HALDIA MUNICIPALITY AND ANR. vs STATE OF WEST BENGAL AND ORS.

IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE


Before:
The Hon’ble Justice Hiranmay Bhattacharyya

WPA 20056 of 2022
Haldia Municipality & Anr.
VS.
The State of West Bengal & Ors.

For the petitioners : Mr. Debajyoti Basu. Sr. Advocate,
Mr. S.M. Hassan,
Ms. Anupama Yasmin

….. advocates


For the State : Mr. Lalit Mohan Mahata, Ld. AGP,
Mr. Prasanta Behari Mahata

…… advocates

For the Respondent no. 9 : Mr. Partha Pratim Roy,
Mr. Salil Kumar Maity
……. advocate

Reserved on : 24.02.2026

Judgment on : 18.05.2026

Hiranmay Bhattacharyya, J.:-

1. The order of the District Magistrate, Purba Medinipur dated August 17,
2022 passed in Appeal No. 16(AO) of 2022 is under challenge in this writ
petition at the instance of Haldia Municipality. By the said order, the Sub-
Divisional Magistrate was directed to recover possession and remove
encroachment from plot no. 751/1452 under the provisions of the West
Bengal Highways Act, 1964 within a specified time limit.
2. Petitioner claims that the Panchayat authority constructed latrines and
urinals on a part of LR Plot no. 751/1452. Pursuant to an order passed in
Page 1 of 12

WPA 22242 of 2019, a proceeding under Section 10 of the West Bengal
Highways Act, 1964 (for short “the 1964 Act”) was initiated and Sub-
Divisional Magistrate passed an order dated April 8, 2022 under Section
10(3) of the 1964 Act directing the Assistant Engineer, Haldia Highway Sub-
Division to recover possession and remove encroachment from plot no.
751/1452. Challenging the aforesaid order dated April 8, 2022, petitioner
filed an appeal under Section 10(4) of the 1964 Act before the District
Magistrate, Purba Medinipur being Appeal no. 16(AO) of 2022. The said
appeal was disposed of by directing the Sub-Divisional Magistrate, Haldia to
recover possession and to remove encroachment from plot no. 751/1452
under the provisions of the 1964 Act. Being aggrieved by the order of the
District Magistrate, Purba Medinipur dated August 17, 22, petitioner has
approached this Court.
3. Mr. Basu, learned Senior Advocate appearing in support of the writ petition
contended that the Public Works Department vide Memo dated November
18, 1988 permitted the Haldia Notified Area Authority at present, Haldia
Municipality to start construction works of office complex, public urinals
over the land in question. He contended that pursuant to the said
permission, constructions were raised and the same has been repaired and
altered periodically. Mr. Basu placed reliance upon the provisions of the
Government Buildings Act, 1899 (for short “the 1899 Act”) more particularly
Section 3 thereof in support of his contention that the said Act provides an
exemption to the local authorities in respect of construction of any building.
He further contended that the writ petitioner being a legal authority is duty
bound to make adequate arrangements for setting up of urinals and other
amenities in discharge of its public duties. He further contended that since
the writ petitioners were authorised to raise construction by virtue of the
1899 Act, the 1964 Act cannot have any manner of application in respect of
construction made by the petitioner upon any land belonging to the Public
Works Department. He further contended that since the provisions of
Section 10 of the 1964 Act could not have been invoked in the case on hand,
the orders passed in such proceedings are without jurisdiction.
Page 2 of 12

