(-0 -O) T.rei.ttreqa ^OI-4s!a 'T-re:tureLia 'p^oy je^s'eg '0/3 'SJBS^ 09 ^noqe pa§^ 'iqBfury {BUJBjBpjBg uqg -o/g 'qSuTS -[3pU3§op •s (•o -o) Tjrei.uiBqQ ^OU^SIQ 'iJB^ureqQ 'p'eoy -re^sT3g 'o/y 'sjeaA S9 ^noq'e psSs ''eqqojoQ ^euifejng uqg "o/g 'BqqopQ pwavpvaavQ ••b ('O "O) T^e^ureqa ^OU^SIQ 'ijB^ureqo 'P^o^j jB^s-eg •O/^'SJBS^ g^ ^noq^ p3§'B 'ILTBMlpSf S'BQ UB&SJSf^ UL[g -0/S 'ItTBMLt^ap p]/\[ JBLTBM'B^ •e (•O -3) uei.ureqa ^OU^STQ 'ijB^ureqa 'p'eo^ uort'e^g 'o/y 'sjesA 09 ^noq-B pagB 'iireMfoqg {Bureqpn uqg •o/g 'iuBMfoqg {Btunqp'By^ ug •e (•o -o) ije^ureqQ IOU^STQ 'TjB^ureqa 'pBO^ uoi;-e^s -o/g 'SJBS/: 02, ^noq^ ps§B 'urep pUT3qo YBSl-reN ui[g 'o/g 'uTBp pu'eqo uin^nH •T SH3Nomj-ad •GOOS-iIO S8II -ON O) NOAIiadlMA andSv^Ig j,v HHVOSIU.VHHO do AHnoo HOIH 3HJ- N1 \ ^^\<^} -^^^n (=»9pw^^M^ . ! ^ VE RS U S RESPQNDENTS :1. The State of Chhattisgarh Through The Secretary, : Deparfraent of Public Works, Mantralay at D.K.S. Bhawan, Raipur (C. G.) 2. National Highway Public Works Department, Through : The Sub Divisional Officer, Sub Division No. 1, Raipur (C. G.) 3. Executive Engineer, National Highway Public Works Department, Division No. 1, Raipur(C. G.) 4. Collector, Dhamtari, District Dhamtari (C. G.) 5. Sub Divisional Officer (R), Dhamtari (C. G.) 6. Nagar Palika Parishad, Dhamtari, Through : Chief Municipal Officer, Nagar Palika Parishad, Dhamtari (C, G.) 7. Chhattisgarh Prantiya Arya Pratinidhi Sabha, Head Office- Baijnath Para, Raipur, Tahsil and Dista-ict Raipur (C. G.) ^ 0 WRIT PETITION UNDER ARTICLE^26_QFLTHE CONSTITUTION OF INDIA 4'""^. HIGH COURT OF CHHATTISGARH : BILASPUR Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. W.P.(C1 N0.1182 of 2009 Petitioners Resoondents Hukum Chand Jain and Others Versus The State of Chhattisgarh and Others (Writ Petition under Article 226 of the Constitution of India) Present: - Shri Prateek Sharma, counsel for the petitioners. Shri Surya Kant Mishra, Panel Lawyer for the State/respondents No.1 to 5. Shri Y. S. Thakur, counsel for respondent No.6. Shri S. S. Rajput, counsel for respondent No.7. ORAL ORDER (Passedon 04^)1-2011) By this petition under Article 226 of the Constitution of India, petitioners are assailing the validity of notice dated 25-02-2009 (Annexure P-1) and consequent proceedings for alleged removal of encroachment against the petitioners, who are actual occupants of the shops taken on rent from the respondent No.7. The petitionere are occupying shops situated at Shastri Chowk, Dhamtari. According to the petitioners, owner of the shops is respbndent No.7- Chhattisgarh Prantiya Arya Pratinidhi Sabha, who has constructed those shops on his cwn land bearing Khasra Number 230/2, 231/4 and 426/3 situated at Shastri Chowk, Dhamtari. Relevant revenue records B-1 Khasra has also been placed on record as Annexure P-2. 2. According to the petitioners, shops constructed by respondent No.7 were let out to the petitioners and eversince then, the petitioners have been occupying and running business in their respective shops and regulariy paying rent of their shops to the respondent No.7 acknowledging rent vide receipte filed as Annexure !< ';; ll^ 'i.. -'y // P-3. On 25-02-2009, the officers of the National Highway and Municipality came to the petitioners' shops and required them to remove their shops within 48 hours. The petitioners then came to know that the respondent No.2 had issued a notice dated 25-02-2009 (Annexure P-1) to the respondent No.7 stating that the respondent No.7 has encroached upon a part of National Highway No.43 at Kilometer No.77/8 (Makai Chowk) on left side, which is illegal. The notlce further stated that earlier also, a notice was given but the encroachment has not been removed and 48 hours was granted to remove encroachments, failing which, the same shall be removed with the help of administration. Though notice was given to the respondent No.7, no notice has been served on the petitioners, who are actual occupants oftheir respective shops. 