Calcutta High Court (Appellete Side)
Hemanta Kumar Roy vs The State Of West Bengal And Others on 17 July, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :-
The Hon'ble Justice PARTHA SARATHI SEN
WPA 5750 of 2025
Hemanta Kumar Roy
-Vs-
The State of West Bengal and others
WITH
WPA 5752 of 2025
Susanta Samui
-Vs-
The State of West Bengal and others
WITH
WPA 5765 of 2025
Manashi Samanta
-Vs-
The State of West Bengal and others
WITH
WPA 5821 of 2025
Gour Mohan Pandit alias Gour Pandit
-Vs-
The State of West Bengal and others
For the Petitioner:
Mr. Tanmoy Mukherjee
Mr. Sagnik Basu
Mr. Subhrajyoti Dey
Mr. Arjun Bhajan
Mr. Dilwar Khan
Mr. Pourush Bandyopadhyay
Ms. Apple Mughali Jimo
For the State in WPA 5750 of 2025:
Mr. Soumitra Bandyopadhyay, Sr. Govt. Adv.
Mr. Ram Chandra Guchhait
For the State in WPA 5752 of 2025:
Mr. Supratim Dhar, Sr. Adv.
Ms. Tuli Sinha
For the State in WPA 5765 of 2025:
Mr. Soumitra Bandyopadhyay, Sr. Govt. Adv.
Ms. Suchana Banerjee
2
For the State in WPA 5821 of 2025:
Mr. Soumitra Bandyopadhyay, Sr. Govt. Adv.
Mr. Priyabrata Batabyal
For the respondent no.10 in WPA 5750 of 2025:
Mr. Biswanath Chatterjee
Mr. Sobhan Pathak
For the respondent no.11 in WPA 5765 of 2025 & WPA 5821 of 2025:
Mr. Biswanath Chatterjee
Mr. Sobhan Pathak
Hearing concluded on: 17.07.2025.
Judgment on: 17.07.2025.
PARTHA SARATHI SEN, J. : -
1. At the very outset, Mr. Mukherjee, learned advocate appearing on
behalf of the writ petitioners in WPA 5750 of 2025, WPA 5752 of
2025, WPA 5765 of 2025 and WPA 5821 of 2025 requests this Court
to take up the hearing of WPA 5765 of 2025 first.
2. It is further submitted that WPA 5750 of 2025, WPA 5752 of 2025
and WPA 5821 of 2025 be tagged together with WPA 5765 of 2025
since identical questions of facts and laws are involved in those writ
petitions. Accordingly, WPA 5750 of 2025, WPA 5752 of 2025, WPA
5821 of 2025 are tagged with WPA 5765 of 2025.
3. At this juncture, learned advocate appearing on behalf of the private
respondent in all the writ petitions prayed for expunging the name of
the private respondent since the presence of the private respondent
is not necessary for effective adjudication of the lis.
3
4. On careful consideration of the entire materials, this Court finds
sufficient merit in the submission of Mr. Chatterjee, learned advocate
appearing on behalf of the private respondent.
5. Accordingly, the department is directed to delete the names of the
private respondent from the cause title of WPA 5750 of 2025, WPA
5752 of 2025, WPA 5765 of 2025 and WPA 5821 of 2025 forthwith.
6. The reports in the form of affidavit as filed on behalf of the
respondent/State and its instrumentalities in connection with WPA
5750 of 2025, WPA 5752 of 2025, WPA 5765 of 2025 and WPA 5821
of 2025 are taken on record.
7. By filing the instant writ petition being WPA 5765 of 2025, the writ
petitioner has prayed for issuance of appropriate writ/writs against
the respondent authorities commanding them from not giving effect
to the alleged handing over of the land particulars of which has been
mentioned in Schedule of the instant writ petition in terms of L.A.
Case No.81(Act-II) of 1962-63.
8. At the time of hearing, Mr. Mukherjee, learned advocate appearing on
behalf of the writ petitioner at the very outset draws attention of this
court to paragraph no.3 vis-à-vis Schedule A of the instant writ
petition. It is submitted by Mr. Mukherjee that it is the specific case
of the writ petitioner that the writ petitioner got the schedule
mentioned property situated in R.S. Dag No.304 and 305
corresponding to L.R. Plot No.333 and 334 in Mouza Rautara under
P.S. Joypur, District Howrah by a registered deed of gift as executed
4
in the year 2022 by his husband Bulganin Samanta (donor) in favour
of the writ petitioner (donee).
