Calcutta High Court (Appellete Side)
Subrata Kumar Das & Anr vs The State Of West Bengal & Ors on 23 December, 2009
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
1
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Bhaskar Bhattacharya, Acting Chief Justice
And
The Hon'ble Mr. Justice Prasenjit Mandal
M.A.T. No. 1019 of 2009
With
C.A.N. 9030 of 2009
Subrata Kumar Das & Anr.
Versus
The State of West Bengal & Ors.
For the Appellants: Mr. Amit Prakas Lahiri,
Mr. Swapan Banerjee.
For the State-Respondents: Mr. Jayanta Das.
For the writ-petitioner/respondent: Mr. Dilip Kumar Saha. Heard on: 10.12.09 & 16.12.09 Judgment on: 23rd December, 2009. Bhaskar Bhattacharya, ACJ.:
This appeal is at the instance of the private respondents in a writ- application and is directed against ex parte order dated May 5, 2009 passed by a learned Single Judge by which His Lordship disposed of the writ-application by 2 directing the police authority to ensure that the writ-petitioner's access to the house in question was not impeded by the appellants unless they obtained an order from an appropriate forum to such effect. His Lordship also directed the police authority to ensure that there was no threat or intimidation by the appellants to the writ-petitioner. It was further directed that the police authority will be free to break open the padlock of the house that the appellants might have put up with this restriction that the said order would be effective only against the appellants and should not be used against any third party.
Being dissatisfied, the private respondent Nos. 5 and 6 of the writ- applications have come up with the present appeal.
The writ-petitioner is the father of the private respondent No.5 and father-in-law of the private respondent No.6 and those two respondents are the appellants before us. In the writ-application, it was alleged that the writ- petitioner had bad relation with appellant No.1 being his elder son and the appellant No.2, the daughter-in-law, as they married according to their own volition against the wish of the writ-petitioner. It is alleged that the writ- petitioner, in the past, made complaints against the appellant No.1 who is an employee of Border Security Force but the police took no action.
The real cause of action for filing the writ-application arose on 29th July, 2008 when the writ-petitioner lodged a diary before the Chinsurah Police Station complaining that his wife, namely, Basanti Das committed suicide by setting on 3 fire on that day and praying for rendering him assistance so that he might perform her last rite by cremating her body. It is admitted in the writ-application that the respondent No.5, on the other hand, on 31st July, 2008 lodged a complaint before the police alleging that his mother committed suicide at the instigation of the writ-petitioner and on that basis, a Police Station Case No.175 of 2008 was initiated under Section 306/120B of the Indian Penal Code and the writ-petitioner was arrested. It is further admitted in the writ-application that on 17th September, 2008 during his police custody, the respondent Nos.5 and 6 took away all the belongings and the household goods of the writ-petitioner from the house and a padlock was on the door thereof and as such, he lodged a diary before the local Police Station on 20th September, 2008 but the police was not assisting him for getting back possession of the house.
It was further admitted in the writ-application that during lifetime of his wife, the writ-petitioner gifted the house in her favour and the wife, in her turn, had transferred the same to the respondent No.5 by way of registered deed of gift. The writ-petitioner, however, alleged that such deed of gift in favour of his wife was obtained by the pressure of the respondent No.5 and similarly, the gift executed by the wife in favour of the respondent No.5 was also not the outcome of free will of his wife.
As indicated earlier, the learned single Judge by the order impugned in this appeal passed the order for restoration of possession in favour of the writ- 4 petitioner with the help of police with the observation that the private respondents did not appear despite service.
Before us, in the application for stay, it is alleged that the copy of the writ-application was never tendered to either of the appellants and was never served. We, accordingly, called for the original affidavit of service and found that according to the postal endorsement, the envelopes sent to the appellants at the address of 12, Dharam Das Gangully Lane, P.O. Shibpur, came back with the postal endorsement "refused" on '10th October, 2008'.
The appellant No.1 has by affirming affidavit annexed a certificate given by the concerned officer of the Border Security Force at Teliamura, Tripura certifying that the appellant No.1 was in Tripura all along from 25th September, 2008 to 26th October, 2008 and did not take any leave during the said period.
