Apeejay Surrendra Park Hotels Ltd.& Anr vs Kolkata Municipal Corporation & Ors

Protik Prakash Banerjee, J

The Court : Let the order dated August 14, 2019 stand corrected and read 'AIR 1939 Privy Council page 98' in the place of 'AIR 1939 Supreme Court'. The order dated August 14, 2019 shall stand corrected as above and this order shall form part of the order dated August 14, 2019.

The supplementary affidavit affirmed by Mr. Siddhartha Saren on August 20, 2019 which has been filed within time is taken on record.

Mr.Gupta resumes his submissions. He has taken me through the fields of legislation which were already existing and continued to exist when Part IXA of the Constitution was enacted in exercise of the constituent powers of the Union Legislature. He has shown me that despite the said amendment made with effect from April 24, 1993, the provisions of the 7th schedule to the Constitution of India more particularly entries 5 and 49 of the second list have not been amended, replaced or substituted. They continued to exist. He has also explained the arrangement of the fields from entry 45 to entry 63 of the list 2 of the 7th schedule which relate to fields of legislation relating to revenue. According to Mr.Gupta, when no particular mode has been separately prescribed in the Act of 1980, but there is a sister legislation as far as revenue is concerned, which gives a complete procedure of assessing the market value, it is open to the Corporation to adopt such other procedure. He further submits that where such a procedure exists in a sister legislation made by the same legislature on the same general subject, such as, in this case tax or revenue on land and/or vacant land and valuation of property, it is not required for the legislature to separately set it out in the Act of 1980 or even incorporate the procedure of the other sister statute by reference; he promises to cite the judgments on this subject subsequently. He has submitted that the Indian Stamp Act, 1899 as amended in West Bengal is such a statute and that from the affidavit filed today affirmed by Mr.Saren, it will be clear that the estimation of the market value of the unassessed land being vacant land was made on the basis of the valuation which the authorities under the Indian Stamp Act had accepted being the consideration set out in the deed of lease which was higher than the value otherwise assessed by the said authority. This has been taken as market value and there is no statute which requires that a lower valuation than that set out in the indenture as consideration has to be taken as the valuation.

He has placed a particular endorsement and notes in the affidavit filed today to show that whatever was required under due procedure of law has been done by his client in order to arrive at that estimation of market value under Section 174 (2) of the Act of 1980 as unamended and even if I disagree with the particular quantum, in judicial review, my powers are limited and thus it is not my opinion as to what is the correct valuation which ought to prevail but whether the valuation made by the respondent authorities has considered all the relevant materials on record and all that ought to have been considered, provided it is not such, as no reasonable man should have arrived at on the selfsame materials. Mr.Gupta has invited to consider me whether any such perversity can be said to exist in the matter and has submitted that there is none.

I had raised a question that in the presence of Article 243 ZX whether it was possible for Mr. Gupta's client be resurrect the provisions of Chapters XII to XVI of the Kolkata Municipal Act, 1980 in a case where the legislature had not in so many words conferred the power to collect tax on levy it by relying upon the Indian Stamp Act under Article 243 X(a), particularly, in the presence of Article 243ZF, even after expiry of one year, no such amendment was made to the said provision, though other amendments were made.

Mr. Gupta very rightly points out that this is not a point which can be considered or raised in the present writ petition, since not only have the provisions of the Act, 1980 not been challenged as ultra vires but even the exercise of discretion under a provision of the statute in the face of such constitutional amendment was not challenged. The point may be interesting to the Court but it must be brought before this Court after due process but at the time of final hearing when the respondents have almost concluded his submissions, no amendment can be allowed for bringing thereon record.

I must respectfully agree with Mr. Gupta's submission and grant him time to come back on the next date with the judgement that he relies upon. This is in case of a sister enactment, the procedure does not have to be recorded in another statute. It is expected that Mr. Gupta will conclude his submission on the next date of hearing.

List this matter on September 18, 2019 as a first matter irrespective of other matters.