1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1959 OF 2009 1. Eknath s/o. Haribhau Bahire, Age 48 yrs., Occu. Agril., R/o. Ashti, Tq. Partur, Dist. Jalana. 2. Subhash s/o. Sumant Patil, Age 48 yrs., Occu. Agril. R/o. As above. ....Petitioners. Versus 1. State of Maharashtra 2. The Collector, Collector Office, Jalna. 3. The Executive Engineer, Public Works Department, Jalna. 4. The Sub-Divisional Engineer, Public Works Department, Partur, Tq. Partur, Dist. Jalna. 5. Sk. Munshi s/o. Sk. Babalu, Age 36 yrs., Occu. Business, R/o. Ashti, Tq. Partur, Dist. Jalana. 6. Bhagavan s/o. Santoba Pote, Age 60 yrs., Occu. Business, R/o. As above. ....Respondents. Shri. S.P. Sonpawale, Advocate for petitioners. Shri. D.R. Kale, A.G.P. for respondent Nos. 1 to 4. CORAM : R.K. DESHPANDE, J. DATE : 3rd August, 2010. ORAL JUDGMENT : 1. This writ petition challenges the order passed by the Additional 2 Collector, Jalna dated 27th February 2009, dismissing the appeal preferred by the petitioners under section 24 of the Bombay Highways Act, 1955. 2. On 4th of April 2009 notice was issued in this matter. On 7th of May 2009 this Court had passed an order, as under :- "1. The affidavit which is filed on behalf of respondent no. 2 is hopelessly vague. 2. Unless it is the case of the respondents, that the road, upon which the construction of the petitioners exists, has been declared as a State Highway prior to the construction of the petitioners and that the said construction is without obtaining necessary permission, prima facie, the petitioners cannot be evicted without following due process of law. In that view of the matter, I am inclined to grant interim protection. 3. Hence, the respondents are directed not to demolish the construction of the petitioners until further orders. 4. Stand over to 11th of June 2009." Thereafter on 11th of December 2009, following order was passed :- "1. Heard. 2. The Executive Engineer, Public Works Department, Jalna shall remain personally present before the court and explain the stand in respect of observance of procedure prescribed under section 7 of the Bombay High Ways Act, 1955. Respondent nos. 2 and 3 shall also explain the stand as regards the status/ownership of the property. 3. Learned AGP has raised contention that the property belongs to the State Government. In these circumstances, respondent nos. 2 and 3 to place on record material to substantiate their contention. 4. Stand over to 13th January, 2010." 3 3. The affidavits are filed by the respondents. The learned A.G.P. appears for respondent Nos. 1 to 4. The respondent Nos. 5 and 6 are served. However, none appears for them. The learned counsel appearing for the parties agree that the matter can be finally disposed of at the stage of admission. Hence, Rule, returnable forthwith. Heard by consent of parties. 4. The question involved in this petition is, whether the Executive Engineer - the respondent No. 3 has power under Section 23 (6) of Bombay Highways Act, 1955 to pass the order of demolition of structure, permanent or temporary, which is alleged to be on the road, said to be declared as the "State Highway". 5. Notices were issued to the petitioners in this writ petition, alleging that they have encroached upon the State Highway and hence, why their encroachments should not be removed as it is intended to widen the State Highway which is on Daithana-Ashti-Savangi road. In response to these notices, the petitioners appeared before the respondent No. 3 - the Executive Engineer, with a plea that they are the owners of the property, the property owned by them has not been acquired by following the due process of law, the construction made is not unauthorized and that the respondent-authorities had no jurisdiction to pass an order of demolition under the provisions of Bombay Highways Act, 1955. This was by way of an appeal provided under section 24 of the said Act before the Additional Collector, Jalna. 4 6. The Additional Collector, by the impugned order dated 27th of February 2009 has held that the road in question has been declared as the "State Highway" as per the schemes of Government for road development, formulated from time to time, including Government Resolution dated 29.12.1997 and the Government Resolution dated 9th of March 2001. As per this Government Resolution dated 9.3.2001, the building line of the State Highways for rural area is at 40 Mtrs. from the road center and control line is at 50 Mtrs. from the road center. In view of provision of Section 9 of the said Act, no person can without previous permission of the highway authorities construct, erect etc. between the highway boundary and building line and in between the building line and control line. It is also a finding recorded that the petitioners have constructed a building within the building line, without taking previous permission from the highway authorities and in view of Section 2 (f) of the Bombay Highways Act, 1955, such construction is treated as an encroachment, which is liable to be removed under section 23. 7. The authorities under the Bombay Highways Act, 1955 gets jurisdiction for removal of the alleged encroachment on the said highway, only upon publication of the notification under Section 3 of the said Act in official gazette, declaring any road as State highway. Similarly, the State Highway authorities get the jurisdiction to fix the boundary building and the control line, as contemplated by Section 7 of the said Act, only upon publication of notification in official gazette as required. Under Section 9 5 of the said Act, restrictions are imposed on construction of the buildings between highway boundary and building line and between the building and the control line. Section 23 deals with the prevention of encroachment and under sub-section (1), there is a power to issue notice for removal of the alleged encroachment on the highway. The notices in question were issued in exercised by powers conferred by Section 23 (1) (f) of the said Act. 8. It is a specific stand of the respondent - State Government in the affidavit dated 27.1.2010 that for declaration of the road in question as the "State highway", no procedure has been followed, nor any notification, as required under Section 7 of the Bombay Highways Act, has been issued. In view of this specific admission, the authorities under the Bombay Highways Act have no jurisdiction to deal with any sort of encroachment as contemplated by Section 2 (f) read with Section 23 of the said Act, in respect of road in question, as no notifications are issued as required by Section 3 or Section 7 of the said Act. The notices issued under Section 23 of the said Act for removal of alleged encroachment are, therefore, illegal and unauthorised. 9. The reliance is placed on the Government Resolution dated 29th of December 1997, which contains the policy of the State Government in respect of the development of roads and it includes the road in question as State Highway. Similarly, reliance is also placed on Government Resolution dated 9th March 2001 to urge that boundaries of building and 6 control lines are fixed in respect of road in question, which is considered to be the State Highway. However, issuance of such Government Resolution is not enough to confer the jurisdiction under Section 23 (1) of the said Act, upon the Highway authorities, unless notifications under Section 3 and Section 7 of the said Act, are published in official gazette. In view of this, the order passed by the respondent No. 2 - Additional Collector, Jalna on 27th of February 2009, dismissing the appeal, filed by the petitioners cannot be sustained. The issuance of notices dated 18.1.2008 for removal of encroachment by the Executive Engineer, Public Works Department are also without jurisdiction and hence, are liable to be set aside. 10. In the result, the instant writ petition is allowed. Rule is made absolute in terms of prayer clause "C" of the petition. There shall be no order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp1959.09