Ajay Bhardwaj & Others vs Public Work Department & Others

Ramesh Ranganathan, CJ

While the present appeals are preferred against the common interlocutory order passed by the learned Single Judge in Writ Petition (M/S) No. 3914

of 2018 and batch, Mr. Siddhartha Singh and Mr. Tapan Singh, learned counsel appearing on behalf of the appellants-writ petitioners, and Mr. C.S.

Rawat, learned Additional Chief Standing Counsel appearing on behalf of the State Government, would submit that, instead of keeping the writ

petitions pending on the file of this Court and modifying the orders under appeal, this Court may consider finally disposing of the writ petitions

themselves. Consequently these three Special Appeals are heard, along with the three Writ Petitions, (from the interlocutory order passed in which

these Special Appeals arise), and are being disposed of by a common order.

In the common orders under appeal, the learned Single Judge observed that the writ petition was filed seeking a mandamus contending that the

Public Works Department had forcefully encroached upon their private land, and had demolished a part of the construction for the purpose of

widening NH-7 which was earlier numbered as NH 58; the procedure prescribed by law has not been followed; an interim order was passed on

21.12.2018 directing that no demolition should take place during the pendency of the writ petition; a counter affidavit was filed by the respondents

wherein they had specifically pleaded that a notice, under Section 441 of the IPC, was issued on 24.09.2018; and in response to the notice, served on

the appellants-writ petitioners on 16.09.2018, they had filed their objections on 17.12.2018.

The learned Single Judge further observed that the petitioners had approached this Court immediately after filing their objections on 17.12.2018, by

filing the writ petitions on 21.12.2018 without disclosing the fact that a notice was already issued to them to which they had submitted their reply; on

the other hand they had argued that the process was undertaken without due intimation; and it was evident that they had concealed facts, and had not

come to Court with clean hands. The learned Single Judge, while granting the appellants-writ petitioners’ time to file their rejoinder affidavit,

vacated the interim order.

The submission, urged on behalf of the appellants-writ petitioners, by Mr. Siddhartha Singh and Mr. Tapan Singh, learned counsel, is that, while a

notice was no doubt issued to them earlier, the said notice was bereft of particulars; the appellants-writ petitioners had, on their own volition and

without any coercive steps being taken against them by the respondents, removed the temporary structures raised by them on the subject land; and

since officials of the Public Works Department had, thereafter, placed a red cross over their permanent structures, indicating that the entire building

would be demolished, they had approached this Court; while the respondents had specified the extent of encroachment in their counter affidavit filed

before this Court, the notice issued to the appellants-writ petitioners earlier makes no mention of the extent of alleged encroachment made on the

National Highway or on PWD land; it is, in these circumstances, that their failure to refer to the earlier notice, and to the reply submitted by them,

should be considered; and the appellants-writ petitioners have now filed affidavits stating that their action was bonafide; and they have expressed their

unconditional apology for the lapse on their part in not referring to the show cause notice issued by the respondents and to the reply submitted by them

thereto.

While the respondents have, in their counter affidavit dated 23.04.2019, stated that, during the survey made in this regard, it was revealed that the

petitioners, in Writ Petition (M/S) No. 3914 of 2018, had made a total encroachment to the extent of 175.67 Sq. Mtrs. out of which 67.88 Sq. Mtrs.

was in the shape of temporary construction and 107.79 Sq. Mtrs. was in the shape of permanent construction over the subject highway, a bare reading

of the notice, issued by them to the appellants-writ petitioners earlier, shows that no reference is made therein to the extent of encroachment; and all

that is stated in the said notice is that the appellants-writ petitioners had encroached upon the National Highway. Both the learned counsel for the

appellants-writ petitioners, and the learned Additional Chief Standing Counsel, agree that the permanent construction, raised on the alleged encroached

land, has not been demolished till date.

It is only if the show cause notice is specific and contains particulars regarding the actual extent of encroachments, would those in possession of the

subject land be in a position to file their reply thereto stating whether or not the land indicated by the authorities, as having been encroached, has in

fact been encroached upon, or whether they have encroached upon a lesser extent. It is only with respect to the actual extent of encroached land,

would the permanent construction raised thereupon be required to be demolished, and not beyond.

The unconditional apology, tendered by the appellants-writ petitioners, is accepted. The respondent-officials shall not take any coercive steps to

demolish the existing permanent structures, raised by the appellants-writ petitioners on the subject land, except after issuing a notice afresh furnishing

details of the extent to which the appellants-writ petitioners are alleged to have encroached upon the subject land belonging to the National Highways

Authority of India/State Government, and calling upon them to show cause why the structures raised by them, on the encroached land, not be

removed.

On such a notice being issued by the respondent-officials, the appellants-writ petitioners shall furnish their reply thereto within two weeks from the

date of receipt of the show cause notice. It is open to the officials to consider these objections, pass a reasoned order, and thereafter take necessary

action, in accordance with law, to remove the encroachments. In case the appellants-writ petitioners do not submit their reply to the show cause notice

within two weeks of its receipt, it is open to the respondent-officials to proceed and remove the encroachments without giving the appellants-writ

petitioners any further time to submit their reply to the show cause notice.

It is made clear that we have not expressed any opinion on whether or not the appellants-writ petitioners have encroached on land belonging to the

National Highways Authority of India/Public Work Department, as these are all matters which the authorities are required to examine in the first

instance.

With the aforesaid observations, all the Special Appeals and the Writ Petitions are disposed of. No costs.