4. Mr. Basu contended that since the construction of the urinal and latrine has
already been completed, a direction for demolition of such building would
not serve any public interest and in support of such contention he placed
reliance upon the decision of the Hon’ble Division Bench in the case of Sri
Kamal Dey, Editor & Publisher of Barta Nyay vs. Director General,
Archeological Survey of India, New Delhi & Ors. reported at 2015 SCC
OnLine Cal 6605 . Mr. Basu contended that upon the permission being
granted in favour of the petitioner construction have been made and,
therefore, the doctrine of promissory estoppel stands attracted to the case
on hand. In support of such contention he placed reliance upon the decision
of the Hon’ble Supreme Court in Manuelsons Hotels Private Limited vs.
State of Kerala and ors. reported at (2016) 6 SCC 766 . Mr. Basu
contended that the municipality has to promote welfare of the people by
protecting the right of livelihood, health and general wellbeing of all sections
of the people of the society especially those who belong relatively to the
weaker sections of the society. In support of such contention he placed
reliance upon the decision of the Hon’ble Supreme Court in the case of Lala
Ram (Dead) by Legal Representative and ors. vs. Union of India and
another reported at (2015) 5 SCC 813 . Mr. Basu also placed reliance upon
the decision of the Hon’ble Supreme Court in the case of Md. Zamil Ahmed
vs. State of Bihar and ors. reported at (2016) 12 SCC 342 in support of
his contention that the State is not entitled to take advantage of their own
mistake.
th
5. Mr. Roy learned advocate appearing for the 9 respondent seriously
disputed the submission of Mr. Basu. Mr. Roy contended that though the
writ petitioner prayed for no objection from PWD (Road) Directorate as well
as from the concerned District Magistrate for construction of the toilet and
latrine but no permission was granted in favour of the Municipality. Mr. Roy
contended that the petitioner has admitted that the construction had been
made over the land of the PWD without the permission of the PWD. He
further contended that since the encroachment upon the PWD Road is an
admitted fact, the impugned order calls for no interference by this Court.
Page 3 of 12

Mr. Roy further contended that though Section 3 of the 1899 Act gives
relaxation relating to construction but it does not authorise making
construction over any land of the PWD in respect of which no permission
has been obtained by the Municipality. Mr. Roy placed reliance upon a
decision of a co-ordinate bench in the case of Ashis Kumar Dey and
another vs. State of West Bengal and others reported at (2019) Supreme
(Cal) 147 in support of his contention that an encroachment upon the
Government land should be demolished.

6. Mr. Roy learned advocate appearing placed reliance upon an order passed
by the Hon’ble Division Bench on 09.11.2022 in the case of The District
Magistrate, Hooghly District and ors. vs. Sri Ashis Kumar Dey & Ors.
in MAT 302 of 2019 in support of his contention that even a department of
the Government of West Bengal could not have put up construction without
the permission of the Highway Authority.
7. Mr. Roy also placed reliance upon on a decision of the Hon’ble Supreme
Court in the case of Dipak Kumar Mukherjee vs. Kolkata Municipal
Corporation and Ors. reported at AIR 2013 SC 927 in support of his
contention that prompt action should be taken to demolish the illegal
construction.
8. Mr. Mahata learned Additional Government Pleader contended that the land
in question whereupon construction has been made by the Haldia
Municipality is under the control and possession of the PWD and no
construction could have been made upon such property without obtaining
permission from the PWD. He further contended that no permission was
granted in favour of the Haldia Municipality to raise construction on the plot
in question. Mr. Mahata contended that the Sub-Divisional Magistrate and
the appellate authority after considering the materials on record passed
orders directing removal of encroachment from the land belonging to the
PWD and, therefore, the said orders do not call for any interference by this
Court under Article 226 of the Constitution of India.
9. Heard the learned advocates for the parties and perused the materials
placed.
Page 4 of 12

th
10. The 9 respondent lodged a complaint before the respondent authorities
alleging that the Haldia Municipality unauthorisedly encroached upon the
land belonging to the PWD just in front of his raiyati property being plot no.
751 and 752, JL No. 88 within Mouza Sutahata in the District of Purba
Medinipur.
th
11. Alleging inaction on the part of the respondent authorities, the 9
respondent filed a writ petition being WPA no. 22242 of 2019. The Assistant
Engineer, Haldia Highway Sub-Division, P.W. Roads Directorate by a letter
dated 04.12.2019 directed the Block Land and Land Reforms Officer,
Sutahata, Purba Medinipur to demarcate the Government land in front of
the Raiyati Plot no. 752 and 751 which belongs to the Public Works (Roads)
Department and to submit a sketch map of such demarcation. The Block
Land and Land Reforms Officer, Sutahata, Purba Medinipur under Memo
dated 06.12.2019 forwarded the report as well as the sketch map. The said
report states that plot no. 751/1452 belongs to the Development
Department and a building comprising an area of 1377.6 Sq. Ft.
(approximately) over the said plot is being constructed by Haldia
Municipality which is proposed to be used as urinal and lavatory for
common people.
12. The co-ordinate bench appointed a Special Officer in WPA 22242 of 2019
and the Special Officer had submitted a report on 10.02.2021. Though
liberty was granted to the petitioner herein to file objection to the said report
but the petitioner herein did not file any objection to the said report within
the time limit fixed by the co-ordinate bench.
13. After going through the report of the Special Officer, the co-ordinate bench
recorded in the order dated 15.02.2021 that it is abundantly clear that the
th
petitioner who was the 8 respondent in the said writ petition has
encroached upon the concerned highway which is maintained by the PWD of
the State of West Bengal by constructing a two storeyed public toilet at the
location in question. It has been further recorded in the said order that it
appears from the Special Officer’s report that by reason of the impugned
th
construction, the ingress to and egress from the property of the 9
Page 5 of 12

