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Judgment
Jayanta Kumar Biswas, J.—The petitioner in this WP under art. 226 of the Constitution of India dated November 29, 2012 is seeking the following principal relief:- a) A Writ of and/or in the nature of Mandamus shall not issue commanding the respondents particularly respondent No. 1 to realise the taxes of 28/3A, Convent Road, Calcutta, forthwith by attaching the rent of the said building.
Mr. Misra appearing for the petitioner has submitted that this WP has actually been filed for enforcement of an order of this Court dated July 2, 2012 (WP p.57).
The order dated July 2, 2012 was passed in the petitioner''s previous WP No. 500 of 2012. The order is quoted below:--
The Court: Affidavit of service filed in Court today be kept on record. Having heard learned advocates for the parties, no order is passed on the writ petition. However, this order shall not prevent the authorities of the Kolkata Municipal Corporation to realize tax in accordance with the provisions of the Kolkata Municipal Corporation Act, 1980.
This writ petition is disposed of.
No order as to costs.
All parties concerned are to act on a signed photo copy of this order on the usual undertaking.
The petitioner is claiming that she is a co-owner of the property mentioned in prayer (a). Her allegation is that though the other co-owners are not paying tax for the property, the Kolkata Municipal Corporation has not been taking any step for collecting the tax. Her case is that since the Corporation''s inaction will create her future liability, she is entitled to a mandamus commanding it to collect tax for the property.
Advocate for the private respondent has submitted as follows. The petitioner''s previous WP No. 500 of 2012 is identical with this WP in every material aspect. The petitioner has already filed a partition suit that is pending. She is not a co-owner of the property. She made a gift of her share in the property to the private respondent.
An order passed in a WP is not to be enforced by filing a fresh WP, but by initiating execution proceeding. If a litigant has to file a WP for executing an order passed in a previous WP, then he may be required to file a third WP for executing the order passed in the second WP and so on. The whole proposition is contrary to the concept of finality in judicial proceedings, - a hallmark of the judicial system.
The petitioner''s ownership over the property is in dispute. It is not for the High Court under art. 226 to decide the issue whether she is a co-owner of the property. She filed a partition suit and her claim that she is a co-owner of the property is likely to be an issue in that suit. Her apprehension concerning her future liability may give her an occasion to seek interim relief in the pending partition suit, but cannot entitle her to move this Court seeking a mandamus. For these reasons, I allow the GA, restore the WP to file, and dismiss the WP on merits. Nothing herein shall prevent the petitioner from applying in the pending suit for relief according to law. No cost. Certified xerox.