Inder Singh vs Asstt. Engineer and Another

A.L. Vaidya, J.—The present petition has been preferred under Article 227 of the Constitution of India for quashing the order dated 16th February, 1993 passed by Collector, Jogindernagar, under the Himachal Pradesh Roadside Land Control Act, 1968 (hereinafter to be called as "the Act"), whereby the present Petitioner has been directed to remove the second storey of the building situated at R.D./KM 169/785 situated in village Hiun/373 on Pathankot Chakki Mandi Road within three months. The Collector on 13th November, 1991 issued a notice in the name of the present Petitioner, whereby the Petitioner was informed that on information received by the Assistant Engineer, H.P.P.W.D. National Highway, Sub Division Gumma Distt. Mandi, H.P. and after due enquiry the Collector was satisfied that Petitioner had constructed a house over the land comprised in Khasra No. 329/1 in Mohal Hiun/373 in Tehsil Jogindernagar, Distt. Mandi, which was under the controlled area as per Section 5(a) of the aforesaid Act. The Petitioner was required to appear before the Collector on 19th November, 1991 to show cause why the Petitioner be not ejected from the aforesaid premises.The Petitioner preferred the reply and contested the averments made in the show cause notice.

The Collector, Jogindernagar, after hearing the parties and recording the evidence, ordered the Petitioner to remove the second storey of the building situated at R.D./KM 169/785 situated in village Hiun/373 on Pathankot Chakki Mandi road within three months. This order was passed on 16th February, 1993.

The Petitioner assailed the aforesaid order before the Sessions Judge, Mandi, who after hearing the parties, came to the conclusion that no appeal was maintainable before the Sessions Judge and accordingly the appeal on the ground of maintainability was dismissed.

The aforesaid order has been assailed in the present proceedings, on various ground, the main being that there was nothing on record to prove that provisions of the Act were applicable in the present case and that building under reference had already been constructed prior to the issuance of the notification u/s 3 of the Act.

I have heard the learned Counsel for the parties and have minutely scrutinized the entire record.

The various provisions of the Act, which are relevant for the disposal of the present proceedings are Sections 3, 5 and 12, which for the sake of convenience, are reproduced here as Section 3 "Declaration of scheduled road and controlled area:

(1) The Government may by notification in the Official Gazette declare any length or the whole of any road to be a "scheduled road" and the area upto a horizontal distance of five metres as prescribed from the edge of the road-land on either of such scheduled road to be a controlled area''.

Not less than three months before making a declaration under Sub-section (1), the Government shall cause to be published in the Official Gazette and in at least two newspapers printed in a language other than English, a notification stating that it proposes to make such a declaration and specifying broadly the boundaries of the land in respect of which the declaration is proposed to be made and copies of every such notification or of the substance thereof shall be published by the Collector in such manner as he thinks fit at his office and at such other places as he consider necessary within the said boundaries.

Any person interested in any land included within the boundaries mentioned in Sub-section (1), may, at any time before the expiration of 60 days from the last date on which a copy of such notification is published by the Collector, object to the making of declaration or to the inclusion of his land or any part of it within the said boundaries.

Every objection under Sub-section (3) shall be made to the Collector in writing, and Collector shall give to every person so objecting an opportunity of being heard either in person or through a legal practitioner and shall, after all such objections have been heard and after such further inquiry, if any, as he thinks necessary, forward to the Government the record of the proceedings held by him together with a report setting forth his recommendations on the objections.

If, before the expiration of the time allowed by Sub-section (3) for filing of objections, no objection, has been made, the Government may proceed at once to the making of a declaration under Sub-section (1) If any such objection have been made, the Government shall consider the record and the report referred to in Sub-section (4) and may either:

(a) abandon the proposal to make declaration under Sub-section (1), or

(b) make such a declaration in respect of either the whole or part of the land included within the boundaries specified in the notification under Sub-section (2).

For the purpose of Sub-section (3), a person shall be deemed to be interested in land if he is a "person interested" as defined in clause (b) of Section 3 of the Land Acquisition Act, 1894, (1 of 1894) for the purposes of that Act or where the land is occupied by or for the purposes of a place of worship, tomb, cenotaph, graveyard, grave or marghat if he is a member of the faith to which such building pertains.

A declaration made under Sub-section (1) shall, unless and until it is withdrawn, be conclusive evidence of the fact that the road to which it relates is a scheduled road and the area to which it relates is a controlled area.

Section 5.

