Right To Property A Constitutional Right, Can't Be Interfered With On Vague Report Of Local Commissioner: Calcutta High Court

The Calcutta High Court has directed a fresh local investigation in a long-pending property dispute after finding deficiencies in the manner in which an earlier Advocate Commissioner's report was prepared and accepted by the Trial Court. 

The bench of Justice Biswaroop Chowdhury observed, 

"Right to property although not a Fundamental right but is a Constitutional Right. A person has right to use and enjoy property lawfully occupied by him without interference by others. Hence when a dispute arises with regard to encroachment of property and interference in the peaceful use and occupation of such property and adjudication of such dispute depends upon measurement of suit property and the report of the commissioner, such report should be clear and specific so that it becomes easy for the Court to arrive at a decision upon considering the said report". 

The petitioners assailed the trial court's order accepting the inspection report of an Advocate Commissioner, contending that their objections were ignored and that the report was accepted without proper application of mind. 

The respondents argued that the order merely accepted a commissioner's report, which was not conclusive evidence and remains subject to scrutiny at the final hearing.

The bench noted that while the High Court is not a court of appeal under Article 227, it may interfere where an order is found to be perverse or where justice demands intervention.

The court emphasized that a commissioner's report is only a piece of evidence, but in cases involving encroachment and interference with possession, such reports must be clear, specific and reliable. 

The bench noted that the suit involved claims for permanent and mandatory injunction, alleging interference with lawful possession and unauthorised construction. It emphasized that while the right of property was not a fundamental right, but it remains a constitutional right. 

Therefore, the bench ordered a fresh local investigation and appointed Advocate Raja Ghosh as Special Officer to supervise the process. It directed;

"In the facts and circumstances this Court is of the view that in the interest of justice there should be a commission once again under a special officer to be appointed".  

He was directed to hold a meeting of the parties with their advocates, to appoint a surveyor or survey-passed Advocate Commissioner, supervise the survey and measurement work and to ensure the discussion and agreement on fixed points. 

Case Title: Sri Jibananda Pal v Sanjukta Biswas [2026:CHC-AS:71]

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