Bipul Kumar Banerjee & Ors vs The State Of West Bengal & Ors
2023 Latest Caselaw 4984 Cal

   49
11.08.2023
Court No. 35
   D.Hira

                                      WPA 10598 of 2018

                                Bipul Kumar Banerjee & Ors.
                                             Vs.
                               The State of West Bengal & Ors.


                     Mr. Asit Kumar Bhattacharyya,
                     Mr. Subrata Ghosh,
                     Mr. Biswarup Biswas.
                                       ... for the petitioners



                      The writ petitioners are represented on call

               whereas no one is appearing for the respondents, in

spite of service of notice and due receipt of the same.

It is also evident from record that in spite of Court's

order directing the respondents to file affidavit-in-

opposition, no such affidavit is still filed. Hence, the

matter is taken up for hearing and disposal.

The petitioners claim themselves to be the

owners of the concerned land, comprised within R.S.

Dag No. 612, R.S. Khatian No. 551, J.L. No. 165,

Mouza - Khantura, 24 parganas - Amirpur, Block -

Habra-I, Sub - Division - Barasat, District North 24

Parganas. By dint of a decree of the Civil Court

dated 17th December, 1999, the suit filed by the

present petitioners before the Civil Court was

allowed and decreed in their favour with the further

direction that the defendants therein be restrained

by way of a permanent injunction, from taking

possession of the property forcibly and from setting

the same to any third party unlawfully.

According to the petitioners, the verdict of the

Civil Court as above is unchallenged. Hence, no

proceeding under Section 54B (2) of the West Bengal

Estate Acquisition Act, 1953 can be maintained

against them. The petitioners are also aggrieved by

the forcible alleged encroachment of the concerned

property by the respondent Gobardanga Municipality

by installing their hoarding of the Municipality over

there.

A report has been submitted earlier in Court

in the form of an affidavit by the respondent no. 7/

Block Land and Land Reforms Officer, Habra - 1,

District North 24 Parganas.

In the said report a letter dated July, 30, 2018

is enclosed to specify the land, to be as follows:-

"Land Schedule:

Mouza- Khantura, J.L. No-165

L.R. Kh No.-1

Classification- Danga

Area of land-0.36 Acre".

It has been contended that as the plot is

recorded in Khatian No. 1, the same implies that

State is the recorded owner with respect to the same.

The present petitioners are only encroachers as

regards the same by constructing a boundary wall

thereon.

According to the petitioners, the said report is

only misconceived in so far as, sufficiently prior to

the same, the Civil Court has declared the right, title

and interest of the petitioners as regards the

property in question. The decree of the Civil Court

has become final and binding upon the parties.

Two judgments are relied on behalf of the

petitioners as follows:-

i. Niranjan Chatterjee & Ors. vs.

State of West Bengal & Ors.

reported at 2007 (4) ICC.

ii. Heirs Ashok Kumar Mathur vs.

State of West Bengal reported at

2013 (3) CHN (CAL) 561.

By referring those two judgments, the

petitioners have relied on the proposition made

therein that in view of a decree of the Civil Court

declaring title of a person with respect to a piece of

property, any proceeding under Section 57 B (2) of

the West Bengal Estate Acquisition Act, 1953 would

not be maintainable as regards the same.

Mr. Bhattacharyya, learned counsel appearing

for the petitioners has also pointed out to the fact

that after the Civil Court's decree the petitioners

have duly applied for correction in the record of the

rights, in terms of the said decree.

The record as well as submissions made on

behalf of the petitioners have been taken into

consideration. Also the report submitted by the

respondents in the form of an affidavit is considered.

It appears that the Civil Court's decree dated

17th December, 1999 has declared petitioners rights

and title as regards the concerned property. The

said decree of Civil Court is now final and binding,

not being challenged by any of the concerned

parties.

Under such circumstances, the ratio of the

judgments as above, squarely apply in the case of

the petitioners, whose right and title as regards the

concerned property is declared by a competent Civil

Court.

Under such circumstances, the writ petition is

legible to be allowed.

The writ petitioners being the owners of the

concerned property, pursuant to the decree of the

Civil Court, the respondent/s herein are directed not

to encumber their right, title, interest and peaceful

possession over the same, in any manner

whatsoever.

With the directions as above, the writ petition

is disposed of.

All pending applications, if any, are

consequently disposed of.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual undertaking.

(Rai Chattopadhyay, J.)