w w w . L a w y e r S e r v i c e s . i n



Bhajan Saha & Others v/s The State of West Bengal & Others


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    W.P. No. 16776 (W) of 2016

    Decided On, 08 January 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE PROTIK PRAKASH BANERJEE

    For the Appearing Parties: Ayan Banerjee, Soumo Chowdhury, Debarshee Dhamali, Bidyut Baran Biswas, Partha Sarathi Bhattacharya, Sipra Majumder, Srilekha Bhattacharyya, Advocates, Ansar Mondal, Ld. Additional Government Pleader.



Judgment Text

1. This writ petition has been instituted under Article 226 of the Constitution of India by the writ petitioners against the respondents principally for the following reliefs, for which Rule Nisi has been sought: -

(i) A writ of and/or order and/or direction in the nature of Mandamus do issue commanding the respondents authorities, each one of them, their men, agents, servants, subordinates and/or assigns and more particularly Respondent No. 2 to refer the dispute raised by the petitioners regarding payment of compensation against the petitioners' plots of land to the concerned Principal Civil Court as required under section 3H(4) of the National Highways Act, 1956.

(ii) A writ in the nature of prohibition restraining the respondents from disbursing the compensation in respect of the plot of the petitioners to anybody till the disposal of the writ application. There are other prayers but they need not detain us.

2. It appears that the writ petitioners sought this reference from the respondent authorities particularly the competent authority (respondent no. 2) before disbursement of the amount and a hearing was granted by a notice dated December 29, 2015 on January 4, 2016. On such date hearing was given to the petitioners but pursuant to the said meeting, the respondent no. 2 has held the private respondents as the only persons eligible to the said amount and have refused to refer the dispute. The decision of the respondent no. 2 has not been annexed.

3. Since the writ petitioners have prayed for reference of a dispute under Section 3H(4) of the National Highways Act, 1956 perhaps a consideration of Section 3H itself should be apposite. Section 3Hprovides as follows: -

Deposit and payment of amount:-

(1) The amount determined under section 3G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land.

(2) As soon as may be after the amount has been deposited under sub- section (1), the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto.

(3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority 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) Where the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent, per annum on such excess amount from the date of taking possession under section 3D till the date of the actual deposit thereof.

(6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of sub-sections (2) to (4) shall apply to such deposit.

4. Therefore, the following things are necessary for a dispute to be referred to the principal civil court within the meaning of Section 3H(4) of the Act of 1956:

a) more than one person claiming to be entitled to the amount deposited,

b) a decision by the competent authority who in its opinion are entitled to receive the amount payable to each of them,

c) a dispute arising as to the apportionment of the amount or any part thereof or to whom the same or any part is payable and

d) the payment being postponed to the dispute being decided.

5. If for any reason any of these factors are absent, an essential condition for reference under Section 3H(4) shall not exist. Accordingly, no reference shall be made.

6. In the present case, the writ petitioners claim to be transferees from one of the two brothers of the owner of the land in question, a lady who purchased some land in execution of a decree in a money suit which had been brought by the zamindars, who had filed it before the original owners/raiyats. He claims to have 2/5th share of that brother. He claims that the auction purchaser who purchased 30 decimals of land, sold 10 decimals of the land in equal shares to her two brothers, and each had only 5 decimals. However, due to amistake only one of the brothers was recorded in the record of rights as the owner of the said 10 decimals of land, instead of both the brothers having 5 decimals each. The private respondents No.3 to 7 are fortunate enough to be the transferees of this brother, whose name is recorded, one Satyohari Chattopadhyay while the writ petitioners are unfortunate enough to be the transferee of the other brother, Tarapada Chattopadhyay. Hence, they say that the private respondents cannot appropriate the entire amount deposited for the said land and building but they must be given half of it and since the competent authority has not decided this, they are asking for a dispute to be referred.

