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2019 DIGILAW 55 (CAL)

Ashis Kumar Dey v. State of West Bengal

2019-01-11

PROTIK PRAKASH BANERJEE

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JUDGMENT : PROTIK PRAKASH BANERJEE, J. 1. Is the King above the law? Edward Coke even while throwing himself at the feet of James I of England (James the VI of Scotland) to save his neck, declaimed "The King is above all, save God and the Law" and this, at least three reigns after Henry the VIII had shown that he spoke for God. After five centuries, the question, which this writ petition raises, is whether the Government is above the Law. 2. The writ petitioners claim to be the co-owners of certain lands which are right behind government lands more specifically, lands which belong to the Public Works Department of the Government of West Bengal being L.R. Plot No. 844 under Mouza- Purusattampur, J.L. No. 47 Singur, District- Hooghly and so recorded and apparent from the Mouza map as stated in paragraph 3 of the writ petition. This land is recorded to be adjoining Baidyabati-Tarakeswar, a State Highway. This is not even denied in the Affidavits-in-Opposition nor commented on. 3. The State of West Bengal has made a law being the West Bengal Highways Act, 1964. It is still in force. State highways are governed under it. It provides, under Section 2(bb), by an amendment, to boot, as follows: - (bb) "Government road" means a road, vested in the Government, or under the control and administration of the Public Works Department of the State Government, and includes (i) the slope, berm, borrow-pits and side-drains of any such road; (ii) all lands and embankments vested in, or under the control and administration of, the said Public Works Department, and attached to a Government road; (iii) all bridges, culverts or causeways built on or across any Government road: and (iv) all fences and posts on any Government road or on any land attached to a Government road, and all road-side trees on such land: Provided that nothing in the definition shall affect the provisions or the Calcutta Municipal Act, 1951, or of any rule or by-law made thereunder, in so far as they empower the Corporation of Calcutta to take action in respect or the Government roads now under the control of the Corporation. 4. 4. It has also defined a "highway" (unless the context otherwise requires), to mean, under Section 2(c) of the Act of 1964: - "highway" means (1) any Government road, or (2) any other road, street, path, way or land, other than a national highway within the meaning of the National Highways Act, 1956, which is declared by the State Government to be a highway under section 3 and includes ] (i) the flanks, footpaths, pavements and drains adjoining such highway; (ii) all bridges, culverts, causeways, carriageways and other structures built on or across such highway; and (iii) any land in the possession of the State Government or any other authority adjoining such highway, used or intended to be used for purposes of the highway; 5. Therefore, on a plain reading of these provisions, the land which is vested in or under the control of the Public Works Department of the State of West Bengal, and attached to the Baidyabati-Tarakeswar road (a government road) as in paragraph 2 of this judgment is also a highway within the meaning of the Act of 1964, since it is a government road within Section 2(bb) of the Act of 1964. 6. There is a curious specialty of such a land. No encroachment, by any one whatsoever is permitted on such land without a prior permission to encroach being granted by a statutory authority under the Act of 1964. Encroachment is specially defined under the Act of 1964. As is the special duty I referred to above. For convenience the definition of encroachment is set out herein below: - Section 2(b): "(b) "encroachment" means any occupation or use of any highway or part thereof by any unauthorised person and includes any projection on, over or under such highway". 7. Section 8 of the Act of 1964 provides as follows: - 8 Permission to make encroachment.- (1) No person shall make any encroachment without obtaining previous permission in writing of the Highway Authority or any officer not below the rank of an Assistant Engineer authorized by him in this behalf. 7. Section 8 of the Act of 1964 provides as follows: - 8 Permission to make encroachment.- (1) No person shall make any encroachment without obtaining previous permission in writing of the Highway Authority or any officer not below the rank of an Assistant Engineer authorized by him in this behalf. (2) The Highway Authority or such officer may, having due regard to the safety and convenience of traffic and subject to such conditions and on payment of such fee or other charge as may be prescribed, grant a permit to any person to use or occupy temporarily any land appertaining to or adjoining a highway for such period as may be specified therein. (3) Any person holding a permit granted under sub-section (2) shall, if required, produce it for inspection before the Highway Authority or any officer authorized under sub-section (1) and shall on the expiry of the period specified therein restore the land under his use or occupation to its original condition and make over possession thereof to the Highway Authority or the officer referred to in sub-(1). 