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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, Satyen Vaidya, JJ.
Harnam Singh Alias Rinku Chandel - Appellant
Versus
State Of H P & Ors. - Respondents
C.W.P. No. 3821 of 2021
Decided On : 19-07-2021
Encroachment - National Highway - National Highway Act, 1956, Himachal Pradesh Roadside Land Control Act, 1968, Himachal Pradesh Road Infrastructure Protection Act, 2002, Municipal Corporation Act, 1994, Municipal Act, 1994 - The court dismissed the petition seeking relief from the impugned action of the official respondents to remove the dhaba constructed on the National Highway land. The court held that public properties such as footpaths, streets, and pavements are intended for the convenience of the general public and cannot be used for private purposes. The court emphasized the need to prevent encroachments on public property and the duty of the competent authority to remove encroachments promptly. The court also highlighted the detrimental impact of illegal and unauthorized constructions on public facilities, traffic, and the environment. The court emphasized the zero tolerance for unauthorized encroachments and the duty of the court to discourage wrongdoers and protect public property. The court directed the authorities to ensure the removal of all encroachments on highways within three months.
Fact of the Case:
The petitioner, who had encroached upon National Highway land by constructing a dhaba, sought relief from the official respondents' action to remove the dhaba. The petitioner argued that the dhaba did not hinder traffic flow and was necessary for his livelihood due to inadequate income from agriculture.
Finding of the Court:
The court dismissed the petition, emphasizing the public nature of footpaths, streets, and pavements and the detrimental impact of encroachments on public facilities, traffic, and the environment. The court highlighted the duty of the competent authority to promptly remove encroachments and the need for zero tolerance for unauthorized encroachments.
Issues: The main issue was whether the petitioner's encroachment on National Highway land by constructing a dhaba should be allowed due to his economic circumstances and the alleged presence of other encroachments on the highways.
Ratio Decidendi: The court's decision was based on the principle that public properties are intended for the convenience of the general public and cannot be used for private purposes. The court emphasized the duty of the competent authority to promptly remove encroachments and the need for zero tolerance for unauthorized encroachments.
Final Decision: The court dismissed the petition and directed the authorities to ensure the removal of all encroachments on highways within three months.
Certainly. Based on the provided legal document, the key points relevant to property law, public property, and encroachments are as follows:
Public properties such as footpaths, streets, pavements, and acquired highway land are intended for the convenience and safety of the general public and cannot be used for private purposes (!) (!) .
Encroachments on public property, including unauthorized constructions like dhabas on highways, obstruct traffic flow, compromise pedestrian safety, and hinder future road expansion plans (!) (!) .
The duty of competent authorities is to promptly remove encroachments to maintain the free flow of traffic and ensure public safety, with a stance of zero tolerance towards unauthorized encroachments (!) (!) .
Encroachments, especially on highways, are considered trespassing and violate statutory provisions aimed at protecting public infrastructure and urban planning schemes (!) (!) .
The courts emphasize that public property rights are paramount, and illegal encroachments cannot be justified by economic hardship or other personal circumstances of the encroacher (!) (!) .
Natural justice procedures, such as notices and opportunities to be heard, are necessary for encroachment removal actions unless the encroachment is recent and poses immediate danger, in which case swift action is justified (!) (!) .
The removal of encroachments must be carried out with vigilance and in accordance with statutory powers, including notices and the use of reasonable force if necessary, to prevent illegal constructions and preserve public facilities (!) (!) .
The state and municipal authorities are under a statutory obligation to prevent, identify, and remove encroachments, unauthorized constructions, and illegal land grabbers to protect urban infrastructure and public health (!) (!) .
There is a recognized need for strict enforcement of laws against illegal constructions, with a focus on deterring encroachment activities on national and state highways, regardless of the economic status of the encroacher (!) (!) .
The courts have consistently held that illegal and unauthorized constructions, especially on public roads and highways, must be demolished without exception, and no discretion should be exercised to condone such violations (!) (!) .
