Calcutta High Court Imposes ₹80K Cost On West Bengal Officials For Demolishing Alleged Encroachment Without Following Procedure

The Calcutta High Court on Thursday imposed a cost of Rs. 80,000 on State authorities for demolishing a private structure without complying with the statutory provisions of the West Bengal Public Land (Eviction of Unauthorized Occupants) Act, 1962 and disregarding the pending judicial proceeding before the High Court.

The single judge bench of Justice Moushumi Bhattacharya said: 

“The action of the State authorities in failing to comply with the statutory mandate of the West Bengal Public Land (Eviction of Unauthorized Occupants) Act, 1962, − assuming that the Act is applicable in the present case− and disregarding the filing of the writ petition before this Court amounts to “Malice in Law”. Malice in Law is a reckless act in violation of the legal rights of a citizen which may or may not be actuated by personal ill-will.”

The petitioners filed the writ petition on April 18. A notice was served on the State respondents on April 17 as well as on April 18. The petitioners further gave notice to the respondents of the matter being mentioned at 2 p.m. on April 19. However, the petitioners’ structure was demolished on April 19 by the BDO, Murshidabad on the basis of the impugned order dated March 29, 2023 which bore the date as March 21, 2023.

The impugned order dated March 29 recorded that the Sub-Divisional Magistrate, Jangipur proceeded to the action on the provisions of the West Bengal Public Land (Eviction of Unauthorized Occupants) Act, 1962. Section 2 (7) of the said Act defines “public land” but excludes a Government road or a highway within the meaning of The Bengal Highways Act, 1925 or under any other law for the time being in force on the subject.

The Court noted that a document issued by the Land and Land Reforms and Refugee Relief and Rehabilitation Department describes Plot No. 852 (land under dispute) as “raasta” (road). The bench observed that it was arguable whether the authorities could have proceeded at all under the 1962 Act.

“The impugned order in the present case reflects that the SDM jumped Sections 3 and 4 of the 1962 Act and proceeded straightaway to direct removal of the encroachment under Section 5(1) of the Act. Even if it is assumed that the notice dated 21.03.2023 is a notice under Section 3, the documents placed before the Court do not indicate that the procedure to be followed under Sections 4 and 5 were complied with by the concerned authority. The documents do not even mention the word “demolition” anywhere,” observed the court.

The court also noted that a letter was written by the BDO, Murshidabad to the Officer-in-Charge, Murshidabad on April 18, 2023 seeking urgent steps for completion of a Government project on the concerned land with copies to the M.P., Jangipur and the M.L.A., Suti for sending a representative on the stipulated date and time.

It said that the action of State authorities amounted to ‘Malice in Law’.

“Malice in Law involves an intention on the part of the authorities to do a wrongful act with full knowledge not only of the commission of the act but also of the consequences which would necessarily follow as a result of the act. Malice in Law would also arise where there is a stark absence of a reasonable basis for the act. Malice in Law is also where a law is deliberately subverted to defeat the rights of the opposite party without regard to the injury caused.”

The court observed that the State authorities had acted in complete violation of the legal rights of the petitioners who have approached the Court for redress and also in blatant violation of the procedure mandated under the 1962 Act.

“Calling upon political functionaries to lend support to an act which is ex facie illegal aggravates the malice and is evidence of the premeditated nature of the act thereof. The State respondents have disregarded a pending judicial proceeding and have sought to frustrate the same. The respondents have sought to out-manoeuvre and overreach the Court and must therefore pay –literally for their conduct,” said the court

Thus, the court directed the State respondents to pay a sum of Rs. 80,000/- to the petitioners by 12 PM, April 21.

"The State respondents shall decide which respondent shall bear the costs imposed," said the court.

Case Title: Arabinda Das & Ors. v. State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 111

Click Here to Read/Download Judgment