1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2834 OF 2007 1) Bhausaheb s/o Ganpat Ingale, R/o-Yeola Road, Shankarnagar, Vaijapur, Tq-Vaijapur, Dist-Aurangabad and others. ...PETITIONERS. VERSUS 1) The State of Maharashtra Through the Secretary, Public Works Department, Mantralaya, Mumbai and others. ...RESPONDENTS. ... Shri. Pradeep Deshmukh Advocate i/b. Shri Sudhir Bhalerao Advocate for Petitioners. Mr. N.B. Khandare, Government Pleader for Respondent Nos. 1 to 4. Shri. N.D. Sonawane Advocate for Respondent No.5. Shri. N.N. Shinde Advocate for Intervenors. ... WITH 2 WRIT PETITION NO.2803 OF 2007 1) Sudhir Ratnakar Khambekar, R/o-Station Road, Vaijapur, Tq-Vaijapur, Dist-Aurangabad and others. ...PETITIONERS. VERSUS 1) The State of Maharashtra Through the Secretary, Public Works Department, Mantralaya, Mumbai and others. ...RESPONDENTS. ... Shri. Pradeep Deshmukh Advocate i/b. Shri Sudhir Bhalerao Advocate for Petitioners. Mr. N.B. Khandare, Government Pleader for Respondent Nos. 1 to 4. Shri. N.D. Sonawane Advocate for Respondent No.5. Shri. N.N. Shinde Advocate for Intervenors. ... WITH WRIT PETITION NO.2337 OF 1997 1) Kailash s/o Bisan Mahale, R/o-House No.2232/2, Station Road, Vaijapur, Tq-Vaijapur, Dist-Aurangabad and others. ...PETITIONERS. VERSUS 1) The State of Maharashtra and others. ...RESPONDENTS. 3 ... Shri. Pradeep Deshmukh Advocate i/b. Smt. Smita Deshpande Advocate for Petitioners. Mr. N.B. Khandare, Government Pleader for Respondent Nos. 1 to 4. Shri. S.S. Shete Advocate for Respondent No.5. Shri. N.N. Shinde Advocate for Intervenors. ... WITH WRIT PETITION NO.995 OF 2008 1) Sunil Kisanrao Khaire, R/o-House No.3605, In front of Nagar Parishad, Station Road, Vaijapur, Tq-Vaijapur, Dist-Aurangabad and others. ...PETITIONERS. VERSUS 1) The State of Maharashtra Through the Secretary, Public Works Department, Mantralaya, Mumbai and others. ...RESPONDENTS. ... Shri. N.N. Shinde Advocate for Petitioners. Mr. N.B. Khandare, Government Pleader for Respondent Nos. 1 to 4. Shri. N.D. Sonawane Advocate for Respondent No.5. ... CORAM: NARESH H. PATIL AND N.D. DESHPANDE, JJ. DATE : 13TH APRIL, 2010. 4 PER COURT : 1. Heard learned counsel for the parties. 2. The Petitioners are aggrieved by the notices issued to them by the Respondents for demolition of their structures. The Petitioners earlier filed Writ Petition No.2237 of 1997 challenging the notices of demolition/ removal of their structures issued by the Engineer, P.W.D. Department, Government of Maharashtra for widening Nashik - Nirmal Highway. The Petition was admitted and status quo order was granted on 9th November, 1998. Thereafter the Petitioners received notices in the year 2007 issued by the Deputy Engineer, Public Works Department, Vaijapur for removal of their subject structures which were found on Shiur-Shrirampur Road, State Highway/ District Main Road. It is admitted position that the earlier State High way namely Nashik - Nirmal Highway and present Shiur-Shrirampur Higway going through the township of Vaijapur is one and the 5 same road. The Petitioners challenged the notices issued to them in the year 2007. 3. During the course of hearing it was pointed out that the Petitioners had approached the Collector against the said notices and by an order dated 23rd January, 2008 the Collector, Aurangabad dismissed their appeals in exercise of powers under Section 24 of the Bombay Highway Act, 1955. By way of amendment in Writ Petition No.2834 of 2007, the Petitioners have challenged the said order passed by the Collector. 4. In substance, the submission of the learned counsel Shri Pradeep Deshmukh is that in the year 1997 the notification was issued declaring the subject road to be State Highway, but the same was not acted upon. In the subject notices, the exact portion of the alleged encroachment is not mentioned. The Petitioners' structures are 70 to 100 years old and they are not encroachers. They have valid title over the 6 subject property and therefore either the Petitioners' properties are required to be acquired or by following the provisions of the Bombay Highway Act, 1955 the State Government initiates action for construction of State Highway. Learned counsel submitted that on both the issues the Government has failed, therefore notices impugned herein are required to be quashed and set aside. The learned counsel submitted that the Collector has dismissed the appeal in haste without hearing the Petitioners properly. 5. Learned Government Pleader Shri Khandare submitted that the Petitions are raising disputed questions of title and possession, which cannot be gone into the proceedings in writ jurisdiction. A Map is placed on record for the convenience of the Court by the Government Pleader to demonstrate that except the subject structures occupied by the Petitioners, other structures were removed including the structures of Municipal Council and other Government Offices. The notification has 7 been acted upon. The learned Government Pleader submits that considering the pleadings and prayers of the Petitions, it could be gathered that the scope of the Petitions is very limited. The Petitioners are not approaching in public interest but it is a private interest litigation. The Government Pleader submits that due to heavy traffic conditions, need was felt that the road should be widened. The scheme is in the benefit of public at large. It is busy road and has to be expanded. The Government Pleader further submitted that the Petitioners are encroachers on Government land. They failed to demonstrate their title to the subject property. Under the garb of raising objection to the process of construction of Highway, the Petitioners are trying to assert their alleged title to the property. The Petitioners might have been occupying the properties in question in the subject location but in view of the Notification issued in the year 1967 and acted upon the Petitioners now cannot raise objection. The Government Pleader further 8 submitted that the Petitioners have no right to claim that their structures shall not be demolished even if it is pointed out by the State authorities that part of their structures fall in the 100 ft. width road of the Highway. 