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2009 DIGILAW 152 (CAL)

Mrs. Kanika Chakraborty v. Mira Roy

2009-02-25

D.P.SENGUPTA, DEBASISH KAR GUPTA

body2009
Judgment : DEBIPRASAD SENGUPTA, J. (1) In the present case, the subject matter of challenge is an order dated 9.6.2004 passed by the learned Single Judge in W. P. No. 1072 (W) of 2002. (2) Writ petition was preferred by the respondents challenging an order dated 22/27.11.2001 issued under Memo No. 4286-Law/OM-65/99, which was an order of cancellation of allotment in favour of the writ petitioner no. 1 and her husband, Saroj Kumar Roy in plot no. 38 of Pirojpur-1, Government Colony, Malda. (3) The factual background of the case is as follows : For settlement of refugees from East Pakistan, huge area of land was acquired by the State Government to settle the said refugees. When these people were permitted to be settled, they were treated as licensees of the settled lands. They were permitted to construct structure for living with their families. In 1987 the State Government decided to recognize them as owners and to give documents of title to those settlers. (4) In the present case plot of land in question was settled in favour of the writ petitioner / respondent no. 1 and her husband in 1972. At a subsequent stage, the writ petitioner / respondent left that place and shifted to Calcutta. (5) The present appellant, Kanika Chakraborty, started living in that place as she was inducted as a tenant by the writ petitioner / respondent. Mr. and Mrs. Roy, the writ petitioners, agreed to sell the said land, which was settled in their favour, to Kanika Chakraborty, the present appellant, for an agreed consideration of Rs.45,000/-under a registered instrument and on payment of Rs.25,000/-gave possession of the said land. Remaining Rs.20,000/-was admittedly not paid. (6) At this stage, the Government decided to issue title deeds. Both Mrs. Roy and Mrs. Kanika Chakraborty applied for getting the title deed. Title deed was granted in favour of the appellant, Kanika Chakraborty. Such decision was stayed by the Government at the instance of Mr. and Mrs. Roy. An enquiry was conducted by the A.D.M., Malda and a report was submitted after completion of such enquiry in favour of the present appellant, Kanika Chakraborty, recommending execution of title deed in her favour. On the basis of such report allotment in favour of the writ petitioner / respondent was cancelled and recommendation was made for settlement of the same in favour of Mrs. Kanika Chakraborty (appellant). On the basis of such report allotment in favour of the writ petitioner / respondent was cancelled and recommendation was made for settlement of the same in favour of Mrs. Kanika Chakraborty (appellant). This order of cancellation was the subject matter of challenge in the writ petition. (7) The writ petition was finally disposed of by the learned Single Judge by the impugned judgment. The finding of the learned Judge was as follows : "To my mind, the petitioner totally disentitled herself to be entitled to the title of the property, for, admittedly, she was not in possession of the property at the relevant time, either directly or indirectly. She had, as aforesaid, in the meantime, made over possession to Mrs. Kanika Chakraborty under an agreement for sale. The Government Policy did not permit a well to-do settler to make profit out of the settled land belonging to the Government. It appears to me that the settlement in favour of Mrs. Kanika Chakraborty and grant of title deed in favour of Mrs. Kanika Chakraborty are also contrary to Government Policy for she had been inducted in the property by Mr. and Mrs. Roy and not by the State and the Government Policy suggests grant of title only to those refugees who had been settled by the Government in the lands in question." (8) In such circumstances, it was held by the learned Judge that neither the writ petitioner, Mira Roy, nor Mrs. Kanika Chakraborty was at all entitled to any title to the property or to remain in possession of the property. It was decided that the property would be reverted back to the State and it would be open to the State to deal with the property in accordance with law. It is the contention of the learned Advocate of the appellant that the writ application was disposed of behind the back of the appellant / respondent no. 7. On number of occasions when the matter was taken up by the learned Judge, the same was adjourned on the prayer of the learned Advocate of the writ petitioner and when the matter was finally taken up for hearing, the learned Advocate could not appear because of some unavoidable circumstances. To ascertain the position we called for the records of the writ petition being W. P. No. 1072 (W) of 2002. To ascertain the position we called for the records of the writ petition being W. P. No. 1072 (W) of 2002. From the records, it appears that on 19.02.2002, 1.3.2002 and 15.3.2002 the matter was adjourned on the prayer of the learned Advocate of the writ petitioner although the learned Advocate for the