Restriction on buildings etc. in a controlled area - Notwithstanding anything contained in any other law for the time being in force, no person shall erect or re-erect any building or make or extend any excavation or lay out means of access to a road in a controlled area:

Provided that nothing in this Section shall apply to -

(a) the repair to a building which was in existence immediately before the commencement of this Act or any erection or re-erection of such a building which does not involve any structural alteration or addition, therein, or

(b) the erection or re-erection of a building which was in existence immediately before the commencement of this Act and which involves any structural alteration or addition with the permission of the Collector, or

(c) the laying out of any means of access to a road with the permission of the Collector, or

(d) The erection or re-erection of a motor fuel-filling station or a bus-queue shelter with the permission of the Collector, or

Section 12.

Offences and - penalties - (1) Any person who -

(a) erects or re-erects any building or makes or extends any excavation or lays out any means of access to a road in contravention of the provisions of Section 5 or in contravention of any conditions imposed by an order u/s 6 or Section 7;

(b) uses any land in contravention of the provisions of Sub-section (1) of Section 11, shall be punishable with fine which may extend to five hundred rupees, and, in the case of a continuing contravention, with a further fine which may extend to fifty rupees for everyday after the date of the first conviction during which he is proved to have persisted in the contravention.

(2) Without prejudice to the provisions of Sub-section (1), the Collector may order any person who has committed a breach of the provisions referred to in the said Sub-section to restore to its original state or to bring into conformity with the conditions which have been violated as the case may be, any building or land in respect of which a contravention, such as is described in the said Sub-section, has been committed and if such person fails to do so within three months of the order, may himself take such measures as may appear to him to be necessary to give effect to the order and the cost of such measures shall, if not paid on demand being made to him, be recoverable from such person as an arrear of land revenue.

The show cause notice issued by the Collector, Jogindernagar, dated 13th November, 1991 again is reproduced hereunder, in order to appreciate the real controversy between the parties:

Whereas information has been laid before the Assistant Engineer, H.P.P.W.D. Sub Division Gumma Distt. Mandi, H.P. and on due enquiry thereupon had, I have been led to believe that you Sh. Inder Singh has constructed a house over the land comprised Khasra No. 329/1 in Mohal Hiun/373 Tehsil Jogindernagar Distt. Mandi which is under the controlled Area of the Section 5(a) of H.P.R.S. Control Act 1968.

I K.C. Mehta, Sub Division Collector, Jogindernagar hereby require you Sh. Inder Singh to appear in this Court in person or by pleader on 19.11.1991 at 10.00 AM to show cause as to why you could not be ejected from the aforesaid land/premises.

Given under my hand and seal of the Court this day of 13.11.1991.

Sd/- Col1ector, Jogindernagar

The Petitioner contested this notice and submitted the reply thereto, where in it was pleaded that Respondent had constructed a double storeyed Pucca house on the Khasra No. 329, which was in possession of the Respondent and the Petitioner was the owner of the said Khasra number. It was, however, pleaded that on Khasra number 329/1 the Respondent has constructed'' first storey of the house 15 years ago and completed the second storey on 10.1.1991. It was also pleaded that storey was 10 metres from the centre 1ine of the road.

In order to call for the applicability of Section 5 of the Act, a statutory pre condition is required to be complied with in the form of notification u/s 3 of the Act, declaring the road to be scheduled road and controlled area.

Show cause notice, referred to above, had described this Khasra No. 329/1 falling within the controlled area. There is no doubt that Section 5 of the Act restricts on buildings etc. to be constructed in a controlled area.

The notification u/s 3 of the Act was not taken note of when the proceedings were held before the Collector. However, it may be pointed out that in the present proceedings, the Respondents have brought on record certain documents, which are relevant to be referred in the present proceedings.