6. Learned counsel Shri. Shinde supported the contentions of the Government Pleader and submitted that many such structures have been demolished during the course of implementation of the plan of the Government for constructing the National Highway through the township of Vaijapur, which is in the larger public interest. For benefit of few who, according to the counsel, are resourceful persons, the project cannot be held up to the detriment of the public at large. 7. We have heard the learned counsel for the parties and perused the relevant documents on record. A private Map was shown to us by the Petitioners and also by the Government Pleader for our convenience to appreciate the exact location 9 of the proposed Highway. From the contentions raised and the documents produced, prima facie, we find that except the Petitioners' structures, other structures have been demolished/ removed so that the State Highway is constructed and passes through the township of Vaijapur. It is a matter of common knowledge that the road is busy one, the traffic is over-increasing on this road. There cannot be any dispute that wider roads provide easy access to the public at large and is convenient for persons to travel. Congestion at such places create lot of hurdles, which not only causes embarrassment to the traffic but also to the local people. 8. Shri Deshmukh, learned counsel for the Petitioners raised issue of non compliance of provisions of Sections 3 to 7 of the Bombay Highway Act, 1955. Considering the peculiar facts of the case, we find that the issue may not be relevant now as the plan has been acted upon, the work of construction of the State Highway was 10 initiated and consequent to the same, some installations, buildings, structures have been demolished including part of structures of Municipal Council. Learned counsel for the Municipal Council has also stated that the Municipal Council has no objection for such a move of expanding the road. The Petitioners challenge the impugned notices on the ground that they are defective and do not prescribe the particular portion to be removed. 9. The issue in respect of how much portion is to be demolished or surrendered to the Authorities, is a matter which could be decided by having inspection on the site and by conducting measurements in presence of the parties and the Authorities. It being a technical aspect of the matter, the Authorities should deal with the issue properly. 10. From the material placed before us, we find that in the larger public interest, the State 11 Highway is required to be constructed, which goes through the township of Vaijapur, which is developing town in Aurangabad District. Abutting the State Highway, there are structures including of the Court, Panchayat Samiti, Tahsil Office, Municipal Council, Post Office, Bus Stand etc. Except the Petitioners, none of these offices/Authorities have raised grievance against the construction of State Highway. 11. The public scheme cannot be held up due to Court proceedings for such a long time. We find that the status quo granted by this Court is continuing since 1998. Vital time is lost in the process. 12. Considering the facts of the case, we do not find any serious or glaring error in the order passed by the Collector. The contentions raised in respect of challenge made to the order passed by the Collector, are negatived. 12 13. Considering the facts and peculiar facets of the issues, we are not inclined to entertain the Petitions. 14. We observe that before the subject structures or part of the subject structures are demolished for the requirement of construction of Highway, the appropriate measurement in the presence of the authorized representatives of the occupants of the structures be carried out and authorized representative of the Government shall fix the points, draw Panchanama and thereafter proceed further. 15. In exercise of extra ordinary writ jurisdiction, we find that no further interference is called for. The Writ Petitions are accordingly dismissed. In Writ Petition No.2337 of 1997 Rule stands discharged. 16. In view of the dismissal of the Writ Petitions itself, all the pending Civil 13 Applications in the respective Writ Petitions are also disposed of. 17. The learned counsel Shri Deshmukh, at this stage, made request that as status quo was in operation for last so many years, it may be continued for further six weeks, as the Petitioners' structures are still on the subject site and they are carrying out their respective businesses. Learned Government Pleader submitted that it is high time to implement the scheme. 18. In the peculiar facts and circumstances of the case and in the interest of justice, we direct the parties to maintain status quo for a period of six weeks from today. [N.D. DESHPANDE, J.] [NARESH H. PATIL, J.] asb/APR10/wp2834.07