8. I find that the statutory provision being Section 8 does not make any distinction between the State of West Bengal, its officers, any statutory or constitutional authority or an individual or a trespasser so far as the necessity to obtain previous permission in writing of the Highway Authority or any officer not below of an Assistant Engineer authorized by him in this behalf. If and when such prior permission is sought, and the prescribed fee or charge is paid, such Authority may, having due regard to the safety and convenience of traffic and subject to such conditions as he impose, grant such prior permission only after which such person can even enter upon the land to occupy or use it. 9. The writ petitioners have alleged at paragraph 4 of the writ petition that the respondent no. 9 has tried to commence construction over the said land which has been referred to in paragraph 2 of this judgment, and for that purpose, has posted pillars there upon which was unauthorized and illegal because it was without the said prior permission issued by the Highway Authority. They have also alleged that this construction obstructed their free ingress and egress into their own land, behind the said land of the Public Works Department. 10. They have also alleged that this construction obstructed their free ingress and egress into their own land, behind the said land of the Public Works Department. 10. In an earlier round of litigation between the parties, a coordinate bench by an Order dated November 17, 2017 had directed the Executive Engineer, who was also the Highway Authority, to consider and dispose of the representation of the writ petitioners by a reasoned order after due hearing within a stated time. 11. The said Highway Authority/Executive Engineer, claimed to have personally inspected the site with the Assistant Engineer, Hooghly Construction Sub-Division III and other officials of the administration after the said order by the coordinate bench. Thereafter it issued due notices of hearing, and held due hearings on two days and accepted written notes of argument. By an order dated December 26, 2017 it ultimately held as follows: - "Prodhan, Nasibpur Gram Panchayet claimed that the Nasibpur Gram Panchayet has not make any construction upon the L.R. Plot No. 844 and also he claimed petitioner encroached the said P.W.D. Land and they constructed temporary latrine. He also claimed that the classification of L.R. Plot No. 33 is Doba. He also filed photocopy of L.R. record is Annexed-B. The Block Development Officer, Singur claimed that that West Bengal Govt. Project namely a "Karmathirthya" will be executed in Plot No. 844 measuring an area 7.27 decimal out of 30 decimal. In this regard red portion of the hand sketch map showing the proposed project of "Karmathirthya". Considered all the submissions and perused of those documents, written argument and report submitted by Assistant Engineer, P.W.D., Hooghly Construction Sub-Division No. III and I find that entire P.W.D. land of L.R. Plot No. 844 is laying vacant and there is no any construction upon the said plot. So question of obstruction for ingress and egress to the petitioners land namely L.R. Plot No. 33 does not arise at all. Hence, I dispose off the representation of the petitioner dt. 27.05.2017 issued through their Ld. Advocate being Annexure P-2 to the W.P. No. 16966 (W) of 2017 is disposed off as per order of the Hon'ble Justice Rajsekhar Mantha, J, High Court, Calcutta." 12. Therefore, as on December 26, 2017 the Highway Authority has recorded that the Panchayat authorities (respondent no. 27.05.2017 issued through their Ld. Advocate being Annexure P-2 to the W.P. No. 16966 (W) of 2017 is disposed off as per order of the Hon'ble Justice Rajsekhar Mantha, J, High Court, Calcutta." 12. Therefore, as on December 26, 2017 the Highway Authority has recorded that the Panchayat authorities (respondent no. 9) has claimed that it has made no constructions whatsoever, the State of West Bengal claimed it has a project it will execute upon it and most importantly that the land in question is "lying vacant and there is no construction upon the said plot. So, the question of obstruction for ingress and egress to the petitioners' land namely L.R. Plot No.33, does not arise at all." 13. However, in answer to the writ petitioners' allegations, the Affidavit-in-Opposition affirmed on behalf of the respondents no. 1 to 17 by the Junior Engineer, Water Resources and Development Directorate, Singur Development Block, has categorically stated at paragraph 5 thereof that while the respondent no. 9 is not carrying out any construction on the said land, the construction has been "undertaken by the Department of Panchayat and Rural Development, Government of West Bengal, through the Block Development Officer, Singur, Hooghly." Moreover, the photographs which have been produced before this Court by way of a supplementary affidavit clearly show structures and walls from January 14, 2018 till dates in February 2018, and they seem to be ongoing constructions. 