Hasen Ali Sk vs State Of West Bengal & Ors
2023 Latest Caselaw 4633 Cal

09.   02.08.2023
      Court No.6
      Tanmoy Ghosh
                                            RVW 223 of 2022

                                            Hasen Ali Sk.
                                               -Versus-
                                     State of West Bengal & Ors.

                                                With
                                        IA No: CAN/1/2022
                                                With
                                        IA No: CAN/2/2022
                                                With
                                        IA No: CAN/3/2022

                                             Arising out of
                                            FMA 633 of 2022



                          Mr. Pinaki Dhole, Adv.
                                        ...for the review petitioner.

                          Mr. Soumitra Banyopadhyay, Adv.,
                          Mr. Aniruddha Sen, Adv.
                                        ...for the State.

                          Mr. Gour Baran Sau, Adv.
                                        ...for the respondent nos. 8-10 &

14-17.

In Re: IA No: CAN/1/2022

This is an application for condonation of delay in

filing an application for review of a judgment and order

dated March 2, 2020, signed on August 24, 2022. The

order was pronounced in open Court on March 2, 2020

but was inadvertently not signed by the Hon'ble

Judges. The order was signed by two other Judges, who

are the members of the present Bench, on August 24,

2022, since the two Hon'ble Judges who had

pronounced the judgment in open Court, were no

longer available in this Court.

In the peculiar facts and circumstances of the

case, we are satisfied with the explanation furnished by

the review applicant for the delay in filing the review

application. The delay is condoned. The application

being IA No: CAN/1/2022 is accordingly disposed of.

In Re: IA No: CAN/3/2022

This is an application for recording the death of

the respondent nos. 11 (Saukat Sk.) and 13 (Sojan Bibi)

in the review application.

The application is allowed.

The department is directed to make appropriate

amendment to the cause title of the Memorandum of

Review and the connected applications within a

fortnight from date.

The application being IA No: CAN/3/2022 is

accordingly disposed of.

In Re: RVW 223 of 2022 With IA No: CAN/2/2022

This is an application for review of the judgment

and order pronounced in open Court on March 2, 2020,

in MAT 23 of 2020 (subsequently re-numbered as FMA

633 of 2022) but signed subsequently by two other

Judges on August 24, 2022.

The appellant, who is the review applicant herein,

had made a representation dated June 1, 2017 to

various Authorities including the Pradhan of the

concerned Gram Panchayat contending that certain

miscreants were raising construction on a vested

property in such manner that ingress to and egress

from the appellant's property was being obstructed.

According to the appellant, such construction was

being raised without obtaining requisite plan from the

concerned Panchayat.

Alleging inaction on the part of the addressees of

such representation, the appellant approached a

learned Single Judge in the writ jurisdiction by filing

W.P. 18945(W) of 2017. Such writ application was

disposed of by an order dated August 9, 2017, whereby

the concerned Sub-Divisional Officer (SDO) was

directed to take a decision on the appellant's

representation, in accordance with law, after giving an

opportunity of hearing to the concerned parties.

Pursuant to such order, the concerned SDO

passed an order dated March 16, 2018. The SDO

refused to interfere in the matter primarily because the

instrument by which the land in question had been

transferred, was under challenge before a civil Court.

The SDO opined that until the civil Court decides the

matter, it would not be prudent for him to give any

direction.

The SDO's order was challenged by the appellant

in the second round of litigation by filing W.P. 7460(W)

of 2018. The learned Single Judge declined to interfere

with the SDO's order dated March 16, 2018, on the

grounds, firstly, because disputed questions of fact are

involved; and secondly, a suit is pending before the

competent civil Court wherein a registered instrument

of transfer of a piece of land by the private respondents

in the writ petition to a particular Masjid was under

challenge.

The order of the learned Single Judge was carried

in appeal by the writ petitioner by filing MAT 23 of

2020.

The said appeal was dismissed by a co-ordinate

bench with the following observations:-

"9. It is true, as has been contended by Mr. Dhole, that the SDO did not consider the allegation of unauthorised construction. We were minded to make an appropriate direction in that behalf but the Record of Rights, at page 71 of the stay application, persuaded us to think otherwise. In the complaint dated 1st June, 2017, it is the admitted case of the appellant that plot nos. 291, 291/611 and 291/612 are vested property and using the same he sought access to reach his property. It is also the admitted case of the appellant that his name has been recorded in the Record of Rights as "possession without permission". However, it appears from page 71 that one Jafur Sk. has been in illegal occupation of plot no. 291/612 ( বআইিন দখলদার ). We have noted from the cause title of the memorandum of appeal that 'Hasen Ali Sk.', i.e., the appellant is also known as Jafur Sk.

10. Once it is found that the appellant has been illegally occupying vested property, we do not consider it proper to exercise discretion in his favour. Writ remedy is not intended to facilitate grant of relief to a party who himself occupies a land illegally and then complains of illegality, allegedly committed by others.

11. It is also clear that the appellant is claiming easement right and if there is any obstruction to enjoyment of

such right by him at the instance of private parties, the right to relief lies in instituting a suit before the competent civil court having jurisdiction."

The aforesaid order dated March 2, 2020/August

24, 2022, is under review in the present application.

The short case of the review applicant is that there

is an error apparent on the face of the order. The

appellant is not in illegal possession of any plot of land.

Jafur Sk. was shown in the Record-of-Rights as being

in illegal possession of certain plots of land. Jafur Sk.

was the father of the review applicant. In the complaint

made by the review applicant, there is no admission

that he is in occupation of any plot of land illegally or

without permission of the Competent Authority. The co-

ordinate Bench dismissed the appeal solely on the

basis that the review applicant/appellant having

committed illegality, is not entitled to any equitable

relief from a writ Court. In other words, the entire

judgment is based on wrong factual premises.

We have gone through the records of the case. The

review applicant seems to be right. Jafur Sk. was the

father of the review applicant. Further, there is no

admission in the complaint dated June 1, 2017, filed

by the present applicant that he is in illegal occupation

of any plot of land.

We see from the judgment under review that the

co-ordinate Bench was minded to remand the matter to

the appropriate Authority since the question of alleged

unauthorized construction had not been considered by

the Authority in view of pendency of the civil suit.

However, solely on the basis that the applicant is in

illegal possession of certain lands, the relief was denied.

We are of the view that there is an error apparent

on the face of the order under review. Ends of justice

warrant that this review application be allowed and we

do so.

We modify the order under review to the extent

that the issue of illegal construction made by the

private respondents as complained by the review

applicant/appellant be remanded to the concerned

SDO who shall take a fresh decision in the matter, after

hearing the review applicant/appellant and the private

respondents or their authorized representatives. A

reasoned order shall be passed, in accordance with law.

The SDO will not enter into any disputed question of

title to the land in question. He will decide as to

whether or not there is merit in the grievance of the

present applicant/appellant that the private

respondents have made unauthorized construction

without obtaining requisite sanction from the

concerned Panchayat. Let the exercise be carried out by

the concerned SDO within eight weeks from the date of

receipt of a copy of this order along with a copy of the

complaint dated June 1, 2017 that had been filed by

the present applicant.

The application for review being RVW 223 of 2022

along with the connected application being IA No:

CAN/2/2022 are accordingly disposed of.

Let urgent photostat certified copy of this order, if

applied for, be made available to the parties upon

compliance with all requisite formalities.

(Arijit Banerjee, J.)

(Rai Chattopadhyay, J.)