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2021 DIGILAW 553 (AP)

T. Sanjiv Reddy v. State of Andhra Pradesh

2021-08-16

R.RAGHUNANDAN RAO

body2021
JUDGMENT The Executive Engineer (Highway Security), National Highways, Kadapa had issued a notice on 27.02.2020, for removal of unauthorised occupation, to various persons in Cherlopalli Hamlet in Diguvatottivaram Village and Mandal, Chittor District under the provisions of Section 26(2) of the Control and National Highways (Land and Traffic) Act, 2002 (for short „the Act). This notice is said to have been issued to persons, who had entered into the lands, which fall within the boundaries of the said National Highway. Aggrieved by this notice, the said persons are said to have been filed a writ petition before this Court by way of W.P.No.13861 of 2020 which was disposed of on 11.08.2020, giving liberty to the petitioners therein to file representations before the 2nd respondent therein, raising all their contentions within two weeks from the date of receipt of the order of this Court and upon such representation being given, the 2nd respondent was directed to deal with the same and of pass appropriate orders strictly in accordance with law and communicate the same to the petitioners. This Court also directed that no coercive steps would be taken against the petitioners in the writ petition until the orders are passed and communicated to them. 2. Thereafter, the petitioners therein are said to have submitted representations to the Executive Engineer (Highway Security) on 19.08.2020. This representation along with the material placed before the said executive Engineer were considered and an order dated 21.08.2020 was passed. In this order it was stated that the petitioners had only filed their Aadhaar card, current bill, house tax receipt, water cess receipt copies etc., but did not show any documents either to show that they were owners of the land or that they were not in unauthorized occupation of the land falling within the boundaries of the national highway. The Executive Engineer, after giving these reasons, required the petitioners to vacate the land immediately and cooperate for expansion of road. 3. Aggrieved by the said order dated 21.08.2020, the petitioners have approached this Court. The Executive Engineer, after giving these reasons, required the petitioners to vacate the land immediately and cooperate for expansion of road. 3. Aggrieved by the said order dated 21.08.2020, the petitioners have approached this Court. It is the contention of the petitioners that the petitioners, who are socially backward and financially poor, had occupied the land in their possession about 25 to 35 years back; that they have even constructed pucca houses in the land and have been paying house tax regularly to the Panchayat authorities; and that they had also been given Aadhaar Cards and ration cards showing their residential address as the houses constructed in the land occupied by the petitioners. The petitioners contend that since they were in occupation of the lands for the past 25 to 35 years, they cannot be treated as unauthorized occupants as per the Act. The petitioners further contend that the authorities had not followed the due process of law as required under the National Highways Act, 1956 which would be the applicable Act. It is submitted that since the Control under National Highways (Land and Traffic) Act, 2002 has no application, the notice/order dated 21.08.2020 has to be set-aside. 4. Sri S.S. Bhatt, learned counsel appearing for the petitioners would submit that the petitioners cannot be treated as unauthorised occupants of the land and they are entitled for payment of compensation in the event of demolition of their houses and their dispossession from the land. He relies upon the following judgments in support of his contention. 1. Pilli Lakshmana Rao & Ors., v. Executive Officer Gram Panchayat & Ors., 2000 (5) ALT 246 . 2. Nagaral Nirvasithula Welfare Association v. Government of Andhra Pradesh, (2012) SCC Online AP 114. 3. Voonna Bangaraju & Ors., v. Government of A.P. rep. By its Principal Secretary Revenue (Stamps & Registration) Department & Ors., 2014 (4) ALT 238 . 4. Karri Raghavulu v. Principal Secretary, Registration & Stamps Department, and Ors., 2015 (3)ALT 215 . 5. The 2nd respondent, whose impugned order is under challenge, filed a counter affidavit stating that 14 persons had encroached upon the national highway and details of such encroachment as well as the structures on the said encroachments are set out in the counter affidavit. Karri Raghavulu v. Principal Secretary, Registration & Stamps Department, and Ors., 2015 (3)ALT 215 . 