Calcutta High Court (Appellete Side)
Nanney Khan & Anr vs The State Of West Bengal & Ors on 1 May, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Partha Sarathi Sen
WPA 3419 of 2025
Nanney Khan & Anr.
Vs.
The State of West Bengal & Ors.
With
WPA 4469 of 2025
Md. Faisal Hussain
Vs.
The State of West Bengal & Ors.
For the petitioner in WPA : Mr. Rwitendra Banerjee
3419 of 2025 & private Mr. Shibasis Chatterjee
respondent no. 16 in WPA Mr. Sandip Kundu
4469 of 2025
For the petitioner in WPA : Mr. Sarwar Jahan
4469 of 2025 Mr. Gourav Das
Mr. Amit Bikram Mahato
Mr. Aditya Bikram Mahata
For the State in WPA 3419 : Mr. Ayan Banerjee
of 2025 Mr. Amrita Lal Chatterjee
For the State in WPA 4469 : Mr. Soumitra Bandapadhyay
of 2025 Mr. Ram Chandra Gucchait
For the respondent nos. 10 : Mr. Dinabandhu Chowdhury
& 11 in WPA 3419 of 2025 Mr. Aritra Bhattacharya
& respondent no. 11 in Mr. Shivam Debnath
2
WPA 4469 of 2025 Mr. Dibyo Mukherjee
For the respondent no. 50 : Mr. Supratim Dhar, Sr. Adv.
in WPA 3419 of 2025 & Ms. Susmita Chatterjee
respondent no. 10 in WPA Mr. Anujit Mukherjee
4469 of 2025 Ms. Priyanka Jana
Mr. Rishabh Ahmed Khan
For the respondent nos. 35 : Mr. Chittapriya Ghosh
of 41 in WPA 3419 of 2025 Ms. Aiswarjya Gupta
& respondent nos. 39 to 45 Ms. Priyanka Saha
in WPA 4469 of 2025
For the respondent nos. 12 : Mr. Debjit Mukherjee
& 25 in WPA 3419 of 2025 Ms. Susmita Chatterjee
& respondent nos. 14 & 28 Mr. Kaustav Bhattacharya
in WPA 4469 of 2025
For the NHAI in WPA 3419 : Ms. Manika Roy
of 2025 Ms. Ankita Chowdhury
Mr. Atanu Sur
For the NHAI in WPA 4469 : Mr. Subrata Bhattacharya
of 2025
Heard on :: 02.04.2025, 08.04.2025, 28.04.2025
& 29.04.2025
Judgment on : 01.05.2025
PARTHA SARATHI SEN, J.:
1. This Court has heard the learned advocates for the contending
parties at length in support of and against the instant two writ
petitions.
2. The instant writ petitions are now taken up for passing appropriate
order.
3. At the very outset, it is pertinent to mention herein that since in the
instant two writ petitions the order no. 4 dated 27.11.2024 as
passed by the Additional District Magistrate (LA) & Competent
3
Authority of Land Acquisition Officer, CALA, Purulia the
respondent no. 4 herein is under challenge and in view of the fact
that as the identical questions of facts and laws are involved in the
instant writ petitions, this Court proposes to dispose of the instant
two writ petitions by this common judgment.
4. By filing the instant two writ petitions, the writ petitioners have
prayed for issuance of appropriate and/or writs against the
respondent authorities more specifically against the respondent
no. 4 for quashing and/or setting aside the order dated
27.11.2024 as passed by the respondent no. 4 whereby and
whereunder the said respondent no. 4 authority has made an
order of apportionment of compensation in respect of plot no. 786
in Mouza Belguma, J. L. No. -41 in connection with L.A. Case no.
21 of 2015/NH-32 under NH32 project work in accordance with
provisions of Section 3H (3) & (4) of the National Highways Act,
1956 (hereinafter referred to as the said “Act of 1956”)
5. In course of his submission, Mr. Rwitendra Banerjee, learned
advocate appearing on behalf of the writ petitioners in WPA 3419
of 2025 and the private respondent no. 16 in WPA 4469 of 2025 at
the very outset draws the attention of this Court to the provisions
of Section 3G, 3H and 3I of the said Act of 1956. At this juncture
Mr. Banerjee, took me to the copy of the order no. 4 dated
27.11.2024 as has been annexed at page 81 and 82 in WPA
4
3419 of 2025. It is submitted by Mr. Banerjee that on perusal of
the said order under challenge it would reveal that the respondent
no. 4 authority had practically acted as a Civil Court while
discharging his obligation under Section 3H (3) of the said Act of
1956.
