CIVIL

CALCUTTA SWIMMING CLUB AND ANOTHER Vs. KOLKATA MUNICIPAL CORPORATION [CHC]

It is settled position of law that due to laches and negligence on part of the learned Lawyers the litigant cannot be made to suffer.

(2010) 009 CALLT 6 : (2010) 004 CALLT 5

CALCUTTA HIGH COURT

DIVISION BENCH

( Before : Pratap Kumar Ray, J; Mrinal Kanti Sinha, J )

CALCUTTA SWIMMING CLUB AND ANOTHER — Appellant

Vs.

KOLKATA MUNICIPAL CORPORATION — Respondent

Civil Appllate Jurisdiction Original Side A.P.O. No. 379 of 2004 W.P. No. 174 2003

Decided on : 09-04-2010

Calcutta Municipal Corporation Act, 1980 – Section 171, Section 172, Section 174, Section 177, Section 179, Section 180, Section 182, Section 182(A), Section 182A, Section 184, Section 184(3), Section 184(4), Section 193, Section 193(1)(a), Section 195, Section 225
Constitution of India, 1950 – Article 285

Counsel for Appearing Parties

Bhaskar Sen, Mr. Samit Talukdar and Mr. T.K. Chaudhuri, for the Appellant;A.K. Das Adhikary and Mr. Sandip De for the Corporation, for the Respondent

JUDGMENT

Pratap Kumar Ray, JJ.—Assailing the judgment and order dated 6th July, 2004 passed in W.P. 174 of 2003 this appeal has been preferred. ‘The impugned order reads thus:

The Court: The first petitioner is a Club being association of a large number of individuals and the rest of the petitioners are the office bearers and/or member of the first petitioner. The Club is the lessee and under and registered deed of lease dated 1st February 1888 executed and registered by the Secretary of the State of India Council (now Government of India) v. in respect of a piece and parcel of land being 1, Strand Road, Calcutta-700 001 (hereinafter referred to as the said land) at and for consideration mentioned therein. The Club has since been in possession and/or occupation of the said land comprised of the said premises by erecting pucca structure.

The respondent Corporation has served notice dated 4th October 2002 along with four hearing notices dated 5th October 2002 addressing Garrison Engineer Eastern C.S.R., C.L.P. Government of India and the first petitioner as being persons responsible under Sections 184(3) and 184(4) of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as the said Act) fixing annual valuation of the said premises at Rs. 592,650/- with effect from 1st quarter 1984-85, 1986-87, Rs. 677,430/- with effect from 1992-93 and Rs. 781,750/- with effect from 1988-89.

In the notice and the bills the premises number has been wrongly mentioned as being 1/1 Strand Road, Calcutta. By the said notice objection was invited for hearing for fixing the annual valuation of the said premises. The petitioners filed objection however, at the time of the hearing the petitioner could not be present in view of the cease-work of the learned Lawyers. As such the matter was heard ex-parte and the valuation was made behind the back of the petitioners. Orders fixing valuation have been passed without showing any reason whatsoever. The grievance of the petitioners is that the notices are vague without any basis to which no effective objection could be raised as such the hearing shouts not have been taken pursuant to these impugned notices. Moreover, no demand for payment of Tax can be made as the property belongs to the Government and the petitioners are merely occupant as such under law no property tax can be imposed in relation to the said property. The 1 subsequent demands by raising bills are wholly without jurisdiction and ultra vires of the Act. The petitioners at no point of time were served with 1 any notice of hearing nor any bill was raised demanding payment of property tax. As such the order of valuation and the demand for payment of property tax must be set aside and quashed.

Affidavit-in-opposition has been filed stating that the owner of the property is Government but the petitioner being the lessee, is the occupant not the Government. As such they are liable to pay property tax as a lessee. It is stated further that from day one the petitioners as occupants were and are liable to pay property tax but no bill for such payment was raised by mistake. As such now bill for payment of Tax is raised with effect from 1st Quarter 1984-85. It is stated that under the law the property belonging to Government can be valued for the valuation sake but the payment of property tax is exempted so far as Government is concerned.

Since question was raised that at no point of time the: property was valued and there was no mutation in the name of the petitioners as a lessee in the records of the Municipal Corporation as such the Club cannot be a person responsible for payment of property tax, with the leave of this Court the respondent filed a supplementary affidavit enclosing xerox copies of the extract of the Assessment Register. It appears from these records that Club was recorded as a lessee and the aforesaid premises with structure was valued from time to time. As such the contention that the Club was never mutated nor the property was valued at any point of time is not correct.

The documents and entries made therein are of 30 years old and contemporaneous. I do not find any reason to disbelieve correctness of the entries. As such I hold that the Swimming Club was mutated and recorded as an occupier.

Mr. Bhaskar Sen learned senior advocate appearing with Bikash Ranjan Bhattacharya learned senior advocate and Mr. Samit Talukdar learned Advocate submits drawing my attention to Section 193 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the said Act) that the consolidated rate on lands and buildings shall be primarily leviable, in this case upon the lessor. Admittedly, the petitioners are occupying the property as a lessee pursuant to written instrument. Admittedly again the Government of India is the lessor/ownes of the land, Therefore, by virtue of Section 193 of the said Act the government is the Person responsible.

He contends that u/s 195 of the said Act the occupier may be Proceeded with for recovery of the property tax on failure of the person Primarily liable u/s 193. The Government cannot be treated to be person responsible in view of provision of Section 172 of the said Act whereby and whereunder it enjoys exemption from payment of consolidated rate (property tax) on the lands and buildings belonged to it. Question of failure of the Government to pay property tax does not and cannot arise and in sequel thereto the petitioners cannot be proceeded with nor the respondent can make any demand for payment under the law. Therefore, the demand for payment of the property tax from the petitioner in relation to land and buildings with retrospective effect from 1983-84 till today are wholly ultra vires of the aforesaid Act. Even assuming for arguments sake the valuation can be made or the property tax can be levied. The Hearing Officer has passed the impugned order without giving “reasonable opportunity of being heard, as the petitioners could not be represented due to failure of the learned Lawyers to appear before him, owing to cease work resorted to by the Bar Council of West Bengal. It is settled position of law that due to laches and negligence on part of the learned Lawyers the litigant cannot be made to suffer.

