1. The following issues in the case are:-
(i) Whether the Assistant Officer-cum-collector (S) of the Kolkata Municipal Corporation (KMC) is empowered to reject an application for assessment of the un-assessed property of the petitioner in a cryptic manner thus holding that the KMC is the owner of the said property without giving any opportunity of hearing to the petitioner ?
(ii) Whether the petitioner's registered deed of conveyance, as well as record of rights could be ignored by the Kolkata Municipal corporation (hereinafter referred to as 'K.M.C')) at the time of rejecting the application for assessment ?
2. The petitioner's case in a nutshell is as follows :-
By a registered deed of conveyance dated 4th September, 2012 the petitioner has purchased a property measuring about 6 cottahs 0 chittacks and 200 square feet out of 33 cottahs 5 chittacks and 15 square feet more or less situated at Mouza Topsia, J.L. No.6 C.S. Khatina No.491 and C.S. Dag No. 427/607, within KMC Ward No.66 (hereinafter referred as 'said property').
The petitioner has purchased the said land from the proforma respondent nos 8 to 42. It is stated that prior to 1980 the Kolkata Municipal Corporation Act coming into force, the records as available with the Block Land and Land Reforms Officer the names of the predecessors of the respondent nos 8 to 42 were recorded as 'Dakhalkar'.
It is also stated that the proforma respondents herein were all owners of their respective undivided proportionate shares in that property in question. It is further stated that the proforma respondents herein did take any step for mutation of their names in the record of the Kolkata Municipal Corporation in respect of their respective share in the properties. As a result thereof the said property was all along treated by the KMC as an un-assessed plot of land.
The petitioner after purchasing the said property on 14th February, 2014 has applied for mutation of his name in the record of Kolkata Municipal Corporation (K.M.C) thereby depositing requisite mutation fees. All on a sudden the petitioner was communicated/informed vide letter dated 10th June, 2014 issued by the Assistant Assessor/Collector (TTD), the respondent no. 5 herein that the petitioner's application for assessment of un-assessed property cannot be allowed since it is found that the said property is the KMC's property.
Immediately thereafter petitioner made repeated representations vide letter dated 14th June, 2014, 1st July, 2014 as well as 1st September, 2014 to the respondent no.5 to revisit the issue as the petitioner is the bona fide purchaser/owner of the said property. But unfortunately the respondent authorities failed to pay heed to those representations. Accordingly, without finding any alternative assailing the impugned order the petitioner filed the present writ petition.
Initially, this court directed the parties to exchange affidavits. Accordingly parties filed their respective affidavits.
Submissions of the Learned Advocates
3. Mr. Subrata Kr. Basu learned Advocates appearing for the petitioner strongly argued that without assigning any reason the respondent no.5 in a cryptic manner rejected the petitioner's application for assessment of the said property, thereby holding that the K.M.C is the owner of the said property. He further contended that by virtue of the registered deed of conveyance executed on 4th Sep
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tember, 2012 petitioner became the owner of the said property.
4. Mr. Basu further vehemently argued that as per Section 183 of the Kolkata Municipal Corporation Act, the respondent authority was under obligation to mutate the said property in name of the petitioner as the petitioner is the owner of the said property.
5. Mr. Basu further vehemently contended that the title of a property cannot be adjudicated by the municipal authority upon an application for mutation. The person having the title is entitled to mutate his name in the corporation records.
6. Mr. Basu further contended that in the impugned rejection order there is no whisper regarding ownership of the corporation at the said property in question. The impugned order very casually mentioned that the said property is the KMC's property without furnishing any supporting documents or evidence to that effect.
7. Furthermore, Mr. Basu vehemently urged that the municipal authority ought to have given an opportunity of hearing to the petitioner before rejecting the petitioner's application for mutation.
8. Mr. Basu further emphasized that without giving any opportunity of hearing to the petitioner to establish his case and without furnishing any supporting evidence regarding alleged ownership of the KMC, the respondent authorities illegally and arbitrarily with ulterior motive passed the impugned order of rejection.