6. It is also submitted by Mr. Banerjee that under Section 3I of the
said Act of 1956, the power of the competent authority to act like a
Civil Court is very much limited inasmuch as, the said Section 3I
clearly specifies the peripheries within which the said competent
authority can act as a Civil Court.
7. It is further submitted by Mr. Banerjee that by no stretch of
imagination it can be said that Section 3H(3) & (4) of the said Act
of 1956 empowers the competent authority who is the respondent
no. 4 herein, to determine the dispute which is essentially within
the domain of principal civil court of original jurisdiction.
8. In course of his submission, Mr. Banerjee also draws attention of
this Court to page nos. 50 to 54 of the instant writ petition (WPA
3419 of 2025) being a copy of certified copy of the judgment as
passed in a suit for partition being Partition Suit no. 129 of 1962,
which was decreed in preliminary form by the jurisdictional
subordinate Judge.
9. Attention of this Court is also drawn to page nos. 59-69 of the
instant writ petition being a copy of plaint of title Suit No. 91 of
5
2020 as well as the copy of the order of withdrawal of the said suit
as passed by the Court of Civil Judge (Senior Division), Purulia in
connection with an application under Order 23 Rule 1 of the CPC.
10. It is also submitted by Mr. Banerjee that in the event, the
contents of the said preliminary decree, the contents of the order
of withdrawal of Title Suit No. 91 of 2020 and the order which is
under challenge before this Court are looked together it would
reveal that the respondent no. 4 authority while making the order
of apportionment had practically made an attempt to go into the
title of the parties claiming award in connection with a land
acquisition proceeding and, therefore, the said authority has
exceeded its limit as imposed by law and, therefore, said action of
the said authority becomes amenable to writ jurisdiction and
subject to scrutiny in judicial review.
11. In course of his submission, Mr. Banerjee places his reliance upon
the reported decision of Vinod Kumar & Ors. Vs. District
Magistrate, Mau & Ors. reported in 2023 SCC Online Sc 787 :
AIR 2023 SCC 337.
12. It is submitted by Mr. Banerjee that while deciding the case of
Vinod Kumar (supra), the Hon’ble Apex Court has occasioned to
scrutinize the scope of Section 3H of the said Act of 1956 and in
doing so it has been specifically held that in case of a dispute as to
the apportionment of the awarded amount, the principal Civil Court
6
of original jurisdiction has been empowered to determine the same.
It is submitted by Mr. Banerjee that in view of such, the WPA 3419
of 2015 may be allowed by granting relief to the writ petitioner in
terms of the prayers made in the instant writ petition.
13. In course of his submission, Mr. Sarwar Jahan, learned advocate
appearing on behalf of the writ petitioner in WPA 4469 of 2025
practically adopted the argument of Mr. Banerjee, learned advocate
appearing on behalf of the writ petitioners in WPA 3419 of 2025.
14. Mr. Chittapriya Ghosh, learned advocate appearing on behalf of
the respondent nos. 35-41 in WPA 3419 of 2025 and the
respondent nos. 39-45 in WPA 4469 of 2025 supports the
contention of Mr. Banerjee and Mr. Sarwar Jahan. It is submitted
by Mr. Ghosh that since order under challenge dated 27.11.2024
has been passed by the respondent No. 4 authority in view of the
provision of Section 3H (3) and (4) of the said Act of 1956 and
since the said order under challenge is violative of the statutory
provisions, by no stretch of imagination it can be said that the
order under challenge is arbitrable under Section 3G(5) of the said
of 1956 since by the order under challenge no effort has been
made by the respondent no.4 authority to determine the amount of
compensation as payable to the parties and on the contrary an
effort has been made for apportionment of the awarded amount in
a manner contrary to the settled provisions of law and, therefore,
7
there cannot be any doubt to hold that such action of the
respondent no. 4 authority is not amenable to writ jurisdiction.
