Tarun Chatterjee, J. - (1.) This application under Article 227 of the Constitution has been moved against the judgment and/or order made by the Municipal Assessment Tribunal in Municipal Appeal No. 149 of 1991 dismissing the appeal filed under section 189 of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as "the Act") against an order passed by the Hearing Officer-IV, Calcutta Municipal Corporation (hereinafter referred to as "the Corporation") determining the annual valuation (apportioned share) of premises No. 1 Crooked Lane, Calcutta at Rs. 6,53,720/- in respect of the period commencing from the fourth quarter of 1986-87 affirming the order of the Hearing Officer.
(2.) The facts leading to filing of this application under Article 227 of the Constitution are as follows: The petitioner is a registered partnership firm and at the material point of time, it was the owner of a space measuring about 6053 sq.ft. on the first floor (eastern block) in a two storied building (premises No. 1 Crooked Lane, Calcutta). An agreement was produced by the petitioner before the Hearing Officer which was kept on record from which it appears that by the said agreement entered into by and between the petitioner and Bank of India. The Bank of India was inducted as a tenant under the petitioner in respect of the aforesaid space of the said premises. The said agreement provided inter alia, that the landlord would be paid a composite amount by the Bank. The case of the petitioner before the Hearing Officer as well as before the appellate tribunal was that this composite amount paid by the tenant included not only the rent but also a reasonable and fair compensation for some of the obligations which the petitioner agree to perform on behalf of the Bank viz. the following: (i) To pay the occupier's share of the consolidated rate determined by the Corporation so as to absolve the Bank from any obligation to reimburse the petitioner in respect thereof; From this condition, it is, therefore, an admitted position that the petitioner waived their right to recover the occupier's share of the tax from the Bank in terms of section 230(a) of the Act. (ii) To pay commercial surcharge payable by the Bank to the Corporation to as to absolve the Bank from any obligation to separately reimburse the petitioner in respect of payment of such commercial surcharge; (iii) To render certain services such as provision for Guard, Sewerage, day to day maintenance etc. The said apportioned share of the said premises became the subject matter of inter mediate re-valuation under section 180(2) of the Act for the period commencing from the fourth quarter of 1986-87 and the annual valuation proposed in respect of the said apportioned share of the said premises for the -said period was determined at Rs. 6,53,720/- by the Hearing Officer of the Corporation on 10th March, 1988. Feeling aggrieved by this order, the petitioner preferred an appeal before the Municipal Assessment Tribunal (hereinafter referred to as the "Tribunal"). The Tribunal by the impugned order inter alia, came to a conclusion that there was no scope of deducting commercial surcharge or half of the consolidated rate as claimed by the petitioner before it. Accordingly, the Municipal Appeal filed before the Tribunal was dismissed. It is this order of the Tribunal which is now under challenge in this application under Article 227 of the Constitution.
(3.) We have heard Mr. P.K. Ghosh for the petitioner and Mr. Partha Bose for the Corporation. After hearing the learned counsel for the parties and after considering the judgment under appeal, I am of the view that a short question is involved for decision in this application which is as to whether in the determination of annual value under section 174, taxes paid by the owner on behalf of the tenant are to be deducted from the gross amount paid by the tenant to the owner for the purpose of computing "rental value" of the aforesaid premises and as to whether expenses incurred by the landlord in providing services and amenities to tenant are to be deducted in arriving at the said "rental value"? In my view, this application under Article 227 of the Constitution moved against the aforesaid appellate order of the Tribunal must succeed and the order impugned must be set aside. Reasons are as follows : It is not in dispute that the petitioner out of the total amount of Rs. 7,20,360/- received per year from the Bank as rent calm deduction of the average annual expenditure incurred on different accounts were as follows: JUDGEMENT_52_LAWS(CAL)2_1999_1.html According to the petition, the aforesaid amount spent for and on behalf of the Bank must be deducted in calculating the annual rent of the said premises. Mr. Ghosh, appearing on behalf of the petitioner submitted before me that in view of the two decisions of this Court reported in 69 CWN 237 Corporation of India v. M/s. Indian Exchange Ltd. and the case reported in 73 CWN 961, James Finlay and Company v. Corporation of Calcutta expenses incurred by the petitioner as landlord for providing amenities and facilities to the tenant (Bank) under the contract of tenancy should be deducted only from the monthly rent for the purpose of arriving at the "rent proper". Mr. Ghosh therefore, contended that annual value of the said premises ought to have been determined by the Hearing Officer only on the basis of the "rent proper". He further contended that the determination of Hearing Officer of the annual value of the said premises as affirmed by the Tribunal was illegal arbitrary and without jurisdiction as in determining the annual value of the said premises, both the Tribunals below acted in erroneous exercise of jurisdiction by taking as basis for such determination and inflated amount which was erroneously regarded as rent although the said amount included besides "rent proper" the consideration for the additional obligation taken by the landlord to be discharged on behalf of the Bank such as (a) occupier's share of consolidated rate (b) commercial surcharge and (c) expenses to provide the services and amenities. It was next contended by Mr. Ghosh that even though the Tribunal had dismissed the appeal of the petitioners but on similar facts situation judgments were delivered by the Tribunal in which the relief claimed by the petitioner as indicated above was allowed even though the appeals were under the Act. Some orders passed by the Tribunal in connection with the aforesaid point were also produced namely (1) MAA 6/1987 Subol Chandra Pal v. Calcutta Municipal Corporation , (2) MAA 174/1999 S. Chatterjee v. Calcutta Municipal Corporation and (3) MAA 454 of 1998 Dilip Mukherjee v. Calcutta Municipal Corporation .;