9. Mr. Basu further vehemently argued that rejection order is bad, illegal, arbitrary and total non-application of mind. Mr. Basu also enlarged his argument thereby submitting that the impugned order was issued without complying the principles of natural justice which is unfair, unjust unwarranted as the petitioner was giving any opportunity of hearing by the KMC before rejecting the petitioner's application. In support of his contention Mr. Basu relied on decisions reported in (1) (1974) 2 SCC Page-121 (Nawabkhan Abbaskhan v. The State of Gujarat) (2) (1975) 1 SCC Page-106 (Shri Raghunandan Panda v. State of Orissa and Others) (3) (1967) 3 SCR302:AIR 1967 SC Page- 1606 (Bhagat Raja v. Union of India & Others) & (4) (1979) 2 SCC Page-368 (Gurdial Singh Fijji v. State of Punjab and Others)
10. Mr. Basu also submitted that the KMC was never in possession of the said property. Therefore, KMC cannot claim the title or ownership over the said property.
11. Mr. Basu further contended that it is evident from record of rights that the petitioner's predecessors (Sens) were the owners of Khatian No.491 Mouza-Topsia. But the KMC by using affidavit developed a new case, that long back by virtue of a decree the K.M.C became the absolute owner of entire "Dhapa Square Miles. But a single document has been disclosed with the impugned order regarding ownership of K.M.C. In support of his contention, Mr. Basu relied on one Hon'ble Supreme Court decision reported in (1978) 1 Supreme Court Cases Page-405 (Mohinder Singh Gill And Another v. The Chief Election Commissioner, New Delhi And Others)
12. Mr. Basu also strongly submitted that the petitioner is claiming ownership in respect of Khatian No. 490. Petitioner is only claiming Khatian No. 491 of Mouza Topsia as the petitioner purchased that portion from the Sens (proforma respondents). Mr. Basu emphasized that the Sens (proforma respondents herein) have every right and authority to execute the deed of conveyance in favour of the petitioner. Accordingly by virtue of the said deed of conveyance petitioner is at present the owner of the said property.
13. Mr. Basu further strongly submitted that the purported decree which is the KMC's only key document, unfortunately, was never executed. Not only that the respondent corporation never took any step till date to record their names in the records of rights.
14. Mr. Basu further vehemently urged that an application for mutation only can be refused by the Kolkata Municipal Corporation on the ground as referred in Section 183 (5) of the Kolkata Municipal Corporation Act, 1980 and on no other ground. In support of his contention Mr. Basu referred Section 183 as well as Section 183 (5) of KMC Act, 1980 which are quoted below :-
"Section 183 Notice of transfers with Section 183 (5) -(1) Whenever the title of any person to any land or building is transferred, such person, if primarily liable for the payment of property tax 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 property tax on such land or building until he gives such notice but nothing in this section shall b deemed to affect the liability of the transferee for payment of the property tax 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 derogate from the power of the Corporation to refuse mutation in a case where there is arrear of any dues to the Corporation on account of the transfer or the predecessor-in-interest of the applicant.
(6) On a written request by the Municipal Commissioner, the Registrar of Assurances, Kolkata or the District Registrar, 24-Parganas, shall furnish such particulars regarding registration of instruments of transfer of immovable properties in Kolkata as the Municipal Commissioner may, from time to time, require.
(7) Notwithstanding anything contained in sub-section(6), the Registrar of Assurances, Kolkata, 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."
Mr. Basu also relied on one Hon'ble Apex Court decision reported in 2005 (4) SCC Page-245 (Calcutta Municipal Corporation and Others v. Shrey Mercantile (P) Ltd. And Others)
15. Mr. Basu also contended that before rejecting the petitioner's application the respondent corporation could have considered the question of ownership after giving adequate opportunity of hearing to the petitioner. In support of his contention Mr. Basu also relied on a Hon'ble Apex Court decision reported in 2004 (1) CHN Page-615 (State of West Bengal v. Birendra Nath Sarkar)
Mr. Basu strongly submitted that till date the said deed of conveyance has been revoked by any competent court of law.
