Sabyasachi Mukharjee, J. -
(1.)The petitioner in this case is a citizen of India and is permanently residing at Habra Bazar, P.S. Habra, District 24 Paraganas. The petitioner is the owner of two shops, namely, (a) A radio shop known as Habra Radio Mart, situated on plot No. 1170 of Mouza Habra recorded in Khaitan No. 1277 and measuring about two cottahs and of another shop dealing with agricultural equipments known as (b) 'Krishi Equipment House' situated on the plot No. 2545 of Mouza Habra recorded in Khaitan No. 179, measuring about 14 Decimals of land. The aforesaid plots, according to the petitioner, are situated close to the Jessore Road. It is the case of the petitioner that in 1968 a group of persons including some of the local men started making arrangements for raising unauthorised structures on kutcha portions of the Jessore Road. It is the further case of the petitioner that the petitioner and the members of the said locality brought the said fact to the notice of the Additional District Magistrate (North) Barasat, and on the said application the Additional District Magistrate informed the petitioner by the letter dated 1st Feb., 1968 that the matter had been referred to the Additional Superintendent of Police, 24-Paraganas for making * Civil Ride No. 2679 (W) of 1970. an inquiry into the matter. It further appears from the memo dated 2nd of Feb., 1968 being numbered G/294 of the office of the Additional District Magistrate, 24-Paraganas that on the basis of a petition filed by the petitioners and 271 others, the Additional Superintendent of Police was requested by the Executive Engineer (P. W. D) Barasat Division to submit a full list of squatters who, it was alleged, had built unauthorised structures and also against whom legal steps had been taken by the said Department. It further appears from the memo dated 5th of Feb., 1968 of the P. W. D. department of the Barasat Sub-division, 24-Paraganas, that a request was made to the Additional Superintendent of Police (North), Barasat, to demolish the unauthorised structures on the Calcutta Jessore Road. According to petitioner, no further steps had been taken against this. The petitioner's case is that under the West Bengal High Ways Act, 1964 as amended by the West Bengal High Ways (Amendment) Act, 1965 it is obligatory on' the respondents, Government of West Bengal to take steps to remove the said encroachments and the respondents had failed to take steps in respect thereof. There is an affidavit-in-opposition by one Biswanath Chatterjee wherein he had stated that there were some encroachements on both sides of the road, It is further reiterated that there was no encroachement infront of the petitioner's shop 'Krishi Equipment House'. According to the respondents, that did not create absolute blockade to the petitioner's access to main Road. According to the said deponent the said encroachment was an old one. With the annexure to the affidavid-in-opposition a letter has been failed where in the P.W.D. Barasat Division had been informed against whom ejectment notice had been served or cases had been filed.
(2.)It, therefore, appears that there were, admittedly, some encroachment. The question is whether the respondents are obliged to take action under the West Bengal High Ways Act, 1964, as amended by West Bengal High Ways Act, 1965. The said West Bengal High Ways Act, 1964 is an act to provide for the maintenance and control of High Ways, the prevention of encorachment therein and the removal of encroachments therefrom, and for certain other matters connected therewith. It provides a definition of 'Highway' and of 'Government' Road'. The said definition clause has been amended as mentioned hereinbefore by the West Bengal Highways (amendment) Act, 1965. By the new definition provides, Highway means any Government land or any other road, street, path, way or land, other than a national Highway, within the meaning of the national Highways Act, 1965, which is declared by the State Government been defined in Clause 2, sub-clause (bb) as the road vested in the Government or under the control and administration of the Public Works Department and includes the following ;-
(bb) "Government road" means a road, vested in the Government, or under the control and administration of the Public Works Department of the State Government, and includes-
(i) the slope, berm borrow-pits and side drains of any of such roads;
(ii) all lands and embankments vasted in, or under the control and administration of, the said Public Works Department, and attached to a Government road;
(iii) all bridges, culverts or causeways built on or across any Government road; and
(iv) all fences and posts on any Government road or on any land attached to a Government road, and all road side trees on such land;
Provided that nothing in the definition shall affect the provisions of the Calcutta Municipal Act, 1951, or of any rule or by-law made there under, in so far as they empower the Corporation of Calcutta to take action in respect of the Government roads new under the control of the Corporation; and
In view of the said definition it appears that the land in question upon which the all alleged encroachments have been made are highways. Chapter IV of the said Act deals with the prevention or removal of encroachments. Sec. 10(1) is in the following terms:-
"10(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
(b) makes an encroachment on a highway in contravention of the provisions of the 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 notice."
(3.)In view of the fact that this is a highway, the respondents are obliged to take action for removing encroachment in respect of the highway. No point was taken that no Highway Authority had been created or that the respondents are not the authorities to take action under the Act.