- (1.) The two petitioners in this Article 226 petition dated April 18, 2006 are aggrieved by the decision of the Howrah Municipal Corporation dated August 19, 2005 that has been submitted by a supplementary affidavit dated June 6, 2006. By the decision their application for mutation of assessment records concerning premises No.37/1, Sailendra Nath Bose Road, Salkia, Howrah was disposed of. The decision was given in compliance with an order of this Court dated March 20, 2003 made in the petitioners' W,P. No. 4131(W) of 2003 that was taken out alleging that the corporation was not giving decision in the mutation application. The impugned decision reads as follows: "In accordance with the order passed by Hon'ble High Court in regard to the matter under above reference, after verifying the documents submitted at the hearing and obtaining legal opinion by Chairman, Borough-II, from learned Advocate, Calcutta High Court appearing on behalf of Howrah Municipal Corporation, I am directed by Chairman to inform you, that the prayer for mutation for both shares cannot be considered on the grounds that the property is a Debattor estate and the vendors have transferred the right by excenting sale deed on on 20/1 /1986 & 18/12/ 1986 without the permission of District Judge; Howrah and therefore you being the applicants have not acquired the valid title in respect of the property in question."
(2.) The Beras of 23 /1, Harganj Road, Malipanchghara, Howrah originally owned the land qua zamindars, and they let it out to one Krishnapada Bhunia, who, qua the the thika tenant, was residing in the constructions errected thereon at his expense. By a registered instrument dated July 23, 1951 the Beras dedicated the land to their tutelary deity (Kuladevta), Sree Sree ShitalamataThakurani under a registered conveyance dated May 18, 1954, Annexure PI at p. 15, Krishnapada sold the property to the deity, represented by its shebaits, the Beras. Then under a registered instrument dated July 5, 1965, Annexure P2 at p.20, the deity, through its shebaits, leased out the property a permanent basis to one Jatanmani De. It was stated in the instrument that the transaction became necessary for meeting the expenses of repairing the temple and performing, the deity's sebapuja. All facts pertaining to creation of the endowment were stated in the instrument. The petitioners purchased a part of the property, from Jatanmani's six (out of seven) children under a conveyance dated January 20, 1986, Annexure P3 at p.25, and the rest from Jatanmani's remaining minor son under a conveyance dated December 18,1986, Annexure P4 at p. 13. On May 15, 1996 they submitted requisite application to the corporation seeking mutation of the assessment records. Then alleging inaction they took out the previous writ petition that was disposed of directing the corporation to give appropriate decision. This is how the impugned decision came.
(3.) Mr Ghosal, counsel for the petitioners, has argued that the corporation, possessing no power to go into the question of title while deciding the mutation application, not only wrongfully went into the question, but also proceeded on a wrong premise that, since Jatanmani's children transferred the debutter estate without obtaining leave of the District Judge, Howrah, the petitioners did not acquire any title to claim ownership over the property. He has relied on passages from B.K. Mukherjea's The Hindu Law of Religious and Charitable Trusts, 5th ed. by A.C. Sen and the decisions in Sree Sree Ishwar Narayan Jiu v. Soler, (1937) I.L.R. 2 Cal 133, Sree Sree Sreedhar Jew v. Kanta Mohan Mullick & Ors., (1945) 50 C.W.N. 14, Sankalchan Jaychandbhai Patel v. Vithalbhai Jaychandbhai Patel & Ors., (1996) 6 SCC 453, K.G. Patel & Co. v. Smt. Chandra Devi Bothra& Ors., 1997(1) CLJ 156, Balwant Singh & Anr. v. Daulat Singh & Ors., (1997)7 SCC 137, and Shrenik Kumar Singhee v. The State of West Bengal & Ors., (2006)1 Cal LT 435 (HC).;