16. Before parting with his argument Mr. Basu submitted that the impugned order passed in a cryptic manner without assigning any reason therefore cannot be sustained in the eye of law.
17. Mr. Sanjib Kumar Mal, learned Advocate appearing for the proforma respondents nos, 13, 16, 18, 19, 23, 28, 37, 38 and 41 after adopting the submission of Mr. Basu submitted that the predecessors-in-interest of the proforma respondents were non-agricultural tenant in respect of the land-in-question. Mr. Mal further contended that such land was never a part of the "Dhapa Square Miles'.
18. Mr. Mal further vehemently submitted that no notice of acquisition of the land-in-question under the West Bengal Estate Acquisition Act, 1953 was ever served upon either of the proforma respondents or their predecessors-in-interest. Therefore, that land cannot be treated as a vested land with the state or K.M.C.
19. Mr. Mal also strongly urged that it is evident from the government record of rights that the Sens are occupying the said land as non-agricultural tenants. That status of non-agricultural tenant have never been alter for less vesting of the land either with the State or with K.M.C.
20. It is also strongly argued that by virtue of Section 4 read with Section 3A of the West Bengal Land Reforms Act, 1955 such non-agricultural tenants have been empowered by the statute to retain such land in their khas possession as a 'raiyat' who became the owner of that land with the rights of heritability and transferability. Therefore, the proforma respondents by virtue of such rights conferred upon them became the joint owner of land-in-question which they had inherited from their predecessors-in-interest.
21. It is further stated that, by the right of heritability and right of transferability the proforma respondents executed the said deed of conveyance in favour of the petitioner. On the strength of such deed of conveyance the petitioner filed an application for mutation before the KMC but that was rejected by the impugned order. In support of his contention Mr. Mal drew my attention to Section 4 and Section 3A of the West Bengal land Reforms Act, 1955. He also referred to Sections 14 (S), Section 49 (A), Section 50, Section 50 (B), Section 51, Section 51 (A) & Section 51 (B) of the said Act. Section 4 and Section 3 A of the said Act is quoted below:-
"Section-4-Rights of raiyat in respect of land-(1) Subject to the other provisions of this Act, a raiyat shall on and after the commencement of this Act be the owner of his plot of land and the plot of land shall be heritable and transferable.
Explanation.-For the removal of doubts, it is hereby declared that any person or institution who holds any plot of land-
(a) under any permit, lease or licence granted by the State Government or
(b) as a thika tenant defined in clause (14) of Section 2 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 or
(c) under sairati interests or by retaining such plot of land under clause (g) or under clause (f) of sub-section (1), read with sub-section (3), of section 6 of the West Bengal Estates Acquisition Act, 1953 (West Ben. Act of 1954) shall be a raiyat for the purpose of this sub-section
(2) Nothing in sub-section (1) shall entitle a raiyat to sub-soil rights
2A. No raiyat shall (a) quarry sand, or permit and person to quarry sand, from his plot of land, or
(b) dig or use, or permit any person to deign or use, earth or clay of his plot of land for the manufacture of bricks or tiles, for any purpose, other than his own use, except with the previous permission in writing of the State Government and in accordance with such terms and conditions and on payment of such fees as may be prescribed.
2B. If any raiyat commits a breach of the provisions of sub-section(2A), the prescribed authority may, after giving in the prescribed manner an opportunity to the raiyat to show cause against the action proposed to be taken, impose upon him a fine exceeding two thousand rupees, and where the breach is a continuing one, a further fine exceeding two hundred rupees for each day during which the breach continues. Such fine, if duly paid, shall be recoverable as a public demand.
2C. an appeal shall lie from any order made under sub-section (2A) in accordance with the provisions of sections 54 and 55.
(3) Omitted by the West Bengal Land Reform (Amendment) Act, 1971 (President's Act III of 1971) and thereafter by the West Bengal land Reforms (Amendment) Act, 1972 (West Ben. Act XII of 1972) with retrospective effect from February 12, 1971.
