The application of the West Bengal Highways Act, 1964, is valid in cases of unauthorized encroachment near highways, provided due process was followed.

The present writ petition has been filed challenging the legality of the order dated 13th June, 2022, passed by the District Magistrate, South 24 Parganas, in Appeal Case No. 14/Eviction/HW/DM/s-24Pgs. of 2021-22, which upheld the order dated 28th January, 2022, passed by the Executive Engineer, PWD, Diamond Harbour Division, in Case No.

01/Eviction/HW/SDO/DH of 2021-22.

Briefly stated, the key facts leading to the filing of the present writ petition are as that based on a complaint lodged by the private respondents, a proceeding under Section 10 of the West Bengal Highways Act, 1964, was initiated against the petitioners. An inquiry was conducted by the Assistant Engineer, PWD, Diamond Harbour Sub-Division, District –

South 24-Parganas. During the course of the inquiry, it was revealed that the petitioners had encroached upon a portion of public land and constructed a brick-built structure. Since the land was located adjacent to the highway, the respondents proceeded on the assumption that the matter fell within the ambit of the West Bengal Highways Act, 1964. The authority took the view that, by virtue of its proximity to the highway, the land should be deemed to be under the control of the PWD (Roads).

However, as noted previously, following the enquiry, the Assistant Engineer, PWD, concluded that the petitioners had encroached upon the land illegally. Consequently, a notice under Section 10(1) of the West Bengal Highways Act, 1964, was served upon them, directing the removal of the unauthorised construction. Despite receipt of the said notice, the petitioners failed to take any effective steps for compliance. As a result, the matter was referred to the Sub- Divisional Officer, Diamond Harbour Sub-Division, South 24- Parganas (hereinafter referred to as the ’SDO’), by invoking the provisions of Section 10(3) of the West Bengal Highways Act, 1964.

The SDO concluded the proceedings under Section

10(3) of the West Bengal Highways Act, 1964, by directing the petitioners to remove the unauthorized construction from the said land. The petitioners challenged the decision of the SDO by filing a statutory appeal under Section 10(4) of the West Bengal Highways Act, 1964. However, the appeal was dismissed, thereby affirming the SDO’s decision. Aggrieved by the same, the petitioners have filed the present writ petition.

Mr. Chowdhury, learned advocate appearing for the petitioners, submits that the land in question belongs to the Zilla Parishad and, therefore, cannot be said to fall under the administrative control of the PWD (Roads). As such, the invocation of the provisions of the West Bengal Highways Act, 1964, is wholly misconceived and legally untenable. Consequently, he argues that the proceedings initiated and all subsequent actions taken against the petitioners’ construction are void ab initio.

Mr. Mondal, learned advocate appearing for the Zilla Parishad, acknowledges that the land belongs to the Zilla Parishad. He further submits that the petitioners are in illegal occupation of the said land and have even constructed a brick-

built structure thereon without any lawful authority. The records reveal that the issue had previously come up before this Court in WPA 14330 of 2021. A Co- ordinate Bench, taking note of the fact that the respondent authorities were proceeding under Section 10 of the West Bengal Highways Act, 1964, directed the concerned authorities to conclude the proceedings. This order was passed in the presence of the petitioners, who at that time did not raise any objection regarding the applicability of the said Act.

The term ’highway’ is defined under Section 2(c) of the West Bengal Highways Act, 1964. Section 2(c)(iii) of the Act includes within its ambit any land in the possession of the State Government or any other authority adjoining a highway, which is used or intended to be used for purposes connected with the highway.

A mere plea of erroneous application of a statutory provision is not sufficient. A person raisi