Must Respect Citizen's Constitutional Right To Property: Calcutta High Court Directs State To Pay ₹2 Lakh Damages For Unlawfully Taking Possession

The Calcutta High Court has recently held that the State must protect citizens and respect their Constitutional right to property, enshrined under Article 300A of the Constitution of India.

In directing the authorities to pay damages of Rs 2 lakhs for unlawfully evicting the plaintiffs from the suit property, without any basis in the year 2000, a single-bench of Justice Siddhartha Roy Chowdhury directed for the plaintiff's possession to be restored within 90 days of the order. It held:

Admittedly during pendency of the proceeding before the learned court below the defendant -State evicted the plaintiffs from the suit property which was out and out an illegal act. State is supposed to protect the citizens and respect their right of property which is being considered as constitutional right. Therefore, the State has incurred the obligation to pay damages for unlawful possession of the property effect from 1.5.2000 till the possession is restored.

The Court was hearing a second appeal, moved by the State, challenging an order of the district judge which directed for restoration of possession to the plaintiffs and payment of damages by the State. 

It was submitted by the plaintiff and his siblings, that their mother's name was recorded in the Record of Rights (ROR) during the LR operation, while the RS ROR was in the name of Azizur Rahaman Khan.

It was submitted that after their mother died in 1987, the plaintiffs were enjoying ownership of the property as legal heirs and that their status had been acknowledged by the State.

Plaintiffs argued that suddenly, in 1999, the State issued a notice depicting it to be the owner of the suit property, and asked the plaintiff to show cause why action should not be taken for unlawful occupation of a public land. 

While the defendants had filed a suit for declaration of title, during the pendency of the said suit, the State, with the help of police dispossessed the plaintiffs and contested the suit denying all allegations made by the plaintiff. 

It was submitted by the defendant that the suit was not maintainable, being barred by Section 8A of the West Bengal Public Land (Eviction of Unauthorized Occupants) Act, 1962 and that the civil court lacked jurisdiction with the same since it had been vested with the Collector. 

State submitted that Azizur Rahaman Khan was the original owner of the suit property and he was a Central Government employee. It was argued that the said land was subsequently requisitioned by the State Government and given to Mr. Radhika Mohan Roy Ghatak Chowdhury a clerk of S.D.O. Lalbagh as a tenant.

It was argued that after the death of the tenant, his wife and son would illegally occupy the property, and refused to return it due to which proceedings for eviction were initiated under the West Bengal Public Land (Eviction of Unauthorized Occupants) Act, 1962.

It was argued that an order of eviction was duly obtained against the plaintiffs and was never challenged by them.

On these submissions, the trial court had dismissed the declaration suit, but the same was reversed in a title appeal in 2019. 

Challenging the order of reversal in the appeal, the State argued that the trial court had failed to appreciate the fact that the subject matter of the present case was beyond the jurisdiction of any civil court due to the bar under Section 8A  of the 1962 Act.

It was argued that the plaintiffs had not preferred a statutory appeal, but instead filed a civil suit, breaching Section 8A and accepting the status of unauthorised occupants. 

Counsel for the plaintiffs argued that the defendants had issued notice and threatened to evict the plaintiffs, and thus they had rightly approached the civil court challenging the same. 

It was submitted that the entire proceeding for eviction which was initiated under the 1962 Act was mala fide and that the objections to the plaintiff's possession of the suit property had been made in vain. 

It was submitted the plaintiffs had stated that their mother had acquired the property by way of public auction and that by way of pre-ponderance of probability, there was every reason to presume that the plaintiffs' mother had acquired the property lawfully from the State and was possessing it after mutating her name by paying rates and taxes.

It was argued that no evidence, either oral or documentary was given by the State to rebut the presumption that tilted in favour of the plaintiffs. 

In addressing the arguments, the Court found that the State had sent a 'chilling message' to the occupants labelling their possession as unauthorised and calling for their eviction and hence the plaintiffs could have approached the civil court under Section 9 of the CPC. 

It was thus found that the argument that the civil court would not have jurisdiction in such cases was devoid of merit. 

It was also found that the production of the Notice under the Public Demand Recovery Act was sufficient to demonstrate that the suit property was put to auction sale.  

It was further held that though the ROR was not a document of title, the procedure of mutation under Rule 59 of the WB Land Reforms Manual 1991, would be sufficient to presume that the interest of the plaintiffs had been mutated and recorded in the ROR.

Section 114 of illustration (e) says that court shall presume the official and acts have been performed regularly unless, like all other presumption it is rebutted. As I have already pointed out the State fails to produce any evidence either oral or documentary to rebut the presumption of correctness, the Court held. 

It concluded that even assuming the State's contentions to be true, they made no attempt to release the suit property from the plaintiffs and hand it over to the original owners or challenge the earlier orders which supported the case of the plaintiffs.

Accordingly, the appeal was dismissed and the State was directed to hand back possession of the suit property to the plaintiffs along with payment of damages. 

Citation: 2023 LiveLaw (Cal) 4

Case: State of West Bengal & Ors. v Achinta Roy @ Achinta Kumar Roy Ghatak Choudhury

Case No: SA 60 of 2021

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