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2008 DIGILAW 291 (CAL)

Dipti Kana Ghose v. West Bengal Highway Authority

2008-03-12

JAYANTA KUMAR BISWAS

body2008
Judgment :- (1). THE petitioner in this writ petition dated May 17th, 2007 is questioning the notices dated July 14th, 2006 and March 20th, 2007 issued by the assistant Engineer, P.W.D., Howrah Sub-division asking her (in the notices her name was wrongly mentioned as "tripti") to remove the encroachments particulars whereof were given in the notices. It was stated that she was under an obligation to remove the encroachments in terms of order made by the sub-divisional Magistrate, Sadar, Howrah. (2). BY issuing a notice dated February 6th, 2006 proceedings were initiated against the petitioner under provisions of the West Bengal Highways act, 1964. The notice was issued under Section 10 (1) calling upon her to remove the encroachments mentioned in the notice. She responded by writing a letter dated February 28th, 2006. She denied that she encroached upon any highway as alleged in the notice. The authority acknowledged receipt of her reply, and by a letter dated March 29th, 2006 informed her that the matter had been referred to the District Magistrate, Howrah for onward transmission to the executive Magistrate concerned for adjudication and decision in terms of the provisions of the West Bengal Highways Act, 1964. (3). FROM the executive Magistrate she did not receive any notice of any proceedings initiated against her in terms of the provisions of Section 10 (2). Admittedly, involving her the executive Magistrate did not adjudicate the questions connected with the alleged encroachments in terms of the provisions of Section 10 (3). Though the executive Magistrate did not hold that she had encroached upon any highway as alleged by the authorities of the public works department, the assistant engineer of the department issued the two impugned notices mentioning that in terms of decision of the executive Magistrate she was liable to remove the encroachments. Under the circumstances, she took out the writ petition. (4). THERE cannot be any doubt that so long as the question whether the petitioner has encroached upon any highway is not adjudicated and determined by the executive Magistrate in terms of Section 10 (3) of the West Bengal highways Act, 1964, there is no scope for any authority of the public works department to call upon her to remove the alleged encroachments in compliance with any order of any executive Magistrate. But as a matter of fact, such a course was adopted by the assistant engineer of the department who issued the two impugned notices. It is therefore evident that the notice cannot be sustained. (5). IT is to be noted that Mr Das, Counsel for the State (two Counsel are appearing for state and I have heard both of them), has produced an order dated June 25th, 2007 made by the Sub-divisional Magistrate, Howrah that the persons against whom allegations of encroachment were made by the public works department would submit their representations in writing within seven days from the date of receipt of notice under Section 10(3). It means that a notice under Section 10(3) was to be served on the petitioner, if proceedings were initiated also against her, giving her an opportunity to submit her response in writing before the executive Magistrate, and that appropriate final decision was to be given in the proceedings only after giving her an opportunity to adduce evidence in support of her case. (6). THERE is nothing to show that any Section 10 (3) notice in terms of that order of the executive magistrate dated June 25, 2007 was ever served on the petitioner. However, this is to be ascertained by the parties from the office of the Sub-divisional Magistrate, Howrah. Needless to say that if no notice was served on the petitioner under Section 10 (3) of the Act, then she is entitled to get such notice before final decision is given in any proceedings initiated against her, and that if notice was issued or final order was made without notice, her remedy, if any, will be either before the executive Magistrate who made the final order or before the competent forum or court empowered to entertain application or appeal against order of the executive Magistrate made under Section 10 (3). As the matter stands now, I only say that the two impugned notices cannot be sustained. (7). FOR these reasons, I dispose of the writ petition ordering as follows, the two notices dated July 14th, 2006 and March 20th, 2007 are hereby set aside. The authorities of the public works department and the petitioner will be at liberty to take their respective steps in accordance with the provisions of the west Bengal Highways Act, 1964, and any other law that may be applicable to the case. The authorities of the public works department and the petitioner will be at liberty to take their respective steps in accordance with the provisions of the west Bengal Highways Act, 1964, and any other law that may be applicable to the case. If the proceedings are pending before the executive Magistrate, then the petitioner will be at liberty to participate in them and contest them in accordance with law. If the executive Magistrate has already made finalorder against her, she will be at liberty to question such order before the appropriate forum or court in accordance with law. There shall be no order for costs. (8). URGENT certified xerox copy of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.