Shyamal Kumar Sen, J.@mdashIn the instant writ petition the petitioner seeks to challenge the mutation made in March. 1984 by South Dum Municipality of certain properties originally belonging to and owned by the mother of the petitioner in the name of the respondent No. 5, M/s. Hindusthan Sheet Metal Limited. The main contention in this writ petition is that the said mutation was effected contrary to the Judgment passed by Dipak Kumar Sen, J. as His Lordship then was in an application u/s 391(2) and 394 of the Companies Act, 1956. Although from the records it appears that the Municipality mutated the name of the respondent No. 5, only on the basis of the said order. To appreciate the contention between the parties, it is necessary to consider the facts which are shortly stated hereinafter.
2. Respondent No. 5 was a tenant of said Bimala Prava Bose in respect of the land in question under a lease. The landlady ceased to accept rent from the company and the respondent No. 5 started depositing rent with the Rent Controller. By the said scheme of Arrangement of Compromise the said dispute was resolved by allotment of 50,000 shares of Rs. 10/- each as fully paid up shares in favour of the said landlady by the respondent No. 5 in exchange for transfer of the said land to the respondent No. 5. The petitioner claims to be the son of late Bimal Prava Bose who was originally the owner of the said property and who transferred the said property during her lifetime to the respondent No. 5 for a consideration in the form of allotment of shares of the respondent No. 5 in favour of the said late Bimal prava Bose. The transfer has been duly concluded and the consideration has duly passed from the transferee to the transferor during the lifetime of Bimal Prava Bose. Pursuant to the said Scheme of Arrangement duly sanctioned by this Court, 50,000 shares in the respondent No. 5 were allotted to the original landowner, said Bimal Prava Bose, the mother of the petitioner. The transaction of transfer is a fait a accompli and the same has been duly acted upon and given effect to by the parties concerned including the original landowner during her lifetime. Bimal Prava Bose never claimed that she retained any interest in the property and as such one of her sons cannot claim any right over and in respect of the said land.
3. It has been submitted on behalf that petitioner that Dipak Kumar Sen J. by His Order dated 4th July, 1983 inter alia held as follows :-
On a plain reading it appears that the said Section 394 makes provisions only for facilitating reconstruction and amalgamation of companies. Under Clause (b) of Sub-Section (1) of the said Section where property of any company referred to as a transferer company, is transferred to another company, referred to as the transferee company, only then the ancilliary directions regarding transfer and vesting of the property involved can be asked for and given. Specific power is given to the Court under sections 394(1)(i) to provide for transfer to the transferee company the property of the transferee company. Section 394(2) provides that an order made under the said section will result in vesting of property in the transferee company. u/s 394(4) a transferor company has been defined to include any body corporate, whether a company within the meaning of this Act or not but it does not include a natural person Section 394 confers special powers on the Court enabling it to direct transfer and vesting of property over-riding other legal OF statutory provisions and one which claims the benefit of such exceptional powers to be exercied by the Court must satisfy the Court that he cames strictly within the four corners of the said section. In my view the section cannot be extended by the Court and the Court cannot direct the transfer and vesting of the property of a natural person who may be a member in favour of the company.
For the reasons above the company succeeds in this application except that there will be no order directing transfer and vesting of the property in question.
There will be no order as to costs.
4. Accordingly, the Learned Advocate for petitioner contended that although the respondent No. 5 in its application for mutation before the Municipality mainly relied upon the High Court Order dated 4th July, 1983 but the said order in effect provide that there would be no vesting of the property of the natural person. Accordingly, it has been contended by the Learned Advocate for the petitioner that on the basis of the said order dated 4th July, 1983 the property of the petitioner''s mother -Smt. Bimal Prava Bose could not vest in the respondent No. 5 - Company and the mutation effected in favour of the respondent No 5 Company is not valid in law. Accordingly, the order of mutation dated 4th July, 1983 should be set aside.
5. Learned Advocate for the respondent on the other hand contended that the writ petition is not maintainable for the following reasons :
(i) The petitioner has no locus standi to file the writ petition, the mutation hazing been completed during the lifetime of Bimal Prava Bose.
(ii) The petitioner can have no cause of action inasmuch as the respondent No. 5 being admittedly in occupation and possession of the property in question, was entitled to have its name mutated in the municipal records in terms of the provisions of the Bengal Municipal Act, 1932 (as was then in force) and the mutation of name does not in any way determine the ownership of the property :
(iii) The writ petition involves disputed questions of fact which cannot be adjudicated by the Court exercising jurisdiction for issuance of high prerogative writs under Article 226 of the Constitution of India;
(iv) The petitioner has not come before this Court with clean hands and is not, threfore, entitled to exercise of discretion by this Court in his favour.
(v) The petitioner is guilty of gross laches and unexplained delay in moving this Court and hence is not entitled to any relief.