(4) Notwithstanding anything in sub-section (1) the plot of land of a raiyat excluding his homestead, shall vest in the state free from all encumbrances under an order of the prescribed authority made in the prescribed manner after such enquiry as it thinks fit and after giving the raiyat an opportunity to show cause against the action proposed to be taken if-
(a) he has without any reasonable cause used the land comprised in the plot of land or a substantial part thereof for any purpose other than that for which it was held by him or settled by the State or directly incidental thereto;
(b) he has without any reasonable cause ceased to keep the land or any substantial part thereof under personal cultivation or has failed to utilise the land consistently with the original purpose of the tenancy or for any purpose directly incidental thereto for a period of three consecutive years or more except when such land is under a usufructuary mortgage mentioned in section 7;
(c) he has without any reasonable cause failed to bring the land comprised in the plot of land or any substantial part thereof under personal cultivation or has failed to utilise the land consistently with the original purpose of the tenancy or for any purpose directly incidental thereto within three consecutive years of the date on which this Act comes into force or of the date on which he came into possession of such land, whichever is later;
(d) he has let out the whole or any part of the plot of land :
Provided that nothing in this sub-section shall prevent the raiyat from cultivating any part of his plot of land by a bargadar:
Provided further that nothing in this sub-section shall prevent the raiyat from leasing out the whole or any part of his plot of land for the purpose of establishing an industrial park or industrial hub or industrial estate or financial hub or a biotech park or a food park as per project report duly examined, vetted and approved by the appropriate Department of the State Government :
Provided also that nothing in this sub-section shall prevent any local authority or an authority constituted or established by or under any law for the time being in force or any wholly Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956), from leasing out the whole or any part of his plot of land in a township as defined in clause (25) of section 2 of the West Bengal Town and Country (Planning and Development) Act, 1979 (West Ben. Act XII of 1979).
(5) On the plot of land of a raiyat being vested in the State under subsection (4) his ownership therein shall cease and the rights of the lessee, if any, shall terminate and the raiyat shall be entitled to receive an amount to be determined under section 14V.
Section-3A. Rights of non-agricultural tenants and under-tenants in nonagricultural land to vest in the State.-(1) The rights and interests of all nonagricultural tenants and under-tenants under the West Bengal Non-Agricultural Tenancy Act, 1949, (West Ben. Act XX of 1949) shall vest in the State free from all encumbrances, and the provisions of sections 5 and 5A of the West Bengal Estates Acquisition Act, 1953 (West Ben. Act I of 1954) shall apply, with such modifications as may be necessary, mutatis mutandis to all such non-agricultural tenants and under-tenants as if such non agricultural tenants and under tenants were intermediaries and the land held by them were estates and a person holding under a non-agricultural tenant or under-tenant were a raiyat.
Explanation-Nothing in sections 5 and 5A of the West Bengal Estates Acquisition Act, 1953 shall be construed to affect in any way the vesting of the rights and interests of a non-agricultural tenant or under-tenant under the West Bengal Non-Agricultural Tenancy Act, 1949 in the State under subsection (1) of this section
(2) Notwithstanding anything contained in sub-section (1), a non-agricultural tenant or under-tenant under the West Bengal Non-Agricultural Tenancy Act, 1949 (West Ben. Act XX of 1949), holding in his khas possession any land to which the provisions of sub-section (1) apply, shall, subject to the other provisions of this Act, be entitled to retain as a raiyat the said land which together with other lands, if any, held by him shall exceed the ceiling area under section 14M.
(3) Every intermediary,- (a) whose land held in his khas possession has vested in the State under sub-section(1) or
(b) whose estates or interests, other than land held in his khas possession, shall be entitled to receive an amount to be determined in accordance with the provisions of section 14V.
(4) The provisions of this ection shall apply to any land which the provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (West Ben, Act XXXII of 2001), apply
(5) This section shall be deemed to have come into force on and from the 9th day of September, 1980."
In support of his contention that Sens are still owner of several bighas of land in 'Dhapa Square Miles', Mr. Mal relied on series of documents of records of right annexed to the in affidavit-in-opposition of the proforma respondents.
