Bhawani Shankar Saini vs Union Of India
2023 Latest Caselaw 2211 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 1381/2023

Radhe Shyam Joshi S/o Shiv Ratan Joshi, Aged About 52 Years, Ward No. 30, Parasar Mandie Ke Pas, Kalu Bas, Shri Dungarh, Bikaner, Rajasthan.

----Petitioner Versus

1. Union Of India, Through Ministry Of Road Transport And Highways, New Delhi

2. National Highway Authority Of India, New Delhi.

3. District Collector, Bikaner, Rajasthan

4. District Collector, Churu, Rajasthan

5. Sub Divisional Officer, Shri Dungargarh.

6. Nagar Palika, Shri Dungargarh, Bikaner Through Executive Officer.

7. Executive Engineer, Public Work Department, National Highway, Block Churu.

----Respondents Connected With

1. S.B. Civil Writ Petition No. 1066/2023

2. S.B. Civil Writ Petition No. 1189/2023

3. S.B. Civil Writ Petition No. 1210/2023

4. S.B. Civil Writ Petition No. 1374/2023

5. S.B. Civil Writ Petition No. 1377/2023

6. S.B. Civil Writ Petition No. 1382/2023

7. S.B. Civil Writ Petition No. 1384/2023

8. S.B. Civil Writ Petition No. 1385/2023

9. S.B. Civil Writ Petition No. 1542/2023

10. S.B. Civil Writ Petition No. 1708/2023

11. S.B. Civil Writ Petition No. 1529/2023

12. S.B. Civil Writ Petition No. 1651/2023

For Petitioner(s) : Mr. Moti Singh on VC Mr. Radhe Shyam Joshi, Mr. Kamal Kishore Nai, Mr. Bhagwan Tiwari, Mr. Nagraj Nai, Mr. Bhawani Shankar Saini, Mr. Mangala Ram Godara, Mr. Aakash Sindhi, Mr. Shyam Sunder Pareek, Mr. Mala Ram Jat (present in person) For Respondent(s) : Mr. Anil Bachhawat for PWD

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 10/03/2023

Pronounced on 14/03/2023

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1. As culled out from the memo of petitions, the present

bunch of petitions under Article 226 of the Constitution of India

has been preferred claiming, in sum and substance, the following

reliefs:

A. by an appropriate writ order or direction, the notices dated 16.02.2022 & 10.01.2023 may kindly be declared illegal and accordingly, be quashed and set aside. B. by an appropriate writ, order or direction, the respondents may be directed to not to take any action against the petitioners without giving them reasonable opportunity of being heard in accordance with law forthwith.

2. The genesis of the controversy involved herein lies in

the notice(s), impugned herein, issued to the present petitioners,

by the respondent-authority for removal of certain encroachments

from the government lands; such encroachments, as the pleaded

facts and the record would reveal, were sought to be removed for

the purposes of National Highway (public project).

3. The impugned notice dated 10.01.2023 came to be

issued by the respondents under Sections 26(2) and 27 of the

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

(hereinafter referred to as 'Act of 2002') to the present petitioners

seeking removal of their shops/walls/hotels i.e. commercial

establishments, while assessing the same to be an encroachment

over the government lands.

3.1 Such conclusion, as per the respondents, regarding the

commercial establishments of the present petitioners, was drawn,

on count of such establishments over the lands in question, are

(3 of 11) [CW-1381/2023]

clearly violating the stipulations made in relation to building lines

and control lines as prescribed in relation to National Highways.

3.2 Further stand of the respondents to justify the

impugned action is that NH-11 in question was notified, within

Schedule II at Sr. No. 13A, vide notification dated S.O.119 4 th May

1960 having its route from Agra-Jaipur-Bikaner; the present

lands/commercial establishments in question (within 490 km to

495 km in between Sikar and Bikaner) are situated within the

periphery of town Sridungargarh.

3.4 In their attempt to thwart the impugned notice(s), the

petitioners averred in the petitions that in some of the cases, the

lands, over which their commercial establishments etc. have been

constructed, were allotted by the concerned Municipal Body; while

in some cases, the averment of the petitioners is that they have

purchased the land(s) vide registered sale deed(s). As per the

petitioners, the constructions of the commercial establishments

etc. were raised after obtaining due permission and approval from

the competent authorities.

3.5 Furthermore, the petitioners claimed that in response

to the impugned notice(s), they have represented before the

concerned authorities of the respondents, but since the same

could not yield positive results and their grievances could not be

ventilated, therefore, the petitioners are before this Court, seeking

redress.

4. Learned counsel for the petitioners submitted that the

action of the respondent-authority in issuance of the impugned

notices is not in consonance with Section 26(2) of the Act of 2002,

being the same is apparently a flagrant violation of the principle of

(4 of 11) [CW-1381/2023]

audi alteram partem, as no opportunity of hearing whatsoever,

before initiating the impugned action, was afforded to the

petitioners herein.

