- (1.) THE core issue in the appeal is whether section 174 (4) of the Calcutta Municipal Corporation Act, 1980 is ultra vires Constitution of india.
(2.) THE premises in question situated at 29, Rabindra Sarani formerly known as 150, Lower Chitpur Road, Calcutta is owned by a public charitable trust called Rai Bahadur Bissessurlal Motilal Halwasiya Trust. Mrs. Laxmi v. Mansata, Mr. Narendra V. Mansata, Mr. Suryakant V. Mansata and Mr. Jitendr V. Mansata took tenancy of the southern portion of the said premises at a monthly rent. The cinema hall known as 'naaz' was administered by the members of the Mansata family. The trust received R. 20,300/- by way of rent from different tenants in the said premises. The annual valuation of the building was assessed at 42257a, as reflected in the demand notice for 4th quarter 1968-69. The annual valuation was subsequently raised to Rs. 82941/- after allowing statutory induction. Against the raising of the annual valuation from Rs. 82941/- to Rs. 1,96,968/- the trust filed an objection. On hearing the contentious matter, the Special Officer VIII assessed the valuation at Rs. 1,25,874/ -. Against the contemplated revision of the tax structure, the trust filed an application. Instead of taking the actual rent received by the trust into account, the Hearing Officer, reassessed the annual valuation of the said premises. Ignoring the representation of the trust, as contained in its letter dated 29th June, 1987, the annual valuation of the premises in question was assessed at Rs. 202677/ -. Challenging the re-fixation application under Article 226 of the Constitution was filed. The learned single Judge was pleased to pass an interim order in terms of prayer G and H of the writ petition restraining KMC from realizing the tax in terms of the purported order dated 10th August, 1987. KMC went ahead with reassessing the annual valuation. Again the proposed assessment of the annual valuation of the said premises at Rs. 313940/- for the period commencing from 4th quarter 1986-87, the trust filed an objection. The annual valuation was mainly based on the sale proceeds from the cinama hall. Applying the same principle, the annual valuation was subsequently raised to Rs. 601410/ -. Resorting to the same practice, the annual valuation was assessed at Rs. 683970/- with effect from 4th quarter 1998-1999. The purported order dated 29th August, 2002 passed by the Hearing Officer XII was challenged in the writ petition. Dubbing the provision of section 174 (4) of the Calcutta municipal Corporation Act as unconstitutional and void, the petitioners prayed for issuance of writ prohibiting the respondent Nos. 1 to 6 from giving any effect to the purported notice dated 29th August, 2002. Judging from the aspect of the legislative competence and act of discrimination, the learned Single Judge viewed the aforesaid provision contained in 174 (4) as ultra vires of the Constitution. The judgment has been challenged in the instant appeal.
(3.) APPEARING on behalf of the appellant, Mr. A. K. Das Adhikari, learned counsel has submitted, that the Constitutional validity of section 174 of the calcutta Municipal Corporation Act, 1980 having been settled once for all in the case of Roma Sur vs. State of West Bengal, reported in 95 CWN (I), the question of Constitutional validity of the provision contained in section 174 of the Calcutta Municipal Corporation Act should not have been reopened before the learned Single Judge in writ application. Since the Constitutional validity of the provision of section 174 has been upheld in the case of Roma sur vs. State of West Bengal (supra), the validity of the Constitutional provision of section 174 of the Calcutta Municipal Act should not have been gone into by the learned Trial Judge. The case of Delhi Cloth and General Mills Co. Ltd. vs. Shambhu Nath Mukherjee, reported in, AIR 1978 SC 8, has been cited by Mr. Das Adhikari to substantiate his contortion that where a competent Court, declares a particular provision as intra vires and repelled the objection under Article 14 of the Constitution, it would not be permissible to raised that question again by submitting that a new ground could be raised to sustain the objection. The Constitutional validity of section 174 of the Calcutta Municipal Corporation Act, 1980 having been decided once for all in the case of Roma Sur vs. State of West Bengal (supra), the learned trial Court not have allowed the writ validity of section 174 of the Calcutta municipal Corporation Act, 1980 having been decided once for all in the case of Roma Sur vs. State of West Bengal (sapra), the learned Trial Court should not have allowed the writ petitioner to rake up the settled issue in another writ application.;