Dismissed

Bhagwan Tiwari v. Union of India

Rajasthan HC14 Mar 2023CW/1382/2023

Case brief

AI extract

What is this about?

A writ petition challenging notices issued to demolish commercial establishments alleged to be encroachments on national highway land. The High Court rejected the petitions, holding that the notices under the Control of National Highways (Land and Traffic) Act, 2002, were legal and necessary for public road development.

What did the court decide?

Petitions dismissed; liberty granted to petitioners to claim compensation before the competent authority.

Bhagwan Tiwari Vs Union of India — Land Acquisition | Rajasthan HC (2023)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 1381/2023

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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.

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----Petitioner

¶5

Versus

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

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National Highway Authority Of India, New Delhi.

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District Collector, Bikaner, Rajasthan

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District Collector, Churu, Rajasthan

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Sub Divisional Officer, Shri Dungargarh.

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Nagar Palika, Shri Dungargarh, Bikaner Through Executive Officer.

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

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----Respondents

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Connected With

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

¶16

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

¶17

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

¶18

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

¶19

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

¶20

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

¶21

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

¶22

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

¶23

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

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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

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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Reserved on 10/03/2023

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Pronounced on 14/03/2023

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[CW-1381/2023]

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(2 of 11)

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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:

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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.

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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.

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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).

¶35

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.

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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

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[CW-1381/2023]

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(3 of 11)

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clearly violating the stipulations made in relation to building lines and control lines as prescribed in relation to National Highways.

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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.

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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.

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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.

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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

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

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audi alteram partem, as no opportunity of hearing whatsoever, before initiating the impugned action, was afforded to the petitioners herein.

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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.

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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.

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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

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[CW-1381/2023]

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(5 of 11)

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2007, were pertaining to the rural areas, whereas, the properties of the petitioners herein are situated in the municipal area.

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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.

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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.

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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.

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[CW-1381/2023]

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(6 of 11)

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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.

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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.

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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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[CW-1381/2023]

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(7 of 11)

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commercial purposes and 40 meter for residential purpose to be left in case of National Highways.

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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.

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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.

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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.

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Heard learned counsel for the parties as well as perused the record of the case alongwith judgments cited at the Bar.

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[CW-1381/2023]

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(8 of 11)

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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:

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“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:

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“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.

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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

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(9 of 11)

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[CW-1381/2023]

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

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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.

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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.”

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(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. ……..”

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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

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[CW-1381/2023]

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(10 of 11)

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run contrary to the legislative intent behind enactment of the Act of 2002.

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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.

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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.

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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.

¶86

Thus, the respondents shall be at liberty to proceed with the development of the National Highway in question strictly in accordance with law.

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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.

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

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The stay applications are also dismissed. Other pending applications, if any, stand disposed of.

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(DR.PUSHPENDRA SINGH BHATI), J.

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skant/-

Bhagwan Tiwari v. Union of India

Case brief

What is this about?

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Bhagwan Tiwari v. Union of India

Case brief

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