Calcutta High Court (Appellete Side)
Smt. Sunanda Chowdhury & Ors vs The State Of West Bengal & Ors on 5 December, 2018
W.P. No. 10679 (W) of 2018 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Smt. Sunanda Chowdhury & Ors.
Vs. The State of West Bengal & Ors.
For the Petitioners : Mr. S.N. Mukherjee, Sr. Advocate Mr. Saptangsu Basu, Sr. Advocate Mr. S.K. Roy, Advocate Mr. Baidurya Ghosal, Advocate For the Municipality : Mr. Kalyan Bandyopadhyay, Sr. Advocate Mr. Soumitra Bandyopadhyay, Advocate Mr. Hiranmoy Bhattacharya, Advocate Mr. Subhasis Bandopadhyay, Advocate For the State : Mr. Subhendu Sengupata, Advocate Hearing concluded on : November 27, 2018 Judgment on : December 5, 2018 DEBANGSU BASAK, J.:-
The petitioners have assailed a resolution dated March 9, 2017 taken by Burdwan Municipality. The petitioners have sought meaningful and peaceful possession of the lands which the petitioners claim that they are owners of, by virtue of registered deeds of exchange.
Learned Senior Advocate appearing for the petitioners has submitted that, the petitioners were owners of diverse plots of land. The Municipality wanted to exchange plots of land belonging to the Municipality, which the Municipality was using as dumping grounds, with the plots of land belonging to the petitioners. Several deeds of exchanges were entered into between the petitioners and the Municipality for such purpose. Such deeds of exchanges were duly registered. By virtue of such deeds of exchanges, the petitioners became the sole and absolute owner of the immovable properties described therein. The petitioners were put in possession of such plots of land by the Municipality. The petitioners also put the Municipality into possession of the lands belonging to the petitioners. He has referred to the deed of exchanges in support of such contentions. He has submitted that, possession of the immovable property follows the title. In support of such contention, he has relied upon 10 Calcutta Law Journal 527 (Bidhumukhi Dasi v. Jitendra Nath Roy & Ors.).
Learned Senior Advocate appearing for the petitioners has submitted that, the respective parties to the registered deed of exchanges had acted on the basis of such deeds of exchanges. The deeds of exchanges contemplate that, the petitioners will be entitled to apply for and obtain mutation in respect of the exchanged properties. The petitioners had done so. The exchanged properties stand mutated in the name of the petitioners. The petitioners intending to develop the plots of land, had invited response from the public for develop of the same. The Municipality in turn demanded rent from the tenants occupying the plots of land which the Municipality became the owner of by virtue of the deed of exchanges. The Municipality concerned is dumping garbage on the land the Municipality received under the exchange. He has referred to several other acts and steps taken by the parties in terms of the deed of exchanges. Referring to a writing dated November 4, 2016 issued by the State Government, he has submitted that, the State Government accepted the deeds of exchanges. The State Government by such writing granted approval under Section 80(b) of the West Bengal Municipal Act, 1993 for selling the land belonging to the Municipality.
Referring to the impugned resolution dated March 9, 2017, learned Senior Advocate appearing for the petitioners has submitted that, the Municipality is seeking to affect right to property of the petitioners through such resolutions. He has referred to Article 300(A) of the Constitution of India and has submitted that, right to property of the petitioners cannot be affected other than by a process known to law. The impugned resolution affects the rights of the petitioners directly in respect of immovable properties. The Municipality has no power of adjudication. The Municipality cannot say that, the deeds of exchanges are null and void. The Municipality cannot act on the basis that, the registered deed of exchanges are null and void. He has referred to AIR 1967 Supreme Court 1836 (Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, New Delhi & Ors.) and 2007 Volume 3 Calcutta High Court Notes page 476 (Asian Leather Limited & Anr. v Kolkata Municipal Corporation & Ors.) in support of his contentions.
Referring to the interim order passed in the matter, learned Senior Advocate for the petitioners has submitted that, the possession in respect of the immovable properties which the petitioners have become owners of, by virtue of the registered deed of exchanges, should be protected. The Municipality should be directed not to give effect to the impugned resolution.
Learned Senior Advocate appearing for the Municipality has submitted that, the petitioners are guilty of suppression of material facts. The petitioners had filed a writ petition being W.P. No. 24363(W) of 2017 in which, a Special Officer was appointed by the Order dated December 15, 2017. He has referred to the Order dated December 15, 2017 passed in such writ petition. He has also relied upon the report of the Special Officer filed in such writ petition. Referring to such report, he has submitted that, the Special Officer did not find the petitioners in possession of the immovable properties over which, the petitioners claim title and possession by virtue of the registered deeds of exchanges. He has submitted that, such material fact ought to have been brought to the notice of the Court, while the Court was considering grant of interim order.