6. I have considered the respective submissions of the parties, Smt. Bimal Prava Bose, the mother of the petitioner, during her lifetime, transferred the property in question to the respondent no. 5 for valuable consideration. In consideration of the said transfer of the property the said Smt. Bimal Prava Bose had duly received 50,000 shares which have been allotted in her name. The said mutation took place when the said Bimal Prova Bose the mother of the petitioner was alive and with her knowledge. Smt. Bimal Prova Bose never objected to the mutation of the name of company. The petitioner cannot raise objection after the death of his mother since only the right title and interest in the property of the deceased could derive upon him and no objection have been raised by the Said Smt. Bimal Prava Bose. The petitioner cannot raise such objection at this stage.
7. It has been submitted on behalf of the respondent that under the will of the said Smt. Bimal Prava Bose the petitioner has been totally disinherited. The said Will, however is a subject matter of challenge in the probate proceeding.
8. It has been contended on behalf of the petitioner, however, that the petitioner''s mother died unnatural death and she was not in full sense at the time when the said transfer took place. The said allegation, however, can only be established by evidence and cannot be a subject matter of claim in the writ petition. Accordingly, in my view, petitioner has no locus standi to maintain the writ petition.
9. With regard to the merit of the case there cannot be any dispute that the respondent-Company is in possession of the said property Assuming without admitting that the petitioner is correct in his contention regarding ownership, that does not affect the validity of the order of mutation since the respondent No. 5 was at all material times and still is admittedly in possession of the property inasmuch as under the provisions of the then existing Bengal Municipal Act, 1932, a person who has possessory rights in respect of the property will also be the owner and occupier within the meaning of the said Act for the purpose of mutation.
10. The respondent No. 5 was and still is in possession of the property in question. It was entitled to have its name mutated in the Municipal Records under the provision of the Bengal Municipal Act, 1932. In this connection reference may be made to the definition of the expressions "owner" and "occupier" in Section 3(38) and Section 3(36) respectively of the Bengal Municipal Act, 1932 which are for the sake of convenience, quoted herein below :
(38) ''Owner'' -- ''owner'' includes the person for the time being receiving the rent of any land or building or of any part of any land or building whether on his own account or as agent or trustee for any person or society or for any religious charitable purpose, or as a receiver, or who would so receive such rent if the land, building or part thereof were let to a tenant.
(36) ''Occupier'' -- ''Occupier'' means any person for the time being paying or liable to pay, to the owner the rent of portion of the rent of the land or building in respect of which the word is used or damages on account of the occupation of such land or building, and includes an owner living in, or otherwise using his own land or building and also a rent free tenant.
11. I may also take note of the judgment and decision of the Division Bench of this Court in Sunil Kumar Mukherjee and Ors. us Commissioner, South Dum Municipality, reported in 78 CWN 494.
12. The relevant paragraphs from the said judgment are set out herein below :
It has then argued by Mr. Das that the appellants are not the owners of those lands because they have no legal title to those lands and the expression" owner used in Section 3 (33) of the Municipal Act means a legal owner and it includes only the agents, trustees and the receiver of such legal owner.
13. But, Section 3(38) has extended the meaning of the word " owner" and has brought within its scope and ambit all persons who are for the time being receiving the rents of any land or building on their own account or as agents or trustees for any other person or society or for any religious or charitable purpose or as a receiver or any person who would so receive such rent if the land or building were let out to a tenant. It is well established that the agents and the receivers are not the owners of any property and yet this definition has made them Owners for the purpose of the Municipal Act. Further, the expression"...........any person receiving the rent....... on his own account" used in this Section cuts at the root of the contention of Mr. Das and hence we overrule it. Furthermore, it is not their case that they are not the owners of those buildings. There is, therefore, no merits in the contention of Mr. Das.
14. Mr. Das also argued that the appellants are not the occupiers because they neither pay any rent to the Society nor they are liable to pay any rent to the Society. But the expression "occupier" in Section 3(36) of the Art". Includes an owner living in or otherwise using his own land or building..... "Hence, the appellants are also the occupiers of those lands and building because they are living in their own buildings and as held earlier they are also the owners of those lands for the purpose of the Municipal Act.
15. We have already held that the lands held by them are holding within the meaning of the expression "holding" as defined by Section 3(21) of the Municipal Act. We have also held that the appellants are the owners of those holding for the purpose of the Municipal Act. It is, therefore not necessary to discuss the case cited at the Bar on the meaning of the expression "owner" and "holding.
16. "Mr. Das, then argued that u/s 129(b) of the Municipal Act it was incumbent of the Commissioner to decide the dispute raised by the appellants regarding their "title to those lands and the Commissioners not having done so the respondent No. 3 had no jurisdiction to issue those notices u/s 134 of the Act. But the appellants did not raise any such dispute before receiving those notices and, moreover, Section 129(b) of the Act is solely confined to a dispute regarding the "class of ownership" that is to say; a dispute regarding the gradation of ownership and the appellants not having raised any such dispute, this contention of Mr. Das has no merits.
