Municipalities Are 'Persons' Under WB Highways Act; Can't Build On PWD Land Without Permission: Calcutta High Court

"Haldia Municipality, which is a body corporate with perpetual succession... though in real terms may not be a human being, but in legal parlance shall squarely fall within the expression 'person' used in Section 10 of the West Bengal Highways Act, 1964," Calcutta High Court, in a significant ruling, held that a Municipality qualifies as a "person" under the West Bengal Highways Act, 1964, and can be ordered to remove encroachments made on land belonging to the Public Works Department (PWD).

A single-judge bench of Justice Hiranmay Bhattacharyya observed that even a local authority cannot raise permanent constructions on government highway land without express permission from the Highway Authority.

The Haldia Municipality challenged an order passed by the District Magistrate, Purba Medinipur, which affirmed a direction to remove a two-storeyed public toilet constructed by the Municipality on PWD land. The dispute arose when a private respondent alleged that the construction obstructed access to his property. While the Municipality claimed it had the authority to build for public welfare, the PWD maintained that no specific permission was ever granted for the plot in question.

The primary question before the court was whether a Municipality falls within the definition of a "person" for the purpose of removal of encroachments under Section 10 of the West Bengal Highways Act, 1964. The court also considered whether the Government Buildings Act, 1899, or Section 26 of the 1964 Act empowered the Municipality to construct on PWD land without explicit departmental permission.

Municipality Qualifies As A 'Person' Under the Act

The Court addressed the Petitioner's contention that a local authority does not fall within the scope of "person" or "unauthorized person" as defined under Section 2(b) and Section 10 of the 1964 Act. Justice Bhattacharyya noted that while the word "person" is not defined in the Act, its legal dictionary meaning includes any entity recognized by law as having rights and duties.

The Court emphasized that the Haldia Municipality is a body corporate with perpetual succession and a common seal, capable of suing and being used. The bench noted that in legal theory, a person is any being whom the law regards as capable of rights and duties. Consequently, any occupation of property without lawful authority by such an entity constitutes an "encroachment" by an "unauthorized person."

"Haldia Municipality... though in real terms may not be a human being but in legal parlance shall squarely fall within the expression 'person' used in Section 10."

Lack of Permission Overrides Public Welfare Claims

The Court rejected the Municipality's reliance on a 1988 Memo, clarifying that the document granted permission for specific plots but did not include the plot where the toilet was constructed. The bench further noted that the Municipality had previously admitted before a Division Bench that the construction was made without PWD permission.

The bench observed that even if a construction is intended for public welfare, it cannot be legitimized if it is built on land belonging to another government department without authorization. The Court held that the State and its instrumentalities must act in accordance with statutory requirements and cannot occupy land without a valid legal basis.

"The Municipality had made construction over the land of the PWD without permission of the PWD. The said illegal construction is restraining the ingress and egress of the [respondent]."

Government Buildings Act Does Not Authorize Encroachment

The Petitioner had argued that Section 3 of the Government Buildings Act, 1899, exempted them from seeking permissions. However, the Court clarified that this Act only provides an exemption from municipal building laws when the government constructs on its own land. It does not grant a Municipality the right to trespass or build on PWD land without consent.

The Court held that the 1899 Act cannot be used as a shield to justify unauthorized construction on land occupied by another department. Justice Bhattacharyya noted that the mandatory requirement of notice under the 1899 Act further reinforces the principle that local authorities cannot act unilaterally on government property.

"1899 Act, however, does not empower the Municipality to make any construction upon the land of the PWD without obtaining permission from the PWD."

Section 26 of Highways Act No Defense for Permanent Structures

The Court also dealt with the argument that Section 26 of the 1964 Act permits local authorities to carry out works on highways. The bench clarified that Section 26 is limited to specific purposes like excavations and the erection of supports for utility services. It does not extend to the construction of permanent two-storeyed buildings.

The Court held that a permanent structure of this nature is neither permitted under the general provisions of the Act nor saved by the specific exemptions of Section 26. Since the construction was an admitted encroachment on a State Highway, the authorities were within their rights to order its removal to ensure the maintenance and control of the highway.

The High Court found no infirmity in the orders passed by the Sub-Divisional Magistrate and the District Magistrate. Holding that the Municipality could not claim immunity from the 1964 Act, the Court dismissed the writ petition and upheld the direction to recover possession of the land.

Date of Decision: 18 May 2026