Authority: High Court at Calcutta (Constitutional Writ Jurisdiction)

Order Date: 29 July 2026

Case Overview

  • Petitioners: Mita Koley (petitioner) represented by advocates Raghunath Chakraborty, Supratik Syamal and Sonali Sengupta; Respondents: Kolkata Municipal Corporation (KMC) and associated officials.
  • Subject matter: Whether the petitioner is entitled to mutation and separation of his property under statutory Form‑A‑42 dated 12 August 2022, pursuant to the Kolkata Municipal Corporation Act, 1988.
  • Land details: 3033 sq ft (4 Kathas, 3 Chitaks and 18 sq ft) situated at 21/1 Radhanath Chowdhury Road, Ward 56, Kolkata‑700015, formerly owned by Jadavpur University. Deed of conveyance dated 25 April 2011, Register Deed No. 03554/2011. Assesse number 11‑056‑12‑0397‑0 assigned by KMC; rates and taxes paid.
  • The petitioner applied for mutation and separation on 12 August 2022 (Form‑A‑42). The Assistant Assessor Collector (Respondent No. 4) rejected the application on 13 September 2022, labeling the premises a “factory premises” and stating it did not meet statutory criteria for separation.
  • The petitioner’s representation dated 1 November 2022 received no response. Subsequent hearing on 12 December 2022 (ordered by the Court on 16 November 2022) resulted in a reasoned order dated 2 January 2023, directing that mutation and separation could be granted only after compliance with Municipal Commissioner’s Circular No. 42 of 2021‑22 (dated 12 November 2022) and delisting the property as a factory.
  • The petitioner argued that the “factory premises” classification is outdated, the factory structure is abandoned, and no statutory provision requires a No‑Objection Certificate (NOC) from the Factory Department for separation.
  • The petitioner relied on Rule 4(4) of the KMC Building Rules, 2009 (NOC required only for sites ≥ 500 sq m) and Section 178(2)(i) of the KMC Act, 1980 (allowing separate assessment of vertically divisible portions with independent enjoyment).
  • The Directorate of Factories, West Bengal inspected the site on 14 December 2023 (report dated 18 December 2023). Findings: 15 units within the premises, 37 HDPE bags (≈ 200 kg each), a burner, isolator, oven, switches; the shed is dilapidated, no manufacturing activity on the day of inspection; the property shares walls with an Indane gas godown and other properties; the factory “Wrapco (India) Pvt. Ltd.” operates elsewhere on the same premises but not in the petitioner’s portion.
  • The respondent’s counsel (Alak Ghosh) contended that a property recorded as a factory cannot be separated without re‑classification, citing Municipal Commissioner’s Circulars No. 48 of 2014‑15 and No. 42 of 2021‑22, Section 390(2)(g) (definition of industrial buildings), Section 416 (prohibition on change of use without Municipal Commissioner’s permission), and Section 419 (factory establishment requires prior permission).
  • The respondent further argued that the Assistant Assessor Collector’s order was based on valid circulars and that the petitioner had not challenged those circulars.
  • The Court examined the statutory framework, emphasizing that administrative circulars cannot impose substantive conditions not found in the KMC Act or Rules. It cited the principle of legality, expressio unius est exclusio alterius, and precedents (Taylor v. Taylor, Nazir Ahmad v. King Emperor, State of U.P. v. Singhara Singh, Babu Verghese v. Bar Council of Kerala).
  • The Court held that while the Municipal Commissioner may seek information from the Factory Department, a mandatory NOC cannot be made a jurisdictional pre‑condition unless authorized by statute.
  • The Court also addressed procedural issues, stating that an application filed before an incompetent department should be transferred rather than dismissed outright.

Final Outcome

  • The impugned order of the Assistant Assessor Collector dated 13 September 2022 is quashed and set aside.
  • The appropriate department of KMC shall immediately take up the petitioner’s Form‑A‑42 application dated 12 August 2022, grant a reasonable opportunity of hearing, and pass a reasoned order.
  • The entire process must be completed within 16 weeks from the date of communication of this judgment.
  • An urgent certified copy of the judgment shall be supplied to the parties upon compliance with formalities.

Topics: Property Mutation, Municipal Law, Administrative Procedure