JUDGMENT
Bhaskar Bhattacharya, J.
1. By this writ application, the Board of Trustees for the Port of Kolkata (“Kolkata Port”) have prayed for declaration that the Kolkata Municipal Corporation (“Corporation”) is not entitled to give retrospective effect to the purported reassessment of valuation of premises No. P-1, Taratala Road, Kolkata for the period 1st quarter, 1990-91 to 3rd quarter 2001-2002 in view of the provision of the Calcutta Port Act, 1890 and the Major Port Trust Act, 1963 read with provisions of the agreement dated October 1, 1970 and for a Mandamus commanding the respondents to cancel/rescind/withdraw the decision dated November 21, 2001 to give retrospective effect to the revised annual valuation in respect of the above premises for the aforementioned period and also the arrear bills raised on December 18, 2001 being annexures “P-2” and “P-3”.
2. The long and short of the contentions of Mr. Panja, the learned senior advocate appearing on behalf of the Kolkata Port, is that although the second proviso of Sub-section (2) of Section 179 of the Calcutta Municipal Corporation Act, 1980 (“1980 Act”) authorises the Corporation to give effect to the revised annual valuation with effect from the beginning of the quarter from which the annual valuation would have been revised, if we take into consideration Section 171(7) of the 1980 Act, it will reveal that such power to realize arrears of tax with retrospective effect is not available in respect of the land and building which belong to the Kolkata Port and thus by taking aid of an order of revaluation dated November 22, 2001, no arrears can be realized for a period prior to passing of such order.
3. Mr. Roy, the learned senior counsel appearing for Corporation vehemently opposed the aforesaid contention of Mr. Panja. He however conceded that since no disputed question of fact is involved herein and the points raised herein are all pure questions of law, this application can be disposed of without filing any formal affidavit-in-opposition.
4. Thus, this Court proceeded to hear out the main writ application before inviting affidavits from the parties after hearing the learned counsel for the parties on the questions of law.
5. For the purpose of deciding the points involved herein it will be necessary to consider some of the provisions of 1980 Act as well as Calcutta Port Act, 1890 (“1890 Act”). Although 1890 Act has been repealed by the enactment of Major Port Act, 1963 but Section 133(26) of the latter Act saves the provisions of 1890 Act relating to municipal assessment of the properties of the Port of Kolkata and matter connected therewith.
6. Sections 59, 66, 66K(4) of 1890 Act, Section 133(2B) of the Major Port Trust Act, 1963 and Sections 171(7) and 179(2) of the 1980 Act are relevant in this connection and those are set out below :
“Section 59. For the purposes of Municipal assessment, the annual value of the property vested in the Commissioners within the municipal limits of Calcutta shall be ascertained in the following way :-
(1) The aggregate expenditure incurred in the construction of all docks, wharves, quays, stages, jetties, piers and other works belonging to the Commissioners; also in the purchase of land; also in the construction of offices, warehouse and other buildings belonging to them within the limits of Calcutta, as defined by the Calcutta Municipal Consolidation Act, 1888, shall be determined.
(2) Expenditure incurred in procuring or putting up machinery shall not be included in such aggregate expenditure.
(3) Expenditure incurred from time to time on account of repairs necessary to maintain any works or buildings in good order shall not be included in such aggregate expenditure.
(4) Expenditure for the purpose of materially adding to, or improving, any work or building shall be included in such aggregate expenditure.
(5) Five per cent on the aggregate expenditure determined in the
manner hereinbefore provided shall be the annual value of the
rateable property of the Commissioners, within the meaning of
Section 122 of the Calcutta Municipal Consolidation Act, 1888.
Provided that where any agreement has been reached between the
Commissioners and the Corporation of Calcutta providing that the
annual value of the properties vested in the Commissioners is to be
ascertained for the purposes of municipal assessment on a basis different
from that set out in the foregoing provisions of this section, the annual
value may, with the approval of the State Government, be ascertained
on such basis with effect from such date (which shall not be earlier that
the 1st day of April, 1952} as the State Government may direct.
Section 66. At the expiration of the first valuation made under this Act; such valuation including any alterations made under the last preceding section, may, if so agreed upon by the Commissioners and the Corporation of Calcutta be renewed for a further period of six years; and may similarly be renewed, from time to time, for period of six years.
