ARUN CHANDRA PAKHIRA & ORS. Vs. STATE WEST OF BENGAL
LAWS(CAL)-1976-11-38
HIGH COURT OF CALCUTTA
Decided on November 22,1976

ARUN CHANDRA PAKHIRA And ORS. Appellant
VERSUS
State West of Bengal Respondents

JUDGEMENT

Pradoyot Kumar Banerjee, J. - (1.)This rule is directed against an order passed by the Asst. Engineer, P. W. D., Hooghly, directing the petitioners to remove and dismantle the building from the Government land on the allegation that the petitioners had encroached and constructed a building over C. S. Plot No. 976, Khatian No. 148, Mouza Sahapur, P. S. Tarakeshwar, Dist. Hooghly. It is further stated that failing the removal by the petitioner the Government would dismantle the building and the costs of the dismantling would have to be borne out by the petitioners. The petitioners, it is alleged, are the owners of C. S. Plot No. 976, Khatian No. 148, Mouza Sahaur, P. S. Tarakeshwar, Dist. Hooghly. In 1951, one Becharam Pakhira by virtue of a settlement Bandobastnama with Tarakeshwar Estate became the owner of a plot of land, being C. S. Plot No. 976, Khatian No. 148, Mouza Sahapur, P. S. Tarakeshwar, Dist. Hooghly. The Petitioners are the present owners of said plot as co-shares. In 1952 the petitioners raised a Kutcha structure on the said plot of land and in 1962 the petitioners began to construct a pucca structure on the said plot. On a complaint having been filed under the Bengal Highway Act, 1962 for the construction on C. S. Plot No, 976, a criminal case was started. It is alleged in the said case, that plot no. 976 was acquired under Land Acquisition Act. Inspite of the said acquisition by the Government the construction is being made on the Government acquired land but the State failed to prove the acquisition and complaint was disposed of and the criminal case was discharged. It is alleged that on 11th Nov., 1975 several men from the P.W.D. made a marking on the construction on the ground that the construction was on C.S. Plot No. 976. Thereupon the petitioners moved this Court and obtained a rule and injunction. The petitioners were served with a notice on 19th Nov., 1975 asking them to demolish the construction.
(2.)On behalf of the State Government an affidavit has been filled. It is stated is paragraph 3, inter alia, as follows:-
"3. Before dealing with the statements and/or allegations made in the said petition, I state hereinbelow the facts case in brief ;-

(a) It appears from C. S. Records of Rights that the predecessors-in-interest of the petitioners was the owner of a plot of land being C. S. Plot No. 976, Khatian No. 148, Mouza Sahpur under Police Station Tarakeshwar in the District of Hooghly, having an area of 0.29 acres and the plot was situated by the side of the Road called Tarakeshwar-Chawkdighi Road.

(b) In order to widen the said Tarakeswar-Chawkdighi Road at Chawipatty under Sahapur for smooth and safe movement of traffic and/or transport, a part of the aforesaid C. S. Plot No, 976 was acquired by the Government of West Bengal and the petitioners and/or their predecessors were awarded due compensation for the said acquisition on 18th Feb., 1957.

Be it mentioned here that a Notice under the provisions of Sub-Sections (1) of Sec. 3 of the West Bengal Land Requisition and Acquisition Act, 1948 i.e. West Bengal Act II of 1948 was given to the petitioners and /or their predecessors and Arun Chandra Pakhira i.e. the petitioner No. 1 acknowledged the receipt of the Notice of Requisition Case No. 1-2/53-54 through his letter dated 9th Dec., 1953 to the Collector, the Land Acquisition Office, Hooghly, Chinsurab, The order of acquisition was duly published by the Notification being No. 24394-IA (P.W.) dated Dec. 13,1955 in Calcutta Gazette dated Dec. 29, 1955 at page 5247.

Thereafter during Revisional Settlement Operation in 1956, the acquired part of land form CS. Plot No. 976 was merged with Rs-Plot No. 861 and was rightly and correctly recorded in the name of the works & Building Department under Government of West Bengal.

This deponent craves leave of Arun chandra Pakhira dated Dec. 9, 1953 is annexed herewith and marked with letter "A".

In this context, this deponent submits with all emphasis at his command that for the purpose of determining the right of ownership of the lands in question, the R. S. Record of Rights should be taken into consideration in as much as Revisional Settlement Operation in the District of Hooghly took place as far back as the year of 1956.

(c) That with a view to implement the Government programme of removal of unauthorised structure from Government land, measurement of the Tarakeswar-Chawkdighi Road were taken at Chaulpatty under Mouza Sahapur. At the time of taking measurement, it has been detected that about 1/3 (one-third) portion of the building belonging to the petitioners has actually encroached the said Tarakeswar-Chawkdighi Road on R. S. Plot No. 861 at Chaulpatty under Mouza Sahapur, J. Rs.No. 22, P. S. Tarakeswar, District, Hooghly. The petitioners were required to dismantle the portion of the building which encroached the Government land namely the R. S. Plot No. 861 at Chaulpatty under Mouza Sahapur and accordingly a Notice dated 19th November. 1975 was served upon the petitioners and receipt of the said Notice was acknowledge by the petitioners No. 1 on 25th Nov., 1975.

This deponent craves leave to refer to the Notice and the acknowledgement at the time of hearing.

(d) The petitioners having got no right, title. interest whatsoever in the said plot of land, namely R. S. Plot No. 861 knowing fully well that the said plot of land belongs to the Government of West Bengal have encroached some considerable portion of the aforesaid Road-side land of the Government of West Bengal and raised unlawfully and unauthorisedly the structure blocking free movement of traffic and as such they are bound to dismantle the same or otherwise the Government has the authority to demolish the same. Further in the present day number of traffic have increased and for safe movement of traffic as well as for the safety of the general public, the demolition or dismantling of the very part of the structure which was raised unauthorisedly and illegally encroaching Government land at R. S. Plot No. 861 is imperative for the interest of public.

(e) The petitioners by suppressing a very material fact obtained the instant Rule and interim order of injunction on the 19th day of Nov., 1975 in as much as they never referred to R. S. Records of Rights. According to R. S. Record of Rights, the R. S. Plot No. 976 comprises of 0.23 acres of land which is recorded in the name of the petitioners, the possession of which has never been disturbed in as much as the public Works Department, Government of West Bengal never contemplates to demolish and/or dismantle any part and/or portion of the building/structure raised on the said R. S. Plot No. 976 of the petitioner. In this context I say with all emphasis that the Public works Department is within its rights to remove the unauthorised and illegal structures encroaching the Government land and in this case the petitioners had been requested to dismantle the unauthorised structure which they raised illegally and with a malafide intention upon the aforesaid Road-side land being R. S. Plot No. 861 which is absolutely a Government land'.

(3.)Mr. Noni Coomar Chakraborti on behalf of the petitioners contended that the notice of demolition is arbitrary and not based on the rule of law but it is high-handed action of the Executive. It is stated that in the said house which was constructed in 1962 there are numbers if tenants in occupation, one of them is the United Commercial Bank. Mr. Chakraborty contended that if there was any encroachment on the said land, the Government has certainly power to remove the encroachment but in due course law. In the present case the action amounts to high-handed executive without taking recourse to any law which may have sanctioned the executive high-handedness.
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