31.07.2024
Court No.09
Item no.07
CP
WPA No. 2577 of 2024
Najrul Islam & anr.
Vs.
The State of West Bengal & ors.
Mr. Golam Mastafa
Mr. Tarasankar Samanta
s.
….for the petitioner
Mr. Indranil Roy
Mr. Tapas Kr. Mandal
……for the State.
1. Heard learned counsel for the respective
parties.
2. The petitioners challenge the order of removal
of encroachment. The Allahabad Bank alleged
that the petitioners encroached upon a PWD
land, right in front of the land which was taken
over by the Allahabad Bank in a SARFAESI
proceeding. The Bank has not been served with
a copy of the writ petition.
3. Two fact finding authorities have found the
petitioners to be encroachers of PWD land.
4. The Manager, Allahabad Bank had approached
the Sub-Divisional Magistrate, Domkal,
Murshidabad, alleging that the petitioners had
encroached upon the PWD land right in front
of the premises of Smt. Iralata Mondal which
had been mortgaged to the bank and had been
2
taken over by the bank as per the order of the
court. The Branch Manager filed a case under
Section 133 of the Cr.P.C. vide Case
No.35/2020. The Sub-Divisional Executive
Magistrate, Domkal, Murshidabad passed an
order with a direction upon the Assistant
Engineer, PWD, Berhampore SD-III, to
demolish the unauthorized construction on the
said land by removing the encroachers. The
Assistant Engineer, PWD, Berhampore SD-III,
initiated proceedings under Section 10(3) of the
West Bengal Highways Act, 1964. An order of
demolition was passed, but the demolition had
not been carried out. The Assistant Engineer,
PWD, Berhampore SD-III requested that an
Executive Magistrate be present during the
process of removal. The process of removal was
extended upto March 3, 2022. Challenging the
said order passed under Section 133 of the
Cr.P.C., the petitioners preferred a writ
petition. The writ petition was dismissed for
default and the petitioners did not take any
steps to pursue the same.
5. In compliance of the order of the Sub-
Divisional Executive Magistrate, the Assistant
Engineer, PWD, Berhampore SD-III, heard the
parties once again. The bank approached the
3
learned SDEM court for execution of the order
of removal. The matter was heard. The
petitioners, the Assistant Engineer, PWD and
the complainant were heard. The
representative of the Block Land & Land
Reforms Officer, Jalangi filed a report. The
report was considered along with sketch maps
and photographs of the spot inspection.
6. Upon hearing all the parties, the petitioners
were found to have illegally approached the
PWD road right in front of RS. Plot No.2755
corresponding to the L.R. Plot No. 3052 of
Mouza Muradpur, J.L. No.30, Khatian No.
–
7624 within Jalangi Police Station. It was
recorded in the order of the Sub-Divisional
Executive Magistrate that the encroachers had
admitted that they had illegally encroached
upon the PWD land.
7. Aggrieved, the petitioners preferred an appeal.
The District Magistrate, Murshidabad disposed
of the appeal by upholding the order of the
Sub-Divisional Executive Magistrate. It was
held that the report of the Block Land & Land
Reforms Officer, the enquiry report of the Amin
and the information with regard to the plots in
question, clearly reflected the factum of
encroachment over PWD land. The authority
4
also found that adequate opportunity of
hearing had been given to the petitioners. The
computerized record of rights pertaining to
R.S. Plot No.2755, corresponding to L.R. Plot
No. 3052 and L.R. Khatian No. 7624,
comprising an area of 3 decimals, was
was recorded in favour
classified as ‘Bari’ and
of Masud Molla. In front of the L.R. Plot No.
3052, there was a plot of land which belonged
to the PWD being L.R. Plot No. 3094
corresponding to R.S. Plot No.2768/3359. The
land was classified as ‘Nayanjuli’ and the total
area of the plot measured around 3.13 acres.
The plot was recorded in favour of the PWD, in
L.R. Khatian No.1483/1.
8. Under such circumstances, the petitioners
failed to prove before the authority that the
petitioners were the owners of the lands which
were alleged to have been encroached upon.
9. The petitioners claim to be owners in respect of
6 decimals in R.S. Plot No.2755. The record of
rights reveal that Masud Molla was the
recorded owner in respect of the R.S. Plot NO.
2755 corresponding to L.R. Plot No.3052. The
order of encroachment was passed in respect
of L.R. Plot No.3094 corresponding to R.S. Plot
No.2768/3359 which was recorded as
5
. Thus, the ownership of the
‘Nayanjuli’
petitioners in respect of Plot No.2755 is not
relevant in the instant case. In any event,
neither the Sub-Divisional Executive
Magistrate nor the District Magistrate were
required to adjudicate the title of the
petitioners. The order has been passed in
respect of a PWD land and there is a recording
of the admission of the encroachers, that they
had encroached upon PWD land.
10. It also appears that the report of the Block
Land & Land Reforms Officer, the Amin and
the photographs taken on spot inspection,
were produced before the authorities. When
both the fact finding authorities found
encroachment, upon appreciation of the
records, there is no scope for interference with
the orders impugned.
11. The question arises whether judicial review is
permissible in this case. The petitioners have
not been able to show any right of possession
in respect of the PWD land. Moreover, there are
admissions of encroachment. The petitioners
have not been able to demonstrate that the
decision making process was either flawed or
contrary to the statute.
12. The writ petition is accordingly dismissed.
6
13. If the petitioners raise any title dispute, the
remedy of the petitioners would be before the
appropriate civil court.
14. There shall be no order as to costs.
15. All parties are to act on the basis of server copy
of this order.
(Shampa Sarkar, J.)