Rina Biswas vs State of West Bengal and Others

Hon''ble Mr. Justice Jayanta Kumar Biswas

The petitioner in this WP under art. 226 dated February 17, 2004 is seeking the following principal relief: -

a) a writ in the nature of Mandamus directing and/or commanding the concerned Respondent R.R. & R. Dept. to cancel and/or set aside and/or revoke the said illegal F.H.T.D. (Deed of Gift) dated dated 24.9.02, if any, issued in favour of the Private Respondents and thereby after considering the petitioner''s representation being annexures ''P2'', & ''P3'' of the Writ application issue Patta afresh in favour of the petitioner and thereby make the Rule Absolute;

One Badal Chandra Mondal filed a WP No.3873 (W) of 2002 before this Court under art. 226. He alleged that the R.R. & R. Department of the Government of West Bengal was not considering his representation for giving him freehold right and title deed of Plot No.41 in Niranjan Sen Pally Post-50 Displaced Persons'' Squatters'' Colony in Behala. He alleged that the department was making an attempt to give the right and title deed to one Sambhu Kumar Roy.

By an order dated April 3, 2002 the WP was disposed of giving Badal liberty to make representation to the appropriate authority and saying that if representation was made, that would be decided according to law. Badal made a representation. And the department gave a decision dated August 28, 2002 that Sambhu, and not Badal, was entitled to the right and title deed. Accordingly, a title deed dated September 24, 2002 was executed by the Government.

The petitioner submitted a representation on October 7, 2002 claiming that the department should give her the freehold right and title deed. She claimed that her husband dying on January 28, 2002 had occupied the plot around 52 (fifty-two) years ago as a person displaced from the then East Pakistan. Then alleging inaction on the part of the department she brought this WP.

Relying on the document at p.17 of the WP and the case stated in the WP that the petitioner and her deceased husband were in possession of the plot at the relevant point in time, Mr Basu appearing for the petitioner has prayed for an order cancelling the title deed the Government gave to Sambhu.

Mr Mahata appearing for the State has submitted that there was no scope for considering the petitioner''s claim, because she made the claim only after the Government gave title deed to Sambhu after making necessary inquiry.

Mr Chakraborty appearing for Sambhu has submitted that Sambhu had inducted the petitioner''s deceased husband in a part of the plot as a tenant; and that the petitioner''s husband had never occupied any part of the plot as a person displaced from the then East Pakistan.

The question is whether the petitioner''s husband had occupied any part of the plot as a person displaced from the then East Pakistan.

The question is not to be decided by the Writ Court in exercise of power under art. 226. No provision of law empowers the department or any other authority to decide the question. Needless to say that the question is to be decided taking down evidence. In my opinion, the petitioner ought to have approached the Civil Court for determination of the question.

I do not think the decision of the department dated August 28, 2002 can affect the petitioner''s right, if any. She was not a party to the decision. It will be of no use to send the matter to the department for a fresh decision; for the department is not empowered to decide the question whether the petitioner''s husband was occupying any part of the plot as a tenant or a squatter (a person displaced from the then East Pakistan). For these reasons, I dispose of the WP ordering as follows. The petitioner is relegated to the Civil Court. Nothing in this order or in the decision of the department shall prevent such Court from deciding all issues that may arise from the pleadings of the parties. The petitioner will be free to seek cancellation of the title deed given to Sambhu. No costs. Certified xerox.