9. It is further submitted by Mr. Mukherjee that it is the specific case of
the writ petitioner that the aforementioned land was requisitioned
under Section 3 of Act II of 1948, which would be evident from page
4 of the report as filed on behalf of the respondent State.
10. It is further submitted by Mr. Mukherjee that it is also the specific
case of the writ petitioner that despite publication of notice under
Section 3 of Act II of 1948, no notice under Section 4(1a) was
published by the respondent authorities and therefore, on account of
non-publication of notice under Section 4(1a) read with Section 4(2)
of Act II of 1948, the alleged vesting as wrongly claimed by the
respondents/authorities did not take place.
11. Drawing attention to Section 7 and 7A of Act II of 1948, it is further
argued by Mr. Mukherjee that for the sake argument even if it is
accepted that such vesting has been completed, it is also the case of
the writ petitioner i.e. the respondents made no endeavour to
disburse compensation within the stipulated period as mentioned
under Section 7(A) of Act II of 1948 and thus the resultant effect of
and/or non-publication of non-disbursement of award would be,
lapse of the notice under Section 4(1a) of Act II of 1948 and as a
consequence thereof the alleged vesting stood lapsed.
12. At this juncture, Mr. Mukherjee draws attention of this court to page
no.91 of the instant writ petition being a copy of Memo dated
5
12.11.2024 as issued by the respondent no.4 authority addressed to
the respondent no.8 authority whereby and whereunder it has been
communicated that though possession of the aforementioned two
plots, particulars of which has been mentioned in the schedule of the
instant writ petition, has been taken on the basis of requisition
under Section 3 of Act II of 1948, but possession certificate in respect
of the relevant plots of land, copy of the publication of notice under
Section 4(1a) of Act II of 1948 and the awarded statement are not
available in his office.
13. At this juncture, Mr. Mukherjee again took me to page 153 of the
instant writ petition being a copy of the Memo dated 10.01.2025 as
issued by the SPIO and Additional LAO (General), Howrah. It is
submitted by Mr. Mukherjee that from the Memo which has been
issued pursuant to some queries under the Right to Information Act,
it has been categorically indicated that in respect of the schedule
mentioned property of the instant writ petition, payment of
compensation was not disbursed.
14. Drawing attention to page no. 81 and 82 of the instant writ petition
being a copy of the order dated 20.06.2024 as passed in WPA 11488
of 2024, it is submitted by Mr. Mukherjee that a Co-ordinate Bench
of this court while disposing of the said writ petition, directed the
respondent authorities to consider the representation of the writ
petitioner dated 16.04.2024 within a stipulated period after giving
opportunity of hearing to the writ petitioner.
6
15. It is further submitted that from page 83 of the instant writ petition,
it would reveal that all on a sudden the respondent no.8 authority
has initiated a proceeding under Section 10(1) of the West Bengal
Highways Act, 1964 (hereinafter referred to as „the said Act of 1964‟
in short) for removal of alleged encroachment over the highway
against the writ petitioner.
16. It is submitted that said proceeding was assailed again by the writ
petitioner before another Co-ordinate Bench of this court which was
disposed on 28.03.2024, whereby and whereunder the said writ
petition being WPA 21398 of 2024 is however dismissed technically
on the ground that the writ petitioner has failed to demonstrate that
the writ petitioner has communicated the earlier order dated
20.06.2024 as passed in WPA 11488 of 2024 to the respondent
authorities.
17. It is submitted further that in the meantime, the respondent no.10
authority had come to a logical conclusion of the proceeding as
initiated under Section 10(1) of the said Act of 1964, wherein an
order was passed for recovery of possession and removal of
encroachment from the schedule mentioned property of the writ
petition.
18. It is further submitted that challenging the said order, an appeal has
been preferred under Section 10(4) of the said Act of 1964 before the
respondent no.2 authority wherein the said respondent no.2
authority has passed an order of stay till disposal of the said appeal.
7
19. Based on the above mentioned factual scenario as discussed
hereinabove, Mr. Mukherjee contends that from the chronology of
events as placed before this court, it would reveal that in absence of
publication of notice under Section 4(1a) of the Act II of 1948, the
respondent authorities cannot claim that vesting has been completed
in respect of the schedule mentioned property of the instant writ
petition.
20. It is further contended by Mr. Mukherjee that for the sake of
argument if it is held that after acquisition under Section 3 vesting
has also been completed, however such vesting came to be lapsed on
the failure of the respondent authorities to make an award within the
stipulated period under Section 7(A) of Act II of 1948.