Mr. Ashok Das Adhikari learned Advocate appearing for the Municipal Corporation contends that it is true the Government cannot be asked to make payment as it enjoys exemption but there is no bar under the law to make valuation of the property. He contends further that this property was valued from time to time and from the records it reveals that from 4th Quarter 1968-69 this property was valued. Again this property was re-valued with effect from 4th Quarter 1974-75 and 4th Quarter 1980-81 respectively. Lastly it was valued on 18th June 1987 at a sun of Rs. 127,4011- therefore the contention of the petitioner that the property was not valued ever, is wholly incorrect.

He further contends that in this case the petitioner is liable to pay property tax as the land was leased out, not the structure that has been built and has been enjoyed by the Club. He draws my attention to Section 172 of the said Act and contends that the Government is exempted from paying any property tax in respect of open spaces including parade grounds. If the structure is built by the Government or if it is leased out to the third party then the said property together with building built thereon are certainly subjected to payment of property tax.

He further draw my attention to Section 177 of the said Act and submits that the building shall be separately valued and the owner of the building will not be entitled to any exemption from payment of property Tax under this Act. It is true that the Municipal Corporation did not make any revision of the valuation periodically after 1987 but the petitioner who is also the Assessee, is obliged under the law to make self-assessment in respect of the building under amended provision of Section 182(A) of the said Act and to pay property Tax pursuant thereto. He also contends that it is true that no bill was raised not to speak of payment therefor, even before impugned bills being issued. The petitioner urges, cannot take advantage of omission of the Corporation in levying property Tax on them. Therefore he contends that this Court will not interfere with the valuation already done by the hearing officer. The petitioner may resort to alternative remedy preferring appeal under the statute.

Having heard the respective contention of the learned Counsels the issues raised here primarily as follows:

(i) Whether the petitioners being the occupier as a lessee is liable to pay any property tax in respect of the Government land ?

(ii) If so since when they are liable to pay ?

(iii) Whether the impugned order and bills are sustainable under the law I as alleged by the petitioner?

It is the contention of Mr. Sen appearing for the petitioners that on 7th October 2000 the petitioners for the first time received notices for the purpose of annual valuation of this property with effect from 1984-85, 1986-87, 1992-93 and 1998-99. Mr. Sen also contends further that before the said notices were issued this property had never been valued nor the petitioner’s name had been recorded as an Assessee. I find this contention is not factually or legally correct. The Municipal Corporation has annexed contemporaneous records to the supplementary affidavit.

I find, as rightly contended by Mr. Das Adhikari that in the assessment register of valuation list of lands and buildings, the name of the owner has been recorded Garrison Engineer, Eastern Circle the Government of India Fort William as an owner, and the Secretary, Calcutta Swimming Club has been recorded as occupier, lessee in respect of this property. The annual valuation of the property was fixed upon hearing with effect from 1st Quarter 1968-69, at a sum of Rs. 115,635/- with effect from 4th Quarter 1974-75 and Rs. 127,401/- with effect from 4th Quarter 1980-81. All these valuations were settled and finalized upon hearing as it appears from the records. Therefore, the contention of the petitioners that for the first time the valuation is sought to be made is incorrect and the same is accordingly overruled.

Mr. Das Adhikari has rightly said that the Government is enjoined with privileges of the exemption u/s 172 Sub-section (1) Clause (iii) regarding open spaces, yet the property is to be assessed to annual valuation. Even the Government does not enjoy exemption from payment of consolidated rate in relation to the building. I cannot accept the contention of Mr. Sen that the petitioner club herein is exempted from paying consolidated rates, as it is the lessee/occupier in relation to the Government land. Section 177 of the said Act, which is quoted hereunder; makes it absolutely clear about mode and method of determination of annual valuation of the building and also payment of property tax.

177- Determination of annual valuation of building where land is exempted from consolidated rate. – Where any land is exempt from the consolidated rate under any law in force for the time being, the annual value of any budding, erected on such land, which is in existence for Sycamore than one year and is not entitled to any exemption from the consolidated rate under this Act or any other law in force for the time being, shall be determined separately from the land in accordance with the provisions of this Chapter.

Therefore, it is clear from the above section that the building erected by the petitioners shall be separately valued.

Mr. Sen’s contention that in this case the person responsible for payment of consolidated rates is the lessor/Government, by virtue of the provision: of Section 193 read with Section 195 of the said Act. If Section 193 is read carefully, it will appear that if the land or the building is let, primary liability rests upon the lessor. The word “or” mentioned in Sub-Section 1 clause (a) of the said section is disjunctive. Admittedly the building is not let out or leased out, which belonged to the petitioners. The provision of Section 193 is to be applied taking the provision of Section 177 of the said Act into consideration. Intrinsic purport of Section 193 is to levy and realize tax from the person having proprietary interest and control over the land or building. Here the land is leased out to the petitioners. As I have already observed that the Government enjoys exemption from payment of property tax in relation to the land not the building. As such the building of the petitioners is liable to be assessed for annual valuation. Consequently the petitioners are liable to pay the property tax on such valuation so fixed. So issue No. 1 is answered in the affirmative.

It appears as rights submitted by Mr. Sen that this valuation was made ex parte and no reason was assigned in the order of the hearing officer. Therefore, the valuation cannot stand under the law as the same was done in violation of principle of natural justice accordingly the valuation are, set aside.

Therefore, the hearing officer is directed to make a fresh valuation upon hearing the petitioners and passing speaking order. I observe that the petitioners should have made valuation under the amended provision of Section 182A of the said Act and, by not doing so the petitioners have certainly render itself to make payment of the property tax on and from 1st Quarter of 1995, prior to this period the Municipal authority has not been able to establish that any demand for payment of property tax was made from the petitioners.

The aforesaid valuation shall be made afresh within a period of 12 weeks from the date of communication of this order. This shall done provided the petitioners raise objection in writing pursuant to the notice given by the respondent for revision of annual valuation, if such objection has not been raised formally. The petitioners, however, shall deposit the properly tax without prejudice for each and every quarter of such amount, commencing from 1st Quarter of 1995, which shall be calculated of the valuation of Rs. 2 lacs. Thus the petition is disposed of without any order as to costs.

2. It was the case of the writ petitioners who are the Appellants before us that they had no liability to pay the property tax in respect of the land wherein the writ petitioners /appellants have constructed building and Swimming Pool, as land belongs to the Central Government which is exempted from property tax in terms of Section 171 Sub-section (6) of Kolkata Municipal Corporation Act, 1980. It is the further case that so far as the building as constructed therein since is over the land is exempted from property tax, the writ petitioner has no tax liability. Further contention raised that writ petitioners were never the Assessee of the Corporation on mutation of their names in the Corporation relating to the leasehold property.

