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2016 DIGILAW 35 (CAL)

Sahadev Mudli v. State of West Bengal

2016-01-13

DIPANKAR DATTA

body2016
JUDGMENT : Dipankar Datta, J. 1. The petitioner suffered an order of removal of encroachment dated July 25, 2014, passed by the Sub-Divisional Magistrate, Tamluk, Purba Medinipur (hereafter the sub-divisional magistrate) exercising power conferred by sub-section (3) of section 10 of the West Bengal Highways Act 1964 (hereafter the Act). Such order was challenged in W.P. 22923(W) of 2014 by the petitioner. A coordinate Bench, by order dated August 8, 2014, granted leave to the petitioner to prefer an appeal against the said order before the District Magistrate, Purba Medinipur (hereafter the district magistrate) under sub-section (4) of section 10 of the Act. An appeal was preferred, which was disposed of by the district magistrate by ordering a remand. This writ petition was presented voicing a grievance that despite such order of remand passed by the appellate authority, the earlier order was being sought to be implemented without any fresh order being passed on such remand. 2. Being prima facie satisfied with the case set up by the petitioner, this Bench by an order dated July 28, 2015 had stayed the order dated July 3, 2015, passed by the Executive Engineer, Tamluk Highway Division Public Works (Road) Directorate fixing July 15, 2015 for the 'removal programme', for a limited period and made the writ petition returnable on July 31, 2015. On August 5, 2015, the interim order passed earlier was extended till August 31, 2015 and hearing was adjourned to enable Mr. Datta, learned Junior Government Advocate, representing the official respondents, to obtain appropriate instructions. 3. When the writ petition was considered next on August 26, 2015, Mr. Datta submitted that due notice was served on the petitioner to attend a hearing that was arranged in the office of the sub-divisional magistrate on January 27, 2015 (while acting in terms of the order of remand passed by the district magistrate) and that despite receiving such notice, the petitioner did not attend. An order dated January 27, 2015 was produced by Mr. Datta, passed by the sub-divisional magistrate wherein it was recorded as follows: "Conclusion:-- Hence, in the light of the observation and joint survey report made by the Block Land & Land Reforms Officer, Tamluk - II accompanied by the Assistant Engineer, Tamluk Highway Sub-Division, P.W.(Roads) Department. An order dated January 27, 2015 was produced by Mr. Datta, passed by the sub-divisional magistrate wherein it was recorded as follows: "Conclusion:-- Hence, in the light of the observation and joint survey report made by the Block Land & Land Reforms Officer, Tamluk - II accompanied by the Assistant Engineer, Tamluk Highway Sub-Division, P.W.(Roads) Department. I am setting aside the previous order passed on 25/07/2014 and of the opinion that there is reasonable ground to think fit that Sri Sahadev Mudli is responsible for the encroachment of land which is under plot No. 57/440 of Tamluk Highway Sub-Division, P.W.(Roads) Department. I also make an order authorizing the Executive-Engineer, Tamluk Highway Sub-Division, P.W (Roads) Department to recover possession and remove the encroachment in question Plot No. - 57/440 and to send a written requisition in such form to the Officer-in-charge, Tamluk Police Station (local police) or to any police officer superior in rank to such officer and on receipt of such written requisition, the police officer concerned shall render all necessary and lawful assistance as per the requirement of authorizing officer in this regard." 4. On perusal of such order, an affidavit was called for from the petitioner and while adjourning hearing of the writ petition till September 3, 2015, the interim order passed earlier was extended till September 18, 2015, if not directed otherwise in the meanwhile. 5. On September 3, 2015, the petitioner had filed an affidavit wherein he had pleaded that he had received no notice of hearing from the sub-divisional magistrate and that whatever signature was being shown to the Bench by the official respondents to be that of the petitioner, was not his signature. Allegation was also levelled that documents had been manufactured to suit the interest of the official respondents. 