09.01.2025 Ct. no.39 Sl. No.10 ss IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION (Appellate Side) W.P.A. 6344 of 2023 Nilima Mukherjee & anr. Vs. The State of West Bengal & ors. Mr. Partha Pratim Roy Ms. Poulami Chakraborty … for the petitioners Mr. Soumitra Bandopadhyay Mr. Priyabrata Batabyal Ms. Suchana Banerjee … for the State-respondents Mr. Supratim Dhar, Sr. Adv. Mr. Tirupati Mukherhee Ms. Megha Sarkar … for the respondent nos.7 & 8 Mr. Subrata Bhattacharjya … for the respondent no.5 Ms. Manika Roy Ms. Ankita Chowdhury Mr. Atanu Sur … for the respondent no.4-NHAI This writ petition has been filed under Article 226 of the Constitution of India seeking direction upon the respondent authorities to disburse the proportionate share of compensation to the petitioners in respect of the land situated at District Paschim Burdwan, Police Station Pandabeswar, Mouza Dalurbandh, J.L. No.4, R.S. Plot No.1523 or in the alternative to refer the dispute to the principal Civil Court in view of the provisions laid down in Section 3H(4) of the National 2 Highways Act, 1956 (hereinafter inferred to in short as NH Act, 1956) The brief fact of the petitioners’ case is as follows. The property lying and situated at District Paschim Burdwan, Police Station Pandabeswar, Mouza Dalurbandh, J.L. No.4, R.S. Plot No.1523 originally belonged to late Bhaktipada Chatterjee and after his demise the petitioners and their two brothers namely, respondent nos.7 and 8 became the owners in respect of the proportionate share by way of inheritance. The National Highways authorities initiated L.A. Case No.3/NH-60/16-17 for construction of National Highway 60 and declared award of compensation amounting to Rs.86,40,738/- (Rupees Eighty Six Lakhs Forty Thousand Seven Hundred and Thirty Eight) on 4th January, 2019. Bhaktipada Chatterjee died on 18th June, 2018 leaving behind the petitioners and the respondent nos.7 and 8 as his only legal heirs. It is categorical contention of the petitioners that the private respondent nos.7 and 8 have illegally received the entire compensation amount awarded in favour of late Bhaktipada Chatterjee although the petitioners and the private respondents were entitled to 1/5th share each over the said compensation amount. On 16th November, 2022 the petitioners submitted a representation before the competent authority under the NH Act, 1956 for 3 redressal of their grievance. Since the grievance of the petitioners was not addressed, the petitioners have preferred the present writ application. The private respondent nos.7 and 8 have contested the writ petition denying, inter alia, the fact asserted by the petitioners and contended that the writ petitioners have suppressed the material facts before the Court inasmuch as they failed to disclose that the predecessor-in-interest of the petitioners and the respondent nos.7 and 8 executed a Will in relation to which a probate proceeding has been initiated wherein the petitioners have entered appearance and are contesting the same. The petitioners also failed to disclose that a civil suit has also been filed by the private respondent nos.7 and 8 being Title Suit No.59 of 2023 against the writ petitioners before the learned Civil Judge (Junior Division), 1st Court at Durgapur. The writ petitioners have also not disclosed that at the instance of the petitioner no.1 a criminal complaint has been initiated in view of order passed in an application under Section 156(3) of the Code of Criminal Procedure and a case has been registered being Durgapur Police Station Case No.134 of 2023 dated 3rd March, 2023 against the respondent nos.7 and 8. As per the report of the State- respondents there is no procedural laches in disbursement of the amount of compensation in favour 4 of the awardees. Thus, the writ petition is devoid of merit and should be dismissed in limine. Mr. Partha Pratim Roy, learned Advocate appearing for the petitioners submits that the award has been declared on 4th January, 2019 after the demise of Bhaktipada Chatterjee who died on 18th June, 2018. The entire amount of compensation awarded in favour of Bhaktipada Chaterjee has been credited to a joint account standing in the name of Bhaktipada Chatterjee (deceased) and Deb Kumar Chatterjee (being A/c. No.SB 494129486 in the Indian Bank). The fact of death of Bhaktipada Chatterjee was neither brought to the notice of the authorities nor the bank concerned and the entire amount of compensation in the name of late Bhaktipada Chatterjee was illegally received by the respondent nos.7 and 