Calcutta High Court (Appellete Side)
Gangaben Patel vs Union Of India & Ors on 26 August, 2025
2023:CHC-AS:44043
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK
W.P.A. 6329 of 2019
CAN 1 of 2023
Gangaben Patel
versus
Union of India & Ors.
For the Petitioner : Mr. Asok Kumar Banerjee, Senior Advocate
Ms. Mitali Mukherjee, Advocate
Mr. Debasis Guin, Advocate
For the State : Mr. Soumitra Bandyopadhyay, Advocate
Mr. Subhasis Bandopadhyay, Advocate
For the Respondent : Mr. Dipankar Das, Advocate
No.2-N.H.A.I. Mrs. Sanjana Nandi, Advocate
Heard on : 12.11.2024, 25.11.2024,
20.12.2024, 17.01.2025
Judgment on : 26.08.2025
Bivas Pattanayak, J. :-
1. This writ petition is filed by the petitioner seeking direction upon the
respondent authorities to cancel and/or rescind and/or withdraw the
notice dated 30th November, 2018 issued under Section 26 of the Control
of National Highways and Traffic Act, 2002 (hereinafter referred to as ‘the
Act of 2002’) against the petitioner and release the land in question, which
has not been utilized by the National Highways Authority since its
acquisition for 50 years or more, in favour of the petitioner.
2. The petitioner’s case in brief is as follows:
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(i) Agricultural land and danga land belonging to Felu Charan
Ghosh and others comprised within R.S. Plot No. 6265 appertaining
to Khatian No. 2942, J.L. No. 20, Mouza-Kolora, Police Station-
Domjur, measuring 119 decimals was requisitioned for stocking yard
for supply of bricks and bats for substation Alampur-Uluberia, NH6
under land acquisition case being LA Case No. 57 (Act II) 62-63 and
on 21st December, 1962, possession of the said land was taken over
by Land Acquisition Department. In all, about 1159 decimals of land
was acquired for the aforesaid purpose.
(ii) The construction of National Highways was completed prior to
1970 and major portions of the land since then remained unutilized
by the Highway Division.
(iii) The petitioner is carrying on agriculture by cultivating on certain
portion of land in the said plot and rest portion is lying barren since
the same is not fit for cultivation. A major portion of the land acquired
has been released in favour of the then owners by the Collector. At
present, the requisitioned portion of land is being utilized as godown
petrol pump.
(iv) By dint of Gazette Notification No. 20732 LA (PWD) dated 1st
December, 1964, notice was given under sub-section (1a) of Section 4
of West Bengal Land (Requisition and Acquisition) Act, 1948 (Act II of
1948). The said Act has already been repealed and the purpose of
acquisition for stocking yards for supply of bricks and bats for
substation has also become redundant.
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(v) Representations were made by the predecessor-in-interest of the
petitioner namely Felu Charan Ghosh and others for release of
unutilized excess land acquired for NH6 by the Government of West
Bengal under Act II of 1948 before the Superintending Engineer, NH
Circle No. 1 PW (Roads) Directorate and Executive Engineer NH
Division, which was received by the respective office on 12th May,
1994. The said application was duly recommended by the local Gram
Panchayat.
(vi) By letter under Memo No. 1177/1 LA (G) dated 27th June, 1994,
the Special Land Acquisition Officer, Howrah informed the then
owners namely Felu Charan Ghosh and others that their application
for release of the land has been forwarded to the Executive Engineer
PWD, Howrah Directorate for their views along with four plans
showing the plot of land to be de-requisitioned.
(vii) An advocate’s letter on behalf of the then land owners for release
of the land was also submitted before the concerned authority.
(viii) Since no further steps were taken, the predecessor-in-interest of
the petitioner namely Felu Charan Ghosh and others filed a writ
petition before this Hon’ble Court being C.O. No. 9339 W of 1995. The
said writ petition was disposed of on 21st April, 1995 directing the
authority concerned authority to consider and dispose of annexure ‘C’
to the writ petition in accordance with law after hearing and taking
into consideration the documents and papers to be filed at the time of
hearing and by passing a reasoned order and till such date of disposal
status quo as on that date shall continue.
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(ix) The petitioner by two separate registered deeds of conveyance
purchased 60 decimals in L.R. Plot No. 5472 (corresponding to R.S.
Plot No. 6265) on 4th January, 2002. Thereafter the petitioner again
purchased 30 decimals in the said plot on 12th October, 2007 and 5
decimals on 8th February, 2008.
(x) On 28th October, 2015, the petitioner sent an application before
the Collector, Land Acquisition, Howrah & District Magistrate,
Howrah and other authorities praying for de-requisition of the land
which was requisitioned in L.A. Case No. 57 of 1962-63 for the
purpose of stacking yards for completion of National Highways. The
project is already complete and presently the land is not being utilized
for any purpose.
(xi) The private respondents filed a writ petition being W.P. No.
11604(W) of 2017 without making the occupiers of the land a party to
the proceeding, although complaint was made against the petitioners.
The said writ petition was disposed of on 15th December, 2017
directing the National Highways Authority to issue notice under
Section 26 of the Act of 2002. Pursuant thereto, notice was issued on
31st November, 2018.
(xii) Challenging the order of this Court passed in W.P. No. 11604 (W)
of 2017, a Special Leave Petition was preferred before the Hon’ble
Supreme Court. The Special Leave Petition was disposed of by
directing that “As the learned Counsel appearing on behalf of the
public interest litigation petitioner has made statements that in the
meantime the petitioners have been evicted pursuant to the notice
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issued in terms of the High court order, we are of the view that the
petitioners should be left to the remedy to approach the High court for
such appropriate orders as may be considered necessary. The special
leave petition stands disposed of with the above observations.”
(xiii) Hence, this writ petition.
3. The writ petition is keenly contested by respondent no.2-National
Highways Authority of India (In short, ‘NHAI’) by filing its affidavit-in-
opposition with the following contentions:
(i) The petitioner herein claimed to be the rightful owner of the land
in question. However, the said plot of land was acquired in full for the
purpose of development of National Highway No.6. The said plot was
acquired by Government of West Bengal way back in 1962-63 in
accordance with the provisions of law in Land Acquisition Case No. 57
(Act II) of 1962-63. After acquisition of the said plots, compensation
was duly paid by the Collector, Howrah to the erstwhile owners and
the ownership of the said plot was vested upon the Collector, Howrah.
