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2010 Supreme(Cal) 974
High Court of Judicature at Calcutta
TAPEN SEN
Tapasri Basu
Versus
Calcutta Municipal Corporation & Others
W.P. No. 153 of 2007
Decided On : 13-08-2010
For the Petitioner:A.C. Kar, Sr. Advocate.
For the K.M.C.:A.K. Das Adhikari, Sr. Advocate. S. De, Advocate.
The KMC cannot frustrate or ignore the rights of a person flowing from a Decree by relying on technicalities.
Headnote:
PROPERTY LAW - MUNICIPAL CORPORATION - SEPARATION OF PREMISES - KMC ACT, 1980 - SECTIONS 178(1), 183 - DECREE OF PARTITION - BINDING EFFECT ON KMC - PROCEDURE FOR MUTATION - APPLICABILITY - RIGHTS OF CO-OWNERS - ASSESSMENT OF ANNUAL VALUE - MANDAMUS - ISSUANCE - CONDITIONS.
Fact of the Case:
The Petitioner, a co-owner of Premises No. 2, Raja Kalikrishna Lane, having an undivided 1/6th share, sought a Writ of Mandamus to direct the Respondents to delete the names of the previous owners and insert her name as "Owner" in respect of the said premises. The Petitioner claimed that the property was demarcated and her share was allotted as per the Decree and Plan approved by the parties. However, the Corporation had segregated the property and allotted the old number to the Petitioner's portion and a new number to the remaining 5/6th share, without giving her any notice. The Petitioner also challenged the assessment of annual value for the separated properties.
Finding of the Court:
The Court held that the Decree of Partition was binding on the parties but not on the Kolkata Municipal Corporation (KMC), which had its own statutory provisions for mutation and separation. However, the Court found that the KMC had not followed its own Regulations and had not taken into consideration the rights of the Petitioner flowing from the Decree. The Court held that the KMC could not frustrate or ignore the rights of a person flowing from a Decree by relying on technicalities.
Issues: 1. Whether the Decree of Partition was binding on the KMC. 2. Whether the KMC followed its own Regulations for mutation and separation. 3. Whether the KMC could ignore the rights of the Petitioner flowing from the Decree.
Ratio Decidendi: 1. The Decree of Partition was binding on the parties but not on the KMC. 2. The KMC did not follow its own Regulations for mutation and separation. 3. The KMC could not ignore the rights of the Petitioner flowing from the Decree.
Final Decision: The Court allowed the Writ Petition and directed the KMC to allow the Petitioner's Application and rectify its records in accordance with the Decree. The Court also directed the Petitioner to file and give all necessary details to the Corporation along with a Notice to the co-owners and the Municipal Authorities were directed to rectify their records after giving an opportunity of hearing to the Petitioner as well as to all the Parties concerned.
Tapen Sen, J.
In this Writ Petition, the Petitioner prays for the issuance of a Writ of Mandamus Commanding upon the Respondents to delete the names appearing as owners in respect of Premises No. 2/1, Raja Kalikrishna Lane and insert her name as “Owner” thereof and further be directed to follow the Regulations of the Corporation in the matter pertaining to separation on the basis of the Decree and alter the original number by giving a new number to the separated portion.
2. The Petitioner is a co-owner of Premises No. 2, Raja Kalikrishna Lane having an undivided 1/6th share which was Declared so by a Preliminary Decree passed in Title Suit No. 808 of 1987 dated 23.3.1988 and confirmed by a final Decree dated 28.11.1994. Copies of the said Preliminary Decree as also the final Decree have been brought on record vide Annexure-P/1 appended to the Writ Petition.
3. According to the Petitioner, the property has been demarcated and 1/6th share thereof has been allotted to the Petitioner and the remaining 5/6th share has been allotted jointly to the Defendants in the Suit.
4. According to the further case of the Petitioner, after the final Decree was passed, the property was not separated because the Plaintiffs did not remove their belongings and the Meter Boards from the allocation given to the Petitioner. However demarcation was completed on 12.10.2002 when the Meter Board was finally removed and the entry into the other lot was closed. The Petitioner has stated that only 1/6th of her share was demarcated from the entire property as per plan approved by the parties.
5. The Petitioner’s further case is that she is unaware of any mutation in the records of the Respondents on the basis of the Preliminary and the final Decree but, on an enquiry made sometime in July/August 2004, it transpired to her that the property being Premises No.2, Raja Kalikrishna Lane had been segregated and the portion allotted to the Petitioner had been given the old number and the remaining Premises, being the 5/6th share, had been given a new number being 2/1, Raja Kalikrishna Lane, Kolkata700005.
6. According to the further case of the Petitioner, Premises No. 2 had an Assessee No. being 11-01-0-31-0007-0 of Ward No. 10 having an annual value of Rs. 10,620/- and although the original premises number had been allotted to the Petitioner, yet all the names of the co-sharers were and are still continuing to be shown as “Owners”.
7. The Petitioner has stated that she applied for a Certified Copy of the Assessment Book on 13.9.2004 relating to both Premises No. 2 as well as Premises No. 2/1 of Raja Kalikrishna Lane. According to the Petitioner, Premises No. 2 has retained the Assessee No. 11-010-31-0070-0 whereas Premises No. 2/1 has been awarded a new Assessee No. 110-103-100410.
8. The Petitioner has stated that Notice of separation was never given to her and the entire proceedings for separation was done without any Notice to the Petitioner. According to the further case of the Petitioner, before any separation is made and Annual Value Fixed, the Petitioner was entitled to notice and although the old Annual Value of the entire Premises containing an area of about 7.65 Katthas was Rs. 10,620/- but after separation, the annual value of Premises No. 2 had been assessed at Rs. 10,160/- with effect from the 3rd Quarter of 2003-04 (See Para 17 infra) whereas the annual value for the majority 5/6th share have been assessed at Rs. 10,160/- with effect from the 3rd Quarter of 2003-04.
9. Being aggrieved, the Petitioner filed W.P. No. 2213 of 2004 praying for reassessment of the Annual Value and segregation of the properties after due notice to the Parties. The Petitioner also prayed for a Direction upon the Authorities to produce the records relating the mutation of the names relating to the Premises.
10. The Petitioner has stated that the said Writ Petition was disposed of by an Order dated 17.1.2005 by which the Municipal Authorities were directed t