respondent no. 7 was present in court. Thereafter on 3.4.2002 there was a direction for filing affidavit-in-opposition and reply although such affidavit-in-opposition was filed earlier i.e. on 1.3.2002. Thereafter on 9.6.2004 the matter was taken up for final disposal and the learned Trial Judge by the impugned judgment disposed of the matter finally without hearing the learned Advocate of the respondent no. 7 although her affidavit-in-opposition was on record. It is submitted by the learned Advocate of the respondent no. 7 /appellant that she was deprived of the opportunity to represent her case properly and to bring certain facts to the knowledge of the learned Trial Judge as the matter was disposed of without hearing the respondent no. 7. (9) It is submitted by the learned Advocate of the appellant that when the Government decided to issue title deed, both Mrs. Roy and Mrs. Chakraborty applied for the same. Title deed was granted in favour of Mrs. Chakraborty i.e. respondent no. 7 / appellant, but this decision was stayed in view of the order of the Minister in Charge of the concerned department at the instance of the writ petitioner / respondent and an enquiry was conducted and a report was prepared to justify the execution of the title deed in favour of Mrs. Kanika Chakraborty. From the records we find that an enquiry was conducted by the A.D.M., Malda after hearing the respective parties. Such report was submitted by the A.D.M., Malda recommending that freehold title deed should be conferred on Mrs. Kanika Chakraborty, who was a bona fide refugee. From the report of the A.D.M., Malda, which is annexed to the writ petition as Annexure "P-5", it appears that the writ petitioner / respondent applied to the department concerned for permission to sell the land on 30.5.1980 and such permission was granted and after having such permission for sale, the writ petitioner / respondent also applied for exemption from deposition of 50% of the sale value. The learned Advocate for the appellant draws our attention to a document, which is a circular dated 30.10.1980, from which it appears that the writ petitioner / respondent was granted permission to sell the property provided an undertaking was given that they were agreeable to pay to the Government 50% of the market value of the land in question. It also appears from record that at a subsequent stage such condition of payment of 50% of the amount was also waived by the Government. (10) It is the submission of the learned Advocate of the appellant that the learned Trial Judge proceeded in a way as if there was no permission for sale in favour of the writ petitioner / respondent and she was not in possession of the land in question, which was not a correct finding. Permission for sale of the land in question was granted as far back on 30.10.1980 and thereafter exemption of 50% of the sale value was also granted by the Government. Since the respondent no. 7 / appellant was not given any opportunity of hearing, she did not get any opportunity to represent before the court correct state-of-affairs. (11) It also appears from the report that the enquiry was conducted by the A.D.M., Malda after taking into consideration all the facts and circumstances of the case and giving opportunity of hearing to both the parties. From the said report it also appears that number of show-cause notices were issued to the writ petitioner / respondent asking her to show-cause as to why the allotment in her favour should not be cancelled, but she failed to give any answer to the said notices. The A.D.M., Malda on conclusion of the enquiry came to the following finding : "It is thus clear that Mrs. Roy decided to sell the said piece of land entered into a Bainanama for the purpose accepted Rs.25,000/- as part payment and gave possession of the land in question to Mrs. Chakraborty. Later realising that the price of the plot had risen considerably during the last 10 15 years she changed her mind. She decided not to execute the FHTD in favour of Mrs. Chakraborty resell the land and make a tidy profit. This is borne out by the fact that for the last seven years since Mrs. K. Chakraborty applied to this and for the last four years since Mrs. She decided not to execute the FHTD in favour of Mrs. Chakraborty resell the land and make a tidy profit. This is borne out by the fact that for the last seven years since Mrs. K. Chakraborty applied to this and for the last four years since Mrs. Roy was asked to show cause why the allotment should not be cancelled. Mrs. Roy managed not to execute the FHTD in favour of Mrs. Chakraborty on some pretext or the other." (12) We find that Bainanama was executed by the writ petitioner / respondent and she also accepted Rs.25,000/- as part payment and gave possession of the land in question to the respondent no. 7/ appellant. At the time when such Bainanama was executed, the writ petitioner / respondent was very much authorised to sell the property in view of the permission granted by the Government in her favour to sell such property on certain conditions. So, the