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Judgment
Mr Kali assisted by Mr Kanjilal moves this Article 226 petition after satisfactory service on the State and the Kolkata Municipal Corporation. The affidavit of service is taken on record. Service on the private respondent is yet to be completed. I treat the present affidavit as an affidavit of despatch so far as the seventh respondent is concerned. Since the seventh respondent is yet to be served, I can pass no order of her prejudice finally.
The only way I can summarise the case of the writ petitioner is to borrow the words of Mr Mukherjee appearing for the Corporation. This can be called the case who is Bitra Dutta. While in the realm of fiction and celebrated motion pictures notably that of the “wrong man” which was rendered most memorably by Henry Fonda we have seen cases of mistaken identity leading to the brink of execution; in the present case the situation is slightly different.
One Bitra Dutta, by a registered conveyance, as on page 25 of the writ petition, purchased a property from a non-party (Kamal Kumar Bandyopadhyay) who was the recorded assessee in the municipal assessment book of the premises in question. It is the case of the writ petitioner that she is Bitra Dutta who purchased the property from Kamal Kumar Bandyopadhyay. In support she has relied upon photocopies of the tax receipts showing payment of the tax demanded by the Corporation from time to time which clearly show that the assessee is Kamal Kumar Banerjee, C/O Bira Dutta. The writ petitioner’s learned advocate submits that the original tax receipts are with the writ petitioner which is clear proof that the petitioner who has executed vokalatnama in favour of these advocates is the Bitra Dutta who purchased the property.
On the other hand, the writ petitioner has herself disclosed that the seventh respondent, Kalyani Banik, has caused to be registered and declared by her on payment of stamp of Rs.10 on May 14, 2010 a declaration that she is known as Bitra Dutta and that she and Kalyani Banik are one and the same.
In these circumstances, the writ petitioner without suing for delivery up and cancellation of the said registered declaration or even a declaration with appropriate injunction relating to the falsity or fraudulent nature of such a declaration has instituted a writ petition on the basis of a representation seeking that she be intimated the dues by the Corporation in respect of the property which she claims is her own. However, the relevant prayers contained in the writ petition include a prayer of certiorari which is perhaps not maintainable in the eye of law.
Prayer (c) of the writ petition is set out below:—
“a writ of and/or in the nature of Certiorari directing the respondents their agents, men, subordinate, superior, successor in office to certify and transmit all the relevant records concerning the representation made by the petitioner towards supplying statements of taxes pending dues of the premises No.P 411 F Hemanta Mukhopadhyaya Sarani, Kolkata-700029 to this Hon’ble Court and doing conscionable Justice by restraining the said respondent no.7 to make payment of taxes in respect to the aforesaid property.”
Neither the writ of certiorari nor any writ in the nature, whether as issued in the Cinque-Ports or as recorded in Blackstone’s Commentary on English Law or under the Constitution of India permits a prayer for certiorari to be coupled with an injunction for restraining a private respondent from making payment of taxes. Such a prayer is misconceived and shows ignorance of law on the part of the draftsman and whoever settled the prayer.
So far as the rest of the prayers are concerned, the writ petitioner can only be entitled to copies of the statements of dues if she is able to establish that she is the owner of the premises being Bitra Dutta mentioned in the deed as at page 25 of the writ petition. Inasmuch as the writ petition has been instituted in the name of Bitra Kanjilal also known as Bitra Banik also known as Dutta and since there is a rival claimant to the name and since the writ petitioner has not instituted the appropriate process for declaration that she, and not the private respondent, is Bitra Dutta who purchased the property, she is not entitled to any relief as prayed for at present.
Therefore, the writ petition stands dismissed with liberty to the petitioner to adopt appropriate civil process as advised; and in case she succeeds in such civil process, certainly the Corporation shall accede to her request for mutation or any other relief that she claims on the basis of such transfer of
title. No costs. Certified website copy of this order, if applied for, shall be given to the parties.