7. Had this been the entirety of the case, perhaps the writ petitioners would have had an easy task. Unfortunately, the writ petitioners have themselves committed suicide in law. They instituted a partition suit being T.S. No. 32 of 2001 before the Learned civil judge (Senior Division), 2nd Court at Krishnanagar without seeking correction of the record of rights and the learned civil court, admittedly and on the face of the records, dismissed the suit on the ground that the petitioners were unable to prove that they were co-owners of the said property. The writ petitioners have preferred a title appeal being Title Appeal No.50 of 2014 against it and it is pending. The private respondents are respondents therein.

8. Every suit for partition seeks a preliminary decree for determination of the shares of a party in the property. Thus, every suit for partition is a suit where a declaration of the title of a party is implied. If the suit is dismissed, then the plaintiff has failed to prove his title to the property. In the present case, the writ petitioners did not claim any interest in the property short of title. Once they have failed to prove their title to the property, they cannot therefore allege that they are interested in the property or entitled to any apportionment of the said amount, before reversal of the said decree of the civil court in the title appeal. The dispute stays inchoate. It would have been a separate case if they had asserted co-ownership and the suit was either pending or preliminary decree had been passed or even the suit had been finally decreed. Therefore, they do not have any right to seek reference of the matter under Section 3H(4) of the said Act of 1956 because there is no dispute in the eye of law now.

9. I note the submissions made by the learned advocate for the Writ Petitioners only to reject it.

10. First, the dispute under Section 3H(4) of the Act of 1956 is statutory and independent of any suit for partition, and regardless of what has happened in the said suit, inter partes, the statutory right of reference cannot be taken away. The only problem with this ground is, if the statutory dispute was on any point other than "ownership" such as if the petitioners had alleged that they were in possession, and then wanted compensation for possession, then perhaps this argument could have been made. Once the petitioners themselves asserted that they were owners, filed a suit, and then suffered a dismissal, and preferred an appeal, until the appeal is allowed, they have suffered a dismissal and are to be held not to have title and therefore no ground to maintain the dispute.

11. The second is that an appeal is a continuation of a suit and since the appeal is pending this should be considered to be a continuance of the dispute as to title. To hold that would be to negate the effect of an adjudication of a title finally. That can always be done after and if the appeal is allowed. After all of what the writ petitioners are now seeking are a relief in money since all they will get even if they succeed in the appeal is a proportion of the acquisition compensation under the Act of 1956.

12. The writ petitioners have relied upon Makali Engg Works Pvt. Ltd--v--Dalhousie Properties Ltd reported in (2006) 1 CHN 419 equivalent to 2000 SCC Online Cal 512. I cannot understand why they have relied upon it and for what arcane reason. It does not appear to be on any question argued before me or arising in this case. The writ petitioners have also relied upon Mohanlal Nanabhai Choksi--v--State of Gujarat reported in (2010) 12 SCC 726. This too does not seem to apply.

13. The State of West Bengal has submitted that already the amount in question has been paid to the private respondents and the writ petitioners do not dispute it. The State of West Bengal submitted that merely for academic reason this petition ought not to be entertained. The private respondents submit all that I have held above alongwith a slightly different twist of the first point taken by the State of West Bengal. They say that once the amount has been disbursed by the competent authority after holding who is entitled under Section 3H(3) of the Act of 1956, he has no jurisdiction to refer t

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he matter under Section 3H(4) of the Act of 1956. 14. I do not decide these other questions referred to in paragraph 13 of this judgment. This is because for the reasons I have stated in paragraphs 7, 8, 10, 11 and 12 the writ petitioners cannot succeed and I do not need to go into these questions. 15. I do not say that the writ petitioners should be without remedy in the eventuality they succeed in their Title Appeal No.50 of 2014. They can always seek restitution from the private respondents of such proportion of the amount as the writ petitioners are entitled to from the amount deposited and given by the competent authority on behalf of the National Highways Authority. 16. The writ petition is accordingly dismissed. I make it clear that nothing contained herein shall influence or being held to have been an observation on the merits of the case before the learned civil court in Title Appeal No.50 of 2014 nor have I decided any question on merits and all of these are free to be decided by the learned civil court. There shall be no order as to costs.
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