Section 66K(4). The assessment calculated on the said valuation shall, subject to such alterations as aforesaid, be deemed to be the amount payable during the whole period for which the valuation is in force; and this period shall be calculated from the commencement of the quarter next succeeding that in which any alterations as aforesaid shall have been made, and until such date, that old valuation shall continue in force, notwithstanding that the period for which it was made may have expired.
Section 133(2B). On the application of this Act to the Port of Calcutta, the Calcutta Port Act, 1890, except the provisions thereof relating to municipal assessment of the properties of the Port of Calcutta and matters connected therewith, shall cease to have force in relation to the Port.
Section 171(7). Notwithstanding anything contained in this chapter, lands and buildings which vest in the Board of Trustees for the Port of Calcutta shall, for the purpose of levying a consolidated rate thereon, be assessed in accordance with the provisions contained in part IV of the Calcutta Port Act. 1890 (Ben. Act III of 1890) and the agreement, if any between the Board of Trustees for the Port of Calcutta and the Corporation under the said Act,
Section 179(2). The annual valuation under this chapter –
(a) shall be made by the Municipal Commissioner or, if the State Government so directs, by the Central Valuation Board established under the West Bengal Central Valuation Board Act. 1978 (West Ben. Act LVII of 1978),
(b) shall have effect from the beginning of the quarter of a year ending on the 30th June or 30th September or 31st December or 31st March, as the case may be, following that in which a notice under Sub-section (2) of Section 184 is issued.
(c) shall, subject to the other provisions of this chapter, remain in force in respect of each ward of the Corporation for a period of six years, irrespective of any alteration during such period in the number of boundaries of such ward, and
(d) may be revised on the expiration of each such period :
Provided that when annual valuation of any land or building has not been revised on the expiry of any such period for reasons to be recorded in writing, the previous annual valuation shall continue to remain in force until it is so revised :
Provided further that the Municipal Commissioner may, on the expiry of such period, revise the annual valuation of such land or building at any time and such revised valuation shall take effect from the beginning of the quarter from which the annual valuation would have been revised under this clause.”
7. After hearing the learned counsel for the parties and after going through the aforesaid provisions of the statutes I find that notwithstanding the power conferred upon the Corporation by 1980 Act to determine the consolidated rates of the land and building in Kolkata, Section 171(7) of the 1980 Act specifically excludes the land and buildings which vest in the Board of Trustees for the Port of Kolkata and enjoins that those shall for the purpose of levying a consolidated rate thereon be assessed in accordance with Part IV of 1890 Act and the agreement, if any, between Board of Trustees for the Port of Kolkata and the Corporation under the 1890 Act. Part IV of 1890 Act starts from Section 59 thereof and ends with Section 68A. Section 59 prescribes the modes of assessment of annual value of such property and Section 66 says that at the expiration of the first valuation, such valuation including any alteration made under Section 65, may, if so agreed upon by the Commissioners and the Corporation be renewed, from time to time, for periods of six years. It may be mentioned here that in the agreement dated October 1, 1970 between the parties it is provided that in respect of matters which have not been specifically mentioned, the same will be governed by 1890 Act. In my view, Mr. Panja is right in his contention that there is no provision in the 1890 Act similar to those provided in 1980 Act permitting the Corporation to give retrospective effect of a belated revision as mentioned in the second proviso to Sub-section (2) of Section 179; on the other hand, Section 66K(4) of 1890 Act permits the Corporation to realize consolidated rate consequent to revision only from the commencement of the quarter next succeeding that in which the alteration has been made and until such date, the old valuation shall continue in force notwithstanding that the period for which it was made may have expired. Therefore, it is apparent that 1890 Act does not vest the Corporation with the authority to realize arrears with retrospective effect. Therefore, pursuant to the alteration of valuation made on November 21, 2001, the consolidated rate at the enhanced rate can be realized only from the quarter beginning from January, 2002.
8. Although Mr. Roy as a last resort made a desperate attempt to convince this Court that Section 66K(4) applies only to the case of a building constructed by a tenant of the Kolkata Port but not to the premises in question, I am not at all impressed by such submission. In my opinion, the provisions contained in Section 66K(4) apply to all the properties vested in the Board of Trustees of Kolkata Port, be it tenanted or is in actual occupation of the Port. Once a property is held to be assessed under chapter IV of 1890 Act, the Corporation cannot take benefit of the second proviso to Section 179(2) of 1980 Act but will be bound by the aforesaid provisions of Section 66K(4).
The writ application thus succeeds. Let there be a declaration in terms of prayer (a) and a Mandamus in terms of prayer (b).
No costs.