respondent, who was the petitioner in the said writ petition has been
substantially obstructed. Since encroachment had been made on State
Highway which is maintained by the PWD of the State of West Bengal, the
co-ordinate bench, in the order dated 15.02.2021, after holding that the
provisions of the West Bengal Highway Act 1964 will apply directed the
Executive Engineer, Tamluk Highway Division, Public Works Department
(Road), Government of West Bengal to initiate proceedings under Section
10(1) of the 1964 Act for removal of the impugned encroachment.

14. Being aggrieved by the order dated 15.02.2021 passed in WPA 22242 of
2019, the petitioner preferred an intra Court appeal being MAT 622 of 2021
which stood dismissed by the Hon’ble Division Bench by an order dated
10.12.2021. The Hon’ble Division Bench held thus-

“It is admitted that the Municipal Authority had made construction over
the land of the PWD without the permission of the PWD. The said illegal
construction is restraining the ingress and egress of the writ petitioner.
The Report of the Special Officer supports the contention of the writ
petitioner as well as the PWD.
The Hon'ble Single Judge by considering the report of the Special Officer
has only directed the authority to initiate proceeding under Section 10 of
the Highways Act for removal of the impugned encroachment over the
property in question.
The PWD had acted upon the order passed by the Hon’ble Single Bench.
This Court has not found any illegality with the order passed by the
Hon’ble Single Judge and there is no merit in the appeal filed by the
appellant.
Hence, MAT 622 of 2021 with CAN 2 of 2021 is dismissed.”


15. Record reveals that a notice under Section 10(1) of the West Bengal
Highways Act, 1964 dated March 23, 2021 was issued to the Chairman,
Haldia Municipality directing him to remove/demolish the
structure/obstruction to the satisfaction of the Highway Officer within the
time limit indicated therein. Since the encroachment was not removed, the
matter was referred to the Sub-Divisional Magistrate under Section 10(2) of
the 1964 Act. The Sub-Divisional Magistrate passed an order under Section
10(3) of the 1964 Act on 08.04.2022 directing the Assistant Engineer, Haldia
Highway Sub-division Public Works (Roads) Department, Chaitanyapur to
Page 6 of 12

recover possession and remove encroachment from plot no. 751/1452 and
the Officer-in-Charge in Sutahata Police Station was directed to render
necessary and lawful assistance in that regard.
16. Petitioner preferred an appeal under Section 10(4) of the Highways Act
challenging the order dated 08.04.2022 of the Sub-Divisional Magistrate,
Haldia. The District Magistrate, Purba Medinipur by an order dated August
17, 2022 affirmed the order dated 08.04.2022 passed by the Sub-Divisional
Magistrate, Haldia and directed the said authority to recover possession and
remove encroachment from plot no. 751/1452 under the provisions of the
1964 Act within the time limit indicated therein.
17. At this stage it would be relevant to point out that during the pendency of
this writ petition, the petitioner preferred a review application to review the
order passed by the Hon’ble Division Bench in MAT 622 of 2021 along with
an application under Section 5 of the Limitation Act praying for condonation
of delay of about 1357 days. The Hon’ble Division Bench dismissed the
review application as time barred by an order dated February 6, 2026. Thus,
the petitioner was unsuccessful in its attempt to modify the order of the
Hon’ble Division Bench dated 10.12.2021 in MAT 622 of 2021 wherein it
was recorded that it is admitted that the municipal authority had made
construction over the land of the PWD without permission of the PWD.
18. Mr. Basu learned Senior Advocate for the petitioner would strenuously
contend that the petitioner made construction on the land in Dag no. 1452
with the permission of the authorities of the Public Works (Roads)
Department and in support of such contention he placed strong reliance on
the Memo dated 18.11.1988. After going through the Memo dated
18.11.1988 it is evident that permission was granted to make construction
on 1336.5 Sq. meter of land in Dag Nos. 144, 145,146, 149 and 779 under
Mouza Durga Chowk but no permission either in respect of Dag No. 1452 or
751/1452 within Mouza Sutahata was granted in favour of the petitioner.
Therefore, the said Memo cannot come to the aid of the petitioner.
19. That apart, the order recording the admission of the Municipal Authority in
the order dated 10.12.2021 passed in MAT 622 of 2021 that the
Page 7 of 12

