The main legal point established in the judgment is that the Highway Authority had the power to issue a notice for road widening and removal of encroachments under the Bombay Highways Act, 1955, and that the petitioners had an alternate remedy available under the Act.

F.I.REBELLO, J.:

Rule. Heard forthwith.

2. Petitioners have approached this Court contending that petitioner no.1 has constructed a building with due licence from the Gram Panchayat. Similarly, the others petitioners contend that they have also purchased the properties and have constructed buildings with due permission. These buildings are constructed adjacent to "Daithan-Ashti-Sawangi Road".

3. It is the case of the petitioners that Respondent No.3 has issued a notice dated 18.1.2007 to all the petitioners informing that they want to carry out the work of road widening of Daithan-Ashti-Sawangi Road and to remove the encroachments on the said Government road within seven days from the date of the said notice. That notice was received by the petitioners on 24.1.2008. Some of the petitioners did not receive the said notice in their personal capacity.

4. The petitioners have filed a representation in the office of Respondent no.2 on 28.1.2008 with a request not to demolish their houses as they have purchased the property from original owners. The petitioners contend that if the respondents want to extend the road from both the sides, they have to acquire the land under the provisions of Land Acquisition Act and by paying compensation and by following due process the road could be widened. According to the petitioners, the existing road was constructed in the year 1972. The respondents cannot suddenly demolish their buildings, which include houses and hospitals, by exercising the power of eminent domain. In the instant case, even the proceedings under the Land Acquisition Act have not yet been commenced.

5. The petitioners have impugned the notice dated 18.1.2008 on the ground that the respondents have no power to remove and or to demolish the buildings belonging to the petitioners without acquiring the land. Any suchaction, it is submitted, would be arbitrary and illegal.

The respondents have also not given a show cause notice to the petitioners prior to issuance of the notice of demolition. There is, therefore, infraction of the principles of natural justice and fair play.

6. The respondents have filed their reply through Laxman Shankarrao Suryawanshi, Sub Divisional Officer, Public Works Sub Division, Partur. The road referred to earlier, it is set out, is notified as a State High Way No.174(A) as per the Road Development Plan 1981-2001 and 2001 - 2021. The said Highway connects Jalna and Beed districts and around 1400 meters length of this road passes through village Ashti. The Executive Engineer, P.W.D.No.2, Jalna is the custodian of the said road as per the Bombay Highways Act, 1955. As per the Government Resolution dated 9.3.2001, the road land for the said Highway is 30 meter, whereas the building line for the said road is 20 meters from the road center in urban areas and 40 meters from the road center in Rural areas. The control line is 37 meters and 50 meters respectively.

Therefore, the State High Way No. 174(A) has a road land width of 30 meters (100 ft.) and the building line is of 20 meters from the road center. Ashti village being from the rural area, the building line is required to be kept at 40 meters (110 ft.) from the center of the road.

7. There is a proposal of improvement of the said road from Central Government funds under the Central Road Fund Scheme (CRFS). In view of this, the Executive Engineer, PWD, Jalna, who is custodian of the said road has undertaken a survey and found that there are several properties which are constructed in contravention of the building line. The Executive Engineer has thus sought removal of the encroachments within the road width. In the light of that decision, the deponent has issued the aforesaid notices to the petitioners, requiring them to remove the encroachments and this is within the powers vested in him under the provisions of the Bombay Highways Act, 1955.

8. To the averment by the petitioners that proceedings have not been initiated for acquisition of land, it is set o