22. Mr. Mal further contended that the Kolkata Municipal Corporation cannot claim the title over the entire 'Dhapa Square Miles'. Sens are also the owner of some portion of the 'Dhapa Square Miles'. Therefore, Sens being the owner have every right to execute the said deed of conveyance in favour of the petitioner which is still in force and has yet been challenged by any parties in any competent Court of law. In support of his contention Mr. Mal relied on one Hon'ble Delhi High Court decision of In the High Court of Delhi RSA Nos. 67 And 90/2001 (Shri Fateh Singh v. Delhi Development authority and Ors)
23. It is further vehemently urged by Mr. Mal that the corporation cannot claim ownership automatically as a matter of right over Sens' property. In support of his contention Mr. Mal relied on a Hon'ble Supreme Court decision reported in 1973 (1) SCC Page 273 Paragraphs-13-14 (M/S Hindustan Steel Ltd, Rourkela v. Smt. Kalyani banerjee And Others).
24. Before concluding his argument Mr. Mal submitted that corporation does have better title than the petitioner. Therefore, this writ petition should be allowed thereby quashing the impugned order.
25. Per contra, Mr. Alok Kumar Ghosh learned Advocate appearing for the corporation strongly submitted that on 5th December, 1870 by virtue of a deed of conveyance the Secretary of State of Indian Council conveyed about 800 bighas of land commonly known as 'Dhapa Square Miles' to the justice of peace for the town of Calcutta at present Kolkata.
26. It is further submitted that in 1880 the said 'Dhapa Square Miles' was leased out to Bhabanath Sen upon the terms and conditions mentioned in the deed of lease. In the record of right corporation of Calcutta (now known as Kolkata Municipal Corporation) was shown to have 'intermediary' interest whereas the Sens were described as 'occupancy raiyats'. Further it is submitted that a suit was filed by the Corporation of Kolkata against the Sens being Title Suit No.70 of 1933 for declaration that Sens were occupancy raiyats and also for decree for eviction.
27. It is also submitted that some plots of land at Mouza Topsia Tangra were acquired by initiating land acquisition proceeding for extension of 'Dhapa Square Miles'. Thus lands were acquired after making payment of compensation to the parties who were occupying the said land.
28. It is further submitted that the said title suit no. 70 of 1933 was decreed in part directing eviction only in respect of Khatian No. 168 and further declaring that the Sens were the occupancy riayats. After the West Bengal Estate Acquisition Act, came into force in the year 1954 the Sens were described as 'Dhakhali Madhya Satwa' whereas the corporation was declared as intermediary/proprietor. Further, the Sens preferred an appeal assailing the judgment and decree passed in the said suit. In appeal the said suit was compromised on terms of a fresh lease granted in favour of the Sens for a period of 20 years with a clause of renewal.
29. It is also submitted that since some wrong recording was made in the record of rights as 'riayats' therefore, the corporation filed an objection under Section 44 (2a) of the said Act and the said objection was allowed by the Assistant Settlement Officer. Against such order one of the tenants preferred an appeal being E-Appeal No.44 of 1953. By a judgment dated 30th November, 1963, the said appeal was allowed thereby directing that the record of rights could have been corrected except upon initiation of proceeding under Section 45 of the West Bengal Estate Acquisition Act.
30. It is also submitted by Mr. Ghosh that on 13th June, 1963 the governor of West Bengal promulgated an ordinance amending West Bengal Estate Acquisition Act in terms whereof the local authority became entitled to retain land and a proviso was inserted in Section 6 (1) (h) of the said Act. Thereafter writ petition was filed by the Sens challenging the said amendment. But in the meantime the said ordinance was repealed and replaced by Legislative Act. In the said writ petition it was held that in terms of the aforesaid amendment the corporation was entitled to retain the land and had in fact retained the land in accordance with the said Act. It is further submitted that on 17th April, 1962 the formal deed was executed in-favour of the Sens all residing at No.44, Ram Kanta Bose Street, Kolkata. The said lease was given retrospective effect from 1st April, 1936 for a period of 30 years expiring on 31st March, 1966.