Municipality had made construction over the land of PWD without any
permission of the PWD has already attained finality.
20. Mr. Basu would strenuously contend that the Haldia Municipality is
exempted from taking any permission for construction and can construct on
the land of PWD in view of the provisions laid down under the Government
Buildings Act, 1899.
21. Government Buildings Act, 1899 was enacted to provide for exemption from
the operation of municipal building laws of certain buildings and lands
which are the property, or in the occupation of the Government and situated
within the limits of a municipality.
22. Section 3 of the 1899 Act grants exemption to the State Government from
complying with the provisions contained in the municipal laws regulating
the erection, re-erection, construction, alteration or maintenance of
buildings within the limits of any municipality when the Government
constructs building on its own land or in the land occupied by the
Government.
23. 1899 Act, however, does not empower the Municipality to make any
construction upon the land of the PWD without obtaining permission from
the PWD, Government of West Bengal.
24. The Hon’ble Division Bench in Kamal Dey (supra) held that service of notice
upon the municipal authority before commencement of work as
contemplated under Section 3 of the 1899 Act is mandatory and any
contrary interpretation would render the modalities framed under Section 4
of the said Act will become unworkable. The said decision being
distinguishable on facts cannot come to the aid of the petitioner.
25. In Lala Ram (supra), the order passed by the Railway Administration
enhancing the license fee for use of the railway property was under
challenge. The Hon’ble Supreme Court after observing that the welfare State
must serve larger public interest and must not grant unwarranted favour(s)
to a particular class of people without justification at the cost of others held
that the enhanced license fee is not unreasonable or arbitrary. The said
decision being distinguishable on facts cannot assist the petitioner.
Page 8 of 12

26. In Md. Zamil Ahmed (supra), the younger brother of a deceased employee
was given appointment on compassionate ground. After 15 years of
satisfactory duty, the service of the appellant therein was terminated on the
ground that his appointment on compassionate ground was illegal and
against the policy. The Hon’ble Supreme Court held that the decision for
giving appointment was a right decision taken by the State as a welfare
State to help the family of the deceased at the time of need of the family and
there was no justification on the part of the State to wake up after lapse of
15 years and terminate the services of the appellant therein on such ground.
The said decision being distinguishable on facts cannot come to the aid of
the petitioner.
27. There is no quarrel to the proposition of law laid down in Manuelsons
Hotels Private Limited (supra) that where the Government makes a
promise knowing or intending that it would be acted upon by the promisee
and in fact the promisee acting in reliance on it, alters his position, the
Government would be held bound by the promise and the promise would be
enforceable against the Government at the instance of the promisee. It was
further clarified that the doctrine of promissory estoppel could have no
application it no definite promise was made by or on behalf of the
Government.
28. In the case on hand, petitioner Municipality failed to demonstrate that
permission to make construction was accorded in favour of the Municipality
and, therefore, the question of acting upon any promise by the Government
does not and cannot arise. Thus, the said decision also cannot come to the
aid of the petitioner.
29. West Bengal Highways Act, 1964 was enacted to provide for the
maintenance and control of highways, the prevention of encroachment
thereon and the removal of encroachments therefrom, and for certain other
matters connected therewith.
30. The expression “encroachment” has been defined in Section 2(b) of the 1964
Act to mean any occupation or use of any highway or part thereof by any
Page 9 of 12

