The Board of Auqaf, West Bengal vs Irfan Javed & Ors.

In Re: CAN 522 of 2017 in MAT 34 of 2017

Let the affidavit-in-opposition filed in Court today in connection with section 5 application be taken on record.

After considering the submission made by the learned advocate for the appellants/applicants and upon perusing the application seeking condonation of delay, it appears that sufficient cause has been shown to explain the delay in filing the appeal and as such, the delay is condoned.

The application for condonation of delay, being CAN 522 of 2017 is accordingly allowed. In Re: CAN 11353 of 2016 in MAT 1504 of 2016

Having heard the learned advocates for the parties and upon perusing the instant application, we are of the view that the applicant is a necessary and proper party and is required to be added as respondent in the present appeal by the advocate-on-record of the appellant upon amendment of the cause-title of the Memorandum of Appeal.

The application, being CAN 11353 of 2016 is accordingly allowed. In Re: MAT 1504 of 2016 with CAN 8995 of 2016

With

MAT 34 of 2017 with CAN 523 of 2017

By consent of the parties, both the appeals are treated as on day?s list and taken up for consideration along with the respective applications for stay.

One of the appeals has been preferred by the Board of Auqaf, whereas the other appeal has been preferred by Kolkata Municipal Corporation and its authorities. Both appeals are in respect of a judgment and order dated 14th June, 2016, passed by the learned Single Judge in WP 36484 (W) of 2013 with CAN 1212 of 2014 (Irfan Javed & Anr. Vs. The Assessor Collector, Tolly Tax Department, KMC & Ors.).

The only question which arises for consideration in the facts of the instant case, is whether the learned Single Judge could have issued a mandatory order directing the concerned Assessor-Collector to hear all interested parties and take a decision as regards ownership of the property, which, on the face of it, is a subject matter of civil litigation.

Premises No.113C, Matheswartala Road, Calcutta - 700 039, is the property in question. The writ petitioners claim to have purchased the property from its erstwhile owner. The respondent no.6, in the writ proceeding has claimed that the property in question is a Waqf property and that he is a beneficiary under the Waqf.

The added respondent herein has referred to a Title Suit pending before the 4th Court of the learned Civil Judge (Senior Division) at Alipore, District - South 24 Parganas, being Title Suit No.699 of 2011, which concerns the property in question. The learned Single Judge in the impugned judgment took note of a civil suit, being T. S. No.54 of 1939 wherein certain orders were passed by the Alipore Court. The operative portion of the order passed by the learned Single Judge reads as follows:-

".. Accordingly, the order dated 16th September, 2013 passed by the Assessor-Collector is set aside. The resolution of the Board of Wakf dated 5th September, 2013 is also set aside. The matter is remanded back to the Assessor-Collector for consideration afresh. The Assessor-Collector will hear all the interested parties and will take decision as regards ownership of the property in question and the propriety/validity of the mutation granted in favour of the writ petitioners after considering the entire evidence to be adduced by the interested parties before him but not copy of the alleged order of the Alipore Court referred to above and after giving the parties an opportunity of hearing. The entire exercise shall be concluded within a period of 12 weeks from the date of communication of this order to the Assessor-Collector.

It is made clear that all the parties including the Board of Wakf, the writ petitioners and the respondent no.6 shall be at liberty to agitate their respective contentions before the Assessor-Collector."

It is quite well-settled in law that title or ownership of a property cannot be decided by any municipality/municipal corporation. The purpose of mutation is only to register a transfer in the records of the Corporation, which, in turn, would help recovery of taxes from the existing taxpayer. Mutation enquiries are instituted in the interest of the Corporation for tax purposes only and not for the benefit of any taxpayer. In this context, one may take notice of the observations contained in a Division Bench judgment of this Court rendered in the case of Vinod Somani vs. Calcutta Municipal Corporation & Ors. reported in 2007 (4) CHN 416. In Shrenik Kumar Singhee vs. State of West Bengal & Ors. reported in 2006 (1) CHN 540, the same principle has been reiterated in paragraph 33 of its judgment while referring to another Division Bench judgment of this Court rendered in the case of K. G. Patel vs. Chandra Devi Bothra reported in 1997 (1) CHN 156.

In the backdrop of the settled principle of law, as discussed above, we have no hesitation in holding that a direction upon the Assessor-Collector to hear all interested parties and take a decision as regards ownership of the property-inquestion cannot be sustainable in law and is required to be set aside and hereby set aside. The earlier order of the Assessor-Collector dated 16th September, 2013, which was set aside by the learned Single Judge, shall prevail for the time being, till a final adjudication of the disputes - inter se parties - are comprehensively adjudicated upon by a competent forum. It is, however, made clear that the order dated 16th September, 2013, passed by the Assessor-Collector will not be construed in any manner as a decision on the title of the property in question.

The appeal and all connected applications stand disposed of accordingly.