14. Thus, it is clear that even if there had been no construction as on December 26, 2017, construction that is to say encroachment, as I have held above, has been continuing on the said land as in paragraph 2 of this judgment. The only way it could have been done lawfully, if there was a prior permission from the Highway Authority. Let me see what the Respondents have said themselves, in their Affidavit-in-Opposition. 15. In paragraph 3c of the Affidavit-in-Opposition, the deponent has admitted "A letter was also sent by the Block Development Officer, Singur, vide memo no. 236/1 dated 23.6.2017 to the Executive Engineer, P.W.D. Construction Division Hooghly seeking NOC for construction of Karmathiritha over the said land of P.W. Department attaching all relevant documents including approval of the District Magistrate, Hooghly. Yet he has not affirmed that the such prior permission for encroachment was granted by the said Highway Authority who is the Executive Engineer aforesaid. 16. Yet he has not affirmed that the such prior permission for encroachment was granted by the said Highway Authority who is the Executive Engineer aforesaid. 16. The letter referred to in paragraph 3c of the said Affidavit-in Opposition is dated June 15, 2017. It has a lot of interesting things to consider and none of them is complimentary to the respondents. It shows first that the land has not yet been departmentally transferred though a request for the proposed land has been sent to the Additional District Magistrate (Land Reforms) and so no construction could be made on it; it also shows that the "said land has been illegally occupied by some local people and are utilizing the land for their personal purposes. The local Gram Panchayet, i.e., Nasibpur G. P. and Singur Panchayet Samity has made dialogue with them and settled for the construction of the Karmathirtha". Most importantly a request was made to the said Assistant Engineer "to issue NOC to the undersigned for the successful implementation of a Govt. scheme". The only other annexure to the Affidavit-in-Opposition was the letter of that Assistant Engineer to the Executive Engineer dated June 23, 2017seeking action on this. The note sheet of approval from an authority different from the Highway Authority was also annexed. 17. So, it is clear that no prior permission in terms of the Section 8 of the Act of 1964 was given by the Highway Authority to the Respondent no. 1 State of West Bengal or to any of its authorities or anyone purporting to act under the authority of the respondent no. 1 or the respondent no. 5. Despite that, the Panchayat on behalf of the respondent no. 1 settled "for the construction" on the said land and as I have recorded, and the Respondent no. 1 and its officers took advantage of the construction and as appears from the pictures of the site in January-February 2018, there have been such construction. However exalted and beneficial the construction, the means do not justify the ends, especially in a democracy which says that it is ruled by law. The Rule of Law requires that the procedure prescribed by law must be followed. However exalted and beneficial the construction, the means do not justify the ends, especially in a democracy which says that it is ruled by law. The Rule of Law requires that the procedure prescribed by law must be followed. If a procedure has been prescribed by Section 8 of the West Bengal Highways Act, 1964 an encroachment as defined thereby must be done, even by the State of West Bengal and its agent, only in the manner prescribed or not at all. The government is not above the law. The law that it has made for "any person" applies with equal strictness to it. Any other mode of acting, is to be deemed to have been expressly prohibited. No precedent is required for this. This is settled law and is the basis of procedural ultra vires. Since the encroachment is procedurally ultra vires, it is a nullity as are all its consequences. 