1. On receipt of an information from the Controller, Calcutta Thika Tenancy to the effect that the premises No. 17, Garcha First Lane, Kolkata - 700019 is a thika property and the State of West Bengal is the owner thereof, the Calcutta Municipal Corporation, by its letter dated 7th February, 2001 being Annexure ‘C’ to this writ petition appearing at page 28 thereof invited the petitioner being the recorded owner of said premises to be present on 27 March, 2001 at 1 p.m in the chamber of the Assessor-Collector (South) in connection with the proceeding for proposed change of ownership in the Municipal record.
2. Immediately on receipt of the said notice, the petitioner filed his objection to such proposed change of ownership in the Municipal record by contending inter alia that since the petitioner who is the absolute owner of the said property is in possession thereof and the said property was never a thika tenanted property, alteration in the Municipal records as proposed is not necessary. A copy of the said objection was also given to the Thika Controller. Calcutta.
3. Since neither the Kolkata Municipal Corporation nor the Thika Controller took any step to redress the grievance of the petitioner against such illegal attempt for recording the proposed change of ownership in the Municipal record, the petitioner moved this writ petition, inter alia, praying for issuance of a Writ of Mandamus commanding the respondents to revoke, cancel, rescind and/or set aside the notice dated 9 January, 2001 issued by the Thika Controller to the Kolkata Municipal Corporation and also for restraining the Municipal authorities from acting on the basis of the said notice of the Thika Controller.
4. Prior to issuance of the said notice, a proceeding for determination of the excess vacant land of the petitioner under Urban Land (Ceiling and Regulation) Act, 1976 was initiated by the competent authority, Calcutta. The said proceeding was ultimately dropped by the concerned authority by an order dated 13 September, 2000. The certified copy of the order dated 13 September 2000 passed by the competent authority in connection with the said proceeding is also annexed to this writ petition being Annexure ‘B’ thereto.
5. In the said order, the competent authority held that the petitioner is entitled to retain the premises No. 17, Garcha First Lane, Kolkata - 700019. It was further held therein that the petitioner does not hold any vacant land in excess of the ceiling limit. Accordingly, the said proceeding was dropped by the competent authority without preparation of any draft statement.
6. After being unsuccessful in the said attempt, the State Government through its different machinery made an attempt to take over the land of the petitioner lying at premises No. 17, Garcha First Lane, Kolkata - 700019 by initiating another proceeding under Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. In fact, an ex parte order was passed in connection with the said proceeding by declaring that the said property is a thika tenanted property and the ownership thereof was vested with the State.
7. The legality of the said order was challenged by the petitioner in this petition, as the same was passed without notice to the petitioner. In view of such complaint, Justice Aloke Chakrabarti (as His Lordship then was) by an order dated 22nd June, 2001 passed in this writ petition, granted liberty to the petitioner to submit a representation before the Thika Controller, Calcutta in respect of his grievances within a period of seven days with a further rider to the effect that if such a representation is made, the Thika Controller will decide the same within a period of two weeks from the date of submission of the said representation. An interim order was also passed by His Lordship restraining the respondents from taking any further steps on the basis of the impugned notice being Annexure - ‘C’ to this writ petition for a period of six weeks from the date of the said order.
8. Incidentally, it may be mentioned that Annexure - ‘C’ is the notice by which the Municipal authorities invited the petitioner to be present at the hearing in connection with the recording of the proposed change of ownership in the Municipal records.
9. Pursuant to the liberty granted to the petitioner by His Lordship, as aforesaid, a representation was submitted to the Thika Controller, Calcutta which was disposed of by the said Thika Controller by his order dated 12 July, 2001. A copy of the said order was produced by the learned advocate, appearing for the State-respondents in connection with this writ petition and the same was made a part of the record by an order dated 5 October, 2005 passed by Justice Soumitra Pal.
10. It appears from the said order that the Thika Controller held that the suit property was vested with the State with effect from 18 January, 1982 by operation of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. The said conclusion was arrived at by the Thika Controller only on the basis of the Municipal record which discloses that there are four blocks of structure in the said premises and all the structures are “Kancha”, i.e, made of asbestos, tiles, darma and corrugated shade. Considering the nature of such construction, the Thika Controller came to a finding that such constructions cannot be stated as “Pucca” construction. The Thika Controller further held that out of these four blocks, three blocks were let out to others who erected structure; one block which was under the “Khas” possession of the writ petitioner containing “Kancha” structures, was let out to several “bharatias”.
11. On the basis of such findings, the Thika Controller held that the three blocks wherein tenants of the land have erected “Kancha” structures, were vested with the State under the provision of clause (a) of section 5 of the said Act remaining portion where the owner of the land erected several “Kancha” structures and let out to the tenants, was vested under clause (b) of section 5 of the said Act.
