Without prejudice

Before The District Magistreate, District: South 24 Parganas

In the matter of:

An application under Section 5 of
The Limitation Act, 1965.
-And-
In the matter of:
An application under Section 10 (4)
of The West Bengal Highways Act,
1964.
-And-
In the matter of:
Memo No. 238(10) / Court / SDO /
DH / 23 dated 05/09/2023 under
Section 10 (3) of West Bengal
Highways Act, 1964 issued by the
Executive Magistrate, Diamond
Harbour, District: South 24
Parganas.
-And-
In the matter of:
Order No. 5 dated 19/09/2023
passed by The Executive Magistrate,
Diamond Harbour, District: South
24 Parganas in a hearing under
Section 10 (3) of The West Bengal
Highways Act, 1964 in connection
with an eviction case No. 14 (1)
/(Eviction)/HW/SDO/DH OF 2022-
23.
-And-
In the matter of:
Kutub Udin Molla, C/o Feradaus
Molla, residing at Uttar Basudebpur,
VTC, Rambati, - I, District: South 24
Parganas, Pin Code - 743395.

The humble appeal on behalf of the

appellant above named most
respectfully –

Sheweth:

1. That your appellant state that your appellant is a peace loving and law
abiding citizen of India and permanently residing with his/her family
members at the address mentioned in the cause title.
2

2. The petitioner run his businesses from different shop rooms lying and
situated adjacent to the R.S. plot No. 4420, L.R. Khatian No. 3243Mouza –
Raidighi Abad, J.L. No. 110 Police Station – Raidighi, District: South 24
Parganas, Pin Code – 743383.

3. That one Dilip Halder respondent No. 8 herein filed a writ petition
being W.P.A. 5652 OF 2020 (Dilip Halder -Versus- The State of West Bengal
and others) before The Hon’ble High Court at Calcutta praying for remove
the unauthorized encroachment in the front of his land lying and situated at
R.S. Plot No. 4295 R.S. Khatian No. 1402, J.L. No. 122, Mouza – Raidighi
Abad, J.L. No. 122, under Police Station – Raidighi wherein the present writ
petitioners are not implicated as party respondents. On 20 th March, 2019
the aforesaid writ petition came up for hearing before The Hon’ble Justice
Debangsu Basak when His Lordship upon hearing of the parties has been
pleased to pass and order that “… the respondent No. 5 will visit the locale
and prepared a site plan as to the area of the government property and the
persons in occupation therewith, if there be any. If he finds that there is any
person occupying government property, he will take expeditious steps for
the purpose of removal of the same. If the property is a road, he will take
steps under the provisions of the West Bengal Highways Act, 1964….”.

4. That your petitioner states that the present petitioner along with
others filed an appeal with an application for leave to file appeal along with
an application under Section 5 of The Limitation Act, 1963 being
M.A.T.1900 of 2023 C.A.N. 1 of 2023, C.A.N2 of 2023, C.A.N. 3 of 2023
(Biswajit Das &ors. -Versus- Dilip Kumar Halder & ors.) against the
aforesaid order and on 04th October, 2023 the same came up for hearing
before The Hon’ble Justice Debangsu Basak sitting with The Hon’ble Justice
Md. Shabbar Rashidi when upon hearing of the parties Their Lordships has
been pleased to release the same. That when on 11 th October, 2023 the said
appeal was again came up for hearing before The Hon’ble Justice
Rajasekhar Mantha sitting with The Hon’ble Justice Supratim
Bhattacharya, and upon hearing of the parties Their Lordships has been
pleased to adjourned the matter and the same will be listed after the
upcoming Puja vacation.

5. The District Magistrate and Collector, South 24 Parganas, Alipore the

Assistant Engineer, P.W.D., Joynagar Sub-Division, issuing respective
notices dated 18th August, 2023, by holding that the petitioners trespassed
on public land lying and situated at R.S. Plot No. 4420 L.R. Plot No. 4480,
L.R. Khatian No. 3243, 1402 Mouza – Raidighi, J.L. No. 110, Police Station –
Raidighi, District – South 24 Parganas which allegedly belonged to the
Collector or P.W.D., and requested the petitioners to remove the alleged
encroachments from the aforesaid land.

