Calcutta High Court
The State Of West Bengal vs Shiladitya Banerjee And Ors on 13 February, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
APOT 277 of 2025
IA NO. GA/1/2025
THE STATE OF WEST BENGAL
VS
SHILADITYA BANERJEE AND ORS.
For the Appellant : Mr. Kishore Dutta, Ld. Advocate General
Mr. Partha Pratim Roy, Adv.
Mr. Biswaroop Bhattacharyya, Adv.
Ms. Nilanjana Adhya, Adv.
Mr. Paritosh Sinha, Adv.
Mr. Debayan Sen, Adv.
Mr. Niket Ojha, Adv.
Ms. Swagata Ghosh, Adv.
For the Respondent 1 & 3: Mr. S.N. Mookherjee, Sr. Adv.
Mr. Sabyasachi Sen, Adv.
Mr. Rajarshi Dutta, Adv.
For the Respondent 2 : Mr. Pranit Bag, Adv.
Mr. Ramanuj Roy Chowdhuri, Adv.
For the Respondent 6 : Mr. Swapan Nath, Adv.
Mr. Rachit Lakhmani, Adv.
Ms. Shreyasi Nath, Adv.
Hearing Concluded on : February 11, 2026
Judgement on : February 13, 2026
DEBANGSU BASAK, J.:-
1. Appellant has assailed the order dated September 11, 2025
passed in EC 7 of 2025, in this appeal.
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2. Learned Advocate General appearing for the appellant has
contended that, the state acquired the properties belonging to the
respondents invoking the provisions of the West Bengal Land
(Requisition and Acquisition) Act, 1948. The Collector has passed an
award on February 28, 1997 with regard to such acquisition.
3. Parties had made a reference to the Land Acquisition Court and
such reference was disposed of by the judgment and order dated
August 17, 2001. The respondents had filed an execution petition
before the Alipore Court in 2005 seeking to execute the award dated
February 28, 1997. Appellant had preferred an appeal from the
judgement and order dated August 17, 2001. In such appeal,
appellant had made a deposit before the Registrar General of this
Hon’ble Court on September 7, 2017.
4. Learned Advocate General has drawn the attention of the
Court to the order passed by the Appeal Court on September 8, 2017
as also subsequent developments with regard to the execution
proceedings.
5. Learned Advocate General has submitted that, the
respondents filed an execution petition in the High Court. He has
contended that, the second execution petition is not maintainable.
On the issue of maintainability, he has contended that, not only a
second execution petition is not maintainable but also this Court
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has no jurisdiction to entertain such execution petition as this Court
did not pass the decree dated August 17, 2001.
6. Learned Advocate General has contended that, the
respondents cannot overlook the money deposited with the Collector
as well as the Registrar General. Such money deposits have to be
adjusted from decretal amount.
7. Learned Advocate General has relied upon AIR 1976 Calcutta
341(Gopal Krishna Mukherjee and Others Vs. The State of West
Bengal and Others), 2003 1 CHN 323(Rama Kanta Das & Ors.
Vs. State of West Bengal & Ors) and 2006 Volume 8 SCC
457(Gurpreet Singh Vs. Union of India), in support of his
contentions.
8. Learned Senior Advocate appearing for the respondent No.1
and 3 has contended that, neither the Land Acquisition Act, 1894
nor the West Bengal Land (Requisition and Acquisition) Act, 1948
provide any mechanism for execution of an award passed
thereunder. He has relied upon Section 3(d), 18, 25, 53 and 54 of the
Act of 1894 in support of his contentions. He has also relied upon
Section 8A of the West Bengal Land (Requisition and Acquisition)
Act, 1948.
9. Learned Senior Advocate appearing for the respondents 1 and
3 has relied upon 2018 3 SCC 622 (Sundaram Finance Limited
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Versus Abdul Samad and Another) and 2022 14 SCC 417
(Gurpreet Singh Versus Union of India) in support of his
contentions that the award passed under the Act of 1948 is a
deemed decree and cannot be equated with a decree passed under
the provisions of the Code of Civil Procedure, 1908.
10. Appellant had initiated acquisition proceedings in respect of
Premises No. 96, Narkeldanga Main Road, Kolkata under the
provisions of the Act of 1948. The first Land Acquisition Collector
had made and published an award dated February 20, 1997. One of
the owners of the immovable property concerned, being aggrieved, by
the award, had made an application under Section 8(1) of the Act of
1948 requiring the matter to be referred to the Court. Consequently,
the Collector had referred the disputes with regard to the award as
raised by such owner to the Court, under the provisions of the Act of
1948.
