Calcutta High Court (Appellete Side)
Kali Kumar Mukherjee vs Kolkata Municipal Corporation & Ors on 6 September, 2016
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
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06.09.16
Item No. 73
Ct. No.38
AB
W.P. No. 5741 (W) of 2015
In the matter of : Kali Kumar Mukherjee
- versus -
Kolkata Municipal Corporation & Ors.
Mr. Biswabrata Basu Mallick
........ for the Petitioner
Mr. Biswajit Mukherjee
Ms. Koyeli Bhattacharyya
....... For the K.M.C.
The instant writ petition has been preferred
challenging, inter alia, an order dated 17th January, 2015
passed by the respondent no. 2.
Mr. Basu Mallick, the learned advocate appearing for the petitioner submits that initially the petitioner approached the Kolkata Municipal Corporation (hereinafter referred to as KMC) authorities for mutation of his name in respect of premises no. 29, Beniatola Lane on the basis of a deed of trust-cum-will dated 20th January, 1958. Such application was duly considered by the respondent no. 2 and by an order dated 12th July, 2011 the name of the petitioner was directed to be mutated and recorded in the 2 books of record of KMC as Sebait of the deity of Shib Thakur in respect of the premises no. 29, Beniatola Lane (Assessee No. 11-040-02-0047-6). Inadvertently, at the time of hearing, it was not pointed out that the premises no. 29 was renumbered as 29, 29A and 29B, Beniatola Lane and as such the petitioner made a further application to the said respondent no. 2 for recording his name in respect of the premises no. 29A Beniatola Lane (Assessee No.11-040-02-0116-0) and 29B, Beniatola Lane (Assessee No.11-040-02-0048-8) but as such application was not considered, the petitioner approached this Court by a writ petition being, W.P. 25461(W) of 2014, which was disposed of by an order dated 13th November, 2014 directing the competent authority of KMC to take a decision in respect of the petitioner's application, in accordance with law. Pursuant thereto, the impugned order dated 17th January, 2015 was passed by the respondent no.2 observing that on the basis of the deed of trust-cum-will, which is an unregistered and unprobated one, mutation cannot be granted.
He further submits that the petitioner's previous application for mutation in respect of premises no. 29, Beniatola Lane was also opposed on the ground that the 3 deed of trust-cum-will was an unregistered one but such objection was negated by the respondent no.2. Such fact was not taken into consideration by the self-same respondent while issuing the impugned order dated 17th January, 2015 and that the said impugned order is a cryptic one.
Per contra Mr. Mukherjee, the learned senior advocate appearing for KMC, along with Ms. Bhattacharyya, submits that no proper application was made seeking mutation pertaining to premises nos. 29A and 29B of Beniatola Lane and that there is an existing civil suit and that as such mutation cannot be effected in favour of the petitioner. Furthermore, on the basis of an unregistered deed mutation cannot be granted.
Heard the learned advocates appearing for the respective parties and considered the materials on record.
Indisputably, mutation was effected in favour of the petitioner in respect of premises no. 29, Beniatola Lane negating the objection that the deed of trust-cum-will is an unregistered one. Such fact does not appear to have been taken into consideration by the respondent no. 2 while issuing the impugned order dated 17th January, 2015. The controversy relating to the title in respect of the property 4 between the parties in the civil proceeding cannot stand in the way of getting the property mutated [See the judgment delivered in the case of Chanda @ Sandhya Rani Chakraborty -vs- Chabi Palui, reported in (2010) 4 CHN 231]. The order impugned also does not reveal any independent application of mind and the petitioner's claim has been rejected by a cryptic order and that as such the same is not sustainable in law.
For the reasons discussed above, the impugned order dated 17th January, 2015 passed by the respondent no. 2 is set aside and the said respondent no. 2 is directed to consider the petitioner's application for mutation pertaining to premises nos. 29A and 29B, Beniatola Lane, Kolkata - 700 009, afresh, upon granting an opportunity of hearing to the petitioner and the private respondents herein and to pass a reasoned order, in accordance with law and to communicate the same to the petitioner and the private respondents.
The above exercise should be completed within a period of six weeks from the date of communication of this order.
With the above observations and directions the writ application is disposed of.
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There shall, however, be no order as to costs. Photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties upon compliance of all necessary formalities.
(Tapabrata Chakraborty, J.)