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2018 Supreme(Gau) 1063
IN THE HIGH COURT OF GAUHATI
ACHINTYA MALLA BUJOR BARUA, J.
MAYNA BEGAM MOZUMDER - Appellant
Versus
STATE OF ASSAM AND 4 ORS - Respondent
Writ Petition (Civil) No. 7759 of 2017, 3579 of 2018
Decided on : 08-10-2018
Advocate Appeared:
R. Choudhury, Adv., S.S. Zia, Adv.
The central legal point established in the judgment is that the validity of property rights and certificates is subject to the outcome of pending civil suits and legal proceedings.
Headnote:
Inheritance Rights - Property Dispute - [Transfer of Property Act, Section 5] - The court discussed the inheritance rights of the legal heirs over an occupancy tenancy and the validity of No Objection Certificates granted by the Silchar Development Authority. The key legal provision discussed was Section 5 of the Transfer of Property Act, which deals with the transfer of property by inheritance.
Fact of the Case:
The case involved a property dispute between the legal heirs of a deceased individual over an occupancy tenancy right. The validity of No Objection Certificates granted by the Silchar Development Authority was also challenged.
Finding of the Court:
The court found that the issue of inheritance rights and ownership claims was already pending adjudication in a title suit. As a result, the No Objection Certificates granted by the authority were set aside, and the authority was directed to make a fresh decision based on the outcome of the civil suit.
Issues: The main issues revolved around the inheritance rights of the legal heirs and the validity of the No Objection Certificates granted by the authority.
Ratio Decidendi: The court's decision was influenced by the fact that the issue of inheritance rights and ownership claims was already sub judice in a title suit. As a result, the No Objection Certificates were deemed not maintainable until the civil suit was resolved.
Final Decision: The court set aside the No Objection Certificates and directed the Silchar Development Authority to make a fresh decision based on the outcome of the pending civil suit between the parties.
ACHINTYA MALLA BUJOR BARUA, J.
1. Heard Ms. R. Choudhury, learned counsel for the petitioners. Also heard Mr. S.P. Choudhury, learned counsel for the respondent No.5 in WP(C) No.3579/2018 and respondent No.8 in WP(C) No.7759/2017. Also heard Mr. B.K. Purakayastha, learned counsel for the respondent Silchar Development Authority as well as Mr. S.R. Barua, learned counsel for the authorities of Govt. of Assam in the Urban Development Department.
2. The petitioner in WP(C) No.3579/2018 is the daughter of late Makbul Ali Mazumder, whereas, the petitioner in WP(C) No.7759/2017 are the two sons of late Makbul Ali Mazumder. Late Makbul Ali Mazumder had seven children comprising of one daughter and two sons from his first wife and two daughters and two sons from second wife. The petitioner in WP(C) No.3579/2018 is one of the daughters from second wife whereas, petitioner in WP(C) 7759/2017 are the two sons also from the second wife. The respondent No.5 in WP(C) No.3579/2018 is the daughter from the first wife and the respondent No.8 in WP(C) No.7759/2017 is the grandson through one of the sons of the first wife. Late Makbul Ali Mazumder was an occupancy tenant in respect of 12 katha 2 Chattaks pertaining to dag No.1 & 2 in 2nd R.S. Patta No.1 under Porgona Barakpur, Cachar. The land owner of the said land was one Binoy Bhusan Mazumder.
3. In WP(C) 3579/2018, a No Objection Certificate for construction granted by the Silchar Development Authority in favour of the respondent No.5 therein has been assailed. On the other hand, in WP(C) 7759/2017 a similar No Objection Certificate also granted by the Silchar Development Authority in favour of the writ petitioner therein, which was objected by the respondent No.8 before the appellate forum. The appellate forum had interfered with the No Objection Certificate on the premises that the writ petitioner did not have the title over the land in question. The order of the appellate forum is assailed in WP(C) 7759/2017.
4. In the two writ petitions, the claim of the petitioners are that they being the legal heirs of late Makbul Ali Mazumder and late Makbul Ali Mazumder having occupancy tenancy right over the land in question, they also have a right of inheritance for such occupancy tenancy.
5. The respondent No.5 in WP(C) 3579/2018 on the other hand takes a stand that by a registered sale deed, she had purchased 5 kathas of land from the aforesaid 12 kathas 2 chataks and therefore, have a ownership right over the land so purchased. Similar is the stand of the respondent No.8 in WP(C) No.7759/2017 that by another registered sale deed, his father along with the two writ petitioners had purchased the balance amount of the land out of the 12 katha 2 chataks by another registered sale deed and therefore, they are owners of the land so purchased.
6. It is stated that the writ petitioner in WP(C) No.3579/2018 along with another daughter of late Makbul Ali Mazumder had already preferred title suit in the Court of Munsiff No.1, Silchar, Cachar being TS No.107/2018 for a declaration of their inheritance of occupancy tenancy right in respect of the 12 kathas 2 chaktaks of land. It is stated that the said title suit is still pending for adjudication.
7. In the aforesaid circumstance, validity of the two No Objection Certificate granted in favour of the respondent No.5 in WP(C) No.3579/2018 and the two writ petitioner in WP(C) No.7759/2017 is the subject matter of the two writ petitions.
8. The core ground of questioning the validity of the two No Objection Certificate granted by the Silchar Development Authority is that the other legal heirs of late Makbul Ali Mazumder having a right of inheritance of occupancy tenancy, a No Objection Certificate on the basis of ownership right through purchase claimed by some of the other children of late Makbul Ali Mazumder is unacceptable, inasmuch as, in view of the right of inheritance in respect of the occupancy tenancy, the respective sales executed through the two sal
