Rajesh Agrawal vs The Union Of India
2022 Latest Caselaw 2456 Chatt

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                                                                          NAFR

                 HIGH COURT OF CHHATTISGARH, BILASPUR

                          W.P.(C). No. 910 of 2022

Rajesh Agrawal, S/o. Late Shri Baijnath Agrawal, aged about 56 years, R/o.
705, Sunder Nagar, Raipur, District and Tehsil Raipur Chhattisgarh

                                                                  ---- Petitioner

                                   Versus

1.     The Union of India, through : the Ministry of Road Transport and
       Highways, Government Of India, Parivahan Bhavan, 1 Parliament
       Street, New Delhi 110001

2.     National Highways Authority Of India, Through Its Chairman,
       Corporate Office At F-5 And 6, Sector 10, Dwarika, New Delhi 110075

3.     Project Director, Project Implementation Unit, Raipur, House No. 5196,
       Behind B.I.T. College, Shankar Nagar, Raipur, Chhattisgarh

4.     Land Acquisition Officer Cum SDM, Raipur, District and Tehsil Raipur,
       Chhattisgarh

5.     Tehsildar, Dharsiwa, District Raipur, Chhattisgarh

6.     Nayab Tehsildar, Dharsiwa, District Raipur, Chhattisgarh

                                                            ---- Respondents

For Petitioner                    : Mr. Abhuday Singh, Advocate
For Respondent No.1               : Mr. R.K. Mishra, Asst. S.G.
For Respondent No.2 & 3           : Mr. Prasun Kumar Bhaduri, Advocate

For Respondents/State No.4 to 6 : Ms. Priyamvada Singh, Dy.G.A.

Hon'ble Shri Justice Rajendra Chandra Singh Samant Order On Board 13/04/2022

1. It is submitted by the learned counsel for the petitioner that the

petitioner is the owner of the land bearing Kh. No. 39/2 and 40/2,

admeasuring 0.510 hectares, situated at P.C. No.101/29, Mauja -

Sarona, R.I. Circle- Dharsiwa-I, District- Raipur, which was purchased

by him by sale deed dated 26.11.2012. The portion of this land 0.510

hectares was acquired for widening of the National Highway regarding

which, the compensation has been determined and paid to the

petitioner. On request of the petitioner, a demarcation was made on

04.01.2021, in which it was found that in total 0.227 hectares land of

the petitioner has been utilized by the respondents, whereas, there is

acquisition of only 0.150 hectares, therefore, 0.077 hectares/8288

sq.ft. has been found to be encroached upon by the respondents. The

petitioner has made representation to the respondents to vacate the

land encroached upon by them, which has not been responded, thus

the petitioner has been illegally deprived of his property. Prayer has

been made for issuance of appropriate writ directing the respondents

to vacate the land that has been illegally encroached upon.

2. Learned counsel for the respondent No.1 make formal objection.

3. Learned counsel for the respondent No.2 & 3 submits that the issue

raised by the petitioner is disputed. The copy of the first demarcation,

which was filed by the petitioner is dated 03.03.2016, which mentions

only 0.150 hectares of land of the petitioner has been utilized for

construction of road and that demarcation was conducted without any

dispute. The subsequent demarcation has taken place on 04.01.2021

on which the petitioner is placing reliance. It is submitted that the

subsequent demarcation made is not based on Chandamunara. There

is specific direction of this Court in case of Ashok Kumar Tiwari Vs.

Mohit Kumar Kamal Nayan Tiwari, reported in AIR Online 2019

Chh. 1083 that the instruction of the Chhattisgarh Bhu Abhilekh

Niyamawali, the land record manual, Chapter-6 prescribes that

traversing can be done by theodolite or plane table method and the

Court directed that new procedure be accepted to find the missing

Chanda/ land marks and demarcation be done accordingly. This order

was challenged in writ appeal, which has been decided in case of

Mohit Kumar Vs. Ashok Kumat Tiwari, reported in AIR Online 2020

Chh. 376 and the order of Single Bench was upheld. Hence, in such

case, accurate demarcation of the land is required to be done.

4. In reply, it is submitted by the learned counsel for the petitioner that

second demarcation of 2021 has been done by following the law and

procedure. Notices were issued to the concerned but there was no

appearance from that side. Relying on the judgment of Madhya

Pradesh High Court in case of Murlidhar & Anr. Vs. Board of

Revenue , M.P. and Ors., reported in 2013 (3) MPLJ 184, it is

submitted that the demarcation has been conducted by the Revenue

Officer, which has to be honoured by the petitioner. Hence, the

respondents be directed to decide the representation of the petitioner

and if required, fresh demarcation may also be made.

5. Considered on the submissions. As there are rival submissions

regarding the second demarcation that has been conducted in the year

2021, however, it appears that the issue can be resolved by

conducting a fresh demarcation in which both the parties shall be

required to remain present to ascertain the area of the land of the

petitioner, which has been utilized for construction of National

Highway. Therefore, this petition is disposed off. The respondents are

directed to consider on the representation filed by the petitioner dated

13.01.2022, if necessary, conduct a fresh demarcation, in which the

presence of the petitioner and the respondent concerned shall be

ensured. If the out come of this demarcation favours the petitioner,

then the respondents shall be at liberty to either acquire the excess

land of the petitioner, which may be found to have been utilized for

construction of National Highway or to vacate the same in favour of the

petitioner. The direction given by this Court shall be complied by the

respondents within a time limit of 120 days.

6. Accordingly, this petition is disposed off with the aforesaid directions.

Sd/-

(Rajendra Chandra Singh Samant) Judge Balram