Calcutta High Court (Appellete Side)
Md. Rafik Mallick vs The State Of West Bengal & Ors on 28 November, 2019
Author: Subrata Talukdar
Bench: Subrata Talukdar
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28.11.2019 W.P. 21479 (W) of 2019
S.L.-1(KB)
Md. Rafik Mallick
-Versus-
The State of West Bengal & Ors.
Mr. Debasish Saha
Mr. Moniruzzaman
Mr. Sabyasachi Roy
... For the petitioner.
Mr. Susovan Sengupta
Mr. Manas Sadhu
... Ffor the State-respondents.
Party/parties is/are represented in the order of their name/names as printed above in the cause title.
Under challenge in this writ petition is the Notice dated 11th November, 2019 of the Assistant Engineer, Public Works Department (PWD), Hooghly Construction Division-I, Arambagh, Hooghly/the Respondent No.3 to the writ petition being Memo No.833, putting the writ petitioner along with 56 other persons on notice under Clause 10(1) of the West Bengal Highways Act, 1964 (for short the 1964 Act).
Mr. Saha, Learned Counsel for the petitioners, submits that the impugned notice in issue purports to initiate a proceeding under Clause 10 of the 1964 Act on the presumption that the petitioner is an encroacher of the land which pertains to a Public Highway/Road.
2Learned Counsel for the petitioner strongly disputes such presumption on the ground that the presumption carried by the impugned notice dated 11th November, 2019 is itself based on a statutory presumption that the 1964 Act shall only cover incidents of encroachment upon State Public Highways/Roads to the exclusion of legal owners of land.
Mr. Saha further submits that by a Report of the Amin attached to the office of the Block Land and Land Reforms Officer (BL&LRO), Pursurah, District: Hooghly, the land in issue being Plot No. 1969 measuring a total area of 08 decimals jointly owned by the petitioner and his brother was found to have been recorded in the name of its owners. Therefore, in view of the palpable recording of the names of the owners of the land in the Record of Rights (ROR) and recognised as such by the BL&LRO, Pursurah/the Respondent No.8 to the writ petition, the presumption under which the impugned Notice under Section 10 of the 1964 Act has been set into motion cannot be activated in law.
Mr. Sengupta, Learned Senior Government Advocate, submits that the writ petition is premature since the opportunity to present the stand of the petitioner before the authority concerned under the 1964 Act has been copiously laid down under Section 10 of the 1964 Act and requires to be 3 exhausted by the petitioner. Particularly referring to Section 10 Sub-section 3 of the 1964 Act, Mr. Sengupta submits that the petitioner shall be permitted to furnish the evidence in his defence before the Learned Magistrate.
Mr. Sengupta submits that there is an equal presumption that the Notice under Section 10 of the 1964 Act would not have been issued in the event the land was not declared to be a Highway as provided by Section 3 of the 1964 Act and, was additionally not a Highway as defined under Section 2(c) of the 1964 Act.
Having heard the parties and considering the materials placed, this Court must read the substantive Sections of the 1964 Act in the light of its Preamble. The Object and Reason of the 1964 Act is to prevent encroachment and remove encroachment and to perform other incidental matters connected to the maintenance and control of State Highways.
In the above view of the matter, this Court is of the view that the provisions of the 1964 Act can be ushered in only after satisfaction of the Competent Authority that the user of the land is not the lawful owner. To the mind of this Court at this stage, the proceedings under Section 10 of the 1964 Act only come into play in the event the land of the petitioner is 4 declared to be part of a Public Highway/Road which would have the effect of treating the petitioner as an encroacher.
In the facts of the present case, this Court is therefore persuaded to accept the stand of the petitioner that inclusion of his name as an encroacher in the list of 57 names ignoring the land records, is an action without jurisdiction, a point also tested during arguments by Learned State Counsel.
In the above view of the matter, there shall be an interim order in terms of prayer (g) of the writ petition in respect of only the land claimed by the petitoner, till the end of January, 2020 or, until further orders, whichever is earlier.
Learned State Counsel is permitted to place on record the steps taken to declare the land of the petitioner as a Highway under Section 3 of the 1964 Act along with steps also taken to demarcate and mark the boundaries of such Highway by placing and maintaining stones or other suitable marks at intervals all along the Highway as prescribed by Chapter II of the 1964 Act by way of a sworn Affidavit of the authority competent on the next date with an advance copy served to the petitioner.
The petitioner shall be entitled to respond to the Affidavit by way of a Reply Affidavit with an advance copy served to Learned State Counsel.
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Let the matter next return under the heading "For Orders" in the Combined Monthly List of January, 2020.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties on compliance of necessary formalitis.
(Subrata Talukdar, J.)