Radhagobinda Das And Others vs State Of West Bengal And Others

Sabyasachi Bhattacharyya, J

As per leave granted to the petitioners and in view of all parties being represented, the matter is treated as on the day's list and taken up for hearing.

The grievance of the present petitioners is that, despite the petitioners being co-owners of a plot of land, and a civil court having decided against the private respondents and in favour of the petitioners in respect of the said plot of land, the Sub-Divisional Magistrate, Egra, by the impugned order dated November 6, 2019 passed in a proceeding under Section 10(3) of the West Bengal Highway Act, 1964, directed the Assistant Engineer, PWD, Contai, to take appropriate steps to remove the encroachers where the encroachment has been made over the Government land along the road and submit a compliance report before that court immediately.

Upon hearing both sides, it is evident that already there is a decree by a competent civil court dismissing the suit filed by the private respondents against the present petitioners, for declaration of the title of the private respondents and consequential reliefs.

Moreover, a direction was passed by a Division Bench of this Court on September 13, 2019, which gives the petitioners adequate opportunity to be heard before the authorities, which are to adjudicate upon the question as to whether the present petitioners were liable to be evicted from the said premises as encroachers. It is further clear from the said order of the Division Bench that all their contentions, including the jurisdiction of the authorities under the State Highways Act, as well as the applicability of that Act to the parcel of land in question since they form the jurisdictional fact for any authority to exercise power under the provisions of the State Highways Act, were kept open. It was also observed in the said judgment of the Division Bench that none of the findings therein or by the learned single Judge, whose order had been challenged in the appeal before the Division Bench, would impair the due course of adjudication of any civil suit and also would not negate any right of the parties to seek relief in accordance with law from appropriate jurisdictions on conclusion of proceedings under the State Highways Act, 1964, be it either way. In the light of such observations and in view of several disputed questions of fact being involved in the matter in dispute, it prima facie appears that the Sub-Divisional Magistrate acted without jurisdiction in not adverting to the materials on record or to the arguments of the parties and in passing a half-page cryptic order on the matter.

However, since the petitioners have an equally, if not more, efficacious alternative remedy in the form of an appeal under the 1964 Act itself against order impugned herein, this Court is not inclined to interfere under Article 226 of the Constitution of India, more so, since it would be a handicap to this Court to go into the detailed disputes of fact which are contended by the parties, which may require evidence to be considered, which falls, in turn, within the domain of the appellate forum.

Accordingly, W.P. No.179 (W) 2020 is disposed of by granting the petitioners liberty to approach the appellate forum against the order dated November 6, 2019 passed by the Sub-Divisional Magistrate at Egra, which is impugned herein, with a properly constituted challenge. In the event such an appeal is preferred, along with an application, if any, for condonation of delay in filing the same, the said appellate forum will consider those on their own merits in accordance with law, without being unduly influenced by any of the observations made herein. In view of the prima facie observations made herein, which would have no bearing on the adjudication before the appellate authority, however, the petitioners are at least entitled to a limited protection prior to their preferring the proposed appeal. Hence, the operation of the impugned order dated November 6, 2019 is stayed for a fortnight from date, subject to the petitioners' preferring an appeal and connected applications, if any, within a week, before the appropriate appellate authority. It is made clear that it will be open to the appellate authority to extend or vacate the limited interim order granted herein, without further reference to this Court.

Liberty is granted to the advocate-on-record for the petitioners to take back the certified copy of the impugned order from the department upon compliance with due formalities.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be given to the parties upon compliance with all requisite formalities.