11. The reference under Section 8(1) was registered as LRA Case
No. 177 of 1999 by the Special Land Acquisition Judge at Alipore. By
a judgment and order dated August 17, 2001, the Learned Judge
had modified the award by enhancing the amount of compensation.
12. Being aggrieved by the judgment and order dated August 17,
2001, appellant had preferred an appeal to the High Court. The High
Court had passed an order dated September 05, 2017 where, stay of
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execution case arising out of LRA Case No. 177 of 1999 was granted
on condition of deposit of the amount specified.
13. Appellant in terms with the directions of the High Court had
deposited the sum of Rs. 4,11,59,371/- with the Learned Registrar
General on September 07, 2017.
14. By an order dated December 02, 2024 the High Court had
disposed of the appeal by enhancing the Market Price of the acquired
land to Rs. 4,00,000/- per cottah.
15. Appellant had preferred a Special Leave Petition directed
against the judgment and order dated December 02, 2024 of the
High Court which was dismissed on August 29, 2025.
16. The issues that have fallen for consideration in this appeal
are as follows:-
i. Whether the respondents can apply for execution of the award
for the second time?
ii. Whether the second execution petition filed before the High
Court in its original side is maintainable in view of the award
being enhanced on appeal by the Reference Court at Alipore?
17. As has been noted above, the acquisition proceedings had
been initiated under the provisions of the Act of 1948. Section 2(b) of
the Act of 1948 has defined the Court to mean the Principal Civil
Court of the original jurisdiction and to include the Court of
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Additional Judge, subordinate Judge or Munsiff. Section 4 of the Act
of 1948 has empowered the State to acquire any land which has
been requisitioned under Section 3 thereof. Section 7 of the Act of
1948 has laid down the quantification of compensation payable with
regard to the land acquired under Section 4. Section 8 of the Act of
1948 has provided for a mechanism where, the owner of the property
may be aggrieved by the award made by the Collector. Collector has
been empowered under Section 7 (2) of the Act of 1948 to pass an
award with regard to the amount of compensation payable in respect
of the acquisition made. Under Sub-Section(1) of Section 8, the
Collector has been empowered to make a reference to the Court
within the meaning of Section 2(b) of the Act of 1948, if a person
aggrieved by an award made under Section 7(2) of the Act of 1948
applies to him for such purpose.
18. Sub-Section (2) of Section 8 of the Act of 1948 has laid down
that the provisions of the Act of 1894 shall be applied mutatis
mutandis in respect of reference made under Section 8(1). Section 8A
of the Act of 1948 has specified that the provisions of the Code of
Civil Procedure, 1908 shall apply to an award made by the Court in
reference under Section 8(1). The same does not make the award in
the reference, a decree of a Civil Court within the meaning of Section
38 of the Code of Civil Procedure, 1908.
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19. Section 3(d) of the Act of 1894 has defined the Court which
will deal with the reference made under Section 8(1). Section 18 of
the Act of 1894 has dealt with a reference made to Court. Section 25
of the Act of 1894 has specified that the amount of compensation
awarded by the Court will not be lowered below the amount awarded
by the Collector. Section 54 of the Act of 1948 has specified that, an
appeal shall lie to the High Court in respect of any proceedings
under the Act of 1894 from the award, or from any part of the award
of the Court.
20. Acquisition proceeding initiated under the Act of 1948 is not
a Civil suit within the meaning of Section 9 of the Code of Civil
Procedure, 1908. Collector adjudicating on the quantum of
compensation payable for the acquisition made by publishing the
award, is not a civil court adjudicating upon a lis under Section 9 of
the Code of Civil Procedure, 1908. The award, therefore, of the
Collector, cannot be said to be a decree passed by a Civil Court.
21. In the facts of the present case, one of the owners of the
immovable property concerned was aggrieved by the quantum of the
award passed by the Collector and applied for making the reference
to Court, which was done. Reference Court had enhanced the award
on August 17, 2001. Appeal against such order of the reference
Court had resulted in further enhancing of the awarded amount on
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December 02, 2024. Special Leave Petition directed against such
order dated December 02, 2024 had been dismissed on August 29,
2024.
22. The award holder, therefore, is entitled to execute the award
before a Civil Court. Neither the Act of 1948 nor the Act of 1894 has
any mechanism for execution of the award. In order to avoid such
lacunae it has been provided that, the award would be treated as a
decree of the Court and executed as such.
