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2022 DIGILAW 533 (CAL)

Samir Kumar Chanda v. State Of West Bengal

2022-04-07

KRISHNA RAO

body2022
JUDGMENT Krishna Rao, J. - By way of Letter of authorization, the Refugee, Relief and Rehabilitation Department, Government of West Bengal allowed Shri Surya Kanta Chanda (since deceased) to occupy the Plot No. 98, E.P. Plot No. 124 in Squaters' Colony at Bidhanpally (Kamdahari Colony) under the then Police Station Tollygunj, 24 Parganas (South). The said Surya Kanta Chanda died leaving behind four surviving leagl heris namely:- (i) Indu Bhusan Chanda, (ii) Satyendra Bhusan Chanda, (iii) Krishna Bhusan Chanda and (iv) Bijoy Bhusan Chanda. Indu Bhusan Chanda died on 10.12.1986 leaving behind his wife Parul Rani Chanda and daughter anjali Sarkar and subsequently the wife of Indu Bhusan Chanda also expired. after the death of Indu Bhusan Chanda, Krishna Bhusan Chanda had filed a civil suit against Smt. anjali Sarkar being Title Suit No. 301513 of 1996 claiming the share of Indu Bhusan Chanda on the basis of a gift deed alleged to have been executed by Shri Indu Bhusan Chanda on 02.07.1984. The said suit was dismissed and the matter went up to the stage of second appeal but the Krishna Bhusan Chanda could not succeeded. anjali Sarkar died on 05.02.2020 leaving behind three sons and one daughter namely Ratan Sarkar, Rabin Sarkar, Biswajit Sarkar and Mita. During the life time Smt. anjali Sarkar had executed a Power of attorney on 30.06.2012 in favour of Shri Ratin Chanda, her cousin brother. Krishna Bhusan Chanda had also expired leaving behind his two sons namely Samir Kumar Chanda and Subir Kumar Chanda, the petitioners herein. Since the life time Krishna Bhusan Chanda intending to take the share of the land of his brorther Indu Bhusan Chanda. Smt. anjali Sarkar made representation before the authority for issuance of free hold title deed with respect of the share of her grandfather and when the authorities have not considered the request of Smt. anjai Sarkar, Smt. anjali Sarkar had filed a writ petition before this Court being W.P. No. 31(w) of 2016 claiming the share of her father i.e. 1/4th Share in the the aforesaid landed property. The coordinate bench of this Court had disposed of the writ petition on 11.09.2019 directing the concern authority to consider and dispose of the same within four weeks after giving an opportunity of hearing to the parties. In terms of the order passed by the coordinate bench of this Court therespondent no. The coordinate bench of this Court had disposed of the writ petition on 11.09.2019 directing the concern authority to consider and dispose of the same within four weeks after giving an opportunity of hearing to the parties. In terms of the order passed by the coordinate bench of this Court therespondent no. 2 had disposed of the same on 14.02.2020 by passing the following order :- 'On going through the available documents with this file and written submission submitted by all parties, I am in opinion that since the T.S no. 301513/1996 was dismissed on 20/05/2010 on contest by finding that the alleged deed of gift was unlawful, illegal and not binding upon the Defendants inter alia others findings and subsequently, challenging of the order dated 20/05/2010 was failed in T.a 165/2010 and SaT 362 of 2011, Smt. anjali Sarkar (Chanda) have the entitlement of 1/4th th share of the said plot being the sole legal heir of Indu Bhusan Chanda (Deceased) and Parul Rani Chanda (Deceased), wife of Indu Bhusan Chanda, until & unless any contradictory findings is exposed. Therefore, it is directed to Regularisation Section, R.R & R Dte to initiate processes for issuing FHTD in respect of SP Plot no. 98 (EP 124) of the Bidhan Pally (Kamdahari) by including Smt anjali Sarkar (Chanda) as 1/4th share along with other entitled occupiers in the light of the said letter of authorization dated 10/01/1958 following existing norms & G.Os. followed for undivided property(plot) in this regard.' Mr. Mrinal Kanti Ghosh, Ld. advocate representing petitioners submitted that the respondent no. 2 while passsing the order failed to consider the report dt. 15.03.2016 submitted by the respondent no. 2 before this Court in terms of the order passed in WP. No. 31(w) of 2016 (annexure P-11 Page 46 of the writ application). The Counsel for the petitioner further argued that before passing of the order dt. 14.02.2020 Smt. anjali Sarkar expired on 05.02.2020 and the legal heris were not substituted and on the date of passing of the order anjali Sarkar was not alive. It was further argued that as anjali Sarkar was no more on the date of passing of impugned order and thus Power of attorney executed by anjali Sarkar in favour of her cousin was not valid. The Ld. Counsel for the petitioner relied upon the guidelines dt. It was further argued that as anjali Sarkar was no more on the date of passing of impugned order and thus Power of attorney executed by anjali Sarkar in favour of her cousin was not valid. The Ld. Counsel for the petitioner relied upon the guidelines dt. 20th april, 1987 and submitted that as per Clause 4 (ii) of the said guidelines effective possession or a part thereof is necessary but anjali Sarkar was neither in effective possession of the said land nor had constructed any structure on any part of the said land. The Ld. Counsel for the respondents submitted that Surya Kanta Chanda was the original holder of the land and he had four legal heirs. after the death of Indu Bhusan Chanda, the father of the petitioners had filed a suit claiming declaration, recovery of possession and permanent injunction of the share of the land of Indu Bhusan Chanda on the basis of the gift deed and the matter went up to the stage of second appeal but the father of the petitioners could not succeed in the said case. It is further argued that the during the hearing before the respondent no. 2 the Judgment and Decree passed by the Civil Court was produced and after going through the same, the respondent no. 2 had passed and order declaring the 1/4th Share of anjali Sarkar in the said property. as regard the death of anjali Srakar, the same was not brought to the notice of the respondent no. 2 either by the petitioners herein or the Power of attorney holder of the anjali Sarkar. It is further submitted that the Power of attorney holder had also no knowledge about the death of anjali Sarkar. The counsel for the respondents futher submitted that as regard the report, this Court during the pendency of the writ petition had called for report and in compliance of the same, report was submitted but vide order dt. 11.09.2019 the coordinate bench of this Court had disposed of the writ petition by directing the concern authority to dispose of the claim of the mother of the respondents no. 3, 4 and 5 and accordingly, the respondent no. 2 had disposed of the same by passing a reasoned order and thus there is no requirement of consideration of the said report. 