3. The notice issued u/s 184 asking them to show cause with reference to the valuation made became the subject matter of challenge before the learned Trial Judge. From the impugned judgment it appears that the learned Trial Judge framed three issues. Amongst them the major issue is issue No. 1 which was addressed by the learned Trial Judge by holding infer alia that the writ petitioners being the occupier as a lessee was legally responsible to pay the property in respect of the government land. The other issues are co-related issue with reference to the issue No. 1. The Appellants before us the writ petitioners has assailed the said issue on the ground that the learned Trial Judge failed to appreciate the legal position so far as liability of payment of property tax of the Corporation and thereby has saddled the liability upon the writ petitioners in respect of the government land which admittedly exempted from the property tax of the Corporation. The point as urged before the learned Trial Judge has been urged before us.

4. This appeal has been opposed by the Kolkata Municipal Corporation by contending inter alia that even if the land is considered as a property exempted from the property tax of the Corporation but as the lessee, the writ petitioners-appellant, have already constructed a building therein including the swimming pool, the writ petitioners are liable to pay the property tax on account of the building and structure by determining the annual valuation of the same in terms of Section 177 of the said Act. It is further asserted that once the writ petitioners Appellant became the lessee, the property practically was transferred in their name as a leasehold property and as such any construction made herein in terms of the lease agreement, the writ petitioners are liable to pay the property tax and u/s 182 they had the duty to submit the returns enabling the Municipality to fix the appropriate property tax. It is further contended that whether land is a property, exempted from property tax, is required to be ascertained, more particularly for the reasons that in terms of the lease agreement of the year 1888 the land was handed over to the writ petitioners for construction of a swimming pool which is popularly known as Calcutta Swimming Club. It is contended that having regard to the provisions of Section 171 Sub-section (6), first proviso, the Corporation is required to ascertain the fact whether any tax could be levled as such land having regard to the prevalent condition before commencement of the act with reference to the liability of payment of property tax. Reference been made also to Article 285 of the Constitution of India to contend that leviability of the property tax is dependent upon the consideration of Act in terms of Clause 2 of Article 285 of the Constitution of India whereby thereunder the leviability of any property tax in terms of the statutory provisions as was existing before the commencement of the constitution was sanctioned and approved under the said Article. It was further contended that is not mantainable as only in the initial stage whereby and whereunder notice was served u/s 184, the writ petitioners approached the Writ Court. That so far as the earlier assessment prior to such assessment year of the concerned notice, the writ petitioners accepted the property tax as assessed and paid the same. From the impugned notice blunder Section 184 it appears that this notice was issued with reference to the annual valuation of the years 1984-85, 1986-87, 1992-93, 1998-99.

5. Having regard to the rival contentions of the parties now the only point for our consideration as to whether the learned Trial Judge was right to pass decision fixing liability upon the writ petitioner for payments of the property tax on account of the land, which became the subject matter of the first issue as framed and whether further direction of the learned Trial Judge directing the payments of Rs. 2 lakh without prejudice to the rights and contentions of the parties and thereby consideration of the issue afresh by the Corporation an hearing the respective parties was justified. To answer the point about the liability of the writ petitioners Appellants about payment of property tax at the lime of hearing, we intended to know the terms of 1st lease agreement by which the Swimming Club got right to use the land as lessee for the purpose of establishing a swimming club. Despite direction, the writ petitioners Appellants failed to produce the original lease agreement or any copy of such. ‘Ultimately this Court directed the respondent No. 8, the General ‘Officer “Commanding, Headquarters, Eastern Region having its office at Fort William to produce the original lease agreement. In response to that a supplementary affidavit was filed by the said respondent No. 8 annexing the xerox copy of the original lease agreement. The original lease agreement as was entered into in between the parties namely the Secretary of the State for India in Council who was called as the lessor of the one part and Sir Henry Leland Harrison, Knight, Sir Alexander Wilson, Knight, the Hon’ble William Macphesson, c.s. George Willian, Frederic Buckland, Esquire Robert Smart Keish, Donglas, Esquire James Kimber Esquire c.s., Arthur Frederick Honman v.Esquire, Robert Young Ramfry Esquire, Edward Jenemish Kind Esquire, Edwart George Cuming Esquire and Arthur Henry Wallis Esquire who were the members composing the Committee of management of the Calcutta Swimming Club being called a lessee of the other part. It appears that lease deed was executed on 1st day of February, 1888 in between those parties by Stipulating the different covenant thereon including the different do’s or don’ts. From xerox copy of the original lease agreement of the year 1888, it appears that the schedule of the leasehold property was a vacant land measuring more or less 4 bighas 7 cottahs and 15 chittacks as delineated in the map annexed thereto. From the covenant it appears that the lessee were permitted to construct any structure and building on consent of the lessee and the government of Bengal. It is further stipulated in the said lease agreement that the building as would be erected in terms of the agreement would remain as the property of the lessee and in the event any acquisition of the land including the building, the lessee would be entitle to get compensation for the building and structure as would be contructed. It is further stipulated that on termination of the lease: and/or expiry of the tenure of the lease, as the case may be, the lessee would be responsible to hand over the vacant land by demolishing structure and building as to the raised therein and lessee would be entitled to take all the properties named the structures as would be constructed therein including the building materials and others. This indenture of lease as was executed in the years 1888, subsequently was renewed several time by keeping the terms and conditions as usual. Hence the Swimming Club, the predent writ petitioner appellants are enjoying the property as a lessee. It is the admitted positional that over the vacant land which was the property schedule of the initial leassee agreement already a swimming club has been constructed including the structures and buildings on the area in question and as per the leassee agreement aforesaid which was renewed time to time, the writ petitioners Appellants was mentioned as owner of the building and structure as raised on the land in question. As such the writ petitioners Appellants cannot deny their liability so far as the property tax on the buildings and structures as I raised on the concerned land in terms of the Kolkata Municipal Corporation Act, 1980.

