Calcutta High Court (Appellete Side)
Shib Sankar Hazra & Ors vs The State Of West Bengal & Ors on 30 August, 2023
Dd 08 30.08.2023
FMA 94 of 2019
Shib Sankar Hazra & Ors.
Vs.
The State of West Bengal & Ors.
Ms. Sohini Chakraborty,
Mr. Falguni Maji, Advocates
... ... For the Appellants
Ms. Manika Roy, Advocate
... ... For the NHAI
Mr. Uttiya Ray,
Mr. Arnab Mandal, Advocates
... ...For the respondent nos. 4(a) to 4 (e)
The appeal is directed against the judgment and
order dated April 5, 2017 passed in WPA 2627(W) of
2003 by the learned single Judge.
By the impugned order, the learned single Judge
held that, nature dispute that the petitioners raised is
not comprehended within sub-section (5) of Section 3G
of the National Highways Act, 1956 (in short the Act of
1956). The learned Trial Judge also held that, it would
not be a fit and proper case where, at this distinct point
of time, the writ Court in exercise of its extraordinary
powers should direct the competent authority to refer
the matter to the arbitrator.
Learned advocate appearing for the appellants
submits that, an application was made in 2003 before
the competent authority requiring the appointment of
an arbitrator for the purpose of determining the amount
of compensation money to be awarded out of the total
amount of compensation receivable, to the appellants.
Learned advocate appearing for the appellants
submits that in the event, the application cannot be
considered to be one made under Section 3G(5) of the
Act of 1956 then, the application can be considered to
be made under Section 3H(4) of the Act of 1956. Since
the application was made within time, the competent
authority should be directed to comply with the
provisions of Section 3H(4) of the Act of 1956. The
time spent by the appellants in litigation, should be
directed to be deducted for the purpose of calculation of
the period of limitation. According to her, since the
application before the competent authority was made
within time, there is no question of limitation.
Moreover, quoting a wrong section will not deprive the
litigant the benefit of law. It was incumbent on the
authorities to apply the correct provisions of law and
act, in accordance with law.
National Highway Authority of India (NHAI) and
the private respondents are represented.
Learned advocate appearing for the NHAI submits
that, there was no dispute with regard to the
compensation paid. The dispute was essentially with
regard to apportionment between the private parties.
According to her, Section 3G(5) of the Act of 1956 is
not attracted.
Learned advocate for the private respondent
submits that, a considerable period of time elapsed
from the date of disbursement of the compensation. At
this late stage provisions of Section 3H(4) should not
be invoked in the present case.
We find from the records that the appellants
raised a dispute with regard to apportionment of
compensation received. Compensation awarded was
not disputed. Essentially, the quantum to be received
by the private parties out of the compensation
awarded, was in dispute. For such purpose, an
application stated to be under Section 3G(5) of the Act
of 1956 was made before the competent authority for
referring the disputes for arbitration. Section 3H(4) of
the Act of 1956 contemplates resolution of disputes
arising with regard to the apportionment or any part
thereof or to any person, the competent authority by
reference of such dispute to the decision of the principal
civil Court of original jurisdiction within the limit of
whose jurisdiction the land was situated.
The application made by the appellants before the
competent authority which was claimed to be under
Section 3G(5) of the Act of 1956 was essentially one
under Section 3H(4) of the Act of 1956. It is trite law
that quoting a wring section or a provision of law will
not disentitle a person to the reliefs as prayed for as
such person was entitled thereto in law.
In such circumstances, the competent authority
will treat the application made by the appellants sought
to be under Section 3G(5) of the Act of 1956 to be one
under Section 3H(4) of the Act of 1956 and pass
appropriate order with regard thereto within four weeks
from the date of communication of this order.
We clarify that we did not enter into the merits of
the claims between the private parties in the appeal in
any manner whatsoever. We also clarify that we did
not enter into the question of limitation with regard to
the claim by the appellants under Section 3H(4). The
issue of limitation is kept open to be decided by the
appropriate forum.
FMA 94 of 2019 is disposed of accordingly
without any order as to costs.
(Debangsu Basak, J.)
(Md. Shabbar Rashidi, J.)