6. Since proceedings had been initiated for removal of encroachment on a highway, the Bench considered it fit and proper to keep the order dated January 27, 2015 ordering removal in abeyance and directed the sub-divisional magistrate to hear the petitioner on September 7, 2015 at 2 p.m. Other directions were given so as to ensure that principles of natural justice are not violated and that the petitioner is afforded full opportunity to raise defence. Hearing of the writ petition was adjourned till September 17, 2015 for reporting developments and the interim order extended till September 18, 2015. 7. Mr. Hearing of the writ petition was adjourned till September 17, 2015 for reporting developments and the interim order extended till September 18, 2015. 7. Mr. Datta produced the orders passed by the sub-divisional magistrate dated September 7, 2015 and September 11, 2015 before the Bench on the next date. It appeared from the order recorded on September 7, 2015 that the petitioner was duly heard and documents produced by him were perused, whereupon hearing was adjourned till September 11, 2015. The petitioner was again heard on the adjourned date and finally an order had been passed on September 11, 2015 to the following effect:-- "The petitioner, Sahadev Mudli filed hajiran on 08.09.2015, 09.09.2015, 10.09.2015 & 11.09.2015 in the court of S.D.M., Tamluk; Whereas, the petitioner submits that.... 1. The instant prosecution case has its origin and arising out of admittedly at the instance of the private complaint lodged by Sudarsan Maji. 2. So many shop room and establishment have been constructed besides the Highways and no such shop and establishment has been served with notice of eviction; And, Whereas, it is observed that the Highway authorities filed petition before this court for authorizing them to remove the encroachment on the basis of complaint of Sudarshan Maji, which does not contravene the provision of 10(3) of West Bengal Highway Act, 1964; And, Whereas, the other encroachments, as alleged, if any, do not come under consideration of this particular case as no such petition for consideration has been filed by appropriate authority u/s. 10(2) ibid. And, Whereas, from joint survey report of Block Land & Land Reforms Officer & Assistant Engineer, Tamluk Highway Sub-Division, P.W. (Roads) Deptt. Vide Memo No. 978/T-II/14 dated 10/11/2014, it appears that 'a Pucca Room' with Asbestos shed (Grill Karkhana) covering area 382.2 sq. feet. (877.41 sq. link) has been constructed by Sahadev Mudli S/o Sudarshan Mudli on the western side of the P.W.D.'s land plot No. 57/440, appertaining to road side, known as Haldia to Mecheda road side; And, Whereas there is reasonable ground to think fit that Sri Sahadev Mudli is responsible for the encroachment of the land which is under plot No. 57/440 of Tamluk Highway Division, P.W. (Roads) Deptt. in contravention of Section 8(1) of West Bengal Highways Act, 1964; Hence, in terms of Section 10(3) of West Bengal Highways Act, 1964, confirming the order of this court dated 27.01.2015, I do hereby authorize the Executive Engineer, Tamluk Highway Division, P.W.(Roads) Deptt. to recover possession and remove the encroachment from plot No. 57/440. The Officer-in-charge, Tamluk Police Station shall render all necessary and lawful assistance as per requirement of Authorized Officer in this regard." 8. Upon the order dated September 11, 2015 being produced in Court, Mr. Bhattacharya, learned advocate representing the petitioner complained that the joint survey referred to in the order dated September 11, 2015 was not conducted upon notice to the petitioner and that the report prepared in pursuance thereof was also not served on him. On September 21, 2015 the petitioner affirmed a supplementary affidavit wherein it was alleged that proper opportunity of hearing was not extended to him by the sub-divisional magistrate and documents produced by him did not receive the consideration the same deserved. Such affidavit was taken on record on September 22, 2015 and the parties were directed to exchange their affidavits. The interim order passed earlier was extended till October 15, 2015. Upon exchange of affidavits, the writ petition was finally heard on October 1, 2015. 9. In course of hearing, Mr. Majumder, learned advocate representing the private respondent, invited the attention of the Bench to paragraphs 9, 10, 11 and 12 of his counter affidavit dealing with the supplementary affidavit filed by the petitioner as well as the photographs annexed thereto. He contended that it would be evident therefrom that the petitioner had constructed a pucca structure on the edge of the metalled highway and by encroaching upon a 'nayanjuli' (a ditch, either full of or without water, which is normally found by the edge of a highway). According to him, by no stretch of imagination can any construction be raised on a 'nayanjuli' being a low land and it has not been established before the Bench that the petitioner is the owner of such land; on the contrary, it has been established in course of joint survey that the portion on the edge of the metalled highway whereon the petitioner has raised pucca structure belongs to the Public Works Department and accordingly, he is not entitled to any relief whatsoever on this writ petition. 