K. G. Patel & Co. v. Chandra Devi Bothra — 1996 DIGILAW 396 (CAL)

Judgment Satyabrata Sinha, J : 1. This appeal is directed against a judgement and order dated 27th May, 1996 passed by a learned single Judge of this court in Writ Petition No. 847 of1996 wherein the said learned trial Judge allowed the writ petition filed by writ petitioner-respondent No.1 quashing an order dated 8.2.96 passed by the Calcutta Municipal Corporation mutating the name of the appellant. 2. The fact of the matter lies in a very narrow compass. . 3. The properties in question admittedly belonged to Trust Estate of Nagendra Nath Sett as owners of 45 Chittaranjan Avenue which allegedly let out vacant land to Md. Rasul whereafter allegedly one Bejoy Timber & Co. constructed certain structures. The appellant claims himself to have purchased the said structures by reason of deed of conveyance dated 8th November, 1951, as a result whereof they are said to have become sub-lessees of Md. Rasul. A suit for ejectment was instituted against Md. Rasul by the Trust in 1955 which was allegedly decreed. It is stated that upon sanction granted by the Corporation in favour of the appellant, it constructed privy etc. in the said land. 4. Apparently on 11th October, 1966 the appellants were also granted fresh lease on expiry of 1956 lease comprising of the land together with the structure thereon. The private respondents by a deed of conveyance dated 18th July, 1981 acquired right, title and interest of the aforementioned trust and got their names mutated in the Corporation. The appellant filed an application for mutation as a thika tenant. However, to that, an objection was raised by the private respondents. By an order dated 8th February, 1996 the State of West Bengal was mutated as the owners and the appellants have been shown as the thika tenants owning the structure by striking down the name of the private respondents. The said order dated 27.5.1996 was subject matter of the writ application. 5. The learned trial Judge by reason of the judgement under appeal allowed the writ application, inter alia, on the ground that there existed a disputed question of title, thus the said order could not be sustained. The learned trial Judge, however, directed the authorities to grant an opportunity of hearing to the respondents before passing a final order. 6. Mr. The learned trial Judge by reason of the judgement under appeal allowed the writ application, inter alia, on the ground that there existed a disputed question of title, thus the said order could not be sustained. The learned trial Judge, however, directed the authorities to grant an opportunity of hearing to the respondents before passing a final order. 6. Mr. S. Pal, the learned Counsel appearing on behalf of the appellants has raised two contentions in support of this application. The learned Counsel submits that an order of mutation does not affect the title and in that view of the matter no civil consequences have ensued to the appellants and, thus the writ application was not maintainable. In support of his aforementioned contention he placed a decision of mine in Depta Tewari and Ors. vs. State of Bihar & Ors. reported in 1987 PLJR 1037 , Smt. Sawarni vs. Smt. Inder Kaur and Ors. reported in 1996(7) JT SC 580 and Amulya Ratan Ghorai vs. Secretary of Sri Sri Ram Krishna Paramahansa Sebak Sangha & Anr. reported in 1989(1) CL.J 447 . Our attention was further drawn to the effect that in terms of s. 193(4) of the Calcutta Municipal Corporation Act, the thika tenant has been made liable to pay taxes. It was submitted that as the writ petitioners themselves submit that the Corporation cannot decide the question of title, the question of giving any further opportunity of hearing does not arise. In any event contends the learned Counsel, the principles of natural justice does not contemplate grant of personal hearing in each and every cases. In support of his aforementioned contention the learned Counsel has placed strong reliance upon Carborundum Universal Ltd. vs. The Central Board of Direct Taxes, New Delhi reported in JT 1989(4) SC 56 and Union of India & Anr. vs. M/s. Jesus Sales Corporation reported in JT 1996(3) SC 597. 7. Mr. Saktinath Mukherjee, the learned Counsel appearing on behalf of the writ petitioner-respondent on the other hand submits that it is not correct to contend that the appellants were sub-lessees. According to the learned Counsel, from the records it would appear that there exists a serious disputed question of title of the land in question. 