AI Structured Summary
Not yet generated for this judgment
Judgment
Arinda Sinha, J
Petitioner is widow of late owner of the property at premises 103A, Acharya Prafulla Chandra Road, Kolkata - 700 009. Mr. Raut, learned advocate appears on her behalf and files affidavit-of-service. He submits, his client is admittedly 50% owner of the property. Application for probate of Will made by her late husband has become a contentious cause. Order of appointment of joint receivers in the probate proceeding was appealed against. A Division Bench of this Court by order dated 11th September, 2012 modified the order appointing receiver, for petitioner to be appointed sole receiver over the property. He draws attention to receipt dated 16th March, 2018 issued by the Corporation acknowledging payment of Rs.32,761/- towards rates and taxes for 4th quarter 2017-2018 in respect of the property. He submits, respondent no.4/bank is only tenant in the property occupying a major portion thereof. Referring to annexure "P-1", being letter dated 5th May, 2010 sent by Assistant General Manager to Senior Manager regarding payment on account of KMC tax and commercial surcharge from April, 2007 to December, 2009, sanctioned at Rs.2,29,658/- he submits, the bank did not make the payment. In the circumstances, he seeks interference against impugned notice signed on 26th June, 2018, for rent attachment. He submits, claim in excess of Rs.61 lakhs as outstanding is an unsubstantiated sum based on purported revision in annual valuation, representation against which has been made by his client, a helpless lady of 85 years. He relies on judgment of Supreme Court in Anthony C. Leo - Versus - Nandlal Bal Krishnan reported in (1996) 11 SCC 376, paragraph 28.
Mr. Mukherjee, learned advocate appears on behalf of the Corporation. He draws attention to direction, in said Division Bench order, for payment of Kolkata Municipal Corporation dues on rates and taxes in respect of the property, by leaving it open to petitioner / receiver to meet such statutory obligations by withdrawing money from the account to be opened by her in the bank (tenant). He too relies on Anthony C. Leo (supra), inter alia, on paragraph 29 to submit, statutory right of his client to attach rent payable by occupier cannot be curtailed on plea of petitioner of having been appointed as receiver over the property. He also relies on judgment of Supreme Court in Siliguri Municipality - Versus - Amalendu Das reported in AIR 1984 SC 653, paragraphs 3 to 5. He submits, therein Supreme Court had circumscribed power of Court to interfere with demand for recovery made by the municipality.
Affidavit-of-service shows bank has been served but goes unrepresented. Documents disclosed in the petition show sanction, by the bank, of Rs.2,29,658/-against payment of KMC tax and commercial surcharge for period of April, 2007 to December, 2009. Petitioner in paragraph 16 has said bank failed and neglected to pay monthly rental, occupier's share of municipal taxes and commercial surcharge, in compliance with agreed terms and conditions embodied in lease deed dated 8th September, 2011. The other document relied upon by petitioner is said receipt for tax paid in respect of 4th quarter 2017- 2018. Taking these two documents together and petitioner's aforesaid statement in paragraph 16, what transpires is that upto December, 2009, at least, taxes were paid. In between there may have been default and enhancement of annual valuation. This information should have been uploaded in the systems of the Corporation. This, because the Corporation issued receipt on 16th March, 2018 for 4th quarter 2017-2018. The receipt, if issued because the information was not fed into its system then the information regarding accumulation of arrears has to be on discovery on or after 16th March, 2018 as made by the Corporation itself. On perusal of impugned notice for rent attachment, Court is unable to discern particulars regarding basis of the demand for arrear tax at excess of Rs.61 lakhs.
