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2012 DIGILAW 138 (HP)

Roshan lal v. State of H. P.

2012-03-28

DHARAM CHAND CHAUDHARY, KURIAN JOSEPH

body2012
JUDGEMENT Justice Dharam Chand Chaudhary, J. (Oral) This writ petition has been filed with the following reliefs: “ i) That respondents 1 to 5 may kindly be directed to take appropriate steps as per the provisions of the Act of 1968 & 2002 for removal of the house constructed on the Govt. road/land as also in the controlled area by respondent No. 6.ii),That action against the erring Govt. Officers may also be ordered to be taken in accordance with law.” 2.The petitioner, who claims himself to be a social activist, has sought the above reliefs on the ground that although, in terms of the H.P. Roadside Land Control Act, 1968 and the H.P. Roadside Infrastructure and Protection Act, 2002, there exists provisions qua restriction of raising construction on any portion of the controlled area of the roads, how the roads are to be maintained and in the event of there being encroachments made thereon, how the same are to be removed, yet respondents 1 to 5 allegedly failed to take any action against the sixth respondent, who has constructed a house over his land bearing Khasra No. 827, situated in village Dabrog and encroached a portion of road existing over adjoining land, being Khasra No. 824 which has been denoted by Khasra No. 824/1 in the map Annexure P-1 to the petition, by constructing a Gair Mumkin Sehan (courtyard) and extending Chajja of his house thereon. 3.Respondents, on entering appearance, have contested the petition. Respondents 1 to 4, in their reply, have made preliminary submissions qua the maintainability of the writ petition and there being no enforceable cause of action exists in favour of the petitioner to file the same. On merits, it is submitted that the petitioner himself has constructed his house within the controlled width of the road in question i.e. Jogindernagar-Sarkaghat-Ghumarwin road. It is also submitted that the demarcation of the road existing over khasra Nos. 822, 823, 824 and 916 was carried out through revenue agency and no encroachment was found on any portion of the road. The adjoining land, bearing Khasra Nos. 1390/827 of respondent No. 6, is not acquired for the construction of the road. However, survey of the road has been conducted and the maps of the structure, existing over the ‘controlled width’ of this State Highway have already been prepared. The adjoining land, bearing Khasra Nos. 1390/827 of respondent No. 6, is not acquired for the construction of the road. However, survey of the road has been conducted and the maps of the structure, existing over the ‘controlled width’ of this State Highway have already been prepared. The houses of the petitioner and respondent No. 6 were found to be constructed over the controlled width of the road. 4. Respondent No. 5, in a separate reply, has submitted that the petitioner had never brought the matter regarding encroachment over the road in question, made by the 6th respondent, to his notice. He would have taken action in the matter in accordance with law, had the matter been brought to his notice. 5.The 6th respondent has, however, not filed any reply to the writ petition. 6. The reply to the writ petition, filed on behalf of respondents 1 to 4 and respondent No. 5 clinched the point in issue, brought to this Court for adjudication in the present writ petition. The petitioner himself is an encroacher, because there is no rejoinder to the submissions made in the reply that during survey, not only the house of respondent No. 6, but the house of the petitioner had also been found to be constructed on the area, falling within the controlled width of the road in question. It is not a case where the respondents had not taken any steps towards the maintenance and protection of the road, because they had conducted survey of the road and identified the encroachment made over the area within the controlled width thereof. So far as the alleged encroachment denoted by khasra No. 824/1 by the 6th respondent is concerned, the stand taken by the respondents is that no such encroachment could be detected during the demarcation of the land in question by the revenue agency. Above all, in the map filed by the petitioner, alongwith Annexure P-1, no such encroachment is pinpointed. Since there is litigation between the petitioner and the 6th respondent, in respect of their lands and other properties, therefore, the possibility of the writ petition having been filed as a counterblast to that, cannot be ruled out. 7.We thus, find no merits in this writ petition and the same is accordingly dismissed. Since there is litigation between the petitioner and the 6th respondent, in respect of their lands and other properties, therefore, the possibility of the writ petition having been filed as a counterblast to that, cannot be ruled out. 7.We thus, find no merits in this writ petition and the same is accordingly dismissed. The parties are at liberty to approach the 5th respondent or competent Civil Court having jurisdiction over the matter for redressal of regarding their surviving grievances, if any in accordance with law. 8.The writ petition stands accordingly disposed of, so also the pending application(s) if any.