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Judgment
This writ petition has been moved on service. Yesterday it was dismissed for default, but then it was restored on being mentioned shortly thereafter.
Two short but very interesting points have been raised in this Article 226 petition. Firstly, whether the Board of Councillors of the Hooghly-Chinsura
Municipality have jurisdiction under section 106 of the West Bengal Municipal Act, 1993, as amended, to outsource the act of determining the annual
valuation of property to the Rent Controller appointed under the provisions of the West Bengal Premises Tenancy Act, 1997 as alleged to have been
done by it by way of a Memo No. 4773(2) Mut-UM dt. 14.11.2006 appearing on page 34 of the writ petition. Secondly, what is the meaning of the
non-obstante clause in section 106 of the 1993 Act?
Prima facie, I find that such statutory provision does not give jurisdiction to the municipality to either delegate such essential function to the rent
controller or have someone other than the municipality determine annual valuation, especially since the provision is notwithstanding anything contained
in the West Bengal Premises Tenancy Act, 1956. It shall, however, have to be determined whether this is also non-obstante the 1997 Act which has
replaced the 1956 Act. It is also true that the said provision of the Act does not specify who is the authority and who shall make such determination;
however, under section 106(1)(a) the procedure of determination of gross annual rent on the basis of which the assessment of property tax and annual
value are to be determined can be made only by rules (indicated by use of the words “as may be prescribedâ€).
On behalf of the municipality Mr. Ghosh submits that there is some dispute as to whether Annexure P7 to the writ petition is authentic or not. He
further submits that only a typed copy has been given without even the date of the memo being furnished at the top left of the memo. Mr. Ghosh
further submits that his instructions are that a physical verification was made by the municipal authorities and only thereafter was a proposed annual
valuation indicated to the writ petitioner and after considering his objections made in writing, the annual valuation was finalised and determined in
respect of the property in question and property tax calculated and demands raised in accordance with the same. It is also submitted by Mr. Ghosh
that part-payment has been made by the petitioners in respect of such demands. Mr. Chowdhury submits that this payment was made without
prejudice and under objection and protest. However, it is not denied that no opportunity of personal hearing was given to the petitioners.
The memo number I have quoted above pertains to the distribution copy which appears just before the names of the persons to whom the copies have
been forwarded. The Writ Petitioner’s learned counsel and the learned counsel for the respondent municipality authorities, seek time for obtaining
proper instructions. Hence instead of giving time to bring oral instructions, I believe it is fit and proper if the municipality is directed to file a short
affidavit-in-opposition within three weeks from date explaining the facts of the case as also disclosing the records; reply, if any, two weeks thereafter.
The matter shall be listed in the monthly list of August 2018 for hearing. In the meanwhile, since I find strong prima facie case in favour of the writ
petitioners as aforesaid and on the basis of the pure question of law as to jurisdiction, I hold that prima facie the act of the municipality in outsourcing
the work of determination of annual valuation to the rent controller is wholly without jurisdiction on the face of records.
Hence there shall be an interim order in terms of prayer (c) of the writ petition to be in force till September 30, 2018 or until further orders, whichever
is earlier, subject to the following condition â€" the petitioners shall file an undertaking by way of an affidavit that in case the writ petition fails,
ultimately they shall make payment of the entire amount demanded by the municipality along with interest as admissible under law, without the
requirement of any further step being taken by the municipality. This order is restricted to the scope of this writ petition and shall not affect the
pendency of any other writ petition by the writ petitioners in respect of any other cause of action against the municipality. Certified website copy of
this order, if applied for, shall be given to the parties on the usual undertaking.