3. Assailing the aforesaid action on the part of the respondent authority. learned counsel for the petitioners submitted that as the petitioners, who are actual occupants of their respective shops and the building which is alleged to have encroached upon the National Highway, the respondent No.2/National Highway Authorities and their officers are under statutory obligation to issue notice to the petitioners-occupante as mandatorily required under Section 26(2) of the Control of National Highways (Land and Traffic) Act, 2002 (hereinafter referred to as "the Act of 2002"). Learned counsel for the petitioners argued that even though respondent No.7 is the owner ofthe premises, in vlew of the specific language of Section 26(2) of the Act of 2002, legislative mandate is clear that the notices are required to be issued, for giving an opportunity to one, who is alleged to have encroached upon the National Highways. He submits that this would therefore include the tenant, who is in actual and physical occupation, and therefore, the petitioners, who are actually occupying the shops, in respect of which, encroachment is alleged, are entitled to due and proper notice under the law, which has not been done. Other submission of learned counsel for the '\ -3 petitioners is that even the notice which has been issued to the owner of the premises is not in accordance with the provisions contained in Section 26 of the Act of 2002, as the relevant details and particulars have not been given nor does the notice record any satisfaction of the authority that encroachment has been done. It is next contended by learned counsel for the petitioners that before initiating the proceedings for eviction on the allegation of unauthorized encroachment, it was obligatory on the part of the National Highways Authority and its authorized officers to make due and proper enquiry by making spot inspection and taking measurements in the presence of the petitioners/occupants. Learned counsel for the petitioners submits that this has also not been done and without carrying out inspection and measurement in presence of the petitioners, notices have been issued that too only to the owner. He places reliance on the decision of the Supreme Court in the case of Madhav Rao Scmdia (dead) by LRs. vs. Ramesh Jatav and Others, 2006 (1) SCC 379. 4. On the other hand, learned counsel for respondents No.1 to 5/State submits that the notice (Annexure P-1) has been issued to the recorded owner of the premises, who is the occupant in the eye of law. He further submits that from the revenue records (Annexure P-2) filed by the petitioners, it is clear that the respondent No.7 has been recorded as the holder of the plot. and therefore, in accordance with the provisions of Section 26(2) of the Act of 2002, notice has been issued to respondent No.7, who is the recorded owner of the premises. He submits that the petitioners are only the tenants and not the actual owners ofthe premises, and therefore, no notice is required to be issued to the petitioners. Next submission of leamed counsel for the State is that from reading of notice (Annexure P-1), it is clear that earlier also notice was issued to the respondent No.7 and upon its faiture to remove encroachment, impugned notice (Annexure /. A P-1) was issued. Learned State counsel submits that a perusal of Line Plan (Annexure R-1/6) would show that there is encroachment on government land by respondent No.7. He further submits that eariier respondent No.7 had approached the Civil Court, Dhamtari by filing a civil suit for declaration and permanent injunction and the suit was dismissed vide order dated 03-11-2007 (Annexure R-1/3) holding that the suit was not maintainabte and barred, and thereafter, fresh notice was issued to the respondent No.7 and now the petitioners, who are tenants, have filed this writ petition seeking to espouse the cause of the owner of the premises. It is nextsubmitted that on 20-02-2009, the President ofthe Municipal Council admittedly sent a letter to respondent No.2 for removal of encroachment on National Highway No.43. The Chief Municipat OfRcer, Municipal Council, Dhamtari also sent a letter dated 20-04-2009 (Annexure R-1/5) stating that the construction of building is in violation of terms and conditions of sanction. Learned counsel for respondents No.1 to 5/State submits that from the aforesaid details and the map placed on record, it is ctear that the building of Arya Samaj of which the petitioners are tenants, have clearly encroached upon the land forming part of National Highways. He further submits that there is no illegality in the action of the respondents No.1 to 5 in initiating proceedings. 