5. The 2nd respondent, whose impugned order is under challenge, filed a counter affidavit stating that 14 persons had encroached upon the national highway and details of such encroachment as well as the structures on the said encroachments are set out in the counter affidavit. The 2nd respondent also contends that the rehabilitation and up- gradation from km.0/0 to 60/280 of Rayachoty - Angallu road of N.H.340 was initiated at a cost of Rs.319.28 crores and the same has already been entrusted to a contractor on tender basis and work is in progress. The scope of the work is said to be the widening of the existing 7 mts., wide road to10 mts., wide road with drains on both sides along with paver blocks. At that stage, it was noticed that the petitioners had encroached upon the road and consequently notices were served on the petitioners as per Schedule-III of the Control and National Highways (Land and Traffic) Act, 2002. As these are encroachments, the provisions of the National Highways Act, 1956 would not apply and the question of acquisition of land under Sections 3(a) to 3(h) of the National Highways Act also would not arise. Consideration of the Court: 6. A perusal of the pleadings and the contentions would show that the claim of the petitioners that they are in occupation of the land for the past 30 odd years, is not disputed by the respondents. Similarly, the contention of the respondents that the petitioners are in unauthorized occupation of the land falling within the existing boundaries of the national highway is also not disputed by the petitioners. This Court would have now to proceed on the basis of the fact that the petitioners have been in occupation of the land falling within the boundaries of the national highway 340 for the past 30 years or so. 7. The Control and National Highways (Land and Traffic) Act, 2002 has come into force from 14.01.2003. This Act was enacted to provide for Control of land within the National Highways, right of way and traffic on the national highways, and also for removal of unauthorised occupations thereon. Section 26 & 27 of the Act, 2002 provides for removal of unauthorized occupation. These provisions set out the procedure for removal of unauthorised occupations. This Act was enacted to provide for Control of land within the National Highways, right of way and traffic on the national highways, and also for removal of unauthorised occupations thereon. Section 26 & 27 of the Act, 2002 provides for removal of unauthorized occupation. These provisions set out the procedure for removal of unauthorised occupations. Under these provisions where the Highway Administration or the Officer of such administration is satisfied that there is an unauthorised occupation of highway land, the said officer shall serve a notice in the prescribed form on the person causing or responsible for such unauthorized occupation requiring him to remove such unauthorized occupation within the period specified in the notice. Upon receipt of such notice, the person, who is said to be in unauthorised occupation, is given an opportunity of hearing by setting out the place and time of hearing of any representation, which the person to whom the notice is addressed may make within the time specified in the notice. Failure to comply with such notice would render that person liable for penalty, and summary eviction from the highway land in respect of which such notice is issued. 8. Section 26(6) of the Act, 2002 provided for the authorised officer or the Highway Administration to remove the unauthorized occupation at the expense of the Central or State Government and to levy a penalty of Rs.500/- per square meter of unauthorized occupied land. Section 26 contains a very detailed procedure and only a cursory summary of the said provision, is being set out here. 9. Removal of such unauthorized occupation, under Sections 26 and 27 of the Act, 2002, would be available to either the Highway Administration or the Officer authorised by such administration. The cause of action for such removal would be available only where the occupation is unauthorized. 9. Removal of such unauthorized occupation, under Sections 26 and 27 of the Act, 2002, would be available to either the Highway Administration or the Officer authorised by such administration. The cause of action for such removal would be available only where the occupation is unauthorized. The said phrase „”unauthorised occupation” has been defined in Section 2(m) of the Control and National Highways (Land and Traffic) Act, 2002 which reads as follows: Section 2(m) “unauthorised occupation” means any occupation of the highway land, without permission under this Act for such purpose, by a person who— (i) is trespasser on the Highway; or (ii) for the time being is paying or is liable to pay to other person rent or any portion of the rent of the premises on a Highway; or (iii) lives in or otherwise uses any premises on a Highway; or (iv) is a rent-free tenant of any premises on a Highway; or (v) is a licensee of any premises on a Highway for its possession; or (vi) is liable to pay damages to the owner of any premises on a Highway for the use or possession of such premises; 10. A reading of the said provision would show that any person, who is a trespasser or lives in or otherwise uses any premises on a highway, without permission under the Act, would be in unauthorized occupation of the land. Section 24(1) of the Act, 2002 stipulates that no person shall occupy any highway land or discharge any material through drains on such land without obtaining prior permission. Section 24(2) to 24(5) of the Act, 2002 empowers the Highway Administration or the Officer authorized by the Highway Administration to grant permission to persons for various purposes set out in the said provisions. However, all the said purposes are temporary in nature and there is no provision for granting permission for construction of any permanent structure or residential building within the highway land. 11. Keeping these provisions of the Act in mind, the judgment cited by Sri S.S. Bhatt can be considered. In Pilli Laxmana Rao case, the issue that had come up before the Court was whether the occupants, who are in possession of the road margins should be given notices and opportunity before being evicted or their structures are demolished. 