T Sanjiv Reddy vs The State Of Ap
2021 Latest Caselaw 3069 AP

       HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                      W.P.No.15654 of 2020

ORDER:

The Executive Engineer (Highway Security), National

Highways, Kadapa had issued a notice on 27.02.2020, for

removal of unauthorised occupation, to various persons in

Cherlopalli Hamlet in Diguvatottivaram Village and Mandal,

Chittor District under the provisions of Section 26(2) of the

Control and National Highways (Land and Traffic) Act, 2002 (for

short „the Act). This notice is said to have been issued to

persons, who had entered into the lands, which fall within the

boundaries of the said National Highway. Aggrieved by this

notice, the said persons are said to have been filed a writ

petition before this Court by way of W.P.No.13861 of 2020

which was disposed of on 11.08.2020, giving liberty to the

petitioners therein to file representations before the 2nd

respondent therein, raising all their contentions within two

weeks from the date of receipt of the order of this Court and

upon such representation being given, the 2nd respondent was

directed to deal with the same and of pass appropriate orders

strictly in accordance with law and communicate the same to

the petitioners. This Court also directed that no coercive steps

would be taken against the petitioners in the writ petition until

the orders are passed and communicated to them.

2. Thereafter, the petitioners therein are said to have

submitted representations to the Executive Engineer (Highway

Security) on 19.08.2020. This representation along with the 2 RRR,J.

W.P.No.15654 of 2020

material placed before the said executive Engineer were

considered and an order dated 21.08.2020 was passed. In this

order it was stated that the petitioners had only filed their

Aadhaar card, current bill, house tax receipt, water cess receipt

copies etc., but did not show any documents either to show that

they were owners of the land or that they were not in

unauthorized occupation of the land falling within the

boundaries of the national highway. The Executive Engineer,

after giving these reasons, required the petitioners to vacate the

land immediately and cooperate for expansion of road.

3. Aggrieved by the said order dated 21.08.2020, the

petitioners have approached this Court. It is the contention of

the petitioners that the petitioners, who are socially backward

and financially poor, had occupied the land in their possession

about 25 to 35 years back; that they have even constructed

pucca houses in the land and have been paying house tax

regularly to the Panchayat authorities; and that they had also

been given Aadhaar Cards and ration cards showing their

residential address as the houses constructed in the land

occupied by the petitioners. The petitioners contend that since

they were in occupation of the lands for the past 25 to 35 years,

they cannot be treated as unauthorized occupants as per the

Act. The petitioners further contend that the authorities had not

followed the due process of law as required under the National

Highways Act, 1956 which would be the applicable Act. It is

submitted that since the Control under National Highways 3 RRR,J.

W.P.No.15654 of 2020

(Land and Traffic) Act, 2002 has no application, the notice/order

dated 21.08.2020 has to be set-aside.

4. Sri S.S. Bhatt, learned counsel appearing for the

petitioners would submit that the petitioners cannot be treated

as unauthorised occupants of the land and they are entitled for

payment of compensation in the event of demolition of their

houses and their dispossession from the land. He relies upon

the following judgments in support of his contention.

1. Pilli Lakshmana Rao & Ors., v. Executive Officer Gram Panchayat & Ors.,1

2. Nagaral Nirvasithula Welfare Association v.

Government of Andhra Pradesh2

3. Voonna Bangaraju & Ors., v. Government of A.P.

rep. By its Principal Secretary Revenue (Stamps & Registration) Department & Ors.,3

4. Karri Raghavulu v. Principal Secretary, Registration & Stamps Department, and Ors.4

5. The 2nd respondent, whose impugned order is under

challenge, filed a counter affidavit stating that 14 persons had

encroached upon the national highway and details of such

encroachment as well as the structures on the said

encroachments are set out in the counter affidavit. The 2nd

respondent also contends that the rehabilitation and up-

gradation from km.0/0 to 60/280 of Rayachoty - Angallu road

of N.H.340 was initiated at a cost of Rs.319.28 crores and the

2000 (5) ALT 246

(2012) SCC Online AP 114

2014 (4) ALT 238

2015 (3)ALT 215 4 RRR,J.