Referring to the impugned resolution dated March 9, 2017 of Burdwan Municipality, learned Senior Advocate appearing for the Municipality has submitted that, the Municipality was incorrect in entering into the registered deed of exchanges. Such mistake on the part of the Municipality was detected and sought to be corrected through the resolution adopted on March 9, 2017. The Municipality, acting in terms of such resolution, has filed a suit for declaration and permanent injunction before the Civil Court. The issues of title and possession are issues in such civil suit. A Writ Court need not decide on the title and possession of the respective parties to the immovable properties since they are issues in such civil suit.
Learned Senior Advocate appearing for the Municipality has drawn the attention of the Court to the proceedings had in respect of the immovable properties concerned under the provisions of the West Bengal Land Reforms Act, 1995. He has submitted that, after the Block Land and Land Reforms Officer allowed mutation in respect of the immovable properties over which, the petitioners claim title by virtue of the registered deed of exchanges, an appeal was filed from such order of mutation. Such appeal was disposed of by an Order dated June 15, 2017. The mutation was set aside. The petitioners been aggrieved by such Order has applied under Section 6 and 10 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 before the West Bengal Land Reforms and Tenancy Tribunal. Such proceeding has been registered as O.A. No. 2587 of 2017 (Sri Nisith Chowdhury & Ors. v. The State of West Bengal & Ors.). There is an application for early disposal of such proceedings pending before the Tribunal. The petitioners therefore having failed to obtain any relief from the Tribunal, have approached the writ jurisdiction to obtain reliefs which they could not obtain directly from the Tribunal. Referring to 1993 Supp (1) Supreme Court Cases page 306 (State of Rajasthan v. Bhawani Singh & Ors.), 1973 Volume 1 Supreme Court Cases page 273 (M/s. Hindustan Steel Ltd., Rourkela v. Smt. Kalyani Banerjee & Ors.), All India Report 1964 Supreme Court page 685 (State of Orissa v. Ram Chandra), 1987 Supp Supreme Court Cases page 609 (North Eastern Railway (HQ) Through its General Manager, Gorakhpur & Anr. v. Chhedi Lal & Ors.), 2010 Volume 8 Supreme Court Cases 329 (Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil), 2005 Volume 13 Supreme Court Cases page 712 (G. Srinibas v. Government of A.P. & Ors.), 2013 Volume 5 Supreme Court Cases page 470 (Rajasthan State Industrial Development and Investment Corporation & Anr. v. Diamond and Gem Development Corporation Ltd. & Anr.), 2012 Volume 10 Supreme Court Cases page 424 (Pradeep Kumar Sharma v. Uttar Pradesh Finance Corporation, Rajpur Road, Dehradun & Ors.), he has submitted that, a Writ Court should not enter into disputed questions of title and determine the same. He has submitted that, the order of mutation stand merged with that of the Order passed by the Appellate Authority. The mutation in favour of the petitioners stands cancelled. Proceedings with regard thereto are pending before the Tribunal. He has relied upon 2011 Volume 8 Supreme Court Cases page 679 (Bakshi Dev Raj (2) & Anr. v. Sudheer Kumar) in support of the contention that, the orders of mutation stand cancelled by the Appellate Authority and that, by virtue of the doctrine of merger, the order of the Appellate Authority with regard to mutation is final unless set aside by a higher forum. Relying upon 2015 Volume 16 Supreme Court Cases 689 (Municipal Corporation Aurangabad v. State of Maharashtra & Ors.) he has submitted that, when questions of mutation and title is involved, the Writ Court need not decide the same. Therefore, he has submitted that, the petitioners are not entitled to any relief in the present writ petition. .
Responding to such contentions, learned Senior Advocate for the petitioners has submitted that, the report of the Special Officer in the earlier writ petition cannot be treated as evidence, without the petitioners being afforded an opportunity of dealing with the same. He has relied upon 37 Calcutta Weekly Notes 143 (Amulya Kumar Samaddar & Anr. v. Ananda Charan Das & Ors.) in support of his contention. He has relied upon 2004 Volume 3 Supreme Court Cases Page 553 (ABL International Ltd. & Anr. v. Export Credit Guarantee Corporation of India & Ors.) and All India Report 2002 Supreme Court page 2562 (Nalakath Sainuddin v. Koorikadan Sulaiman) and has submitted that, a writ court is not powerless to adjudicate upon the disputes. In the present case, the petitioners seek to enforce the rights flowing out of the registered deeds. Referring to 10 Calcutta Law Journal 527 (Bidhumukhi Dasi v. Jitendra Nath Roy & Ors.) he has submitted that, possession follows the title. According to him, the rights of the petitioners to the immovable properties should be protected.
