Smt. Jharna Pradhan (Maity) And ... vs The State Of West Bengal & Ors
2023 Latest Caselaw 4597 Cal

Form J(2)      IN THE HIGH COURT AT CALCUTTA
              CONSTITUTIONAL WRIT JURISDICTION
                           Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri


                       WPA 18324 of 2023


              Smt. Jharna Pradhan (Maity) and Ors.
                              Vs.
                The State of West Bengal & Ors.


Mr. Soumen Kumar Dutta
Mr. Sabyasachi Bhattacharjee
                                               ..for the petitioners

Mr. N. C. Bihani
Ms. P. B. Bihani
                                                 ..for the D.S.D.A.

Mr. Jayanta Samanta
Mr. D. Chakraborty
                                                    ..for the State

Heard & Judgment on:           01.08.2023

Bibek Chaudhuri, J.

Indisputably, the petitioners are unauthorized occupants in

respect of a piece of plot being No. 1676 appertaining to Khatian

No.1 at Mouza Dakshin Purusattampur, J.L. No. 286 in Mandarmoni

Coastal Police Station. It is also not in dispute that a proceeding

under the provision of the West Bengal Public Land (Eviction of

Unauthorized Occupants) Act, 1962 was initiated against the

petitioners and other unauthorized occupants on the basis of a report

of the jurisdictional Block Land and Land Reforms Officer. The

Collector and S.D.O., Contai adjudicated the said proceeding and

passed an order of eviction. The petitioners challenged the said

order by filing a writ petition before this Court. This Court disposed

of the writ petition giving opportunity to the petitioners to prefer a

statutory appeal under Section 7 of the said Act. The petitioners

preferred a Mandamus Appeal before the Division Bench of this Court

and the Division Bench presided over by the Hon'ble the Chief Justice

disposed of the said appeal holding, inter alia, that the impugned

order was passed in violation of the principles of natural justice. In

such circumstances, the order dated 13th October, 2022 was set

aside. The matter was remitted back to the Collector and S.D.O.,

Contai with a direction to supply a copy of the report of

B.L. & L.R.O., Ramnagar and thereafter take a fresh decision in

accordance with law after giving an opportunity of hearing to the

appellants. Subsequently, as per direction of the Division Bench the

report of the B.L. & L.R.O. was served upon the petitioners and the

Collector-cum-Sub-Divisional Officer, Contai again passed the order

of eviction against the petitioners. On the basis of said eviction

order the petitioners were served notice by the respondent No.3

directing them to quit, vacate and surrender the peaceful possession

of the plot in question by 2nd August, 2023.

Challenging the impugned order passed by the Sub-Divisional

Officer on 10th April, 2023 and consequent notice issued to the

petitioners by the respondent No.3 are challenged in the instant writ

petition.

At the outset, the learned advocate for the State respondents

has raised a question of maintainability of the instant writ petition on

the ground that when the statute provides a remit by filing an appeal

under Section 7 of the Act, the instant writ petition is not

maintainable.

In reply thereto it is contended by the learned advocate for

the petitioners that if the order impugned is passed by the authority

without jurisdiction, the petitioners do not require to prefer an

appeal and the writ petition is maintainable because the order itself

is bad in law and mala fide having been passed without jurisdiction.

In support of his contention the learned advocate for the petitioners

refers to the following decisions:-

(i)..(1998) Volume 8 SCC 1 (Whirlpool Corporation -

vs.- Registrar of Trade Marks, Mumbai.

(ii) (2021) 6 SCC 771 (Radha Krishan Industries -

vs.- State of Himachal Pradesh and Ors.)

(iii) (2011) 14 SCC 337 (Nivedita Sharma -vs.-

Cellular Operators Assn. of India).

It is no longer res integra that an administrative order

passed without jurisdiction is amenable to the writ petition

because the administrative authority assumes jurisdiction

under the statute and if the statutory provision is not

followed, entire proceeding is bad in law, mala fide and

unsustainable.

Since the learned advocate for the petitioners submits that

the impugned order is without jurisdiction, I like to hear out

the instant writ petition on merit including the question of

maintainability.

The learned advocate for the petitioners next draws my

attention to the definition of 'Collector' contained in Section

2(1) of the West Bengal Public Land (Eviction of Unauthorized

Occupants) Act, 1962 (hereinafter described as the 1962

Act).

"Section 2(1) defines 'Collector' in the following

words:-

2(1) 'Collector' means -

(a) in Calcutta the Land Acquisition

Collector, Calcutta and

(b) elsewhere the Chief Officer-in-charge

of the Revenue Administration of the

District, includes an Additional

District Magistrate, a Sub-Divisional

Magistrate and any Executive

Magistrate specially appointed by the

State Government to perform all or

any of the functions of a Collector

under this Act."

Next he draws my attention to the letter of appointment of

the Sub-Divisional Officer of Contai Sub-Division vide Notification No.

1418-PER (WBCS)-1D-292-2022.

