- (1.) The prayers pressed by Mr. Talukdar, learned senior Advocate appearing for the writ petitioner read as follows:- a) A writ or writs in the nature of mandamus do issue commanding the respondents No. 1 to 5 and/or each of them, their servants and agents-- i] to mutate the name of your petitioner in the municipal assessment books and records as owner of the said property, more fully described in Schedule being Annexure "P-1" hereof without demanding any property tax dues for any period prior to 22nd March, 2006; ii] not to take any step and/or any further step and/or initiate any action and/or any further action on the basis of or pursuant to the letter dated 8th July, 2010 and/or the letter of intimation being Annexure "P-9" hereof; The letter dated 8th July 2010 referred to in clause (ii) of prayer (a) quoted above is annexure P-9 to the writ petition by which the writ petitioner was informed that he has to clear the outstanding dues and to submit 'No Objection Certificate' for the purpose of mutation. He was also requested to submit the 'No Objection Certificate' at an early date otherwise the mutation case was likely to be cancelled. From an enclosure to that letter it appears that a sum of Rs. 2525283/- was due and payable inclusive of penalty and it also appears that a sum of Rs. 8213/- was lying as a deposit under suspension.
(2.) The case of the writ petitioner briefly stated is as follows : The property sought to be mutated was purchased in an auction pursuant to a notice of sale, a copy whereof is annexure P2 to the writ petition. The sale notice provides that the terms and conditions of the sale are the same as stipulated in the proclamation of sale issued by the Recovery Officer on 2nd December, 2005 and 22nd December, 2005. The terms and conditions of sale, according to Mr. Talukdar, did not contain any stipulation that the arrear dues of the Kolkata Municipal Corporation are payable by the purchaser. The purchaser, according to him, is in any event not liable to pay the alleged dues of the Kolkata Municipal Corporation because he is a bonafide purchaser for value without notice of any such claim of the Municipal Corporation. Mr. Talukdar in support of his submissions relied upon a judgment in the case of The Ahmadabad Municipal Corporation vs. Haji Abdul Gafur Haji Hussenbhai, 1971 AIR(SC) 1201 wherein the Apex Court held as follows construing section 141 of the Bombay Provincial Municipal Corporation Act, 1949: Sub-section (1), as is obvious, merely creates a charge in express language. This charge is subject to prior payment of land revenue due to the State Government on such building or land. The section, apart from creating a statutory charge, does not further provide that this charge is enforceable against the property charged in the hands of a transferee for consideration without notice of the charge. It was contended that the saving provision, as contemplated by section 100 of the Transfer of Property Act, may, without using express words, in effect provide that the property is liable to sale in enforcement of the charge and that if this liability is fixed by a provision expressly dealing with the subject, then the charge would be enforceable against the property even in the hands of a transferee for consideration without notice of the charge. According to the submission it is not necessary for the saving provision to expressly provide for the enforceability of the charge against the property in the hands of a transferee for consideration without notice of the charge. This submission is unacceptable because, as already observed, what is enacted in the second half of section 100 of Transfer of Property Act is the general prohibition that no charge shall be enforced against any property in the hands of a transferee for consideration without notice of the charge and the exception to this general rule must be expressly provided by law. The real core of the saving provision of law must be not mere enforceability of the charge against the property charged but enforceability of the charge against the said property in the hands of a transferee for consideration without notice of the charge. section 141 of the Bombay Municipal Act is clearly not such a provision. The second contention accordingly fails and is repelled.
(3.) Mr. Talukdar also relied on the judgment in the case of AI Champdany Industries Limited vs. Official Liquidator and another, 2009 4 SCC 486 wherein an identical claim of the Bhatpara Municipality was turned down by the Supreme Court.;