Research › Browse › Judgment

Calcutta High Court · body

1977 DIGILAW 69 (CAL)

Panchanon Singh v. State of West Bengal

1977-03-01

BANKIM CHANDRA RAY, NIRMAL CHANDRA MUKHERJI

body1977
JUDGMENT Mukherji, J. 1. This Rule arises on an application under Article 227 of the Constitution of India and is directed against the order dated 29th of November 1975 passed by the Commissioner, Presidency Division, in appeal under Section 7 of the West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962 in Case No. 16 of 1975-76 affirming that dated 26.7.75 of the Sub-Divisional Magistrate, Executive, Sadar, Howrah, in case No. 8/560 of 1969-70. 2. The facts of the case may briefly be stated as follows : By an agreement No. 12 of the year 1962-63 entered into between the petitioner and the opposite parties, the petitioner agreed to supply to the opposite party No. 1 kiln burnt bricks and jhama bats. On April 17, 1962 the petitioner submitted tender and the same was accepted. On the requirement of the opposite parties from time to time the petitioner had to furnish security of an aggregate amount of Rs. 63,169/- and the said security is still lying in deposit with the opposite parties. Pursuant to the said agreement the petitioner sold and delivered the kiln burnt bricks and jhama bats to the opposite parties. Before the said contract could be honoured, the petitioner was not able to procure suitable land in the vicinity for manufacturing bricks. The petitioner by a letter dated 5th of September 1962 addressed to the Executive Engineer for Rupnarayan Bridge, Special Road Division requested him either to allow the petitioner to manufacture the bricks at a distance of one mile or to help the petitioner in acquiring the required land by the road side. The petitioner was informed by a letter that the Department could help the petitioner. The petitioner again requested the Executive Engineer to help the petitioner in making available to him by acquisition of the lands. Thereafter the disputed land was requisitioned by the opposite parties and the possession of the land so requisitioned was handed over to the petitioner on 21st of February 1962. Thereafter the petitioner was informed that the requisitioned land would be acquired permanently. It was further communicated that the valuation of the land which would be acquired had been assessed at Rs. 58,451.58 and the petitioner was requested to deposit the balance of the said sum to the extent of Rs. 21,788,58. Thereafter the petitioner was informed that the requisitioned land would be acquired permanently. It was further communicated that the valuation of the land which would be acquired had been assessed at Rs. 58,451.58 and the petitioner was requested to deposit the balance of the said sum to the extent of Rs. 21,788,58. Thereafter the said lands were acquired by the opposite parties under the West Bengal Land Requisitioning and Acquisitioning Act, 1948. The entire acquisition cost was paid by the petitioner. The petitioner received a letter from the Superintending Engineer, Construction Circle No.1, dated 3rd of January 1966 informing the petitioner that as the contract had been completed and the land vested with the Government no work on the land should be done without obtaining previous approval of the Executive Engineer. Several correspondences were exchanged between the parties and the petitioner requested the opposite parties to convey the land to the petitioner in his letter dated 30th August 1966. The petitioner thereafter filed in the Original Side of this Court a suit, being Suit No. 2870 of 1968 for specific performance of the agreement for reconveyance and alternatively for a decree for Rs. 1,55,194.61 as damages and also claimed a decree for refund of the security deposit and other deposits with interest. 3. The opposite party No.1 filed an application before the Collector, Howrah, under Sections 3, 4 and 5 of the West Bengal Public Land (Eviction of Unauthorised Occupants) Act of 1962 as amended by Act XXVI of 1963 for eviction of the petitioner on the ground that the petitioner was an unauthorised occupant. The Sub-Divisional Executive Magistrate allowed the application. Being aggrieved, the petitioner preferred an appeal before the Commissioner and the appeal was dismissed and as such the petitioner has come up to this Court. 4. It is contended by Mr. Shyama Charan Mitter (Mr. Shyama Prasana Roy Chodhury appearing with him), learned Advocate appearing on behalf of the petitioner, that the application filed by the opposite parties before the competent authority is not maintainable because there is a bonafide dispute between the parties with regard to the disputed land and that it cannot be said in the facts and circumstances of the case that the land is in unauthorised occupation of the petitioner. That being so, the application ought to have been rejected by the competent authority and the appeal ought to have been allowed by the Commissioner, Presidency Division. Mr. Mitter refers to Section 4 of the West Bengal Public Land (Eviction of Unauthorised Occupants) (Amendment) Act, 1963. Section 4 reads as follows:'' “(1) If, after considering the cause, if any, shown by any person in pursuance of a notice issued under Section 3 and any evidence adduced in support thereof, and any evidence