6. That your petitioner states that petitioner along with others on 21 st

August, 2023 filed an application under Section 8(2) of The West Bengal
Highways Act, 1964 before The Executive Engineer, P.W.D., Diamond
3

Harbour Division and to the Assistant Engineer, P.W.D. Joynagar Sub-

Division for grant of permission to be recognized as a bonafide hawkers on
and over the aforesaid plot of land.

7. The being aggrieved and dissatisfied with the non-disposal of the

aforesaid application the aforesaid petitioners along with others filed a writ
petition being W.P.A. 20642 of 2023 (Mantu Gharami -Versus- The State of
West Bengal and others) before The Hon’ble High Court at Calcutta. On 2 5th
August, 2023 the aforesaid writ petitiones came up for hearing before The
Hon’ble Justice Suvra Ghosh, and Her Lordship upon hearing of the parties
has been pleased to pass an order that

“…In view of the above, the writ petition is disposed of directing the
04th respondent to consider and disposed of the application submitted by
the petitioners dated 21st August, 2023 within one month from the date of
communication of this order upon affording reasonable opportunity of
hearing to all interest persons including the petitioners, in accordance with
law.

The decision taken by the authority shall be communicated to the

petitioner within one month thereof.

8. Pending disposal of the application, no further steps shall be taken by

the concerned authority in terms of the notice under Section 10(1) of the Act
1964…”.

9. In compliance with the aforesaid order the Assistant Engineer, P.W.D.

Joynagr sub-division by issuing a notice dated 29 th August, 2023 fixed a
dated of hearing on 25th August, 2023.

10. The aforesaid petitioner along with others duly attend the aforesaid
hearing but not order was passed. Inspite of the aforesaid order and having
full knowledge about that the Assistant Engineer, P.W.D., Joynagar sub-
Division has not passed any order in respect to the aforesaid hearing the
Executive Magistrate, Diamond Harbour, on 05 th September, 2023 issued a
notice under Section 10(3) of the West Bengal Highways Act, 1964 to the
petitioners and started an eviction case against them and the date of
hearing was fixed on 13th September, 2023.

11. The petitioner challenged the aforesaid notice dated 05 th September,

2023 by filing a writ petition being W.P.A. 22190 OF 2023 (Mantu Gharami -
Versus- The State of West Bengal and others) before The Hon’ble High Court
at Calcutta and the same is still pending.

12. That ultimately the Assistant Engineer, P.W.D. Joynagar Sub-Division

by passing an order dated 05th September, 2023 rejected the application
under 8(2) of the West Bengal Highways Act, 2023 filed by the some of the
petitioners and others.
4

13. That without disposing of the first proceedings under Section 10 (3) of
The West Bengal Highways Act, 1964 dated 05 th September, 2023 the
Executive Magistrate again on 13th September, 2023 issued a notice under
Section 10(3) of the West Bengal Highways Act, 1964 to the petitioners and
started another eviction cases against the petitioners and fixed a date of
hearing on 18th September, 2023.

14. That the petitioners duly attend the aforesaid hearing. It was
specifically contended that since the petitioners are street vendors /
hawkers running their respective temporary shops in the land adjacent to
the Purba Bishnapur – Raidhighi Road at Raidighi Bazar for a long period
and cannot be treated as encroachers.

15. That the Executive Magistrate, Diamond Harbour by passing by

holding that the petitioners are the encroachers of Government Land passed
orders and directed the Assistant Engineer, P.W.D. Jaynagar to recover the
possession after removing the encroachment from the said land in question.

16. In passing the order dated 19th September, 2023 the Executive
Magistrate has abruptly came to a conclusion that the applicants have
encroached a certain portion of P.W.D. land.