6. So far as the liability to pay the property tax on land which admittedly is the government Land, how to be considered by analysing whether learned Trial Judge was justified to conclude that the writ petitioners are liable to pay the property tax for the land also. On reading of the terms of lease I agreement, the right, title and interest over the land in question of lessor and lessee, could be determined for the purpose of identifying the liability to pay the property tax under the said Act. The lease agreement of 1888 reads thus:

This Indenture – made the. first day of February, one thousand eight hundred eighty eight Between The Secretary of State for India in Council herinafter called the lessor of the one part and Sir Henry Inland Harrison, Knight, Sir Alexander Wilson, Knight, the Hon’ble William Macphesson, c.s. George William, Frederic Buckland, Esquire Smart Keish Donglas, Esquire James Kimber Esquire c.s., Arthur Frederick Honman Esquire Robert Young Ramfry Esquire, Edward Jenemish Kind Esquire, Edwart George Cuming Esquire and Arthur Henry Wallis Esquire the members comprising the present Committee of Management of the Calcutta Swimming Bath hereinafter called the lessee of the other part Witnesseth that in consideration of the covenants on the part of the lessee hereinafter. contained the lessor doth hereby lease and demise unto the lessees, all that the price and parcel of land in the schedule hereto more particularly described and in the Map or Plan annexed hereto delineated and shown in red with liberty to erect thereon a building for use as a Swimming Bath accordance with plans and specifications already prepared and approved by the Government of Bengal, do have and to hold the said price till the parcel of land and premises unto the lessees upon the terms and conditions next herein after mentioned and whilst and so long, only as such terms and conditions shall be duly observed and performed by the lessees and provided such land shall not be required for any public purpose within the meaning of act of 1870, or any other act for the time; being in force relating to the acquisition of land for public purposes, such forms and conditions being as follows that is to say:

(1)___ that the lessees shall and will cause the said building to be completed in accorrdance with the said plans and specifications subject to any modifications which may hereafter be sanctioned by the Government of Bengal and shall not nor will at any time make any additions to or alterations in the structure of the said building without the written sanction of the said Government of Bengal first had and obtained.

(2)___ that the lessees shall not nor will at any time permit or allow the said building to be used for any purpose other than that of a swimming bath.

(3)___ that the lessees shall and will at all times keep the said building in repair to the satisfaction of the Superintendent of works, Calcutta or such other officer of the Public Works Department as the Government of Bengal may from time to time depute in that behalf and shall allow such officer at all reasonable times to have access to all parts of the used building for purposes of inspection Provided always and it is hereby agreed and declared that if the lessees shall make any additions to or alterations in the structure of the said building without such sanction as aforesaid and shall neglect or fail within one month after receipt of a written requisition in that behalf to remove such additions or alterations and restore the building to its original condition or if the lessees shall permit or allow the said building to be used for any purpose other than of a purpose of the said Swimming Bath without let or hindrance unless and until the said land shall be required for a public purpose and it shall be necessary or expendient to acquire the same under the provisions of act of 1870 B.C. or other the act relating to the acquisition of land for public purposes for the time being in force and that in the event of the land being required for any such purpose as aforesaid the lessees shall be entitled to receive as compensation the value of the building thereon erected under the terms of this agreement, such value to be assessed by the Superintendent of works, Calcutta or such other officer of the Public Works Deparment as the Government of Bengal may depute in that behalf and it is hereby lastly agreed and declared that in this case the term lessor shall mean and include the said Secretary of State for India in Council, has successors in office and assigns and any duly qualified officer of Government acting in the premises on his behalf and that the term lessees shall mean and include the said parties hereto of time second part their executors and administrators and their successors in office as member of the said Committee it being hereby agreed by and between the salary parties thereto that upon any change retirement or appointment of net member or members of the said Committee the responsibility of any outgoing member or members of the said Committee in respect of any covenant agreement proviso matter or thing herein contained shall absolutely cease determined and become absolutely null and void as soon as the appointment of the member Companies line being a distanced about 19 feet and partly by a straight line drawn from the South East Corner of the said wall, to Pillar No. 1 a distance of about 121 1/2 feet, and on the West partly by the Eastern edge of the aqueduct which supplies the Northern portion of the Strand Road with water and partly by a straight line drawn in prolongation northwards of this aqueduct to the said Tramway line being a distance of about 18 feet.

7. Subsequently, the said lease agreement was renewed by adding further lines by changing the land Schedule 5 bighas 12 cottahs 6 chhitacks and 13 sq. ft. which was executed on 26th March, 1984 and registered on 7th April 1998.

The subsequent renewed agreement reads such:

THIS INDENTURE of LEASE made this 26TH DAY of March One thousand nine hundred eighty four BETWEEN THE GOVERNOR OF THE STATE of WEST BENGAL hereinafter referred to as “the LESSOR” (which; expression shall unless excluded by or repugnant to the context be deemed to include his successors in office and assigns) of the ONE PART AND(l) P.N. ROY, President, Bengal Bonded Ware-House Association of 25, Netaji Subhas Road in the town of Calcutta, (2) N.G. Khaitan, V/ President, Khaitan & Company of IB, Old Post Office Street in the town of Calcutta, (3); A.B. Ajmera, Card Board Box Mfg. Company, Kanak Building of 41, Chowringhee Road in the town of Calcutta, (4) D.N. Bubna, Shyam Sundar Bubnaj Company of 5 & 6, Fancy Lane in the town of Calcutta, (5) P.N. Das, Guest; Keen Williams Ltd. of 97, Andul Road, in the Dist. of Howrah, (6) P.K. Jalan, Data Managemept Centre of 26, Shakespeare Sarani in the town of Calcutta, (7) R.A. Jalan, G.MB. Ceramica Ltd. of 23 and 25, Ganesh Ch Avenue in the town of Calcutta, (8) Lalji Mchrotra of 92, Elliot Road, in the town of Calcutta, (9) N.C. Modi, International Trading Company of 145A, Rasbindra Sarani in the town of Calcutta, (10) R.N. Mukherjee, Techno Jute Enterprise of 8, Camac Street in the town of Calcutta, (11) B.T. Ramnani, Vensimal Bassarmal & Bros. of 18, Rabindra Sarani, Poddar Court, in the town of Calcutta, and (12) R.P. Titina, Indian Lead Pvt. Ltd., ‘P.O. Rajarhat, Mouza Gopalpur in the District of 24-Parganas, Members of the Managing Committee of the Calcutta Swimming Club of No. 1, Strand Road in the town of Calcutta, hereinafter referred to as ‘the LESSEES” (which expression shall be deemed to include their successors in office) of the OTHER PART.

WHERE by an Indenture of Lease dated the first day of February One thousand nine hundred and thirty eight for the consideration, and on the terms and conditions therein mentioned, the Secretary of the State of Indian in Council granted a Leaste unto the committee of management of The calcutta Swimming Club of the Land measuring Four Bighas Seven Chottahs and Fifteen Chittacks on apart of which the Club is situated.

