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Judgment
Soumitra Pal, J.—The writ petitioners have challenged a memo No. AG/336/99-2000 dated 15.2.2000 being Annexure ''G'' to the writ petition issued by the Deputy Assessor - Collector (South), Calcutta Municipal Corporation (hereinafter referred to as C.M.C.) The relevant portion of the letter is as follows :
"Re : 62A. Alipore Road. Ward - 74
Sir,
From letter of C.T.T. dated 27.12.99 it is understood that the above-mentioned premises is thika -tenanted and vested with the State of West Bengal. Under the circumstances, you are, hereby requested to attend a hearing in the chamber of A-C, (S), Assessment-Collection(S) Deptt. 5, S. N. Banerjee Road on 14.3.2000 at 2.00 p.m. with all relevant papers, in respect of the mutation granted in your favour."
Mr. Saktinath Mukherjee appearing along with Mr. Amiya Narayan Mukherjee reiterating the facts in the writ petition submitted that the officer of the C.M.C. had no authority to decide the title of the petitioners. During 1992 the writ petitioner purchased the ownership of the said property. The C.M.C. in the instant plot had mutated the names and now the question of the issue of thika tenancy does not arise at all. It was submitted that premises No. 62 (now renumbered as premises No. 62A), Alipore Road, Calcutta, belonged to one Maulavi Maruful Huq. One Ramdas Das was a lessee in respect of the said property by virtue of a registered deed of Kabuliyat of the year 1910 and thereafter two other deeds were executed between the owner and Ramdas Das in 1913 and 1916. There were subsequent transfers of the interest of Ramdas Das and ultimately one Balahari Mondal purchased the leasehold interest of Ramdas Das. In the registered Kabuliyat dated 29th October, 1913 it has been stated and recorded as follows :
"Land measuring previously 6 bighas 17 cottahs and according to recent survery 7 bighas 14 cottahs 10 chittacks 25 sq. ft. together with building etc. formed the properties..............."
It was further recorded that "I will pay the same as well as the amounts payable for the lands and jamas and houses of the tenants on those lands who have vacated or who are there but will vacate hereafter............"
So it was submitted that the premises leased out in favour of Ramdas Das included structures and accordingly the leasehold interest of Ramdas Das or his transferees could not come to be governed by the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 (hereinafter referred to the Thika Tenancy Act, 1981) but would be governed either by the West Bengal Premises Tenancy Act, 1956 or the Transfer of Property Act, 1882 depending upon the period of the lease as indicated in Section 3 of the West Bengal Premises Tenancy Act, 1956. Reliance was placed on the decisions of Mrs. L.A. Saunders Vs. Land Corporation of Bengal Ltd., and Santilata De Vs. Saraju Bala Devi and Others, in support of the proposition that the lease of land with structures would not be governed by the Calcutta Thika Tenancy Act.
Submission was made that it appeared that the lease granted in favour of Ramdas Das expired by efflux of time and in the lease itself there was a provision that whatever structure had been constructed by the lessee would vest in the lessor after the expiry of the lease. In view of such provisions the owner/landlord i.e. the said Maruful Huq became the owner in 1926 of whatever structure might have constructed by the lessee.
Mr. Mukherjee submitted that it appeared that the High Court in F. A. No. 211 of 1947 held that Balahari Mondal occupied the property in question as a lessee by holding over. It is a well-settled proposition of law that when a tenant holds over then a new tenancy is created. In the instant case when Balahari came to hold over admittedly there were buildings and structures and accordingly it cannot be said that Balahari was a tenant in respect of the land only so as to be governed by the Calcutta Thika Tenancy Act.
It was submitted that land with pucca structure cannot be governed by the provisions of the Calcutta Thika Tenancy Act, 1949 which is applicable where a tenant of the land has himself put up a temporary structure thereon or has acquired such a structure from the erstwhile tenant.
