The State Of West Bengal & Ors vs Kusum Agarwal & Another
2022 Latest Caselaw 3476 Cal

23.06.2022
Item No.1
Crt. No.11.                         MAT 1263 of 2017
   KB                                     with
                                  IA No. CAN 2 of 2017
                              (Old No. CAN 8785 of 2017)
                                          with
                                          CAN 3 of 2019
                                 (Old No. CAN 1494 of 2019)
                                        (Assigned)

                                The State of West Bengal & Ors.
                                           -Vs-
                                 Kusum Agarwal & Another

                   Mr. Naba Kumar Das
                   Ms. Diana Ghosh Dastidar
                                 ... For the Appellants/Applicants.

                    Mr.   Saptansu Basu
                    Mr.   Kumar Gupta
                    Mr.   Ayan Banerjee
                    Mr.   Binay Kumar Jain
                    Mr.   Piyush Jain
                                      ... For the Respondents.

In Re : IA No.CAN 3 of 2019 (Old No.CAN 1494 of 2019.

CAN 1494 of 2019 is an application for recalling of

the judgment and Order dated September 27, 2018. One

of us (Shampa Sarkar, J.) was a party to the judgment.

The Presiding Judge, having retired, this Bench was

constituted. The application appears on an assignment.

Recalling has been sought for on the ground that

the judgment suffers from factual errors. It is urged that

relevant issues had not been considered by the previous

Bench, which resulted in grave injustice.

It is urged that the original allottee Ajit Bagchi had

gifted the property to his son Amitava Bagchi. Thus, Ajit

Bagchi did not have any right to execute the Will in favour

of the writ petitioners. Consequently mutation could not

be granted in favour of the writ petitioners on the basis of

the probate. Moreover, the land was resumed by the

Urban Development Department on August 5, 2011,

whereas the last Will and Testament of Ajit Bagchi was

probated on September 18, 2013.

According to the applicants, as the resumption of

the land was prior to the grant of probate, the writ

petitioners were not entitled to own, possess and enjoy

the property on the strength of the probate.

According to Mr. Das, The High Court being a Court

of Records, ought to recall the judgment and correct the

errors apparent on the face of the same. The judgment

was passed without considering the above aspects and

ought to be recalled. He further submits that

nomenclature of the application should not be a concern

for the Court. The intent and purport of the pleadings, in

the recalling application would be relevant.

According to Mr. Das, when the original allottee had

specifically gifted the property to his son, he did not have

any right, title and interest over the property. Further,

after the resumption of the land by the Urban

Development Department, the property could not have

been bequeathed to the writ petitioners by Ajit Bagchi,

upon execution of the Will.

He relied on the decisions reported in AIR 1998 SC

128(Pepsi Foods Ltd. and ors. Vs. Special Judicial

Magistrate and Ors.) and in (2000) 1 Supreme Court Cases

666 (M. M. Thomas Versus State of Kerala & Another).

Mr. Saptansu Basu, Learned Senior Advocate

appearing on behalf of the writ petitioner submits that the

issue which was decided by this Court was whether the

writ petitioners were entitled to a mutation in the records

of the Urban Development Department after the 'Will' was

probated.

According to Mr. Basu, the application for recalling

is not maintainable. He submits that the applicants did

not file an application for review as they were aware that

the grounds for review, did not exist. He refers to the

pleadings in paragraph 4 of the application and submits

that the facts which are being urged by Mr. Das with

regard to the resumption of the land and the alleged gift

by Amitava Bagchi, were within the knowledge of the

applicants and their Learned Advocate. Neither in the

affidavit-in-opposition nor in the course of arguments

either before the Learned Single Judge or before the

Division Bench, were such facts brought on record.

This is not a case where these facts were discovered

subsequently, i.e., after the judgment was delivered and

despite the best efforts of the applicants, these facts could

not be brought to the knowledge of the Court.

According to Mr. Basu, Ajit Bagchi had executed a

Will in favour of the writ petitioners in which Amitava

Bagchi was a witness. In the probate proceedings,

Amitava Bagchi was cited. Thus Amitava was the only

person who had the locus to challenge the Will by setting

up a contrary title on the basis of the alleged gift. Amitava

did not contest the probate proceedings. The State of

West Bengal did not have any locus to challenge the Will

in order to protect the right, title and interest of Amitava

Bagchi.

Heard the parties. The inherent power of the court

to recall a judgment can be invoked under exceptional

circumstances. When the judgment suffers from inherent

lack of jurisdiction, or the judgment was a result of fraud

or the judgment was rendered in the absence of a party or

necessary parties had not been put on notice.

Right of the Urban Development Department over

the said land pursuant to the resumption and the rival

contentions of the parties with regard to title and

possession cannot be reopened in this proceeding.

Moreover, the writ petitioners had been granted

provisional mutation by the concerned department. Thus

the plea of resumption of the land prior to the probate is

hit by the principles of estoppel by conduct.

The applicants are seeking substantive review of

the judgment dated September 27, 2018 and the same

cannot be permitted.

The writ petition was filed for a direction upon the

Urban Development Department, to grant mutation in

favour of the writ petitioners in respect of the property

situated at Salt Lake. Such prayer was granted by the

learned Single Judge and the matter was carried in

appeal by the applicants. The arguments of the State

Respondents with regard to the right of legatees on the

basis of a Will in respect of a property in Salt Lake, was

decided by the judgment. The validity of bequest by Will

was the point for discussion. The entitlement of the

legatees to be granted mutation in respect of the property,

pursuant to the grant of probate, was upheld.

The Bench had elaborately discussed all the

propositions of law and judicial decisions, and held that

the lease deed of Ajit Bagchi, did not prohibit execution of

a Will in respect of property.

Under such circumstances, this Bench does not

find any reason to invoke its inherent power and recall

the judgment and Order passed on September 27, 2018.

This Bench, at this stage, cannot venture into a deeper

probe with regard to the claims of the Urban Development

Department. The question of title and the effect of the

alleged resumption of the land, is beyond the scope of this

proceeding. Such question is left open. The right of the

Urban Development Department to evict the writ

petitioner and other issues related thereto are to be

agitated before the appropriate forum.

The application being CAN 3 of 2019 (Old No.

CAN1494 of 2019) and all related applications stand

disposed of.

As the judgment of the Court has not been

complied with within the period fixed by the Court, the

authorities are directed to take immediate steps in terms

of the judgment and Order dated September 27, 2018,

within six weeks from date of communication of this

order.

All parties to act in terms of a copy of the order

downloaded from the official website of this Court.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties on compliance of

necessary formalities.

(Shampa Sarkar, J.) (Subrata Talukdar, J.)