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2017 DIGILAW 2811 (ALL)

RAJ KUMAR GARG v. STATE OF U. P.

2017-12-04

DILIP GUPTA, JAYANT BANERJI

body2017
JUDGMENT Hon’ble Jayant Banerji, J.—This writ petition has been filed with the following prayers: “1. A writ, order or direction in the nature of mandamus directing the respondent authorities to carry out measurement/demarcation of the portion of the National Highway and a land appurtenant thereto where the shops, commercial establishment and houses of the Petitioners are present and further if it is found that the same are beyond the land handed over by Uttar Pradesh Pulbic Works Department to the National Highway Authority of India, on the stretch located between 196 Km. to 196.5 Km, on the left side of the Delhi Agra Section of National Highway No. 2, towards Delhi and further in case it is found that the land in question was not handed over to the NHAI, the Respondent authorities may be restrained from interfering in the peaceful possession of the Petitioners. 2. A writ, order or direction in the nature of mandamus that in case if it is found that the Petitioners are not in encroachment of the land handed over to the NHAI, and the same being required in the larger public interest, only by providing opportunity and after adhering to the due process prescribed under law for the acquisition of the land, the land of the Petitioners may be utilized in any manner, subject to either payment of adequate compensation or by providing alternative land to the Petitioners.” 2. It has been stated that in the year 1955 acquisition of certain plots, not belonging to the petitioners, for purposes of Agra By-Pass Road on NH-2 was carried out. Initially, the By-Pass Road was of two lanes, later it was expanded to four lanes. An application was filed before the ADM(1), Agra under Section 13(2) of the Roadside Land Control Act, 1945 by the Assistant Engineer, Public Works Department on behalf of the State Government against Shri Raj Kumar Garg, petitioner No. 1 of the present petition which was registered as Case No. 2 of 1998. On 4 June 1999, the Court of ADM(1) held that there was no encroachment made by Raj Kumar Garg within 86 feet the By-Pass Road from the center point of the road which comes under the State land control area. It was in fact found that the land of Raj Kumar Garg was beyond the distance of 86 feet from the center point of the road. 3. It was in fact found that the land of Raj Kumar Garg was beyond the distance of 86 feet from the center point of the road. 3. The petitioners have enclosed a plan of the Public Works Department (P.W.D.) regarding NH-2 from 189.00 Kilometers to 199.66 Kilometers pertaining to the four laning of the Mathura-Agra Section showing the distance from the center of the road. This plan is dated 17 October 1989. It is stated that on 24 January 2001 the Highway was handed over by the P.W.D. to the National Highways Authority of India (NHAI) from 196 Kilometers to 196.5 Kilometers. The width of this road is mentioned in this handing over letter of the highway as 40.5 meters, that is about 20.25 meters on either side from the center. The petitioners allege manipulation in the records and stated that there is a marked difference in the aforesaid plan of 1989 and in the records by which the portion of the highway was handed over to the NHAI. It is further stated that encroachment of 2 to 5 meters towards North of the NH-2 is a false allegation made against the petitioners. 4. On 14 February 2011 a notification under Section 3-A of the National Highways Act, 1956 (NH Act) for six laning of NH-2 was issued. However, it is stated that no declaration under Section 3-D was issued in view of the objections filed by several persons, nor possession was taken under Section 3-E of NH Act and the proceedings for acquisition lapsed. 5. Writ-C No. 53967 of 2014 (R.K. Garg and 18 others v. Union of India and others), was filed challenging the allegations of encroachment made by NHAI. By means of an order dated 17 January 2015, the writ petition was disposed of with a direction that the petitioners may respond to the allegations made on behalf of the NHAI within a week and the respondent No. 2 was directed to pass appropriate orders. 