AND WHEREAS during the term of the said lease, the committee of Management of The Calcutta Swimming Club encroached upon a strip of land adjacent to the land demised by the said Lease.

AND WHEREAS by an Indenture of Lease dated the twelfth day of July One thousand nine hundred and forty-three between the Governor of the Province of Bengal of the one part and the said Committee of Management of the said Swimming Club of the other part the Governor of the Province of Bengal, for the consideration and on the terms and conditions therein, mentioned, granted and demised unto the said Members at the Committee of Management of the said Swimming Club, the land (comprising the land demised by the said Lease dated the First day of February One thousand nine hundred and thirty-eight and also the said encroached land) mentioned and described in the Schedule Written under the said Indenture of Lease dated the Twelfth day July One thousand nine hundred and forty-three and also mentioned and described in the Schedule hereunder I written for a period of thirty years from the first day of April One thousand nine hundred and thirty-nine with an option of renewal to the said Members of the Committee of Management of the said Swimming Club.

AND WHEREAS by an Indenture of Lease dated the twenty second day of March One thousand nine hundred and seventy one the Lessor granted and demised unto the Lessees the said premises hereinafter mentioned for a further term of five years as from the first day of April the thousand nine hundred and sixty nine at an annual rent of Rupees Twenty-two thousand and five hundred only.

AND WHEREAS by an Indenture of Lease dated 26th day of March 1976 for the consideration and upon the terms and conditions thereof mentioned the Lessor granted and demised unto the lessee the said premises hereinafter mentioned for a further term of three years as from the 1st day of April, 1974.

AND WHEREAS the Lessees have applied to the Lessor for the grant of Lease of the said premises hereinafter mentioned and described in the Schedule hereunder written for a further period of eleven years commencing on and from the First day of April one thousand nine hundred and seventy-seven and the Lessor has agreed to renew the lease for the further period of eleven years only for the consideration and on the terms and conditions hereinafter mentioned.

HOW THIS INDENTURE WITNESSETH as follows:

1. In consideration of the rent and the Lessee’s covenants hereinafter reserved and contained, the Lessor doth hereby demise unto the Lessees ALL THAT piece or parcel of land described in the Schedule hereunder written and delineated in the map or plan hereto annexed TO HOLD the same unto the Lessees on and from the First day of April One thousand nine hundred and seventy-seven for a term of eleven years YIELDlNG AND PAYING therefore during the first five years i.e. upto 31 & March 1983 of the said term and annual rent of Rupees thirty five thousand only and for the balance of the said term Rs. 50, 000/- as annual rent payable! or before the thirty-first day of July in each and every year for the year immediately preceding, the first of such payments to be made on the first! day of the month immediately after the execution of these presents and the last of such payments being made on or before the first day of March One thousand nine hundred and eighty-eight.

2. The Lessees to the intent that the obligations shall continue throughout the term of the present demise do hereby covenant with the Lessor as: follows:

a) To pay the said rent on the days and in manner aforesaid without and deduction whatsoever and in default of payment on the due dates, to pay interest at the rate of six and one-fourth per cent per annum on the amount of the arrears till the date of payment.

b) To bear pay and discharge all existing and further rates, taxes, assessments duties, impositions and other outgoings whatsoever assessed charged or imposed upon the land hereby demised and the structures standing thereon whether payable by the owner or the occupier thereof.

c) Not to make any additions to or structural alterations in the existing structures without the written sanction of the Lessor first had and obtained, such sanction not to be unreasonably with-held.

d) Not at any time during the continuance of this demise to permit or allow the demised premises and/or the structures thereon to be used for any purpose other than that of a Swimming Bath and Club.

e) To keep at all times the land hereby demised and the structure thereon in repair to the satisfaction of such officer or officers of the Home (Police) Department of the Government of West Bengal as may be authorised in that behalf and to allow such officer or officers at all reasonable times to have access to all parts of the land hereby demised and the structures thereon for the purpose of inspection.

f) Nor to transfer, assign, underlet or part with the possession of the land hereby demised and/or the structures thereon without the consent of the Government of West Bengal first had and obtained in writing PROVIDED ALWAYS that in the event of the said Calcutta Swimming Club being reconstituted as company registered under the Companies Act or being amalgamated with any such other company it shall be competent for the Lessees to transfer their interest in the land hereby demised and/or in the structures thereon to such reconstituted or amalgamated company.

g) To preserve intact the boundaries of the land hereby demised and to keep it well demarcated according to the requisition of the Government of West Bengal and to point out the same when required by the Government of West Bengal to do so to such officer or officers of the Home Police) Department of the Government of West Bengal as may be authorised in that behalf.

h)On the expiration or sooner determination of the term hereby created to yield up within three months of such expiration or determination the land hereby demised after having removed therefrom all buildings and structures (including fixtures and fittings) then existing or standing thereon or any part thereof and also after having repairs of all damages resulting from such removal as aforesaid, provided that for such period atfter the expiry or sooner determintion of the term during which the Lessees shall be in occupation of the demised premises for the purpose of such removal the Lessees shall pay to the Lessor the sum of Rs. 2,000/- (Rupees two thousand) only per month far such occupation as aforesaid.

i) Not to alter the Rules and Regulations of the Lessees regarding admission and membership of the Club without the prior approval of the Government of West Bengal in writing.

3. The Lessor hereby covenants with the Lessees that the Lessees paying the rent hereby reserved and performing and observing the several covenants and stipulations herein on the Lessees part contained shall peaceably hold and enjoy the land hereby demised during the term hereby granted without any interruption by the Lessor or any person or persons rightly claiming under or in trust for the Lessor.

