The provisions of Section 10 of the West Bengal Highway Act 1964 deals with removal of encroachment of any Highway, which is quoted below:
"10. Removal of encroachment -(1) if any person,-
a) is found to have made an encroachment on any road, street, path, way or land which is declared to be a highway under sub-section (1) of section 3, or
b) makes an encroachment on a highway in contravention of the provisions of section 8, or
c) does not remove an encroachment on the expiry or cancellation of any permit granted to him, the Highway Authority or any officer authorised by him in this behalf shall serve a notice on him requiring him to remove the encroachment and restore the highway to its original condition within the period specified in the notice.
2) If the encroachment is not remoed within the time specified in the notice, the Highway Authority or the officer authorised under sub-section (1) may make an application to [an Executive Magistrate], having jurisdiction over the area, not being the District Magistrate, for removal of the encroachment and delivery of possession of the land encroached upon to the Highway Authority or such officer.
3) Such Magistrate may, on receiving the application and after notice to the person responsible for the encroachment and on taking such evidence, if any, as he thinks fit, make an order authorising the authority or officer to recover possession and remove the encroachment in question and may, if necessary, direct the police to assist in the enforcement of the order.
4) If the person responsible for the encroachment in aggrieved by the order of the Magistrate made under sub-section (3) he may, within fifteen days from the date of the Magistrate's order, appeal to the District Magistrate. The District Magistrate shall, after hearing the parties, made an order affirming, modifying or setting aside the order made under sub-section (3)."
On a plain reading of the said provision I find that if any person, is found to have made an encroachment on any road, street, path, way or land which is declared to be a Highway in contravention of the said Act, first of all a notice has to be issued against him for removal of such encroachment and to restore the Highway to its original condition within a period specified in such notice. Only when such order is not carried out within the period as specified in the notice, the concerned authority is to apply before the Executive Magistrate having jurisdiction over the area for removal of the encroachment and delivery of the possession of the land encroached upon to the Highway authority. The Magistrate upon receipt of such application is to summon the person responsible for the encroachment and after taking such evidence as he may think fit, is to make an order authorizing the authority concerned to recover the possession and remove the encroachment in question and at the same time may direct the police to assist in the enforcement of such order. However, neither from Annexure 'P-3' nor from any material produced before this court, it is found the requirement of law has been followed.
Calcutta High Court (Appellete Side)
Ataur Rahaman vs State Of West Bengal & Ors on 23 April, 2014
The writ petitioner claimed to be the lawful owner of
20 decimals of land comprised in plot nos. 2940 and 2941, khatian no. 148, within mouza Haranagar,
District : Nadia and a residential house situated thereon. It is his further case that
his house is situated abutting the State Highway. Which is not only used for movement of
the vehicles but also used by the local people as footpath. It is his further
case but the private respondents have
unauthorisedly and illegally constructed a temporary structure on the said footpath just in front of his house and blocked his entrance and started running a shop.
It is now vehemently contended by the learned counsel of the petitioner such illegal construction of structure has not only caused a great inconvenience to the petitioner and the members of his family towards their free ingress and egress from their residence but also caused serious inconvenience to the free movement of the members of the public. It is further contended when the same has been brought to the notice of the Assistant Engineer, Palasi Highway Sub-division P.W. (Roads) Directorate, Palasi, Nadia, the said Assistant Engineer by an order, being Annexure 'P-3' to this writ application, asked the private respondent to immediately remove the said unauthorised structure from the Government land. Although the order was duly communicated to the concerned police station for taking necessary action in this regard, however, till date no steps have been taken for removal of the same.
While addressing this court, the learned Counsel for the writ petitioner submitted that he is not pressing for the relief sought for against prayer (c) and it would be enough if the relief sought for against prayers (a) and (b) is granted.