The petitioners have claimed that, they were the owners of various plots of land lying and situated at Mouza Sadhanpur and Palashi. Burdwan Municipality have claimed ownership in respect of land measuring 6.40 acres in Mouza Nari. Burdwan Municipality had adopted two resolutions dated September 15, 2015 and September 29, 2015 resolving to exchange the plot of land belonging to Burdwan Municipality lying and situated within Mouza Nari with that of the petitioners. The petitioners and Burdwan Municipality entered into a registered deed of exchange dated November 24, 2015 exchanging plots of land of Burdwan Municipality at Nari Mouza with that of plots of land belonging to the petitioners at Palashi Mouza. The petitioners had executed a deed of gift dated February 6, 2016 gifting plots of land at Sadhanpur Mouza to Burdwan Municipality. The parties thereafter had taken various steps purporting to act in terms of the deeds of exchange. Seven several mutation cases were initiated to give effect to the deed of gift and the deeds of exchange. According to the petitioners, Burdwan Municipality subsequent to the deed of exchange and the deed of gift, started to dump solid waste at Palashi Mouza and had taken measures to develop the land situated at Sadhanpur Mouza. Apparently, the State of West Bengal had, by a writing dated November 4, 2016, accorded approval to Burdwan Municipality to deal with the plot of land at Sadhanpur Mouza. The petitioners, claiming under the deeds applied for and obtained mutation in respect of the plots of land concerned. The Land and Land Reforms Authority filed an appeal under Section 54 of the West Bengal Land Reforms Act, 1955 against the orders of mutation. Such appeals were allowed by an order dated June 15, 2017. The petitioners filed an application under Section 10 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 before the West Bengal Land Reforms and Tenancy Tribunal challenging such order dated June 15, 2017 before the Appellate Authority. Such proceedings are pending.
Burdwan Municipality had adopted a resolution on March 9, 2017 by which, it had sought to reverse its earlier decision with regard to the exchange of the plots of land concerned. In such resolution, Burdwan Municipality had resolved that, prior approval of the Government was not obtained for the exchange of the plots of land. They had resolved to revoke the mutation and take further steps. The petitioners have challenged such resolution in the present writ petition.
During the pendency of the writ petition, the Board of Councillors of Burdwan Municipality had filed a civil suit being Title Suit No. 156 of 2018 (Board of Councillors v. Shri Asimananda Chowdhury & Ors.) before the Civil Judge, Junior Division, 2nd Court, Burdwan on June 19, 2018. Such civil suit is pending. The prayers made in the plaint of such civil suit are as follows:-
"a) That a decree for permanent injunction be passed in favour of the plaintiff restraining the defendants and their men and agents from interfering in any way into the plaintiff's peaceful possession and enjoyment over the 'B' Schedule property on the strength of the 'C' Schedule Deeds, described below on further declaration that the 'C' Schedule Deeds are illegal, inoperative, void and fraudulent and not acted upon and are not binding upon the plaintiff and the same stand cancelled;
b) That a decree for all costs of the present suit, be passed in favour of the plaintiff and against the defendants;
c) That a decree for such other or further relief be passed in favour of the plaintiff and against the defendants, to which the plaintiff will be found to be entitled under the law and equity."
There is, therefore, a challenge to the title and possession of the immovable properties involved in the present writ petition, before a Civil Court. The first prayer in the writ petition relates to possession of the plots of land involved in such civil suit. Bhawani Singh & Ors. (supra), Hindustan Steel Ltd. (supra), Ram Chandra (supra), Chhedi Lal & Ors. (supra), Shalini Shyam Shetty & Anr. (supra), G. Srinibas (supra), Pradeep Kumar Sharma (supra) have held that disputed questions of title need not be decided by a Writ Court.
A Writ Court can decide disputed questions of facts if such decision can be arrived at on the basis of affidavit evidence made available to the Court. Where oral evidence is required to adjudicate the issues raised in the writ petition, then a Writ Court should be slow to decide the same. In such circumstances, the Writ Court can leave the parties to avail of their remedies before the appropriate forum if it finds that, the issues raised involve intricate questions of facts and law which should best be decided after allowing the parties to lead oral evidence, before the appropriate forum. Such a view can be supported from the ratio laid in Diamond and Gem Development Corporation Ltd. & Anr. (supra) and ABL International Ltd. (supra).
