Calcutta High Court
Companion Traders Pvt. Ltd. & Ors vs Kolkata Municipal Corporation & Ors on 13 December, 2013
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Jurisdiction
ORIGINAL SIDE
Present :
The Hon'ble Justice Soumen Sen
W.P.No.656 of 2013
With
W.P.No.985 of 2013
COMPANION TRADERS PVT. LTD. & ORS.
VS.
KOLKATA MUNICIPAL CORPORATION & ORS.
For the plaintiff : Mr. Anindya Kumar Mitra, Sr. Adv.,
Mr. Abhrajit Mitra,
Mr. Jishnu Chowdhury,
Mr. Satadeep Bhattacharya
For the KMC : Mr. Biswajit Mukherjee,
Mr. Fazlul Haque,
Mr. Debangshu Mondal
For the added-respdt. : Mr. Amitesh Banerjee,
Mr. B.Ghosh
Heard on : 13.11.2013, 29.11.2013
Judgment on : 13th December, 2013
Soumen Sen, J.:-Since common questions of law and facts arise in
both the writ applications they were heard together and dispose of by
this common judgment.
The petitioners claimed to have acquired several plots of land by 22
several conveyance deeds, which are adjoining each other, all situated in
Mouza Madurdaha in Borough No.XII of the Kolkata Municipal
Corporation. Each of the previous owners has separate assessee
numbers for their respective plots of land and bills are raised by the KMC
in their names. After transfer of their respective plots, the previous
owners along with the petitioners gave notices of transfer in the requisite
form to the KMC. After the applications for mutation were made by the
said petitioners, the respondent authorities informed the said petitioners
that there are outstanding tax dues payable by the previous owners against their separate assessment and it was represented that unless the petitioners cleared the outstanding taxes, mutation applications filed by the petitioner for mutating their names could not be affected. On the basis of the said representation, the petitioners have cleared the outstanding dues. In spite of the aforesaid, the Kolkata Municipal Corporation has failed and neglected to mutate the names of the said petitioners. It is with this grievance, the petitioners filed this writ application.
The Corporation appears to have refused such mutation on the ground that the State of West Bengal had requisitioned vast plot of land including the entire land of Mouza Madurdaha for the promotion of the Fishery business and allied activities. The Fisheries Department, however, did not give any No-Objection Certificate to the petitioners and so long as the requisition subsists the name of the petitioners cannot be mutated. It was contended that No Objection Certificate from the Fisheries Department is essential to effect mutation.
This seems to be the only objection raised by the Kolkata Municipal Corporation.
The petitioners contended that although the said property was requisitioned for the promotion of the Fishery business, the said projects never proceeded nor the Fisheries Department or State of West Bengal took any steps to acquire the said land. It was contended that the Fisheries Department duly de-requisitioned the same and released all the land comprised in Mouza Madurdaha and on various plots, the construction of the buildings had been made as per building plan duly sanctioned by the authorities concerned. The petitioners, in this regard, had relied upon the order dated 27th January, 2010 passed by this Hon'ble Court in W.P. No.156 of 2009, G.A. No.2263 of 2009 (Leonine Estate Pvt. Ltd. & Ors. - Vs. - Kolkata Municipal Corporation).
The Fisheries Department appeared and filed an affidavit. In the affidavit, the Fisheries Department contended that the property was requisitioned under LA Case No. L.A. XX/45 of 66-67 and possession was taken on 13th November, 1966. The possession certificate dated 13th November, 1966 is annexed to the affidavit filed by the Fisheries Department. However, it is admitted by the Fisheries Department that since then no action was taken by them for acquisition of the said plots and it had remained as it is unutilized. In respect of some other plots of land, in and around the said Mouza, steps have already been taken for de-requisition and in this regard reference was made to memo no.36 (A)/1788 (2)/61/P/10, dated 26th April, 2010 issued by the District Magistrate and Collector, South 24-Parganas in connection with L.A. XX/42 to 50 of 66-67, inter alia, requesting the concerned Block Land and Land Reform Officer to take initiative in regard to the mutation application in connection with the Mouza's and to dispose of the same in accordance with law after hearing the representation of Special Land Acquisition Officer and Fisheries Department along with other interested parties.
It appears from the said document that the Fisheries Department had relinquished the land. The L & LR Department in its memo no. AS- 44/LA/TR-20/09 dated 27th January, 2010 was directed to hand over the possession of land relinquished by the Fisheries Department in favour of the land owners. The Fisheries Department contended that this department has no authority to de-requisition the concerned plots and the office of the Additional District Magistrate, South 24-Parganas, is the appropriate authority for such de-requisitioning. The necessary No- objection Certificate for such de-requisitioning would be issued by the Fisheries Department in favour of the said authority. In short, the Fisheries Department contended that the Fisheries Department do not require the said property and Fisheries Department would issue the No- objection Certificate for de-requisition of the said plots. However, it is submitted that in view of Section 7 of the West Bengal Fisheries (Requisition and Acquisition) Act, 1965 procedures indicated therein is required to be followed.
