Tapen Sen, J.@mdashIn 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, Kolkata-700005.
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 to rehear the matter upon Notice to the Petitioner. Thereafter, the Municipal Authorities gave Notice of rehearing and the Petitioner filed an Objection wherein she inter alia stated that since the Decree of Partition had already been effected and the property apportioned in the ratio of 5/6th and 1/6th, the names of the present owners will have to be brought in the records in terms of the Decree and the names of the original owners should be deleted. She also stated that under the Decree, Hitendra Krishna Dev was allotted 1/6th share and the Defendants namely Smt. Asoka Dev, Sudhindra Krishna Dev, Shankar Krishna Dev, Narendra Krishna Dev and Jatindra Krishna Dev were allotted jointly, 5/6th share and therefore the name of the Plaintiff and the Defendants ought to have been brought on record on the basis of the Decree by deleting the names of the previous owners of the property which were recorded in the records of the Corporation.
11. According to the further case of the Petitioner, the Assistant Assessor/Collector (North) instead of bringing the names of the present owners on record, passed an Order on 22.7.2005 (Annexure-P/2) by which the 5/6th share of the original premises (now renumbered as Premises No. 2/1, Raja Kalikrishna Lane) was recorded in the names of Sudhindra Krishna Deb, Shibani Nag, Indrani Sarkar, Sharbani Basu, Debjani Basak and Irani Basu as "Owners" whereas in the records of the Corporation, Premises No. 2 continued to be shown in the name of the erstwhile Owner, namely Subodh Krishna Deb, Dhirendra Krishna Deb and Jatindra Krishna Deb, the Defendant No. 6 in the Suit.
12. According to the further case of the Petitioner, Jitendra Krishna Deb is now dead but prior to his death, he had transferred his 1/6th share in favour of Sudhindra Krishna Deb and as such he cannot continue to be shown as "Owner" of the separated Premises No. 2 which had been allotted to the extent of 1/6th share in favour of Hitendra Krishna Deb by reason of the Decree.
13. In the Writ Petition, the Petitioner has referred to further anomalies having been committed and has stated that so far as the Owners of Premises No. 2 is concerned, and as has been recorded by the Corporation, it includes the estate of Dhirendra Krishna Deb who had died intestate living behind three sons namely the Plaintiff, Hitendra Krishna Deb, Defendant No. 5, Nirendra Krishna Deb and Defendant No. 6, Jitendra Krishna Deb and his share (Jitendra Krishna Deb), had been transferred inter vivos in favour of Sudhindra Krishna Deb. According to the Petitioner, so far as the Premises No. 2 is concerned, persons who do not have any interest have been shown as "Owners" thereof.
14. The Petitioner has further stated that Hitendra Krishna Deb died intestate on 5.6.1991 living behind his wife Smt. Indira Deb and the Petitioner (Tapasri Basu). Thereafter, on 28.9.1998, Indira Deb also died intestate and as a result, the entire estate of Hitendra Krishna Deb devolved upon the Petitioner who is now the only person representing the estate of Hitendra Krishna Deb and as such, her name ought to have been included as owner of Premises No. 2 but instead of doing so, the names of the erstwhile Owners are being continued.
15. According to the further case of the Petitioner, the separation made by the Corporation have not been made in terms of the Decree and the original number of the Premises ought to have been allotted to the allottees of 5/6th share and a new number ought to have been allotted to her 1/6th share but the Respondents did not take care and have passed the Order mechanically and it is on these Premises and grievances, that the Petitioner has challenged the Order dated 22.7.2005 (Annexure- P/2).
16. In the Affidavit-in-opposition, the Respondent Corporation has stated in Para-13 that the Decree of Partition is binding inter se between the parties but it is not binding upon the Kolkata Municipal Corporation which follows its own statutory provisions of mutation and separation as has been done in the instant case. They have further stated that the co-owners had applied in a proper form and upon compliance of all the formalities, their application was considered and separate premises and assessee numbers were given and separate valuation was also made. They have further stated that admittedly, the present Petitioner did not apply for mutation and therefore the records relating to the old premises could not be altered and/or corrected but however, pursuant to the Order passed in the earlier Writ Petition being W.P. 2213 of 2004, the matter was reheard and the mutation-separation granted to the other co-owners, was retained. They have further stated that corrections/alterations can only be made in respect of old premises when the Petitioner applies for correction of records by way of an Application for Mutation in Form No. A- 42. Their further case is that the grounds formulated in the Writ Petition flow from rights arising out of a Partition Decree in which the Kolkata Municipal Corporation has no role to play and those are not required to be taken into consideration for purposes of adjudication of this Writ Petition.