In the facts of the present case, there are disputes with regard to title and possession of the immovable properties concerned. There is a civil suit pending which involves the issues of title and possession of the self-same plots of land which are involved in the present writ petition. Therefore, it would be appropriate to leave the parties of the writ petition to have the disputes, relating to title and possession of the immovable properties involved, resolved before the appropriate Civil Court. There are intricate questions of facts and law involved which requires adjudication after affording the parties an opportunity to lead oral evidence.
The mutations of the plots of land involved, in favour of the petitioners stand cancelled. The cancellation of the mutations are subject matter of proceedings which are pending before the West Bengal Land and Land Reforms Tribunal. Therefore, it would be inappropriate to pronounce anything thereon which may affect the parties in such pending proceedings. In Municipal Corporation, Aurangabad (supra), the Supreme Court after noticing that there were disputed questions of facts involved regarding title over the plots of land between the parties, has held that, the High Court had erred in exercising jurisdiction under Article 226 of the Constitution to decide the question of mutation.
Bidhumukhi Dasi (supra) has held that, possession of an immovable property follows the title to the property. In the facts of the present case, both title and possession to the property are in dispute in a pending civil suit.
Amulya Kumar Samaddar (supra) has held that, a report of the Commissioner appointed by the Court can receive the consideration of the Court as piece of evidence, if the party aggrieved by the report of the Commissioner is allowed to examine the Commissioner. In the present case, the report of the Special Officer appointed by the Court in the earlier writ petition, need not be taken into consideration, as the Court is not minded to decide either the title or the possession of the respective parties in respect of the plots of land involved.
Bakshi Dev Raj (2) & Anr. (supra) has dealt with the doctrine of merger in the context of maintainability of review petition before the High Court after dismissal of a Special Leave Petition by the Supreme Court. Nalakath Sainuddin (supra) has explained the doctrine of merger as follows:-
"Merger is largely a question of intention, dependent on circumstances, and courts will presume against it when it operates to disadvantage of a party. "Merger"
generally is defined as the absorption of a thing of less importance by a greater whereby the lesser ceases to exist but the greater is not increased, and rights are said to be merged when the same person who is bound to pay is also entitled to receive. Pacific States Savings & Loan Co. v. Strobeck, 33 P.2d 1063, 1066, 139 Cal.App.427. [See, Words and Phrases, Permanent Edition, Vol.27, at page 124] A merger, at law, is defined to be where a greater estate and a less coincide and meet in one and the same person, in one and the same right, without any intermediate estate. The less estate is immediately annihilated, or, in the law phrase, is said to be merged that is, sunk or drowned-in the greater. Thus, if there be a tenant for years, and the reversion in fee simple descends to or is purchased by him, the term of years is merged in the inheritance. The rule in equity is the same as at law, with this modification: that at law it is invariable and inflexible; in equity it is controlled by the expressed or implied intention of the party in whom the interest or estates unite. (See, Words and Phrases, ibid, p.138).Merger is founded on the principle that two estates-one larger and one smaller cannot and need not co-exist, if the smaller estate can in equity, and must in law, sink or merge into the larger estate."
The doctrine of merger has been pressed in the context of the appellate authority reversing the decision for mutation. Such decision is a subject matter of proceedings before the West Bengal Land Reforms and Tenancy Tribunal. As a Writ Court, I should not enter into that arena and leave the parties to avail of their remedies in such proceedings.
In such circumstances, since, the parties have already approached two diverse forai raising the issues involved in the present writ petition, therein, it would be appropriate to permit the parties to have the disputes resolved thereat. It is clarified that, none of the observations made by the Court, will prejudice any of the parties to the proceedings noted herein. The direction contained herein is not a pronouncement on the maintainability of the pending proceedings. All points raised in such proceedings are kept open.
There subsists an interim order. There is an application been C.A.N. 6721 of 2018 seeking modification of the interim order.
Since the parties have been relegated to the appropriate forai for adjudication of the disputes, it would be appropriate to vacate the subsisting interim orders. C.A.N. 6721 of 2018 is disposed of accordingly.
A contempt petition being C.P.A.N. 655 of 2018 has also been heard along with the main writ petition.
In view of the observations made herein, it cannot be said that, the alleged contemnors have acted in wilful violation or disregard of the interim orders. C.P.A.N. 655 of 2018 is dismissed.
W.P. No. 10679(W) of 2018 is disposed of. No order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.]