Calcutta High Court (Appellete Side)
Gouri Saha & Ors vs State Of West Bengal & Ors on 8 January, 2025
08.012025
Item No.11
Court No.11
Avijit Mitra
MAT 2352 of 2024
with
IA No.CAN 1 of 2024
with
IA No.CAN 2 of 2024
Gouri Saha & ors.
-Versus-
State of West Bengal & ors.
Mr. Gangadhar Das,
Mr. Tanmoy Chattopadhyay,
Mr. Imdadul Hoque
...for the appellants
Mr. Nilotpal Chatterjee,
Mr. Saptak Sanyal
...for the State
Affidavit-of-service filed by the appellants be kept on
record.
This appeal challenges the order dated December 20,
2024, passed in Writ Petition WPA 30033 of 2024. By that
order, the writ petition was dismissed. The writ petition had
been filed to question the legality of the order dated October
20, 2024, passed by the District Magistrate, Malda, in a
statutory appeal under Section 10(4) of the West Bengal
Highways Act, 1964 (hereinafter referred to as the 'Act of
1964'). The writ petition also challenged the order dated August
2, 2022, passed by the Executive Magistrate, Chanchal, Malda,
in a proceeding initiated under Sections 10(3) and 11 of the Act
of 1964.
One Moslem Ali, the owner of a waterbody located
adjacent to the PWD Road, filed a complaint before the
competent authority alleging that certain individuals in the
locality had encroached on land belonging to the PWD Road
2
and were operating various stalls, thereby obstructing access to
his waterbody. Despite the receipt of this complaint, no
effective action was taken. As a result, Mr. Ali filed a writ
petition, WPA 18218(W) of 2021. By the time the writ petition
was heard, a proceeding under Section 10 of the Act of 1964
had already been initiated. In light of this, the writ petition was
disposed of by an order dated 5.1.2022, directing the concerned
authority to conclude the proceeding within three months from
the date of communication of the order.
Pursuant to the order dated January 5, 2022, the
Assistant Engineer issued a notice under Section 10(1) of the
Act of 1964, instructing the encroachers to remove their
unauthorized structures. However, no action was taken. As a
result, a proceeding, Case No. 01/ENC/PWD/2022, was
initiated under Sections 10(3) and 11 of the Act of 1964 against
the encroachers. The record reveals that this case was disposed
of based on a report from the B.L. & L.R.O., which stated that
Moslem Ali's waterbody is located on L.R. Plot No. 2716 of
Mouza Daulatpur, P.S. Harishchandrapur, District Malda. It
further indicated that L.R. Plot No. 2717 is part of the PWD
Road, and certain individuals, including the petitioners, had
encroached upon the PWD Road land, causing hindrances to
ingress and egress to the waterbody.
The appellants filed a statutory appeal under Section
10(4) of the Act of 1964 before the District Magistrate, which
was disposed of by a cryptic order dated October 13, 2023.
Consequently, the appellants challenged the order dated
October 13, 2023, in a writ petition (WPA 1897 of 2024), which
was disposed of by an order dated March 11, 2024. The order
3
dated 11.3.2024 directed the District Magistrate, Malda to
revisit the issue and pass a reasoned and detailed order,
considering the written notes of arguments submitted by the
appellants and providing a reasonable opportunity for hearing
to both the appellants and the private respondents. Following
this direction, the appeal was disposed of by an order dated October 24, 2024, which affirmed the order passed in Case No. 01 of 2024. Aggrieved thereby the appellants have preferred a writ petition being WPA 30033 of 2024, which was disposed of by the order impugned in the present appeal.
In connection with the appeal, an application, being IA No. CAN 02 of 2024, has been filed seeking a direction to the respondents to restore possession of the appellants' property, grant compensation for the loss suffered by the appellants following the removal of their structures on December 21, 2024, and arrange for their rehabilitation upon modification of the impugned order. In the application, it has been averred on oath that the appellants' structures were removed on December 21, 2024.