21. It is further submitted by Mr. Mukherjee that since the alleged
vesting has not yet been completed and since the writ petitioner
being the successor in interest, the original owner of schedule
mentioned property of the instant writ petition is still in settled
position of the suit property, the proceeding under Section 10 of the
said Act of 1964 cannot continue since such proceeding presupposes
an encroachment on a highway i.e. on the Government land.
22. It is thus submitted that the writ petitioner is entitled to the relief as
prayed for in the instant writ petition; more specifically Prayer (a) of
the instant writ petition.
23. Per contra, Mr. Batabyal, learned advocate appearing for the
respondent State and duly led by Mr. Bandopadhyay, learned Senior
8
Government Advocate, however disputed the contention of
Mukherjee. It is argued by Mr. Batabyal that from page 4 of the
report supported by affidavit as filed today, it would reveal that
pursuant to a notice under Section 3(1a) of Act II of 1948, 9.48 acres
of land was requisitioned and possession of the said plot of land in
the C.S. Plot No.304 was taken over and handed over to the requiring
body, by execution of possession certificate, as has been annexed to
the instant report.
24. It is further submitted by Mr. Batabyal that the present writ
petitioner being a post acquisition purchaser of the schedule
mentioned land of the writ petition, the writ petitioner cannot claim
her right, title and interest over the suit property and therefore, the
relief as prayed for by the writ petitioner cannot be called as
innocuous. On being asked by this court, Mr. Batabyal however
submits before this court that he has not received any instruction as
to whether any notice under Section 4(1a) of Act II of 1948 has been
published.
25. This court has meticulously perused the entire materials as placed
before this court. This court has given its due consideration over the
submissions of the learned advocates for the contending parties.
26. For effective adjudication of the instant lis, this court at the very
outset proposes to look to the provision of Sections 3, 4 and 7A of Act
II of 1948, which are quoted hereinbelow in verbatim:
9
"3. Power to requisition - (1) If the State Government is of the
opinion that it is necessary so to do for maintaining supplies and
services essential to the life of the community or for increasing
employment opportunities for the people by establishing commercial
estates and industrial estates in different areas or for providing proper
facilities for transport, communication, irrigation or drainage, or for the
creation of better living conditions in rural or urban areas, not being an
industrial or other area excluded by the State Government by a
notification in this behalf, by the construction or reconstruction of
dwelling places in such areas or for purposes connected therewith or
incidental thereto, the State Government may, by order in writing,
requisition any land and may make such further orders as appear to it
to be necessary or expedient in connection with the requisitioning:
***
(2) …
(3) …
4. 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.
(1a) 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.
***
10
7. Compensation – (1) Wherever any land is acquired under section 4
there shall be paid to every person interested compensation the
amount of which shall be determined by the Collector in the manner
and in accordance with the principles set out in sub-sections (1), (1A)
and (2) of section 23 of the Land acquisition Act, 1894, so far as they
may be applicable.
Provided that the market value referred to in clause first of sub-
section (1) of section 23 of the said Act shall, in respect of any land
acquired under this Act, be deemed to be the market value of such
land on the date of publication of the notice referred to in sub-section
(1a) of Section 4.
(2) (a) When the compensation has been determined under sub-section
(1) the Collector shall make an award in accordance with the principles
set out in section 11 of the Land Acquisition Act, 1894, and the amount
referred to in sub-sections (1), (1A) and (2) of section 23 of that Act
shall also be included in the award:
***
7A. Award by Collector – The Collector shall make an award under
sub-section (2) of section 7 within a period of three years from the date
of publication of the notice in the Official Gazette under sub-section
(1a) of section 4 (hereinafter referred to as the said notice), and if such
award is not made within the period as aforesaid, the said notice shall
lapse:
Provided that in a case where the said notice has been published
more than two years before the commencement of the West Bengal
Land (Requisition and Acquisition) (Amendment) Act, 1994, the award
shall be made within a period of one year from the date of
commencement of that Act.
Explanation – In computing the period of three years or one year, as
the case may be under this section, the period during which any action
11or proceeding to be taken in pursuance of the said notice is stayed by
an order of a Court having jurisdiction, shall be excluded.”