4. PROVIDED ALWAYS and IT IS HEREBY AGREED and DECLARED by and between the parties hereto as follows:

a) That if the rent hereby reserved or any part thereof shall be unpaid for one calendar month after becoming payable (whether formally demanded or not) or if the Lessees shall at any time hereafter make any additions to or alterations in the structures without such sanction as aforesaid and shall neglect or fail within one month after receipt of a written requisition in that behalf from such officer or officers of the Public Works Department, West Bengal, as the Government of West Bengal may depute for the purpose to remove such additions or alterations and restore the said structures to their original condition or if the Lessees shall permit or allow the land hereby demised and/or the structures thereon to be used for any purpose other than, that of a swimming bath and club or shall neglect or fail for the space of one calendar month to comply with any written requisition in regard to the execution of repairs which such officer or officers of the Public Works Department, West Bengal, as the Government of West Bengal may depute for the purpose may call upon them to execute such repairs to the structures standing on the land hereby demised or if at any time the land hereby demised or the structures thereon shall cease to be used for the Swimming Bath or Club for a period of six consecutive months then and in any such case the Lessor shaff be at liberty to determine this Lease and to require the Lessees to remove all structures standing on the land hereby demised or any part there of and in the event of the Lessees failing to comply with any such requisition within one months from the date of such determination the Lessor may enter into and upon the take possession of the land hereby demised and the structures thereon and cause the structures to be removed and/or sold any defray the costs of such removal and/or sale out of the sale proceeds thereof. But in the event of the Lessees failing to comply as aforesaid with any requisition to repair the structures standing on the land hereby demised the Lessor may in lieu of exercising the power of determining this lease vested in him as aforesaid cause the necessary repairs to be done and recover all costs incurred in and about the same from the Lessees, or if the Lessees shall commit any breach of any of the terms conditions and covenants herein on the part of the Lessees or fail to observe fulfil and perform the same the Lessor shall have the right to forthwith determine this demise and recover possession of the demised premises.

b) That if at any time during the continuance of this demise the land hereby demised shall be acquired for a public purpose under the provisions of Land Acquisition Act or any other enactment relating to the acquisition of land for public purpose for the time being in force then and in such case this Lease shall stand determined and the Lessees shall not be entitled to claim either against the lessor or in respect of the land hereby demised any compensation whatsoever but the lessee shall be entitled to receive as compensation the value of the structures now standing and/or hereafter to be erected upon the land hereby demised under the terms of these presents (including fittings and fixtures).

c) That notwithstanding anything to the contrary herein contained, the Lessor shall have the right and be entitled to determine the present demise upon giving the Lessees six months previous notice in writing and on the expiration of the period of the notice the Lessees shall quit vacate and make over peaceable possession of the demised premises to the Lessor.

d) All questions or differences whatsoever which may at any time hereafter arise between the parties hereto touching these presents or the subject matter thereof or arising out of or in relation thereto respectively and whether as to construction or otherwise shall be referred to the arbitration of an Arbitrator if the parties can agree upon one otherwise to two Arbitrators (one to be appointed by each party) with an Umpire in accordance with the provisions of the Arbitration Act, 1940 or any statutory modification thereof for the time being in force and the decision of the Arbitrator or Arbitrators or Umpire as the case may be, shall be final and binding on the parties hereto;

e) The rights to all minerals on the lands hereby demised together with such rights of way and other reasonable facilities as may be requisite for workings, gathering and carrying away such minerals are hereby reserved to the President of India;

f) That all notices shall be deemed to be validly served upon the Lessees if such notices are addressed to the Secretary, The Calcutta Swimming club No 1. Strand Road, Calcutta-1 by post and shall be deemed to be Starved duly on the Lessees on the day the same is expected to reach the addresse on the usual course of post.

THE SCHEDULE ABOVE REFERRED TO:

ALLTHAT piece or parcel of land or ground adjoining the Strand road and situated on the the East side thereof being No. 1, Strand road in the Registration District of Calcutta and Thana Hare Street containing by admeasurement an area of 5 Bighas 12 Cottahs 6 Chittacks and 13 Square Feet be the same a little more or less and delineated in the map or pdan hereto annexed and thereon bordered red.

8. The liability of payment of property tax of the Corporation, an incidental issue: thereof, has been answered by the legislatures in Section 193 of the Act. Section 193, reads such:

193. Incidence of [property tax] on lands and buildings.-(1)

The [property tax] on lands and buildings shall be primarily leviable, –

(a) if the land or building is let, upon the lessor;

(b) if the land or building is sublet, upon the superior lessor;

(c) if the land or building is sublet, upon the person in whom the right to let such land or building vests.

(2) The [property tax] on an any land or building, which is the property of the Corporation and the possession of which has been delivered under any agreement or licensing arrangement, shall be leviable upon the transferee or the licencee, as the case may be.

(3) The liability of the several owners of any [land or] building constituting a single unit of assessment, which is or purports to be severally owned in parts or flats or rooms, for payment of [property tax] or any instalment thereof payable during the period of such ownership shall be joint and: several:

Provided that the Municipal Commissioner may apportion the amount of [property tax] on such [land or] building among the co-owners.

[Provided further that in any case where the Municipal Commissioner is, for reasons to be recorded in writing, satisfied that the owner is not traceable, the occupier of such land or building, land or building for the time being, shall be liable for payment of property tax so long as the owner remains untraced and shall be entitled to the rebate, if admissible.]

[(3A) In the case of any land or building or portion thereof which is not self-occupied and where the owner is refrained, by any law, Order of the Government or Order of Court, from recovering the property tax due from the occupier or occupiers, such tax shall be recovered from the occupier or occupiers, as the case may be:

Provided that the owners shall continue to pay such amount of property tax as he was liable to pay before coming into force of the Kolkata Municipal corporation (Amendment) Act, 2006, and only the balance amount of the property tax, when determined after coming into force of the Municipal Corporation (Amendment) Act, 2006, if any, shall be recovered from the occupier.]

[(4) Notwithstanding the vesting of any land in the State under the Calcutta Thika Tenancy (Acquisition and Regulation Act, 1981, in the case of any if land comprised in a thika tenancy, the [property tax] assessed in respect of such land and any hut or building made thereof shall be primarily leviable upon the thika tenant.]

9. On a bare reading of Clause A of Sub-Section 1 of Section 193, it appears that if the Land or building is let, liability is upon the lessor to pay the proper tax by identifying as person responsible upon whom the property tax primarily leviable. The word ‘or’ in Clause A of Sub-Section 1 of Section 193 as per our reading is a disjunctive word and, as such, the lessor is responsible to pay the property tax and it is primarily leviable upon the lessor on the contingency where land is let and under the contingency where the building is let.

10. In the instant case, from the lease agreement, it appears that the land was let by the Central Government being the lessor and, as such, u/s 193(1)(a), the Union of India, is responsible to pay the property tax of the land in question and it is primarily leviable upon them. Though the section identified the primary liability to pay the property tax upon the lessor but Corporation is not helpless to recover the property tax from the occupier of the building by virtue of Sections 195 and 225 of the said Act. Sections 195 and 225 of the said Act read such:

195. Recovery of [property tax] on lands and buildings from occupiers. –

(1) On the failure to recover any sum due on account of [property tax] on any land or building from the person primarily liable therefor u/s 193 [the Municipal Commissioner shall, notwithstanding anything contained in the West Bengal Premises Tanancy Act, 1956 or in any other law for the time being in force recover] from every occupier of such land or building, by attachment of the rent payable by such occupier, a portion of the total sum due which bears, as nearly as may be, the same proportion to that sum as the rent annually payable by such occupier bears to the total amount of rent annually payable in respect of the whole of such land or building.