12. In fact, when the said order was brought to the notice of Justice Barin Ghosh (as His Lordship then was), at the time of extension of the interim order, his Lordship in the order dated 18 December, 2001 recorded His Lordship's dissatisfaction and surprise about the said order of the Thika Controller, as the Thika Controller arrived at its conclusion without mentioning any single piece of evidence on the basis whereof any person can come to the conclusion that the petitioner or his successor created a Thika Tenancy over the property in question. Accordingly, the Controller, Calcutta Thika Tenancy was directed to produce the entire records in his possession three weeks after the reopening of the Court after the ensuing X'mas vacation to demonstrate that either the petitioner or his predecessor did create any Thika Tenancy in any part of property in question.
13. Pursuant to the said direction of His Lordship, records were produced on behalf of the Thika Controller before His Lordship on 30 January, 2002. On perusal of the said record, his Lordship recorded in the order dated 30 January, 2002, that the records do not contain any document wherefrom it would be depicted that the petitioner or his predecessor-in-interest granted any tenancy in favour of any one with right to make any construction thereon.
14. Thereafter, an opportunity was given to the respondents to file affidavit-in-opposition in connection with the said writ petition by Justice Pinaki Chandra Ghose on 12 July, 2002 but in spite thereof no affidavit was filed by the respondents by controverting the positive averments of the petitioner regarding his title and/or ownership in respect of the said property. The other averment of the petitioner regarding payment of rates and taxes by the petitioner in respect of the said premises regularly, still remains uncontroverted.
15. Mr. Panja, learned Senior Counsel, appearing on behalf of the petitioner, referred to one decision of the Hon'ble Supreme Court in the case of Court of Ward, Kolhapur v. G.N Ghorpade, reported in AIR 1973 SC 627 to show the effect of not controverting the positive statement of the petitioner by the respondents by filing affidavit. It was held therein that in the absence of any counter-affidavit, the High Court has to accept the statements made on affidavit by the petitioners therein as prima facie evidence of his right to possession of the land in question.
16. Relying upon the said decision, Mr. Panja submitted that since the respondents have failed to submit their affidavit-in-opposition, in spite of directions of this Court, this Court has no option but to accept the statement of the petitioner regarding his title and ownership of the said premises.
17. Mr. Panja further submitted that under the Calcutta Thika Tenancy (Acquisition and Regulasion) Act, 1981, the Thika Controller is not vested with the power to adjudicate whether a person is a thika tenant or not. In support of such submission, Mr. Panja relied upon the following decisions of this Hon'ble Court:
(i) 1999 (1) CLJ 250, Shayamal Atta v. State of West Bengal, and
(ii) 1999 (11) CHN 311, Indira Devi Rajak v. Thika Controller & Ors. Controller.
18. Relying upon the aforesaid decisions, Mr. Panja submitted that since the Thika Controller is not authorized to adjudicate as to whether a person is a thika tenant or not, the entire proceeding which was initiated by the Thika Controller leading to his declaration to the effect that the land lying in the said premises is a Thika land and the ownership thereof was vested with the State with effect from 18 January, 1982 should be regarded as non est in the eye of law.
19. Mr. Panja further submitted that while considering mutation and/or change of name of ownership under sections 183 and 193(4) of the Kolkata Municipal Corporation Act, even the Kolkata Municipal Corporation has no jurisdiction to determine the title of any person in any property in question. In support of such submission, Mr. Panja relied upon a decision of the Division Bench of this Court in the case of K.G Patel v. Chandra Devi Bothra, reported in 1997 (1) CHN 156.
20. Accordingly, Mr. Panja submitted that the entire proceeding for mutation of the name of the State in the place of the recorded owner, viz., the petitioner in respect of the said premises in the Municipal records as well as the proceeding regarding vesting of the petitioner's right with the State under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 held before the Thika Controller, Calcutta should be quashed.
21. Mr. Haque, learned Advocate, appearing for the State-respondents, supported the order passed by the Thika Controller in connection with the said proceeding on 12 July, 2001. Mr. Haque submitted that when a decision has been given by a competent authority as per the direction of this Court, the effect of the said decision cannot be ignored unless the said decision is set aside by a Court of competent jurisdiction. Mr. Haque thus submitted that when the said decision has not been assailed by the petitioner before the appropriate forum, the said decision is binding upon the parties.
22. Mr. Haque submitted that the Municipal authority did not commit any illegality by initiating a proceeding for recording the name of the State as owner of the said property in the place of the erstwhile recorded owner in the Municipal record.