17. He then argued that the expression "title to land" in section 144 means the local title to the land and there being no transfer of such legal title to the appellants, those notices, u/s 14, were issued by the respondent No. 2 without jurisdiction. But it appears to us from the relevant sections of the Municipal Act quoted earlier and the context in which the expression "title to land" occurs that it must include not only the legal title to the land but also the possessory title to the land, any other meaning will lead to an incongruity of the gravest nature for no effect can be given to the expression "owner" as defined by Section 3(38) of the Act. If the Municipal Act were only concerned with the legal title to or over the land then these words" the person for the time being receiving the rent of any land or building.......whether on his own account or as agent or trustee for any person or society or for any religious or charitable purpose, or as a receiver or who would so receive such rent if the land or building....... were let out to a tenant would not have been there in that Section. Section 3(38), as said earlier, has enlarged the scope and ambit of the term "owner" for the purpose of the Municipal Act and therefore to construe Section 144 in the manner suggested by Mr. Das is to frustrate the very object and the purpose for which this Section has been introduced in the Act. Further, it is our duty to construe the provisions of this Act in a manner to make them harmonious so that they carry out the purpose of the Act.
18. One of the meanings of the expression "title to land is "a party''s right to the enjoyment thereof as stated in the Law Dictionary of Mosley & Whiteley (4th Edn.) at page 321. A right to enjoy the land must reasonably include a right to enjoy its usufruct including the rents. Moreover, the expression "person...... who would so receive such rent if the land.... were let out to a tenant" used in Section 3(38) of the Municipal Act, in our opinion, clearly indicates that the person who is not a local owner but only a trustee or an agent or a receiver will also be the owner of the land for the purpose of Municipal Act if he, for the time being, is entitled to receive the rent of the land. A person in permissive possession of the land, unless he is precluded by his contract, is entitled to let out the land to a tenant and hence he will also be the owner of the land within the meaning of that expression used in Section 3(38) of the Municipal Act. Therefore, in our opinion, the expression "title to land" used in Section 144 of the Act is not confined solely to the local title to the land but it also includes the possessory title to the land for the purpose of the Municipal Act.
The possessory title to those lands vested in the Society inasmuch as the respondent No. 5 transferred its possessory title to the scheme-lands in favour of the Society. And, as held earlier, the possessory title to land is also included within the scope and ambit of the expression "title to land" used in Section 144 of the Municipal Act and the person in possession of the land by virtue of such possessory title is the owner of the land for the purpose of the Municipal Act. Hence, the Society was "primarily liable for the payment of rates on" those lands and those lands having been transferred by the Society to its members including the appellants it must be held that Section 144 of the Municipal Act directly applies to the instant case before us. Therefore, it is not possible to accept the contention that the said notices u/s 144 of the Municipal Act were issued without jurisdiction by respondent No. 2.
In this view of the matter, this appeal must fail and is dismissed with costs.
The principle enuciated in the aforesaid Division Bench Judgment has been followed in the case of the Saha Institute of Nuclear Physics Cooperative Housing Society Ltd. vs. The Corporation of Calcutta & Ors. reported in 1977 CHN 889.
19. In the instant case the respondent company is indisputably in possession of the land and bulling. The possession of the respondent Company is not in dispute nor the legality thereof. Therefore, the principles enunciated in the case reported in 78 CWN 494 are fully applicable in the fact, of this case.
20. It has been submitted on behalf of the petitioner that the orders of this Court sanctioning the scheme of arrangement did not direct vesting of the property in question in favour of the company and hence the company is not the owner of the property even as on the date and that the municipal authorities committed an error in mutating the name of the company in the municipal assessment records.
21. It cannot be disputed that the scheme of arrangement was duly sanctioned by this Court but the Court itself did not direct transfer of the property and vesting of the same. However, transfer would be complete on execution of a conveyance which would follow as a natural conveyance which would follow as a natural consequence of the orders sanctioning the scheme of arrangement. Under the terms of the scheme of arrangement. Under the terms of the scheme an sanctioned by this Court, until transfers are effected, the property would continue to be managed by and all incomes and receipts in respect thereof would continue to be received by the shareholders on behalf of and in trust for the company. The transction/transfer was approved by the Court. It may, however, be contended that the scheme through sanctiond by the order of the Court does not by itself contemplate transfer of the property in question. In any event, however, transfer of ownership by execution of conveyance is not a sine qua non for mutation of the name of the company and the company by virtue of its possession of the property coupled with the scheme of arrangement can be treated as owner as defined in the Bengal Municipal Act. 1932. Further, a scheme of arrangement is a voluntary act of the parties and can be treated at par with, if not more, an agreement for sale of the property to the company, If is well settled that on the basis of such agreement itself, the perspective transferee can be treated as owner under the Bengal Muncipal Act 1932 and his name can be mutated as such in the assessment records. It would not be open to the parties to a scheme of arrangement, as in the case of agreement for sale, to resile from the terms thereof or the obligations thereunder and such obligations can be enforced in a Court of law.
22. With regard to the other objection to the mutation raised by the petitioner, namely, non-service of notice, as already noted since the mutation took place during the life time of the petitioner it is not open for the petitioner to allege non-service upon him. No averments has been made in the writ petition that the petitioner''s mother was not served with the notice. As already noted the contention of the petitioner can only be gone into by way of evidence and cannot be subject matter of the writ petition. In my view, the writ petitioner must fail. The writ petition is, accordingly, dismissed. There will be no order as to costs. Let Certified Xerox copy of this judgment be delivered to the parties expeditiously upon compliance of usual formalities.