In the instant case Babu Khan was inducted as a tenant by Balahari Mondal. Babu Khan cannot be claimed to be a thika tenant as Balahari was holding a tenancy governed by the West Bengal Premises Tenancy Act. Reliance was placed on the judgment of Bhatia Co-operative Housing Society Ltd. Vs. D.C. Patel, and Dhirendra Nath Neogy v. Satyanarayan Chakraborty, reported in ILR 1972(2) Cal 223, in support of the proposition that the nature of the superior interest shall govern the nature of the subordinate interest. In the circumstances it was submitted that the premises No. 62A, Alipore Road, Calcutta cannot be governed under the provisions of the Thika Tenancy Act, 1981 as the tenancies were not thika tenancy. It was submitted that C.M.C. could not go into the question of title. Reliance was placed on K.G. Patel and Co. v. Chandra Devi Bothra and Ors., reported in 1997(1) CHN 156. Mr. Mukherjee relied on an unreported judgment in W. P. No. 1851 of 2002, Usha Holding and Enclave (P) Limited and Anr. v. Calcutta Municipal Corporation and Ors. Finally submission was made that C.M.C. had no jurisdiction to issue the memo dated 15.2.2000 since it was not a matter to be dealt with by the C.M.C. officers and the memo dated 15.2.2000 being Annexure ''G'' to the writ petition should be quashed. Mr. Mukherjee furnished notes in support of his arguments.
Mr. Ashoke Das Adhikary appearing on behalf of the C.M.C. referred to the memo dated 27.12.99 being annexed to the affidavit-in-opposition hereunder referred to as the said opposition relating to the circumstances which led to the issuance of the memo dated 15.2.2000 being the subject-matter of the writ petition. The relevant portion of the memo dated 27.12.99 is as follows :
"............................
Sub : Premises No. 62A, Alipore Road & 42A/1C, Raja Santosh Road. Alipore, Calcutta - 27
Sir,
The undersigned likes to state that as per this office records the above-noted two premises fall within the purview of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 and purported to be thika-tenanted. It also appears that two title suits are pending on premises No. 62A, Alipore Road, Cal-27 and C.M.C. is a party in one of the T.S. (No. 122 of 1995).
It has brought to our notice by one Advocate of Alipore Bar Association, South 24-Pgs., that C.M.C. has mutated the said properties in favour of a private party in March, ''99.
Since the State of West Bengal is the owner of the land which are vested under Calcutta Thika Tenancy (Acquisition and Regulation) Act, ''81, you are requested to refrain from mutation and/or sanction of building plan with respect of the above two premises in favour of any private party until this office is heard. Action taken by you may please be reported early.
Yours faithfully, Controller, Calcutta Thika Tenancy.
Memo No......................... Copy forwarded for information and necessary action : To 1. The Dy. Secretary, Land & Land Reforms Department, Land Reforms Branch, Writers'' Buildings, Calcutta -1
This refers to his memo No. 228/L Ref/lC-dated 10.12.99................"
It was submitted that the writ petition was premature. C.M.C. by memo dated 15.2.2000 was only seeking satisfaction of title and there was no decision on the notice issued by the Controller of Thika Tenancy. The issue relating to lease and sub-lease was a question of fact which required scrutiny in view of the memo dated 27.12.99. Such factual aspect cannot be adjudicated in the writ jurisdiction. The petitioner, it was argued, must appear before the respondent concerned and demonstrate that it is not a thika-tenanted property. Thereafter, the petitioner can claim title. Writ jurisdiction is not the proper forum to get declaration that it is not a thika-tenanted property. Submission was made that the Courts should not interfere if investigation is required before a final decision is taken regarding a property coming under purview of provisions of the Thika Tenancy Act, 1981 and vesting with the State.
