- (1.) The writ petitioner is before us as appellant aggrieved by the refusal of learned Single Judge to intervene with the orders of the Chairman of Dum Dum Municipality. The admitted facts are that the present appellant and the party respondent are the owners of two adjacent plots of land. On the joint application of these two persons i.e. the appellant and one Smt. Mousumi Chatterjee seeking amalgamation of their respective plots to the Board of Councillors of Dum Dum Municipality, the said Municipality allowed the amalgamation. For the reasons best known to the parties, there seems to be some difference of opinion between the parties. Therefore, the appellant/writ petitioner alone approached the said Municipality seeking separation of the two plots on the ground that the Board of Councillors of Dum Dum Municipality or the Chairman as provided under sub-section 6 of Section 108 of the West Bengal Municipal Act, 1993 could intervene and pass the orders. However, the Chairman of Dum Dum Municipality rejected the prayer for splitting up the two amalgamated holdings on two grounds i.e. want of authority since no express provision provides in the West Bengal Municipal Act or the Rules framed thereunder to split up the plots of land once amalgamated and secondly, all the interested parties have not given consent at the time of hearing of the application for splitting up of the amalgamated plot.
(2.) Learned Judge after referring to submissions made across the Bar on behalf of the appellant and the respondent Municipality, since the private respondent did not take part in the proceeding rejected the writ petition on the ground that Chairman was justified in declining the request of the applicant since there was no joint application. In order to appreciate the controversy raised before us, it would be just and proper to refer to Section 108 with all sub sections thereunder; 108. Unit of Assessment - (1) Every building together with the site and the land appurtenant thereto comprised in a holding shall be assessed as a single unit : Provided that where portions of any building together with the site of the land appurtenant thereto are vertically divisible and are separately owned so as to be entirely independent and capable of separate enjoyment, notwithstanding the fact that access to such separate portions is made through a common passage or a common staircase, such separately owned portions may be assessed separately : Provided further that the right of such access is protected by a registered deed of agreement. (2) All lands or buildings, to the extent these are contiguous or are within the same curtilage or are on the same foundation and are owned by the same owner or co-owners as undivided property, shall be treated as one unit for the purpose of assessment under this Act (3) Each residential unit with its percentage of the undivided interest in the common areas and facilities, constructed or purchased and owned by or under the control of any housing co-operative society registered under the West Bengal Co-operative Societies Act, 1983 (West Ben. Act XLV of 1983), shall be assessed separately. (4) Each apartment and its percentage of the undivided interest in the common areas and facilities in a building within the meaning of the West Bengal Apartment Ownership Act, 1972 (West Ben. Act XVI of 1972), a declaration in respect of which has been duly executed and registered under the provisions of that Act, shall be assessed separately. (5) Every land, which is not built upon, comprised in a holding shall be assessed separately as a single unit. (6) Notwithstanding anything contained in the foregoing provisions of this section, the Chairman-in-Council may, on its own or upon an application, amalgamate or separate lands or buildings or portions thereof so as to ensure conformity with the provisions of this section and may also apportion the valuation and assessment among the co-owners according to the value of the respective shares when the entire land or building is treated as a single unit.
(3.) Definitely, this process is incorporated in order to provide easier process for assessment of units. Reading of Sub Sections 1 to 6 with the proviso thereunder clearly indicate that Sub Section 6 is an exception to the general provisions under Sub Sections 1 to 5 of Section 108.;