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Judgment
Rajasekhar Mantha , J
The Court : The lessee claims to be aggrieved by a modified valuation effected by the Kolkata Municipal Corporation. It is submitted that on the basis of a Lease Deed between the private respondent/landlord and the petitioner, a portion of the tax liability of the lessee/petitioner in respect of the said premises which is included in the lease rent component, has automatically fallen on the writ petitioner.
The petitioner relies upon a judgment of the Hon'ble Supreme Court in the case of Calcutta Gujarati Education Society and Another vs. Calcutta Municipal Corporation and Others; reported in (2003) 10 SCC 560, paragraph 51 set out hereinbelow:
" 51. As a result of the discussion aforesaid, we find no vice in any of the provisions of the Act although we have considered it necessary to interpret the provisions harmoniously for better application of the provisions of the Act and the Tenancy Act. The various legal provisions assailed before us have been interpreted by us and our conclusions are as under:
(1) In view of specific provisions of the Act and as the provisions of the Act impose burden of tax to an appreciable extent on the tenants, sub-tenants and occupiers and the tax is liable to be recovered from them through the landlord or directly by attachment of rent or other coercive modes, the tenants, sub-tenants and occupants are entitled to an opportunity to participate in the process of valuation and assessment. They are entitled, therefore to written notices apart from public notice for assessment, revision of assessment or amendment of assessment of the 'consolidated rate' or tax. It is also made clear that pursuant to the pubic notice or written notice, the returns submitted by the tenant, sub-tenant or occupier, with regard to determination of annual value shall be considered by the Corporation. The same procedure would be followed in revision of the annual valuation.
(2) It is further made clear that non-issuance of public notice or notices and/or non-service of written notices to the 'persons primarily liable' would not necessarily invalidate the proceedings of assessment or reassessment or amendment of the valuation for consolidated rate unless it is established by the party aggrieved that a serious prejudice was caused to it for want of notice.
(3) Under the provisions of the Act since the tenant, sub-tenant or occupier have to share the burden of an appreciable portion of 'consolidated rate' exclusive or inclusive of 'surcharge' in relation to properties used for non-residential and commercial purposes and as the Act provides for opportunity of participation to them pursuant to a public notice and written notice in assessment and reassessment of tax, they have a right of appeal provided under the Act. It is made clear that tenants, sub-tenants and occupiers held liable for payment of a portion of tax have a right of appeal on predeposit of a portion of tax levied and made recoverable from them.
(4) It is also made clear that to enable the tenant, sub-tenant or occupier as 'person liable' to pay 'consolidate rate', they would have a right to obtain necessary information on payment of requisite fee in accordance with Section 178 of the Act and corporation authorities are legally bound to furnish such requisite information."
It is argued on behalf of the petitioner by relying on the aforesaid judgment that the K.M.C. ought to have given notices to the lessee/petitioner prior to revaluation of the property. This Court sees that the landlord was duly given notice and was heard. If the landlord was of the view that the valuation was inappropriate or that the notices ought to be given to the writ petitioner, he was to have made appropriate submission or must be deemed to have given notice to the writ petitioner/lessee.
If the landlord knowing fully well of the obligation of the third party i.e. the writ petitioner, therefore, has acted at his own peril and the hence notices of the demand raised by the K.M.C cannot be faulted. The dispute therefore is essentially between the writ petitioner/lessee and the lessor/private respondent landlord.
It is submitted that the writ petitioner had a civil suit is pending between the landlord and the writ petitioner in this regard, being CS No. 191 of 2019.
The principal lis in the instant writ petition can therefore be addressed in the aforesaid civil suit. The notices of demand raised by the Corporation and the impugned order, therefore, cannot be faulted and must be complied with by the assessee. Admittedly the K.M.C had no notice of any agreement between the petitioner and the private respondent/ landlord.
This Court's mind is not free from doubt that the instant proceedings may have been set up by the landlord to deprive the K.M.C of its lawful dues.
In those circumstances, the impugned notice of demand is not interfered with.
It is, however, made clear that the grievances of the petitioner/landlord, if any, in respect of the valuation may be heard under the K.M.C. Act (in terms of Section 189) subject to upfront payment of the entire demand raised by the K.M.C.
The rights of the writ petitioner, if any, against the landlord are also not dealt with in the instant writ application may be suitably agitated by the parties in appropriate proceedings either pending or to be initiated.
With the aforesaid observations, WP No. 592 of 2019 stands disposed of.
No order as to costs.
Urgent certified copies of this order, if applied for, be made available to the parties upon compliance of requisite formalities.
It is also clarified that the greivance of the petitioner as regards tax on tax as laid down in the decision of the Hon'ble Supreme Court in the case of CMC vs. Motilal Naresh Kumar; reported in 2007(2) CHN 143 (SC) is also kept reserved for being dealt with in the aforesaid proceedings under Section 189 if any.