7. Mr. Saktinath Mukherjee, the learned Counsel appearing on behalf of the writ petitioner-respondent on the other hand submits that it is not correct to contend that the appellants were sub-lessees. According to the learned Counsel, from the records it would appear that there exists a serious disputed question of title of the land in question. It was submitted that it was obligatory on the part of the Calcutta Municipal Corporation to give an opportunity of a personal hearing to the writ petitioner not for the purpose of showing that they continued to have title in respect of the properties in question in view of their contention that the property in question does not come within the purview of the provisions of Calcutta Thika Tenancy Act, 1949 or otherwise. But in order to show that such a question cannot be gone into by the Calcutta Municipal Corporation, the learned Counsel has pointed out that Md. Rasul did not make any construction and, thus the original tenancy continued to be that of a vacant land and such a tenancy was thus governed by the provision of the Transfer of Property Act. 8. It was submitted that from the deed of conveyance dated 8.11.1951 it would appear that the appellant merely purchased the structure belonging to the Bejoy Timber & Co. It was submitted that vacant land would govern the nature of the lease and relying on the decision in Santilata De vs. Saraju Bala Devi and Ors. reported in 60 CWN 642 and Annapurna Seal vs. Tincowrie Dutt & Anr. reported in 66 CWN 338. It has been contended that the provisions of the Thika Tenancy Act have no application in relation to a vacant land. 9. It was further submitted, that it is a settled principle of law that a disputed question of title cannot be gone into in a mutation proceeding and in support of his aforementioned submission reliance has been placed on Sheo Dulari Devi vs. Smt. Nageshra Kuer and Anr. reported in AIR 1977 Pat 86 , Venode Kumar Jalan vs. Calcutta Municipal Corporation & Ors. reported in 1987(1) CLT 333 and J. Hiralal vs. Corporation of the City of Bangalore and Ors. reported in AIR 1982 Kant 137. 10. Mr. reported in AIR 1977 Pat 86 , Venode Kumar Jalan vs. Calcutta Municipal Corporation & Ors. reported in 1987(1) CLT 333 and J. Hiralal vs. Corporation of the City of Bangalore and Ors. reported in AIR 1982 Kant 137. 10. Mr. Roy Chowdhury, learned Counsel appearing on behalf of the Calcutta Municipal Corporation agrees that the Calcutta Municipal Corporation has no jurisdiction to go into a disputed question of title. There is no provisions for mutation of somebody's name in the Register maintained in the office of the Calcutta Municipal Corporation. 11. Sections 183 and 184 which are material for the purpose of this case, read thus : "183. (1) Whenever the title of any person to any land or building is transferred, such person, if primarily liable for the payment of consolidated rate on such land or building, and the person to whom the title is so transferred shall, within three months after the execution of the instrument of transfer or after its registration, if it is registered, or after the transfer is effected, if no instrument is executed, give notice of such transfer in writing to the Municipal Commissioner. (2) In the event of the death of any person primarily liable as aforesaid, the person on whom the title of such land or building devolves shall, within six months from the date of death of the former, give notice of such devolution in writing to the Municipal Commissioner. (3) The notice under this section shall be in such form as may be prescribed, and the transferee or the person on whom the title devolves shall, if so required, be bound to produce before the Municipal Commissioner any documents evidencing the transfer or devolution. (4) If any person, who transfers his title to any land or building, fails to give any notice under this section to the Municipal Commissioner, he shall, in addition to any penalty to which he may be subject under this Act, continue to be liable for payment of the consolidated rate on such land or building until he gives such notice but nothing in this section shall be deemed to affect the liability of the transferee for payment of the consolidated rate on such land or building. (5) The Municipal Commissioner shall, on receipt of a notice of transfer or devolution of title under this section (and upon payment of such fees as may be determined by regulations), record such transfer or devolution in a book (***) and also in the Municipal & Assessment Book: Provided that nothing in this sub-section shall be construed to mean that mutation in a case, where there is arrear of any dues to the Corporation on account of the transferor or the predecessor-in-interest of the applicant, shall