Point of Law: Encroachments make further widening of existing roads in response to growing traffic.

JUDGMENT :

PUSHPENDRA SINGH BHATI, J.

1. As culled out from the memo of petitions, the present bunch of petitions under Article 226 of the Constitution of India has been preferred claiming, in sum and substance, the following reliefs:

(A) by an appropriate writ order or direction, the notices dated 16.02.2022 and 10.01.2023 may kindly be declared illegal and accordingly, be quashed and set aside.

(B) by an appropriate writ, order or direction, the respondents may be directed to not to take any action against the petitioners without giving them reasonable opportunity of being heard in accordance with law forthwith.

2. The genesis of the controversy involved herein lies in the notices, impugned herein, issued to the present petitioners, by the respondent-authority for removal of certain encroachments from the government lands; such encroachments, as the pleaded facts and the record would reveal, were sought to be removed for the purposes of National Highway (public project).

3. The impugned notice dated 10.01.2023 came to be issued by the respondents under Sections 26(2) and 27 of the Control of National Highways (Land and Traffic) Act, 2002 (hereinafter referred to as ‘Act of 2002’) to the present petitioners seeking removal of their shops/walls/hotels i.e. commercial establishments, while assessing the same to be an encroachment over the government lands.

3.1 Such conclusion, as per the respondents, regarding the commercial establishments of the present petitioners, was drawn, on count of such establishments over the lands in question, are clearly violating the stipulations made in relation to building lines and control lines as prescribed in relation to National Highways.

3.2 Further stand of the respondents to justify the impugned action is that NH-11 in question was notified, within Schedule II at S. No. 13A, vide notification dated S.O. 119 4th May 1960 having its route from Agra-Jaipur-Bikaner; the present lands/commercial establishments in question (within 490 km to 495 km in between Sikar and Bikaner) are situated within the periphery of town Sridungargarh.

3.3 In their attempt to thwart the impugned notices, the petitioners averred in the petitions that in some of the cases, the lands, over which their commercial establishments etc. have been constructed, were allotted by the concerned Municipal Body; while in some cases, the averment of the petitioners is that they have purchased the lands vide registered sale deeds. As per the petitioners, the constructions of the commercial establishments etc. were raised after obtaining due permission and approval from the competent authorities.

3.4 Furthermore, the petitioners claimed that in response to the impugned notices, they have represented before the concerned authorities of the respondents, but since the same could not yield positive results and their grievances could not be ventilated, therefore, the petitioners are before this Court, seeking redress.

4. Learned counsel for the petitioners submitted that the action of the respondent-authority in issuance of the impugned notices is not in consonance with Section 26(2) of the Act of 2002, being the same is apparently a flagrant violation of the principle of audi alteram partem, as no opportunity of hearing whatsoever, before initiating the impugned action, was afforded to the petitioners herein.

5. Learned counsel for the petitioners further submitted that as discernible from the record, the circular dated 18.11.2021, issued by the Department of Revenue, Government of Rajasthan, under the Rajasthan Land Revenue (Conversion of Agricultural Land for Non-Agricultural purposes, in Rural Areas) Rules, 2007, makes it amply clear, that the restriction imposed thereby, on conversion of agricultural lands for other purposes, shall have prospective effect only; whereas the properties of the petitioners stood converted much prior to the issuance of the said circular; also the construction of their commercial establishments were raised before iss