JUDGMENT This rule is directed against an order passed by the Asst. Engineer, P.W.D., Hooghly, directing the petitioners to remove and dismantle the building from the Government land on the allegation that the petitioners had encroached and constructed a building over C.S. Plot No. 976, Khatian No. 148, Mouza Sahapur, P. S. Tarakeshwar, Dist. Hooghly. It is further stated that failing the removal by the petitioner the Government would dismantle the building and the costs of the dismantling would have to be borne out by the petitioners. The petitioners, it is alleged, are the owners of C.S. Plot No. 976, Khatian No. 148, Mouza Sahapur, P.S. Tarakeshwar, Dist. Hooghly. In 1951, one Becharam Pakhira by virtue of a Settlement. Bandobastnama with Tarakeswar Estate became the owner of a plot of land, being C.S. Plot No. 976, Khatian No. 148, Mouza Sahapur, P.S. Tarakeswar, Dist. Hooghly. The petitioners are the present owners of the said plot as co-sharers. In 1952 the petitioners raised a Kutcha structure on the said plot of land and in 1962 the petitioners began to construct a pucca structure on the said plot. On a complaint having been filed under the Bengal Highway Act, 1962 for the construction on C.S. Plot No. 976, a criminal case was started. It is alleged in the said case that plot no. 976 was acquired under Land Acquisition Act. Inspite of the said acquisition by the Government the construction is being made on the Government acquired land but the State failed to prove the acquisition and the complaint was disposed of and the criminal case was discharged. It is alleged that on 11th November, 1975 several men from the P.W.D. made a marking on the construction on the ground that the construction was on C.S. Plot No. 976. Thereupon the petitioners moved this Court and obtained a rule and injunction. The petitioners were served with a notice on 19th November, 1975 asking them to demolish the construction. 2. On behalf of the State Government an affidavit has been filed. It is stated in paragraph3, inter alia, as follows:- "3. Before dealing with the statements and/or allegations made in the said petition. The petitioners were served with a notice on 19th November, 1975 asking them to demolish the construction. 2. On behalf of the State Government an affidavit has been filed. It is stated in paragraph3, inter alia, as follows:- "3. Before dealing with the statements and/or allegations made in the said petition. I state hereinbelow the facts of the case in brief ;- (a) It appears from C.S Records of Rights that the predecessors-in-interest of the petitioners was the owner of a plot of land being C.S. Plot No. 976, Khatian No. 148, Mouza Sahapur undor Police Station Tarakeswar in the District of Hooghly, having an area of 0.29 acres and the plot was situated by the side of the Road called Tarakeswar-Chawkdighi Road. (b) In order to widen the said Tarakeswar-Chawkdighi Road at Chawlpatty under Sahapur for smooth and safe movement of traffic and/or transport, a part of the aforesaid C.S. Plot No. 976 was acquired by the Government of West Bengal and the petitioner. and/or their predecessors were awarded due compensation for the said acquisition on 18th February, 1957. Be it mentioned here that a Notice under the provisions of Sub-Section (1) of Section 3 of the West Bengal Act Land Requisition and Acquisition Act. 1948 i.e. West Bengal Act II of 1948 was given to the petitioners and/or their predecessors and Arun Chandra Pakhira i.e. the petitioner No.1 acknowledged the receipt of the Notice of Requisition Case No. 1-2/53-54 through his letter dated 9th December; 1953 to the Collector, the Land Acquisition Office, Hooghly, Chinsurah. The order of acquisition was duly published by the Notification being No. 24394-IA (P.W.) dated December 13. 1955 in Calcutta Gazette dated December 29, 1955 at page 5247. Thereafter during Revisional Settlement Operation in 1956, the acquired part of land from CS. Plot No. 976 was merged with RS -Plot No. 861 and was rightly and correctly recorded in the name of the Works & Building Department under Government of West Bengal. This deponent craves leave to refer to the certified copy of the R.S. Record of Rights at the time of hearing and a copy of the letter of Arun Chandra Pakhira dated December 9, 1953 is annexed herewith and marked with letter "A”. This deponent craves leave to refer to the certified copy of the R.S. Record of Rights at the time of hearing and a copy of the letter of Arun Chandra Pakhira dated December 9, 1953 is annexed herewith and marked with letter "A”. In this context, this deponent submits with all emphasis at his command that for the purpose of determining the right of ownership of the lands in question, the R.S. Record of Rights should be taken into consideration in as much al Revisional Settlement Operation in the District of Hooghly took place as far back as the year of 1956. (c) That with a view to implement the Government programme of removal of unauthorized structures from Government land, measurement of the Tarakeswar-Chawkdighi Road were taken at Chaulpatty under Mouza Sahapur. At the time of taking measurement, it has been detected that about 1/3 (one-third) portion of the building belonging to the petitioners has actually encroached the laid Tarakeswar-Chawkdighi Road on R.S. Plot No 861 at Chaulpatty under Mouza Sahapur, J.L. No.22, P.S. Tarakeswar, District, Hooghly. The petitioners were requested to dismantle the portion of the building which encroached the Government land namely the R.S. Plot No. 861 at Chaulpatty under Mouza Sahapur and accordingly a Notice dated 19th November, 1975 was served upon the petitioners and the receipt of the said Notice was acknowledged by the petitioner No.1 on 25th November, 1975. This deponent craves leave to refer to the Notice and the acknowledgement at the time of hearing. (d) The petitioners having got no right, title, interest whatsoever in the said plot of land, namely R.S. Plot No. 861 knowing fully well that the said plot of land belongs to