18. The writ petitioners have of course principally prayed in WP No.411(W) of 2018 for:- "(i) A writ of and/or writs in the nature of Mandamus be issued commanding the respondents authorities to quash and set aside the order dated December 26, 2017 passed by the respondent authority and to set aside the said report dated December 18, 2017 prepared by the Assistant Engineer PWD and take immediate steps to stop the said illegal and unauthorized construction over said PWD land lying and situate in front of the petitioners' land; (ii) A writ in the nature of mandamus be issued commanding the respondent authorities to demolish the illegal construction over the said PWD land lying and situated in front of the plot of lands of the petitioners." This is apart from praying for a writ of prohibition against the respondent no. 9 under the impression that it was he or at his instance the encroachment had been made and the illegal and unauthorized construction was being carried on. 19. The construction made on the lands as in paragraph 2 of this judgment are, for the reasons summarized in paragraph 17 of this judgment read with the discussion contained in the paragraphs which precede it, without jurisdiction and since they have been done at the instance of the officers of the State of West Bengal as admitted in the Affidavit-in-Opposition and recorded by me at paragraph 13 of this Judgment, the respondent no. 1 through its Block Development Officer and also its Secretary, Department of Panchayat and Rural Development, Government of West Bengal shall be responsible to demolish the construction and vacate the said lands within 4 weeks from the date of this order. Of course, if within such period the prior permission is granted by the Highway Authority this order shall not prevent the respondents from commencing construction afresh in accordance with law on the said lands. 20. So far as the connected case is concerned, WP No.412(W) of 2018 has been taken out by the writ petitioners on the contention that they have no convenient access to their lands being L.R. Dag No. 33 & 58 under Mouza- Purusattampur, J.L. No. 47, P.S. Singur, District- Hooghly situated on the Baidyabati-Tarakeswar Highway. They contend that in front of the said land, another plot of land belonging to the Public Works Department, being L.R. Plot No. 84 under Mouza- Purusattampur, J.L. No. 47 Singur, District- Hooghly is situated and the writ petitioners have no convenient approach to their said lands (L.R. a Dags No.33 and 58) unless they are allowed to have an approach road over the said Dag No.844 of the Public Works Department along with a culvert. This Dag No.844 is the self-same land in respect of which W.P. No.411 (W) of 2018. The respondents no in WP No.411 (W) of 2018 have disclosed in their Affidavit-in-Opposition a sketch map of the dags in concern showing the lands involved and the proposed Karmatirtha project of the State of West Bengal. This is at page 15 of the Affidavit-in-Opposition. On a plain reading of the said Affidavit-in-Opposition and taking the said sketch map as Gospel Truth I find that Dag No. 58 is not accessible from the Baidyabati Tarakeswar Highway without travelling over Dag No.844. It can be possible to go the opposite way, the existing Singur road. At any rate, the respondents have admitted the material facts alleged in WP No.412 (W) of 2018 by their said sketch map used in WP No.411 (W) of 2018 while denying the statement in paragraph 11 of the Affidavit-in-Opposition to the said WP No.411(W) of 2018. It can be possible to go the opposite way, the existing Singur road. At any rate, the respondents have admitted the material facts alleged in WP No.412 (W) of 2018 by their said sketch map used in WP No.411 (W) of 2018 while denying the statement in paragraph 11 of the Affidavit-in-Opposition to the said WP No.411(W) of 2018. Even assuming that a 10 feet wide passage has been given in respect of Dag No.33 at one corner, no access has been given to Dag No.58 to the Baidyabati Tarakeshwar Highway through the only way which lies over Dag No.844 belonging to the Public Works Department. A representation dated June 14, 2017 at Annexure P/2 has been made to the respondent no. 4 seeking permission to encroach Dag No. 844 to construct an approach road over the said land with culvert but it does not appear to have been considered or disposed of by the respondent no. 4. Accordingly, WP No. 412(W) of 2018 is disposed of by directing the respondent no. 4 to consider and dispose of Annexure P/2 after giving due opportunity of being heard to the petitioners by a reasoned order and after holding a physical joint inspection which shall not be complete without the presence of the petitioners or its duly authorized representatives. Since I have called for no affidavit in this writ petition, the allegations contained in it are deemed not to be admitted except for the situation of the lands of the petitioners as admitted by the respondents in their sketch map at page 15 of the Affidavit-in-Opposition used in WP No. 411 (W) of 2018. The respondent no. 4 shall exercise his discretion in terms of Section 8(1) of the Act of 1964 and on the basis of usual conditions imposed in such case and for the prescribed fees and charges. The entire exercise shall be completed within 4 weeks from date of communication of the order. Both the writ petitions are disposed of on the above terms. 21. No order as to costs. 22. Urgent Photostat Certified copy be delivered to the parties, if applied for, upon compliance of all formalities.