Mr. Das Adhikary contended that sufficient grounds have not been made out in support of the writ petition particularly regarding the devolution of property since 1910 and submission was beyond the grounds pleaded. Reliance was made on the judgment of S.S. Sharma and Others Vs. Union of India (UOI) and Others, . Attention was drawn to annexures to the writ petition regarding the nature and character of the plots of land. It was submitted that there was no mention of pucca structure during 1916 when the lease was granted. It was a flat land. Further what was the purport of lease and what was the structure required scrutiny. Submission was made that though the State Government has not been impleaded, efforts are being made in a circuitous way to get a declaration that the property concerned is not a thika-tenanted property. Accordingly, it was prayed that the writ petition should be dismissed for non-joinder of parties. Mr. Das Adhikary distinguished the unreported judgment in W. P. No. 1851 of 2002, Usha Holding and Endave(P) Limited and Anr. v. Calcutta Municipal Corporation and Ors., cited by Mr. Mukherjee by pointing out that it could not be ascertained from the said judgment what were the terms of the Kabuliyat and the order of the Thika Controller was not under challenge.
Mr. Das Adhikary in short submitted that the writ petition was premature, contained disputed question of fact which required to be investigated and should be dismissed for non-joinder of parties.
Mr. Mukherjee in reply submitted that the names of the petitioners had been mutated and it was apprehended in view of the memo dated 15.2.2000 it is going to be altered and writ petition can be moved on apprehension.
During the course of argument it was pointed out to Mr. Mukherjee that it appeared the writ petition was not verified in accordance with the Rules though necessary stamps have been affixed. Mr. Mukherjee submitted that the same can be verified even now which is permissible u/s 153 of the Code of Civil Procedure. Mr. Das Adhikary contended the writ petition should be dismissed for not being verified in accordance with the Rules relating to the applications under Article 226 of the Constitution of India.
I do not intend to dismiss the writ petition on the ground of technicality as requisite stamps had been affixed and registry had put in its endorsements.
Now, turning to the merits of the case the C.M.C. had issued the memo dated 15.2.2000 as it came to learn from a memo dated 27.12.99 issued by the Thika Controller that the premises fell within the purview of the Thika Tenancy Act, 1981 and reported to be thika-tenanted and the land vested with the State of West Bengal. The C.M.C. was requested to refrain from carrying out mutation and/or sanctioning building plan with respect to the premises in favour of any private party until the office of the Controller was heard. The memo dated 29.12.97 ended with a request to the C.M.C. Authorities to report early about the action taken by the C.M.C. Moreover, from the memo dated 27.12.99 it appeared that it was brought to the notice by an advocate that the C.M.C. had mutated the said properties in the favour of a private party in March, 1999. Indeed it appears from the annexure at page 72 that the mutation was carried out on 30.3.99. Further title suit relating to the instant premises was pending in which the C.M.C. was a party. The C.M.C. had to act in such circumstances. It was in this backdrop the C.M.C. had issued the memo dated 15.2.2000 calling the petitioners to attend a hearing with all relevant papers in respect of mutation granted in favour of the petitioners. Memo dated 15.2.2000 is a show cause calling upon the petitioners to attend the hearing for verification of the records in respect of the mutation granted.
The purpose of such memo is to afford an opportunity of hearing to the petitioners. Once cause is shown, it is open to the authorities to consider the matter and thereafter, decision shall be taken. Interference at this stage shall be premature. The petitioner should have attended the hearing and satisfied the C.M.C. authorities. The judgments cited by Mr. Mukherjee are not relevant in the facts and circumstances of the case. The unreported judgment in W. P. No. 1851 of 2002 is distinguishable in the facts and circumstances of the case. In the said unreported judgment the premises concerned was 42, Raja Santosh Road and one "Smt. Manjushri Nath appeared before the Assistant Controller (South) and could not produce any document in support of her claim of thika tenancy." Further, while allowing the petition in part the Court declined to effect mutation automatically. The concerned officer was directed to examine the conveyances of petitioners and if it was found that clear title going by the conveyance was established then mutation should be effected.
In view of the above the writ petition is not maintainable as it is premature.
Therefore, the writ petition is dismissed. Interim order is vacated.
There shall be no order as to costs. Later:
If urgent xerox certified copy of this judgment and order is applied for the same shall be furnished within seven days from the date of making such application.