TMI Blog2007 (5) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... l Municipal Act, 1993 (for short the Municipal Act ). In terms of Section 110 thereof, the annual valuation of lands and buildings is required to be determined by the Central Valuation Board (for short the Board ). The Board was established under the provisions of the West Bengal Central Valuation Board Act, 1978 (for short the 1978 Act ). 3. Valuation of the holdings used to be governed by Sections 10, 11 and 12 of the 1978 Act. Before we embark upon a detailed analysis of the provisions thereof, we may notice that they provided for publication of the draft valuation list, publication of the final valuation list and amendment of valuation of the list by the Board respectively. 4. Principles of natural justice were to be complied with in terms of Subsection (3) of Section 10 insofar as upon publication of the draft valuation list, objections were invited and objections, if filed, were required to be considered by the Board for determination thereof upon giving an opportunity of being heard in that behalf. Section 11 provided for publication of the final valuation list together with the amount of consolidated rate payable after determination of the objections filed under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant would submit that the Division Bench of the High Court committed a serious error in construing the provisions of the impugned Amending Act insofar as it failed to take into consideration the following: (i) The valuation list prepared by the Board and produced in course of the hearing before the learned Single Judge clearly showed that no reason had been assigned in support thereof, and in any event, the same did not bear any real nexus with the factors to be taken into account in the matter of determination of annual valuation as provided under Section 106 of the Municipal Act. (ii) It may be true that the Amending Act did not exclude the rules of audi alteram partem completely and sought to provide an opportunity of hearing only at the stage of review. However, the provisions thereof would clearly indicate that there is no procedural or substantive observance of the principles of natural justice in the process of determination of annual valuation. (iii) Opportunity of hearing at the stage of review of the assessment being a post-decisional one, the same does not compensate for the requirements of a pre-decisional hearing. 9. Mr. R. Mohan, learned Additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cers of the State Government or non-official experts having knowledge and experience in the field of judiciary, Engineering, Valuation and Assessment of properties, economics or social science as the State Government may determine. (4) The Chairman and the other members of the Board shall hold office for such period not exceeding four years as the State Government may determine and the terms and conditions of their service, including salaries and allowances shall be such as may be prescribed. (5) The Board shall have a Member- Secretary who shall be appointed by the State Government from amongst the members referred to in sub section (3) and shall be the Chief Executive Officer of the Board. 5A. Validation Notwithstanding anything contained elsewhere in this Act, no action of the Board shall be invalid or otherwise called in question merely on the ground of the existence of any vacancy (initial or subsequent) in the office of the members of the Board. 5A. Validation Notwithstanding anything contained elsewhere in this Act, no action of the Board shall be invalid or otherwise called in question merely on the ground of the existence of any vacancy (initial or subsequent) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n list may be inspected, and the valuation as aforesaid together with the amount of consolidated rate or property tax, as the case may be, payable thereon, as recorded in the valuation list shall, subject to the provisions of Sections 14 15 be conclusive. The Board shall give a notice in writing to the owner or to the lessee, sub-lessee or occupier of any land or building, as the case may be, in all case in which the valuation of such land or building is made for the first time or the annual valuation of such land or building as increased: Provided that the valuation list as aforesaid may be prepared and published in respect of all the holdings of any municipal area or any area within the jurisdiction of a Corporation specified in the notification under sub-sec (1) of Sec 9 or the holdings of any municipal area within such group of wards or any area within such group of wards within the jurisdiction of a Corporation as the State Government may determine. 12. Amendment of Valuation list by Board The Board may, for reasons to be recorded in writing, amend the valuation list at any time before the date specified for filing objections under sub-sec (2) of Section 10. 12. ** ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with such procedure as may be prescribed. (4) No application u/sub-sec (1) shall be entertained unless the amount of consolidated rate or property tax, as the case may be, on the previous valuation of land or building as aforesaid has been paid or deposited in the office of the Corporation or Municipality, as the case may be, before the application is filed, and every such application shall fail unless the amount of consolidated rate or property tax as the case may be on the previous valuation as aforesaid is continued to be paid or deposited in the Office of the Corporation or Municipality, as the case may be, till such application is disposed of. Provided that wherever the previous valuation refers to a valuation made under the Bengal Municipal Act, 1932 (Bengal Act XV of 1932), and in force on the date immediately before the commencement of the West Bengal Municipal Act, 1993 (West Bengal Act XXII of 1993), no application under sub-section (1) shall be entertained unless the amount of consolidated rate on such previous valuation has been paid or deposited or is continued to be paid or deposited in the office of the concerned Municipality. 