Calcutta High Court
Ahamed Raza vs State Of West Bengal & Ors on 7 March, 2017
Author: Harish Tandon
Bench: Harish Tandon
WP 58 of 2017
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
AHAMED RAZA
Versus
STATE OF WEST BENGAL & ORS.
BEFORE:
The Hon'ble JUSTICE HARISH TANDON
Date : 7th March, 2017.
Mr. Goutam Chakraborty,Advocate appears.
Mr. Purnendu Dey,Advocate appears.
Mr. Gopal Ch. Das,Advocate appears.
Mr. Rudranil De,Advocate appears.
Mr. Prabal Mukherjee,Sr. Advocate appears.
Mr. Lalratan Mondal,Advocate appears.
The Court :- Despite service, there is representation on behalf of the State.
The Kolkata Municipal Corporation and the private respondents are represented.
The instant writ petition has been filed challenging the order dated 8.6.2016 passed by Assessor Collector (North) of Kolkata Municipal Corporation rejecting an application for mutation until a determination is made as to the nature of the premises by the controller of thika tenancy.
2
The fact remains that the petitioner applied for mutation of his name in the register maintained by the Corporation as person responsible for payment of property tax as lessee on the strength of a deed of lease executed and registered in his favour by the owner of the land being the private respondent herein. The impugned order reveals that the said authority found the said premises to have been included in the list maintained for the thika tenanted properties. It was a specific stand of the petitioner that the tenant at the said premises approached the rent controller for depositing the rent treating himself to be a monthly tenant governed by the West Bengal Premises Tenancy Act and took the same stand in an eviction suit instituted against him. It is preposterous at this stage to say that the property comprised in a thika tenancy and, therefore, the authorities have proceeded on a wrong premise.
Strangely enough, the authority while rejecting the application for mutation proceeded with the firm view that the property is comprised in thika tenancy and went further in declaring the lease executed in favour of the petitioner to be illegal. If the Corporation found that the property is included in the list of a thika tenanted property and a dispute has been raised over such character, it had no authority to declare the status of the property in view of Section 8(2) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. Such power has been vested upon the thika controller and in view of the exclusion of provision contained in Section 21 of the said Act, the Corporation cannot usurp such power and declare the lease to be illegal being violative of the provisions of Section 5(4) of the said Act.
3
The validity, genuinity, authenticity and the legality of the lease executed by the private respondent in favour of the petitioner is depended upon the determination of the status of the premises by the controller of thika tenancy and until such determination is made, any observation touching upon such status - that too by an authority in not vested with any power under the said Act cannot sustain in eye of law.
The order impugned is modified to the extent that the observation pertaining to the declaration of lease to be illegal is hereby set aside so the portion in which the application for mutation is also disposed of.
The application filed by the petitioner for mutation shall remain pending and be taken up after the determination is made by the controller of thika tenancy.
The controller of thika tenancy is directed to inform the Corporation whether such property has been declared as a thika tenancy or not within eight weeks from the date of communication of this order by the Corporation.
The Corporation is directed to communicate this order to the thika controller within two weeks from date.
With this observation, the writ petition is disposed of. No order as to costs.
(HARISH TANDON, J.) S.Chandra