be refused. (6) On a written request by the Municipal Commissioner, the Registrar of Assurances, Calcutta, or the District Registrar, 24 Parganas, shall furnish such particulars regarding registration of instruments of transfer of immovable properties in Calcutta as the Municipal Commissioner may, from time to time, require. (7) Notwithstanding anything contained in sub-section (6) the Registrar of Assurances, Calcutta, or the District Registrar, 24 Parganas, shall furnish to the Municipal Commissioner such particulars soon after the registration of an instrument of transfer is effected, or, if the Municipal Commissioner so requests, such periodical returns at such intervals as the Municipal Commissioner may fix. 184. (1) When the annual valuation under sub-section (2) of section 179 or a general revaluation under sub-section (1) of section 180 in any ward of the Corporation or part thereof as the case may be, has been completed, the Municipal Commissioner shall cause the respective valuation to be entered in an assessment list in such form and containing such particulars with respect of each land or building as may be prescribed. (2) When the assessment list has been prepared the Municipal Commissioner shall give public notice thereof and of the place where the list or copy thereof may be inspected, and every person claiming to be the owner, lessee, sub-lessee or occupier of any land or building included in the list and any authorised agent of such person shall be at liberty to inspect the list and to take extracts therefrom free of charge. (3) The Municipal Commissioner shall give public notice of the place, time and date, not less than one month after the preparation of the assessment list as aforesaid, when he will proceed to consider the annual valuations of lands and buildings entered in the assessment list, and in all cases in which any land or building is for the first time assessed, or the annual value of any land or building is increased, he shall also give written notice thereof to the owner or to any lessee, sub-lessee or occupier of such land or building and shall also specify in the notice the place, time and date, not less than one month thereafter, when he will proceed to consider such valuation. (4) When a revision in the annual valuation of any land or building has been made under sub-section (2) of section 180, the .Municipal Commissioner shall cause the respective valuation to be entered in the assessment list and shall give a written notice thereof to the owner or to any lessee, sub-lessee or occupier of such land or building, and shall also specify in the notice the place, time and date not less than one month thereafter, when he will proceed to consider such valuation." 12. A bare perusal of the aforementioned provisions would show that the same applies only in a case of transfer or devolution of property. It has no application in relation to statutory devolution particularly in a case such statutory devolution is in serious dispute. 13. The question as to whether the nature of the property in view of the transaction entered into by various persons would be governed by the provisions of Transfer of Property Act or Calcutta Thika Tenancy Act would be a serious question, which as has been conceded to by the learned Counsel of all the parties cannot be gone into by the Calcutta Municipal Corporation. 14. The scope and object of the Corporation in terms of Ss. 183 and 184 is absolutely limited one. It is true as has been submitted by Mr. Pal that in terms of s. 193(4) of the Calcutta Municipal Corporation Act a thika tenant is liable to pay the consolidated rate assessed in respect of such land and any hut or building made thereon but the said provision contains a non-obstante clause. 183 and 184 is absolutely limited one. It is true as has been submitted by Mr. Pal that in terms of s. 193(4) of the Calcutta Municipal Corporation Act a thika tenant is liable to pay the consolidated rate assessed in respect of such land and any hut or building made thereon but the said provision contains a non-obstante clause. It has application in a case where vesting of land in the State under the Calcutta Thika Tenancy (Acquisition and Requisition) Act, 1981 is not in dispute, if the land has vested in the State pursuant to Calcutta Thika Tenancy (Acquisition & Requisition) Act, sub-so (4) of S. 193 of the said Act fastens a liability on the thika tenant to pay such rent. The said provision by itself cannot be said to have conferred any jurisdiction upon the authorities of the Calcutta Municipal Corporation to decide as to whether keeping in view the nature of the lease, the same would begoverned by the Transfer of Property Act or Calcutta Thika Tenancy Act. 15. In Depta Tewari and Ors. vs. State of Bihar & Ors. reported in 1987 PLJR 1037 already deciding a question where an order of mutation was made by the revenue authorities not under any provision of statute but in exercise of its general power which were being exercised by Jaminders upon vesting their estates. In the facts and circumstances of this case it was held that such a power was administrative in nature and thereby no civil or evil consequences ensued. 