3, 4 and 5 and accordingly, the respondent no. 2 had disposed of the same by passing a reasoned order and thus there is no requirement of consideration of the said report. admittedly, Surya Kanta Chanda was the Refugee and was the original holder of the plot in question. Surya Kanta Chanda had four legal heirs. after the death of one of the legal heir namely Indu Bhusan Chanda, the father of the petitioners, namely Krishna Bhusan Chanda had filed a suit claiming the share of Indu Bhusan Chanda on the basis of the gift deed but he could not succeded. after the dismissal of the second appeal, anjali Sarkar being the daughter of Indu Bhusan Chanda had made an application before the respondent no. 2 claiming patta in respect of 1/4th share of her father in the landed property of her grandfather. as the authorities have not taken any decision to the application of anjali Sarkar, she filed a writ petition and in the writ petition a report was submitted by the respondent no. 2 and subsequently this Court had dirceted the authority to dispose of the representation of anjali Sarkar. In the report submitted in W.P. No. 31(w) of 2016 it is mentioned that :- 'The total area of the plot is 4 kathah 14 1/2 ch. The above legal heirs are maintaining effective Possession. after demise of Indu Bhusan Chanda and thereafter his wife, Smt. anjali Sarkar (Chanda) is only legal heir of Indu Bhusan. She is residing at her in law house and she is not effective possession over plot in question. There is a Departmental G.O. 1240 (17) Rehab/18R-9/87 which states that Free Hold Title Deed (FHTD) may be executed in favour of displaced person who is in effective possession of a plot or a part thereof with a structure on a portion of its own. as per the said G.O., prayer of Smt. anjali Sarkar (Chanda) is not come under the purview of consideration for issuance of FHTD over plot in question. So, the squatters who are in effective possession were requested to submit amicable partitioned plan and thereafter notices were issued to the other holders for singing in the partition plan.' Clause 4 (ii) and (iv) reads as follows :- '(ii) In terms of the existing Govt. So, the squatters who are in effective possession were requested to submit amicable partitioned plan and thereafter notices were issued to the other holders for singing in the partition plan.' Clause 4 (ii) and (iv) reads as follows :- '(ii) In terms of the existing Govt. policy free-hold right and title deed may be executed only in favour of displaced persons from erstwhile East Pakistan (now Bangaldesh) who is in effective possession of an urban plot or a part thereof with a structure on a portion of it as his own as allotte/arpan patra holder regularized squatters on lands belonging to the State Govt. in the R. & R. Deptt. acquired or received through transfer through the process of law provided that the said plot is free from legal proceedings/law suits, or of disputes serious in nature. (iv) In case where the allottee/arpan patra holder/regularized squatter is found dead, free-hold right and deed should be executed in favour of the person/persons exercising effective possession provided that such persons belong to the members of deceased allottee and swear an affidavit before hand declaring inter alia that they are the only persons in effective possession or along-with some other eligible persons to be named. If the declarations in the affidavit in such cases are subsequently found to be materially untrue, the title deed will be liable to the cancelled.' The respondent no. 2 while considering the request of anjali sarkar has not considered the guidelines of 1987. The respondent no. 2 has not recorded any finding that whether anjali Sarkar had the possession over the said land or not, whether the report submitted before this Court was considered or not. The respondent no. 2 had passed the impugned order after the death of anjali Sarkar without substituting the legal heirs of the anjali Sarkar and on the date of passing impugned order, anjali Sarkar was not alive. In view of the above, the impugned order passed by the respondent no. 2 dt. 14.02.2020 is set aside and quashed. The respondent no. 2 is directed to reconsider regarding issuance of free hold title deed in favour of the leagl heirs of the deceased anjali Sarkar by substituting the name of the legal heirs of the deceased anjali Sarkar by taking into the consideration of the guidelines dt. 20th april, 1987 and the report dt. The respondent no. 2 is directed to reconsider regarding issuance of free hold title deed in favour of the leagl heirs of the deceased anjali Sarkar by substituting the name of the legal heirs of the deceased anjali Sarkar by taking into the consideration of the guidelines dt. 20th april, 1987 and the report dt. 15.03.2016 submitted before the coordinate bench of this Court in W.P. No. 31 (w) of 2016. The respondent no. 2 shall complete the said proceeding within eight weeks from the date of receipt of this order by giving an opportunity of hearing to all interested parties. W.P.a No. 9014 of 2020 is allowed. Parties shall be entitled to act on the basis of a server copy of the Judgment and Order placed on the official website of the Court. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.