Calcutta High Court (Appellete Side)
Abdul Matin Mondal vs The State Of West Bengal And Others on 30 August, 2023
30th August,
2023
(AK)
12
W.P.A 28862 of 2022
Abdul Matin Mondal
Vs.
The State of West Bengal and others
Mr. Golam Mostafa
Mr. Subir Sabud
...for the petitioner.
Mr. Asish Kumar Guha
Mr. Anirban Dutta
...for the State.
1. Learned counsel for the petitioner contends that
the petitioner was given to understand before the First
Authority that a confession of illegal encroachment would
mitigate the circumstances for the petitioner.
2. However, upon such confession being recorded,
eviction was directed against the petitioner. The challenge
was preferred to the District Magistrate and Collector,
Murshidabad, also to no avail to the petitioner.
3. It is submitted that the provisions of Section 10 of
the West Bengal Highways Act, 1964 were not properly
followed in the present case.
4. Learned counsel also places reliance on an
unreported judgment dated May 16, 2023 passed by a
learned Single Judge of this court in WPA 1609 of 2023.
2
5. Learned counsel appearing for the respondent
authorities contends that the allegations made by the
petitioner are incorrect, insofar as the petitioner himself
admitted before the authorities that there was illegal
encroachment on his part on Government land.
6. That apart, Section 10 has been fully complied with
in the present case, as evident from the materials
annexed to the writ petition.
7. It is submitted that, thus, there is no occasion to
interfere with the impugned orders.
8. A perusal of the order of the Appellate Authority
indicates that the appellant had denied simpliciter that
there was any encroachment on public road or on State
Highway and had alleged that the location of the shop
room was at a long and safe distance. It was also alleged
that the appellant took necessary permission from all
local authorities.
10. However, nothing in the said order of the appellate
court indicates that the petitioner had challenged the fact
that the petitioner had admitted to illegal encroachment
of Government land before the First Authority.
11. As rightly pointed by learned counsel for the
respondent authorities, the District Magistrate and
Collector, that is, the Appellate Authority, clearly recorded
that the order of the Executive Engineer, Murshidabad
Highway Division no. I reflected that the present
petitioner stated that whatever the said authority felt
pertinent he should take recourse to and fully agreed with
the fact that the petitioner had been running his shop
upon Government land for long. The same was taken to
be a clear admission on the fact of encroachment, on
which premise the District Magistrate and Collector
affirmed the order of the Executive Engineer. It is well-
settled that a person disputing what transpired before a
legal forum has to approach the same forum, preferably
the same officer, for a recall of the recording of such
disputed facts. Here, the petitioner never made any such
approach before the First Forum.
12. Moreover, there is nothing on record to dispel the
statutory presumption that the respondent authorities
has duly complied with the provisions of Section 10 of the
1964 Act. In fact, there is no allegation to the effect that
the provisions of the said Section were not complied with
in the present case.
14. Insofar as the judgment of the coordinate Bench is
concerned, in the said case the learned Single Judge had
observed that the impugned order therein did not indicate
whether the procedure under Sections 3(1) and 4(1) of the
Act was followed. The writ petition was allowed on such
ground alone. However, as opposed to the said case, there
is no such material on record here to indicate that such
provisions were violated.
16. In fact, the order of the Sub-Divisional Magistrate,
Sadar, Berhampore clearly records that the petitioner had
stated that he had been possessing the suit land by
making a shop since long and that he was well aware
about encroachment of P.W. (Roads) D.
17. The son of the petitioner had stated before the said
authority that his father had filed a writ petition in the
matter. However, no order was submitted in that regard
before the authority.
18. The Sub-Divisional Magistrate had also considered
the enquiry report of the BL & LRO, Nowda, Murshidabad
addressed to the Assistant Engineer, Berhampore
Highway sub-Division regarding the shop of the petitioner
being situated just in front of the house of the
complainants and under the jurisdiction of the PWD.
19. As such, the records indicate that the authorities
below were fully justified in arriving at the conclusion
that the petitioner was an illegal encroacher of P.W.D.
land and passed the orders within the purview of law.
20. No irregularity or illegality in the decision-making
process has been made out by the petitioner sufficient to
prompt the court to interfere with the impugned orders.
21. Since the petitioner submits at this juncture that
the petitioner shall remove the encroachment within
seven days from date, on humanitarian considerations, a
week ought to be given to the petitioner to so remove.
22. Accordingly, WPA 28862 of 2022 is disposed of
without interfering with the impugned orders of the
authorities but restraining the respondents from evicting
the petitioner and/or removing the encroachment of the
petitioner on the disputed land till September 8, 2023.
23. The petitioner shall remove the encroachment and
make over vacant possession in favour of the respondents
within such period. In default, it will be open to the
respondent authorities to implement the eviction order
impugned herein in due process of law.
There will be no order as to costs.
Urgent photostat copies of this order, if applied for,
be given to the parties upon compliance of all requisite
formalities.
(Sabyasachi Bhattacharyya, J.)
