Calcutta High Court (Appellete Side)
Pinaki Roy Chowdhury vs The State Of West Bengal & Ors on 3 June, 2013
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
03.06.2013. W. P. No. 15306 (W) of 2013
dc.
Pinaki Roy Chowdhury
versus
The State of West Bengal & Ors.
Mr. Saptangsu Basu,
Mrs. Ananya Das ... For the Petitioner.
Mr. Ashok Banerjee,
Mr. Abhratosh Majumder,
Mr. Jishnu Chowdhury,
Mr. Sandip Das Gupta,
Ms. Banhea Roy ... For the Respondent Nos.2 to 4.
Mr. Rudra Jyoti Bhattacharjee, Ms. Debjani Ghosal ...For the Respondent No.5.
A dispute has cropped up as to whom possession of the allotted land is to be given by the authority concerned, viz., the West Bengal Housing Infrastructure Development Corporation, HIDCO Bhawan, the respondent no.2, during pendency of the probate proceeding being O.S.No. 4 of 2008 pending before the learned Fast Track, 2nd Court at Sealdah.
Admittedly Pijush Kanti Roy Chowdhury was an allottee of a plot of land being Rajarhat New Town Plot No. AA, 11/2- 2287 in Action Area 11/2, Category-HIG-II. The allottee died testate on 1st January, 2008 leaving a Will dated 14th December, 2007 appointing therein the petitioner herein as Executor.
The petitioner herein being the Executor under the said Will and the respondent no.5 being the widow of the allottee 2 are two rival claimants who are interested in receiving possession of the said allotted plot of land from the authority concerned.
The petitioner asserts his right on the basis of his appointment as Executor under the said Will and the respondent no.5 is trying to assert her right in the said allotment as the legal representative of the original allottee by disputing the genuineness of the said Will.
The authority concerned has decided to deliver possession of the said allotted plot in favour of Smt. Joyasree Roy Chowdhury, the respondent no.5 herein who is the widow of the testator, viz., Pijush Kanti Roy Chowdhury.
The petitioner herein being the Executor requested the concerned authority for restraining itself from delivering possession of the said plot in question to the said respondent no.5 during pendency of the probate proceeding.
Mr. Banerjee, learned senior counsel appearing for the concerned authority viz., the respondent no.2 herein submits that since no order of injunction has been passed by any court of competent jurisdiction restraining his client from delivering possession of the plot in question to the respondent no.5 who is the legal heiress of the allottee, his client has decided to deliver possession of the said allotted plot in favour of the respondent no.5.
Since the probate proceeding is still pending before the Probate Court, the question relating to genuineness of the said 3 Will which is sought to be raised by Mr. Bhattacharjee, learned advocate appearing for the respondent no.5 is yet to be decided by the Probate Court.
So long as the probate proceeding is not decided finally by the Probate Court, no one can come to any conclusion as to the genuineness of the said Will. Even this Court is also unable to decide the said issue regarding genuineness of the said Will while dealing with this proceeding. However, existence of the said Will cannot be ignored.
As such, this Court is of the view that justice will be subserved if during pendency of the probate proceeding, possession of the plot in question is retained by the authority concerned viz., the respondent no.2, so that the possession of the allotted plot can be delivered to the party who will be adjudged as the person entitled to receive possession thereof as the legal representative of the original allottee.
Though this court is informed by Mr. Banerjee that consideration money for such allotment excepting the escalation charges and the documentation charges has already been received by his client, but he is unable to inform this Court as to the person from whom such money was received by the authority concerned. Neither the petitioner nor the private respondent no. 5 is in possession to apprise this Court as to the person who actually paid the consideration money to the concerned authority.
Be that as it may, since the authority concerned has already received the entire consideration money excepting the 4 escalation charges and the documentation charges for such allotment, the authority concerned will not suffer any loss and/or prejudice for delayed delivery of possession of the said plot in question to the ultimate successful party in the probate proceeding.
Under such circumstances, this Court disposes of this writ petition by directing the respondent no.2 viz., the West Bengal Housing Infrastructure Development Corporation, HIDCO Bhawan to retain the possession of the said plot in question which will be delivered to the person who will be adjudged as the person entitled to receive possession thereof by the Probate Court in the pending probate proceeding. The respondent no.2 is also restrained either from cancelling the said allotment or dealing with the same with any stranger in the meantime.
The writ petition is, thus, disposed of.
Let the affidavit-of-service filed in Court today, be kept with the record.
Urgent photostat certified copy of this order, if applied for, be furnished to the applicant as early as possible.
(JYOTIRMAY BHATTACHARYA, J.)