(ii) A writ petition being W.P. No. 11604 (W) of 2017 was filed before
the Hon’ble High Court at Calcutta on 13th April, 2017 by Panchanan
Bera and 23 others who are residents of Mouza-Kolora, P.S.-Domjur,
District-Howrah, inter alia, seeking directions to initiate appropriate
legal steps for removal of the unauthorized occupants from the
Government land situated at Dag Nos. 6187, 6193, 6194, 6195, 6244,
6245, 6250, 6251, 6252, 6253, 6254, 6257, 6258, 6259, 6260, 6265,
6271, 6272, 6273, 6274, 6275, 6276, 6277, 6281, 6282, 6283, 6284,
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6285, 6186, 6287 and also part of C.S. Plot No. 6296 and 6267 of
Mouza Kolora.
(iii) By a letter dated 27th April, 2017, the Additional District
Magistrate (LA), Howrah informed the respondent no.2-NHAI about
the pendency of the writ petition and was directed to inform the
action which has been taken with respect to the encroachments on
the said acquired land by the NHAI.
(iv) A joint inspection was held on 7th April, 2017 with respect to the
said plots of land which have been encroached upon, in presence of
local people, the representatives of the Land Acquisition Department
of District Howrah and the representatives of NHAI.
(v) By a letter dated 16th June, 2017, the Special Land Acquisition
Officer (G), Howrah forwarded the joint inspection report along with
its enclosures to respondent no.2-NHAI and directed to take
necessary steps to remove the encroachments from the said acquired
land by NHAI.
(vi) Pursuant thereto, on 14th August, 2017, notices were issued
under Section 26 of the Act of 2002 against all illegal occupiers by
respondent no.2-NHAI which was duly received on 18th August, 2017.
The petitioner herein being an illegal occupier of the acquired land
was also duly served with the said notice fixing the date of hearing on
8th September, 2017. The petitioner neither filed any representation
nor appeared at the time fixed for hearing.
(vii) Thereafter on 15th December, 2017, the writ petition being W.P.
No. 11604 (W) of 2017 was disposed of by directing “the concerned
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authority to take all necessary steps for removal of the unauthorised
occupiers from the land belonging to the National Highways at the
disputed site by following the provision contained in Section 26 of the
said Act as expeditiously as possible but preferably within a year and
without causing any unnecessary delay so that the process of widening
of the National Highway being NH-6 is not unnecessarily delayed”.
(viii) Pursuant to the direction of the Hon’ble Court, the illegal
occupiers including the petitioner herein were time and again
requested to remove their illegal encroachments from the acquired
land. However, it was found that the said encroachments were not
removed till the end of November 2018. Finding no other alternative,
notices were issued on 30th November, 2018 to all illegal occupiers
including the petitioner to remove all encroachments/unauthorised
structures from the government land within 7 days failing which the
same would immediately be removed as per Section 26 of the Act of
2002.
(ix) Despite receipt of notice dated 30th November, 2018, since the
encroachments were not removed, NHAI carried out an eviction drive
to remove all encroachers from the concerned stretch of the National
Highway in the month of January 2019 and substantially removed the
encroachers from the right of way of National Highway land. Though
the petitioner is removed from some portion of encroachment,
however, it has not been completely evicted from the concerned plot of
land even though the entire plot of land has been acquired and the
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petitioner is liable to be evicted completely from the concerned plot of
land.
(x) Contrary to the claim of the petitioner that his plot is situated far
away from the National Highway, it is pertinent to mention that the
entire plot of land is beside the National Highway. As per the
information and documents furnished by the Office of the District
Magistrate and Collector, Howrah, it is evident that the Government of
West Bengal in accordance with the provisions of law in Land
Acquisition Case No. 57 (Act II) of 1962-63 acquired the said plot of
land in its entirety and compensation for the entire plot measuring
1.19 acre was paid to the erstwhile owner by the Collector, Howrah
and thereby the ownership of the said plot has vested upon the
Collector, Howrah.
(xi) No action taken thereafter by the erstwhile owners of such
acquired land or the subsequent purchasers of such acquired land,
including mutation thereof, can be deemed to be legal and are void ab
initio. The petitioner cannot claim the said land belonging to NHAI,
Ministry of Road Transport and Highways, Government of India as her
land merely on the strength of a deed executed illegally long after the
acquisition of the land has been made in favour of NH-6.
(xii) In light of the above, it is prayed by the respondent no.2-NHAI for
dismissal of the writ petition.
4. The State-respondent nos. 3, 4 and 6 also filed their affidavit-in-
opposition with the following contentions:
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(i) 11.59 acres of land in C.S./R.S. Plot Nos. 6187, 6193-6196,
6244-6245, 6250-6254, 6257-6260, 6265, 6267, 6271-6277, 6281-
6288 of Mouza-New Kolora, J.L. No. 20 under P.S.-Domjur, District-
Howrah including the subject land in C.S./R.S. Plot No. 6265 with
entire area of 1.19 acres had been acquired in L.A. Case No. 57 (Act II)
of 1962-1963 under West Bengal Land (Requisition & Acquisition)
Act, 1948 for publication purpose of providing facilities for transport
and communication for stacking yard for supply of bricks and bats for
substation Alampur-Uluberia National Highways No.6. Possession of
the subject land was taken over and handed over to the requiring
body (PWD NHA Division) on 21st December, 1963. Notice under
Section 4(1a) of the said Act II vide No. 20732 L.A. (P.W.) dated 1st
December, 1964 was duly published in Calcutta Gazette.
(ii) The award for payment of compensation including the subject
land was made observing all formalities and it was declared by the
Collector, Howrah on 31st December, 1966. Payment of compensation
in respect of subject land was made to different awardees at award
Serial No.47 to 64 on 11th November, 1964 and through R.D. for other
rest of the awardees.