the Government of West Bengal have encroached some considerable portion of the aforesaid Road-side land of the Government of West Bengal and raised unlawfully and unauthorisedly the structure blocking free movement of traffic and as such they are bound to dismantle the same or otherwise the Government has the authority to demolish the same. Further, in the present day number of traffic have increased and for safe movement of traffic as well as for the safety of the general public, the demolition or dismantling of the very part of the structure which was raised unauthorisedly and Illegally encroaching Government land at R.S. Plot No. 861 is imperative for the interest of public. Further, in the present day number of traffic have increased and for safe movement of traffic as well as for the safety of the general public, the demolition or dismantling of the very part of the structure which was raised unauthorisedly and Illegally encroaching Government land at R.S. Plot No. 861 is imperative for the interest of public. (e) The petitioners by suppressing a very material fact obtained the instant Rule and interim order of injunction on the 19th day of November, 1975 in as much as they never referred to R.S. Records of Rights. According to R.S. Record of Rights. the R.S. Plot No. 976 comprises of 0.23 acres of land which is recorded in the name of the petitioners, the possession of which has never been disturbed in as much as the Public Works Department. Government of West Bengal never contemplates to demolish and/or dismantle any part and/or portion of the building/structure raised on the said R.S. Plot No 976 of the petitioner. In this context I say with all emphasis that the Public works Department Is within its rights to remove the unauthorised and illegal structures encroaching the Government land and in this case the petitioner had been requested to dismantle the unauthorised structure which they raised illegally and with a malafide intention upon the aforesaid Road-side land being R.S. Plot No. 861 which is absolutely a Government land". 3. Mr. Noni Coomar Chakraborti on behalf of the petitioners contended that the notice of demolition is arbitrary and not based on the rule or law but it is high-handed action of the Executive. It is stated that in the said house which was constructed in 1962 there are numbers of tenants in occupation, one of them is the United Commercial Bank. Mr. Chakraborti contended that if there was any encroachment on the said land, the Government has certainly power to remove the encroachment but in due course of law. In the present case the action amounts to high-handed executive without taking recourse to any law which may have sanctioned the executive high-handedness. 4. Mr. Gupta on behalf of the respondent however contended that the petitioners before establishing their right to relief must prove title, possession and enjoyment of the property. 5. In the present case the action amounts to high-handed executive without taking recourse to any law which may have sanctioned the executive high-handedness. 4. Mr. Gupta on behalf of the respondent however contended that the petitioners before establishing their right to relief must prove title, possession and enjoyment of the property. 5. The point for decision its therefore whether the petitioners have any legal right or legal title to the property in question so that they may be entitled to a relief under Art. 226 of the Constitution. Before I deal with the question raised by Mr. Gupta, it may be stated that it cannot be disputed that the action of the Government of this nature must be founded on any legal sanction. The Government cannot demolish a structure erected on a property without recourse to law. But Mr. Gupta contended that the law applicable to the citizens and to the Government is quite different. Section 6 of the Specific Relief Act is inapplicable to the Government and therefore the case which says that the administrative action should apply to the principle of natural justice have no application in the case of like nature, Mr. Gupta in support of his contention-relied upon the decision reported in (1) 78 CWN 183 (Corporation of Calcutta v. D.N. Sen) and (2) AIR 1972 SC 2112 (State of Orissa v. R.C. Indrakumar (P) Ltd.). 6. In order to come to a decision it must be found as to whether the petitioners have any right in respect of the property in question. It cannot be denied that the petitioners have right to continue the possession unless they are evicted in due course of law. The petitioners are the owners of plot no. 976 on which the building is situate. The dispute between the parties is that the plots have been acquired by the State Government and that the structure has been constructed on the acquired land. Those statements have been made in the affidavit-in-opposition. But at the hearing no record was produced to show the acquisition or for that matter the recording of the part of plot No. 976 in the record of rights and thereafter merger in plot No. 861 which is a highway and no order has been produced before mc. Those statements have been made in the affidavit-in-opposition. But at the hearing no record was produced to show the acquisition or for that matter the recording of the part of plot No. 976 in the record of rights and thereafter merger in plot No. 861 which is a highway and no order has been produced before mc. In the circumstances, for the purpose of deciding the present case it must be stated that there is no effective denial of the assertion made by the petitioners that the plot on which the construction stands is a part of plot no. 976 and not plot no. 861. It appears further as far back as in 1962, when the construction of the building was going on, a complaint was filed under the Bengal Highway Act but the State failed to prove the acquisition, So the complaint could not be proceeded with and by order dated 11.11.63 the petitioner was acquitted and the petitioners were not found guilty under section 6(1) of the Bengal Highway Act. In view