31. It is also submitted by Mr. Ghosh that on 8th February, 1965 the lease was renewed for 400 bighas of land on the same terms and conditions. Against such renewal of the lease for 400 bighas the Sens filed a writ petition on 24th December, 1968. On 3rd January, 1970 an application under Article 226 of the Constitution of India was filed by the Sens and the Hon'ble Court passed an interim order thereby restraining the corporation from taking possession of the land known as 'Dhapa Square Miles'.
Assailing that order an appeal was preferred by the corporation before the Hon'ble Division Bench. The said appeal being no. 23 of 1971 was allowed by Their Lordships on 16th march, 1973 with the findings that the corporation being a local authority and Sens having the right of occupancy their rights have been extinguished in terms of the proviso appended to Section 6 (1) (h) of the Act. That decision was reported in AIR 1973 Cal Page-506 equivalent to 78 CWN Page-193 (The Corporation of Calcutta and Ors v. Dhirendra Nath Sen and Ors).
In support of his contention Mr. Ghosh relied on two other decisions reported in (1) 1997 (1) CLJ Page-352 (Nirmalendu Chakraborty & Ors v. State of West Bengal & Ors) & (2) 1997 (2) CLJ Page-452 (Bijoy Kumar Gupta & Ors v. State of West Bengal & Ors).
Assailing that judgment a special leave petition was preferred by the Sens before the Hon'ble apex Court being Civil appeal No. 791 of 1973 and by consent of the parties an Arbitrator was appointed and an award was published on 16th April, 1985. In terms of the said award the Sens became entitled to compensation of 12 lakhs without going into the merits of the respective parties. Accordingly the amount was paid to the Sens.
In that backdrop Mr. Ghosh argued that proforma respondents (Sens) have no authority to execute the said deed of conveyance on 4th September, 2012 in favour of the petitioner, as the Sens are the owner of the said land.
32. Mr. Ghosh further contended that said deed of conveyance does describe that how and in what manner the predecessors of the vendors acquired the ownership of the said land measuring of 55 decimals (approx) equivalent to 33 cottahs 5 chittaks 15 square feets in C.S Dag No.427/607 of Mouza Topsia.
33. Mr. Ghosh further vehemently urged that it is evident from the record of rights appearing at page 84 of the writ petition that the corporation was intermediary and Sens named therein were the Dhakhalkar of the land in question under Khatian No. 491 by virtue of the lease deed dated 29th July, 1909 executed by and between the corporation and the Sens.
34. It is emphasized by Mr. Ghosh that since the Sens were leasees in respect of the land belonging to the corporation under Khatian No. 490 the Sens were allotted tenanted Khatian No. 491 in respect of the said land which is evident from the record of rights.
35. Mr. Ghosh further vehemently urged that Land Reforms Act is applicable in this case. Because the said land had never vested to the government. The Corporation was allowed to retain the said land.
36. Mr. Ghosh further argued that a wrong entry in the record of rights does confer any title in favour of the Sens. The record of rights only gives right of occupancy the title or ownership.
37. Mr. Ghosh also strongly urged that the petitioner cannot get a better right than the Sens and the rights of Sens having been extinguished therefore, the petitioner cannot claim any right over the land by virtue of the deed of conveyance.
38. Mr. Ghosh further contended that effect of the change in law is that the Estates Acquisition Act as well as the Land Reforms Act as has been referred by Mr. Mal appearing for the proforma respondent are applicable in the present case as the property was never vested with the government. All along the said property had retained by Kolkata Municipal Corporation. Therefore, KMC is the absolute owner of the said land. In support of his contention Mr. Ghosh relied on a Hon'ble Division Bench decision reported in AIR 1973 (Cal) 506 Paras- 2, 5, 7 & 11 (Corporation of Calcutta & Ors v. Dhirendra Nath Sen & Ors).
