Calcutta High Court (Appellete Side)
Basudeb Raul vs State Of West Bengal & Ors on 8 August, 2025
ASR 5.
Ct. no. 24.
8.08.2025
WPA 27817 of 2022
With
CAN 2 of 2023
Basudeb Raul
Vs.
State of West Bengal & Ors.
Mr. Subhadeep Chatterjee
Ms. Aritra Kundu
.....For the petitioner
Mr. Soumitra Bandopadhya
Mr. Subhasis Bandopadhyay
......For the State
Mr. Balaram Pandit
Mr. Arghadip Das
....For the respondent no 6
Respondent authority in pursuance to an order of
a Co-ordinate Bench of this court in WPA 5374 of 2022
(Sanjita Manik -Vs- State of West Bengal) vide its order
dated 22nd July, 2022 issued a memo to the petitioner
on 21st September, 2022 and directed the petitioner to
appear before the chamber of the Executive Engineer
PWD, requiring the petitioner to produce all deeds and
documents in support of his possession over
Government land bearing plot no. 408 infront of plot
no. 204, Mouza -Chakpur, Satampur under police
station Belda in the District of Paschim Medinipur.
Thereafter, a notice under Section 10(1) of West Bengal
Highways Act, 1964 was issued by the Assistant
2
Engineer, PWD, Kharagpur Sub Division upon the
petitioner on 29th September, 2024.
The matter was referred to the SDO, Kharagpur,
wherein the SDO, Kharagpur was issued a notice under
Section 10(2)/10(3) of the West Bengal Highways Act,
1964 for personal hearing of the petitioner.
The petitioner appeared before the SDO in
personal hearing and placed his reply to the notice.
After hearing the petitioner, the SDO concerned has
passed an impugned order on 7th December, 2022,
which is impugned before this court.
Learned counsel for the petitioner challenged the
order on three fold grounds:
Firstly, it is the contention of the petitioner that
before passing the order an enquiry was held by the
concerned Block Land & Land Reforms Officer in
respect of demarcation of the land under encroachment
the said report was not served upon the petitioner
before passing the impugned order. Thereby the
petitioner was not given proper hearing. Thus the
impugned order suffers violation of natural justice.
Secondly, it has been challenged by the
petitioner that the concerned authority, who served the
notice under Section 10(1) of the West Bengal Highways
Act, 1964 is not authorized person to issue such notice,
i.e. the proceeding initiated by the authority concerned
is without jurisdiction.
3
Thirdly, the concerned SDO, that is, Sub-
Divisional Magistrate, Kharagpur under Kharagpur
Division has no jurisdiction to pass the impugned order
i.e. the order impugned is without jurisdiction and
liable to be set aside.
It is the further contention of the petitioner that
he is not the occupier of plot no. 418 under Mouza-
Chakpur, Satampur within police station Belda in the
District- Paschim Midnapur, whereas he is possessing a
plot no. 208/408 under Mouza-Chakpur, Satampur,
under JL no. 713.
It is the contention of the petitioner that by the
impugned order the petitioner cannot be removed. He
further submits that being the occupier of the land the
petitioner has every right to challenge the jurisdiction or
the authority of the officer concerned, who were not
engaged to deal with the matter.
Learned counsel appearing on behalf of the State
authority raised strong objection and submits that the
petitioner being a unauthorized occupant has no
authority to challenge the jurisdiction of the officer, who
initiated the proceeding in terms of the order of a Co-
ordinate Bench of this court passed in WPA 5374 of
2022.
It is the further contention of the respondent
authority that the officers concerned are duly
authorized by notification of the Government to deal
4with this matter under West Bengal Highways Act,
1964.
It is the further contention of the State authority
that the impugned order is appealable order, thus the
petitioner should have approached the concerned
authority according to Section 10(4) of the said Act but
he straight way appear before this court only to
frustrate the order passed by the learned SDO.
It is further contention of the State authority that
the SDO had committed no error in passing the
impugned order so that the instant writ petition has got
no merit.
Having heard the learned counsel for the parties,
it appears that the issue of jurisdiction of authorities
who passed the impugned order and initiated the
proceeding was before this court during the pendency of
the instant matter. This court has issued direction
upon the authority to submit the report regarding
authority of the officers. The respondent authority has
placed the report along with the concerned
notifications. The said notifications were subsequently
challenged by the petitioner by filing exception.
In deciding the entire matter on merit it appears
that the jurisdiction of the officers passed the impugned
order was never challenged in the writ petition itself.
There are no pleadings or no prayers before this court
5to issue mandamus to issue writ, so that, the
jurisdiction of the authority can be challenged.
However, during the course of hearing of this
matter several documents regarding notification of the
Government was placed by the respondent which are on
the record and are satisfactory.
The writ petition is filed by the petitioner
challenging the impugned order issued by the
concerned Sub-Divisional officer on 2nd December,
2022. It appears that the petitioner has primarily
challenged the impugned order with a ground that the
impugned order was passed by violation of natural
justice.
