Calcutta High Court
Abrarul Haque vs The Kolkata Municipal ... on 5 July, 2022
OD-3 ORDER SHEET
WPO No.2274 of 2022
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
ABRARUL HAQUE
VS
THE KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE AMRITA SINHA
Date: 5th July, 2022.
Appearance:
Mr. Ranajit Chatterjee, Adv.
Mr. Aniruddha Mitra, Adv.
..for Petitioner.
Mr. Gopal Chandra Das, Adv.
Mr. Debangshu Mondal, Adv.
..for KMC.
Mr. Dhiraj Trivedi, Adv.
Mr. Varun Kothari, Adv.
Mr. Rajdeep Mantha, Adv.
Mr. Amit Sharma, Adv.
...for Respondent No. 3.
The Court:-The matter relates to the Wakf Estate at premises
no.6, Kasaipara Lana, Kolkata-700017. The petitioner has been
appointed as Mutwalli of the said Wakf Estate by the office of the
Board of Auqaf on 13th September, 2018.
The appointment of the petitioner as Mutwalli was challenged
before the Tribunal. The suit was dismissed and the appointment of
the petitioner as Mutwalli was upheld by the Tribunal. A civil revision
application challenging the order of the Tribunal is pending before this
Court for disposal.
The property tax bill issued by the Kolkata Municipal Corporation
in respect of the said property reflects the name of the previous
Mutwalli who has since expired. The petitioner submits that as he has
stepped into the shoes of Mutwalli, accordingly the name of the Wakf
Estate along with the name of the present Mutwalli be reflected in the
property tax bill to be raised by the Kolkata Municipal Corporation.
The prayer of the petitioner stood rejected by the order of the
Chief Manager (Revenue/South) dated 11th May, 2022. The same is
under challenge in the present writ petition.
The Chief Manager (Revenue/South) was of the opinion that it is
the duty of the Kolkata Municipal Corporation to adhere to the Citizen
Charter, 2021 of the Assessment Collection Department of the Kolkata
Municipal Corporation wherein clearance of the Auqaf Board is
necessary for mutation of Auqaf property. The Auqaf Board has
submitted a letter requesting the Kolkata Municipal Corporation to
mutate the concerned premises in the name of the Estate only, without
including the name of any Mutwalli. At present, the Kolkata Municipal
Corporation opines to adhere to the letter which has been submitted
by the Auqaf Board.
Learned advocate for the petitioner relies upon the provision of
Section 183(5) of the Kolkata Municipal Corporation Act, 1980.
Reliance has been placed on the decision delivered by this Court in the
matter of Asian Leather Limited & Anr. Vs. Kolkata Municipal
Corporation & Ors. reported in 2007(3) CHN 476 paragraph 12.
Reliance has also been placed on the judgment delivered by the
Hon'ble Supreme Court of India in the matter of Calcutta Municipal
Corporation and Others Vs. Shrey Mercantile (P) Ltd. & Ors. reported
in (2005) 4 SCC 245 paragraph 18.
Prayer has been made by the petitioner to incorporate the name
of the Estate represented by the Mutwalli.
The prayer of the petitioner has been vehemently opposed by the
respondents.
Learned advocate representing the respondent no.3 submits that
the Mutwalli has openly declared not to pay either the property tax or
the Wakf contribution. It has been submitted that the respondent no.3
all along paid the property tax in respect of the said property. Since
the appointment of the petitioner as Mutwalli is pending challenge
before this Court in the civil revision application, accordingly the name
of the Estate may be recorded in the tax bill bereft the name of the
Mutwalli.
Learned advocate representing the Kolkata Municipal
Corporation submits that according to provision of Section 599 of the
Kolkata Municipal Corporation Act, 1980, the Corporation is duty
bound not to disrespect any law for the time being in force.
Reliance has been placed on provision of Section 32(2)(o) of the
Waqf Act, 1995 which mentions that the Board shall generally do all
such acts as may be necessary for the control, maintenance and
administration of Auqaf. Reliance has also been placed on the Citizen
Charter 2021 wherein clearance from the Auqaf Board is necessary for
mutation of the Auqaf property.