of this assertion it cannot be said that the petitioners arc not entitled to any relief as he has no legal right in question as argued by Mr. Gupta referred to the decision reported in (1) 78 CWN 183 (Corporation of Calcutta v. D.N. Sen) in support of his contention. In the said case their Lordships of the Division Bench held that the Corporation of Calcutta has the right under section 6(1) (h) proviso of the West Bengal Estates Acquisition Act to take possession of the property in question or on the other hand their Lordships held that the action of the Corporation of Calcutta had behind it the legislative sanction contained in the West Bengal Estates Acquisition Act. Under Art. 226 a legal right of the petitioners must be established. Their Lordships also held that in order to entitle to the relief under Art. 226 of the Constitution against interference with his property the petitioner must establish a legal right to the property in question. If the petitioner asserts a right which prima facie establishes a legal right and which requires adjudication then the court must inquire into that right-and if the right is established, then interference with that right in appropriate cases should be prevented by appropriate orders under article 226 subject to other conditions of that article. If the petitioner asserts a right which prima facie establishes a legal right and which requires adjudication then the court must inquire into that right-and if the right is established, then interference with that right in appropriate cases should be prevented by appropriate orders under article 226 subject to other conditions of that article. If however, the petitioner's right is not established or is not found to be tenable then the petitioner is not entitled to any relief under article 226. 7. In my opinion, the petitioners have prima facie title in respect of the property in question and have admittedly been in possession for long years. More so as far back in 1962-63 the respondent had failed to bring home the question of encroachment of the public Highway. The petitioners have established their title to the property for encroachment right against the high handed action of the executive whereby the valuable structure erected on the property was sought to be demolished. Moreover the respondent has not come forward with the relevant record at all to satisfy the Court that whatever title the petitioners had, they have lost it by acquisition or merger of the acquired portion of plot No. 976. 8. Mr. Gupta strongly relied upon the case reported in (2) AIR 1972 SC, 2112 (State of Orissa v. R.C. Indrakumar (P) Ltd.). In the case reported in AIR 1972 SC, 2112, the case was remanded to the Court below for decision as to whether the petitioner had title to the property in question and it was left to the High Court to consider the matter whether the examination of the question regarding the title should be disposed of on affidavit. In the present case there was an assertion by the petitioners about the title in respect of the property. In the affidavit the respondent denied it but at the hearing no record was produced in support of the assertion made in the affidavit. Therefore I have no option but to accept the assertion made in the affidavit which has not been properly controverted by production of the record. Mr. Gupta relied upon the case reported in 78 CWN 183 in support of his contention. Therefore I have no option but to accept the assertion made in the affidavit which has not been properly controverted by production of the record. Mr. Gupta relied upon the case reported in 78 CWN 183 in support of his contention. In the said case the Division Bench held that to obtain the relief under Art. 226 of the Constitution the petitioner must establish title in respect of the property and the respondent cannot by high-handed action dispossess the petitioner but the Division Bench also held that if there is no legislative sanction and if the petitioner can prove his title then the Government must proceed to dispossess the petitioner in due course of law and not by any high-handed executive action. I have held that the petitioners have title to the property in question. As there is no legislative sanction, the Government cannot dismantle the structure made by the petitioners without recourse to law and/or legal process as held by the Supreme Court in the case reported in AIR 1961 SC 1570 . Their Lordships of this Court followed the case but in deciding on the facts of the case came to a conclusion that section 6 (1) (h) proviso of the West Bengal Estates Acquisition Act gave the legislative sanction for the action taken by the Corporation in taking possession of the land in question. In that view, therefore, Mr. Gupta's contention cannot be accepted to be correct. In the facts and circumstances of the case the order passed by the Asst. Engineer as contained in the annexure, annexed in the affidavit-in-reply, cannot be sustained being arbitrary and without any sanction contained in law in question and must be quashed. The respondents are, therefore, restrained from dismantling the building in question without taking recourse to law or without legislative sanction. This order however will not prevent the respondent to takes such steps in accordance with law to evict the petitioners from the alleged encroachment by the Highways Act or to take such proceeding under the law as they may be entitled to. This order is without prejudice to the right of the respondents to prove on further evidence in any Court below when the respondents have right to evict the petitioners from the land in question. The decision has been made on the records produced. 9. The Rule is made absolute. This order is without prejudice to the right of the respondents to prove on further evidence in any Court below when the respondents have right to evict the petitioners from the land in question. The decision has been made on the records produced. 9. The Rule is made absolute. There will be no order as to costs.