The Kolkata Municipal Corporation had also submitted that once a No-objection Certificate is received from the Fisheries Department, the Corporation had no objection.
Prior to the extension of area of the Kolkata Municipal Corporation to the plots of land in question the said plots of land were used to be assessed under the West Bengal Land Reforms Act and Rules framed thereunder. Accordingly, all applications for mutation were to follow the procedure laid down in the West Bengal Land Reforms Rules, 1965. West Bengal Land and Land Reforms Manual, 1991 in Chapter IV, deals with the manner in which the mutation of names in record-of-rights is to be done. Under such rules, mutation is done on the following grounds:-
(a) Transfer by sale, gift or hebanama,
(b) Exchange, and
(c) Inheritance The said Chapter also deals with the procedure and manner for disposal of petitions. After extension of the areas and provisions of the Kolkata Municipal Corporation, applications for mutation are to be decided in terms of Section 183 of the Municipal Corporation Act.
Mutation is the acknowledgment by the Municipality of any transfer or devolution of any land or building. The purpose of mutation is to ascertain the person primarily liable for the payment of taxes. The learned Counsel for the Corporation submits that at least upto 2005-06 the record available with the Corporation would show that most of the previous owners had been assessed and their names appear in the record-of-rights. However, consequent upon the extension of area, the Kolkata Municipal Corporation would be required to effect mutation and determine the person liable to pay tax. The learned Counsel is, however, unable to give a clear picture in absence of any record available with the Corporation to show that Fisheries Department was ever assessed or their name featured or appeared in the Parcha. The record-of-rights on record show the name of the previous owners.
Mr. Anindya Kumar Mitra, the learned Senior Counsel appearing on behalf of the petitioners submits that the municipal authority on receipt of a notice of transfer or devolution of title is required and obliged to record such notice of transfer and allow mutation in favour of such transferee in terms of Section 183 (5) of the Municipal Corporation Act. It is submitted that irrespective of requisition or de-requisition, the municipal authority could not have rejected the said applications on a specious plea that the Fisheries Department has failed to give a No- objection Certificate. It was submitted that in considering the applications for mutation, a No-objection Certificate from the Fisheries Department was immaterial when the fact remains that at no point of time Fisheries Department had ever claimed any right over the said plots of land or had mutated their name or had paid rates and taxes. The record-of-rights would clearly show that the private respondents were the owners of the said plot and they were separately assessed. In view of the aforesaid, the Corporation could not have rejected the said application for mutation. Mr. Mitra has referred to the decisions reported in AIR 1984 SC 866 (H.D. Vora v. State of Maharashtra & Ors.) and AIR 1984 SC 1707 (Jiwani Kumar Paraki v. First Land Acquisition Collector, Calcutta & Ors.) to emphasize that there is a clear conceptual difference between acquisition and requisition and the requisitioning authority cannot indefinitely hold on to the said property on requisition without paying any compensation to the owners.
In H.D. Vora (supra), the Hon'ble Supreme Court dealt with the two concepts of requisition and acquisition and stated that the said two concepts are totally distinct and independent. In Paragraph 5 of the said report, it is stated:-
"5. Acquisition means the acquiring of the entire title of the expropriated owner whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer leaving nothing to the former. Vide: Observations of Mukherjee, J. in Charanjitlal's case 1950 SCR 869 (AIR 1951 SC 41). The concept of acquisition has an air of permanence and finality in that there is transference of the title of the original holder to the acquiring authority. But the concept of requisition involves merely taking of "domain or control over property without acquiring rights of ownership" and must by its very nature be of temporary duration. If requisitioning of property could legitimately continue for an indefinite period of time, the distinction between requisition and acquisition would tend to become blurred, because in that event for all practical purposes the right to possession and enjoyment of the property which constitutes a major constituent element of the right of ownership would be vested indefinitely without any limitation of time in the requisitioning authority and it would be possible for the authority to substantially take over the property without acquiring it and paying full market value as compensation under the Land Acquisition Act, 1894. We do not think that the government can under the guise of requisition continued for an indefinite period of time, in substance acquire the property, because that would be a fraud on the power conferred on the government. If the government wants to take over the property for an indefinite period of time, the government must acquire the property but it cannot use the power of requisition for achieving that object."
Jiwani Kumar (supra) was cited to show that the property acquired or requisitioned must be for public purpose and in the said judgment also the Hon'ble Supreme Court distinguished the two concepts and held that the said two concepts are different; as in one title passes to the acquiring authority, in the other title remains with the owner, the possession, goes to the requisitioning authority. One is the taking over of the title and the other is the taking over of the possession. It was further held that normally the expression 'requisition' is taking possession of the property for a limited period in contradistinction to 'acquisition'. In Paragraph 24 of the said report while dealing with the purpose for which the said premises were requisitioned, it was found that there was no justification for keeping the entire premises in question requisitioned for over 25 years although only a part of the building, namely, one room was requisitioned.
