Calcutta High Court (Appellete Side)
Sri Dilip Das vs The State Of West Bengal & Ors on 20 February, 2023
02 & 03
20.02.2023
d.p.
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
W.P.A 187 of 2023
With
W.P.A. 4602 of 2020
Sri Dilip Das
-versus
The State of West Bengal & Ors.
Mr. Tanmoy Mukherjee,
Mr. Kajal Roy,
Mr. Souvik Das,
Mr. Rudranil Das.
...For the Petitioner.
Mr. Somnath Roy.
...For the Municipality.
Mr. Achyut Basu,
Mr. Prasenjit Debnath,
Ms. Punam Basu,
Ms. Pritha Biswas.
...For the Respondent No.7.
Mr. Jahar Lal De,
Mr. Shamim Ul Bari.
...For the State.
The petitioner claims to be one of the owners of
certain piece and parcel of land under Bhadreswar
Municipality.
The private respondent No.7, Shyamal Mukherjee
claims to be the power of attorney holder of the owners
of the property.
The petitioner submits that without registration
of the power of attorney, the private respondent has
executed sale deeds in favour of forty seven buyers. On
the strength of the sale deed, the buyers applied before
the Bhadreswar Municipality for mutating their names.
At this stage, objection was filed by the
petitioner. The Municipality is yet to mutate the
property in the name of the purchasers.
The petitioner along with other co-sharers of the
property have filed title suit challenging the sale deeds
executed by the private respondent. The civil suit is
pending consideration.
It has been submitted that the prayer for
injunction in the civil suit has been refused.
The Municipality relying on the registered sale
deeds directed the owners of the property through the
power of attorney holder to deposit certain money with
the Municipality and to give a portion of the land in
question to the Municipality for development of the
infrastructure of the area including the water lines,
drainage and roads etc.
According to the petitioner, if the power of
attorney is not registered, then title of immovable
property does not pass on to the purchaser.
In support of the aforesaid submission, the
petitioner relies on the judgment delivered by this
Court in the matter of Dulal Ranjan Ghosh Dastidar &
Anr. -vs- Rajni Tandon reported in (2004)1CHN, 517.
The petitioner prays for a direction upon the
Municipality not to give any effect and/or further effect
to the notice dated 25th July, 2022 directing the owners
through the power of attorney holder to deposit the
amount of Rs.22,92,255/- only and 7 cottahs of land
for infrastructural development and also not to take
any steps pursuant to the applications for mutation
filed by the purchasers.
Learned advocate appearing for the power of
attorney holder being the respondent No.7 herein has
filed an affidavit before this Court wherein it has been
clearly mentioned that the general power of attorney
executed in his favour is not registered.
It has been submitted that registration is not
essential for the purpose of presentation of the deed
before the Registering Authority.
In support of the aforesaid submission, learned
advocate relies upon the decision delivered by the
Hon'ble Supreme Court in Rajni Tandon -vs- Dulal
Ranjan Ghosh Dastidar & Anr. reported in (2009)11
S.C.R. 686. It has been submitted that the judgment
relied upon by the petitioner has been set aside by the
Hon'ble Supreme Court and, accordingly, no reliance
can be placed on the same.
Learned advocate appearing for the Municipality
submits that several applications for mutation have
been filed by the purchasers of the flat in the subject
premises. In view of the pendency of the writ petition
and the civil suit, the Municipality has not taken any
decision till date.
It has been submitted that the property in
question is still now recorded in favour of the
predecessor-in-interest of the petitioner. It is open for
any party to gift a portion of the land to the
Municipality for infrastructural development.
It has further been contended that mutation is
only for the purpose of identifying the person
responsible for payment of property tax and by way of
mutation title of the property does not flow from one
person to other.
In support of the aforesaid stand, the
Municipality relies upon the judgment delivered by the
Hon'ble Supreme Court on 6th September, 2021 in
Special Leave Petition (C) No.13146/2021 in the matter
of Jitendra Singh -vs- The State of Madhya Pradesh &
Ors.
I have heard the submissions made on behalf of
both the parties.
Learned advocate appearing for the private
respondent raises an issue of res judicata. It has been
submitted that an earlier writ petition being WPA 4602
of 2020 was filed with the same relief as prayed for in
WPA 187 of 2023.
It appears that the earlier writ petition being WPA
4602 of 2020 was filed with a prayer upon the
respondent Municipality not to grant mutation of the
property in question on the basis of the sale deeds
executed by the private respondent.
During the pendency of the said writ petition,
communication dated 25th July, 2022 was issued by
the Municipality in favour of the predecessor-in-
interest of the petitioner through the power of attorney
holder.
Apprehending that the private respondent will
deposit the money as proposed by the Municipality and
may proceed with the mutation, the second writ
petition appears to have been filed. Admittedly, on the
date of filing the second writ petition, the first writ
petition was yet to be decided.
In fact, apart from filing of the first writ petition
no further step was taken in the matter. The issue in
the first writ petition remained undecided.
Accordingly, the ground of res judicata as
agitated by the private respondent for dismissal of the
subsequent writ petition cannot be accepted by the
Court.
It appears that a civil suit challenging forty seven
sale deeds is pending consideration before the Learned
Civil Court. The purchasers of the property are not
parties in the present proceeding.
Admittedly, mutation is only for identification of
the person primarily liable to pay tax. The same neither
creates nor extinguishes title of any person who legally
has a title in the said property.
The Municipality is yet to take a decision whether
to mutate the property in favour of the subsequent
purchasers.
As it appears that the issue with regard to the
authority of the attorney holder to execute deeds of sale
on the basis of unregistered power of attorney is
pending consideration before the Learned Court below,
accordingly, for ends of justice and to prevent
multiplicity of proceedings, the Municipality is
restrained from updating the municipal records by
incorporating the names of the subsequent purchasers
as persons liable to pay tax.
It will be open for the Municipality to continue
raising municipal tax bills in favour of the recorded
owner as appearing in the municipal records and the
person claiming to be the owners of the property as per
the earlier records shall be bound and liable to clear
the property tax bills raised by the Municipality.
In the event the pending suit is decided against
the petitioner and the Learned Court below upholds the
deeds of sale, then the Municipality shall act in
accordance with the direction passed by the Learned
Civil Court.
In that case, the subsequent purchasers shall be
liable to refund the property tax which was paid by the
erstwhile recorded owner, in appropriate shares.
The Municipality, as of now, is restrained from
giving any effect and/or further effect to the impugned
notice dated 25th July, 2022 until further orders passed
by the Learned Court below in the civil suit that is
pending between the petitioner and the private
respondent.
Both the writ petitions stand disposed of.
Urgent photostat certified copy of this order be
supplied to the parties, if applied for, as early as
possible.
( Amrita Sinha, J.)