27. At this juncture, I propose to look to the judgment dated 20.05.2025
as passed by this court in WPA 17757 of 2024 (Sadhan Narayan
Kundu and others vs. The State of West Bengal and others). The
relevant portion of the judgment of Sadhan Narayan Kundu (supra) is
quoted hereinbelow in verbatim:
“21. On careful consideration of the entire materials as placed before
this Court and after hearing the learned advocates for the contending
parties it appears to this Court that from page no.23 of the instant writ
petition it would reveal that in respect of the writ petitioners‟ land,
particulars of which has been mentioned at paragraph no.2 of the
instant writ petition, a notice under Section 4(1a) of Act II of 1948 was
published in the official gazette on July 26, 1991. As rightly argued by
Mr. Pan that as soon as such notice was published in the official
gazette, the requisitioned land of the writ petitioners‟ stood vested
absolutely with the State under Section 4(2) of Act II of 1948.
22. It is undisputed that on account of such acquisition, the writ
petitioners were not disbursed with any compensation. This Court has
noticed that by virtue of the Amendment Act of 1994 the validity of the
Act II of 1948 was extended till 31.03.1994. However, by the self
same Amendment Act, on and from 01.04.1994 the power of
requisition under
Section 3 of the Act II of 1948 was taken away. On perusal of the
amended provision of Section 7A of Act II of 1948 it reveals that
collector was empowered to make an award under Section 7(2) of Act
II of 1948 within the period of three years from the date of publication
of the notice under Section 4(1a) and in the event such award is not
12made within the said period, the said notice under Section 4(1a) would
lapse. The proviso of Section 7A of Act II of 1948 further mandates that
in the event the aforementioned notice have been published more than
two years before the commencement of the Amendment Act of 1994,
the award shall have to be made within a period of one year from the
date of commencement of the said Amendment Act.
23. On perusal of the entire materials as placed before this Court, this
Court has got no iota of doubt that on account of non-publication of the
award within the stipulated period as mentioned in Section 7A of Act II
of 1948 the notice as published under Section 4(1a) of Act II of 1948
lapsed in terms of the provision of Section 7A of the said Act of 1948.
Consequently, on account of such lapse of notice the vesting under
Section 4(2) of Act II of 1948 got vitiated.
24. At this juncture if I look to the provisions of Section 9(3A) and (3B)
of Act I of 1894 it appears that it is the legislative intent that in respect
of land requisitioned and acquisitioned under Act II of 1948, the
Collector shall serve notice to all such persons known or believed to be
interested in any such land for the purpose of determination of the
award under Section 11 of Act I of 1894. The first proviso of Section 9
(3B) of Act I of 1894 also postulates that the date of publication of
notice under Section 4 (1a) of Act II of 1948 would be the date of
reference for the purpose of determining the value of such land under
Act I of 1894. As noticed earlier that since the notice as has been
published under Section 4(1a) of Act II of 1948 lapsed, the collector
cannot determine the value of the acquisitioned and requisitioned land
under Act II of 1948 on the basis of the date of publication of such
lapsed notice. Undoubtedly, no award has also been made under
Section 11 of Act I of 1894 in respect of requisitioned and acquisitioned
land pursuant to the notice as has been annexed at page no.23 of the
instant writ petition since no notice under Section 9(3B) the Act I of
1894 was served upon the writ petitioners.
13
***
26. In view of the discussion made hereinabove and in view of the
proposition of law as enunciated in the case of Mahadeb Kahan
(supra) this Court holds that the justice would be sub-served if the
respondent no.3 is directed to initiate proceeding for acquiring land of
the writ petitioners particulars of which have been mentioned in
paragraph 2 of the instant writ petition as per the provision of the said
Act of 2013 and to complete such acquisition proceeding within a
stipulated time.”
28. Keeping in mind the aforementioned the legislative mandate as well
as my previous finding in the case of Sadhan Narayan Kundu
(supra), if I look to the factual aspects of this case, it reveals to this
court that undisputedly in respect of the schedule mentioned
property of the instant writ petition a notice under Section 3(1) was
published, for requisition of land in the relevant mouza including the
land of the writ petitioner, particulars of which has been mentioned
in the schedule of the instant writ petition. No material could be
placed before this court on behalf of the respondent State and its
instrumentalities that any notice under Section 4(1a) of Act II of 1948
was published thereafter.
29. Such being the position, this court has got no hesitation to hold that
the alleged vesting of the requisitioned land pursuant to publication
of notice under Section 3(1) of Act II of 1948 remains incomplete.
30. As rightly pointed out by Mr. Mukherjee, for the sake of argument
even if I accept that said vesting was completed at the relevant point
14
of time by publication of notice under Section 4(1a) of Act II of 1948,
in absence of any materials that any award has been made by the
jurisdictional Collector within the stipulated period of Section 7(A) of
Act II of 1948, this court is contrained to hold that the said notice
under Section 4(1a) of Act II of 1948 stood lapsed. Consequentially
the alleged vesting also stood lapsed.
