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2015 DIGILAW 371 (CAL)

Munirul Haque v. Kolkata Municipal Corporation

2015-04-24

SAMAPTI CHATTERJEE

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JUDGMENT : Samapti Chatterjee, J. Despite direction no affidavit-in-opposition has been filed by the Kolkata Municipal Corporation (hereinafter referred to as KMC) as well as the Thika controller. 2. The petitioner filed the instant writ petition challenging the order dated 18th February, 2006 passed by the Assessor/Collector (South) thereby canceling the mutation of the names of the petitioners. Initially this Court passed an interim order on 5th May, 2006 staying the operation of the order dated 18th February, 2006 passed by the Assessor/Collector (South). 3. The petitioners case in brief is as follows:- That the petitioner applied for mutation of their names as owners of the premises no.17C, Dent Mission Road, Kolkata-700073 after purchasing the same from the recorded owner of the said premises by registered deed of conveyance in the year 1996. The petitioners prayers for mutation was allowed by the Municipal Authority after giving hearing to the petitioners as well as the private respondent no.7 to 23. Subsequently, the said order of mutation dated 13th February, 2003 was recalled by the Municipal Authority at the instance of the private respondents who claimed that they have Thika tenancy right in respect of the said property. 4. It is submitted by Mr. Supratick Shymal, learned Advocate appearing for the petitioner that a civil suit has already been filed by the petitioners against the private respondent for their eviction before the civil Court which is still pending. In the said suit the private respondents were described as tenants under the petitioners in respect of the said premises. In the said suit the private respondents have taken their defence by stating that they are Thika tenants in respect of the said property. Therefore, the issue regarding the status of the said private respondents is sub judice before the Civil court. 5. Mr. Syamal further contended that this fact was brought to the notice of the Municipal Authorities. The Municipal Authority recalled the order and the mutation dated 21st February, 2003 vide impugned order dated 18th February, 2006 passed by the Assessor/Collector (South). 6. Mr. Syamal further vehemently contended that if it is at all a Thika tenancy property then state should claim the same not the private respondents. 7. Mr. The Municipal Authority recalled the order and the mutation dated 21st February, 2003 vide impugned order dated 18th February, 2006 passed by the Assessor/Collector (South). 6. Mr. Syamal further vehemently contended that if it is at all a Thika tenancy property then state should claim the same not the private respondents. 7. Mr. Syamal also strongly urged that once after giving hearing to the petitioner as well as the private respondents the petitioners property was mutated by the corporation vide its order dated 21st February, 2003 therefore, the corporation has no authority to recall that mutation order on the basis of a prayer made by the private respondents though it is on record that after hearing private respondents as well as the petitioners mutation was granted by the corporation in favour of the petitioners vide the said order dated 21st February, 2003. Therefore, Mr. Syamal in conclusion submitted that the impugned order dated 18th February, 2006 passed by the Assessor/Collector(South) is illegal arbitrary, vindictive, unfair and unjust and liable to be quashed by this Hon'ble Court. 8. Mr. Syamal also drew my attention to the rent receipt issued in favour of the private respondents by the petitioners (Annexure P2 Page- 29-33). 9. Per contra, Mr. Biswajit Mukherjee, learned Advocate appearing for the corporation contended that though it is admitted that after hearing the private respondents and the petitioners the mutation certificate was granted in favour of the petitioners on 21st February, 2003 but as per Sub Section 3 of Section 5 of the KMC Act if the premises is a Thika tenancy property then Thika controller is to decide. The said Sub Section 3 of the Section 5 of the KMC Act is quoted below :- "West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001 Sub-Section (3) of Section 5 - If any question arises as to whether a person is a Thika Tenant or not, the matter shall be decided by the Controller." 10. Mr. Mukherjee also vehemently urged that since the property is the Thika property therefore, unless it is decided by the Thika controller mutation cannot be granted as a result of which the mutation already granted in favour of the petitioners was withdrawn by the impugned order dated 18th February, 2006. 11. Mr. Mukherjee also vehemently urged that since the property is the Thika property therefore, unless it is decided by the Thika controller mutation cannot be granted as a result of which the mutation already granted in favour of the petitioners was withdrawn by the impugned order dated 18th February, 2006. 11. Having heard the submissions advanced by the respective parties and after meticulously perusing the records I find that the petitioners in the year 1996 purchased the property-in-question directly from the erstwhile owner on the basis of a registered deed of conveyance and thereafter petitioners applied for the mutation before the Kolkata Municipal Corporation (KMC). The KMC after giving hearing to the petitioners as well as, the tenants, the private respondents granted mutation certificate in favour of the petitioners on 21st February, 2003. 12. It was also mentioned in the said hearing that the suit for eviction initiated against the private respondents is still pending. In the said hearing the private respondents also raised a point that the premises in question is a Thika tenancy property. Even if I proceed on the basis that the said property is a Thika tenancy property then at first the State-Government should have claimed ownership in the said property on the basis of record of vesting of the said property in favour of the State. Curiously enough the State has not come forward with a claim for title over the said property on the basis of record of vesting. Not only that after perusing the rent receipts (Annexure P2 of Page 29-33) it is evident that the erstwhile landlord/owner of the said property used to issue rent receipt in favour of the private respondents. 13. I cannot also ignore the fact that a suit for eviction filed by the petitioners against the private respondents is pending before the Civil Court for final adjudication. Under such circumstances I am of the view that Municipal Authority could not have cancelled the order of mutation even without hearing the State Government. 14. It is ridiculous to accept when State Government did not come forward to claim the said premises as Thika tenancy property then on the basis of some objections raised by the private respondents regarding Thika tenancy the corporation should recall the mutation already granted in favour of the petitioners. 14. It is ridiculous to accept when State Government did not come forward to claim the said premises as Thika tenancy property then on the basis of some objections raised by the private respondents regarding Thika tenancy the corporation should recall the mutation already granted in favour of the petitioners. The corporation being a statutory authority should not act illegally, arbitrarily and unfairly at the same time. It is apparent from the records, as above mentioned, that the property-in-question was purchased by the petitioners from erstwhile owner in the year 1996 vide a registered deed of conveyance. 15. It is also evident from the records that the petitioners in the capacity as owner/landlord issued rent receipt in favour of the private respondents. Nothing is on record shows that the land vested in the State Government and the State Government is the owner of the land. It is the private respondents who have claimed as the Thika tenants. It is the State to claim that the property is a Thika tenancy property. Therefore, after considering the facts and after perusing the records I have no hesitation to hold that the impugned order dated 18th February, 2006 passed by the Assessor/Collector (South) thereby canceling the mutation of the names of the petitioners as owners in respect of premises no.17C, Dent Mission Road, Kolkata-700073 cannot be sustained in the eye of law and the same should be quashed. 16. Therefore, the impugned order dated 18th February, 2006 passed by the Assessor/Collector (South) as well as the communication made by the Deputy Assessor/Collector (South) to the petitioners on 24th February, 2006 are hereby quashed. 17. The Kolkata Municipal Corporation Authorities specially the Assessor/Collector/Deputy Assessor/Collector (South) are hereby directed to restore the mutation certificate granted in favour of the petitioners on 21st February, 2003 within 4 weeks from the date of communication of this order and after restoring the said mutation certificate the corporation would allow the petitioners to pay the property tax within two weeks in respect of the said premises on the basis of the mutation certificate grated in their favour on 21st February, 2003. 18. With the above directions, the writ petition stands allowed without any order as to costs.