W.P.No.15654 of 2020

same has already been entrusted to a contractor on tender basis

and work is in progress. The scope of the work is said to be the

widening of the existing 7 mts., wide road to10 mts., wide road

with drains on both sides along with paver blocks. At that stage,

it was noticed that the petitioners had encroached upon the

road and consequently notices were served on the petitioners as

per Schedule-III of the Control and National Highways (Land

and Traffic) Act, 2002. As these are encroachments, the

provisions of the National Highways Act, 1956 would not apply

and the question of acquisition of land under Sections 3(a) to

3(h) of the National Highways Act also would not arise.

Consideration of the Court:

6. A perusal of the pleadings and the contentions

would show that the claim of the petitioners that they are in

occupation of the land for the past 30 odd years, is not disputed

by the respondents. Similarly, the contention of the respondents

that the petitioners are in unauthorized occupation of the land

falling within the existing boundaries of the national highway is

also not disputed by the petitioners. This Court would have

now to proceed on the basis of the fact that the petitioners have

been in occupation of the land falling within the boundaries of

the national highway 340 for the past 30 years or so.

7. The Control and National Highways (Land and

Traffic) Act, 2002 has come into force from 14.01.2003. This Act

was enacted to provide for Control of land within the National

Highways, right of way and traffic on the national highways, and 5 RRR,J.

W.P.No.15654 of 2020

also for removal of unauthorised occupations thereon.

Section 26 & 27 of the Act, 2002 provides for removal of

unauthorized occupation. These provisions set out the

procedure for removal of unauthorised occupations. Under these

provisions where the Highway Administration or the Officer of

such administration is satisfied that there is an unauthorised

occupation of highway land, the said officer shall serve a notice

in the prescribed form on the person causing or responsible for

such unauthorized occupation requiring him to remove such

unauthorized occupation within the period specified in the

notice. Upon receipt of such notice, the person, who is said to be

in unauthorised occupation, is given an opportunity of hearing

by setting out the place and time of hearing of any

representation, which the person to whom the notice is

addressed may make within the time specified in the notice.

Failure to comply with such notice would render that person

liable for penalty, and summary eviction from the highway land

in respect of which such notice is issued.

8. Section 26(6) of the Act, 2002 provided for the

authorised officer or the Highway Administration to remove the

unauthorized occupation at the expense of the Central or State

Government and to levy a penalty of Rs.500/- per square meter

of unauthorized occupied land. Section 26 contains a very

detailed procedure and only a cursory summary of the said

provision, is being set out here.

                                   6                              RRR,J.
                                                   W.P.No.15654 of 2020

9. Removal of such unauthorized occupation, under

Sections 26 and 27 of the Act, 2002, would be available to either

the Highway Administration or the Officer authorised by such

administration. The cause of action for such removal would be

available only where the occupation is unauthorized. The said

phrase „"unauthorised occupation" has been defined in

Section 2(m) of the Control and National Highways (Land and

Traffic) Act, 2002 which reads as follows:

Section 2(m) "unauthorised occupation" means any occupation of the highway land, without permission under this Act for such purpose, by a person who--

(i) is trespasser on the Highway; or

(ii) for the time being is paying or is liable to pay to other person rent or any portion of the rent of the premises on a Highway; or

(iii) lives in or otherwise uses any premises on a Highway; or

(iv) is a rent-free tenant of any premises on a Highway; or

(v) is a licensee of any premises on a Highway for its possession; or

(vi) is liable to pay damages to the owner of any premises on a Highway for the use or possession of such premises;

10. A reading of the said provision would show that any

person, who is a trespasser or lives in or otherwise uses any

premises on a highway, without permission under the Act,

would be in unauthorized occupation of the land. Section 24(1)

of the Act, 2002 stipulates that no person shall occupy any

highway land or discharge any material through drains on such

land without obtaining prior permission. Section 24(2) to 24(5) 7 RRR,J.

W.P.No.15654 of 2020

of the Act, 2002 empowers the Highway Administration or the

Officer authorized by the Highway Administration to grant

permission to persons for various purposes set out in the said

provisions. However, all the said purposes are temporary in

nature and there is no provision for granting permission for

construction of any permanent structure or residential building

within the highway land.