6. A representation dated 23 January 2015 was filed by the petitioners of Writ C No. 53967 of 2014 before the NHAI. By means of an order dated 17 February 2015, the representation dated 23 January 2015 was disposed of by the NHAI. 6. A representation dated 23 January 2015 was filed by the petitioners of Writ C No. 53967 of 2014 before the NHAI. By means of an order dated 17 February 2015, the representation dated 23 January 2015 was disposed of by the NHAI. The relevant part of the order passed on the NHAI on 17 February 2015 is as under: “The present order is being passed in compliance of the aforesaid order dated 17.1.2015 passed by the Hon’ble Allahabad High Court: A. The Ministry of Road Transport & Highways, Government of India by the Gazette Notification No. S.O. 78 E) dated 4.2.1999, entrusted the stretches as specified in the said notification to the National Highways Authority of India. B. The above stretch from Km. 148.330 to Km. 177.00 in Mathura District and from Km. 177.000 to Km. 199.660 in Agra District has been handed over by the U.P.P.W.D. NH-2 Division Agra to the NHAI in the year 2000. The handing over records mentioned the road width of NH-02 at Km.196.500 to 197.350 & Km. 197.350 to Km. 199.660 as 50.90 m & 51m i.e. 25.45 and 25.5 meter width respectively, on both sides from centre of the median. C. The work of widening of NH-2 is under progress and to start the work at Agra City area, the verification of width of the road was done, and it was found that as per the handing over record of U.P.P.W.D.,NH-Division-2 to the NHAI, the overall road width is 50.90 meter from Ch.196.500 to 197.350 & 51 meter from Ch.197.350 to 199.660 i.e. 25.45 and 25.5 meter width respectively, on both sides of the road from the centre line of the main carriageway. But available width at certain places of Km. 196.400 to Km. 199.660 is 3-5 meter short at the left side of Delhi-Agra section of NH-2, which is encroached. The identification and marking of the same has been done by the NHAI alongwith the Revenue officials of Agra Administration. D. The petitioners/objectors have encroached NHAI land 3-5 meters of ROW (Right of Way) of NH-2 in front of their properties. The NOC issued by the Competent Authority/Controlling Authorities under the Roadside Control Act, 1945 has also not been complied. E. Thus, the existing ROW which was transferred to the NHAI by the U.P.P.W.D. has been encroached by the petitioners/objectors. D. The petitioners/objectors have encroached NHAI land 3-5 meters of ROW (Right of Way) of NH-2 in front of their properties. The NOC issued by the Competent Authority/Controlling Authorities under the Roadside Control Act, 1945 has also not been complied. E. Thus, the existing ROW which was transferred to the NHAI by the U.P.P.W.D. has been encroached by the petitioners/objectors. F. The plan allegedly got prepared by the petitioners/objectors, which is relied upon by the petitioners/objectors, does not depict the correct position. G. The documents pertaining to assessment by Agra Nagar Nigam, which is relied upon by the petitioners/objectors, are only for tax purposes, and the same are not relevant for deciding the question of encroachment by the petitioners/objectors, as mentioned above. H. Letting to Oriental Insurance Company Ltd. by some of the petitioners/objectors, which is relied upon by the petitioners/objectors, is not relevant for deciding the question of encroachment by the petitioners/objectors,as mentioned above. I. The representation dated 23.1.2015 made by the aforesaid objectors stands disposed of accordingly.” 7. It is evident from a perusal of the order dated 17 February 2015 of the NHAI that the records of the relevant stretch of the Highway in Mathura district and Agra district of the P.W.D. specifies the width of the road as well as the width from the center of the median at different places. It has further specified that available width at certain places of Km. 196.400 to Km. 199.660 is 3-5 meter short at left side of Delhi-Agra section of NH-2, which is encroached. The identification and marking of the same had been done by the NHAI alongwith the Revenue officials of Agra Administration. It was stated that the petitioners/objectors had encroached NHAI land 3-5 meters of ROW (Right of Way) of NH-2 in front of their properties and that the NOC issued by the Competent Authority/Controlling Authorities under the Roadside Control Act, 1945 had also not been complied. Thus, the existing ROW which was transferred to the NHAI by the P.W.D. had been encroached by the petitioners/objectors. 8. It is alleged by the petitioners that prior to the passing of the order dated 17 February 2015 by the NHAI, they were not afforded any opportunity of hearing. Thus, the existing ROW which was transferred to the NHAI by the P.W.D. had been encroached by the petitioners/objectors. 