(2) An occupeor, from whom any sum is recovered under Sub-section (1), shall be entitled to be reimbursed by the person primarily liable for the payment of such sum, and may, in addition, to have recourse to the other remedies that may be open to him, deduct the amount of any rent becoming due from time to time from him to such person.

225. Occupiers may be required to pay rent towards satisfaction of [property taxes]. – (1) For the purposes of recovery of any [property tax] from any occupier u/s 195, the Municipal Commissioner [notwithstanding anything contained in the West Bengal Premises Tenancy Act, 1956 or any other law for the time being in force shall cause to be reserved on such occupier a notice requiring him to pay to the Corporation any rent due or falling due from him in respect of the land or building to the extent necessary to satisfy the portion of the sum due for which he is liable under the said section.

(2) such notice shall operate as an attachment of such rent unless the portion of the sum due shall have been paid and satisfied, and the occupier shall be entitled to credit in account with the person to whom such rent is due for any sum paid by him to the Corporation in pursuance of such notice:

Provided that if the person to whom such rent is due is not the person primarily liable for payment of the [property tax, he shall be entitled to recover from the person primarily liable for payment of such tax any amount for which credit is claimed as aforesaid.

(3) If any oocupier fails to pay to the Corporation any rent due or falling due which he has been required to pay in pursuance of a notice served, upon him as aforesaid, the amount of such rent may be recovered from him by the Corporation as an arrear of tax under this Act.

11. Now, so far as the exemption property tax for the Government land as urged, we have to deal with the Constitutional provision namely, Article 285 of the Constitution of India which reads such:

285. Exemption of property of the Union from State taxation. – (1) the property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by a State or by any authority within a State.

(2) Nothing in Clause (1) shall, until Parliament by law otherwise provides, prevent any authority within a State from levying any tax on any property, of the Union to which such property was immediately before the commencement of this Constitution liable or treated as liable, so long as that tax continues to be levied in that State.

12. On a bare reading of the said provision, it appears that a property of the Union is exempted from State taxation under the said Article except for taxes which were imposed on the Central Government before the commencement of the Constitution. Sub-Section 2 provides tax liability relating to property of Union as was existing prior to commencement of the Constitution.

13. Since the lease agreement was of the year 1888 and subsequent thereof different legislatition was made prior to coming into effect of Calcutta Municipal Corporation Act, 1980 namely Calcutta Municipal Consolidation Act, 1889, Calcutta Municipal Corporation Act 1923, Municipal Corporation Act, 1951, this Court is of the view that in, the event prior to commencement of the Constitution, the tax if was levable upon the Union with reference to the Land property in question namely, the property tax on land could be leviable. Having regard to the Constitutional provision this fact to be determined by the Kolkata Municipal Corporation upon giving a notice of hearing to the Union. So far as the statutory provision, Sub-Section 6 of section 171 of Kolkata Municipal Corporation Act, 1980, deals with that point Identical provision has been made in proviso so so far as the fixation of the tax liability. The said provision reads as follows:

171(6) Notwithstanding anything contained in this Chapter, lands and buildings which are the properties of the Union, shall be exempt from the property tax:

Provided that nothing in this Sub-section shall prevent the Corporation from levying on such lands and buildings a property tax to which immediately before the commencement of this Act they were, or were treated as liable:

Provided further that the Corporation may levy a service charge on such buildings on the basis of such annual value and at such rate as may be determined by the Central Government from time to time.

14. On a bare reading of the said proviso, it appears that exemption from the property tax over land could be available on the satisfaction of the fact that there was no tax liability immediately before the commencement of the Act.

15. Having regard to the Constitutional provision as referred to and the statutory provision as discussed above, it requires adjudication so far as the tax liability of the Union with reference to the land in question as leased out to the writ petitioners/appellants. Court intended to adjudicate that issue as it was raised, but the learned Advocate for the Corporation failed to produce any documentary evidence before us to prove the existence of tax liability prior to commencement of the Constitution in terms of Article 285 of the Constitution of India on the ground that old records are required to be searched.

16. Having regard to such submission, we are keeping that point open for decision and adjudication by the Corporation on hearing the Union and thereby in the event the Union is not exempted to pay the property tax, the decision to be communicated to the writ petitioners/appellants also. But under in any circumstances the primary liability to pay the property tax in respect of the land in question which was leased out cannot be placed upon the writ petitioners/ Appellants. But in the event of non-discharge of primary liability by the Union, surely as occupier of the land in question, the Corporation would be entitled to realise tax from the writ petitioners/ Appellants, subject to realisation of the rental of land leased out, in terms of Section 225 read with Section 195 of the said Act.

17. Having regard to the aforesaid discussion and findings we are of the view that the finding and decision of the learned Trial Judge so far as the issue No. 1 was erroneous and it is not legally sustainable. Accordingly, that finding is set aside and quashed.

18. Now so far as the liability to pay the property tax in respect of the building, structure and swimming pool constructed over land, the writ petitioners/appellants are liable to pay such tax.

19. Section 177 would be resorted to, in the event determination is made at the land is exempted from the property tax, for the purpose of determining annual valuation of the building. But in the event the Land property in question does not come under the exemption clause by determining the issue, Section-l77. have no applicability. Section 177 of the said Act reads such:

177. Determination of annual valuation of building where land is exempted from property tax.–Where any land is exempt from the property tax under any law in force for the time being, the annual value of any Building, erected on such land, which is in existence for more than one year and is not entitled to any exemption from the property tax under this – Act or any other law in force for the time being, shall be determined separately from the land in accordance with the provisions of this Chapter.

20. But even if on adjudication it appears before the Corporation that so far as the land is concerned, the Union would not get any exemption from payment of property tax still then, building, structure and the swimming pool and other construction, could be assessed for determining the annual Situation and for putting the liability upon the writ petitioners/appellants, because they are the owners of that property in question as per lease agreement.

