Calcutta High Court (Appellete Side)
(Tapash Kumar Ghosh & Ors vs The State Of West Bengal & Ors.) on 16 February, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
5 16.2.2018
jb.
W.P. 16542(W) of 2017
(Tapash Kumar Ghosh & Ors. vs. The State of West Bengal & Ors.)
Md. Younush Mondal
....For the Petitioners
Mr. Soumitra Bandyopadhyay
Mr. Priyababrata Batyabal
.... For the State
Mr. Aryak Dutt
Mr. Dipankar Das
.... For the NHAI
Leave is granted to the learned advocate for the petitioners to expunge the
following sentences appearing at pages 1 to 3 of the cause title of the petition.
"In the matter of :
A writ of or a writ in the nature of Mandamus;
-And-
In the matter of :
A writ of or a writ in the nature of Certiorari;
-And-
In the matter of :
2
Any other appropriate writ or writs, direction or directions and/or declaration or
declarations;
-And-
In the matter of:
Illegal action of the respondent authorities in respect of land situated at R.S. Plot
No. 394/1534, L. R. Plot No. 871, Khatian No. 686 (Gopal Agarwal), 2536 (Sankar Agarwal) Mouza- Jagadanandapur, J. L. No. 46, P.S. Nakashipara, District- Nadia, measuring about 5 decimals.
-And-
In the matter of :
Unconstitutional, unlawful, and unreasonable orders dated 08.06.2017 and 16.06.2017 on behalf of the respondent authorities;
-And-
In the matter of:
Non-consideration of the application dated 19.05.2017 filed by the petitioners;
-And-
In the matter of:
The Control of National Highways (Land and Traffic) Act, 2002;
-And_ In the matter of:
Article 14,16,19, 21 and 300A of the Constitution of India;" 3
Such expunging shall be done in the presence of the concerned Head of Section in the Mandamus Section and shall be countersigned by the Head of the said Section and reported to the Principal Officer of this Court for compliance. In future the Computerized Central Filing Section, Mandamus Department and the Commissioners are directed to ensure strict compliance with Rules 8B and 9 of Appendix IV to the Appellate Side Rules. If such compliance is not made, consequences shall follow. Learned Registrar General is directed to circulate this portion of the order to the Heads of the all concerned department.
The writ petition is moved on service. The affidavit-of-service is directed to be kept on record.
Learned counsel for the petitioners submits that the National Highways Authorities under the Provisions of the Control of National Highways (Land Traffic) Act, 2002 proposed to remove what they allege was an encroachment of the lands of the National Highways Authorities. Learned counsel for the petitioners however, submits that his clients' case was that the structures involved were wholly on the lands of the writ petitioners and these were residential buildings. In the earlier round of proceedings, the writ petitioners had been blessed by an order dated May 30, 2017 in W.P. no. 14874(W) of 2017 passed by a co-ordinate Bench of this Court and in such order the following directions had been given:4
" ... ... ... ... ... ... ...
The Highway Authorities is directed to dispose of the representation dated 19th May, 2017 of the petitioner within a period of ten days from the date of communication of this order. The Highway Authorities is directed to communicate its order to the petitioner forthwith thereafter.
It is made clear that if the Highway Authorities has already disposed of the representation of the petitioner this order need not be given effect to.
The Highway Authorities is also directed to ascertain whether or not the land of the Highway Authorities has been encroached by the petitioner and till such time the consideration is made, the Highway Authorities will not remove the petitioner from the land in question.
The petitioner is directed to communicate this order to the Highway Authorities by tomorrow by personal service as well as by Registered Post with Acknowledgement Due together with a copy of the writ petition.
... ... ... ... ... ... ..."
Pursuant thereto it appears that a hearing was duly given to the writ petitioners which appears at annexure P/7. Pursuant to the hearing a joint measurement was agreed to by the parties which would be done in the presence inter alia, of the petitioners. Part of annexure P/7 is the order dated June 16, 2017 which is appearing at page '35' of the writ petition. It has been inter alia, recorded in the said order dated June 16, 2017 as follows: 5 "..... The hearing was attended by all four petitioners/representatives of petitioners, representatives of CALA, Nadia. An Order was passed by the undersigned on 08.06.2017 for joint measurement and demarcation comprising of NHAI representative and representatives of CALA, Nadia on 12.06.2017 at 11.30 am. It was agreed by the petitioners that the demarcation thus shown shall be final.
