JUDGMENT :

HIRANMAY BHATTACHARYYA, J.

1. The instant appeal is at the instance of North Dum Dum Municipality (for short “NDM”) and is directed against an order dated December 12, 2019 passed by an Hon’ble Single Judge in WP No. 11146 (W) of 2018.

2. The respondent nos. 1 and 2 claim to be the owners of a flat situated within the municipal limits of NDM. They claim to have purchased the flat for a valuable consideration. The said respondents applied for mutating their names in respect of the said flat in the records of the NDM. The authorities of the NDM after giving an opportunity of hearing to them on the application for mutation passed an order dated June 17, 2017 holding that the municipal authority shall charge 1% of the deed value at the time of mutation as per the resolution of the Board of Councillors. The said respondents challenged the authority of the NDM to charge/demand an amount at such rate as the same is in violation of Rule 121 of the West Bengal Finance and Accounting Rules, 1999 (for short “the 1999 Rules”) by filing the instant writ petition.

3. The Hon’ble Single Judge, by the order impugned, allowed the writ petition thereby setting aside and quashing the demand raised by the NDM on account of surcharge. Being aggrieved against such order, the NDM has preferred the instant appeal.

4. Mr. Hirak Mitra, learned Senior Counsel for the NDM contended that Section 117 of the West Bengal Municipal Act 1993 (for short “the 1993 Act”) empowers the Board of Councillors of a municipality to levy a surcharge on the transfer of immovable property. He further contended that in the meeting of the Board of Councillors of the NDM held on January 31, 2017 it was resolved that the municipality shall impose and collect mutation fee and surcharge during mutation of any immovable property. He also contended that on the basis of the aforesaid resolution the Chairman of NDM issued an order dated February 2, 2017 to such effect. Mr. Mitra thus, contended that the amount demanded from the writ petitioners/respondents for mutating their names in the records of the NDM is on the basis of the aforesaid order of the Chairman, NDM dated February 2, 2017. Mr. Mitra contended that the Hon’ble Single Judge erred in law by misinterpreting the provision laid down under Sections 116 read with 117 of the 1993 Act inasmuch as the said Act empowers the municipality to collect mutation fee and surcharge at the time of mutation.

5. He, further contended that the Hon’ble Single Judge erred in law by restraining the NDM from levying surcharge without taking into consideration the Memo dated April 10, 2002 issued by the Director of Local Bodies, Government of West Bengal whereby the competence of the Municipal authorities to impose surcharge on transfer of immovable properties situated within the municipal area in terms of Section 117 (1) of the 1993 Act was well recognised.

6. He next contended that the Municipalities require the proceeds of the taxes and surcharge for the purpose of their own administration and for such purpose the 1993 Act has delegated the power of taxation to the municipalities. In support of such contention the Learned Senior Counsel for the NDM relied upon a judgment of the Hon’ble Supreme Court of India in the case of Municipal Corporation of Delhi vs. Children Book Trust, AIR 1992 SC 1456.

7. Smt. Malabika Saha, the respondent no. 1 appeared in person and seriously disputed the contentions made by Mr. Mitra. She drew the attention of the Court to a memo dated May 4, 2015 issued by the Joint Secretary to the Government of West Bengal, Department of Municipal Affairs whereby the Chairman/ Chair person of municipalities/Notified Area Authorities were directed to ensure strict applications of Rule 121 of the 1999 Rules in relation to imposition of mutation fees in the municipalities. By the said order the municipalities were also restrained from levying any other fees/charges such as processing fees, development fees etc. in mutation cas