5. Learned counsel for respondent No.6 submitted that the municipal council had issued letters to the National Highway Authorities informing about the fact that the building of Arya Samaj was constructed in violation of the permission and also that there has been encroachment upon the land of National HJghways. He has supported the action initiated bythe National Highway Authorities. 6. Learned counsel for respondent No.7/0nwer submits that the building, of which the petitioners are occupying as tenants, has been constructed in y K- \'.;' -/?"'^ l'A> »:,6>.^"A 5 accordance with due permission which was granted to them long back and that the disputed shops are being constructed on the land owned by the respondent No.7 and there is no encroachment on the land forming part of Nationat Highways. 7. After considering the submissions made by learned counsel for the parties and perusing the records, in my opinion, the grievance of the petitioners in so far as non-issuance of notice to them is concemed, is well justified. A reading of the provisions contained in Section 26(2) of the Act of 2002 makes it abundantly clear that when, as a result of periodical inspection of highway land or otherwise, the Highway authorities are satisfied that any unauthorized occupation has taken ptace on highway land, the Highway Administration or the officer so authorized shall serve a notice in a prescribed form on the person causing or responsible for such unauthorized occupation requiring him to remove such unauthorized occupation. The occupante may not be the owner of the premises but certainty they are in actual and physical occupant of the premises which they have taken on rent from respondent No.7. Therefore, the provisions under Section 26(2) of the Act of 2002 obliges the respondent authorities to serve notice on the petitioners atso as they are covered by the clause "persons causing or responsible for such unauthorized occupation", may be that the owner of the premises i.e. respondent No.7 was earlier noticed. However, the petitioners, who are actual occupants of the premises, are also entitled to service of notice in a prescribed form. It is not in dispute that respondent authorities have not issued any notice to the petitioners and the notices were issued in the name of respondent No.7. The other submission of learned counsel for the petitioners need not be considered at this stage because the petitioners have not been noticed. It is therefore, not necessary for this Court as to what should be the contents of the notice under the provisions of law. The other submission of 6 .^y learned counsel for the petitioners that the notices on respondent No.7 were issued without due and proper enquiry, measurement, spot inspection etc. is a matter which may arise for consideration upon issuance of notice to the petitioners. Section 26 of the Act of 2002 makes provision with regard to issuance of notice and atso consideration of representation, if any, which the person to whom the notice is addressed may make within the time specified in the notice. Therefore, at this stage, all those submissions need not be decided at they are premature. 8. As an upshot of the aforesaid discussion, 1 have to hold that the respondent authorities could not proceed to remove the encroachment alleged to be occupied by the petitioners without serving due and proper notice upon them as required under Section 26(2) of Uie Act of 2002. In the result, the petition is allowed. In case, the respondent authorities intend to remove the alleged encroachment, it shall be obligatory on them to serve notice in the manner prescribed under the law to the petitioners as required under Section 26(2) of the Act of 2002. In the event of drawing any proceedings against the petitioners, the respondent authorities shall duly comply with the requirement of law as contained in Section 26 of the Act of 2002. There shall be no orders as to cost. Sd/- Manindra Mohan Shrivastava Judge