Calcutta High Court (Appellete Side)
Akd Sheik Sakhawat Hossain vs The State Of West Bengal & Ors on 12 July, 2017
Author: Harish Tandon
Bench: Harish Tandon
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20 12.07.17 W.P. 17840 (W) of 2017
Ct. No. 2
akd Sheik Sakhawat Hossain
Vs.
The State of West Bengal & Ors.
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Mr. Deobrat Upadhyay, Ms. Bhagyashree Sharma, Ms. Munmun Mazumder.
... for the petitioner.
Mr. T. M. Siddiqui, Mr. Azim Md. Sabir.
... for the State.
Mr. Biswajit Mukherjee, Mr. Gopal Chandra Das.
... for the KMC.
The petitioner claims to be an absolute owner of piece and parcel of land measuring 2 Cottahs 10 Chittaks, being a portion of the premises no. 13B Rajab Ali Lane, Calcutta - 700 023, on the basis of the earlier Hebanama executed by his father during his lifetime as well as the deed of gift duly registered in the office of the Registrar by his brother, being the other co-sharer/co-owner.
The petitioner approached the Kolkata Municipal Corporation to mutate his name, but such mutation was not granted, as the property is comprised in thika tenancy. The petitioner applied under Right to Information Act whether the said property is recorded as thika tenanted property or not.
Curiously enough the Thika Controller furnished an information that the said premises appears to be a thika tenanted property though there is no claim of thika tenancy over the same from any corner. The aforesaid information is gathered by the Thika Controller because of the assignment of the number to the said property as B/13B/H/11, Rajab Ali Lane, Calcutta - 23.
According to the petitioner, the Assessment Register maintained by the Kolkata Municipal Corporation contains an information that the said land is used as "Garden" and, therefore, the definition 2 of "Bustee" given in the Kolkata Municipal Act, 1980 is not satisfied. There should be a cluster of huts and the area must be less than 700 square metre.
The Corporation is unable to apprise the Court how such number was assigned to the property of the petitioner nor the State is in a position to throw a light on the same.
If the Thika Controller does not find that the said property is recorded as thika tenanted property, as no claim is made in respect thereof, it ought to have proceeded to determine the nature of such land/property, as the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 provides for vesting of such property into the State.
Since the dispute appears to be over the status of the said property, in view of Section 5(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 the Thika Controller is the competent authority to determine the same.
Once the forum has been provided to ventilate the said grievance and for adjudication of the same, the Writ Court should not interfere and usurp the power of the said forum for deciding the issue.
This Court, therefore, permits the petitioner to make a substantive application before the Thika Controller for the similar and identical reliefs claimed in the instant writ petition and if such application is made, the Thika Controller is directed to adjudicate the issue and shall see that the same is disposed of within three months from the date of filing of the said application in accordance with law.
With the above observations, the writ petition is disposed of.
There will be no order as to costs.
(HARISH TANDON, J.) 3