8. The joint account was kept alive with an ulterior motive to receive such compensation amount. The petitioners being the daughters of the late Bhaktipada Chatterjee are entitled to their proportional share. As per Section 3H(4) of the NH Act, 1956 in the event of any dispute as to the apportionment of the amount, the competent authority shall refer the dispute to the decision of the Principal Civil Court of Original jurisdiction within the locality of whose jurisdiction the land is situated. Although the petitioners raised such issue before the competent authority but it failed to take 5 any step in terms of the above provision. To buttress his contention he relies on the decisions of this Court passed in Dilip Kumar Dutta versus State of West Bengal, reported in 2018(4) CHN (CAL) 9 and in the case of Santosh Mallick versus State of West Bengal & ors., reported in 2023 SCC OnLine Cal 305. He seeks for appropriate order for disbursement of the compensation award declared in favour of late Bhaktipada Chatterjee upon apportionment in favour of the petitioners or in the alternative, the dispute be referred to the principal Civil Court as per Section 3H(4) of the NH Act, 1956. In reply to the contentions raised on behalf of the petitioners, Mr. Supratim Dhar, learned Senior Advocate appearing for the respondent nos.7 and 8 submits that as per the report of the State authorities the bank details and mandate for e-payment with proof of identity was submitted before the authorities by Bhaktipada Chatterjee during his lifetime. Therefore, the State authorities have rightly disbursed the amount in favour of the awardees by way of e-payment. Thus, there cannot be any illegality, in the procedural aspect, attributed to the State authorities. He also indicates that Bhaktipada Chatterjee during his lifetime executed a Will on 21st November, 2017 and the respondent nos.7 and 8 have filed an application for grant of probate of 6 the said Will, which has been transferred to the Additional District Judge, 1st Court, Paschim Bardhaman at Asansol for disposal and on appearance of the petitioners, the matter has become contentious. Such fact has not been disclosed in the writ petition. The writ petitioners have also failed to indicate of a civil suit pending before the Durgapur Court and a criminal complaint filed at the instance of the petitioner no.1. Such suppression of material facts amount to acting fraud on Court. A person who does not come to Court with clean hands cannot pray for equity and ask for invocation of discriminatory jurisdiction under Article 226 of the Constitution of India. In support of his contention he relies on the following decisions of the Hon’ble Supreme Court: 1. (2008) 12 SCC 481 (K. D. Sharma versus Steel Authority of India Limited & ors.); 2. (2022) 12 SCC 815 (K. Jayaram and ors. versus Bangalore Development Authority & ors.). He also submits that the petitioners have not disputed or denied the contentions of the respondent nos.7 and 8 made in paragraphs 3 and 5 of the affidavit- in-opposition regarding suppression of material facts and making incorrect statement and therefore, the doctrine of non-traverse applies to the same. He seeks that the writ petition should be dismissed with 7 exemplary costs for suppression of materials facts before the Writ Court. Ms. Manika Roy, learned Advocate appearing on behalf of the respondent no.4-NHAI submits that the dispute is inter se between the parties. The amount of compensation has already been disbursed in favour of the awardees. Mr. Priyabrata Batabyal, learned Advocate led by Mr. Soumitra Bandopadhyay, learned Advocate representing the State-respondent submits that the State, following the procedures, has credited the amount of compensation in the joint account of the awardees furnished before the authorities in the mandate form for disbursement through e-payment. The action of the State-respondent cannot be called into question since the mandate was submitted by the awardees themselves. Having heard the learned Advocates for the respective parties, the only issue which has fallen for consideration is whether the disbursement of entire compensation amount of the award in the name of late Bhaktipada Chatterjee and received by the respondent nos.7 and 8 is sustainable or not. Admittedly, an award was declared on 4th January, 2019 after the death of Bhaktipada Chatterjee, the predecessor-in-interest of the petitioners and 8 respondent nos.7 and 8, on 18th June, 2018. Thereafter, the award has been credited to the joint account