15. In his next limb of submission, Mr. Ghosh also draws the attention
of this Court to the order under challenge dated 27.11.2024. It is
submitted by Mr. Ghosh that for the sake of argument even if it is
accepted that in the first part of the said order under challenge,
the respondent no. 4 authority has reproduced the versions of
the judgment and decree as passed in Title Suit No. 129 of 1962
but in the later part of the said order the respondent no. 4
authority had practically nullified title of his clients by ignoring
the existence of several deed of conveyances especially when before
the respondent no. 4 authority no document could be placed to
the effect that either those title deeds have been cancelled or have
been declared null and void by virtue of a decree of a competent
Court of law.
16. It is thus submitted by Mr. Ghosh that instant two writ petitions
may be allowed.
17. Per contra, Mr. Debjit Mukherjee, learned Counsel appearing on
behalf of the respondent nos. 12-25 in WPA 3419 of 2025 and
respondent no. 14-18 in WPA 4469 of 2025 in course of his
submission draws attention of this Court to various paragraphs of
the instant writ petition. It is submitted by Mr. Mukherjee that
from the pleadings of the instant two writ petitions it would reveal
8
that the subject matter of the acquisition wherein the order of
apportionment was passed by the respondent No. 4 authority
pertains to the suit for partition being Title Suit No. 129 of 1962.
18. At this juncture Mr. Mukherjee draws the attention of this Court to
the copy of the certified copy of the decree as passed in Title Suit
No. 129 of 1962. It is submitted by him that from the schedule of
the said preliminary decree of partition as passed in Title Suit
No. 129 of 1962 it would reveal that plot no. 563 , 564 and 566
along with other plots were the subject matter of the said deed of
partition.
19. At this juncture, Mr. Mukherjee requests this Court to peruse the
order no. 36 as passed in Title Suit No. 129 of 1962 whereby and
whereunder in the said suit for partition, the subordinate Judge
passed a preliminary decree. It is submitted by Mr. Mukherjee that
on careful perusal of the order under challenge dated 27.11.2024
it would reveal that the respondent no. 4 authority had practically
narrated the chain of events as has been discussed in order no.
36 of the said suit for partition and keeping in mind the outcome
of the said preliminary decree, the respondent no. 4 authority had
made an order of apportionment which is in tune of determination
of shares as made in the said preliminary decree for partition. It is
thus submitted by Mr. Mukherjee that the argument of the learned
advocates for the writ petitioners and learned advocate for the
9
respondents who are supporting the writ petitions have got no leg
to stand upon in view of the fact that the order under challenge is
no way excessive in terms of the legislative provision under Section
3H of the said Act of 1956 read with Section 3I of the said Act of
1956.
20. In course of his submission Mr. Mukerjee places his reliance upon
the two reported decisions of the Hon’ble Supreme Court in the
case of Lt. Governor of Himachal Pradesh & Anr. Vs. Sri
Avinash Sharma reported in (1970) 2 SCC 149 and K. Vidya
Sagar vs. State of U.P. and Ors. reported in (2005) 5 SCC 581.
21. It is submitted by Mr. Mukherjee that in view of the proposition of
law as decided in the reported decision of K. Vidya Sagar (supra)
and Sri Avinash Sharma (supra) in the event the instant writ
petition is allowed directing the respondent no. 4/authority to refer
the dispute for the decision of the principal Civil Court of original
jurisdiction that will be violative of the principle of res judicata
since the matter in issue as would be involved in such reference
has already been decided in the aforementioned partition suit.
22. In course of his submission Mr. Dinabandhu Chowdhury, learned
Advocate appearing on behalf of the respondent nos. 10 and 11 in
WPA 3419 of 2025 and respondent no. 11 in WPA 4469 of 2025 at
the very outset draws attention of this Court to Section 36 of the
Transfer of Property Act, 1882. It is submitted by Mr. Chowdhury
10
that on perusal of Section 36 of the Transfer of Property Act, 1882
it would reveal that the question of apportionment would arise only
after determination of entitlement. In course of his submission Mr.