39. Mr. Ghosh also submitted that grant or cancellation of the mutation in favour of any person does confer any right or title of the said person over the said property and on the other hand mutation of any property in favour of any party does extinguish right and title of the lawful owner. In support of his contention Mr. Ghosh relied on one Hon'ble Supreme Court decision reported in 2015 (16) SCC Page-689 Paras 13, 14 & 15 (Municipal Corporation Aurangabad v. State of Maharashtra & Anr).
40. In conclusion Mr. Ghosh submitted that since the Sens are the owner of the said property, therefore Sens' have no authority to execute any deed of conveyance in favour of the writ petitioner. He also emphasized that the petitioner has no authority to apply for mutation of the said property as the KMC is the lawful owner of the said property. Accordingly Mr. Ghosh suggested that the Court should dismiss the writ petition.
Decision with Reasons
41. Considering the rival submissions advanced by the learned Advocate appearing for the respective parties and after meticulously perusing the records and the relevant Sections and the decisions cited by the learned advocates. I find that the petitioner after purchasing the said land by virtue of a registered deed of conveyance from the proforma respondents applied for mutation before the Kolkata Municipal Corporation. Unfortunately without giving any opportunity of hearing the Kolkata Municipal Corporation rejected the petitioner's application for mutation of the said property thereby holding that the KMC is the owner of the said property.
I also find that in the impugned rejection order no document or evidence has been annexed or referred to that effect (ownership of K.M.C). It is also evident from the said impugned order, whether the petitioner's registered instrument like deed of conveyance was at all considered by the corporation at the time of rejecting the petitioner's application for mutation, though the said registered deed of conveyance is a subject matter of challenge before any competent Court of law.
I also cannot ignore the submissions of Mr. Mal appearing for the proforma respondents that till date name of the predecessors of the proforma respondents are appearing in the record of rights. Though admittedly record of right cannot confer any title to the person who is occupying the said property by virtue of the record of rights.
It is also on record that by virtue of the decree passed in Title Suit no. 70 of 1933 in the year 1935 and the orders time to time passed by the Hon'ble Apex Court, Hon'ble Division Bench as well as Hon'ble Single Bench following which arbitrator was appointed and an Award was passed. Pursuant to the award compensation was received by the predecessors of the Sens.
However, I find some substance in the argument of Mr. Basu appearing for the petitioner that the impugned order of rejection of mutation was passed in a cryptic manner without assigning any reason and also without giving any opportunity of hearing to the petitioner or its vendors i.e. the proforma respondents (Sens).
I also find some force in the argument of Mr. Basu that in the affidavit-in-opposition KMC made out a new case thereby declaring themselves as owner of the entire 'Dhapa Square Miles' though nothing is reflected from the impugned order. Furthermore, a single supporting documents have been disclosed pertaining to that effect.
42. Be that as it may considering the Section 183 (5) of the Kolkata Municipal Corporation Act, 1983 (supra) and also considering the decisions of Calcutta Municipal Corporation (supra), Mohinder Singh Gill (supra) and also considering the decisions of Nawabkhan Abbaskhan (supra), Shri Raghunandan Panda (supra), Bhagat Raja (supra) and Gurdial Singh Fijji (supra) I have no hesitation to hold that the impugned order dated 10th June, 2014 issued by the Assistant Assessor/Collector (TTD), the respondent no. 5 thereby rejecting the application of petitioner for mutation was passed in a cryptic manner without assigning any reason as well as without giving any opportunity of hearing to the petitioner.
Resultantly, the impugned order dated 10th June, 2014 issued by the Assistant Assessor/Collector (TTD), the respondent no.5 herein cannot be sustained in the eye of law as well as in the facts and circumstances of this case.
Accordingly, the impugned order dated 10th June, 2014 is hereby quashed and set aside.
43. I direct the Assistant Assessor/Collector (TTD) to revisit the entire issue and take a decision in accordance with law within six (6) weeks from the date of communication of this order after giving an opportunity of hearing to the petitioner or his authorised representative, the proforma respondents (Sens) or their authorised representative and the corporation or their authorised representative and thereafter communicate the reasoned decision to the parties within one (1) week.
44. With the above directions this writ petition is disposed of without any order as to costs.