17. Mr. A.C. Kar, learned Senior Counsel appearing on behalf of the Petitioner has submitted that in terms of the Regulations guiding the procedure for mutation which was approved by the Corporation on 20.9.2008 being a Regulation u/s 178(1), the Petitioner cannot apply again because of the separation of the two units which has already been made without Notice to the Petitioner. According to him, once Premises No. 2 was separated into Premises No. 2 and 2/1, the separation becomes complete and it was obligatory on the part of the Correction to evaluate the Annual Value of the two separated properties proportionately but in the instant case, while Premises No. 2 has been assessed at Rs. 10,620/- Premises No. 2 has been assessed at Rs. 10,160/- (wrongly stated as Rs. 1330/- in Para-9 of the Writ Petition but corrected by an Affidavit dated 11.11.2009 in Para-3). Under such circumstances, the question of the Petitioner applying again for separation is a mere formality and such a procedure should not stand in the way of the Respondents in doing the needful.
18. Mr. Kar has further submitted that since as per the Decree, the Petitioner retained Premises No. 2 and her share is limited to only 1/6th thereof by reason of the Decree, a mere mathematical calculation of the assessment should have been enough instead of asking the Petitioner to file a fresh Application though, in the instant case, the Petitioner is not claiming on the basis of a transfer as contemplated u/s 183 of the Kolkata Municipal Corporation Act, 1980 but claiming on the basis of the delineation earmarked by the Civil Court.
19. There appears to be substance in the submissions of Mr. Kar. The fact relating to the Decree and the fact relating to Hitendra Krishna Deb (Plaintiff) being the predecessor-in-interest of the Petitioner (as has been stated in Paras-17 and 18 of the Writ Petition) should have been sufficient for the Respondents to look into the grievances of the Petitioner without insisting that she must file an Application in Form No. A-42 for mutation etc. The Corporation cannot frustrate nor ignore the rights of a person flowing from a Decree by saying that a Decree of Partition is only between the Parties and the Kolkata Municipal Corporation is not bound by the Decree. Having themselves segregated the Premises into two shares by reason of the Application filed by the co-owners pursuant to the Decree, they cannot be allowed to obliterate the rights of other co-owners on the basis of such technicalities. Consequently, the Assessor/Collector (North) should not have disposed of the matter by saying that if the Petitioner applies in Form No. A-42, the KMC will do the needful. It was the duty of the Assessor/Collector(North) to have accepted the claim of the Petitioner without insisting that she should again file an Application in the said Form.
20. Consequently, this Court is of the view that the Corporation requires to be mandated to allow the Application of the Petitioner which she had filed and on the basis whereof the impugned Order dated 22.7.2005 was passed without insisting that the Petitioner must file an Application in Form No. A-42. They will now proceed to do the needful and will also give due regard to the Decree and will accordingly assess the Petitioner''s interest vis-�-vis the said Decree and having done so will accordingly proceed to set right their own records pertaining to the Petitioner and the Co-owners of Premises No. 2, Raja Kalikrishna Lane, strictly in terms of the Decree by keeping in mind that the Petitioner was allotted 1/6th share thereof and the remaining co-owners were allotted 5/6th share in terms of the Decree and as stated in the various paragraphs of the Writ Petition.
21. However for the convenience of the parties, this Court directs the Petitioner to file and give all necessary details to the Corporation along with a Notice to the co-owners and the Municipal Authorities are directed to rectify their records after giving an opportunity of hearing to the Petitioner as well as to all the Parties concerned.
With the aforesaid observations and directions, this Writ Petition is allowed. No Order as to costs.
Upon appropriate Application(s) being made, urgent Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions.