The responsibility for maintaining and managing public roads and highways lies with authorities such as the NHAI or the state government, and they are empowered to remove encroachments without further notice (!) .
The overarching principle is that public interest and the integrity of public property take precedence over private interests, and encroachment rights cannot override statutory protections and urban planning laws (!) (!) .
The courts have underscored that illegal encroachments contribute to traffic congestion, environmental pollution, and health hazards, further emphasizing the importance of strict enforcement and removal (!) .
Any attempt to regularize or condone illegal constructions is strongly discouraged, and judicial discretion must align with statutory and constitutional mandates to uphold the rule of law (!) (!) .
The courts have directed authorities to ensure the removal of all encroachments on highways within specified timeframes, reinforcing the policy of zero tolerance for unauthorized use of public land (!) .
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JUDGMENT
Tarlok Singh Chauhan, J. - The instant petition has been filed for the following substantive reliefs:-
a) That impugned action of the official respondents as contained in Annexure P-4, dated 19.02.2020 and Annexure P-5, dated nil and now orally as is being directed at the spot to the petitioner to remove is dhaba or otherwise, the same will be demolished may very kindly be quashed and set aside with directions to the official respondents to allow the petitioner to run the dhaba up till when work of 4-laning is started and yet more, in view of earlier authoritative judgment of this Hon'ble Court, directions may be given to the official respondents to first adjust the petitioner suitably and then only start the work of 4-laning of the road in question.
b) That in the alternative, it is prayed that official respondents may very kindly be directed to take action against all the persons running roadside dhabas, only then action be taken against the petitioner also to give at least similar treatment to similarly situated persons.
2. It is averred that the petitioner belongs to almost down trodden family and is having two daughters, who are studying in 10th and 10+2 standard, respectively. Petitioner has about 8-10 bighas of land out of which 6 bighas is a dhank i.e. totally uncultivable and his average family income from agriculture land is about Rs. 2 lacs to Rs. 3 lacs, that too, depending on the season. Since, the income of the petitioner was not sufficient to meet the requirements and needs of the family, therefore, the petitioner encroached upon National Highway and raised a dhaba about 8-9 years ago which does not create any hindrance to the free flow of traffic and, therefore, should not be ordered to be demolished.
3. It is further averred that the private respondent, who happens to be a cousin of the petitioner, is inimical towards him and has filed a complaint to the authorities to the effect that the petitioner had been wrongly and illegally running a dhaba on the National Highway, therefore, he be evicted from the said place.
4. On taking congnizance of the complaint, the second respondent Executive Engineer issued a letter dated 19.02.2020 to the fifth respondent Assistant Engineer and the fifth respondent, in turn, has now issued a notice to the petitioner to vacate the National Highway land by dismantling the structure standing thereupon.
5. It is vehemently contended by Shri Ajay Sharma, learned Senior Counsel, duly assisted by Shri Rakesh Chaudhary, learned Advocate, that on the road in question, various other persons are running dhabas and would argue that if at all eviction is to be effected, then the same cannot be ordered to be adopting the policy of pick and choose. Apart from this, the petitioner has virtuously nothing to argue.
We have heard learned counsel for the petitioner and have gone through the material placed on record.
6. At the outset, it may be observed that footpaths, street, pavement, acquired width of the Highways are public properties which are intended to serve the convenience of the general public. They are not for private use and their use for private purpose frustrates the very object for which they are carved out from portions of public roads. The future expansion of the roads gets stalled and frustrated. The encroachment of acquired width of land of the road results in permanent obstruction to free passage of traffic and even the pedestrians safety and security is put to stake. Therefore, the acquired width of the land cannot be permitted to be used for any private purpose.
7. In similar situations when there was unauthorized encroachment of pavements, the Hon'ble Supreme Court in Ahmedabad Municipal Corporation versus Nawab Khan Gulab Khan and others., (1997) 11 SCC 121 observed as under:-
"8. It is for the court to decide in exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure which is reasonable, fa
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