Judgment:
ORDER
SHEET GA No.3618 of 2016 APO No.309 of 2016 With WP No.34 of 2014 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE KOLKATA MUNICIPAL CORPORATION & ANR.
Versus SHYAM KUMAR JAISWAL & ORS.BEFORE: The Hon'ble JUSTICE BISWANATH SOMADDER The Hon'ble JUSTICE SANKAR ACHARYYA Date : 22nd December, 2016.
Mr.Biswajit Mukherjee, Mr.Fazlul Haque, Advocates for the appellants.
Mr.Arup Krishna Das, Ms.Jasmine Sheikh, Advocates for the respondent no.1/writ petitioner.
The Court : By consent of the parties, the appeal is treated as on day’s list and taken up for hearing along with the application for stay.
The instant appeal preferred by the Kolkata Municipal Corporation and its Commissioner arises out of an order passed by the learned Single Judge on 6th September, 2016 in a writ petition being W.P.34 of 2014 filed by the respondent no.1 herein.
The impugned judgment and order is reproduced in its entirety hereinbelow : “The writ petitioner purchased this property in 2008.
He applied for mutation with the Kolkata Municipal Corporation in 2012.
Learned advocate for the petitioner says that the dues of the Corporation in connection with this property have been paid by his client, yet, mutation has not been effected in his favour.
The dues are very old from 1968.
It goes to the credit of the petitioner that at least a substantial portion of the dues have been liquidated, if not the whole.
In those circumstances, I direct the Chief Manager, Revenue (North) or any competent officer nominated by him to make a calculation of the exact amount due and payable in respect of the subject property at 81/1, Madan Mohan Burman Street, Kolkata-700007 and intimate the same to the petitioner.
Since the petitioner has made substantial payment of the arrear tax dues with regard to the premises, mutation in his favour will be made, if otherwise the petitioner is eligible to be mutated, if he pays 30% of the outstanding as calculated by the said officer.
The balance 70% may be paid by the petitioner by 31st December, 2017.
The current tax must be paid punctually.
The calculation sheet is to be furnished by the said officer within six weeks of communication of this order.
In default, the respondent Corporation will be entitled to strike off the mutation in favour of the petitioner.
This writ application is, accordingly, disposed of.
Certified photocopy of the order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.” The principal grievance of the Kolkata Municipal Corporation is that the learned Single Judge while passing the impugned judgment and order did not take into consideration the provision of section 183 of the Kolkata Municipal Corporation Act (as amended till date) as well as the Rules framed thereunder.
In particular, the learned advocate refers to the proviso to sub-section 5 of section 183 of the Kolkata Municipal Corporation Act, 1980.
Sub-section 5 and its proviso read as follows : “The Municipal Commissioner shall, on receipt of a notice of transfer or devolution of title under this section [and upon payment of such fee as may be determined by regulations]., record such transfer or devolution in a book and also in the Municipal Assessment Book: [Provided that nothing in this sub-section shall derogate from the power of the Corporation to refuse mutation in a case where there is arrear of any dues to the Corporation on account of the transfer or the predecessor-in-interest of the applicant.].” Referring to the proviso as quoted above, learned advocate appearing on behalf of the Kolkata Municipal Corporation submits that while passing the impugned judgment and order, the learned Single Judge had directed mutation in favour of the writ petitioner if he paid 30% of the outstanding amount, as calculated by the concerned officer.
According to him, mutation can be effected only if the total amount, as assessed by the concerned officer, is paid by the writ petitioner.
On the other hand, learned advocate appearing on behalf of the respondent no.1, being the writ petitioner, submits that the impugned judgment and order does not suffer from any palpable infirmity of reasoning which would warrant an interference by the Appeal Court.
After considering the submissions made by the respective learned advocates for the parties and upon taking into consideration the proviso under sub-section 5 of section 183 of the Kolkata Municipal Corporation Act, 1980, it appears that the Kolkata Municipal Corporation has statutory power to refuse mutation in a case where there are arrear dues on account of the transfer or the predecessor-in-interest of the applicant who applies for mutation.
While passing the impugned order, the learned Single Judge directed the Kolkata Municipal Corporation to mutate in favour of the writ petitioner if he paid 30% of the outstanding dues, as calculated by the concerned officer.
The learned Single Judge perhaps failed to take notice of the proviso under sub-section 5 of section 183 of the Kolkata Municipal Act, 1980, as quoted hereinbefore.
The statutory power of the Corporation to refuse mutation until and unless the entire outstanding amount on account of transfer is paid by the applicant or his/her predecessor-in-interest cannot be whittled down under any circumstances.
Ideally, the learned Single Judge while granting scope for deferred payment ought to have directed the Kolkata Municipal Corporation to mutate in favour of the writ petitioner only after the entire outstanding amount was paid.
In that view of the matter, this Court, while allowing the respondent no.1/writ petitioner to pay in terms of the impugned order of the learned Single Judge, makes it clear that until and unless the entire outstanding amount is paid, mutation in favour of the respondent no.1/writ petitioner need not be made by the Corporation.
However, it is made clear that the moment the entire outstanding amount is paid by the respondent no.1/writ petitioner, the appellants shall mutate the name of the respondent no.1/writ petitioner in respect of the property in question within a period of 30 days from the date of receipt of the final payment, subject to the observations made by the learned Single Judge, as contained in the impugned judgment and order dated 6th September, 2016.
The appeal and the application are accordingly disposed of.
(BISWANATH SOMADDER, J.) (SANKAR ACHARYYA, J.) pa