We are, therefore, satisfied that the endorsement "Refused" appearing on the envelope sent to the appellants was not correct and as such, the order should be set aside simply on that ground alone as an order directing restoration of possession was given in favour of the writ-petitioner without due service of any notice upon the appellants.
Apart from the aforesaid fact, after going through the averments made in the writ-application itself, we find that the writ-petitioner himself admitted that he executed a deed of gift of the house in favour of his wife against his will but it 5 is not his case that he ever challenged such deed of gift before any Civil Court for avoiding the consequence thereof. Similarly, he has admitted that his wife gifted the property in favour of his son, the appellant No.1, before us and it is also not his case that either his wife or after her death, he has challenged the legality of such deed. It appears that against the writ-petitioner a criminal case under Section 306/120B of the Indian Penal Code concerning the unnatural death of his wife was pending and in connection with that incident, he was arrested and was in the custody till 13th September, 2008. According to him, while he was in such custody, the appellants put padlock on the door of the house and he requested the police to put him back to possession after being released on bail and thus, he alleged inaction on the part of the police in not putting him back to possession.
In our opinion, in view of the abovementioned admission in the writ- application itself, the learned Single Judge should not have passed any direction upon the police to put the writ-petitioner into possession of the house when he himself has admitted in the writ-application that the property was gifted to his wife long back and the wife also gifted the property to the appellant No.1 before us. The writ-petitioner thus admitted that he had no title over the property and consequently, there was no justification of holding that the writ-petitioner was at least an intestate heir of his wife and co-owner of the property as found by the learned Single Judge.6
We are quite alive to the position of law that even a person having no title to an immoveable property simply on the basis of his past possession can be put into possession provided such person so dispossessed files appropriate proceedings before the Civil Court under Section 6 of the Specific Relief Act within six months of such dispossession, and if, in such proceeding it is proved from the evidence on record that the applicant was in settled possession of the property within six months of the date of institution of such proceeding, the Court should restore possession and direct the lawful owner to file appropriate suit for recovery of possession based on title in accordance with law.
In the case before us, no such proceeding has been initiated by the writ- petitioner within six months from the alleged dispossession and thus, the learned Single Judge had no justification of passing direction upon the police to restore the writ-petitioner into possession of the property at a time when such remedy to get back possession simply on basis of past possession had become time-barred.
A writ-application can succeed only on proving that by an illegal action or inaction of a "State" within the meaning of Article 12 of the Constitution of India, any of the legal or fundamental rights of the writ-petitioner has in anyway been infringed. In the case before us, on the date of passing of the order, namely, 5th May, 2009 the writ-petitioner had no existing legal right to even get back possession of the property on the basis of his alleged past possession, he having failed to file any suit in terms of Section 6 of the Specific Relief Act within six months from the date of dispossession. Moreover, the police in this case rightly 7 decided not to help the writ-petitioner to get back possession, the dispute being of a civil nature in relation to an immovable property. Therefore, there was even no inaction on the part of police in not helping the writ-petitioner as the police had no right to put somebody into the possession on the basis of his allegation that he was at one point of time in possession unless the police is directed to do so by a specific order passed by a competent Court.
We, therefore, set aside the order impugned and direct the writ-petitioner to handover possession of the property in favour of the appellant No.1.
We make it clear that we have otherwise not gone into the question whether the deed of gift executed by the mother of the appellant No.1 in his favour was vitiated in anyway and the writ-petitioner is free to file appropriate civil suit for getting appropriate relief in accordance with law of the land.
The writ-petitioner is directed to deliver back possession of the property which he obtained with the help of police by the aid of the order passed by the learned Single Judge to the appellant No.1 within seven days from today.
Let the matter appear as "for order" on January 5, 2010 for ascertaining whether the writ-petitioner has complied with the present order.
The appeal is thus allowed, the order impugned is set aside. 8 In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, ACJ.) I agree.
(Prasenjit Mandal, J.)