(iii) The instant petitioner namely Gangaben Patel claims that by
virtue of various registered deed executed between the year 2002-
2008 she had purchased 0.95 acres of subject land out of total area of
1.19 acre. Therefore, the present petitioner is a post acquisition
purchaser, and such purchase is void and illegal. The petitioner
cannot purchase a government land, which is acquisitioned, as the
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land vests with the State upon acquisition and any transaction
executed thereafter is not binding upon the State.
(iv) In the year 2017, a mass petition was submitted before the
National Highways Authority of India by some local villagers alleging
misuse of acquired land by way of sale, transfer, encroachments and
filling up of water bodies by some miscreants with a request to take
immediate legal action against such miscreants. Consequently, a joint
enquiry was held on 7th April, 2017 and the allegations were found to
be true. The Project Director, National Highway Authority along with
B.L. & L.R.O., Domjur were requested to take appropriate steps for
recovery of government land. But eviction of such unlawful occupiers
was not done.
(v) With the allegation of inaction of the concerned authority
regarding eviction of such unlawful occupiers, one Panchanan Bera
and others filed a writ petition before the Hon’ble High Court,
Calcutta being W.P. No. 11604 (W) of 2017, which was disposed of
directing “the concerned authority to take all necessary steps for
removal of the unauthorised occupiers from the land belonging to the
National Highways at the disputed site by following the provision
contained in Section 26 of the said Act as expeditiously as possible but
preferably within a year and without causing any unnecessary delay
so that the process of widening of the National Highway being NH-6 is
not unnecessarily delayed”.
(vi) As per the order/direction of the Hon’ble High Court, notices
were issued to the unlawful occupiers by the Project Director of
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National Highways Authority of India (PIU-Kolkata) under Section 26
of the Act of 2002.
(vii) The order passed by the Hon’ble High Court, Calcutta in W.P. No.
11604 (W) of 2017 was challenged in Special Leave Petition being no.
46765 of 2018 before the Hon’ble Supreme Court by the present writ
petitioner. The Special Leave Petition was disposed of by directing that
“As the learned Counsel appearing on behalf of the public interest
litigation petitioner has made statements that in the meantime the
petitioners have been evicted pursuant to the notice issued in terms of
the High court order, we are of the view that the petitioners should be
left to the remedy to approach the High court for such appropriate
orders as may be considered necessary. The special leave petition
stands disposed of with the above observations.”
(viii) The National Highways Authority of India being a statutory body
is bound to remove the unauthorised occupants in the interest of
traffic safety or convenience. The instant petitioner is a post
acquisition purchaser and, therefore, has no legal right to enjoy right,
title over the subject land since the same has been acquired following
the provisions of law and payment of compensation has been made
long before the date of purchase. Possession was also handed over to
the requiring body.
(ix) Initially an area of 13.47 acres of land in Mouza-New Kolora was
proposed for acquisition for the project and possession was taken
accordingly on 21st December, 1963. However, subsequently, an area
of 1.88 acre in R.S. Plot No. 6248, 6249 and 6261 of Mouza-New
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Kolora were excluded from the project and for the purpose of
requisition, compensation from 21st December, 1963 to 20th March,
1982 was paid to the erstwhile owners of the land in respect of the
aforesaid plots and acquisition proceeding was concluded for 11.49
acres of land following the provision of law.
(x) As soon as the acquisition proceeding is completed, the land
stands vested with the State and the State becomes the owner of the
land. The erstwhile owner of the land has been divested of ownership
of land from the date of award. The writ petitioner having purchased
0.95 acres of subject land by virtue of 4 registered deeds between the
years from 2002 to 2008 is therefore having no legal right title over
the subject land.
(xi) Once the land is acquired and is handed over to the requiring
body, it remains with the requiring body. If the acquired land is being
unutilized from the end of requiring body, it may relinquish the land
from the Land & Land Reforms and Refugee Relief & Rehabilitation
Department, for utilization of other public purpose. However, the
acquired land may not be withdrawn from acquisition as there is no
such provision in law from withdrawal of acquisition and reverting it
to the erstwhile owners of the land.
5. Mr. Asok Kumar Banerjee, learned Senior Advocate representing the
writ petitioner, at the outset, submitted that the land of the petitioner lies
at a far distance from the existing National Highway. Thus, in any stretch
of imagination, the subject land cannot enure to the purpose of the
National Highways. The land was acquired for the purpose stocking yards
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for supply of brick and bats during construction of sub-station Alampur-
Uluberia, NH6 in the district of Howrah. The said purpose has already
exhausted and fulfilled. The subject land in question has remained
unutilized for a considerable period of more than 50 years. The petitioner
purchased 0.95 acres of land in R.S. Plot No. 6265 corresponding to L.R.
Plot No. 5472. The predecessor-in-interest of the petitioner namely Felu
Charan Ghosh and others made representation before the authority
concerned for release of unutilized excess land duly recommended by local
Panchayat. Though such application was forwarded to the Executive
Engineer (PWD), Howrah Directorate seeking his views for release of plots
of land by way of de-requisition, however, no further steps were taken.
Thereafter the predecessor-in-interest filed a writ petition being C.O. No.
9339 W of 1995 wherein directions were issued to authority concerned to
consider and dispose of annexure ‘C’ to the writ petition in accordance
with law after hearing and taking into consideration the documents and
papers to be filed at the time of hearing and by passing a reasoned order
and till such date of disposal status quo as on that date shall continue. Be
that as it may, no further steps were taken.
Alleging of encroachments and illegal occupation, some of the local
villagers filed a writ petition before this Hon’ble High Court being W.P. No.
11604(W) of 2017 and the Hon’ble Court directed for issuance of notice
under Section 26 of the Act of 2002. Challenging such order, the writ
petitioner preferred a Special Leave Petition which was disposed of
granting liberty to the petitioner to approach the High Court. Pursuant to
the aforesaid order, this writ petition has been preferred.
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The petitioner is a subsequent purchaser and not an encroacher.