5. Learned counsel for the petitioners further submitted

that as discernible from the record, the circular dated 18.11.2021,

issued by the Department of Revenue, Government of Rajasthan,

under the Rajasthan Land Revenue (Conversion of Agricultural

Land for Non-Agricultural purposes, in Rural Areas) Rules, 2007,

makes it amply clear, that the restriction imposed thereby, on

conversion of agricultural lands for other purposes, shall have

prospective effect only; whereas the properties of the petitioners

stood converted much prior to the issuance of the said circular;

also the construction of their commercial establishments were

raised before issuance of such circular, after obtaining due

permission and approval from the competent authority.

6. Thus, as per learned counsel, the circular shall have

application to the prospective conversions of the lands, and in

view therefore, the existing constructions in question, cannot be

demolished until the lawful acquisition proceedings are initiated

and concluded.

7. Learned counsel for the petitioners thus submitted that

in the attendant facts and circumstances of the case, the

impugned notice, issued on the basis of the aforementioned

circular dated 18.11.2021, absolutely illegal and unsustainable in

the eye of law, more particularly, in light of the fact that the said

circular cannot be made applicable retrospectively. Furthermore,

as per learned counsel, the restrictions on fresh conversions, as

imposed vide the aforesaid circular issued under the Rules of

(5 of 11) [CW-1381/2023]

2007, were pertaining to the rural areas, whereas, the properties

of the petitioners herein are situated in the municipal area.

8. Contrario sensu, learned counsel for the respondents,

while opposing the averments and submissions made on behalf of

the petitioners, submitted that the commercial establishments etc.

of the petitioners, standing over the government's lands in

question, are nothing but an unauthorized occupation (as defined

under Section 2(m) of the Act of 2002), and such unauthorized

occupation and/or encroachment over the government lands, is

creating grave hindrance in the expeditious completion of a public

project, like National Highways; thus, the respondents were

perfectly right in issuing the impugned action under Sections 26

and 27 of the Act of 2002.

8.1 Learned counsel also submitted that while following the

due procedure, prior notices have been given to the petitioners

before seeking their eviction; the impugned notices were issued in

accordance with the provisions of the Act of 2002, while affording

adequate opportunity of hearing to the petitioners. Moreover,

structures/establishments in question were raised by the

petitioners, while being encroachers over the lands vested in the

name of the State Government. Thus, as per learned counsel, the

impugned proceedings are not actuated by arbitrariness or

illegality.

9. Learned counsel for the respondents further submitted

that though the petitioners have been in long standing possession

of the road margin area; the structures are built within the lands

vested in the name of the State Government.

                                     (6 of 11)                          [CW-1381/2023]



9.1          As per learned counsel, the concerned revenue records

clearly reveal that the respondents are vested with the land of 60

meters whereas the structures of the petitioners are lying thereon.

10. Learned counsel for the respondents referred to the

notification dated 01.12.1968 (Annex-R/3 to WP No.1381/2023)

notifying that in exercise of the powers conferred by sub-section

(2) of Section 92 of the Rajasthan Municipalities Act, 1959, the

State Government reserves, in the public interest, amongst

others, the lands vesting in and belonging to the Municipalities,

and lying within 30 metres both sides of any National Highways

when passing through the Municipal limits from the centre of the

road. The structures of the petitioners are lying within the

boundary line i.e. 100 feet from the centre of the road and thus

they are encroachers, as defined within section 2(m) of the Act of

2002, and therefore, not lawfully entitled to derive any benefits

therefrom.

11. Learned counsel for the respondents also drew the

attention of this Court towards the fact that prior to conversion of

the lands and issuance of patta by the concerned Municipal

Bodies, the requisite 'No Objection Certificate' from the

respondents was not obtained, inspite of the fact that the 100 feet

(30-30 meters) each side from the centre of the road is in the

name of the State Government.

12. Learned counsel for the respondents further submitted

that in terms of the communication dated 24.02.2005 (Annex-R/4

of WP No.1381/2023) specifically speaks about the distance to be

maintained from the centre of the road i.e. 75 meter for

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commercial purposes and 40 meter for residential purpose to be

left in case of National Highways.

13. Learned counsel for the respondents also submitted

that it was necessary to maintain the prescribed width of the

National Highway in question, and thus, the direction was issued

to demolish the structures/establishments on the highway,

appropriately.

14. Learned counsel submitted that the

structures/establishments in question (encroachment) built upon

the land reserved for National Highway in question require

immediate removal/demolition, owing to the fact that the same

would be required to public project.

15. Learned counsel for the respondents thus submitted

that the present petitions are nothing but an attempt to prolong

and delay the public project (development of National Highway) in

question, and therefore, the present petitions deserve dismissal.

16. In support of his submissions, learned counsel for the

respondents relied upon the judgment rendered by the Hon'ble

Apex Court in the case of SooraramPratap Reddy & Ors. V.