21. Having regard to the terms of lease agreement of the year 1888 as Renewed time to time and still existing as already discussed, the writ petitioners/appellants are the absolute owner of the construction as made over the land in question. In terms of the lease agreement and having regard to the terms and conditions of such lease agreement, the writ petitioners/ Appellants are liable to pay the property tax as the owner of the structure, building, swimming pool etc. constructed over the land in question. As discussed earlier that as soon as the lease agreement was executed and renewed time to time the entire structure and construction made over the and came under absolute ownership of the writ petitioners/appellants and is such, the writ petitioners/appellants were responsible to submit return by self-assessment u/s 182(A) of the said Act, which came into effect from 15th May, 1994. Section 182A reads such:

182A. Self-assessment and submission of return.- (a) After commencement of the Kolkata Municipal Corporation (Amendment) Act, 2006 as required by the Corporation, any owner of land comprising any building and vacant land or any vacant land or covered space of building or any other person liable to pay the property tax or any occupier, in the absence of such owner or person, shall file a return of self-assessment within sixty days from the date of final publication of the scheme u/s 174, in such form as may be specified in the scheme. Till the date of effect of a fresh valuation made after final publication of the scheme, such owner of occupier or person liable to pay property tax, as the case may be, shall continue to pay the property tax at the existing rate in terms of the provisions of this Act, which were in force prior to the commencement of the Kolkata Municipal Corporation (Amendment) Act, 2006.

(b) The owner of land comprising any building or vacant land or covered space of building or any other person liable to pay the property tax or and occupier, in the absence of such owner or person, as may be required the Corporation, shall, thereafter, file a return on an annual basis in such manner and as per the time schedule as notified by the Corporation.

(c) The return of self-assessment under Clause (a) and the annual return on Clause (b), as required by the Corporation, shall be certified by all Architect registered under the Architects Act, 1972 (20 of 1972), or any licensed Building Architect or licensed Building Surveyor enlisted with the Corporation, or a Valuer holding a diploma from the Institution of Surveyors and enlisted with the Corporation for such valuation.

(2) Such owner or person shall furnish to the Municipal Commissioner a return of self-assessment in such form, and in such manner, as may be prescribed. Every such return shall be accompanied by proof of payment! of such property tax and interest, if any.

(3) The payment of such property tax and interest up to the current quarter, if my, shall be made, and such return shall be furnished, within sixty days of the date of final publication of the scheme u/s 174.

(4) In the case of any new building for which an occupancy certificate has been granted or which has been taken possession of after the commencement of the Kolkata Municipal Corporation (Amendment) Act, 2006, such payment shall be made, and such return shall be furnished, within thirty days of expiry of the quarter in which such occupancy certificate is granted or such possession is taken, whichever is earlier.

Explanation.–Occupancy certificate may be provisional or final and may be for the whole or any part of the building; possession may be of the whole or any part of a building.

(5) Such payment shall continue to be made for each subsequent quarter and last date of such payment shall be thirty days after the expiry of each such quarter.

(6) After the assessment u/s 179 or revision of assessment u/s 180 has been made, any amount paid on self-assessment under this section shall be deemed to have been paid on account of the assessment u/s 179 or Section 180, as the case may be.

(7) If any owner or other person, liable to pay the property tax under this Act, fails to pay the same together with interest, if any, in accordance with the provisions of this section, he shall, without prejudice to any other consequence to which he may be subject, be deemed to be a defaulter in respect of the property tax or the interest or both remaining unpaid, and all the provisions of this Act applicable to such defaulter shall apply to him accordingly.

(8) After the assessment is finally made under this Act, if the payment on self-assessment is found to be less than that of the amount payable by the Assessee, in such case the Assessee shall pay you the difference within two months from the date of final assessment, failing which recovery shall be made in accordance with the provisions of this Act but, after the final assessment, it if is found that the Assessee has paid excess amount, in such case such excess amount shall be adjusted against the actual tax payable by the Assessee.

Provided that in any case where the amount of property tax determined in in the final assessment is more than the amount of property tax is in the opinion of the Municipal Commissioner, the result of wilful suppression of facts, the Municipal Commissioner may levy a penalty not exceeding thirty Per cent of such difference in the property tax besides the interest thereon:

Provided further that the levy of such penalty shall be in addition to any other punishment provided under this Act:

Provided also that the certifying licensed Building Architect or licensed Building Surveyor or Valuer in such cases shall also be liable for same amount of penalty as determined under the second proviso, after giving the person an opportunity of being head.

22. Having regard to the statutory provision, the writ petitioner/appellant -cannot brush aside its liability of self-assessment and submission of return. Non-filing of such in terms of the statutory provision, naturally will invite the consequences in terms of the said statutory provision for which the Kolkata Corporation will be at liberty to proceed.

23. So far as the impugned notices in the writ application are concerned, u/s 184 of the said Act it appears that a notice could be issued under Sub-section (4) of Section 184 either to the owner, lessee, sub-lessee or occupier of any land or building. Hence, so far as the service of notice to the writ petitioners/appellants are concerned by describing legal status ‘person responsible to pay tax’, we do not find any mistake by the Corporation if the notice is considered as a notice with reference to the structure and building constructed therein by the writ petitioners/appellants. But in the notice itself there was no identification of that and the notice though was addressed to Garrison India Limited representing the Union being the owner of the property since does not specify the subject matter upon which the property tax was assessed or would be assessed on annual valuation by identifying as to whether it is over land or building, the notice accordingly became defective one and on that score the pugned notice as issued be set aside and quashed with liberty to the Corporation to serve a fresh notice by identifying the respective property which would be the subject matter of annual valuation. Notices impugned thus quashed.

24. The Corporation, as per our finding and observation, will be at liberty to serve separate notices to the owner of the land namely, the Union and the owner of the building and structure namely the writ petitioners/appellants. Since in earlier assessment, this issue was not considered as raised by the Corporation for the reason that neither the writ petitioners/appellants nor the Union produced original lease agreement of the year 1888 to identify the nature and character of the title of the respective Land property and structure thereupon and a mistake was committed by recording the concerned area under the heading in the assessment register as “annual valuation and assessment of land or building”, such mistake to be rectifie now by the Corporation by splitting the land and building separately 25.

25. Considering our findings and observations, the writ application succeeds to this extent by quashing the interim notices. The Corporation now is at liberty to proceed in accordance with law. In terms of our finding and observation, the impugned judgment under appeal, is. accordingly, set aside and quashed, save and except the direction for de novo hearing as passed by the learned Trial Judge.

26. Corporation will be at liberty to correct the wrong address, if there is any mistake, to identify the property in question.

Urgent certified photostat copy of this order be made available to the parties, if applied for, upon compliance of all requisite formalities.

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