On the other hand, Mr. Jaharlal De, the learned Senior Government Advocate submitted that in terms of Sections 8 and 10 of the West Bengal Highways Act, in a case when any unauthorized construction is made on the State Highway, the competent authority, i.e., the concerned Assistant Engineer, is to issue a show cause notice to the person concerned, who is allegedly encroaching the State Highway and after giving him the reasonable opportunity of hearing, if he is satisfied that such person has no lawful right thereof, he has to refer the matter to the Executive Magistrate having the jurisdiction over the area for taking action in accordance with law. Whereupon the Executive Magistrate has to initiate a proceeding under sub-Section 2 of Section 10 of the said Act and finally to make a final order for removal of such obstruction. Mr. De then submitted that the Annexure 'P-3' is not in consonance with the provisions of West Bengal Highway Act. Therefore, the petitioner cannot seek a mandamus for enforcement of such order.
This writ application has been filed for enforcement of the order passed by the Assistant Engineer, Palasi Highway Sub-Division P.W. (Roads) Directorate being Annexure 'P-3' with police assistance. In exercise of writ jurisdiction the relief sought for cannot be granted inasmuch as the order in question was not passed in accordance with the provisions of West Bengal Highway Act.
The provisions of Section 10 of the West Bengal Highway Act 1964 deals with removal of encroachment of any Highway, which is quoted below:
"10. Removal of encroachment -(1) if any person,-
a) is found to have made an encroachment on any road, street, path, way or land which is declared to be a highway under sub-section (1) of section 3, or
b) makes an encroachment on a highway in contravention of the provisions of section 8, or
c) does not remove an encroachment on the expiry or cancellation of any permit granted to him, the Highway Authority or any officer authorised by him in this behalf shall serve a notice on him requiring him to remove the encroachment and restore the highway to its original condition within the period specified in the notice.
2) If the encroachment is not remoed within the time specified in the notice, the Highway Authority or the officer authorised under sub-section (1) may make an application to [an Executive Magistrate], having jurisdiction over the area, not being the District Magistrate, for removal of the encroachment and delivery of possession of the land encroached upon to the Highway Authority or such officer.
3) Such Magistrate may, on receiving the application and after notice to the person responsible for the encroachment and on taking such evidence, if any, as he thinks fit, make an order authorising the authority or officer to recover possession and remove the encroachment in question and may, if necessary, direct the police to assist in the enforcement of the order.
4) If the person responsible for the encroachment in aggrieved by the order of the Magistrate made under sub-section (3) he may, within fifteen days from the date of the Magistrate's order, appeal to the District Magistrate. The District Magistrate shall, after hearing the parties, made an order affirming, modifying or setting aside the order made under sub-section (3)."
On a plain reading of the said provision I find that if any person, is found to have made an encroachment on any road, street, path, way or land which is declared to be a Highway in contravention of the said Act, first of all a notice has to be issued against him for removal of such encroachment and to restore the Highway to its original condition within a period specified in such notice. Only when such order is not carried out within the period as specified in the notice, the concerned authority is to apply before the Executive Magistrate having jurisdiction over the area for removal of the encroachment and delivery of the possession of the land encroached upon to the Highway authority. The Magistrate upon receipt of such application is to summon the person responsible for the encroachment and after taking such evidence as he may think fit, is to make an order authorizing the authority concerned to recover the possession and remove the encroachment in question and at the same time may direct the police to assist in the enforcement of such order. However, neither from Annexure 'P-3' nor from any material produced before this court, it is found the requirement of law has been followed.
Having regard to above, although the relief sought for cannot be granted by directing the Assistant Engineer, PW (Roads), Palassey Division, respondent no. 5 to enforce his order with police help but the said respondent very well be directed to proceed in accordance with the provisions of West Bengal Highway Act referred hereinabove.
Accordingly this writ application stands disposed of, directing the respondent no. 5 to take steps in accordance with the provisions of West Bengal Highway Act. Such steps must be taken within eight weeks from the date of communication of this order.
Urgent xerox certified copy of this order, if applied for, be given to the parties at an early date.
(Ashim Kumar Roy, J.)
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