Local Authorities Constitute "Persons" Under West Bengal Highways Act; Prior Permission From Highway Authority Mandatory For Construction

In brief

The question

1. Whether the West Bengal Highways Act, 1964 applies to a local authority like a Municipality, and whether a Municipality falls under the definition of a "person" or "unauthorized person" under the Act.

The court held

The court answered that a Municipality is a "person" under the 1964 Act and its unauthorized occupation of PWD land constitutes "encroachment"

It also directed

It held that no exemption exists under the 1899 Act or the 1964 Act for such constructions without Highway Authority permission

The court found no infirmity in the orders of the SDM and DM

The writ petition was dismissed, upholding the direction to recover possession and remove the encroachment from Plot no. 751/1452

01Facts

The Haldia Municipality (Petitioner) constructed a building comprising latrines and urinals on LR Plot no. 751/1452, land belonging to the Public Works Department (PWD)

pp. 1-2

Following a complaint by a private respondent (Respondent No. 9) regarding obstruction of access to his property, a coordinate bench in earlier proceedings (WPA 22242 of 2019) found that the Municipality had encroached upon a State Highway

pp. 5-6

The High Court previously directed the Highway Authority to initiate proceedings under the West Bengal Highways Act, 1964

p. 6

Consequently, the Sub-Divisional Magistrate (SDM) passed an order on April 8, 2022, under Section 10(3) of the Act for the removal of the encroachment

p. 2

The District Magistrate (DM) affirmed this order in an appeal on August 17, 2022

p. 2

The Municipality challenged these orders, claiming they had permission via a 1988 Memo and were exempt under the Government Buildings Act, 1899

p. 2

02Issues

i.1. Whether the West Bengal Highways Act, 1964 applies to a local authority like a Municipality, and whether a Municipality falls under the definition of a "person" or "unauthorized person" under the Act.

pp. 9-10 / para. 32-37

ii.2. Whether the Government Buildings Act, 1899 or Section 26 of the 1964 Act exempts the Municipality from seeking PWD permission for construction on Highway land.

pp. 8-11 / para. 21-23, 40-42

iii.3. Whether the Municipality possessed valid legal permission to raise the specific construction in question.

pp. 7 / para. 18-19

03Law Applied

The court applied Section 2(b) and Section 10 of the West Bengal Highways Act, 1964, which define "encroachment" as unauthorized use of a highway and empower authorities to remove such obstructions

pp. 9-10

Section 3 of the Government Buildings Act, 1899, which exempts certain government buildings from municipal building laws but does not authorize construction on third-party (PWD) land without consent

p. 8

The court relied on the precedent Ashis Kumar Dey vs. State of West Bengal, establishing that even government departments cannot build on Highways without the Highway Authority's permission

p. 4, 11

The doctrine of promissory estoppel from Manuelsons Hotels Private Limited vs. State of Kerala was noted but held inapplicable

p. 3, 9

Provisions in the judgment · 6 · Linked ones open on LawLens

West Bengal Highways Act. 1964 Section 2 Section 10 Section 26

Government Buildings Act, 1899 Section 3 Section 4

Limitation Act, 1963 Section 5

04Reasoning

The court rejected the Municipality's reliance on the 1988 Memo, noting it only permitted construction on different plots in a different Mouza, not the plot in question

p. 7

It emphasized that the Division Bench in MAT 622 of 2021 had already recorded the Municipality’s admission that the construction was made without PWD permission

p. 6, 7

On the legal definition of "person," the court utilized Black’s Law Dictionary and Jurisprudence principles to conclude that a Municipality, as a body corporate with rights and duties, is a legal "person" subject to the 1964 Act

pp. 10-11

Regarding statutory exemptions, the court held that while the 1899 Act exempts the Government from municipal laws, it does not permit a Municipality to bypass highway laws

p. 8

Furthermore, Section 26 of the 1964 Act was found to protect only specific excavations and supports, not the unauthorized construction of permanent two-storeyed buildings

p. 11