Therefore, notice under Section 26 of the Act of 2002 does not lie as
against the petitioner. The subsequent transfer of the subject land in
favour of the petitioner by the erstwhile land owners and the title of the
petitioner accrued thereof has not been challenged and/or controverted by
the respondents in the present writ petition. The petitioner has mutated
her name and has been paying taxes. Once the claim of the petitioner is
not controverted, the Court is to proceed on the basis of the averments
made by the writ petitioner. To buttress his aforesaid contention, he relied
on the decision of Hon’ble Supreme Court passed in Smt. Naseem Bano
versus State of U.P. and others1.
The purpose of an order of mandamus is to remedy the defects of justice.
In all cases where there is a specific legal right and there is no specific
legal remedy for enforcing that right, one may seek for a mandamus. The
High Courts in India exercising their jurisdiction under Article 226 have
the power to issue a writ of mandamus or a writ in the nature of
mandamus or to pass orders and give necessary directions where the
Government or a public authority has failed to exercise or has wrongly
exercised the discretion conferred upon it by a statute or a rule or a policy
decision of the Government or has exercised such discretion mala fide or
on irrelevant considerations or by ignoring the relevant considerations
and materials or in such a manner as to frustrate the object of conferring
such discretion or the policy for implementing which such discretion has
been conferred. In support of his contention, he relied on decision of
1 AIR 1993 SC 2592
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Hon’ble Supreme Court passed in The Comptroller and Auditor General
of India, Gian Prakash, New Delhi and another versus K. S.
Jagannathan and another2.
Each case depends on its own facts and a close similarity between one
case and another is not enough because even a single significant detail
may alter the entire aspect. In deciding such cases, one should avoid the
temptation to decide cases by matching the colour of one case against the
colour of another. To decide, therefore, on which side of the line a case
falls, the broad resemblance to another case is not at all decisive. In
support his contention, he relied on the decision of Hon’ble Supreme Court
passed in State of Rajasthan versus Ganeshi Lal3.
Furthermore, the predecessor-in-interest of the petitioner and thereafter
the petitioner herself is in possession of the subject land for more than 30
years and, therefore, a right through adverse possession is established in
favour of the petitioner. To buttress his aforesaid contention, he relied on
the following decisions:
(ii) Ravinder Kaur Grewal & Ors. versus Manjit Kaur & Ors.5
Relying on the decision of Hon’ble Supreme Court in Hamid Ali Khan (D)
through LRS & Anr versus State of U.P. & Ors6, he submitted that the
unutilized land ought to be released in favour of the petitioner.
2 AIR 1987 SC 537
3 AIR 2008 SC 690
4 AIR 1934 Privy Council 23
5 (2019) 8 SCC 729
6 Civil Appeal No. 1267 of 2012
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In light of his aforesaid submissions, he prayed for cancellation and
withdrawal of the notice issued under Section 26 of the Act of 2002.
6. In reply to the above contentions of the petitioner, Mr. Dipankar Das,
learned advocate representing respondent no.2-NHAI submitted that the
petitioner is a subsequent purchaser of land measuring 95 sataks within
L.R Plot No. 5472 (corresponding to C.S Plot No. 6265). The land of the
petitioner is adjacent to NH-6. The predecessor-in-interest of the petitioner
has already received compensation in respect of the land in question. As
per the enquiry report dated 7th April 2017 of Assistant Land Acquisition
Officer, there is encroachment of the land-in-question illegally by some
encroachers. The list appended to the enquiry report would show that the
present petitioner has encroached upon the land belonging to the
Highways Authority. As per the letter dated 27th April 2017 of the
Additional District Magistrate, Howrah all the plots of land including the
subject plot was acquired and the possession of such plots were handed
over to the requiring body i.e. NHAI. Further by letter dated 16th June
2017, it was informed to the Project Director, NHAI by Special Land
Acquisition Officer(G), Howrah that plot nos. 6190, 6163, 6164, 6202,
6269, 6270 and 6287 of Mouza-Kolorah was found to be not acquired in
the said LA case and plots of land measuring 11.59 acres in the said
mouza was acquired. Thus, records reveal that the land in question has
been acquired and possession handed over to the requiring body-NHAI and
compensation has also been paid to the predecessor-in-interest of the
petitioner. The petitioner who is a subsequent purchaser has no right
whatsoever in the subject land. The petitioner has been removed from
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certain portion of her illegal occupation. However, she is still in illegal
occupation of certain portion of land till date. Pursuant to order passed the
Hon’ble Division Bench of this court presided by Hon’ble Chief Justice,
notice under Section 26 of Act of 2002 has been issued against the
petitioner for her removal from illegal occupation. The date on which the
matter was heard by the Hon’ble Supreme Court, notices were already
issued. In light of his aforesaid submissions, he sought that the notice
issued against the petitioner for removing her from illegal occupation of
subject land should not be interfered with. He seeks for dismissal of the
writ petition.
7. Mr. Soumitra Bandyapadhyay, learned advocate for the State-
respondents, at the outset, submitted that upon completion of acquisition
the subject land vested absolutely with the State. Once the land is vested it
cannot be divested. In support of his contention, he relied on the decision
of Hon’ble Supreme Court passed in V. Chandrasekaran and Another
versus Administrative Officer and Others7. Subsequent to acquisition,
the persons who purchases is not competent to challenge the validity of
the acquisition proceedings on any ground whatsoever. For the reason that
the said deed executed in his favour does not confer upon him any title
and at the most, he can claim compensation on the basis of vendor’s title.
The intendment of 2013 Act is to benefit the farmers etc. Subsequent
purchaser cannot be said to be land owners entitled to restoration of land
and are also not affected persons. Anyone who deals with land subsequent
to acquisition does so at his own peril. The notification for acquisition gives
7 (2012) 12 SCC 133
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a notice to the public at large that the land in respect to which it has been
issued is needed for a public purpose and it further points out that there
will be an impediment to anyone to encumber the land acquired
thereunder. The alienation thereafter does not bind the State or the
beneficiaries under the acquisition. The records of the land acquisition
proceedings would show that the land has been acquired, possession has
been handed over the requiring body-NHAI and compensation has been
paid to the predecessor-in-interest of the petitioner. Therefore, the
petitioner has no right accrued in her favour in respect of the land in
question. In such circumstances, the writ petition falls short of merit. He
seeks for dismissal of the writ petition. To buttress his contention, he
relied on the decision of Hon’ble Supreme Court passed in Shiv Kumar
and Another versus Union of India and Others8.
