Safiya Malik

The High Court at Calcutta, issued a detailed order in a matter concerning possession and title rights under the Refugee Rehabilitation Programme. The Single Bench of  Justice Aniruddha Roy adjudicated on a writ petition involving claims of extended possession and denial of freehold title deed beyond permissible limits.

The court directed the concerned authorities of the State to execute a Free Hold Title Deed in favour of the petitioner strictly limited to 5 cottahs of land under the 1987 policy governing allotments to squatters. The court further ordered the demarcation of the land and directed the petitioner to surrender the surplus area beyond the permissible 5 cottahs.

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The petitioner, a widow of a deceased refugee squatter, claimed possession over 15 decimals (approximately 9 cottahs and 1 chittak) of land located at 2/192, Neli Nagar Colony, PO Haltu, under Garfa Police Station in Kolkata. Her husband, since 1947, and thereafter she herself, allegedly resided at the said location under the Refugee Rehabilitation Programme of India.

Following the demise of her husband in 1973, the petitioner asserted continuous occupation and possession over the land. A communication dated July 19, 1976 from the Refugee Rehabilitation Department (RR Department) purportedly confirmed eligibility for regularization in favour of the petitioner with respect to Plot No. E-192. A civil suit (T.S. No. 261 of 1996) was filed by the petitioner to recover 2 decimals of the said land allegedly encroached by trespassers, wherein the RR Department was also a party. This suit was decreed in 2017, granting the petitioner possession of the encroached portion.

Disputes arose when the RR Department recorded the petitioner's possession as only 3 cottahs 11 chittaks, which she contested. A writ petition (W.P. No. 16412 (W) of 2005) led to a direction for rectification, and another order dated January 5, 2009 (W.P. No. 30528 (W) of 2008) quashed a departmental order and called for reconsideration.

Despite repeated representations and submission of documents, including the civil court decree and survey reports, the department declined to regularize the land beyond 3 cottahs 11 chittaks by its letter dated November 22, 2023. It cited policy restrictions limiting allotment to a maximum of 5 cottahs of homestead land per family unit in squatter colonies as per State Government orders dated April 20, 1987 and January 8, 1998.

Petitioner contended that these policy documents, not being notified in the official gazette, lacked binding legal force. Reliance was placed on Supreme Court decisions in ITC Bhadrachalam Paper Boards v. Mandal Revenue Officer and J.R. Raghupathy v. State of AP to argue against the enforceability of the policy restrictions.

The State argued that under the said policies, no family was entitled to freehold rights over more than 5 cottahs and that any land occupied in excess was to be treated as surplus. Either it should be surrendered, or the occupant must pay market value for the same.

The Court recorded that the petitioner's possession over Plot No. E-192 was never denied by the State. It referred to the communication dated July 9, 1976 and subsequent survey reports to conclude that the State had consistently acknowledged occupation, though the extent of possession remained contested.

The judgment stated: "The document, therefore, establishes unequivocally that the petitioner is in occupation of Plot No. E-192 and on the terms and conditions mentioned in the said communication the State was prepared and willing to execute the conveyance of title in favour of the petitioner."

In the absence of consistent measurement findings from the State, the Court treated the decree of the Civil Court dated January 16, 2017 as determinative. It held: "When the opinion of the State is in variance, this Court is of the considered view that, the Civil Court decree dated January 16, 2017 shall be the guiding authority with regard to the quantum of land under possession and occupation of the petitioner."

Nonetheless, it restricted enforceability of title based on that decree. The Court noted that the decree did not confer ownership title but a possessory right, observing: "Admittedly, the petitioner is an unauthorised occupant without any title on the land. Only by virtue of execution of a Free Hold Title Deed in her favour under the said 1987 scheme, the petitioner will receive the title on the Home Stead Land as squatter."

The 1987 policy, though not notified in the Gazette, was found to be enforceable. The Court remarked: "There is no requirement of law that unless such beneficial policy is made part of any statute or any statutory rule or acquires the flavor of law, the State cannot implement or act upon it."

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Refusing the petitioner's challenge to the 5 cottah limit, the Court held that a beneficiary of a welfare scheme must accept its terms in totality: "The petitioner, thus, shall have to accept the policy as a whole and not in a piecemeal."

The Court set aside the communication dated November 22, 2023 and August 7, 2024 from the RR Department.

It directed:

1. "The respondent no. 2 and/or 3 and/or 4 and/or any other appropriate and jurisdictional authority of the RR Department/State shall forthwith in presence of the petitioner demarcate the subject land of the petitioner being plot no. E-192... to the extent of 5 cottahs of land... and shall prepare a detail report on demarcation with a proper sketch map... within four weeks from the date of communication of this judgment and order."

2. "After the demarcation... the surplus part of the land... shall be segregated... and the petitioner shall immediately surrender and deliver the vacant possession thereof..."

3. "Only upon receiving the vacant possession of the said surplus portion... the appropriate authority... shall take all necessary steps and execute the Free Hold Title Deed in favour of the petitioner... within two weeks."

4. The petitioner is to bear all incidental costs and charges for execution of the deed.

5. Possession of surplus land shall not create any right or equity in favour of the petitioner, though negotiation may be permissible under the scheme.

Advocates Representing the Parties:

For the Petitioner: Debashis Saha, Advocate, Avirup Roy Sanyal, Advocate, Sucheta Pal, Advocate

For the State/Respondents: Sk. Md. Galib, Senior Government Advocate, Priyamvada Singh, Advocate

Case Title: Smt. Parulbala Mondal Vs. The State of West Bengal & Ors.
Case Number: W.P.A. 22948 of 2024
Bench: Justice Aniruddha Roy

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