H.D. Vora (supra) was considered by a larger Bench in Grahak Sanstha Manch & Ors. Vs. State of Maharashtra reported in 1994 (4) SCC 192. The Hon'ble Supreme Court held that while a requisition order can be issued for a permanent public purpose, it cannot be continued indefinitely. Requisitioning might have to be resorted to for a permanent public purpose, e.g., to tide over the period of time required for making permanent premises available for it. The concepts of acquisition and requisition are altogether different, as are the consequences that flow therefrom. A landlord cannot, in effect and substance, be deprived of his rights and title to property without being paid due compensation and this is the effect of prolonged requisitioning. Requisitioning may be continued only for a reasonable period; what that period should be would depend upon the facts and circumstances of each case and it would ordinarily, be for the Government to decide.
It was for the aforesaid reasons, the Hon'ble Supreme Court held that the decision in H.D. Vora (supra) does not require reconsideration. However, the observations made therein that the requisitioned order under the relevant Act could not be made for a permanent purpose, was disapproved.
The concept of acquisition and requisition was also considered and elaborated in Kewal Chand Mimani Vs. S.K. Sen & Ors. reported in 2001 (6) SCC 512. It is stated in the said decision that the two concepts of acquisition and requisition cannot but be ascribed to be totally distinct and independent: Whereas acquisition involves an element of permanency and finality involving a transfer of title, the concept of requisition is merely to take over the domain or control over the property without acquiring the rights of ownership and must be, by its very nature, be of temporary duration. Upon an order of requisition being passed, the physical possession of the property stands temporarily transferred to the State in terms of the requisition order, though, however, ownership of the property remains with the owners even during the time the requisition continues. In the event, however, of there being acquisition after the order of requisition, the ownership also stands vested on to the acquisitioning authority.
In the instant case, however, it is nobody's case that this requisition was for a permanent purpose. In fact, the Fisheries Department for whom such requisition was made has categorically stated in the affidavit that they do not require the said plots and the same may be de-requisitioned following the procedure prescribed under Section 7 of the West Bengal Fisheries (Requisition and Acquisition) Act, 1965. For the sake of convenience, the said Section is reproduced below:-
"7. (1) Release from requisition. - Where any fishery or lands requisitioned under Section 4 are not acquired and are to be released from requisition, the State Government may, after making such inquiry, if any, as it considers necessary, specify by order in writing the person who appears to it to be entitled to the possession of such fishery or lands.
(2) The delivery of possession of such fishery or lands to the person specified in the order made under sub-
section (1) shall be a full discharge of any liability of the State Government to deliver possession to such person as may have rightful claim to possession thereof but shall not prejudice any right in respect of such fishery or lands which any other person may be entitled by due process of law to enforce against the person to whom possession of the fishery or lands is so delivered.
(3) Where the person to whom the possession of any fishery or lands requisitioned under section 4 is to be delivered cannot be found or is not readily traceable or has no agent or other person empowered to accept delivery on his behalf or such person or his agent refuses to accept such delivery, the State Government shall publish in the Official Gazette a notice declaring that such fishery or lands are released from requisition and shall cause a copy thereof to be affixed on some conspicuous part of such fishery or lands, as the case may be.
(4) When a notice referred to in sub-section (3) is published in the Official Gazette, the fishery or the lands specified in such notice shall cease to be subject to requisition on and from the date of such publication and shall be deemed to have been delivered to the person entitled to possession thereof; and the State Government shall not be liable for any compensation or other claims in respect of such fishery or lands for any period after the said date."
In view of the admitted position as is discernible from the letter dated 26th April, 2010, disclosed by the Fisheries Department that the L & LR Department in its memo dated 27th January, 2010 had directed handing over the possession of several lands which include the plots of land in question in favour of the land owners and consequent whereupon the office of the Additional District Magistrate and District Land and Land Reforms Officer, South 24-Parganas, Alipore advised the BL&LRO to take the mutation application in connection with the aforesaid land for disposal and issue notices, inter alia, to the Spl. LAO and Fisheries Department requesting them to depute their authorized person, in the hearing for effectively deliver possession to the raiyats and if they have any objection, they may put before the said BL&LRO, this writ petition is disposed of by directing the Kolkata Municipal Corporation being the successor of the said authority to consider the said mutation application upon serving proper notice to the Fisheries Department requesting them to depute their authorized representative and to conclude the said proceeding within a period of four weeks from the date of the communication of this order. The Corporation submits that save and except the Fisheries Department, no other persons are required to be heard. It would be open for the Corporation to hear parties who are interested in the said proceeding and shall dispose of the mutation application in accordance with law. The Corporation shall take into consideration the Fisheries Department had already relinquished their right in favour of the landowners as recorded in the letter dated 26th April, 2010 being Annexure R2 to the Affidavit-in-opposition filed on behalf of the Fisheries Department. The writ petition is, accordingly, disposed of with the aforesaid direction.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)