11. Keeping these provisions of the Act in mind, the

judgment cited by Sri S.S. Bhatt can be considered. In Pilli

Laxmana Rao case, the issue that had come up before the Court

was whether the occupants, who are in possession of the road

margins should be given notices and opportunity before being

evicted or their structures are demolished. A Division Bench of

the erstwhile High Court of Andhra Pradesh had held that all

such occupants are entitled to a notice and an opportunity of

hearing before they are evicted.

12. In Nagarala Nirvasithula Welfare Association case,

the displaced persons were given compensation only to the

extent of the cost of the houses/structures and no

compensation was given for the land on which these structures

were standing, on the ground that the land was Gramakantham

land which vests with the Government and the displaced

persons have no claim over the said land. This proposition was

negatived by the High Court which held that the displaced

persons would be entitled for compensation in relation to the

land also.

                                    8                                RRR,J.
                                                      W.P.No.15654 of 2020




        13.    In   Vonna   Bangaraju   case,   the    petitioner    had

challenged the refusal of registration authorities to register

transactions in relation to certain lands on the ground that the

said land was classified as "poramboke". The High Court had

found that this land was actually Gramakantham land and

cannot be treated as Government land and directed registration

of transactions.

14. In Karri Raghavulu case, the question that arose

again is non-registration of transactions relating to

Gramakantam land. The High Court after holding that such

land would not belong to the Government, had directed

registration of transactions.

15. None of these judgments relate to the question

whether the occupants of road margins, over a period of long

time, can be treated as the persons in unauthorised occupation

or not.

16. Apart from the above citations, Sri S.S. Bhatt also

raised a contention that the petitioners had been in occupation

of the lands even prior to the Act coming into force, and

therefore, the earlier occupation of the land by the petitioners

cannot be converted into unauthoritsed occupation under the

Act. This contention cannot be accepted. The petitioners,

admittedly, have no title to the land. They are simply in

occupation of the land, which does not belong to them. In such

a situation, they would be encroachers or unauthorised

occupants of the land even under the provisions of the Land 9 RRR,J.

W.P.No.15654 of 2020

Encroachment Act, or under general law. After the Act came into

force, the occupation of the land by the petitioners would fall

within the category of unauthorised occupation under the Act.

No provision has been shown to this Court, to the effect that

earlier unauthorised occupation of land moves such

unauthorised occupants out of the purview of the definition of

unauthorised occupation under the Act.

17. One of the objects of the Act is to ensure that

unauthorised occupation of the road margins does not hinder

speedy development of national highways. In the present case,

except the contention that the petitioners have been in long

standing possession of the road margin area, the petitioners

have not shown any claim of proper title to the land. In such

circumstances, the only finding that can be given is that the

petitioners are in unauthorised occupation of the land, as

defined in Section 2(m) of the Act. Secondly, the respondents

would be entitled to initiate action under Section 26 and 27 of

the Act. These provisions require a prior notice being given to

the unauthorised occupants before their eviction. Admittedly,

such notices have been given and the objections raised by the

petitioners have also been considered before the impugned

proceedings have been issued. In the circumstances, there is no

scope for interference by this Court in the said proceedings.

18. Sri S.S. Bhatt, in the alternative, contends that the

petitioners be granted some compensation in view of their long

standing possession and in view of the fact that demolition of 10 RRR,J.

W.P.No.15654 of 2020

their houses at this stage would render them homeless. Even

though the respondents are entitled to evict the petitioners, the

fact that these petitioners will become homeless on such

eviction, cannot be lost sight of. It is the fervent hope of this

Court that the respondents shall consider this aspect while

proceeding further in the matter. It is always open to the

respondents to consider this fact.

19. For the aforesaid reasons, the writ petition is

dismissed. There shall be no order as to costs. As a sequel,

pending miscellaneous petitions, if any, shall stand closed.

________________________ R. RAGHUNANDAN RAO, J

17th August, 2021 Rjs/Js.

                             11                          RRR,J.
                                          W.P.No.15654 of 2020




         HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




                   W.P.No.15654 of 2020




                    17th August, 2021
Rjs/Js