- (1.) THIS is an appeal against judgment and order dated 29th November, 2005 of the learned Single Judge of this Court who has allowed prayer of the respondent club declaring that the surcharge on consolidated rate under section 171 (4) of the Kolkata Municipal Corporation Act, 1980 is not leviable and/or recoverable from the petitioner club in respect of the premises no. 33b, Chowringhee Road, Kolkata (hereinafter referred to as the said premises ). The case in the writ petition is that the respondent club is the owner of the said premises. The club is a limited company and all the members thereof are using the same for residential purposes. Though the club is a corporate body the members thereof are contributing to the coffer of the club and income therefrom is distributed and/or utilized for the benefit and welfare of the members of the club no outsider is allowed to use it either on payment or on gratis. Therefore, there has been mutuality in income, surplus and loss of the club. In support of this case the respondent club had annexed to its writ petition the memorandum of association, articles of association and the balance sheets. In spite of the aforesaid mode of user the Corporation Authority has valued treating the same as being commercial user for the purpose of imposition of rates and also to levy the surcharge. It is alleged that on the basis of the valuation in the past the surcharge was realised and club had to pay in the fear of harassing measure being taken against it. Now the club has challenged that the surcharge under the Corporation law is not leviable and it is not obliged to pay. The case of the Corporation Authority is that upon inspection and hearing the valuation was made and for a long time on the basis of the valuation the corporation Authority has levied and/or imposed rates and also surcharge under the law. There was no objection at any point of time and such imposition of rates as well as commercial surcharge has been accepted. Upon hearing both the parties learned Single Judge, while giving declaration as above, came to the conclusion based on the materials placed before him that the members of the club are not using it either for commercial purpose or for non-residential purpose. It is held by him further that the rooms and/or part thereof are used by the members themselves and it is not let out to the outsiders. It is further observed by the learned Single Judge that though the club is a separate juristic entity, the members of this club are synonymous with its members and they are the body and soul together.
(2.) MR. Das Adhikari, appearing for the appellant, contends that the findings of the learned Single Judge are erroneous on the facts and circumstances of this case as this property was valued from time to time and no objection thereto was raised and as such the Corporation rates and taxes were levied and requisite surcharge was also imposed at the rate of 50% of the annual valuation from the day when the commercial surcharge was introduced to be levied. The corporation authority thereafter proposed the annual valuation of the said building at a sum of Rs. 1,92,000/- in or about November, 1996 with effect from 4th quarter of 1990-91. This valuation was objected to by the club and hearing was given. The authorized representative duly appeared at the time of hearing and made submission before him. In course of hearing authorized representative of the club admitted that the members are hiring part of the premises for their personal/family party, ceremony etc. Therefore, it is clear on the basis of the admission that the said building of the club is attracted with the provisions of section 171 sub-section (4) for imposition of surcharges. He has produced, in support of his submission, xerox copies of the records of the hearing of the above case. He contends after hearing the said proposed valuation it was found that the building is used as commercial purposes and as such the proposed valuation of Rs. 1,92,000/- was not changed.
(3.) IN view of the aforesaid findings of the Hearing Officer it is no longer open to the petitioner club to ask for the relief as prayed for. The findings of the hearing Officer is not challenged in the writ application. According to him, the learned Single Judge, therefore, erred to hold otherwise than the findings of the Hearing Officer which remains unchallenged. Moreover, he contends that there was no material before the learned Trial Judge to come to a different findings from that of the Hearing Officer. The aforesaid valuation could have been challenged by filing an appeal as provided under the statute and without exhausting this remedy the writ petitioner has approached this Court under article 226 of the Constitution of India. He contends that the grievances raised by the club respondent in the writ petition unmistakably suggest the disputed question of facts as well as of law.;