- (1.) HEARD learned Advocates appearing for the parties.
(2.) AFFIDAVIT filed by respondent No. 1, the purchaser of the property, ms. Joyee Laheri and affidavit filed by respondent Nos. 2 and 3, the erstwhile owners of the property affirmed through Sri Ranjit Chatterjee be kept with the record.
(3.) THE very short question involved in this appeal as filed assailing the judgment and order dated 21st July, 2008 passed in W. P. No. 1100 of 2007 by the Kolkata Municipal Corporation is that whether in terms of section 183 sub-section (5) proviso, the Corporation has the power to refuse mutation in a case where there is arrear of any dues to the corporation on account of the transfer or the predecessor-in-interest of the applicant praying for mutation. Learned trial Judge relying upon the judgment passed in the case "aniruddha Bose v. K. M. C. " reported in 2006 (2) CHN 535 held that under the said proviso of sub-section (5) of section 183 of said Act Corporation was bound to grant mutation and had no power to refuse it even if there was arrear of any property tax to the corporation for the concerned premises. In course of hearing however sellers and purchaser have agreed to clear the Corporation dues by snaring liability at the rate of 50% each and to that effect two affidavits have been filed with undertaking for payments of such. Those affidavits to be considered later on. To decide the question raised about the power of the corporation to refuse mutation in the event there is arrear of any dues to the Corporation, the relevant Section 183 will give the answer. Section 183 reads thus:- "183. Notice of transfers.- (1) Whenever the title of any person to any land or building is transferred, such person, if primarily liable for the payment of [property tax] on such land or building, and the person to whom the title is so transferred shall, within three months after the execution of the instrument, of transfer or after its registration, if it is registered, or after the transfer is effected, if no instrument is executed, give notice of such transfer in waiting to the Municipal Commissioner. (2) In the event of the death of any person primarily liable as aforesaid, the person on whom the title of such land or building devolves shall, within six months from the date of death of the former, give notice of such devolution in writing to the Municipal Commissioner. (3) The notice under this section shall be in such form as may be prescribed, and the transferee or the person on whom the title devolves shall, if so required, be bound to produce before the municipal Commissioner any documents evidencing the transfer of devolution. (4) If any person, who transfers his title to any land or building, fails to give any notice under this section to the Municipal commissioner, he shall, in addition to any penalty to which he may be subject under this Act, continue to be liable for payment of the [property tax] on such land or building until he gives such notice but nothing in this section shall be deemed to affect the liability of the transferee for payment of the [property tax] on such land or building. (5) The Municipal Commissioner shall, on receipt of a notice of transfer or devolution of title under this section [and upon payment of such fee as may be determined by regulations], record such transfer or devolution in a book and also in the Municipal Assessment Book: [provided that nothing in the sub-section shall derogate from the power of the Corporation to refuse mutation in a case where there is arrear of any dues to the Corporation on account of the transfer or the predecessor-in-interest of the applicant. ] (6) On a written request by the Municipal Commissioner, the registrar of Assurances, Kolkata, or the District Registrar, 24-Parganas, shall furnish such particulars regarding registration of instruments of transfer of immovable properties in Kolkata as the municipal Commissioner may, from time to time, require. (7) Notwithstanding anything contained in sub-section (6),the registrar of Assurances, Kolkata, or the District Registrar, 24-Pargaras, shall furnish to the Municipal Commissioner such particulars soon after the registration of an instrument of transfer is effected, or, if the Municipal Commissioner so requests, such periodical returns at such intervals as the Municipal Commissioner may fix. ";