Calcutta High Court (Appellete Side)
Sri Asoke Kumar Mukherjee vs The Kolkata Municipal ... on 1 September, 2021
01.09.2021
Sl. No.5
srm
W.P.A. No. 10676 of 2021
Sri Asoke Kumar Mukherjee
Vs.
The Kolkata Municipal Corporation & Ors.
Mr. Kishore Mukherjee,
Mr. Soumyajit Mukherjee
...for the Petitioner.
Mr. Ranajit Chatterjee,
Mr. S. Panda
...for the KMC.
The writ petition has been filed by the owner of
Premises No.14B, Roy Para Road, measuring about 5 cottahs
11 chittaks 37 sq.ft. along with a two storied residential
building standing thereon.
The petitioner submits that the petitioner and his dead
brother were the co-owners. The brother and his wife expired
leaving behind their child, namely, Indranil Mukherjee. The
said Indranil Mukherjee has been missing since 2003. The
petitioner applied for mutation of the property in his name on
the presumption of the death of Indranil Mukherjee. As the
Kolkata Municipal Corporation did not take any steps, a writ
petition was filed. A co-ordinate Bench of this Court by an
order dated December 18, 2020 directed the corporation to
hear out the petitioner and effect the mutation if the petitioner
satisfied the corporation with regard to certain queries.
Accordingly, the petitioner was heard and the corporation was
unable to allow the mutation of the property in favour of the
petitioner. The view of the corporation was that the missing
person may stake a claim to title and ownership over the
property in question and as such without declaration from the
learned civil court such mutation cannot be done.
Aggrieved by the said order dated April 16, 2021 passed
by the Manager, Assessment Collection (North) Department,
Kolkata Municipal Corporation, the writ petition has been
filed.
The petitioner relies on a decision of this Court in the
matter of Smt. Ruda Devi & Anr. vs. Coal India Ltd. & Ors. (In
Re: W.P. No.1651 of 2008), wherein the Court held that there
was no necessity for a decree of a civil court declaring the
death of the missing person in such a situation.
It is an admitted position that Indranil Mukherjee has
not been heard of since 2003. Indranil Mukherjee has never
staked any claim with regard to the property in question.
There is a police report which shows that despite investigation
Indranil Mukherjee could not be traced out. It is also an
admitted position that Indranil Mukherjee does not have any
heirs. It is also to be noted that mutation does not create any
right or ownership over the property. It is merely records
possession and is relevant for payment of tax. The decision of
the learned Single Bench in Smt. Ruda Devi (supra) was noted
by a Hon'ble Division Bench of this Court in the matter of
Bharat Cooking Coal Ltd. vs. Smt. Ruda Devi & Ors. (In Re:
APOT 78 of 2019 with GA 1740 of 2019) and the ratio of the
said judgment was accepted by the Hon'ble Division Bench.
Thus, I do not find any reason for the Kolkata Municipal
Corporation not to accord mutation in respect of the property
in the name of the petitioner who is the only known surviving
owner of the property.
The order impugned dated April 16, 2021 is set aside.
Such mutation will be subject to any further claim to
title which may be raised by Indranil Mukherjee or any of his
heirs. Such mutation shall be affected upon compliance of all
formalities by the petitioner with an undertaking given by the
petitioner that Indranil Mukherjee has not been heard of since
2003 and presumed to be died under Section 108 of the Indian
Evidence Act and also that the said Indranil Mukherjee does
not have any other heirs and legal representatives. The
mutation shall be affected within a period of six weeks from
the date of compliance of all formalities pursuant to the order
of this Court. The petitioner shall approach the corporation
and the corporation shall apprise the petitioner of the
formalities that the petitioner has to comply with for such
purpose.
This writ petition is, thus, disposed of.
There will be no order as to costs.
All parties are to act on the basis of the server copy of
this order.
(Shampa Sarkar, J.)
