Constitutional Writ Jurisdiction v. The State of West Bengal & Ors.

Judgment

1. Despite service, none appears for most of the respondents. Some of the private respondents are represented through counsel. Learned counsel for the said private respondents submits that there are 71 alleged encroachers/noticees in total. The private respondents, who are represented today, have not

challenged the notice issued to them.

2. Affidavit-of-service filed in Court today be kept on record.

3. The grievance of the petitioners is that the Sub- Divisional Magistrate (S.D.M.), who was taking up the proceedings under Section 10 of the West Bengal Highways Act, 1964 dropped the said proceedings on 2 two counts. The first ground was that the land acquisition map with clear demarcation of land under Ownership of PWD (Roads) Department was not before him, for which he could not adjudicate the matter on merits. The second ground was that proper service of notice within the contemplation of Section 24 of the said Act was not established.

4. It is contended by learned counsel for the petitioners that the noticees/alleged encroachers had themselves preferred a writ petition challenging the said notice and, as such, it could not be said that the same was not properly served. Learned counsel hands over a photocopy of the previous writ petition with annexures including the notice, which is kept on record.

5. A perusal of the impugned order shows that the S.D.M. proceeded on the premise that Section 24 of the 1964 Act mentions about the manner of service of notice. It was recorded in the impugned order that in the report referred to in the said order the Assistant Engineer, Contai PWD (Roads) mentioned that the notice could not be served upon the encroachers due to forcible impeding by local people at Kudi Bazar.

6. However, the impugned order goes on to mention that the said Engineer was silent on other modes of service of the notice as stated in Section 24 3 of the 1964 Act, which could have been availed and executed.

7. Quoting another Memo bearing No. 954(2) dated July 10, 2017 and a third Memo bearing No. 1016 dated July 27, 2017 of the Assistant Engineer, the S.D.M. recorded that it appears that police force was engaged for service of notice with intervention of S.D.M., Egra.

8. However, the S.D.M. proceeded on the frivolous and hyper-technical premise that there was no corresponding document or report from them which would corroborate the claim of the Assistant Engineer, PWD (Roads). In the same plots, Block Land & Land Reforms Officer, Egra-1, had earlier conducted demarcation exercises and submitted reports thereof with no complaint of public opposition.

9. Merely because the BL & LRO had filed a report in a different proceeding without any public opposition, it cannot be construed that the Assistant Engineer, PWD (Roads) made incorrect statements regarding resistance of local people in as many as three memoranda, which was filed before the S.D.M.

10. It is well-settled that under the provisions of Section 114 of the Indian Evidence Act, official and judicial acts are deemed and presumed to have been done correctly, unless rebutted by cogent evidence. 4

11. In the present case, let alone being rebutted, no contention has been recorded on behalf of the alleged encroachers in that regard at all. The S.D.M. took it upon himself to proceed on a hyper-technical approach on the issue and construe that notice had not been served, despite three reports of the Assistant Engineer being on record that the notice was served with police help.

12. Even that apart, the petitioners are justified in arguing that when the alleged encroachers/noticees themselves preferred a previous writ petition challenging the very notice itself and annexing a copy thereof to the said writ petition, a copy of which is submitted in court today, despite subsequently having withdrawn such writ petition, it cannot be gainsaid that notice must have been served properly on the alleged encroachers. Hence, the S.D.M. committed a palpable jurisdictional error and proceeded on a perverse basis to shirk his duties in desisting from adjudicating the proceedings on merits.

13. Insofar as the other “grievance” of the S.D.M. is concerned, it was well within the domain of the S.D.M. to direct the appropriate authorities to produce a proper land acquisition map with clear demarcation of land and/or any other cogent document to establish the allegation of encroachment. Without doing so, the 5 S.D.M. adopted an oblique method in dropping the proceeding altogether on the ground that sufficient material was not available. The power of the S.D.M. under Section 10 of the 1964 Act is to allow or decide the disputes which arise under the said provisions. The Magistrate cannot drop such a proceeding at the drop of a hat merely on the ground that sufficient materials were not presented before him.

14. Thus, W.P.A. No. 22875 of 2022 is allowed, thereby setting aside the impugned order dated August 31, 2022 passed by the Sub-Divisional Magistrate, Egra insofar as the observations of the said Magistrate regarding the notice being insufficient is concerned and insofar as the proceedings were dropped and fresh proceeding for eviction were directed to be drawn up. The concerned S.D.M. shall now proceed from the stage where the proceeding had reached at the time of passing of the impugned order dated August 31, 2022.

15. The rest of the observations and findings in the said order shall remain intact. However, the S.D.M. shall proceed on the premise that notice was duly served on all the respondents/alleged unauthorized encroachers therein.

16. It will be open to the S.D.M. however to direct the concerned authorities to produce a proper land 6 acquisition map and/or any other corresponding document to substantiate the case of encroachment made out in the said proceedings.

17. The merits of the matter have not been gone into by this Court and it will be open to the S.D.M. to decide the proceedings independently and accordance with law.

18. It is expected that the proceeding shall be disposed of in the light of the above observations at the earliest, positively within two months from the date of communication of this order to the said Sub-Divisional Magistrate.

19. There will be no order as to costs.

20. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance all necessary formalities. (Sabyasachi Bhattacharyya, J.)