8. It is alleged by the petitioners that prior to the passing of the order dated 17 February 2015 by the NHAI, they were not afforded any opportunity of hearing. It has been stated that the provisions of Section 26 of the Control of National Highways (Land and Traffic) Act, 2002 (2002 Act) has not been complied with by the NHAI as it is only thereunder that the procedure to deal with unauthorized occupation is provided. It has also been stated that no survey as contemplated in the 2002 Act has been made. The petitioners then filed an Original Suit No. 492 of 2015 (Shri Raj Kumar Garg and another v. NHAI). In that suit an inspection was carried out by the Amin. 9. Thereafter, challenging a notice dated 9 May 2016 by NHAI for demolition of encroachment the petitioners filed another writ petition being Writ-C No. 24601 of 2016 (Raj Kumar Garg and 23 others v. State of U.P. And 4 others), which was disposed of by the Court on 24 May 2016. The observations of the Court in the judgment were as follows: “In view of the judgment and order dated 17 January 2015 rendered in Writ Petition No. 53967 of 2014 we also dispose of this petition by giving liberty to the writ petitioners to file a representation which shall be decided by the National Highway Authority of India expeditiously. Apart from above, it is brought to our notice that the petitioners have filed a suit for injunction against the National Highways Authority seeking injunction not to interfere in the peaceful possession of the petitioners over the land in dispute. Learned counsel for the petitioners submits that due to dilatory tactics adopted by the National Highways Authority by getting proceedings adjourned, the application for temporary injunction could not be decided. Considering this facts, we direct the trial Court to decide the injunction application within a period of ten days from the date of presentation of certified copy of this order.” 9. By means of an order 31 May 2016, the Civil Court rejected the injunction application filed in the Original Suit No. 492 of 2015. Challenging the rejection of the injunction application, the plaintiffs therein filed a Misc. By means of an order 31 May 2016, the Civil Court rejected the injunction application filed in the Original Suit No. 492 of 2015. Challenging the rejection of the injunction application, the plaintiffs therein filed a Misc. Appeal No. 92 of 2016 before the Additional District Judge, Court No. 13, Agra which appeal was dismissed on 25 September 2017. 10. There is no averment in the present petition that the liberty given to the petitioners in the judgment and order dated 24 May 2016 in Writ-C No. 24601 of 2016 to file a representation before the NHAI was availed of. The petitioners have enclosed a representation dated 6 November 2017 filed by six petitioners before the District Magistrate, Agra for directing the officers of the NHAI to undertake the demarcation in accordance with the map of the road which was handed over to the NHAI by the P.W.D. and for grant of compensation to the applicants in case extra land is required for six laning of the highway. 11. From the facts and circumstances of the case, it is evident that repeated endeavours have been made by the petitioners to thwart the efforts of the NHAI to remove the encroachments that have allegedly been made by the petitioners pertaining to the relevant stretch of the highway. By means of a reasoned and detailed order dated 17 February 2015, NHAI, after an inspection carried out by the NHAI as well as revenue officials of the Agra administration during which the identification and marking of the encroached land was done, the petitioners were actually found to have encroached land of the NHAI. The application for temporary injunction filed by some of the petitioners in Original Suit No. 492 of 2015 was dismissed by the Civil Court and the appeal challenging the same was also dismissed. Further the liberty granted by this Court in Writ-C No. 24601 of 2016 by means of the judgement and order dated 24 May 2016 for filing of the representation before the NHAI was not availed of by the petitioners. 12. Further the liberty granted by this Court in Writ-C No. 24601 of 2016 by means of the judgement and order dated 24 May 2016 for filing of the representation before the NHAI was not availed of by the petitioners. 12. The order dated 4 June 1999 passed by the ADM(1), Agra in favour of the petitioner No. 1-Raj Kumar Garg, is of no help to the petitioners as firstly, there is no material to show that the situation and circumstances had not changed since 1999, and, secondly apart from the petitioner No. 1, no other petitioners were party in that case. 13. In view of the aforesaid facts and circumstances, the reliefs claimed for by the petitioners in the present writ petition cannot granted. 14. This writ petition is, accordingly, dismissed.