findings of the learned Judge that the writ petitioner / respondent had no authority to sell the property is not a correct finding. It should not be lost sight of that the Government has got every right to cancel any settlement made in favour of any person, when it comes to a decision that such person / settler is no more in need of any land or shelter and that such person had already changed his / her fortune. (13) Initially decision was taken for giving freehold title deed in favour of the respondent no. 7 / appellant. Thereafter at the intervention of the Minister in Charge, such decision was stayed and an enquiry was directed. Such enquiry was conducted by the A.D.M., Malda, as we have referred to above, and on completion of such enquiry a report was submitted. On perusal of the said report we find that the Enquiry Officer took into consideration all the facts and circumstances of the case, consulted the records and gave opportunity of hearing to both the parties. (14) We also find that earlier writ petition being W. P. No. 9485 (W) of 1999 was moved before this court challenging the same cause of action, which was dismissed for non-prosecution. After dismissal of the said writ application by the order dated 4.9.2000, a decision was taken by the concerned authority after holding an enquiry. Such decision cannot be said to be taken arbitrarily. After dismissal of the said writ application by the order dated 4.9.2000, a decision was taken by the concerned authority after holding an enquiry. Such decision cannot be said to be taken arbitrarily. In our considered view, the Writ Court should not interfere with such administrative decision unless it is proved that such decision was mala fide and arbitrary. (15) It is submitted by the learned Advocate of the writ petitioner / respondent that the cause of action in the earlier writ petition was not the same. But we are unable to accept the same as we find that in the earlier writ petition of 1999, the subject matter of challenge was a decision for canceling the allotment in favour of the writ petitioners and for conferring the title deed to Mrs. Kanika Chakraborty (respondent no. 7/appellant). From the cause title of the writ petition of 2002, we find that the subject matter of challenge was the same. Although a subsequent order dated 22/27.11.2001 was challenged, we find that by the said order the allotment of the writ petitioner was cancelled and decision was taken to issue freehold title deed in favour of the respondent no. 7/ appellant. Although a subsequent order was challenged in the second writ petition, the prayer is the same. (16) The next submission made by the learned Advocate of the writ petitioner / respondent is that such Bainanama was executed by the writ petitioner / respondent under pressure and coercion. But we are unable to accept such contention, as we do not find any such material to prove such allegation. The learned Advocate of the respondent / writ petitioner also submits that agreement for sale does not confer any right to claim title. We do not find any merit in such submission as we find that a decision has been taken by the Government after holding an enquiry to hand over freehold title deed in favour of the respondent no. 7 / appellant. (17) In view of the discussion made above, we find sufficient merit in the submission made by the learned Advocate appearing for the respondent no. 7 / appellant. We also find that after getting permission for sale, Bainanama was executed by the writ petitioner / respondent to sell the property to the respondent no. 7 / appellant. 7 / appellant. (17) In view of the discussion made above, we find sufficient merit in the submission made by the learned Advocate appearing for the respondent no. 7 / appellant. We also find that after getting permission for sale, Bainanama was executed by the writ petitioner / respondent to sell the property to the respondent no. 7 / appellant. Part payment of Rs.25,000/- was accepted, but later on she decided not to execute such title deed in favour of Mrs. Chakraborty. The respondent no. 7 / appellant is suffering from 1980, i.e. since the date of execution of such Bainanama. She has already suffered for more than 28 years. Now, the Government has taken a decision to hand over freehold title deed in favour of the respondent no. 7 / appellant on the basis of a report submitted by the A.D.M., Malda after holding a thorough enquiry. After going through the said report as also the memo dated 22/27.11.2001 we are of the view that the decision of the Government to issue freehold title deed in favour of the respondent no. 7 / appellant does not suffer from any illegality, arbitrariness or mala fide. We do not find any reason to interfere with such decision. (18) The appeal is accordingly allowed. The impugned judgment and order passed by the learned Trial Judge is set aside. (19) There will be no order as to costs. (20) Urgent Xerox certified copy of this judgment and order may be supplied to the learned Advocates of the respective parties, if the same is applied for.