1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No. 2282/2009 Shyamsundar S. Jaipuriya Vs. State of Maharashtra and others. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. A.V. Bhide, Advocate for the petitioner. Mrs. Dangre, Additional Government Pleader for the respondent Nos. 1 to 4. CORAM: D.B. BHOSALE AND P.B. VARALE, JJ. DATE : 29TH JUNE 2010. 1] Heard Mr. Bhide, learned counsel for the petitioner and Mrs. Dangre, learned Additional Government Pleader for the respondents/State. 2] In this writ petition, the petitioner has made the following prayers :- “(i) The respondent no.1 and 4 may kindly be directed to complete the land Acquisition proceedings in Land Acquisition Case no.9/47/99-2000 of Mouza Madkona in respect of .62 Hectares of land in Gat no.4, Survey No. 6 at Madkona within stipulated 2 period by issuing writ of Mandamus or any other appropriate writ or order or direction; and (ii) The respondents no. 1 to 3 may kindly be directed to pay the interim compensation of Rs. 22,00,000/- (Rs. twenty two lakhs) to the petitioner within stipulated period by issuing a writ of Mandamus or any other appropriate writ or order or direction.” 3] We have heard learned counsel for the petitioner, for quite some time, so also the learned Additional Government Pleader and with their assistance gone through the entire record placed before the Court. In short, the grievance of the petitioner is that the respondents have encroached upon his land in 1998 to the extent of 62 Ares and constructed the State highway without acquiring his land. The petitioner has purchased the land in dispute some time in 1982 and since then he is in possession thereof. 4] Mr. Bhide, learned counsel for the petitioner, invited our attention to several documents annexed to the writ petition and tried to demonstrate that the petitioner's land 3 has been encroached and used for construction of the road without acquisition. We have perused the records, so also the replies/affidavits filed by the respondents and, more particularly, the affidavit filed by the Executive Engineer in Special Project, Public Works Department, Yavatmal dated 7.9.2009. From the material on record, it is clear that the road passing through the land of the petitioner is in existence since prior 1935. It is so stated in paragraph 7 onwards in the reply-affidavit dated 7.9.2009. They have also made reference to the record, which support their claim that the road has been in existence since prior to 1935. In paragraphs 14 to 19 of the affidavit dated 7.9.2009, respondent no.3 has stated thus:- “14. This respondent has inspected the record in regard to the land in question. The revenue record of the land which is reflected in the Ferfar Register at Serial No. 70 as on 1.1.1933, reflects following position. The earlier Survey Number of the land of the petitioner was six having area of 10.33 Acres which comes to 4.18 Hectares and erstwhile holder of the land was Narayan 4 Chandrabhan. If the above record is further verified with that of the record of measurement of TILR of Gat/Survey No. 4, it appears that the same measurement is incorrect. 15. This respondent reiterates that the measurement carried out by the TILR are all the way disputed by this respondent as is apparent from the old revenue record, the 1947 edition of Department of Survey of India of village plan of Madkona of the year 1967. 16. As per the record of this respondent of the Gaothan plan the land is available for road near Gat No.4, to the extent of 40 to 45 meters and this respondent craves leave to rely upon the Gaothan Plan of village Madkona. 17. The aforesaid factual metrics prima- facie reaches to the conclusion that the road in question was in existence since long that too prior to 1935. The old topo-sheets and the land-plans which are available with this respondent prompt only conclusion of existence of the road much prior to 1950. 5 18. That the record of the office of the answering respondent such as Measurement Book of the work executed during 1997 to 1999 shows widening of bituminous treatment carriage-way on both the sides of the road with equal width. The record further demonstrates that once a widening near Gat No.4, opposite to the land of the petitioner was also made. This prompts the only conclusion of existence of land-width of 24 meters for the State highway, as such, claim of the petitioner of that of encroachment of his land is denied. 19. The proposal as is referred to in the petition as regards the acquisition of the land of the petitioner is concerned, this respondent submits that the said proposal perhaps was based upon the need of additional land than the existing land width of 24 meters, to provide any better or additional facilities as the Gat No.4, is located in very close proximity of the Gaothan. That the said land of the petitioner out of Gat NO.4, is at all not required after the width of the bituminous carriage-way road was enhanced from existing 5.50 6 meters to 7 meters as there is sufficient land available with this respondent for its own developmental work as the land to the extent of 24 meters for road width is available.” 5] From the contents of the aforementioned paragraphs of the affidavit, it is clear that the road is old and not constructed recently as claimed by the petitioner. It further appear that they require more land for providing better and additional facilities including for widening the road. It is further stated on affidavit that the additional area that the respondents intend to acquire for providing better and additional facilities, they do not need the petitioner's land. The land of the petitioner is a part of Gat No.4. The respondents in the aforementioned para 19 have made a categoric statement that the petitioner's land out of Gat No.4 would not be required after the width of the bituminous carriage-way road is enhanced from existing 5.50 meters to 7 meters as there is sufficient land available for development of the road. 7 6] In view thereof, there is no question of issuing any direction to the respondents to start acquisition proceedings either in respect of the land covered by the road passing through the petitioner's land or in respect of any part of the petitioner's land in Gat no.4, in view of the clear stand of the respondent's, that is made clear in their reply dated 7.9.2009. Moreover, the writ petition also suffers from disputed question of fact which cannot be gone into and decided in writ jurisdiction under Article 226 of the Constitution of India. Hence, the petition is dismissed. No costs. JUDGE JUDGE Ambulkar.