There is the other question regarding whether there can be attachment of rent as provided under sections 225 read with section 195 in Kolkata Municipal Corporation Act, 1980, over property, which is 'custodia legis'. In Anthony C. Leo (supra), facts were that a tenant was seeking to use a room as under permit, for serving liquor. The suit was filed in the Original Side of Bombay High Court. There was demolition directed by trial Court, which was confirmed in appeal. On appeal to Supreme Court, preferred by the tenant, said Court said what it did in the paragraphs relied upon. Relevant passage from paragraph 29 is reproduced below: -
"Since the properties in a suit is being managed, maintained and administered by the court through the receiver, the receiver is under an obligation to take all reasonable steps for preservation and maintenance of such properties. If for such preservation, action is civil or criminal court is necessary, the receiver is to draw the attention of the court of relevant facts necessitating such legal action and take leave of the court to institute appropriate legal proceedings for the preservation of the property.
As the property does not vest free from encumbrances in custodia legis by annulling all rights and obligations attached to the property, the receiver cannot interfere with any right of the third party."
Here the question is whether rent accruing in the property under receiver can be attached without leave obtained in the suit, where receiver was appointed and continues. Propriety demands for the Corporation to have applied for leave before issuing the notice. More so since, by letter dated 31st May, 2018, petitioner had informed the Corporation. Text of the letter is reproduced below:-
"I do hereby informing you that I Smt. Snehalata Khag and my husband Late Sambhunath Khag were the co- owner of the premises No -103A, A.P.C. Road, Kolkata - 700 009 and assessee no -110380100150 hereby informing you that our above mentioned premises valuation was Rs.2,18,750/- (Rupees Two Lac Eighteen Thousand Seven Hundred Fifty only) and paying quarterly taxes Rs.32761/- but now this month I received your tax bill Rs.11,85,170/- (Rupees Eleven Lax Eighty Five Thousand One Hundred Seventy only) and charged tax per quarter Rs.1,78,825/- which is beyond our imagination.KMC made one sided assessment of our premises.
An United Bank of India, Garpar Branch is only our tenant which is operated by and old fare of rent because our building our under trail, case pending under Calcutta High Court and Honable Calcutta High Court imposed a receiver to collect rent from tenants and landlord has no right to collect rent from the tenants and receive and loan from bank.
Our some arrear payments to LMS is already due but we could not mitigate due to non-receive any loan from bank. But in this moment after receiving your current tax bill we found there is a heavy mistake onehalf of your one sided assessment.
So we request you to re-assesse the premises and arrange to correct your valuation that we can able to pay taxes." (Emphasis supplied)
In Siliguri Municipality (supra), Supreme Court found order of interference on restraining municipality from recovering a graduated consolidated rate on the annual value of the holdings in terms of applicable provisions in Bengal Municipal Act, 1932 as made by a learned Single Judge of this Court, without reason. Such order was affirmed by a Division Bench of this Court. Hence, Supreme Court said what it did in paragraph 4 of the judgment.
However, it is not necessary to decide whether the Corporation can enforce its notice of attachment of rent without having obtained leave from the Court, which appointed receiver over the property, in respect of which there are arrear rates and taxes due to it. Impugned notice does not even mention the quarters, in respect of which the outstanding is claimed at in excess of Rs.61 lakhs. Court in good conscience cannot sustain such a notice in view of aforesaid disclosures regarding payment of taxes up to December, 2009 and receipt produced for payment of rate and tax against 4th quarter 2017-2018. As such, impugned notice for attachment of rent is set aside. The Corporation is at liberty to move in accordance with law, to recover its arrear rates and taxes. Court has noticed absence of respondent / bank. Court adversely presumes against said respondent as having caused this situation of rates and taxes having accumulated in arrears, if at all. Petitioner will obtain and serve a copy of this on respondent / bank who is directed to forthwith make upto date payment on rents etc. to petitioner, acting in capacity of receiver, to enable her to ascertain from the Corporation, its outstanding and liquidate the same, under protest or without prejudice, if need be.
Mr. Mukherjee submits, no affidavit has been used by his client and therefore, the allegations cannot be deemed have been admitted. His submission is accepted.
With above directions, this writ petition is disposed of.