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Judgment
Petitioners by this writ petition have sought issuance of writ of mandamus commanding respondents not to give any effect or further effect on decision
for constructing pucca village road through petitioners’ bastu plots of land being R.S. Plot no. 915, L.R. Plot no. 1023 and 1023/1777 of area 14
decimals and R.S. Plot no. 898/1623 being recorded as L.R. Plot no. 927, area 8 decimals and R.S. Plot no. 914/1638, being L.R. Plot no. 1022 of
area 10 decimals in Mouza Purushottampur under P.S. Panskura. This writ petition having been moved interim order dated 25th February, 2014 was
made by a coordinate Bench.
Record in order dated 7th May, 2018 is reproduced below :
“It appears from order sheet this writ petition was moved on 25th February, 2014. Inter alia, District Magistrate, Purba Medinipur was requested to
visit the site along with local revenue officials to ensure that petitioners’ land is not encroached on in any manner and, that if there is any building
materials which has been placed on the petitioner’s land by State or its agencies, same were to be removed without delay. The District Magistrate
filed a report dated 19th March, 2014. It would be sufficient to extract a part which is relevant.
“1. The road in question is a Kucchha road, used as pathway by local residence over a long period. The R. S. Map also shows a pathway along the
said land. The said road connect the Tamluk Panskura road to Purushottam pur Gram Panchayet Office (R. S. plot no. 915 & 914) and is also used by
the villagers of seven Anchals, as per information provided by the local residence.
The petitioner claims that though the easement right over the portion of pathway, claimed by him exists; it falls within his ‘Vastu’
demarcation and hence, no road under Pradhan Mantri Gramin Sadak Yojana or any other project may be constructed over the portion of pathway
without lawfully following the procedures and obtaining his permission.â€
Mr. Dhar, learned advocate appearing on behalf of State wants to rely on memo dated 22nd August, 2016 issued by the District Magistrate stating
therein that land had been erroneously recorded in the name of Amal Bhunia, Anit Bhunia and Chitta Ranjan Bhunia. There is litigation and orders
made which is why correction in the records could not be made. On query from Court he confirms, report dated 19th March, 2014 had been filed by
him.
A question of law arises on appreciation of the report. The facts, according to the District Magistrate, are that there is a right of easement being
enjoyed by people of the locality over petitioners’ land. The pathway exists. The question is whether construction can be made in exercise of a
right of easement? Whether a path can be made into a road? Parties will be heard.â€
Petitioners’ case is that the land belongs to them. They are recorded as raiyats in respect of the land. It is admitted that local village people have
enjoyed and are enjoying right of passage by way of easement over petitioners’ land. Their grievance is, this easement right is now being
converted into a pucca road for use by vehicles including heavy vehicles. Petitioners’ grievance is that if such is to be done State must acquire
their land for purpose of building pucca road.
Mr. Dhar relies on sections 4 and 5 in West Bengal Estates Acquisition Act, 1953. He emphasizes that under section 4, by notification there was
vesting of estates and rights of intermediaries. Right of intermediary over this land stood vested on notification made. Relying on clause (a) under sub-
section (1) in section 5 he submits, effect of such notification was vesting of rights of intermediaries in, inter alia, other sairati interests as well. This
easement right of passage is a sairati interest and as such stands vested in State. Petitioners cannot obstruct construction of road under Prime
Minister’s Scheme.
Mr. Gupta, learned advocate appears on behalf of respondent nos. 16 and 17 and relies on disclosures in his client’s affidavit at pages 17, 20 and
85, amongst others. Disclosures at pages 17 and 20 of the affidavit give information regarding Dag numbers. In respect of Dag numbers of land
claimed as belonging to petitioners, information given is that the category of Dag of land is path, owned by petitioners and used by common people.
Disclosure at page 85 he relies upon as evidence to show that this path is the only access common people have to reach bus road. Such disclosure is
letter dated 21st June, 2001 written by Block Land and Land Reforms Officer, Panskura-I, to Sub-Divisional Executive Magistrate, Tamluk. Relied
upon text in the letter is extracted below :-
“The plot no. L.R 1777 is of paramount importance to the villagers and it is the only sagement of a path without which the common people can not
reach the Bus road of Tamluk â€" Panskura route from the neighbouring villages. And like wise, the villagers have no access to their villages from the
Bus stop purusatampore unless they treated on the said plot no. (L.R.) â€" 1777.
This is for favour of his kind perusal.â€
He submits, heavy vehicles like tankers transporting oil to his client’s depot are using the path, which is a road and should be made pucca. On this
depends his client’s business. Mr. Yadav, learned advocate appears on behalf of respondent nos. 12 to 15 and adopts submissions made by Mr.
Gupta.
Order sheet will reveal opportunities were granted to respondents for them to demonstrate position in law regarding asserting right of easement by
building pucca road. A right of easement enjoyed by common people over petitioners’ land is obviously a right of passage over another’s land.
This right in no way militates against ownership of the land being asserted by the owner who must allow the easementary right over his land. From
documents disclosed and reports filed position is clear that the right enjoyed is right of easement. State’s contention that because of existence of
such right of easement petitioners are liable to have their plot divided on either side of the path is an assertion without support of any provision of law
or judgment to that effect. State also failed to establish that a right of passage over another’s land is a sairati right. In any event petitioners claim
to be raiyats and not intermediaries. State could not disclose appropriate notification for petitioners to be treated as intermediaries.
Court is convinced petitioners are entitled to relief. Interim order dated 25th February, 2014 is confirmed to effect that building materials dumped as an
encroachment to petitioners’ land, if still lying dumped, must be immediately removed. State, if it is successful in causing correction in the record
regarding petitioners’ claim of being raiyat in respect of the land categorized as path, they may then construct pucca road without resorting to
acquisition proceedings, failing which if a pucca road is to be constructed through petitioners’ land, it must be duly acquired. With these directions
writ petition is disposed of. Connected application is also disposed of.