Primarily, from the submissions made on behalf of the
respondents, it appears that the allegation against the petitioner is
with regard to non-payment of the wakf contribution. The petitioner
has annexed documents with the writ petition to show that the audited
accounts and statement of income and expenditure of the Estate for
the financial years ending 31.03.2019, 31.03.2020 and 31.03.2021
have been submitted before the Chief Executive Officer, Board of
Auqaf. A statutory appeal under Section 72(7) of the Waqf Act, 1995 is
pending consideration before the Wakf Board.
There is no allegation with regard to non-payment of property tax
in respect of the said property. The impugned order does not mention
that there is any property tax due in respect of the said premises.
According to Section 183(5) of the Kolkata Municipal Corporation
Act, 1980, 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. The
proviso to the aforesaid Section mentions that the Corporation may
refuse mutation in a case where there is arrear of any dues to the
Corporation on account of the transfer.
In the present case, admittedly, there is no due on account of
property tax.
The Hon'ble Supreme Court of India in the matter of Shrey
Mercantile (P) Ltd. (supra) held that the purpose of mutation is to
register the transfer in the records of the Corporation which in turn
would help the Corporation to recover taxes from the existing tax
payer. No special benefit would result to the transferee who is made
statutorily liable to inform the Corporation of the change, if any, of
name of the person primarily liable to pay the taxes.
Learned Advocate representing the Respondent No.3 has
contended that there is neither any transfer nor devolution of title and
accordingly, it is not necessary to record the name of the Mutwalli in
the property tax bill.
The Court in Asian Leather Limited (supra) has reiterated the
well settled principle that a natural person has the capacity to do all
lawful things unless his capacity has been curtailed by some rule of
law. It is equally a fundamental principle that in case of a statutory
Corporation, it is just the other way. The Corporation has no power to
do anything unless those powers are conferred on it by the statutes,
which create it.
It is well settled that recording the name in the property tax bill
neither creates nor extinguishes title of any person. In the present
case, the earlier bills raised by the Kolkata Municipal Corporation
indicate the name of the Mutwalli of the Wakf Estate. The said
Mutwalli has expired. The petitioner has been appointed as Mutwalli
by the Board of Auqaf. The initial challenge to the Mutwalliship of the
petitioner stood dismissed from which a civil revision application is
pending before this Court. As of now, there is no order by which the
Mutwalliship of the petitioner has been terminated, revoked or
cancelled.
The property in question is a Wakf Estate. The Mutwalli being
the Manager of the Wakf Estate is liable to pay property tax. For the
purpose of identifying the person primarily liable to pay tax, it is better
that the name of the Mutwalli is reflected in the property tax bill along
with the name of the Estate. The said recording will not enure to any
benefit of the Mutwalli. No special advantage or privilege can be
derived by the Mutwalli by recording his name in the property tax bill.
The same is solely for the purpose of identification of the person liable
to pay tax. It will be convenient for the Corporation to recover tax from
the person liable to pay tax, rather than to hunt for the person from
whom tax can be collected.
The respondent no. 3 will also not be disadvantaged in any
manner as the recording of the name will always be subject to the
order passed by the Court in the civil revision application.
The Chief Manager (Revenue/South), in the impugned order, has
opined that the name of the Estate be recorded without the name of
the Mutwalli. The Chief Manager (Revenue/South) is directed to modify
the said order by recording the name of the Mutwalli in the tax bill as
representative of the Estate, who will primarily be liable to pay tax.
Necessary steps in this regard shall be taken by the Chief Manager
(Revenue/South) at the earliest so that the Mutwalli may be able to
pay tax on proper time.
Writ petition stands disposed of.
Urgent certified photocopy of this order, if applied for, be supplied
to the parties expeditiously on compliance of usual legal formalities.
(AMRITA SINHA, J.)
nm