which may be adduced by the owner and after making such further inquiry, if any, as he deems necessary, (a) the Collector is satisfied that no bonafide dispute regarding title to the public land exists and that the public land is in unauthorised occupation, he shall make an order of eviction directing all persons in such unauthorised occupation to vacate the public land and deliver possession thereof to the owner within such time as may be specified in the order ; or (b) the Collector is satisfied that any person concerned is not in unauthorised occupation of the public land or is of opinion that a bona fide dispute regarding title to the public land exists, he shall make an order cancelling the proceedings and referring the parties to the civil court. (2) For the purpose of making an inquiry referred to in sub-section (1), the Collector, or any person authorised by him in this behalf, may - (a) enter upon the public land and inspect, measure or demarcate the same at any time between sunrise and sunset; and (b) require in such manner as may be prescribed, all persons concerned or any other person to furnish information relating to the names and other particulars of the persons concerned and the persons concerned or any other person so required shall be bound to furnish such information. (3) The Collector shall cause a copy of the order made under clause (a) sub-section (1) to be served in the manner referred to sub-section (2) of Section 3". 5. Mr. Mitter contends that before passing an order for eviction the Collector must be satisfied that no bona fide dispute regarding title to the public land exists and that the public land is in unauthorised occupation. 5. Mr. Mitter contends that before passing an order for eviction the Collector must be satisfied that no bona fide dispute regarding title to the public land exists and that the public land is in unauthorised occupation. The section also provides that if the Collector is satisfied that any person concerned is not in unauthorised occupation of the public land or is of opinion that a bona fide dispute regarding title to the public land exists, he shall make an order cancelling the proceedings and referring the parties to the civil court. It is the admitted position that there was a written contract between the parties and on the basis of the said contract the petitioner was in possession of the land from 21.12.62 to 20.12.65. It is the case of the opposite parties that on 21.12.65 the contract came to an end and after the termination of the contract as the petitioner did not vacate he must be treated as being in unauthorised occupation of the land. It is thus seen that at the beginning when the petitioner came to occupy the land, he had legal title to occupy the same on the basis of a written contract. Whether after the termination of the contract he is possessing the land illegally is a matter which can be decided only by the civil court. From the various correspondences referred to in the application for motion and the affidavit-in-opposition we find that request was made by the petitioner to requisition the land and the opposite party No.1 agreed to that requisition. Land was requisitioned and subsequently the land was acquired and the petitioner bore all the expenses of requisition and acquisition. 6. Mr. Birendra Kumar Roy Choudhury, learned Advocate appearing on behalf of the opposite parties, draws our attention to the letter dated 13th of January 1963 written by the petitioner to the Executive Engineer, Uluberia Special Road Division, wherein it has been stated in paragraph I that all cost of requisition would be borne by the petitioner though the proprietory right of the land will vest with the Government. As such the petitioner cannot now challenge that he is in legal occupation of the land. Mr. As such the petitioner cannot now challenge that he is in legal occupation of the land. Mr. Mitter' draws our attention to paragraph 2 of the said letter wherein it was stated that if due to procedural difficulties or for any other reasons the permanent acquisition of land becomes necessary, the cost thereof would also be borne by the petitioner without any objection, if so required by the Department. Mr. Mitter submits that paragraph 2 is independent of paragraph 1 and in paragraph 2 it has nowhere been stated that in case of permanent acquisition, the proprietary right will remain with the Government. We feel that all these are disputed questions of title which can only be gone into by a civil court and not by a competent authority under the Act. Moreover, with regard to this very land a suit has been filed in the Original Side of this Court, being O.S. No. 2870 of 1968 and that suit is pending. Considering the facts and circumstances of the case, we are clearly of the opinion that it cannot be said summarily by the competent authority that the petitioner is in unauthorised occupation of the land and there is no dispute with regard to the title of the land. 7. For the reasons stated above this application succeeds. The Rule is made absolute. The orders passed by the competent authority and the Commissioner, Presidency Division are set aside. The application filed by the opposite parties before the competent authority is rejected. There will be no order as to costs. Ray, J. : I agree.