The order runs thus:-

"In exercise of the power conferred on sub-Section (4) of

Section 20 of the Code of Criminal Procedure 1973, the Governor is

pleased, in the interest of public service to place Sri Souvik

Bhattacharya, WBCS (Executive), an Executive Magistrate-in-charge

of Contai Sub-Division, District Purba Medinipur until further

order(s)."

It is submitted by the learned advocate for the petitioner that

the Sub-Divisional Officer, Contai was not appointed specially by the

State Government to perform all or any of the functions of Collector

under the West Bengal Public Land (Eviction of Unauthorized

Occupants) Act, 1962.

Let me now read out and scan the definition of 'Collector'

contained in 1972 Act. In Clause (b) of Sub-Section (1) of Section 2

of the 1963 Act, in respect of the area outside the jurisdiction of

Calcutta the Chief Officer-in-charge of Revenue Administration of the

District is empowered to perform all or any of the functions under

1962 Act by virtue of his being the Collector of the District. For the

Collector of the District no special power is required to be passed by

the State Government. The Collector by virtue of his position can

perform all acts under the 1962 Act.

In case of Additional District Magistrate, a Sub-Divisional

Magistrate or any Executive Magistrate who has not been

empowered to act as a Collector, special order of the State

Government is necessary to perform all or any of the functions of a

Collector under the 1962 Act. The word 'and' includes in Clause 'B'

of Sub-Section (1) of Section 2 is of much importance. The word

'and' disjuncts the power of the Collector from that of the Additional

District Magistrate, Sub-Divisional Magistrate and any Executive

Magistrate. So for Collector no special order of the State

Government is necessary. But for the Additional District Magistrate,

a Sub-Divisional Magistrate and any Executive Magistrate special

order empowering them to perform all acts under 1962 Act is

absolutely necessary.

Coming to the instant case it is found that the Sub-Divisional

Officer, Contai passed the order not as Sub-Divisional Officer but as

the Collector. It is not challenged in the instant writ proceeding as

to whether the Sub-Divisional Officer, Contai Sub-Division can

exercise the power of Collector or not. Thus, when the impugned

order dated 10th April, 2023 was passed by the Collector of Contai

Sub-Division, the order does not suffer from any jurisdictional error.

Second limb of argument of the learned Advocate for the

petitioners is that the notice for eviction dated 5 th April, 2023 was

not in prescribed format. It is submitted by him that the West

Bengal Public Land (Eviction of Unauthorized Occupants) Rules, 1963

prescribed the form and manner of service of notice of Rule 3. In the

schedule of the said Rules the form of notice under Sub-Section (1)

of Section 3 has been delineated. It is submitted by the learned

Advocate for the petitioners that no notice was served in the form

mentioned in Rule 3(1) of the above-mentioned Rules. Therefore,

the notice is bad in law. When the eviction notice is bad in law,

insufficient and inoperative, subsequent eviction proceeding is also

suffers from abuse of the process and mala fide in the nature.

The learned Advocate for the petitioners also submits that by

virtue of the impugned order dated 10 th April, 2023, the Executive

Officer, Digha Sankarpur Development Authority issued a notice of

eviction directing the petitioners to quit, vacate and deliver peaceful

possession in favour of the Government by 2 nd August, 2023 and if

they fail, they will be evicted on 3rd August, 2023 at 10.00 A.M. The

learned Advocate for the petitioners refers some other notice dated

28th July, 2023 directing some of the unauthorized occupants to

ignore the said notice of eviction. It is submitted by the learned

Advocate for the petitioners that the executive authority is

functioning in a discriminatory manner in respect of eviction process.

While the petitioners were protected to be evicted, other

unauthorized occupants are being protected by the State authority.

It is found from the order dated 6 th January, 2023 passed in

MAT/2032/2022 that the petitioners were directed to take part in

hearing of the eviction proceeding before the Collector and SDO.

The Division Bench was pleased to set aside the order dated 13 th

October, 2022. In view of the said direction passed by the Division

Bench of this Court the Collector and SDO, Contai issued the notice

dated 5th April, 2023 to the petitioners directing them to appear in

the hearing. The subject-matter of the notice is 'hearing notice'. It

is not a notice under Rule 3(1) of the said Rules of 1963.

Moreover, if the petitioners had any grievance with regard to

the form and manner of notice which was issued to the petitioners

they could have raised the issue before the Single Bench in the

earlier writ petition or before the Division Bench in MAT/2032/2022.

The petitioners preferred not to agitate the issue of legality, validity

and sufficiency of the notice in the earlier writ petition or mandamus

appeal. The petitioners also preferred not to agitate the power of

the Collector and SDO, Contai to deal with an eviction proceeding

under the 1962 Act. The petitioners could have raised such issues in

the earlier writ petition as well as in appeal. At this stage, the

contention of the petitioners is barred by the principle of constructive

res judicata.

In view of the above discussion, I do not find any merit in the

instant writ petition. The writ petition is, thus, dismissed on contest,

however, without cost.

[Bibek Chaudhuri, J.]

Suman/Srimanta, A.Rs.(Ct.) Item No. 02.