Accordingly, joint measurement has been conducted by the representatives of CALA & NHAI in presence of the petitioners. On measurement it reveals that the Writ Petitioners who are the owner of Plot No. 871 and 881 have encroached a portion of RS Plot no. 362 corresponding to LR Plot No. 791 adjacent to the NH-34. ...." (emphasis supplied) A bare comparison of the order passed by the co-ordinate Bench referred to above would show it was the duty of the authorities concerned to ascertain whether the lands of the Highway Authorities had been encroached by the petitioners, apart from considering and disposing of the representation of the petitioners; however, the Authorities have not even recorded a conclusion that the writ petitioners had encroached any portion of the lands of the National Highway Authorities as directed by the co-ordinate Bench. It has only held that the encroachment by the writ petitioners is in respect of an unspecified portion of a plot adjacent to NH 34.
6
The provisions of Section 2(g) of the Control of National Highways (Land & Traffic) Act, 2002 were brought before me to urge that highway land means the land of which the Central Government is, or is deemed to be, the owner under sub-section (1) of section 23 and the said Section was also placed before me to show that land adjacent to a highway also constitutes highway land. Sections 23, 24 and 26 are of the said Act are quoted hereinbelow:
"23. Highway land to be deemed as property of Central Government.-
(1) All lands forming parts of a Highway which vest in the Central Government or which do not already vest in the Central Government but have been acquired for the purpose of Highway shall, for the purposes of this Act, and other Central Acts, be the property of the Central Government as owner thereof.
(2) The Highway Administration shall cause to be maintained a record in the prescribed manner in which the particulars of the lands, relating to the Highway, of which the Central Government is the owner shall be entered and the entries of the particulars of such lands in any record maintained for such purpose before the commencement of this Act shall be deemed to be the entry of the particulars of such lands made in the first said record and accordingly the Central Government shall be deemed to be the owner of the lands regarding which the entries have been made in such records maintained before the commencement of this Act.7
3) Any person claiming against the ownership of the Central Government referred to in sub-section (2 shall make written complaint to the Highway Administration and prove his claim before it and the Highway Administration , after considering the evidence produced by such person, may correct such records or reject the claim.
24. Prevention of occupation of highway land. (1) No person shall occupy any highway land or discharge any material through drain on such land without obtaining prior permission, for such purpose in writing, of the Highway Administration or any officer authorised by such Administration in this behalf.
(2) The Highway Administration or the officer authorised under sub- section(1) may, on an application made by a person in this behalf and having regard to the safety and convenience of traffic, grant permission to such person-
(i) to place a movable structure on the Highway in front of any building owned by him or to make movable structure on support of such building and over the Highway, or
(ii) to put up a temporary lawning or tent or similar construction or a temporary stall or scaffolding on the Highway, or
(iii) to deposit or cause to be deposited, building materials, goods, for sale or other articles on any Highway, or 8
(iv) to make a temporary excavation for carrying out any repairs or improvements to adjoining buildings, and such permission shall be granted subject to the conditions and on payment of the rent and other charges by issuing permit in the form as may be prescribed:
Provided that no such permission shall be valid beyond a period of one month at a time from the date on which the permission has been granted unless it is renewed by the Highway Administration or such officer on an application made by such person for the renewal of the permission.
(3) The permission granted under sub-section (2) shall specify therein-
(i) the time up to which the permission is granted ;
(ii) the purpose of such permission;
(iii) the portion of the Highway in respect of which the permission has been granted, and shall be accompanied with a plan or sketch of such portion of Highway.
(4) The person, to whom the permit has been issued under sub-section (2), shall produce the permit for inspection whenever called upon to do so by any officer of the Highway Administration and shall, on the expiry of the permission granted under such permit, restore the portion of the Highway specified in the 9 permit in such condition as it was immediately before the issuing of such permit and deliver the possession of such portion to the Highway Administration.
(5) the Highway Administration or the officer issuing the permit under sub-
section (2) shall maintain a complete record of all such permits issued, and shall also ensure in every case at the expiration of the period up to which the permission under a permit is granted under that sub-section that the possession of the portion of the Highway in respect of which such permission was granted has been delivered to the Highway Administration.