31. At this juncture, the moot question arises for consideration is as to
whether the respondent authorities; more specifically the respondent
nos.8 to 10 authorities are at all justified in initiating the proceeding
under Section 10 of the said Act of 1964 against the writ petitioner.
32. At this juncture, I propose to look to Section 2(c) of the said Act of
1964 which defines „Highway‟ and the same is quoted hereinbelow in
verbatim:
“2. In this Act, unless there is anything repugnant in the subject
or context.-
(a) ..........
(b) ..........
(c) „Highway‟ means-
(1) Any Government road, or
(2) Any other road, street, path, way or land, other than a
national highway within the meaning of the National
Highways Act, 1956, which is declared by the State
Government to be a highway under section 3 and includes –
(i) The flanks, footpaths, pavements and drains
adjoining such highway;
15
(ii) All bridges, culverts, causeways,
carriageways and other structures built on or
across such highway; and
(iii) Any land in the possession of the State
Government or any other authority adjoining
such highway, used or intended to be used
for purposes of the highway;
(d) ………..
(e) ………..”
33. Section 3 of the said Act of 1964 is as under:
“3. (1) The State Government may, by notification in the
Official Gazette, declare any road, street, path, way or land
to be a highway.
(2) Such notification may specify the boundaries of such
highway.
(3) The Highway Authority may demarcate the boundaries
of the highway by placing the maintaining stones or other
suitable marks at intervals all along the highway in such
manner as may be prescribed.”
34. On perusal of the aforementioned two provisions of law, it reveals
that in the said Act of 1964, the legislations have given a definition of
„highway‟ which includes any land in the possession of the State
Government of any authority adjoining such highway used or
intended to be used for the purpose of highway.
35. On further perusal of the entire materials as placed before this
Court, it reveals that though in the report as filed in the instant writ
petition, a copy of certificate of possession of the requisitioned
property was annexed but from the pleadings of the instant writ
16
petition as well as from the various annexures, sufficient materials
have been placed before this Court that the writ petitioner and/or
her predecessor-in-interest that is her husband was/were in settled
possession of the schedule mentioned property which is why the
respondent no. 8/authority had issued a notice under Section 10(1)
of the said Act of 1964 and as a consequential action, the respondent
no. 10/authority had initiated a proceeding under Section 10(3) of
the said Act of 1964.
36. This Court has already observed that vesting in respect of the
schedule mentioned property has not been completed and even if, it
is completed, that stood lapsed on account of non-publication of
award under Section 7A of the said Act of 1964. In view of such, this
Court has got no hesitation to hold that the respondent/State and its
instrumentalities have miserably failed to establish that the schedule
mentioned property has been acquired in accordance with law.
37. Such being the position, this Court considers that the
respondents/authorities have got no right, title and interest over the
schedule mentioned property and they have also got no right to
disturb the peaceful possession of the writ petitioner even by
initiating a proceeding under Section 10 of the said Act of 1964.
38. In view of the discussion made hereinabove, the instant writ petition
succeeds and is hereby allowed.
39. Consequently, the entire proceedings being Misc. Case No.03 of 2024
as initiated under Section 10 of the West Bengal Highways Act, 1964
17
and as completed by respondent no. 10/authority and over which an
appeal is pending before the respondent no. 2/authority are hereby
quashed and set aside.
40. Consequently, the respondents/authorities and its instrumentalities
are hereby directed not to disturb the possession of the writ
petitioner in respect of the schedule mentioned property of the writ
petitioner without initiating a valid proceeding of acquisition under
Act XXX of 2013.
41. Since identical questions of facts and laws are involved in WPA 5750
of 2025, WPA 5752 of 2025 and WPA 5821 of 2025 and since, the
said writ petitions have been tagged with the instant writ petition,
the said writ petitions being WPA 5750 of 2025, WPA 5752 of 2025,
WPA 5821 of 2025 are also hereby allowed in the light of the
observation as made hereinabove.
42. With the aforementioned observations, the instant writ petitions
being WPA 5750 of 2025, WPA 5752 of 2025, WPA 5765 of 2025 and
WPA 5821 of 2025 are disposed of.
43. Urgent photostat certified copies of this order, if applied for, be
supplied to the parties upon compliance with all the necessary
formalities.
(PARTHA SARATHI SEN, J.)
s.biswas/Sourav