8. Upon hearing the submissions of learned advocates for the respective
parties, the only issue which is to be examined is whether the National
Highways Authority was justified in issuing notice dated 30.11.2018 under
Section 26 of the Control of National Highways (Land and Traffic) Act,
2002 or not.
9. It is the contention of the petitioner that the land in question
comprised within L.R Plot No. 5472 (corresponding to C.S Plot No. 6265),
Mouza-Kolora, Police Station-Domjur was requisitioned by the Government
of West Bengal by a Notification dated 1st December, 1964 under West
Bengal Land (Requisition and Acquisition) Act, 1948 (now repealed) for the
purpose of stocking yards for supply of bricks and bats for sub-station
8 (2019) 10 SCC 229
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Alampur-Uluberia of NH-6 and notice under sub-section (1a) of Section 4
of the said Act was also published. Thus, from the above contention it is
admitted position that the land in question has been acquired upon due
compliance of necessary statutory formalities. Both respondent no. 2-NHAI
as well as State respondents also contends that the land in question has
been acquired, possession handed over to the requiring body-NHAI and
compensation has also been paid to the predecessor-in-interest of the
petitioner. It also undisputed that notice was published under sub-section
(1a) of Section 4 of West Bengal Land (Requisition and Acquisition) Act,
1948 (Act II of 1948) on 1st December, 1964.
10. At this stage, it would be apposite to refer to Section 4 of the Act II of
1948 as hereunder:
“Acquisition of Land -(1) Where any land has been requisitioned under
section 3, the State Government may use or deal with such land for any of
the purposes referred to in sub- section (1) of Section 3 as may appear to it
to be expedient.
(la) The State Government may acquire any land requisitioned under
Section 3 by publishing a notice in the Official Gazette that such land is
required for a public purpose referred to in sub-section (1) of Section 3.
(2) Where a notice as aforesaid is published in the Official Gazette, the
requisitioned land shall, on and from the beginning of the day on which
the notice is so published, vest absolutely in the (State) Government free
from all incumbrances and the period of requisition of such land shall
end.”
Upon bare reading of the aforesaid provisions, it clearly manifests that
where a notice under Section 4(1a) of the Act-II of 1948 is published in the
Official Gazette, the requisitioned land shall, on and from the beginning of
the day on which the notice is so published, vest absolutely in the State
Government free from all incumbrances and the period of requisition of
such land shall end. Therefore, on and from 1st December, 1964 the
subject land has vested absolutely with the State. As per the said
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notification the possession of the subject land was taken over on 21st
December, 1962. As per the letter dated 27th April, 2017 of the Additional
District Magistrate, Howrah (Annexure C to the reply of respondent no.2-
NHAI) all the plots of land including the subject plot was acquired and the
possession of such plots were handed over to the requiring body i.e. NHAI.
Further as per proceeding under Section 7 of the Act-II of 1948 (Annexure
A to the reply of respondent no.2-NHAI) compensation has been paid to
one Sachirani Kumar under serial no.64. An enquiry was conducted to
ascertain the persons who are in illegal occupation. The Enquiry report
dated 7th April, 2017 shows that said Sachirani Kumar is the beneficiary in
respect of plot no. 6265. It is further revealed that the petitioner is in
occupation of the land. Therefore, from the above documents it is quite
evident that the requisition of subject land was made for the purpose of
stocking yards for supply of bricks and bats for sub-station Alampur-
Uluberia of NH-6, notice under Section 4(1a) of Act-II of 1948 was duly
published and land has been acquired and payment of compensation made
under Section 7 of Act-II of 1948 to the beneficiary of the land in question.
As per provisions of Section 4(2) pf the Act-II of 1948 the land has vested
absolutely with the State. Further the possession of the subject land has
also been delivered to respondent no.2-NHAI.
11. The petitioner admittedly, is a subsequent purchaser of the subject
land and she sought for release of the land allegedly unutilized. At this
juncture, the question arises as to whether any right, title and interest
accrued in favour of the petitioner in the subject land. In order to find an
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answer to the aforesaid query it would be profitable to refer to the decision
of Hon’ble Supreme Court in V. Chandrasekaran (supra) as hereunder:
“15. The issue of maintainability of the writ petitions by the person
who purchases the land subsequent to a notification being issued under
Section 4 of the Act has been considered by this Court time and again. In
Pandit Leela Ram v. Union of India, AIR 1975 SC 2112, this Court held
that, any one who deals with the land subsequent to a Section 4
notification being issued, does so, at his own peril. In Sneh Prabha v.
State of Uttar Pradesh, AIR 1996 SC 540, this Court held that a Section 4
notification gives a notice to the public at large that the land in respect to
which it has been issued, is needed for a public purpose, and it further
points out that there will be “an impediment to any one to encumber the
land acquired thereunder.” The alienation thereafter does not bind the
State or the beneficiary under the acquisition. The purchaser is entitled
only to receive compensation. While deciding the said case, reliance was
placed on an earlier judgment of this Court in Union of India v. Shri Shiv
Kumar Bhargava & Ors., JT (1995) 6 SC 274.
16. Similarly, in U.P. Jal Nigam v. M/s. Kalra Properties Pvt. Ltd., AIR
1996 SC 1170, this Court held that, purchase of land after publication of a
Section 4 notification in relation to such land, is void against the State and
at the most, the purchaser may be a person- interested in compensation,
since he steps into the shoes of the erstwhile owner and may therefore,
merely claim compensation. (See also: Star Wire (India) Ltd. v. State of
Haryana & Ors., (1996) 11 SCC698).
17. In Ajay Kishan Singhal v. Union of India, AIR 1996 SC 2677;
Mahavir & Anr. v. Rural Institute, Amravati & Anr., (1995) 5 SCC 335;
Gian Chand v. Gopala & Ors., (1995) 2 SCC 528; and Meera Sahni v.
