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Judgment
Protik Prakash Banerjee, J
The Court: I had adjourned the matter on August 7, 2019 so that the parties could produce before me the reverse of the bills said to have been raised against the superior lessor - which it was alleged had been challenged only by the tenants of the present petitioner - to ascertain the grounds for the increase in valuation, and for Mr. Arindam Banerjee to produce the statute relating to multistoried buildings in West Bengal.
When the matter was taken up today, the learned advocates for the Respondent no. 1 submitted that they did not have the office copy of the bills so raised on the superior lessor apparently because the bills were all computer generated and the originals were sent to the superior lessor whereas the server/mainframe only has the data pertaining to each assessee on record and therefore the current print-out will not be the copy of the one which was sent to the superior lessor but only contain the same particulars. Hence, it was not possible for the respondent no. 1 to produce the reverse of the said bills. Mr. Mukherjee led by Mr. Ashok Kumar Banerjee, the learned Senior Advocate, submitted that the petitioner could be called on the produce it. When I reminded him that the petitioner had submitted before me on an earlier date, that the Petitioner had no copy of the bill which was not raised upon him and that he had no notice of hearing served on him as stated in paragraph 4 of the writ petition, the learned advocates for the respondent no. 1 placed before me today WP No.166 of 2014 where the petitioners themselves have challenged the hearing notices both in the cause-title and in the prayer portion. A prayer for certiorari was sought in that writ petition, for quashing of the said bills. Naturally, unless copies of the bills (raised on the superior lessor) are annexed to the petition, no such prayer would have been maintainable. This shows that the petitioners had copies of the complete bills at least before they instituted that earlier writ petition and so ought to have produced the said bills. This ought to have been disclosed by the petitioners instead of taking contrary stand before this Court pretending as if they had no copy the hearing notice.
Once this aspect of the matter was brought before the Court, Mr. Banerjee submitted that the entire case can be resolved and the writ petition disposed of, if the assessment of the building was completed in accordance with law where the stakeholders were all given due notice and bills were raised accordingly. He submits that if the same is done, the liability of the assessee in respect of the said building would crystallize and hence, the amount that the present petitioner paid under the valuation which was set aside, could be refunded with interest and whatever was due after the fresh assessment could be paid by the person liable.
It thus appears that the writ petitioners have re-stated their case today. Now, the principal challenge of the writ petitioners is that the amount that the petitioners say was paid under a valuation which has been cancelled has not been restored but in anticipation of future assessment the respondents are not returning the amount. The fresh assessment is contingent upon treating the petitioners as a single occupant of a single room and on assessing the liabilities which may or may not be foisted on the several tenants under the superior lessor but directly under the present petitioners. The stand taken today by the petitioners is subtly different from the stand taken by them before the Hon'ble Appeal Court challenging an order of the learned Co-ordinate Bench who had disposed of the matter. At that point of time the fact that it was only the lack of refund which had brought the petitioners to the Court was disputed. Now that the petitioners have been confronted with the writ petition filed by them challenging the hearing notices given to the superior lessor and alleged by them to have been challenged by the tenants and not by them, the writ petitioners have said that all that they want is that the assessment be completed in accordance with law after hearing and disposing of their objections including that they should be liable only for the single room in their occupancy after giving due opportunity of being heard to all stakeholders.
So far as the second point for which the matter had been adjourned is concerned Mr. Arindam Banerjee, learned Advocate for the petitioner fairly submits that though multi-storied buildings were defined under the provisions of the West Bengal Multistoried Buildings Act, 1979, the same has been repealed.
I am told by Mr. Banerjee, learned advocate appearing for the petitioners that page 40 of the affidavit-in-reply discloses an order at the instance of the tenants where the assessment was stayed while the writ petition was disposed of with a direction to initiate fresh assessment in accordance with law by following the provisions of the judgment cited therein. The said order appears to have been made as an interim measure though the application itself stood disposed of by it, as recorded in subsequent paragraphs of that order.
By the said order passed by a coordinate bench, the respondent no. 1 was directed to initiate fresh assessment by following the provisions of the judgment in the case of Calcutta Gujarati Education Society and Another-v- Calcutta Municipal Corporation and Others reported in (2003) 10 SCC 533.