Chowdhury has filed a copy of certified copy of the plaint of Title
Suit no. 43 of 2024 as filed by the writ petitioners in the
jurisdictional Court of Civil Judge, Senior Division at Purulia which
is taken on record.
23. It is submitted by Mr. Chowdhury that from the prayer of the said
suit which is essentially a suit for partition it would reveal that the
plot in question of the instant writ petition is also the subject
matter of the said suit wherein the respondent no. 4 in WPA 3419
of 2025 has been made party as one of the proforma defendants.
It is submitted that in the instant writ petition the filing of the said
Title Suit 43 of 2024 has been concealed and, therefore, the writ
petitioner is not entitled to any remedy since issuance of writ is
essentially discretionary in nature and is also based on equity.
24. It is further submitted by Mr. Chowdhury that after passing of the
preliminary decree in Title Suit No. 129 of 1962 there cannot be
any dispute with regard to the alleged title Md. Khan who is the
predecessor in interest of the present writ petitioners and thus
there cannot be any justification to interfere with the order under
challenge since the respondent no. 4/authority while making an
11
order of apportionment has relied upon the findings of the decreetal
Court only.
25. Drawing attention to page nos. 34 to 41 of the instant writ petition
it is submitted by Mr. Chowdhury that from the prayer portion of
the written submission as made before the respondent no.
4/authority it would reveal that the present writ petitioners have
prayed for apportionment of award in terms of the certificate of a
Mufti which is contrary to the law of the land especially after
passing of the judgment in the reported decision of ‘Vishwa
Lochan Madan vs. Union of India and Others‘ as passed in AIR
2014 SC 2957.
26. This Court has meticulously gone through the entire materials as
placed before this Court. This Court has given its anxious
consideration over the submissions of the learned Advocates for the
contending parties.
27. For effective adjudication of the instant lis this Court at the very
outset proposes to look to the provision of Sections 3H and 3I of the
said Act of 1956 which are quoted hereinbelow in verbatim:
“3H. Deposit and payment of amount.-
(1) ……………………………………..
(2) ……………………………………..
(3) Where several persons claim to be interested in the
amount deposited under sub-section (1), the competent
12authority shall determine the persons who in its opinion
are entitled to receive the amount payable to each of them.
(4) If any dispute arises as to the apportionment of the
amount or any part thereof or to any person to whom the
same or any part thereof is payable, the competent
authority shall refer the dispute to the decision of the
principal civil court of original jurisdiction within the limits
of whose jurisdiction the land is situated.
(5) ………………………………
(6) ………………………………
3-I. Competent authority to have certain powers of
civil court.- The competent authority shall have, for the
purposes of this Act, all the powers of a civil court while
trying a suit under the Code of Civil Procedure, 1908 (5 of
1908), in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b)requiring the discovery and production of any
document;
(c) reception of evidence on affidavits;
(d) requisitioning any public record from any court or
office;
(e) issuing commission for examination of
witnesses."
28. Keeping in mind the aforementioned legislative provisions and also
keeping mind the propositions of law as decided in the various
reported decisions as have been cited from the Bar, if I look to the
factual aspects of this case it appears to this Court that while
making an order of apportionment in respect of the award in
13connection with acquired plot no. 786 the respondent no.
4/authority undoubtedly relied upon the judgment and order of
preliminary decree as passed in Title Suit No. 129 of 1962. The
said respondent no. 4/authority had dealt with the family trees of
one Nasrat Ali Khan and thus gave a vivid description as to how
title to the said acquired plot passes in favour of one Badrunessa
Bibi and the said authority has practically relied upon the
judgment and order as passed in Title Suit No. 129 of 1962
whereby a preliminary decree of partition was passed determining
the shares of the parties. It thus appears to this Court that
basically the respondent no. 4/authority had relied upon such
determination of shares in making an order for apportionment
which is under challenge in the instant writ petition.