10. 10. Significantly, the petitioner has chosen not to specifically deal with the contents of paragraphs 9, 10, 11 and 12 of the affidavit of the private respondent. 11. Mr. Bhattacharya was unable to explain how a pucca structure could be constructed on a 'nayanjuli'. His only defence was that there are others who may have encroached upon a highway but it was only the petitioner who is being targeted at the instance of the private respondent. 12. Law is well-settled that one claiming protection of Article 14 of the Constitution has to establish strength of his case on some legal basis and not by negative equality. Enforcement of negative equality would be to perpetuate an illegality, which is impermissible. 13. Mr. Bhattacharya was asked to show any perceived infirmity in the joint survey report, apart from the petitioner's allegation that the same was based on a survey conducted not on notice to him. Apart from contending that the petitioner had raised pucca structure not on a highway but on his own land, nothing of worth could be shown to inspire the confidence of this Bench to direct retention of the pucca structure raised by him. After all, a survey is a fact finding exercise and the Court of writ would be slow in going to the depth of the report based on such fact-finding exercise unless of course something glaring is brought to its notice shaking its foundation. 14. In view of absence of denial of the contents of paragraphs 9, 10, 11 and 12 of the affidavit of the private respondent by the petitioner and there being no apparent reason to doubt the correctness of the joint survey report, this Bench does not consider it necessary to direct a remand (assuming arguendo that the petitioner may not have been present at the time of the joint survey or that the report of such survey was not made over to him). 15. In Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P. and ors., reported in (2004) 4 SCC 281 , it was held: "64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. 15. In Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P. and ors., reported in (2004) 4 SCC 281 , it was held: "64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India." (underlining for emphasis by this Bench) 16. Since it is evident from the facts placed on record by the respective parties through their pleadings and particularly having regard to the fact that position of the petitioner's grill manufacturing shop is by the edge of the metalled highway and that too on a 'nayanjuli', which has not been denied, the conclusion is inescapable that the petitioner has raised pucca structure for his shop on a highway, and an order of remand for complying with natural justice would only be a mere formality. The petitioner has been extended full opportunity of hearing by this Bench and sufficient time has also been given (as indicated on the day the judgment was reserved) and would be given to him to re-locate his shop. Question of interference with the order passed by the sub-divisional magistrate directing removal of encroachment does not arise, on facts and in the circumstances and this writ petition merits no order. 17. The writ petition stands dismissed without costs. Question of interference with the order passed by the sub-divisional magistrate directing removal of encroachment does not arise, on facts and in the circumstances and this writ petition merits no order. 17. The writ petition stands dismissed without costs. The civil administration shall grant the petitioner time till February 12, 2016 to dismantle/pull down the pucca structure at his own cost, failing which the civil administration shall be at liberty to raze such structure and recover the costs thereof from the petitioner. 18. Keeping in mind the larger public interest, this Bench expresses hope and trust that should there be other shops in the vicinity of the petitioner's shop encroaching any portion of a highway, as alleged by him, the civil administration shall not leave any stone unturned to remove such shops too strictly in accordance with law. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.