JUDGMENT :

JAY SENGUPTA, J.

1. This is an application under Article 226 of the Constitution of India praying for direction upon the respondent authorities, especially the respondent no. 4, to cancel and withdraw the order dated 02.09.2011 and mutate the name of the petitioner in respect of the property being Flat No. 11, Block No. A, KIT Scheme No. BIS-1 at 7/1, Rajendra Mullick Street, Kolkata-700007.

2. Learned counsel for the petitioner submitted as follows. The Writ petitioner was the daughter of late Kamakhya Prosad Choudhury and late Yogamaya Choudhury. The parents of the petitioner were the tenants under Kolkata Improvement Trust [now, Kolkata Metropolitan Development Authority] in respect of one flat being no. A/11 lying and situated at Block-A, of KIT Scheme No. BIS-I, 7/1, Rajendra Mullick Street, Kolkata – 700007. The said tenancy continued in succession. The petitioner was a bonafide allottee in succession. The brothers and sisters of the writ petitioner were pleased to grant “no objection” in favour of the petitioner to apply for ownership of the said flat. By a notification dated 28.10.2004, the Kolkata Improvement Trust informed the occupant/tenants and the allottees that the respondents had decided to execute and register a deed of sale upon a payment of consideration as specified in the notification. The petitioner thereafter made an application addressed to the respondent no. 2 for registration on 29.10.2009 for the ownership of the flat in the name of the petitioner. Pursuant to the application, the respondent no. 2 issued a notice dated 16.03.2010 thereby directing the petitioner to appear before him on 22.03.2010 along with all documents and testimonials in support of her case. The said date of hearing was subsequently re-fixed. The matter was taken up for hearing by the respondent no. 4 on 12.08.2011 and again on 02.09.2011. Smt. Kakoli Biswas, Smt. Sucheta Chowdhury, Sri Kinjal Chowdhury, Smt. Tania Ghosh were served with notice. Smt. Kakoli Biswas, Sri Tridib Ghosh, Smt. Anubha Ghosh appeared before the respondent no. 4 for hearing. The parties made their respective submissions and after hearing the concerned parties and after going through the materials on record, the respondent no. 4 rejected the prayer for mutation of the petitioner as well as the application filed by the private respondents. The private respondent Tridib Jyoti Ghosh filed a writ application on 24th day of June 1985 being writ petition no. C.O/W.P. 11297 (W) of 1985 challenging the purported threat to evict him from the said flat against the Kolkata Improvement Trust Authority including its Chairman, Trustees and Estate Manager. By on order dated 17th January 2002, this Court was pleased to dismiss the said writ petition with the observation that the writ petitioner had no right, title or interest in the said flat and issued a specific direction to vacate the said flat and to handover vacant possession of the said flat within a month. The private respondent Tridib Jyoti Ghosh preferred an intra Court Appeal, but till date failed to obtain any stay against the operation of order dated 17.01.2002. The private respondent was required be treated as an unauthorized occupant who had been disregarding the solemn order dated 17.01.2002 of this Hon’ble Court.

3. Learned senior counsel representing the private respondent submitted as follows. By the impugned order, the Estate Manager rejected the application of the writ petitioner dated 29.04.2009, for allotting the flat, which was a rental flat governed by the W.B.G.P. (TR) Act, 1976 and not a private property under Transfer of Property Act. The Estate Manager while deciding the issue had recorded the entire statements of the writ petitioner and the private respondents and had come to the conclusion that the writ petitioner being the daughter of the late allottees had not been residing in the flat and she had permanently left the flat in the year 1979 and stayed outside the said flat. Her prayer