26. Removal of unauthorised occupation.⎯(1) Where the Highway Administration or the officer authorised by such Administration in this behalf is of the opinion that it is necessary in the interest of traffic safety or convenience to cancel any permit issued under sub-section (2) of section 24, it may, after recording the reasons in writing for doing so, cancel such permit and, thereupon, the person to whom the permission was granted shall, within the period specified by an order made by the Highway Administration or such officer restore the portion of the Highway specified in the permit in such condition as it was immediately before the issuing of such permit and deliver the possession of such portion to the Highway Administration and in case such person fails to deliver such possession within such period, he shall be deemed to be in unauthorised occupation of highway land for the purposes of this section and section 27. 10
(2) When, as a result of the periodical inspection of highway land or otherwise, the Highway Administration or the officer authorised by such Administration in this behalf is satisfied that any unauthorised occupation has taken place on highway land, the Highway Administration or the officer so authorised shall serve a notice in a prescribed form on the person causing or responsible for such unauthorised occupation requiring him to remove such unauthorised occupation and to restore such highway land in its original condition as before the unauthorised occupation within the period specified in the notice.
(3) The notice under sub-section (2) shall specify therein the highway land in respect of which such notice is issued, the period within which the unauthorised occupation on such land is required to be removed, the place and time of hearing any representation, if any, which the person to whom the notice is addressed may make within the time specified in the notice and that failure to comply with such notice shall render the person specified in the notice liable to penalty, and summary eviction from the highway land in respect of which such notice is issued, under sub-section (6).
(4) The service of the notice under sub-section (2) shall be made by delivering a copy thereof to the person to whom such notice is addressed or to his agent or other person on his behalf or by registered post addressed to the person 11 to whom such notice is addressed and an acknowledgement purporting to be signed by such person or his agent or other person on his behalf or an endorsement by a postal employee that such person or his agent or such other person on his behalf has refused to take delivery may be deemed to be prima facie proof of service.
(5) Where the service of the notice is not made in the manner provided under sub-section (4), the contents of the notice shall be advertised in a local newspaper for the knowledge of the person to whom the notice is addressed and such advertisement shall be deemed to be the service of such notice on such person.
(6) Where the service of notice under sub-section (2 has been made under sub-section (4) or sub-section (5) the unauthorised occupation on the highway land in respect of which such notice is served has not been removed within the time specified in the notice for such purpose and no reasonable cause has been shown before the Highway Administration or the officer authorised by such Administration in this behalf for not so removing unauthorised occupation, the Highway Administration or the officer authorised by such Administration in this behalf for not so removing unauthorised occupation, the Highway Administration or such officer, as the case may be, shall cause such unauthorised occupation to be removed at the expenses of the Central 12 Government or the State Government, as the case may be, and impose penalty on the person to whom the notice is addressed which shall be five hundred rupees per square metre of the land so unauthorisedly occupied and where the penalty so imposed is less than the cost of such land, the penalty may be extended equal to such cost.
(7) Notwithstanding anything contained in this section, the Highway Administration or the officer authorised by such Administration in this behalf shall have power without issuing any notice under this section to remove the unauthorised occupation on the highway land, if such unauthorised occupation is in the nature of⎯
(a) exposing any goods or article⎯
(i) in open air; or
(ii) through temporary stall, kiosk booth or any other shop of temporary nature,
(b) construction or erection, whether temporary or permanent, or easily without use of any machine or other device, and in removing such occupation, the Highway Administration or such officer may take assistance of the police, if necessary, to remove such occupation by use of the reasonable force necessary for such removal.
13(8) Notwithstanding anything contained in this section, if the Highway Administration or the officer authorised by such Administration in this behalf is of the opinion that any unauthorised occupation on the highway land is of such a nature that the immediate removal of which is necessary in the interest of⎯
(a) the safety of traffic on the Highway; or
(b) the safety of any structure forming part of the Highway, and no notice can be served on the person responsible for such unauthorised occupation under this section without undue delay owing to his absence or for any other reason, the Highway Administration or the officer authorised by such Administration may make such construction including alteration of any construction as may be feasible at the prescribed cost necessary for the safety referred to in clause
(a) or clause (b) or have such unauthorised occupation removed in the manner specified in sub-section (7).
(9) The Highway Administration or an officer authorised by such Administration in this behalf shall, for the purposes of this section or section 27, have 14 the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) issuing commissions for the examination of witnesses; and
(d) any other matter which may be prescribed,
and any proceeding before such Administration or officer shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860 and the Administration or the officer shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)."
Ex facie it does not appear that the order passed by the respondents authorities at page '35' of the writ petition specifies which is the portion, which the writ petitioners are supposed to have encroached. Prima facie it does not appear from the said order that the Highway Administrator under the respondents has complied with the order of the co-ordinate Bench dated May 30, 2017 because he has not recorded or given a finding that the land of the Highway 15 Authorities has been encroached by the writ petitioners. The provisions placed before me today do not on their face show that lands adjacent to highways form part of the "land of the Highway Authorities" or even "Highway lands".