It is submitted on behalf of the appellants that challenging the order dated October 24, 2024, the writ petition, WPA 30033 of 2024, was filed on December 16, 2024 and upon mentioning for early hearing, the writ petition was taken up and disposed of on December 20, 2024. The appellants then proceeded to move the present appeal on an urgent basis. The appeal was mentioned on December 20, 2024, and the appellants were instructed to move the appeal on December 23, 2024. Despite these facts being brought to the notice of the 4 District Magistrate via email, the appellants' structures were removed on December 21, 2024.
In light of the situation, we directed Mr. Chatterjee, learned advocate appearing on behalf of the State, to obtain the necessary instructions. Mr. Chatterjee submits that, in compliance with the order dated January 5, 2022, passed in WPA 18218 of 2021, the order under Section 10(3) of the Act of 1964 was passed on August 2, 2022. The statutory appeal was disposed of on October 24, 2024, and information regarding the removal of the structures was announced by way of miking in the locality on December 16, 2024, and December 17, 2024, with the removal date set for December 21, 2024. He further informs that on December 20, 2024, after office hours, at 10:45 p.m., an email was sent to the official email address of the District Magistrate, informing that the appellants intended to move this appeal. Consequently, this information could not be brought to the notice of the District Magistrate before the removal of the structures on December 21, 2024.
Considering these facts, we invited the parties to present their arguments on the merits of the case.
Mr. Chattopadhyay, learned advocate appearing in support of the appeal while arguing on merits contends that the District Magistrate, while disposing of the statutory appeal, failed to consider the written arguments submitted by the appellants and instead passed an order based on surmises and conjectures. He further submits that while it is an admitted fact that the appellants have encroached upon the PWD road, they were effectively compelled to do so in order to operate small stalls for the sustenance of their livelihood. Drawing inspiration 5 from the observations made by the Hon'ble Supreme Court in Olga Tellis & Others vs. Bombay Municipal Corporation & Ors., reported in (1985) 3 SCC 545, he argues that the government should formulate a comprehensive policy to protect the interests of people like the appellants, who are forced to take such actions to make ends meet. Referring to the decision in Asikali Akbraali Gilani & Ors. vs. Nasirhusain Mahebubbhai Chauhan & Ors., reported in (2016) 10 SCC 799, he submits that since the illegal structures of the appellants have been tolerated for more than 30 years, the respondents should be directed to find an alternative solution, adopting a more humane approach. He submits that a direction be issued to the respondents to restore possession to the appellants or to make arrangements for their rehabilitation.
Mr. Chatterjee, learned advocate appearing for the State respondents, argues that the proceeding under Section 10(3) and the statutory appeal were heard and disposed of in accordance with the due process of law. He asserts that the appellants were given adequate opportunity to defend themselves, and there was no flaw in the decision-making process.
The order impugned in the present appeal indicates that the learned Single Judge observed that the B.L. & L.R.O., after conducting a physical inquiry, reported that the appellants had encroached upon land belonging to the PWD (Road). Mr. Chattopadhyay, in his usual fairness, acknowledges that the appellants were operating various stalls on the encroached land of the PWD (Road). It is undisputed that the appellants did not contest the report of the B.L. & L.R.O. The Executive 6 Magistrate disposed of the case initiated under Section 10(3) of the Act of 1964, taking into account the report of the B.L. & L.R.O. and after providing an opportunity for hearing to the appellants and other interested parties. The statutory appeal was disposed of after hearing the appellants and considering their written notes of argument. Therefore, there is no procedural irregularity in the decision-making process. Consequently, the learned Single Judge rightly dismissed the appellants' contention. We find no grounds to interfere with the order under challenge in this appeal.
We have considered the decisions upon which the appellants have relied. While there can be no dispute in accepting the binding nature of those precedents, they are distinguishable on facts and, as such, we do not consider those judgments to be of assistance to the appellants' case.
Therefore, for the reasons stated above, the appeal and the connected applications are hereby dismissed.
There shall however be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties. (Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)