29. It further appears to this Court that while arriving at its finding
under cover of the said order under challenge dated 27.11.2024 the
respondent no. 4/authority had also relied upon the order of
withdrawal of Title Suit No. 91 of 2020 as has been instituted by
Smt. Lakhi @ Lakshmi Mahato and Srimatya Beri Mahato as
plaintiffs. However, from the relevant portion of the order under
challenge (as available at paragraph no. 4 at page no. 82 of the
instant writ petition) it appears to this Court that the respondent
no. 4/authority made no attempt to come to a finding with regard
to the effect of withdrawal of the said suit and on the contrary he
14
made an investigation and ultimately came to a finding that the
said two plaintiffs of Title Suit No. 91 of 2020 had practically no
shares in the said acquired plot by virtue of a sale through their
power of attorney holder and in doing so in considered view of this
Court the respondent no. 4/authority has transgressed its limit
within the meaning of Section 3H of the said Act of 1956.
30. This Court also finds sufficient justification in the submission of
Mr. Ghosh inasmuch as from the last portion of the order under
challenge dated 27.11.2024, the respondent no.4 though took
cognizance of execution of deeds of conveyance in favour of the
family members of the Mahatos but he came to a finding that those
deeds of conveyance as has been executed in favour of the Mahatos
by their vendor, Badru Nesha has got effect in the eye of law in view
of the fact that the said Badru Nesha (the vendor of the Mahatos)
prior to execution of the deeds of conveyance in favour of the
Mahatos had sold her entire property to others prior to 2005.
31. In doing so, this Court again considers that the respondent no.4
authority again crossed his limit within the meaning of Section 3H
of the said Act of 1956 inasmuch as the respondent no.4 authority
is not within his right under Section 3I to come to a finding as to
whether any deed of conveyance is valid or non est in the eye of law.
32. As has been decided in the reported decision of Vinod Kumar
(supra) that there lies a fine distinction between determining the
15
amount paid towards compensation and the apportionment of the
amount which is why the legislature has thought it fit to confer
powers upon the principal civil court of original jurisdiction to
determine the dispute arising the apportionment of the amount.
33. In further considered view of this Court in the event, the
proposition of law as decided in the case of Vinod Kumar (supra) is
applied to the facts and circumstances of the instant case it
appears to this Court that the respondent no.4 authority has failed
to visualize the said thin line of distinction and thus exercised his
jurisdiction which is not vested to him in terms of the provision of
Section 3H of the said Act of 1956.
34. This Court is also in agreement with the submission of Mr. Ghosh
that the order under challenge dated 24.11.2024 cannot be held to
be arbitrable under Section 3G(5) of the said Act of 1956, in view of
the fact that while passing the order under challenge, the
respondent no. 4 being the competent authority has not passed any
order determining the amount payable as compensation.
35. In view of such, the instant two writ petitions succeed and are
hereby allowed.
36. Consequently, the order under challenge dated 27.11.2024 as
passed by the respondent no.4 authority is hereby set aside.
37. Consequently, the respondent no.4 is hereby directed to refer the
dispute to the jurisdictional principal civil court of original
16
jurisdiction forthwith within seven working days from the date of
receipt of the server copy of this judgment.
38. Upon such reference, principal civil court of original jurisdiction
shall, after ensuring service of notice upon all interested parties
and upon giving adequate opportunity of hearing to them come to a
logical conclusion of the same, positively within a period of 90
working days from the date of completion of service of notice upon
all the interested persons.
39. The time limit as fixed by this Court is mandatory and peremptory.
40. Liberty is given to the learned advocates on record of the instant
two writ petitions to communicate the server copy of this judgment
to the respondent no.4 authority forthwith.
41. The respondent no.4 authority is directed to act on the server copy
of this judgment.
42. Before parting with, it is however made clear that so far as the
entitlement and/or apportionment of the award amongst the
interested persons in respect of the acquired Plot No.786 in Mouza
Belguma, this Court has not gone into the merit of the same and
thus all points are kept open for deciding by the principal civil
court of original jurisdiction upon reference.
43. There shall be no order as to costs.
17
44. Urgent Photostat certified copy of this order, if applied for, be
supplied to the parties, subject to compliance of all requisite
formalities.
(PARTHA SARATHI SEN, J.)
Susanta Mahanti
Suvayan Ghosh
Sumanta Dutta
A.R. (Court)s
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