District Collector, Ranga Reddy District & Ors., (2008) 9

SCC 552. He also relied upon the judgment rendered by the

Division Bench of this Hon'ble Court in the case of Jugal Kishore

Joshi Vs. State of Rajasthan & Ors. (D.B. CWP (PIL) No.

1289/2004) decided on 08.12.2010.

17. Heard learned counsel for the parties as well as

perused the record of the case alongwith judgments cited at the

Bar.

(8 of 11) [CW-1381/2023]

18. In the case of Gunasekaran Vs. The Divisional

Engineer National Highways & Ors. (Civil Appeal

No.4946/2021, decided on 24.08.2021), the Hon'ble Apex

Court has made the following observations:

"7. . . . The legislature however, has not stood still. In the year 2002, new legislation was churned out viz., The Control of National Highways (Land and Traffic) Act, 2002 (hereinafter referred to as 'Act of 2002' for brevity). The following is the statement of objects and reasons:

"1. At present, the National Highways are governed by the National Highways Act, 1956 and the National Highways Authority of India Act, 1988. These enactments contain provisions for declaration of the National Highways and for the constitution of the National Highways Authority of India for the development, maintenance and management of the National Highways and the matters connected therewith. However, these enactments do not give powers to the Central Government to prevent or remove encroachments on land under the National Highways/or to restrict access to them from the adjacent land, or to regulate traffic movement of any category of vehicles or animals on the National Highways. The provisions in the existing law and in the Code of Civil Procedure, 1908 have not proved effective in view of dilatory tactics adopted by the private parties to defeat the purposes of these Acts. In order to deal effectively with these problems, it is imperative to vest the Central Government with necessary powers through the Highway Administration.

2. National Highways are rapidly getting congested and choked by undesirable roadside developments and encroachments. In fact, encroachments make further widening of the existing roads in response to growing traffic, very difficult and costly, and often, impossible. The result is that the main traffic on the National Highways is subjected to a lot of

(9 of 11) [CW-1381/2023]

hardship and there is widespread criticism about the deteriorating level of service.

3. The absence of legislation empowering the competent authority to remove encroachments on the National Highways has resulted in shops, hotels, tea stalls, repair shops, petrol pumps, weigh bridge, residences and commercial establishments extending their activities right on the National Highways land.

4. Highway authorities do not have either power to regulate traffic coming on the National Highways or to control the number of access roads joining the highways. All this leads to failure of roads and bridges caused by overloading, increased congestion, waste of fuel, reduced speed, high incidents of accidents, increased vehicle operating costs and unhealthy and unhygienic conditions. It has been also observed that highways are frequently dug up by utility organizations which put the traffic on highways in danger. The highway authorities have no adequate legal authority to prevent such nuisances."

(12) A perusal of Section 26, bearing in mind the object with which the said law was enacted, leaves us in no manner of doubt, as regards power and procedure for the removal of any encroachment at a National Highway. The appropriate law is the Act of 2002. ........"

18.1 The object and intent of legislature is very clear

regarding encroachment on the lands meant for the purpose of

development of National Highways (public projects), which has

also been made clear by the Hon'ble Apex Court in the case of

Gunasekaran (Supra). The development of National Highways is

a project for welfare and convenience of the public at large, and

thus, any delay in completion of such public project would not only

adversely affect the free flow of traffic, but the same would also

(10 of 11) [CW-1381/2023]

run contrary to the legislative intent behind enactment of the Act

of 2002.

19. This Court also finds that vide the aforementioned

notification dated 1.12.1968, the State Government had reserved

in public interest the lands lying within 30 metres both sides for

any National Highway when passing through the Municipal limits

from the centre of the road. The State Government further vide

the aforementioned communication dated 24.02.2005 specifically

stated about the distance to be maintained from the centre of the

road i.e. 75 metres for commercial purposes and 40 metres for

residential purposes, to be left in case of National Highways.

20. This Court further finds that the project involved herein

is a public project and the impugned action has been initiated by

the respondents so as to secure adequate sight distance and

preserve aesthetic value of the National Highway, besides ensuring

free flow of the traffic. The respondents are also justified in

ensuring that within a prescribed distance from the National

Highway, no construction activity is allowed to be undertaken.

21. In light of the aforesaid observations and looking in the

given factual matrix, this Court does not find it a fit case so as to

grant any relief to the petitioners in the present petitions.

22. Thus, the respondents shall be at liberty to proceed

with the development of the National Highway in question strictly

in accordance with law.

23. Consequently, the present petitions are dismissed.

However, the petitioners shall be at liberty to raise their claim, if

any, in regard to compensation in lieu of the lands in question,

before the competent authority, strictly in accordance with law.

                                                                       (11 of 11)                       [CW-1381/2023]



                                   The    stay   applications     are     also      dismissed.      Other   pending

                                   applications, if any, stand disposed of.



                                                                 (DR.PUSHPENDRA SINGH BHATI), J.
                                    skant/-









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