IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Ct.19 16.09.26 Item No.08 Sws.M/(S.R) WPA 13316 of 2025 with CAN 1 of 2025 Mosharaf Molla VS. The State of West Bengal & Ors. Mr. Animesh Mukherjee Md. Ali Ahasan Md. Habibur Rahaman …..for the petitioner Mr. Siddhartha Sankar Roy Mr. Sagnik Roy Chowdhury …..for the respondent/State Mr. Sandip Das …..for the private respondent 1. The petitioner, the respondent/State and the private respondent are represented by their respective learned counsel. In Re.: I.A. No. CAN 1 of 2025 2. This is an application for addition of party/respondent at the instance of one Nakul Purkait. 3. Learned advocate appearing on behalf of the writ petitioner in his usual fairness submits before this Court that let the applicant Nakul Purkait be added as private respondent. 4. In view of such submission CAN 1 of 2025 is hereby allowed. 2 5. Let the name and particulars of the applicant, Nakul Purkait be incorporated in the cause title as respondent No. 12. 6. Learned advocate-on-record for the petitioner is hereby requested to make necessary insertion in the cause-title of the instant writ petition in terms of this order positively in course of this day in Court. 7. With the aforementioned observation, CAN 1 of 2025 is disposed of. 8. Before parting with, it is noted that Sri Sandip Das, who appears on behalf of the private respondent has filed ‘Vakalatnama’ on behalf of the added respondent No. 12 and as such there is no need to effect any further service upon the added respondent. WPA 13316 of 2025 9. By filing the instant writ petition, the writ petitioner has prayed for issuance of appropriate Writ/Writs against the respondent/authorities, more specifically against the respondent No.5/authority, commanding him to dispose of the writ petitioner’s representation dated 05.04.2025, in accordance with law by passing a reasoned order. 10. At the time of hearing, learned advocate appearing on behalf of the writ petitioner submits before this Court that it is the specific case of the writ petitioner that he is the owner of the Plot No. 112 in Mouza – 3 Chakramnath under PS – Kulpi, particulars of which has been mentioned in paragraph 2 of the instant writ petition. To substantiate his contention, learned advocate for the petitioner draws attention of this Court to the copy of the LR ROR in respect of the property in question. It is submitted on behalf of the writ petitioner that it is the grievance of the writ petitioner that by the side of the writ petitioner’s aforementioned land, there is a land belonging to PWD, which has been illegally encroached by the private respondent, as a result whereof, the writ petitioner is facing difficulty in getting access to his own land, particulars of which has been mentioned in paragraph-12 of the instant writ petition. 11. It is submitted that under cover of a representation dated 05.04.2025, the writ petitioner ventilated his grievance to the respondent/authorities, but in vain. It is, thus, submitted that appropriate relief/reliefs may be granted to the writ petitioner in terms of the prayers made in the instant writ petition. 12. Mr. Siddhartha Sankar Roy, learned advocate appearing on behalf of the respondent/State vehemently opposes the prayer of the writ petitioner. It is submitted that on careful perusal of page Nos. 25 and 26 of the writ petition, it would reveal that the writ petitioner’s claim that he is the owner of the portion of Plot No. 112 is not correct, inasmuch as 4 the documents upon which the writ petitioner relies in the instant writ petition is found to be not genuine. It is further submitted that unless the writ petitioner establishes his ownership over the relevant plot, particulars of which has been mentioned in paragraph-2 of the writ petition, he is not entitled to the relief as prayed for. 13. Mr. Sandip Das, learned advocate appearing on behalf of the private respondent supports the contention of the respondent/State. It is argued by Mr. Das that no copy of deed of conveyance has been annexed to substantiate the contention of the writ petitioner. 14. This Court has meticulously gone through the entire materials placed before this Court. This Court has given its due consideration of the submission of the learned advocates for the contending parties. 15. For effective adjudication of the writ petition, this Court proposes to look to Section 10 of the West Bengal Highways Act, 1964 (‘said Act’ in short), which is reproduced herein below in verbatim. “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 5 (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 removed 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 is 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, make an order affirming, modifying or setting aside the order made under sub-section (3).” 6 16. On careful perusal of the provision of Section 10 of the said Act, it appears to this Court that the legislatures in their own wisdom have empowered the Highway Authority to remove encroachment in the event such encroachment is found on any road, street, pathway or land, which is declared as a highway. It further appears to this Court that the legislatures in the said Section 10 does not indicate that such encroachment would not be removed in the event the Highway Authority finds that the right, title and interest of a rayat of contiguous rayati land is defective. In view of such, this Court finds no justification in the argument of the learned advocate for the respondent/State that in order to get relief from this Court, the writ petitioner has to prove his right, title and interest over the contiguous land of the relevant road, street, pathway and land being the highway. It rather appears to this Court that it is the legislative mandate that in the event the Highway Authority sees that there is an encroachment on the highway, they are duty bound to remove it. 17. This Court also finds no merit in the submission of learned advocate for the private respondent that the writ petitioner has miserably failed to prove his right, title and interest over the contiguous land, 7 particulars of which has been mentioned in paragraph no. 2 of the instant writ petition. In view of such this Court while disposing the instant writ petition passes the following directions: i. The jurisdictional BL&LRO and the respondent no.5 are directed to cause field verification at the disputed plot after giving prior notice to the writ petitioner and the private respondents and shall submit demarcation report and/or field verification report with the respondent no.8 authority positively within thirty working days from the date of communication of the server copy of this order. ii. The respondentno.8 authority on receipt of the said demarcation report from the jurisdictional BL& LRO and the respondent no.5 authority shall cause service of notice upon the writ petitioner and the private respondents and shall provide them copies of the said demarcation report to the writ petitioner and the private respondents. The respondent no.8 is further directed to give fair chance of hearing both to the writ petitioner and the private respondents and, thereafter, shall consider the representation of the writ petitioner, as submitted on 05.04.2025, in accordance with law, and shall pass a reasoned order. The 8 respondent no.8 is further directed to provide copies of the said reasoned order to the writ petitioner and the private respondents soon thereafter. iii. The entire exercise indicated in the forgoing paragraphs is to be completed by the respondent no.8 authority within forty-five working days from the date of receipt of the demarcation report from the jurisdictional BL&LRO and the respondent no.5 authority. iv. The time limit as fixed by this Court is preemptory and mandatory. v. It is further directed that, in the event, while passing the reasoned order, the respondent no.8 authority finds sufficient merit in the representation dated 05.04.2025 as submitted by the writ petitioner, he is directed to take all consequential actions forthwith. vi. With the aforementioned observations, the instant writ petition is disposed of. vii. Before parting with, liberty is given to the learned advocate-on-record for the writ petitioner to communicate the server copy of this order to the jurisdictional BL&LRO, the respondent nos.5 and 8 authorities, who are directed to act on the server copy of this order. 9 viii. It is further made clear that while disposing the instant writ petition, this Court has not gone into the merits of the representation dated 05.04.2025 and, therefore, all points are kept open for adjudication by the respondent no.6 authority. 18. Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance with all the necessary formalities. (Partha Sarathi Sen , J.)