16. In Amulya Ratan Ghorai vs. Secretary of Sri Sri Ram Krishna Paramahansa Sebah Sangha & Anr. reported in 1989 (1) CLJ 447 , a learned single Judge of this court deciding the question as regards an entry in records of right by the Municipal Authorities. There cannot be any doubt whatsoever that in a land dispute mutation of property in revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person to pay land revenue. See Smt. Sawarni vs. Smt. lnder Kaur and Ors. reported in JT 1996 (7) SC 580. 17. However, the matter relating to inclusion in the list of assessment in terms of Ss. It only enables the person to pay land revenue. See Smt. Sawarni vs. Smt. lnder Kaur and Ors. reported in JT 1996 (7) SC 580. 17. However, the matter relating to inclusion in the list of assessment in terms of Ss. 183 and 184 of the Calcutta Municipal Corporation Act stands on a different footing inasmuch as by reason thereof, the person in whose name assessment register is altered has some benefit as regards enforcement of his right under the Calcutta Municipal Corporation Act including his right to erect a building thereupon by obtaining a plan sanctioned therefor. In that situation, this court is of the opinion that although the question as regards title or possession of a party claiming mutation may not be finally gone into but for the purpose of realising of tax it may be possible for the Calcutta Municipal Corporation to arrive at a prima facie finding which would not be conclusive and the same would be subject to any result of any judgement or decree passed by a competent court of law. 18. However, there cannot be any doubt whatsoever that a complicated disputed question of title cannot be decided by the authorities of the Calcutta Municipal Corporation. See Sheo Dulari Devi vs. Smt. Nageshra Kuer and Anr. reported in AIR 1977 Pat 86 and Venode Kumar Jalan vs. Calcutta Municipal Corporation & Ors. reported in 1987 (1) CLT 333. 19. It is further evident that in the facts and circumstances of this case, it was not within the jurisdiction of the Calcutta Municipal Corporation to consider as to whether the lands in question would be governed by the Calcutta Thika Tenancy Act or not. 20. In Santilata De vs. Saraju Rala Deui & Ors. reported in 60 CWN 642 a Division Bench of this court held : "The word 'land' in sub-ss. (3) and (5) of s. 2 of the Calcutta Thika Tenancy Act, 1949, means the bare land exclusive of structure situated thereon. The thika tenant must be a person or the successor in interest of a person who holds bare land under another person. A holding of both land and structures situated thereon is not a holding of a bare land and is not a thika tenancy." 21. The said decision has been followed by another Division Bench of this court in Annapurna Seal vs. Tincowrie Dutt & Anr. A holding of both land and structures situated thereon is not a holding of a bare land and is not a thika tenancy." 21. The said decision has been followed by another Division Bench of this court in Annapurna Seal vs. Tincowrie Dutt & Anr. reported in 66 CWN 338. 22. For the reasons aforementioned there cannot be any doubt whatsoever that the Calcutta Municipal Corporation could not have gone into the question of title, and in that view of the matter, the judgement of the learned trial Judge cannot be faulted. However, in view of the admitted position in law, in my opinion, the learned trial Judge was not correct in 'remitting the matter back to the authorities of the Calcutta Municipal Corporation inasmuch as in the facts and circumstances of this case it would be wholly unnecessary as even if an opportunity of hearing is given to the contesting parties, evidently no fruitful result will ensue. 23. For the reasons aforementioned, in modification of the order passed by the learned trial Judge it is directed that the order dated 8.2.96 passed by Calcutta Municipal Corporation mutates the name of the appellant is set aside and the parties should get their respective title decided in an appropriate forum. No order as to costs. S. N. Chakrabarty, J.: I agree. Set aside mutation with directions.