15. Review Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members, being Councillors of the Municipality, as may be nominated by the Board of Councillors, and another member, who shall be an officer of the Board having knowledge in the assessment of municipal valuation, deputed by the Board: Provided that in the case of a Corporation, the Presiding Officer and two other members of the Review Committee shall be such persons as may be nominated by the Corporation from amongst the Councillors by a resolution: Provided further that no decision of a Review Committee shall be invalid or called in question merely by reason of any vacancy in the composition of the Committee or absence of any member from a meeting thereof other than the Presiding Officer: Provided also that the decision of a Review Committee shall be unanimous. Provided also that when a Corporation or a Municipality is dissolved, the State Govt shall constitute by notification the Review Committee consisting of a President and such number of other members as may be specified in the notification for the purpose of hearing applications for review. (3) The Review Committee may confirm, reduce, enhance or annul the valuation of land or building as may direct fresh valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion as to which mode of valuation having regard to a particular set of factors would entail a correct evaluation. However, in determining the valuation of a land or building, it is not expected of a statutory authority to take recourse to the course of action which may be arbitrary, unscientific or haphazard in nature. Although the proviso appended to Section 9 of the 1978 Act, provided for certain safeguards and as thereby a legal fiction has been created, the same, as noticed hereinbefore, is optional. The Board is not bound to take recourse thereto. Who would be the surveyors eligible for carrying out the survey requires prior approval of the State. The learned Single Judge in his judgment noticed that in stead and place of appointing experts in the field, only casual employees were recruited by the Municipality, who made door to door survey of the properties situated within the area of Bidhannagar Municipality and collected the purported datas of the concerned premises in a field book wherefrom an inspection book was prepared and only on the basis thereof valuation was determined by the Board. Such a course of action was not contemplated by law. 15. Section 9(1) of the 1978 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thod applied by the Municipality and the Central Valuation Board must be held to be arbitrary in nature and hence violative of the Constitution. In Maneka Gandhi v. Union of India [AIR 1978 SC 597], it was held that arbitrariness may be violative of Article 14 of the Constitution. 19. No person was appointed who had an expertise in the field. The casual employees appointed were not trained personnel. Their qualifications are not known. On what basis they could determine the valuation of the buildings and lands has also not been disclosed. They, being not government servants, ordinarily would not have the power to enter into the premises of persons so as to infringe the right of privacy which is otherwise granted to an authority under the 1978 Act. 20. In view of the mode and manner in which the general valuation had been prepared without giving an opportunity of hearing and/ or in any event without even asking the residents of the area in general to have their say, the provisions of the 1978 Act are required to be construed. 21. Section 11 of the 1978 makes such general valuation final. Section 10 has been deleted but the finality clause attached to Section 11 has been ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The rule of majority has been taken away. The decision under the amended provision is required to be unanimous. In case of difference of opinion, the matter is required to be referred back to the Board. 26. The provisions, in our opinion, are per se unreasonable and arbitrary. The Review Committee is not independent of the Municipality or the Board. Whereas under the 1978 Act, a person having the requisite knowledge was to be appointed by the State Government as Chairman of the Review Committee, the affairs of the Review Committee are controlled only by the Municipality concerned and the Board under the Amendment Act. The Municipality essentially is interested in increase in valuation of lands and buildings as it would fetch more income to its coffers. It is unthinkable that although the power to make annual valuation is not to be preceded by an opportunity of being heard to the person who would be affected thereby, the power of the Review Committee has been curtailed to 25% of the valuation made by the Board. The members are not independent person and each one of them is, in one way or the other, interested in the matter. Even the officer nominated by the Board who is said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee should not have consisted of the authorities of the Municipality and the officers of the Board alone. Section 15 does not provide for any expertise on the part of the Councillors to determine the objections. As many committees as the Municipality likes may be constituted. Rationality in the decision is, thus, not guaranteed. 