Important points:
Blanket prohibition in carrying out any construction upon land lying in between the boundary of a highway and the building lines determined in respect of that highway and if any construction is carried out, the highway authorities shall by notice require that the construction be set back to the building line. The statute also provides for seeking permission and if the request is refused, the party aggrieved can challenge the same before the appellate authority.

JUDGMENT :

1. The Secretary of the Kallukadavu Muslim Jamaath was served with Exhibit P1 notice issued by the Assistant Executive Engineer, PWD Road Division, Karunagappally informing him that the wall built by the petitioner in front of the Muhiyuddin Sheikh Masjid which comes under the Jamat encroaches upon the Padanayarkulangara- Sasthamkotta Major District Road and they were asked to remove the encroachment within a period of three days. This writ petition is filed challenging the said notice.

2. The petitioner contends that the mosque was built about 40 years back and according to them, Ext.P1 notice was issued without properly demarcating the property of the petitioner and the State Highway. It is contended that there is considerable free space between the road and the compound wall of the Mosque and therefore, for the widening of the road, the removal of the wall is not required. Their grievance is that the petitioner has been discriminated against as other encroachments in the near vicinity remain untouched by the respondents. It is further stated that the petitioner was not even afforded an opportunity of being heard. The petitioner contends that stating their grievance, the petitioner has preferred Exhibit P5 representation before the respondents 1 to 3. However, no action was taken. It is further contended that on receipt of Exhibit P1 notice, the petitioner submitted Exhibit P6 representation seeking a reconsideration of the matter. This was also not responded to. It is in the above background that the petitioner has approached this Court with this Writ Petition seeking the following reliefs:

“1. Issue writ of Mandamus directing the 1st and 2nd respondent to carry out appropriate measurements from the starting of Padanayarkulangara-Sasthamkotta till mosque in order to decide the encroachment to the public property.

2. Issue an order or direction to the 1st, 2nd and 3rd respondent to take measures to ensure the equal approach to all encroachments on Padanayarkulangara-Sasthamkotta state highway.”

3. Miss. Navia Sebastian, the learned counsel appearing for the petitioner has reiterated the contentions raised by the petitioner in the writ petition. The learned counsel argued that the respondents are not justified in ordering the removal of the encroachment without even demarcating the property owned by the petitioner with the Padanayarkulangara- Sasthamkotta road.

4. Sri K.P. Harish, the learned senior Government Pleader has vehemently opposed the prayer. He contends that in connection with Major District Road improvement work, the land survey for fixing the road boundaries were entrusted with the revenue department and extensive survey was conducted during the period from 29.4.2019 to 3.7.2019. The Tahsildar, Land Record forwarded the survey sketches of encroachment and it was found that the petitioner had encroached upon road puramboke and had built a wall. Notice was issued and when attempts were made to demolish the same to complete the road widening within the plan period itself, a group of persons obstructed the work. A meeting was held in the presence of local leaders and the same was attended by the President and Secretary of the Masjid. Being satisfied that the construction was carried out by encroaching into the public road, they agreed to remove the same. When no steps were taken, Ext.P1 notice was issued. He would contend that the allegation that selective demolition was carried out is incorrect. According to the learned Government Pleader, even in the representation filed by the petitioner, they have admitted that the wall was built encroaching upon the highway and it is their case that the removal of such encroachment is not required for the development of the highway.

5. I have considered the submissions advanced.

6. Act 6 of 2000 was enacted to provide for the protection and development of highways and for the prevention of ribbon development and encroachment and use of highways for purposes which would advers