Lieutenant Governor of Delhi & Ors., (2008) 9 SCC 177, this Court
categorically held that, a person who purchases land after the publication
of a Section 4 notification with respect to it, is not entitled to challenge the
proceedings for the reason, that his title is void and he can at best claim
compensation on the basis of vendor’s title. In view of this, the sale of
land after issuance of a Section 4 notification is void and the purchaser
cannot challenge the acquisition proceedings. (See also: Tika Ram v. State
of U.P., (2009) 10 SCC 689).
18. In view of the above, the law on the issue can be summarized to
the effect that a person who purchases land subsequent to the issuance of
a Section 4 notification with respect to it, is not competent to challenge the
validity of the acquisition proceedings on any ground whatsoever, for the
reason that the sale deed executed in his favour does not confer upon him,
any title and at the most he can claim compensation on the basis of his
vendor’s title.”
12. In Shiv Kumar (supra) following the above decision the Hon’ble
Supreme observed that a purchaser after Section 4 notification does not
acquire any right in the land as the sale is ab initio void and has no right
to claim land under the Policy.
13. Thus, bearing in mind the aforesaid proposition laid down by the
Hon’ble Supreme Court, it can be said that the purchase of land after
22
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publication of notification under Section 4(1a) of the Act-II of 1948 by the
petitioner is void and sale deed executed in her favour does confer upon
her any title to the subject land. Further the alienation subsequent to
publication of such notice does not bind the State or the beneficiary under
the acquisition. Hence by dint of such purchases, which is the subject
matter herein, no right, title and interest over the subject land accrues in
favour of the petitioner.
14. The petitioner contends that on 28th October, 2015, the petitioner sent
an application before the Collector, Land Acquisition, Howrah & District
Magistrate, Howrah and other authorities praying for de-requisition of the
land which was requisitioned in L.A. Case No. 57 of 1962-63 for the
purpose of stacking yards for completion of National Highways. The project
is already complete and presently the land is not utilized for any purpose.
Now the question is whether the subject land can be divested and restored
to the petitioner. It would be apposite to reproduce the relevant
observation of Hon’ble Supreme Court in V. Chadrasekaran (supra) as
hereunder:
“25. It is a settled legal proposition, that once the land is vested in the
State, free from all encumbrances, it cannot be divested and proceedings
under the Act would not lapse, even if an award is not made within the
statutorily stipulated period. (Vide: Avadh Behari Yadav v. State of Bihar
&. Ors., (1995) 6 SCC 31; U.P. Jal Nigam v. Kalra Properties (P) Ltd.
(Supra); Allahabad Development Authority v. Nasiruzzaman & Ors., (1996)
6 SCC 424, M. Ramalinga Thevar v. State of Tamil Nadu & Ors., (2000) 4
SCC 322; and Government of Andhra Pradesh v. Syed Akbar & Ors., AIR
2005 SC 492).
26. The said land, once acquired, cannot be restored to the tenure
holders/persons-interested, even if it is not used for the purpose for which
it was so acquired, or for any other purpose either. The proceedings
cannot be withdrawn/abandoned under the provisions of Section 48 of
the Act, or under Section 21 of the General Clauses Act, once the
possession of the land has been taken and the land vests in the State,
free from all encumbrances. (Vide: State of Madhya Pradesh v. V.P.
Sharma, AIR 1966 SC 1593; Lt. Governor of Himachal Pradesh & Anr. v.
Shri Avinash Sharma, AIR 1970 SC 1576; Satendra Prasad Jain v. State
23
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of U.P. & Ors., AIR 1993 SC 2517; Rajasthan Housing Board & Ors. v.
Shri Kishan & Ors., (1993) 2 SCC 84 and Dedicated Freight Corridor
Corporation of India v. Subodh Singh & Ors., (2011) 11 SCC 100).”
The above observation of the Hon’ble Supreme Court manifest that once
the land is vested in the State, free from all encumbrances, it cannot be
divested. Further land once acquired, cannot be restored to the tenure
holders/persons-interested, even if it is not used for the purpose for which
it was so acquired, or for any other purpose either. Therefore, the prayer of
the petitioner is not tenable in law.
15. It has been vociferously argued on behalf of the petitioner relying on
Naseem Bano (supra) that as the subsequent transfer of the subject land in
favour of the petitioner by the erstwhile land owners, the title of the
petitioner accrued thereof, the mutation in favour of the petitioner and
payment of property taxes has not been challenged and/or controverted by
the respondents in the present writ petition, hence the Court is to proceed
on the basis of the averments made by the writ petitioner. Since the
petitioner is paying tax to the Government of West Bengal a right over the
subject land accrued in her favour.
16. In Naseem Bano (supra) an appeal was directed before the Hon’ble
Supreme court against a judgment of the Allahabad High Court relating to
appointment on the post of L.T Grade teacher in Home Science for high
school classes in Mahila Seva Sadan Inter College, Allahabad. The Hon’ble
Supreme Court found that it was not disputed in the reply of respondent
nos. 1 to 4 that 40% of the posts which have to be filled up by promotion
had not been filled up and the denial of the promotion to the appellant was
justified on the sole ground that she was not qualified to be promoted to
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L.T grade and held that the High Court should have proceeded on the
basis that the said averments had been admitted by respondents. The
facts of the said decision are distinguishable with the case at hand.
Moreover, a claim to title to property cannot be made only on the basis
that the transfer has not been disputed or mutation of the property in the
name of the petitioner and the payment of property tax has not been
denied. Further it is settled position of law that record of rights does not
confer title to the property. Therefore, mutation of the subject land in the
name of the petitioner cannot be held to confer title upon her, when the
transfer of the subject land in her favour is found to be void for the reason
of it being vested to the State absolutely on the date such transfers took
place.
17. Furthermore Section 23 of the Control of National Highways (Land
and Traffic) Act, 2002 provides as hereunder:
“23. Highway land to be deemed as property of Central
Government.–(1) All lands forming parts of a Highway which vest in the
Central Government or which do not already vest in the Central
Government but have been acquired for the purpose of Highway shall, for
the purposes of this Act, and other Central Acts, be deemed to be the
property of the Central Government as owner thereof.
