The Honourable Mr v. The Superintending Engineer

In the High Court of Judicature at MadrasDated: 17.12.2007Coram:The Honourable Mr.Justice S.J.MukhopadhayaandThe Honourable Mr.Justice M.VenugopalWrit Appeal No.1575 of 2007& M.P.No.1 of 20071. Nizamuddin2. Dr.S.Fathima Beevi.. Appellants/Petitionersvs.1. The Superintending Engineer, Highways Administration, M.O.S.R.T. & H. Department of Road Transport and Highways, Chennai-600 090.2. The Assistant Divisional Engineer, National Highways, Tiruchirapalli-20.3. The Project Director (I/C), The National Highways Authority of India, Tiruchirapalli-1.4. The District Collector, Tiruchirapalli District, Tiruchirapalli... Respondents Writ Appeal against the order of this Court dated 7.12.2007 inW.P.No.19028 of 2007.WP.No.19028/07 : Petition filed under Article 226 of the Constitutionof India to issue a Writ of Mandamus forbearing them from invoking theprovisions of the Control of the National Highways (Land & Traffic) Act2002 interfering with the petitions private property in any mannerincluding demolition of the property to the extent of 4650 Sq.ft inS.No19/1A1A1 at village No.42 Kottapattu Village, Tiruchirappalli Talukand District without following the appropriate procedures contemplatedunder law and without a Rule being enacted under Section 23 and 26 of theAct 13 of 2003. https://hcservices.ecourts.gov.in/hcservices/ For appellant : Mr.S.Doraisamy For respondents : Mr.P.Wilson, Asst. Solicitor General for RR-1 to 3 Mr.V.R.Thangavelu, Govt. Advocate for R-4 Judgment(The Judgment of the Court was delivered by S.J.Mukhopadhaya,J)This Writ Appeal has been preferred by the appellants/WritPetitioners against the order of the learned single Judge of this Court,dated 7.12.2007 passed in W.P.No.19028 of 2007.2. In Writ Petition No.19028 of 2007, a prayer was made for issuanceof a Writ of Mandamus, forbearing the first respondent from invoking theprovisions of the Control of the National Highways (Land and Traffic) Act,2002, interfering with the appellants' private property in any manner,including demolition of their property to the extent of 4,650 Sq.Ft. inS.No.19/1A1A1 at Village No.42, Kottapattu Village, Tiruchirapalli Talukand District, without following the appropriate procedures contemplatedunder law and without a rule being enacted under Sections 23 and 26 of theAct 13 of 2003.3. It appears that after hearing the learned counsel appearing forthe parties, the learned single Judge, by the impugned order, tried tofind out the equitable solution and made the following observations:"29. However, taking note of the various factorsunder which the petitioners claim to have purchasedthe land in question and also the fact that they haveconstructed a hospital in the said land and have beenconcentrating in medical care in that area byincurring a considerable sum towards its constructionand are also recurring day-to-day expenditure, with aview to give an equitable solution, I am of theconsidered view that the respondents who are theauthorities under the Government of India arecompetent to work out whether any compensation can bepaid to the petitioners, though they are not obligatedunder any statute but only on the ground of equity andparticularly, keeping in mind the service rendered bythe petitioners in the field of medicine.Accordingly, I direct the petitioners to address arepresentation to the respondents within a period oftwo weeks from the date of receipt of a copy of thisorder, seeking compensation by explaining theirpitiable plight and on receipt of such representation https://hcservices.ecourts.gov.in/hcservices/ from the petitioners, the respondents are directed toconsider and pass appropriate orders therein within aperiod of four weeks."4. It appears that the appellants/Writ Petitioners jointly purchasedan extent of 4,650 Sq.Ft. of land as indicated above (vide DocumentNo.2294/2003, dated 18.10.2003 and Document No.1208/2004, dated 4.6.2004)from one Rajendran and Mohammed Siddique respectively and the said extentof land is a patta land and was in the enjoyment of theappellants/petitioners' predecessors-in-tile for several decades. 5. For National Highways, the respondents acquired certain lands andin many cases, having found encroachment of the acquired lands, they tooka measure to remove the encroachment, and at that stage, the appellantsmoved this Court by filing Writ Petition No.1630 of 2007 against the orderof the first respondent-Superintending Engineer, Highways Administration,dated 27.12.2006 in No.F.No.RW-MD/TN/HA/1/NH/45/2006, forbearing therespondents from taking any action pursuant to the said order dated27.12.2006 for removal of the building of the appellants in the land inS.No.19/1A1A1, measuring 4,650 Sq.Ft., in Village No.42, KottapattuVillage, Tiruchirapalli Taluk. 