or otherwise. The owner is the best person to fix the rental of his own premises and accordingly, what has been found reasonable by him, he has let out the premises on such rate of rent and that rate has been accepted by the Hearing Officer. The said admitted rate of rent will be considered for the purpose of determination of annual valuation provided the area under occupation of the owner for his residential use exceeds 150 square meter. Therefore, this Court does not find any justification for the learned Appellate Tribunal to reduce the annual valuation as assessed by the Hearing Officer of the Kolkata Municipal Corporation.;