23. It is a trite law that so long as the decree remain outstanding,
any number of execution petitions are permissible. In the facts of the
present case, one execution petition was filed by the respondent
before the Alipore Court. Such execution petition did not result in
the satisfaction of the award.
24. Appellant has instituted the second execution petition before
the High Court in its Original Side. It is not the case of the appellant
before us that, the award stands satisfied.
25. So long as the award remains unsatisfied, we find no reasons
as to why the respondent cannot file the second execution petition to
realize the awarded amount. The first issue is therefore answered by
holding that, a second execution petition is maintainable in the
event, the awarded amount remains unsatisfied.
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26. Gopal Krishna Mukherjee and Others (supra) has
considered a revisional application under Section 115 of the Code of
Civil Procedure, 1908 assailing an order rejecting the application for
review of the award. The revisional Court has held that, since, the
Code of Civil Procedure, 1908 is applicable to the reference
proceedings under the Act of 1948 therefore, such Court has the
power to review its award.
27. In a writ petition, seeking to execute the decree passed on
reference, by way of a writ petition, Ramakanta Das and Others
(supra) has held that, such decree is executable under Section 26(2)
of the Act of 1894. Section 26(2) of the Act of 1894 has clothed the
award passed under the Act of 1894 with the legal fiction of a decree.
It has therefore, acknowledged that, the award per se is not a decree
of the Court and therefore has gone on to clothe the award as a
decree of a Court in order to facilitate its execution.
28. Gurpreet Singh (supra) has dwelt upon the manner and
adjustment of enhanced amount. In the fact of this case, the issue
of adjustment and the quantum of dues under the award remaining
unpaid be best left for decision by the executing Court.
29. Bhagyoday Cooperative Bank Limited (supra) has held
that, Sections 38 and 39 of the Code of Civil Procedure, 1908 do not
apply to the case of deemed decree which have not been passed by
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the Court such as deemed decree under Section 103 of the Gujarat
Cooperative Societies Act, 1961 or under Section 36 of the
Arbitration and Conciliation Act, 1996.
30. Sundaram Finance Limited (supra) has held that,
execution or enforcement of an arbitral award can be filed anywhere
in the country where such decree can be executed. It has also held
that, there is no requirement for obtaining transfer of decree from
the Court which has jurisdiction over the arbitral proceedings or the
award or whose jurisdiction was passed.
31. Section 38 of the Code of Civil Procedure, 1908 comes into
operation when, the decree is passed by a Civil Court. It does not
stand attracted, in the event, the award or the order put into
execution, by a legal fiction, is treated as a decree of a Civil Court
when, no Civil Court did actually pass the award or order put into
execution. In other words, when, an award or an order is treated as
a decree of a Court, by legal fiction, then, Section 38 of the Code of
Civil Procedure is not attracted.
32. In the facts and circumstances of the present case, Section
38 of the Code of Civil Procedure, 1908 is not attracted.
33. The award which is ultimately put in execution, was passed
by the Collector and has been clothed as a decree, by virtue of a legal
fiction being created under Section 26(2) of the Act of 1894. The
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award is not a decree passed by a Court to fall within the parameters
of Sections 38 and 39 of the Code of Civil Procedure, 1908. In any
event, a deemed decree does not come within the meaning of Section
38 of the Code of Civil Procedure, 1908.
34. It is not the case of the appellant that it has no assets within
the ordinary original civil jurisdiction of the High Court where the
award was put into execution by the respondent.
35. In view of the discussions above, the second issue is
answered by holding that, the execution petition filed by the
respondent before the High Court, is maintainable in view of the fact
that, the award was passed by the Collector, enhanced on reference
and, further enhanced on appeal by the High Court. Principally, the
award partakes the character of a decree by legal fiction and does
not fall within the meaning of Section 38 of the Code of Civil
Procedure, 1908.
36. In such circumstances, the execution petition filed before this
Hon’ble Court is maintainable. Learned Executing Court has directed
payment to be made. We find no ground to interfere with the
directions issued by the Learned Executing Court.
37. During the pendency of the appeal, orders have been passed
with regard to the amount payable. We clarify that we have not
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adjudicated on the amount receivable by respondents in terms of the
award. We keep such points open.
38. APOT No. 277 of 2025 along with all connected applications
are dismissed without any order as to costs.
[DEBANGSU BASAK, J.]
39. I agree.
[MD. SHABBAR RASHIDI, J.]