Calcutta High Court (Appellete Side)
Tapan Kumar Sadhukhan vs The Khardah Municipality & Ors on 15 December, 2017
Author: Shekhar B. Saraf
Bench: Shekhar B. Saraf
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15.12.2017
ss
05
W.P. 29854(W) of 2014
Tapan Kumar Sadhukhan
Vs.
The Khardah Municipality & ors.
Mr. Hiranmoy Bhattacharya
Mr. Saunak Bhattacharya
... For the petitioner
Mr. Bikash Kumar Chattopadhyay
... For the Municipality
1. As per direction of this Court petitioner has filed affidavit of service,
which is kept with the record. Despite service nobody appears on
behalf of the private respondents.
2. This is an application under Article 226 of the Constitution of India challenging the wrongful action on the part of the respondent authorities in relation to (a) granting mutation in favour of the private respondents and (b) demolition of a portion of the impugned premises.
3. The factual matrix of the case is as follows :-
i) The property was mutated in the name of the writ petitioner as is reflected from the extract of the assessment roll register for the year Assessment 2/97-98 dated 18th August, 2000.2
ii) Several disputes arose between the writ petitioner and the co-
sharers of the writ petitioner and the private respondents filed for mutation of the property in their own names.
iii) A Suit being T.S.30 of 1998 was filed by two of the private respondents against the writ petitioner.
iv) From the documents perused it appears that the suit was dismissed for default on 26th May, 2010. Subsequently, another suit had been filed by the writ petitioner bearing T.S.260 of 2012 wherein an interim order was passed to maintain status quo regarding the possession, nature and character of the suit property. This interim order has been extended time and again and subsists till date.
v) By letter dated 2nd December, 2010, the Chairman, Kharda Municipality, wrote to the writ petitioner and one of the private respondents stating that there were certain anomalies in the documents submitted by the parties which needed to be cleared through the competent court of law. The Municipal authorities further stated that they had no authority to determine the title and interest in whose favour the land stands and the same needs to be determined through the court of law.
vi) Subsequently, on 13th September, 2011 notice was sent to the writ petitioner and the private respondents for a personal hearing to be given with respect to the above matter.
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vii) On October 10, 2011 the writ petitioner also gave an objection for the mutation in respect of the impugned premises and produced various documents in support of his objection.
viii) On January 11, 2014, SPIO & Executive Officer, Kharda Municipality wrote a letter to Sri Tapan Kumar Sadhukhan, the petitioner herein, stating the following:-
"Dear Sir, In inviting a reference to your letter dt. 10.12.2013 and subsequent letter dt.18.12.2013, this is to inform you that Sri Ashru Kumar Sadhukhan & Ors. Had submitted the ROR (R.S. & L.R.) in favour of them for mutation of property at Dag No.1215 at Mouza- Sukhchar. But, as they did not mention the actual place of land where it is situated, the Municipal Authority is unable to ascertain the actual position of the said land. However, as they have submitted an undertaking through an Affidavit that the land in question is seized and possessed by them, the Municipal Authority recorded their name on the basis of the aforesaid undertaking and porcha. However, if any order from the Competent Court of Law is received by the Municipal Authority, we will obey and comply that order."
4. Counsel on behalf of the Kharda Municipality submits a report dated December 12, 2017, submitting the following documents:-
"Documents:
1. Certificate of Mutation issued by the office of the Block Land and Land Reforms Officer, Panihati, Sodepur, Kolkata 700114 dt. 16/09/2010 in favour of Sri Ashru Kumar Sadhukhan.
2. Certificate of Mutation issued by the office of the Block Land and Land Reforms Officer Panihati, Sodepur, Kolkata 700114 dt. 16/09/2010 in favour of Sri Ashim Kumar Sadhukhan.
3. Certificate of Mutation issued by the office of the Block Land and Land Reforms Officer Panihati, Sodepur, Kolkata 700114 dt. 16/09/2010 in favour of Sri Ashoke Kumar Sadhukhan
4. Connecting copies of Parcha.
5. Hand sketch Map signed by Sri Ashru Kumar Sadhukhan, Sri Ashim Kumar Sadhukhan and Sri Asoke Kumar Sadhukhan.
6. Affidavit by Sri Ashim Kumar Sadhukhan, dt. 11/10/2010.
7. Prayer for Mutation by Sri Ashim Kumar Sadhukhan, Sri Asru Kumar Sadhukhan and Sri Asoke Kumar Sadhukhan, dt. 25/10/2013.4
8. Affidavit by Sri Ashim Kumar Sadhukhan, Ashru Kumar Sadhukhan and Sri Asoke Kumar Sadhukhan, dt. 16/11/2013."
5. It may be noted that none of the documents submitted in the report relates to any Court order passed by any competent court of law with regard to determination of the title or possession of the impugned premises.
6. The action of the respondent authorities in carrying out the mutation in favour of the private respondents in the year 2014 in circumvention of their own letter issued on December 2, 2010 wherein they had asked the parties to obtain definitive determination of who is the owner of the property is contrary to law. The authority is unable to explain as to why suddenly there was a change of heart and why suddenly simply based on an undertaking and an affidavit filed by the private respondents, the mutation was carried out in their favour. The respondent authorities relied on the porcha which was submitted by the private respondents in respect of their decision to carry out mutation in favour of the private respondents.
7. The above action of the respondent authorities is nothing but playing hot and cold depending on the circumstances. The statements of the respondent authorities in the letter dated January 11, 2014 that the Municipal Authority is unable to ascertain the actual position of the "said land" clearly reveals that they had no idea as to the location of the 5 property and therefore, could not have any idea who was the actual owner of the said property.
8. In such a situation, changing the names of the persons in the Assessment Register is without any justification.
9. The Kharda Municipality is accordingly directed to cancel the mutation in the name of the private respondents and the same be restored in the name of the writ petitioner as on 18th August, 2000 within a period of four weeks from the date of communication of this order. The respondent authorities shall be at liberty to thereafter grant an opportunity of hearing to the private respondents and the writ petitioner and ensure that documents submitted by both sides are exchanged between the parties, and thereafter, pass a reasoned order within ten weeks from date.
10. With regard to the prayer (c) in the writ petition, the writ petitioner submits that the demolition has already taken place and therefore, the above prayer of setting aside, cancelling or quashing the order dated 27th September, 2014 does not subsist.
11. There is another prayer being prayer (d) in the writ petition seeking compensation for the damages suffered by writ petitioner as a result of demolition of a portion of the impugned premises.
12. This Court is of the view that the issue in relation to demolition can only be decided after exchange of affidavits.
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13. Accordingly, the respondent authorities is directed to file affidavit- in-opposition within a period of four weeks, reply, if any, shall be filed two weeks thereafter.
14. The matter shall appear in the monthly combined list of February, 2018.
(Shekhar B. Saraf, J.)