17. That the petitioner states that the entire proceedings is a outcome of
the order dated 20th March, 2019 passed by The Hon’ble Justice Debangsu
Basak in W.P. No. 5652 (w) of 2019 (Dilip Kumar Halder -Vs The State of
West Bengal and others.) therein the writ petitioner were not the party
respondents.

18. The entre proceedings has been culminated to the order of demolition
within the pendency of M.A.T. 1900 OF 2023 wherein the order dated 20 th
March, 2019 has been challenged and as such if the order under Section
10(4) is executed, it would be rendering M.A.T. 1900 OF 2023 is
infructuous.

19. The entire proceedings have been conducted in violation of principal of

natural justice since the site plan as to the area of the Government property
under alleged occupation, as indicated in the order dated 20 th March, 2019
passed in W.P. NO. 5652 (W) OF 2019, has not at all been circulated or
served upon the petitioner for granting them an opportunity to controvert
the same and as such rendering the entire proceedings is breach of natural
justice.

20. The petitioner states that the respondent authority have themselves
has expressed the land in question was not a road, and was “a public land”
thus proceedings if any would lie under the West Bengal Public Land
(Eviction of Unauthorized Occupants) Act, 1962.

21. That the petitioner states that the authorities have failed to appreciate
that the entire proceedings having been instituted under The West Bengal
5

Highways Act, 1964 is totally without jurisdiction which the respondent

authorities have failed to take it into account.

22. That the petitioner states that while considering the petitioners
representation for grant of permission under Section 8(2) of The West Bengal
Highways Act, 1964, and while passing the order date 05 th September, 2023
the respondent authorities have relied upon a purported report dated 09 th
August, 2023 of BL&LRO Mathurapur-II, without giving a copy of such
report to the petitioners inviting objections from the petitioners with regards
to the findings of the BL&LRO Mathurapur-II.

23. That the petitioner states that the initiation of the proceedings by the
notice under Section 10(3) of The West Bengal Highways Act, 1964 is
vitiated in view of the fact that the applications of the Assistant Engineer,
P.W.D. requesting the Executing Magistrate to initiate the proceedings
under Section 10(2) of The West Bengal Highways Act, 1964, of 1964 has
not been served upon the petitioner, as a result thereof the petitioner do not
know the basis of as to why the proceedings under Section 10(2) of the said
Act of 1964 has been initiated.

24. The petitioner states that it is the mandatory requirement of the

principals of natural justice to serve and circulate the main application
preferred by the Highway authority to an Executive Magistrate under
Section 10 (2) of The West Bengal Highways Act, 1964 so that the persons
affected get an opportunity to controvert the contains thereof which in this
case has not been adhere to rendering the subsequent proceedings vitiated.

25. That the petitioner states that the order No. 5 passed under Section
10(3) of The West Bengal Highways Act, 1964, are totally nonspeaking in
nature and has been passed on the basis of the report dated 09/08/2023,
prepared by the BL&LRO Mathurapur – II which has not been served upon
the writ petitioners, vitiating the proceedings and the order.

26. That the petitioner states that the only basis of the order dated 18 th
September, 2023 and 19th September, 2023, having not been served upon
the writ petitioners, render such order illegal and unenforceable been
passed in breach of the principals of natural justice.

27. That the petitioner states that the writ petitioners are occupying the
part of land being rayati in nature and as such private lands no proceedings
under The West Bengal Highways Act, 1964 are maintainable.

28. That the petitioner states that the respondent authorities while
deciding that Street Vendors (Protection of Livelihood and Regulation of
Street Vending) Act, 2014 is not applicable in respect of rural areas have
committed a gross mistake of law.

29. There is no encroachment done by the petitioner on the government’s

land. Appellant is running his business on and over his own land without
6

any encroachment on and over the government’s property. Moreover, the

road beside which the shop of the appellant is situated is a panchayat road
does not belong to P.W.D. department and the aforesaid notice is issued
without jurisdiction. That your appellant further state that it is surprise to
know that one of the writ petitioners of the Public Interest Litigation namely
Dibakar Kayal also received the same notice of removal of encroachment.