In such view of the matter, the order on its face suffers from an infirmity which is fatal; the order does not specify which is the portion from which the writ petitioners have to remove themselves and therefore, does not adequately redress the grievances of the writ petitioners. Therefore, to that extent it is a cryptic order and/or is not a speaking order.
It appears, therefore, prima facie to suffer from the vice of Wednesbury unreasonableness. This would have been sufficient to have an interim order be issued or in the alternative of a direction that for the above ground the order be set aside and leave be granted to the authorities to issue fresh order.
However, I have been informed by the petitioners who have taken out an application in this behalf that during the pendency of the writ petition a part of their residential building has been demolished. Learned advocates appearing on behalf of the respondents-Highway Authorities accepts that a small part of the buildings involved in any of the three writ petitions appearing before me today as items no. 5, 7 and 8 of today's list may have been demolished, but he does not have instruction right now which part of which building in which writ petition has been demolished. It is now an admitted position that during the pendency of the writ petition knowing that the order dated June 16, 2017 was under
challenge the respondents Highway Authorities showed the audacity of 16 interfering in a sub judice matter by demolishing a part of the building whose demolition order was the subject matter of the writ petition. The order under which demolition was done, on its face, as demonstrated above, is prima facie a nullity for violation of the basic principles of natural justice, since it is not a speaking order to the extent of the portion alleged to have been encroached and there is no finding that there was any encroachment of the land of the Highways authorities. The writ petitioners' interlocutory application has not yet been been served on the respondents and it is not appearing in the list. It cannot, therefore, be taken up today.
The fact that the writ petition was taken out on June 21, 2017 and could not be taken up till today is the fault of the Court. For the fault of the Court the respondents has made the writ petitioners suffer. In fact, the respondents have taken advantage of the fact that due to unavoidable circumstances matters linger in the cause list for considerable time. The respondents authorities come within the category of State under Article 12 of the Constitution of India and, therefore, the standard of behaviour expected from the State and by that I do not mean only the Government of West Bengal but also the National Highway Authorities is to set an example to the public instead of doing vigilante justice. The National Highway Authorities have not acted in accordance with such standards or fairly, prima facie, in demolishing part of the building which is the subject matter of pending writ petition wherein originally an interim order had been passed till 17 compliance of the order dated May 30, 2017 in the earlier round of litigation which achieved finality. This is more disgusting when on a true and proper construction of the said order dated May 30, 2017 it will appear that there was no compliance with the said order in its true spirit by the Highway Authorities which shows that the Authorities of National Highway and those who advised them have acted less as State and more as enforcers of rough and ready justice which has no place in a country governed by the Rule of Law. For what it is worth the operation of the impugned order at page '35' of the writ petition shall remain stayed until further orders. The application of the writ petitioners seeking recourse against demolition shall be listed on March 2, 2018. Whether the Highways Authorities should be directed as an interim measure to rebuild and restore to its original condition the building whose parts they had demolished, shall be considered at a future date.
Learned counsel for the respondents/ National Highway Authorities is directed to give the name and address of the officer who passed the order whose copy appears at annexure p/7 (page '35') and also the name and address of the officer who presided over the demolition work. These names and addresses should be given by 6 p.m. today to the petitioners by mobile phone or e mail or any eletronic media. The learned advocate on record of the writ petitioners is given liberty to amend the cause title and prayer portion of the writ petition by adding the said two persons eo nomine by effecting necessary changes in the 18 presence of the principal officer of this Court at any time before March 2, 2018. After such change is effected, the writ petitioners through their learned advocates shall attend the Central Computerised Filing Section and the departmental Head of the said Section shall, on production of website copy of this order, correct the register of the writ petition indicating the addition of the above respondents. The Mandamus Section shall make a table note of this change. All the said added respondents be formally brought on record both in this writ petition as also in the application to be filed by the writ petitioners as aforesaid. All these matters would come up together. Since the respondents have admitted that they have already demolished a portion of the said building, thus, giving effect to their order of June 16, 2017, naturally this order cannot prejudice them though the said course of action adopted by the respondents is disapproved by this Court.
The consequence of such brave demolition of a portion of the building with the use of the entire machinery of the State, in the teeth of and in prima facie violation of the Order dated May 30, 2017, shall be dealt with only after an opportunity has been given to be heard to the added respondents.
Post this matter along with the application to be filed by the petitioners. All departments and sections concerned are directed to report regarding compliance of the above order.19
Costs of the day are reserved.
(Protik Prakash Banerjee, J.)