6. Having noticed the rival contentions, a learned single Judge ofthis Court, vide judgment dated 24.3.2007 in W.P.No.1630 of 2007, issuedthe following directions:"The fourth respondent shall issue notice to thepetitioners and Respondents 1 to 3 fixing the time anddate for inspection, survey and marking of the NationalHighway in the property in question and thereafterdirect the concerned Revenue Authorities to undertakesuch an exercise. If any encroachment is found, it isopen to Respondents 1 to 3 to proceed against thepetitioners in terms of Section 26(2) of the Act bycomplying with all the requirements of the provisionscontained therein. The petitioners shall cooperate withthe Revenue Authorities in the inspection, survey andmarking of the National Highway."7. According to the learned counsel for the appellants, though thelearned single Judge in W.P.No.19028 of 2007, has accepted the land inquestion of an extent of 4,650 Sq.Ft., in the respective Survey No., asbelonging to the appellants and the said land has not been acquired still,while working out the equitable solution, the impugned direction has beengiven.8. On the other hand, learned Assistant Solicitor General appearingfor the respondents 1 to 3, while referring to the earlier order passed bythis Court in W.P.No.1630 of 2007, dated 24.3.2007, also placed reliance https://hcservices.ecourts.gov.in/hcservices/ on the Sketch (vide page 71 of the spiral-bound typed set in this WritAppeal) and submitted that the appellants, by constructing a Hospital inOld S.F.No.19/1A1B, have encroached the adjacent land bearingS.F.No.19/1B, marked in black ink in that Sketch. It is also found thatthe said land in S.No.19/1B has been acquired by the National Highways andthe appellants have no right over the same.9. In the present case, as we find that there is no dispute withregard to the land measuring 4,650 Sq.Ft., in S.No.19/1A1A1, VillageNo.42, Kottapattu Village, Tiruchirapalli Taluk and District, whichbelongs to the appellants, and the encroachment alleged to have been madeis only in S.No.19/1B and a direction has already been given by this Courtin W.P.No.1630 of 2007, by order dated 24.3.2007, asking the respondentsto issue notice on the appellants fixing the time and date of inspection,survey and marking of the National Highway in the property in question andthen to take action in terms of the provisions of law, we are of the viewthat the second Writ Petition, namely W.P.No.19028 of 2007, as preferredby the appellants, was uncalled for and no further direction was requiredto be given in the same. 10. In the facts and circumstances, while we set aside the impugnedorder of the learned single Judge, dated 7.12.2007 in W.P.No.19028 of2007, we allow the respondents to proceed in accordance with the directionalready given by this Court in W.P.No.1630 of 2007, dated 24.3.2007, andif any encroachment found in S.No.19/1B being made by the appellants, andif marking has been made after giving notice to the appellants, therespondents may proceed in accordance with law.11. It is also now informed by the learned Assistant SolicitorGeneral appearing for the respondents 1 to 3 that notice has already beengiven to the appellants, pursuant to which, the appellants have asked forten days' time, vide their letter dated 25.5.2007, a copy of which hasbeen enclosed in page 63 of the spiral-bound typed set in this WritAppeal. 12. The Writ Appeal stands disposed of with the aforesaidobservations and direction. But there shall be no order as to costs. TheMiscellaneous Petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ csTo1. The Superintending Engineer, Highways Administration, M.O.S.R.T. & H. Department of Road Transport and Highways, Chennai-600 090.2. The Assistant Divisional Engineer, National Highways, Tiruchirapalli-20.3. The Project Director (I/C), The National Highways Authority of India, Tiruchirapalli-1.4. The District Collector, Tiruchirapalli District, Tiruchirapalli.1 cc To Mr.P.Wilson, Asst. Solicitor General of India, SR.74577.1 cc To Mr.S.Doraisamy, Advocate, SR.74453.1 cc To The Government Pleader, SR.74547.Writ Appeal No.1575 of 2007 CU(CO)RVL 18.12.2007