Mr. Arindam Banerjee relied upon paragraphs 23 and 24 of the said judgment to contend that each tenant - though not primarily liable - was entitled to separate notice whereas Mr. Ashok Kumar Banerjee, learned Senior Advocate, relied upon paragraph 25 of the said judgment, to contend that this was not essential in case of tenants of multistoried buildings. The said paragraphs 23, 24 and 25 are quoted below:
"23. The learned counsel appearing for the Corporation submits that in the city of Calcutta, there are such large number of multi-storeyed buildings that service of individual notice to each tenant, sub-tenant as also to all the occupants of such buildings and giving them opportunity of hearing at every stage would not only be a marathon exercise involving insurmountable practical difficulties and bottlenecks but would make the whole process highly cumbersome, if not, impossible in finalising the assessment within a reasonable time. It would also put the Corporation to such a colossal establishment expenditure which may be more than the actual amount of tax that might be levied and found recoverable.
Such argument cannot be accepted. The underlined* portion of the provisions of the Act is required to be followed and it grants effective participation to tenants, sub-tenants and occupants who, pursuant to public notice or written notices, approach the competent authority by raising objections and claim opportunity of hearing in the course of proceedings. We, therefore, find that the provisions of the Act allow full and effective participation to the tenants, sub-tenants or occupants in the process of assessment of consolidated rate.
Taking into consideration, however, the practical difficulties, particularly, concerning multi-storeyed buildings occupied by several tenants, sub-tenants and occupants, a mere non-issuance and/or service of public and written notices to all individuals concerned who are "persons primarily liable or liable", would not be treated by the authorities concerned and courts as invalidating the consolidated rate determined and apportioned on various persons regarding such building/buildings unless a serious prejudice is found to have been caused to the persons aggrieved."
I find that the words 'multi-storeyed buildings' were used by the Hon'ble Supreme Court. Though the West Bengal Multi-storeyed Building Act, 1979 defined a multi-storeyed building as a building of five-storeys and more, in 1998, however, the Act stood repealed and, therefore, the words 'multi-storeyed building' must be given their ordinary meaning of being more than one-storeyed. If that be the case, assessment in accordance with law would necessarily mean that the Hon'ble Supreme Court has been pleased to excuse the service of notices individually on each tenant in a multi-storeyed building and notice affixed at any conspicuous portion of the building in question which would allow the persons concerned and stake-holders who avail of an opportunity of being heard would be sufficient. Non-service of individual notice on each tenant and sub-tenant of the building will not vitiate the proceeding. In the instant case, the persons whom the petitioner wants served are sub-tenants of the building, since they are allegedly tenants under the petitioner, which is itself a lessee under the superior lessor which is the assessee. Therefore, in accordance with law, and following the provisions of the said judgment would not mean service of separate notices to each tenant and sub-tenant individually.
I therefore make an order in terms of the submissions of the petitioner made today about what is its principal grievance which ought to address the entire cause of action completely. I make it clear that the pendency of this writ petition shall not prevent the Corporation from completing the assessment of the said building after considering the representations of the petitioners as made out in this writ petition as an objection to the bill assessed for the entire building. The Corporation shall be at liberty to hear any tenant who may choose to appear before the Corporation on a date to be fixed by the Corporation by affixation on the walls of the building in question without having to give personal notice to each tenant in view of the fact that there are several tenants and it may be difficult to go and give personal notice to each of them.
Of course, the notice should indicate the time and the venue of the hearing and the reason why the hearing is being held and the ground, if any, of the proposed increase in valuation so that the opportunity of being heard is effective. The entire process shall be completed within a period of one month from the date of the notice being given by the Corporation in the above. The Corporation shall raise a bill on the petitioners for that which is assessed to be due and payable by the petitioners. Alternatively, the Corporation can raise a bill against the superior lessor and serve it on the petitioners as the persons responsible as also on the other tenants, if they are found to be liable, subject to the same being paid by the petitioners in the first instance and being realized from the other persons from whom they are entitled to receive the said amounts under statute.
The matter shall appear in the list once again two months hence when the parties shall report the status of assessment and the result of the proceedings as permitted to continue hereby and hereunder.