standing in the name of Bhaktipada Chatterjee, (deceased) and Deb Kumar Chatterjee (being account No. SB 494129486 in the Indian Bank). It is also not in dispute that prior to his death, Bhaktipada Chatterjee submitted the mandate for e-payment with account details on 12th July, 2017. As per report of the State authorities the death of Bhaktipada Chatterjee was not informed to the State authorities. It is also relevant to note that the other account holder of the joint account namely, Deb Kumar Chatterjee, respondent no.8 herein, neither has informed the State authorities of the death of Bhaktipada Chatterjee nor has informed the bank authorities of such factum of death of Bhaktipada Chatterjee. The joint account where the amount of compensation has been credited was allowed to continue and was kept alive and had thus led to deposit of entire compensation amount in respect of award declared in the name of Bhaktipada Chaterjee in the said joint account, after his demise. Had the fact of death of Bhaktipada Chaterjee been informed to the competent authority prior to declaration of the award or to the bank authorities the consequence would have been otherwise. 9 It was incumbent upon the two sons Asis Chatterjee and Deb Kumar Chatterjee, respondent nos.7 and 8, respectively, to inform the factum of death of their late father before the State authorities prior to disbursement or on the date the award was declared or thereafter on credit of the amount of compensation. For non-disclosure of the factum of death such complication has arisen which led to filing of writ petition. This Court is not oblivious to this fact that there are certain non-disclosure of the facts by the petitioners as has been rightly pointed out by Mr. Dhar, learned Senior Advocate appearing on behalf of the respondent nos.7 and 8. Relying on the decisions of K.D. Sharma (supra) and K. Jayaram & ors.(supra) he has also tried to demonstrate the consequence of such suppression of material facts. Be that as it may bearing in mind the peculiar circumstances involved in this case, it would not be appropriate to allow continuance of the illegality/ discrepancies which was crept in for want of disclosure of the fact of death of Baktipada Chatterjee before the authorities. Accordingly, this Court finds substance in the submissions of Mr. Roy, learned Advocate for the petitioners relies in on the decision of this Court in the case of Dilip Kumar(supra), Santosh Mallick (supra) respectively. 10 Section 3H (4) of NH Act, 1956 provides 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. Accordingly, bearing in mind the aforesaid provision, the respondent nos.7 and 8 are directed to deposit the entire compensation amount of Rs.86,40,738/- with Competent Authority under NH Act, 1956 & Additional District Magistrate (LA), Purba Bardhaman credited in the joint account in the name of Bhaktipada Chatterjee and Deb Kumar Chatterjee (being A/c. No.SB 494129486 in the Indian Bank) together with accrued interest within a period of four weeks from date. The petitioners are granted liberty to raise the dispute with regard to apportioinment of the aforementioned amount before the Competent Authority under NH Act, 1956 & Additional District Magistrate (LA), Purba Bardhaman. Upon such deposit being made and on application being made by the petitioners, raising such dispute of apportionment, the Competent Authority under NH Act, 1956 & Additional District Magistrate (LA), Purba 11 Bardhaman under NH Act, 1956 shall refer the matter to the learned District Judge, Paschim Bardhaman invoking the provisions of Section 3H(4) of the National Highways Act, 1956 and the learned District Judge shall dispose of the matter, in accordance with law. The Competent Authority under NH Act, 1956 & Additional District Magistrate (LA), Purba Bardhaman shall invest the said amount in short-term fixed deposit to be opened in a nationalised bank and keep the same amount renewed from time to time till dispute with regard to apportionment is decided by the Learned District Judge. With the above observations, the writ petition being WPA 6344 of 2023 is disposed of. All connected applications, if any, stand disposed of. There will be, however, no order as to costs. Interim order, if any, stands vacated. All concerned parties shall act in terms of the copy of the order duly downloaded from the official website of this Court. Urgent photostat copy of this order, if applied for, be given to the parties upon compliance of necessary legal formalities. < (Bivas Pattanayak, J.)