Dipankar Datta, J. - (1.) The petitioner suffered an order of removal of encroachment dated July 25, 2014, passed by the Sub -Divisional Magistrate, Tamluk, Purba Medinipur (hereafter the sub -divisional magistrate) exercising power conferred by sub -section (3) of Sec. 10 of the West Bengal Highways Act 1964 (hereafter the Act). Such order was challenged in W.P. 22923(W) of 2014 by the petitioner. A coordinate Bench, by order dated August 8, 2014, granted leave to the petitioner to prefer an appeal against the said order before the District Magistrate, Purba Medinipur (hereafter the district magistrate) under sub -section (4) of Sec. 10 of the Act. An appeal was preferred, which was disposed of by the district magistrate by ordering a remand. This writ petition was presented voicing a grievance that despite such order of remand passed by the appellate authority, the earlier order was being sought to be implemented without any fresh order being passed on such remand.
(2.) Being prima facie satisfied with the case set up by the petitioner, this Bench by an order dated July 28, 2015 had stayed the order dated July 3, 2015, passed by the Executive Engineer, Tamluk Highway Division Public Works (Road) Directorate fixing July 15, 2015 for the 'removal programme', for a limited period and made the writ petition returnable on July 31, 2015. On August 5, 2015, the interim order passed earlier was extended till August 31, 2015 and hearing was adjourned to enable Mr. Datta, learned Junior Government Advocate, representing the official respondents, to obtain appropriate instructions.
(3.) When the writ petition was considered next on August 26, 2015, Mr. Datta submitted that due notice was served on the petitioner to attend a hearing that was arranged in the office of the sub -divisional magistrate on January 27, 2015 (while acting in terms of the order of remand passed by the district magistrate) and that despite receiving such notice, the petitioner did not attend. An order dated January 27, 2015 was produced by Mr. Datta, passed by the sub -divisional magistrate wherein it was recorded as follows: "Conclusion: - - Hence, in the light of the observation and joint survey report made by the Block Land & Land Reforms Officer, Tamluk - II accompanied by the Assistant Engineer, Tamluk Highway Sub -Division, P.W.(Roads) Department. I am setting aside the previous order passed on 25/07/2014 and of the opinion that there is reasonable ground to think fit that Sri Sahadev Mudli is responsible for the encroachment of land which is under plot No. 57/440 of Tamluk Highway Sub -Division, P.W.(Roads) Department. I also make an order authorizing the Executive -Engineer, Tamluk Highway Sub -Division, P.W (Roads) Department to recover possession and remove the encroachment in question Plot No. - 57/440 and to send a written requisition in such form to the Officer -in -charge, Tamluk Police Station (local police) or to any police officer superior in rank to such officer and on receipt of such written requisition, the police officer concerned shall render all necessary and lawful assistance as per the requirement of authorizing officer in this regard.";