KAKOLI BISWAS Vs. KOLKATA IMPROVEMENT TRUST

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India praying for direction upon the respondent authorities, especially the respondent no.4, to cancel and withdraw the order dtd. 2/9/2011 and mutate the name of the petitioner in respect of the property being Flat No.11, Block No.A, KIT Scheme No. BIS-1 at 7/1, Rajendra Mullick Street, Kolkata-700007.

(2.) Learned counsel for the petitioner submitted as follows. The Writ petitioner was the daughter of late Kamakhya Prosad Choudhury and late Yogamaya Choudhury. The parents of the petitioner were the tenants under Kolkata Improvement Trust [now, Kolkata Metropolitan Development Authority] in respect of one flat being no. A/11 lying and situated at Block - A, of KIT Scheme No. BIS-I, 7/1, Rajendra Mullick Street, Kolkata - 700007. The said tenancy continued in succession. The petitioner was a bonafide allottee in succession. The brothers and sisters of the writ petitioner were pleased to grant "no objection" in favour of the petitioner to apply for ownership of the said flat. By a notification dtd. 28/10/2004, the Kolkata Improvement Trust informed the occupant/tenants and the allottees that the respondents had decided to execute and register a deed of sale upon a payment of consideration as specified in the notification. The petitioner thereafter made an application addressed to the respondent no. 2 for registration on 29/10/2009 for the ownership of the flat in the name of the petitioner. Pursuant to the application, the respondent no. 2 issued a notice dtd. 16/3/2010 thereby directing the petitioner to appear before him on 22/3/2010 along with all documents and testimonials in support of her case. The said date of hearing was subsequently re-fixed. The matter was taken up for hearing by the respondent no. 4 on 12/8/2011 and again on 2/9/2011. Smt. Kakoli Biswas, Smt. Sucheta Chowdhury, Sri Kinjal Chowdhury, Smt. Tania Ghosh were served with notice. Smt. Kakoli Biswas, Sri Tridib Ghosh, Smt. Anubha Ghosh appeared before the respondent no. 4 for hearing. The parties made their respective submissions and after hearing the concerned parties and after going through the materials on record, the respondent no. 4 rejected the prayer for mutation of the petitioner as well as the application filed by the private respondents. The private respondent Tridib Jyoti Ghosh filed a writ application on 24thday of June 1985 being writ petition no. C.O/W.P. 11297 (W) of 1985 challenging the purported threat to evict him from the said flat against the Kolkata Improvement Trust Authority including its Chairman, Trustees and Estate Manager. By on order dtd. 17/1/2002, this Court was pleased to dismiss the said writ petition with the observation that the writ petitioner had no right, title or interest in the said flat and issued a specific direction to vacate the said flat and to handover vacant possession of the said flat within a month. The private respondent Tridib Jyoti Ghosh preferred an intra Court Appeal, but till date failed to obtain any stay against the operation of order dtd. 17/1/2002. The private respondent was required be treated as an unauthorized occupant who had been disregarding the solemn order dtd. 17/1/2002 of this Hon'ble Court.

(3.) Learned senior counsel representing the private respondent submitted as follows. By the impugned order, the Estate Manager rejected the application of the writ petitioner dtd. 29/4/2009, for allotting the flat, which was a rental flat governed by the W.B.G.P.(TR) Act, 1976 and not a private property under Transfer of Property Act. The Estate Manager while deciding the issue had recorded the entire statements of the writ petitioner and the private respondents and had come to the conclusion that the writ petitioner being the daughter of the late allottees had not been residing in the flat and she had permanently left the flat in the year 1979 and stayed outside the said flat. Her prayer for mutations of the said flat in her name was not considered as she violated clause number 13, 18 and 21 of tenancy agreement of her mother. The private respondents in their Affidavit in Opposition had categorically denied the allegations made against them in the writ petition and also submitted that the mother of the petitioner, the late Yogomaya Choudhary left the flat prior to her death. Admittedly, the petitioner since her marriage in 1977 never resided in the said flat. It was also the case of the private respondents that the petitioner all along was permanently residing with her husband at Mumbai, not only prior to the death of her mother but also thereafter and the private respondents were residing there till date. In the affidavit in opposition it was also submitted that the petitioner never paid or tendered any amount of rent and thus, she could not claim herself to be a tenant in respect of the flat. It was also the case of the private respondent no. 5 that as per the notice dtd. 28/10/2004 an application has been made to the Officer on Special Duty, Kolkata Improvement Trust (now, Kolkata Metropolitan Development Authority) on 30/12/2004 in the prescribed form No. 4110 in connection with purchase of the said flat. He made the application under the capacity of an occupant other than tenant as per provision of the said notice, within the prescribed time limit as indicated therein and the said application was pending till date in view of the pendency of the present writ petition. The question of eviction of the private respondent was not a matter of adjudication in the present writ petition. The tenancy did not create any heritable right in the petitioner's favour. On the other hand, it was the categorical statement of her late mother at the time of making the said agreement that in the event of her death, member of her family shall vacate the flat forthwith unless the Trust agreed to enter into a fresh contract with any surviving member of her family.