It has been argued specifically that before passing
the order the concerned SDO has enquire the spot
thorough the concerned Block Land & Land Reforms
Officer, who submitted an enquiry report but such
report was not served upon the petitioner. Thereby
petitioner’s right for hearing was infringed. Petitioner
has annexed information of concerned land maintained
by the Land & Land Reforms refuge relief department,
wherefrom it appears that plot no. 208/418 having
classification “Nayanjuli” is a Government land.
The State authority has placed two reports to
justify their action. Reports affirmed by the State
authority on 6th January, 2023 contained a report of
Block Land & Land Reforms Officer, Narayangar to Sub
6Divisional officer Kharagpur, Paschim Midnapore dated
30th November, 2022.
A report of the State authority affirmed on 6th
January, 2023 contained a report of Assistant
Engineer, PWD, Kharagpur Division.
I have perused the report.
All reports contained the proof possession of
petitioner over plot no. 408. The report of Block Land &
Land Reforms Officer contained plot no. 418 as well as
plot no. 208/418 measuring about 5 decimal are the
same plots. It is true that the petitioner was heard by
the concerned SDO before passing the impugned order.
The report contained merely possession of the
petitioner which in their version is unauthorized
occupation over the plot no. 418 as well as plot no.
208/418. Non service of the report of the concerned
Block Land & Land Reforms Officer upon the petitioner
appears to be not so vital for the petitioner for that his
right of hearing has been severely affected or he has
been prejudiced.
Moreover, during submission of his reply before
the SDO concerned the petitioner never stated or
pleaded that he was possession over plot no. 208/418
not in plot no. 418. Moreover during the course of
hearing he never asked for any report from the SDO
concerned filed by Block Land & Land Reforms Officer.
Thus, the principle of violation of natural justice which
7has its stretch up to the sky can only be conceded if it
affects the right of the petitioner or if it appears to be so
fatal that can prohibit the petitioner to raise the defense
properly.
In the present case in my view non service of the
report of the Block Land & Land Reforms Officer
regarding the possession of the petitioner over the
disputed land has not affact the petitioner’s right to
demonstrate his case before the concerned SDO.
Moreover, though the point of jurisdiction of the
authority concerned was never pleaded by the petitioner
but during course of hearing before this court the
respondent authority submitted necessary G.O.
wherefrom it appears authority of the concerned SDO
has already been notified by the Government vide its
notification dated 5th April, 2022 as well the notification
for declaring the authority of the public work
departments concerned under the West Bengal
Highways Act, 1964 has been properly placed.
The petitioner has raised some objection
regarding the jurisdiction of Medinipur Division to
conduct the hearing. It is the submission of the
petitioner that the Kharagpur Division is now the
authority after bifurcation of Jhargram District from
Medinipur District. The point raised by the petitioner
before this court is not a part of the issue involved in
8this matter. Thus I refrain myself to comment on this
point.
Consideration of the entire issue involved herein,
the petitioner has challenged the impugned order
passed by the concerned SDO, it appears that the
notice under Section 10(1) has properly served upon the
petitioner. Thereafter, the concerned SDO has issued
notice under Section 10(2)/10(3) of the West Bengal
Highways Act, 1964.
A scope of hearing was given to the petitioner,
after hearing the concerned SDO opined that the
petitioner is under unauthorized occupation over the
Government land so the concerned SDO directed the
concerned authority to remove the unauthorized
structure.
I find nothing illegality or arbitrariness on the
part of the concerned Sub Divisional Officer to pass
such order.
Accordingly I find no justification to entertain the
petitioner.
Under the above observation, the instant writ
petition is appear to me not meritorious. Thus the same
is dismissed and disposed of.
It appears that the order impugned is an
appealable order under sub Section 4 of Section 10 of
the West Bengal Highways Act, 1964. It has been
stipulated in the said sub Section that the aggrieved
9person may approach the concerned District Magistrate
against the impugned order passed by the concerned
SDO within 15 days from the date of passing of this
order.
In the present case, impugned order passed on
2nd December, 2022 and the writ petitioner approach
this court on 13th December, 2022. So it appears that
the petitioner has approached this cour,t though under
misconception, within the statutory period of appeal. As
this court holds that the order is not entertainble in the
writ jurisdiction, so I think it necessary that the
petitioner should be given a scope to challenge the
impugned order before the concerned appellate
authority.
The petitioner is directed to file a specific appeal,
if he so wish, within a period of 3 weeks from date of
passing of this order. On filing such appeal the point of
limitation for filing the appeal should be condoned
under Section 14 of the Limitation Act.
I make it clear that though this court has
observed the merit of this matter but the concerned
authority shall dispose of the appeal after hearing all
concerned according to the law without being
influenced by any observation of this court.
The appellate authority shall dispose of the
appeal within four weeks of filing the same.
10
It appears that the petitioner is maintaining the
possession over the disputed plot of land, as this court
has directed the petitioner to approach appellate
authority. Interim order passed by this court shall be
continued till the filing of the appeal.
Subsequent interim prayer, if any, shall be
considered by the appellate authority on its merit.
The writ petition and the connected applications
if pending are disposed of.
[Subhendu Samanta, J]