32. In Swadeshi Cotton Mills v. Union of India [(1981) 1 SCC 664], this Court held: 44. In short, the general principle as distinguished from an absolute rule of uniform application seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the predecisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre-decisional hear ing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cupant or tenant is not directly recovered by the Corporation from them but is recoverable through the landlord and the landlord has been given right of reimbursement by demanding it from the tenant, sub-tenant or the occupant. For recovering such portion the tax payable by the tenant, sub-tenant or occupant, which has been paid by the landlord, is deemed to be rent only for the limited purpose of its recovery. The modes of recovery are by a demand notice under the Tenancy Act and if necessary, by filing an eviction suit. Resort to remedy before the regular court is also not prohibited. On this aspect of apportionment of tax and mode of recovery of tax, the Act does not make any discrimination between tenants of premises covered by the Tenancy Act and others not covered by the said Act. 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in the Municipality Act. When a statute does not provide for procedural fairness, it may be ultra vires. 35. In Dr. Balbir Singh and Others v. M/s. M.C.D. and Others [(1985) 1 SCC 167], this Court held: It is indeed strange that the assessing authorities should have declined to assess the rateable value of 494 properties in South Delhi on the basis of standard rent determinable on the principles laid down in sub-section (1)(A) (2)( b ) or (1)(B)(2)( b ) of Section 6, merely on the ground that in the opinion of the assessing authorities the assessees failed to produce the documentary evidence as regards the aggregate amount of reasonable cost of construction and the market price of land comprised in the premises on the date of commencement of the construction . If the assessees failed to produce the documentary evidence to establish the reasonable cost of construction of the premises or the market price of the land comprised in the premises, the asse ssing authorities could arrive at their own estimate of these two constituent items in the application of the principles set out in sub-section (1)(A) (2)( b ) or (1)(B)(2)( b ) of Section 6. But on this account, the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -3-1994. 37. When a substantive unreasonableness is to be found in a statute, it may have to be declared unconstitutional. 38. In C.B. Gautam v. Union of India and Others [(1993) 1 SCC 78], emphasising the need to comply with principle of natural justice, it was held: Although Chapter XX-C does not contain any express provision for the affected parties being given an opportunity to be heard before an order for purchase is made under Section 269-UD, not to read the requirement of such an opportunity would be to give too literal and strict an interpretation to the provisions of Chapter XX-C and in the words of Judge Learned Hand of the United States of America to make a fortress out of the dictionary . Again, there is no express provision in Chapter XX-C barring the giving of a show-cause notice or reasonable opportunity to show cause nor is there anything in the language of Chapter XX-C which could lead to such an implication. The observance of principles of natural justice is the pragmatic requirement of fair play in action. In our view, therefore, the requirement of an opportunity to show cause being given before an order for purchase by the Central Government is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. 42. The said dicta was affirmed by a Three Judge Bench of this Court in Chief Security Officer Ors. vs. Singasan Rabi Das [(1991) 1 SCC 729], stating that principle of natural justice cannot be dispensed with on mere ipso dixit. [See also Tarsem Singh vs. State of Punjab Ors. (Civil Appeal No.1489 of 2004), decided on 25th January, 2006, Prithipal Singh v. State of Punjab Ors., 2006 (11) SCALE 28 and Indian Airlines Ltd. v. Prabha D. Kanan [2006 (12) SCALE 58] 43. Principles of natural justice are based on two basic pillars: (i) Nobody shall be condemned unheard (audi alteram partem) (ii) Nobody shall be judge of his own cause (nemo debet esse judex in propria sua causa) 44. Duty to assign reasons is, however, a judge made l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of equal force which the appellant draws to the attention of the Tribunal, even though they were not embraced in the grounds of appeal sanctioned by the IAT. For these reasons, I consider that, when he promulgated Rule 62(7), the Lord Chancellor fell into legal error and the Rule cannot survive the Wednesbury challenge. 47. We, therefore, for the aforementioned reasonshave no other option but to hold that the provisions for review conferred in terms of the statute for all intent and purport are illusory ones and do not satisfy the test of Article 14 of the Constitution of India. No statute which takes away sombody s right and/ or imposes duties, can be upheld where for all intent and purport, there does not exist any provision for effective hearing. 48. It is one of those statutes where a decision is rendered by a body which may have an institutional bias although same is not ordinarily contemplated in the case of an individual member being a part of a body. 49. In Dr. Bonham s case [8 Co Rep 113 at 118], Coke, CJ declared a statute ultra vires where a body empowered to impose a levy was itself to be benefited thereby. The said decision was rendered despite the doctrine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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