30. That the impugned order was passed without considering that this
notice being Memo No. 808(6)/1(10) dated 18th August, 2023 under Section
10 (1) of The West Bengal Highways Act, 1964 issued by the Assistant
Engineer, Joynagar Sub-Division is being made without jurisdiction and the
appellant without prejudice to the rights and contention and without
waiving my rights to challenge the jurisdictional power and authority of the
Highway authority to issue the notice and going to the dispute. This reply
should not be construed the jurisdiction of the highway authorities. The
highway authorities can only assume jurisdiction in respect of any
Government road, or any other road, street, path, way or land, other than a
national highway within the meaning of the National Highways Act, 1956,
which is declared by the State Government to be a highway under section
and includes the Hanks, footpaths, pavements and drains adjoining such
highway; ail bridges, culverts, causeways, carriageways and other structures
built on or across such highway; and any land in the possession of the State
Government or any other authority adjoining such highway, used or
intended to be used for purposes of the highway; which fall within the
meaning of Section 2 (c) of The West Bengal Highway Act, 1964 the alleged
unauthorized construction does not fall within or in the present of highway
and as such the highway authority cannot assume jurisdiction. It is further
states that the Memo No. 226 issued by the Asistant Engineer, PWD, (Civil),
Joynagar Sub-Division on the basis of which the impugned order has been
passed is never supplied or circulated to the appellant.

31. That the aforesaid order was passed without considering that this
notice under Section 10 (1) and 20 of West Bengal Highways Act, 1964
issued by the Assistant Engineer, P.W.D. Joynagar Sub-Division is being
made without prejudice to the rights and contention and without weaving
my rights to change the jurisdiction power and authority of the Highway
authority to issue the notice and going to the dispute. This reply should not
be construed the jurisdiction of the highway authorities. The highway
authorities can only assume jurisdiction in respect of any Government road,
or any other road, street, path, way or land, other than a national highway
within the meaning of the National Highways Act, 1956, which is declared
by the State Government to be a highway under section and includes the
Hanks, footpaths, pavements and drains adjoining such highway; ail
bridges, culverts, causeways, carriageways and other structures built on or
across such highway; and any land in the possession of the State
Government or any other authority adjoining such highway, used or
intended to be used for purposes of the highway; which fall within the
meaning of Section 2 (c) of The West Bengal Highway Act, 1964 the alleged
unauthorized construction does not fall within or in the present of highway
7

and as such the highway authority cannot assume jurisdiction. It is further

states that the Memo Nos. 234, 236, 237, 238 and 241 dated 06.03.2023
issued by the Asistant Engineer, PWD, (Civil), Joynagar Sub-Division on the
basis of which the impugned order has been passed is never supplied or
circulated to the appellant.

32. That the appellant states that the entire proceedings drawn by the
concerned Assistant Engineer, PWD and the impugned order passed by the
concerned Executive Magistrate is liable to be set aside as in the same order
the concerned Executive Magistrate in one hand holds that the appellant
have encroach the Government Land and on the other hand passed
direction to remove the same under the provisions of The West Bengal
Highways Act, 1964 while there any encroachment of government land can
be removed under The West Bengal Public Land (Eviction of Unauthorised
Occupants) Act, 1962 only and thus the concerned PWD department do not
have any jurisdiction to issue notice under the provisions of The West
Bengal Highways Act, 1964 in the instant case.

33. That the applicants states that due to sufferance from various disease
as stated aforesaid there has been a delay of 11 days in filing this
application condonation of delay. There are no laches or negligence on the
part of the appellant and the appellant wants to pursue the Review
Application.

34. That the appellants submit that unless the delay for 11 days for
filling the restoration application is condoned and the instant Review
Application is restored to its original file and number the appellant will
suffer irreparable loss and injury.

In the circumstances your petitioner

most humbly and respectfully prays
that Your Lordships would be
graciously pleased to
condone the delay of 11 days for
filling the Review Application and /
or to pass such other order or orders
as Your Lordships may deem fit and
proper.

(Appellant)