Annexure DA is the photostat copy of Jamabandi for the year 1989-90 wherein Khasra No. 329 has been recorded to be in occupation of the Petitioner and other co-sharers as owners. Annexure DB is the photostat copy of Tatima, wherein the alleged construction raised by the Petitioner, has been described. Annexure DC is the plan showing un-authorised construction by the Petitioner. In this plan, unauthorised construction raised by the Petitioner, has been shown to be 5.50 metres away from the metalled edge of the road which has been described as P.C.+ M + Road + N.H.20 (National Highway 20). Annexure DD is the photostat copy of the notice, dated 12.4.1991, issued by Junior Engineer, Urla, in the name of the Petitioner for stopping the construction being raised along with PCM Road NH-20 at RD 169/785 without the permission of the P.W.D. authorities. Annexure DE is another notice, issued by Executive Engineer, National Highway Division, HP.PWD Jogindernagar, whereby the aforesaid construction was directed to be stopped and in this notice, it has been referred that Petitioner has started un-authorised construction work on acquired/controlled area of Public Works Department at KM of Pathankot Chakki Mandi Road (National Highway 20), which was violation of the Rules. It was also referred in this notice that Pathankot Chakki Mandi Road, the old name of which was A.P.K. Pathankot-Kullu-Mandi Road had been declared as scheduled Road by the Himachal Pradesh Government under road Side Control Act, 1968 (Act No. 21 of 1969) vide H.P. Government notification No. 9(91) 69-PWD dated 19.7.1971. Annexure DF is the copy of the notification, referred to above, dated 19th July, 1971, issued u/s 3 of the Act. In this notification controlled area, for the purposes of Sub-section (1) of Section 3 of the Act has been defined as under:

(1)National Highways Up to horizontal distance (2)State Highways of 5 metres the edge of the road land on either side, (3)Other Roads Up to A horizontal distance of four metres from edge of the road land on either side. (4)Road junctions Up to a horizontal distance of five metres from the edge of the road land on either side and up to the length of 50 metres on all roads meeting at the junctions.

The scheduled roads for Mandi District have been notified as under:

Border Road:

A.P.K. Road Pathankot-Ku11u-Mandi road,

Shimla-Mandi road via Bilaspur,

In the year 1971, when this notification was issued and which has been made base for the entire action, having taken against the Petitioner, road under reference was known as A.P.K. road that is Amritsar-Pathankot-Kullu road as per case of the Respondents. This road is also known as Pathankot-Chakki-Mandi Road.

Admittedly, in the year 1971, when this notification was issued, this road was not the National Highway-20. The road was declared National Highway-20 much later than 1971. The exact date cannot be ascertained from the record.

In Annexure DF the controlled area for National Highways and State Highways was five metres from the edge of the road land on either side. In the year 1971, road under reference was a Border Road. Thus, under the aforesaid notification, this road could come under Head the "Other Roads" and for other roads, the controlled area was four metres from the edge of the road land on either side.

In the present case, as per the case of the PWD authorities and as reflected from Annexure DC land showing un-authorised construction by the Petitioner was 5.50 metres from metalled edge of the road. There is no documentary evidence brought on record which could give the actual distance of the alleged un-authorised construction from the edge of the road as it existed in the year 1971. It appears that widening work of this National Highway-20 is being taken in the hands by authorities after road having been declared National Highway. There is every likelihood of the alleged construction coming near the edge of the widened road but that will not in any way help the case of the PWD authorities. In order to get order against the Petitioner, it has to be legallyestablished that in the year 1971, when the notification u/s 3 of the Act was issued the alleged construction from the edge of the road as existed in the year 1971 was within five metres. This aspect of the matter has not been taken note of by the PWD authorities at all.

Case of the P.W.D. authorities as put by the learned Deputy Advocate General, before this Court has been that now relevant road has been declared as National Highway-20, therefore, it should be legally deemed to be assured to have been included in the notification u/s 3 of the Act, issued in the year 1971, in place of A.P.K. road. I think such an inference is most un-called for. In order to get benefit of Section 3 of the Act, a notification is required to be issued for including this National Highway 20 to be the scheduled road, so that controlled area for this National Highway could be a distance of five metres from the edge of the road on either side. No notification has been brought on record whereby NH-20 has been declared as scheduled road u/s 3 of the Act. The un-authorised construction, if any, under the Act, alone can be taken note of from the date of notification u/s 3 of the Act, declaring N.H. 20 to be a scheduled road, otherwise, as facts revealed and as has been discussed above, construction cannot be said to be un-authorised one as there is practically no legally competent evidence examined by the authorities so as to bring alleged un-authorised construction within the ambit of notification issued u/s 3 of the Act, in the year 1971.

Needless to say, there are different construction specifications with respect to National Highway, State Highway and other roads, more specifically the width of each type of such road varies and for National Highway width is stated to be maximum.

On the basis of the aforesaid provisions of the Act, and the circumstances present in this case, order under reference (Annexure P/1) passed by Collector, Jogindernagar, dated 16th February, 1993 requires interference and is accordingly quashed, being illegal and not coming within the ambit of the Act. Present petition is accordingly accepted. Parties to bear their own costs.