(2) The Highway Administration shall cause to be maintained a record in
the prescribed manner in which the particulars of the lands, relating to the
Highway, of which the Central Government is the owner shall be entered
and the entries of the particulars of such lands in any record maintained
for such purpose before the commencement of this Act shall be deemed to
be the entry of the particulars of such lands made in the first said record
and accordingly the Central Government shall be deemed to be the owner
of the lands regarding which the entries have been made in such records
maintained before the commencement of this Act.
(3) Any person claiming against the ownership of the Central Government
referred to in sub-section (2) shall make written complaint to the Highway
Administration and prove his claim before it and the Highway
Administration, after considering the evidence produced by such person,
may correct such records or reject the claim.”
The aforesaid provisions clearly shows that all lands forming parts of a
Highway which vest in the Central Government or which do not already
25
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vest in the Central Government but have been acquired for the purpose of
Highway shall, for the purposes of this Act, and other Central Acts, be
deemed to be the property of the Central Government as owner thereof.
Thus, as the subject land having acquired for the purpose of the National
Highways, hence the Central Government is the deemed owner of the said
property. Accordingly, the petitioner cannot claim any title over the said
property.
18. That apart Section 24(1) of the said Act of 2002 which deals with
prevention of occupation of highway land provides no person shall occupy
any highway land or discharge any material through drain on such land
without obtaining prior permission, for such purpose in writing, of the
Highway Administration or any officer authorised by such Administration
in this behalf. The petitioner has not made out any case that she is in
occupation of the subject with the prior permission of the Highway
Administration. Such being the position the occupation of the petitioner
over the subject land is illegal.
19. Section 26 of the Act of 2002 lays down the procedure for removal of
unauthorized occupants from the land of the Highways which is
reproduced hereunder for the convenience of discussion.
“26. Removal of unauthorised occupation.–(1) Where the Highway
Administration or the officer authorised by such Administration in this
behalf is of the opinion that it is necessary in the interest of traffic safety
or convenience to cancel any permit issued under sub-section (2) of section
24, it may, after recording the reasons in writing for doing so, cancel such
permit and, thereupon, the person to whom the permission was granted
shall, within the period specified by an order made by the Highway
Administration or such officer restore the portion of the Highway specified
in the permit in such condition as it was immediately before the issuing of
such permit and deliver the possession of such portion to the Highway
Administration and in case such person fails to deliver such possession
within such period, he shall be deemed to be in unauthorised occupation
of highway land for the purposes of this section and section 27.
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(2) When, as a result of the periodical inspection of highway land or
otherwise, the Highway Administration or the officer authorised by such
Administration in this behalf is satisfied that any unauthorised occupation
has taken place on highway land, the Highway Administration or the
officer so authorised shall serve a notice in a prescribed form on the
person causing or responsible for such unauthorised occupation requiring
him to remove such unauthorised occupation and to restore such highway
land in its original condition as before the unauthorised occupation within
the period specified in the notice.
(3) The notice under sub-section (2) shall specify therein the highway land
in respect of which such notice is issued, the period within which the
unauthorised occupation on such land is required to be removed, the place
and time of hearing any representation, if any, which the person to whom
the notice is addressed may make within the time specified in the notice
and that failure to comply with such notice shall render the person
specified in the notice liable to penalty, and summary eviction from the
highway land in respect of which such notice is issued, under sub-section
(6).
(4) The service of the notice under sub-section (2) shall be made by
delivering a copy thereof to the person to whom such notice is addressed
or to his agent or other person on his behalf or by registered post
addressed to the person to whom such notice is addressed and an
acknowledgment purporting to be signed by such person or his agent or
other person on his behalf or an endorsement by a postal employee that
such person or his agent or such other person on his behalf has refused to
take delivery may be deemed to be prima facie proof of service.
(5) Where the service of the notice is not made in the manner provided
under sub-section (4), the contents of the notice shall be advertised in a
local newspaper for the knowledge of the person to whom the notice is
addressed and such advertisement shall be deemed to be the service of
such notice on such person.
(6) Where the service of notice under sub-section (2) has been made under
sub-section (4) or sub-section (5) and the unauthorised occupation on the
highway land in respect of which such notice is served has not been
removed within the time specified in the notice for such purpose and no
reasonable cause has been shown before the Highway Administration or
the officer authorised by such Administration in this behalf for not so
removing unauthorised occupation, the Highway Administration or such
officer as the case may be, shall cause such unauthorised occupation to
be removed at the expenses of the Central Government or the State
Government, as the case may be, and impose penalty on the person to
whom the notice is addressed which shall be five hundred rupees per
square metre of the land so unauthorisedly occupied and where the
penalty so imposed is less than the cost of such land, the penalty may be
extended equal to such cost.
(7) Notwithstanding anything contained in this section, the Highway
Administration or the officer authorised by such Administration in this
behalf shall have power without issuing any notice under this section to
remove the unauthorised occupation on the highway land, if such
unauthorised occupation is in the nature of– (a) exposing any goods or
article– (i) in open air; or (ii) through temporary stall, kiosk, booth or any
other shop of temporary nature, 9 (b) construction or erection, whether
temporary or permanent, or (c) trespass or other unauthorised occupation
which can be removed easily without use of any machine or other device,
and in removing such occupation, the Highway Administration or such
officer may take assistance of the police, if necessary, to remove such
occupation by use of the reasonable force necessary for such removal.
(8) Notwithstanding anything contained in this section, if the Highway
Administration or the officer authorised by such Administration in this
272023:CHC-AS:44043
behalf is of the opinion that any unauthorised occupation on the highway
land is of such a nature that the immediate removal of which is necessary
in the interest of– (a) the safety of traffic on the Highway; or (b) the safety
of any structure forming part of the Highway, and no notice can be served
on the person responsible for such unauthorised occupation under this
section without undue delay owing to his absence or for any other reason,
the Highway Administration or the officer authorised by such
Administration may make such construction including alteration of any
construction as may be feasible at the prescribed cost necessary for the
safety referred to in clause (a) or clause (b) or have such unauthorised
occupation removed in the manner specified in sub-section (7).