unauthorized person and includes any projection on, over or under such
highway.
31. Section 10 of the 1964 Act casts an obligation upon the Highway Authority
to remove encroachment made by any person. It also lays down the
procedures for such purpose as well as the forum before which an aggrieved
person responsible for encroachment can prefer an appeal.
32. By laying emphasis on the expression “person” used in Section 10 and
“unauthorized person” used in Section 2(b) of the 1964 Act, Mr. Basu would
contend that any alleged encroachment made by a local authority would not
fall within the scope of the 1964 Act.
33. The word “person” has not been defined in the 1964 Act. Therefore, this
Court has to consider the dictionary meaning of the word “person”.
34. In Black’s Law Dictionary the word “person” has been defined to also include
an entity (such as a corporation) that is recognised by law as having the
rights and duties of a human being.
35. The relevant portion of the Black’s Law Dictionary is extracted hereinafter.

“ person. 1. A human being. 2. An entity (such as a corporation) that is
recognized by law as having the rights and duties of a human being.
3. The living body of a human being < contraband found on the smuggler's
person›>.
So far as legal theory is concerned, a person is any being whom the law *
regards as capable of rights and duties. Any being that is so capable is a
person, whether a human being or not, and no being that is not so capable
is a person, even though he be a man. Persons are the substances of which
rights and duties are the attributes. It is only in this respect that persons
possess juridical significance, and this is the exclusive point of view from
which personality receives legal recognition." John Salmond, Jurisprudence
318 (Glanville L. Williams ed., 10th ed. 1947).”


36. Haldia Municipality has been vested with certain legal rights and duties
that of a human being.
37. This Court is, therefore, of the considered view that Haldia Municipality
which is a body corporate with perpetual succession and a common seal
and may by its name sue and be sued though in real terms may not be a
human being but in legal parlance shall squarely fall within the expression
Page 10 of 12

“person” used in Section 10 and the provisions of Section 10 shall stand
attracted in case a Municipality is found to have made an encroachment
upon the PWD land. If such authority is in possession of any property
without lawful authority, such occupation shall be constructed to be an
“encroachment” by an unauthorized person.
38. In Ashis Kumar Dey (supra) the State Government was putting up a
construction on the PWD land which was admittedly a “highway” within the
meaning of the West Bengal Highway Act, 1964. The Hon’ble Division Bench
held that even the State Government has to act in accordance with the law
and in compliance with the mandatory statutory requirements. It was
further held that the department of the Panchayat and Rural Development,
Government of West Bengal, which was responsible for the impugned
construction, could not have put up the construction without the prior
permission of the Highway Authority. By applying the proposition of law laid
down by the Hon’ble Division Bench in Ashis Kumar Dey (supra) this Court
holds that the Haldia Municipality also could not have put up any
construction on the PWD land without prior permission of the Highway
Authority.
39. For the reasons as aforesaid, this Court is not inclined to accept the
contention of Mr. Basu that the provisions of the 1964 Act shall not apply to
the case on hand.
40. The other limb of submission of Mr. Basu that Section 26 of the 1964 Act
permits construction by the Municipality cannot be accepted by this Court
for the reasons as stated hereinafter.
41. Section 26 of the 1964 Act enables the local authority to make any
excavation for certain specific purpose. It also saves the right of any
authority under any law for the time being in force to erect any support or
make any excavation for certain specific purpose.
42. Construction of a two storeyed permanent structure by way of
encroachment upon the land of PWD is neither permitted under the 1964
Act nor saved under Section 26 of the said Act.
Page 11 of 12

43. In Dipak Kumar Mukherjee (supra), construction was made in violation of
the sanction plan and illegal construction was done in spite of the decision
of the Mayor in Council of the Kolkata Municipal Corporation as well as the
order of the High Court. On such facts the Hon’ble Supreme Court directed
that the illegal construction be pulled down without delay and in order to
ensure the same, certain directions were passed. The said decision being
distinguishable on facts cannot be applied to the facts of the case on hand.
44. The Sub-Divisional Magistrate and the concerned District Magistrate after
considering the materials on record passed orders directing removal of
encroachment from the Highway. There is no infirmity in the decision
making process warranting interference under Article 226 of the
Constitution of India.
45. Accordingly, the writ petition stands dismissed. There shall, however, be no
order as to costs.
46. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.

(HIRANMAY BHATTACHARYYA, J.)



Page 12 of 12