11. Keeping these provisions of the Act in mind, the judgment cited by Sri S.S. Bhatt can be considered. In Pilli Laxmana Rao case, the issue that had come up before the Court was whether the occupants, who are in possession of the road margins should be given notices and opportunity before being evicted or their structures are demolished. A Division Bench of the erstwhile High Court of Andhra Pradesh had held that all such occupants are entitled to a notice and an opportunity of hearing before they are evicted. 12. In Nagarala Nirvasithula Welfare Association case, the displaced persons were given compensation only to the extent of the cost of the houses/structures and no compensation was given for the land on which these structures were standing, on the ground that the land was Gramakantham land which vests with the Government and the displaced persons have no claim over the said land. This proposition was negatived by the High Court which held that the displaced persons would be entitled for compensation in relation to the land also. 13. In Vonna Bangaraju case, the petitioner had challenged the refusal of registration authorities to register transactions in relation to certain lands on the ground that the said land was classified as “poramboke”. The High Court had found that this land was actually Gramakantham land and cannot be treated as Government land and directed registration of transactions. 14. In Karri Raghavulu case, the question that arose again is non-registration of transactions relating to Gramakantam land. The High Court after holding that such land would not belong to the Government, had directed registration of transactions. 15. None of these judgments relate to the question whether the occupants of road margins, over a period of long time, can be treated as the persons in unauthorised occupation or not. 16. Apart from the above citations, Sri S.S. Bhatt also raised a contention that the petitioners had been in occupation of the lands even prior to the Act coming into force, and therefore, the earlier occupation of the land by the petitioners cannot be converted into unauthoritsed occupation under the Act. This contention cannot be accepted. The petitioners, admittedly, have no title to the land. They are simply in occupation of the land, which does not belong to them. This contention cannot be accepted. The petitioners, admittedly, have no title to the land. They are simply in occupation of the land, which does not belong to them. In such a situation, they would be encroachers or unauthorised occupants of the land even under the provisions of the Land Encroachment Act, or under general law. After the Act came into force, the occupation of the land by the petitioners would fall within the category of unauthorised occupation under the Act. No provision has been shown to this Court, to the effect that earlier unauthorised occupation of land moves such unauthorised occupants out of the purview of the definition of unauthorised occupation under the Act. 17. One of the objects of the Act is to ensure that unauthorised occupation of the road margins does not hinder speedy development of national highways. In the present case, except the contention that the petitioners have been in long standing possession of the road margin area, the petitioners have not shown any claim of proper title to the land. In such circumstances, the only finding that can be given is that the petitioners are in unauthorised occupation of the land, as defined in Section 2(m) of the Act. Secondly, the respondents would be entitled to initiate action under Section 26 and 27 of the Act. These provisions require a prior notice being given to the unauthorised occupants before their eviction. Admittedly, such notices have been given and the objections raised by the petitioners have also been considered before the impugned proceedings have been issued. In the circumstances, there is no scope for interference by this Court in the said proceedings. 18. Sri S.S. Bhatt, in the alternative, contends that the petitioners be granted some compensation in view of their long standing possession and in view of the fact that demolition of their houses at this stage would render them homeless. Even though the respondents are entitled to evict the petitioners, the fact that these petitioners will become homeless on such eviction, cannot be lost sight of. It is the fervent hope of this Court that the respondents shall consider this aspect while proceeding further in the matter. It is always open to the respondents to consider this fact. 19. For the aforesaid reasons, the writ petition is dismissed. There shall be no order as to costs. It is the fervent hope of this Court that the respondents shall consider this aspect while proceeding further in the matter. It is always open to the respondents to consider this fact. 19. For the aforesaid reasons, the writ petition is dismissed. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.