(9) The Highway Administration or an officer authorised by such
Administration in this behalf shall, for the purposes of this section or
section 27, have the same powers as are vested in a civil court under the
Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, 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 documents; (c) issuing commissions for the
examination of witnesses; and (d) any other matter which may be
prescribed, and any proceeding before such Administration or officer shall
be deemed to be a judicial proceeding within the meaning of sections 193
and 228, and for the purpose of section 196, of the Indian Penal Code (45
of 1860) and the Administration or the officer shall be deemed to be a civil
court for the purposes of section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973 (2 of 1974).”
Bearing in mind the aforesaid provisions, since it is found that the
petitioner is in unauthorized, illegal occupation of the subject land, hence
the Highway Administration as per Section 26(2) of Act of 2002 is under
statutory obligation to serve a notice in a prescribed form on the person
causing or responsible for such unauthorised occupation requiring him to
remove such unauthorised occupation and to restore such highway land in
its original condition as before the unauthorised occupation within the
period specified in the notice. The respondent no.2-NHAI following such
provisions issued notice under Section 26(2) of the Act of 2002 for removal
of the petitioner who is in illegal possession of the subject land. Therefore,
the action taken by the respondent no.2-NHAI cannot be called in
question.
20. Though it is settled proposition of law that the High Courts in India
exercising their jurisdiction under Article 226 have the power to issue a
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writ of mandamus or a writ in the nature of mandamus or to pass orders
and give necessary directions where the Government or a public authority
has failed to exercise or has wrongly exercised the discretion conferred
upon it by a statute or a rule or a policy decision of the Government or has
exercised such discretion mala fide or on irrelevant considerations or by
ignoring the relevant considerations and materials or in such a manner as
to frustrate the object of conferring such discretion or the policy for
implementing which such discretion has been conferred as laid down in K.
S. Jagannathan (supra) yet the same does not apply to facts of the present
case as there is no wrong exercise of discretion found on the part of
respondent no.2-NHAI in issuing impugned notice under Section 26 of the
Act of 2002 against the petitioner since she is in illegal occupation of the
subject land belonging to Highways Authority.
21. Again, the proposition in Ganeshi Lal (supra) that one additional fact
or different fact may make a world of difference between conclusions in two
cases though a settled proposition of law but is hardly of any consequence
to facts in hand.
22. Relying on the decision of Hon’ble Supreme Court in Debendra Lal
Khan (supra) and Ravinder Kaur Grewal (supra) it has been strenuously
argued on behalf of the petitioner that since her predecessor-in-interest
and subsequently she after purchase is in possession of the subject land
for more than 50 years the petitioner has acquired title by way of adverse
possession. Such argument is not acceptable for the reason as follows.
23. Undisputedly, the subject land was acquired by the State and by
application of law is vested with the State. The compensation has been
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paid to the then land owners and the possession of the land has been
handed over to the requiring body. It is abundantly clear that once the
land is acquired by the Government, it vests in the State free from all
encumbrances. The petitioner is a subsequent purchaser and is found to
be in illegal occupation. No occupant of such land could continue to claim
subsisting interest in the land so as to continue to occupy the same once
the land vests in the Government pursuant to its acquisition. The
petitioner contends that from the period of her erstwhile land owners and
till date since 50 years the petitioner and her erstwhile land owners
were/are in possession of the subject land. Be that as it may, mere
possession for a long period even over a statutory period will not be
sufficient to mature title to the petitioner by adverse possession. Adverse
possession requires continuous, hostile and exclusive possession with the
intent to possess as owner, which is incompatible with land vested in the
State after lawful acquisition. Once land vests in the State under lawful
acquisition, the rights of the original owners are extinguished and
possession taken by the State is presumed to be lawful making adverse
possession untenable. Upon vesting in the State any subsequent
possession by others is illegal and amounts to trespass barring the claim
of adverse possession. Therefore, in the facts and circumstances of the
present case, the plea of adverse possession cannot be entertained. By the
deeming provisions of Section 23 of the Act 2002, the Highways Authority
has become the owner of the subject land. Since the rights of the original
owners are extinguished, the land cannot be reclaimed through adverse
possession. Hence the ratio of the aforesaid decision is not applicable to
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this case. That apart, the decisions in Debendra Lal Khan (supra) and
Ravinder Kaur Grewal (supra) are in relation to civil appeals.
24. In Hamid Ali Khan (supra) the writ petitioners’ case was that they were
running a cattle market in Sy 880 and Sy 893. In order to grab more land,
the second respondent namely the Authority started proceedings to
acquire more land allegedly needed for the Commercial cum Residential
Scheme which included the property in question. The challenge in the said
case was against notification issued under Section 4 and Section 17(4) of
the Land Acquisition Act. Thus the facts involved in the cited decision is
distinguishable from case at hand where there is no challenge to
acquisition proceedings as such.
25. It has been vociferously argued on behalf of the petitioner that since
the subject land is not beside the National Highways hence the same
should be released in favour of the petitioner by the Authority concerned.
On the contrary learned advocate for respondent no.2-NHAI relying on a
map, argued that the subject land is beside the Highways. Be that as it
may, the said aspect is hardly of any consequence as the subject land has
absolutely vested with the State and cannot be divested.
26. In light of the above discussion, it is found that the impugned notice
dated 30th November, 2018 of respondent no.2-NHAI has been issued
rightly for removal of the petitioner who is in illegal occupation of the
subject land in terms of Section 26 of the Act of 2002. Therefore, the
present writ petition fall short of merit and is liable to be dismissed.
27. Accordingly, the writ petition being no. W.P.A 6329 of 2019 stands
dismissed.
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28. There shall be no order as to costs.
29. All connected applications, if any, stand disposed of.
30. Interim orders, if any, stand vacated.
31. Urgent photostat certified copy of the order, if applied for, be given to
the parties upon compliance of all necessary legal formalities.
(Bivas Pattanayak, J.)