23. Mr. Chakraborty, learned Advocate, appearing for the Kolkata Municipal Corporation, submitted that the Corporation simply initiated the said proceedings on the basis of the request made by the Thika Controller, Calcutta by its letter dated 9 January, 2001. Mr. Chakraborty further submitted that the Corporation, however, has not made any independent adjudication of the dispute regarding the title to the property of the rival claimants. On the contrary, the Corporation simply recognised the adjudication made by the Thika Controller and proposed to keep its record up-to-date in terms of the said decision of the Thika Controller.
24. Heard the learned Advocates of the parties. Considered the materials on record.
25. The entire dispute involved in this writ petition depends upon the answer to the question as to whether the Thika Controller is vested with the power to adjudicate any dispute regarding the title to a property of the rival claimants.
26. The decisions which were cited by Mr. Panja in the case of (i) Shyamlal Atta v. State of West Bengal (supra) and (ii) Indira Devi Rajak v. Thika Controller & Ors. (supra) speak in clear term that the power to adjudicate as to whether a person is a thika tenant or not has not been vested with the Thika Controller under the provision of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. In fact, such a dispute which requires declaration of title of the rival claimants, can only be resolved by the Civil Court of competent jurisdiction.
27. Thus, since the Thika Controller was not vested with such power of adjudication under the said Act, the entire proceeding became non est in the eye of law for inherent lack of jurisdiction of the authority which initiated the said proceeding. It appears from the order dated 12 July, 2001 passed by the Thika Controller that the Thika Controller was very much aware of his jurisdiction and accordingly the Controller recorded in the said order that though he has no jurisdiction to consider such a dispute, still then such dispute was considered by him in terms of the direction of this Court.
28. Thus, the said proceeding was initiated by the Thika Controller in excess of his jurisdiction. Statute never vested such authority with the Thika Controller. Inherent lack of jurisdiction cannot be cured by consent of parties. Even the Court cannot vest any jurisdiction upon any authority which is not otherwise empowered under any statute to do something.
29. That apart, the order which was passed by the Thika Controller on 12 July, 2001 also does not disclose anything about the creation of any particular thika tenancy in the said premises. The said order is totally silent as to who created such thika tenancy and in whose favour. The mode of creation of such thika tenancy is also conspicuously absent in the said order. Even the names of the thika tenant have also not been disclosed in the said order.
30. Even the learned Advocate appearing for the State-respondents could not disclose the name of any single thika tenant in the said premises even at the time of hearing of this application.
31. It is really surprising to note that the State which is claiming ownership over the said premises by way of vesting under the provision of the said Act is unable to disclose the name of its tenants. No tenant has ever come forward to record his name in the Municipal record. The assessment record produced by Mr. Chakraborty shows that only the owner's name in respect of the said holding was changed. The said record also remains silent about the names of the person who is in actual occupation thereof.
32. Under such circumstances, this Court holds that the proceeding held before the thika Controller, Calcutta and the decision arrived therein by the thika Controller on 12 July, 2001, are liable to be quashed.
33. Before concluding, I must record that in view of the decision of the Division Bench of this Court in the case of K.G Patel v. Chandra Devi Bothra (supra) the Municipal authority cannot adjudicate the title of the rival claimants under the provisions of section 183 read with section 193(4) of the Kolkata Municipal Corporation Act.
34. Mr. Chakraborty appearing for the Kolkata Municipal Corporation, submitted that his client made no attempt to adjudicate the title of the rival claimants in this particular case. On the contrary, his client simply mutated the name of the State Government as owner thereof in the place of the erstwhile recorded owner thereof, viz., the petitioner in terms of the adjudication made by the Thika Controller.
35. If that be so, then the alteration of the recording in the owner's column in the Municipal records by the Municipal authority is also liable to be struck out.
36. Thus, considering the effect of not controverting the petitioner's claim of title and/or ownership in the said premises by the respondents by filing their affidavits coupled with the inherent lack of jurisdiction of the Thika Controller to adjudicate any dispute as to whether any person is a thika tenant or not in respect of a property and the incidence of title thereto, this Court holds that neither the decision which was arrived at by the Thika Controller on 12 July, 2001 in the connected proceeding nor the alteration of the recording of the entries in the owner's column in respect of the said premises in the Municipal records by the concerned respondents of Kolkata Municipal Corporation, can be sustained.
37. Accordingly, the entire proceedings before the Thika Controller, Calcutta including the order dated 12 July, 2001 passed by the Thika Controller, Calcutta, and the proceeding for alteration of the entry of the owner's column in the Municipal records in respect of the said premises which was initiated by the Municipal authority on the basis of the request of the Thika Controller pursuant to Annexure-‘C’ to this writ petition stand quashed.
38. The Municipal authority is thus directed to restore the recording of the name of the petitioner in the owner's column in the Municipal records in respect of the said premises forthwith.
39. The writ petition thus stands allowed.
40. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.
Jyotirmay Bhattacharya, J.:
Writ petition allowed.
S.K.P