Bombay High Court
Shri Siddheshwar Dudh Udyog Samuh ... vs The State Of Maharashtra And Ors on 14 October, 2022
Author: Sharmila U. Deshmukh
Bench: Nitin Jamdar, Sharmila U. Deshmukh
Digitally
signed by
TRUPTI
TRUPTI SADANAND
1/10 901-wp9780-21group
SADANAND BAMNE
BAMNE Date:
2022.10.19
17:02:57
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 177 OF 2021
WITH
INTERIM APPLICATION NO. 307 OF 2022
Jalinder Jagannath Machale and Ors. ... Petitioners
V/s.
Competent Authority, Deputy Collector
and Ors. ... Respondents
WITH
WRIT PETITION NO. 10069 OF 2022
WITH
INTERIM APPLICATION NO. 298 OF 2022
Sampat Vitthal Machale ... Petitioner
V/s.
The State of Maharashtra through Principal
Secretary, Public Works Dept. and Ors. ... Respondents
WITH
WRIT PETITION NO. 9780 OF 2021
Arjun Tukaram Yadhav and Ors. ... Petitioners
V/s.
Union of India through its Secretary,
Ministry of Road Transport and Highway and Ors. ... Respondents
WITH
WRIT PETITION NO. 10981 OF 2022
Ajinkya Dattatray Mokashi and Ors. ... Petitioners
V/s.
The State of Maharashtra through
Principal Secretary, Public Works Dept. and Ors. ... Respondents
Trupti
2/10 901-wp9780-21group
WITH
WRIT PETITION NO. 5895 OF 2021
Raosaheb Yashwant Farate and Anr. ... Petitioners
V/s.
The District Collector, Pune and Ors. ... Respondents
WITH
WRIT PETITION (St.) NO. 96676 OF 2020
Vasudev Alias Rajendra Shrikisan Chavan ... Petitioner
V/s.
Union of India through its Secretary,
Ministry of Road Transport and Highways ... Respondents
WITH
WRIT PETITION NO. 4628 OF 2021
WITH
INTERIM APPLICATION NO. 305 OF 2022
Jaysingh Ramrao Ghadge and Ors. ... Petitioners
V/s.
The State of Maharashtra through
Principal Secretary and Ors. ... Respondents
WITH
WRIT PETITION NO. 10984 OF 2022
Siddheshwar Dudh Udyog Samuh through
Vijay Sinh Fattesingrao Mokashi and Ors. ... Petitioners
V/s.
The State of Maharashtra and Ors. ... Respondents
WITH
WRIT PETITION NO. 10982 OF 2022
Sandip Ramrao Kadam and Ors. ... Petitioners
V/s.
The State of Maharashtra and Ors. ... Respondents
Trupti
3/10 901-wp9780-21group
WITH
WRIT PETITION NO. 10983 OF 2022
Sau. Hemalata Dnyaneshwar Shinde ... Petitioner
V/s.
The State of Maharashtra and Ors. ... Respondents
WITH
WRIT PETITION NO. 8902 OF 2021
Swapnil s/o. Janardhan Kate and Ors. ... Petitioners
V/s.
The Union of India through Principal
Secretary, Ministry of Road Transport and
National Highways Transport Bhavan and Ors. ... Respondents
WITH
WRIT PETITION NO.7581 OF 2022
Ganpat Shankar Jadhav ... Petitioners
V/s.
The State of Maharashtra ... Respondent
WITH
WRIT PETITION NO. 5915 OF 2021
WITH
INTERIM APPLICATION NO. 2934 OF 2021
Kakaso Dagdoba Ghadge ... Petitioner
V/s.
The State of Maharashtra through
Principal Secretary, Public Works
Deptt. and Ors. ... Respondents
......
Mr. Surel Shah i/by Nilesh Wable for Petitioner in WP 177/2021.
Mr. R.A. Deshmukh for the Petitioner in WP 9780/2021.
Mr. T.D. Deshmukh a/w. Mr. H.D. Chavan for the Petitioners in WP
5895/2021.
Trupti
4/10 901-wp9780-21group
Mr. Nilesh M. Wable for the Petitioners in WP Nos. 10069/2022,
4628/2021, 7581/2022 and 5915/2021.
Mr. U.B. Nighot for the Petitioners in WP 10981/2022.
Mr. D.D. Shinde for the Petitioners in WP Nos. 10983/2022 and
10984/2022.
Mr. S.R. Nargolkar with Arjun Kadam with Sudyumna Nargolkar for
the Petitioners in WP (St.) No. 96676/2020.
Mr. Vijay Patil for Respondent Nos. 3 to 5 in WP 9780/21 and for the
National Highway Division in all matters.
Mr.Niranjan Shimpi for Resp.No.5 in WP 177/2021, for Resp.No.1 in
WP 8902/2021, for Resp.No.9 in WP 4628/2021, for Resp.No.6 in WP
Nos.10981/2022, 10984/2022, 10982/2022 and 10983/2022.
Mr. Ashutosh Mishra for UOI in WP Nos. 10069/22, 7581/2022 and
5915/2021.
Ms. Gargi Warunjikar for Respondent No.1 in WP 9780/2021.
Ms.R.M. Shinde, a/w Mr. B.V. Samant, AGP for Respondent-State.
Mr. R.V. Govilkar a/w. Mohamedali M. Chunawala, for Resp. Nos. 1 and
2 in WP(St.) No.96676/2020.
......
CORAM : NITIN JAMDAR AND
SHARMILA U. DESHMUKH, JJ.
DATE : 14 OCTOBER 2022 P.C. :
Heard the learned Counsel for the parties.
2. The Petitioners are agriculturists having their lands situated in Taluka-Shirur adjacent to the newly notified National Highway 548 D, the erstwhile State Highway SH 55/ Major District Road 40. The grievance of the Petitioners is that their lands adjacent to the highway/road are being taken over by the Respondent - Highway Authority without paying them any compensation.
Trupti
5/10 901-wp9780-21group
3. It is sought to be urged on behalf of the Respondents before us that it is not necessary to pay any compensation to the Petitioners for the area which is included in the definition of highway in the Maharashtra Highways Act, 1955.
4. Section 2 (h)(i) defines of a highway as under :
"2(h) (i) "highway" means any [road, way or land] which is declared to be a highway under section 3. The expression includes -
(i) any land acquired or demarcated with a view to construct a highway along it;
(ii) the slopes, beams, borrow- pits, foot-paths, pavements and side, catch and boundary drains attached to such road or way;
(iii) all bridges, culverts, causeways, carriageways and other structures built on or across such road or way; and
(iv) the tress, fences, posts, boundary, furlong and mile stones, and other highway accessories and materials and material staked on the road or way;"
After defining the concept of highway as above, Section 7 of the Act of 1955 refers to fix boundary, building and control lines of highways. Section 7 reads thus :
"7.Power to fix boundary, building and control lines of highways.---[(1) In any area in which the provisions of this Act have been brought into force, and Trupti 6/10 901-wp9780-21group
(i) where either any road, way or land has been declared to be a highway under section 8, or the construction or development of a highway is undertaken or proposed to be undertaken, and
(ii) the State Government considers it necessary to fix, as respects such highway, the highway boundary, the building line or control line, the State Government may, by notification in the Official Gazette, fix, as respects such highway, the highway boundary, the building line and the control line:
Provided that, having regard to the situation or the requirements of a highway or the condition of the local area through which a highway passes, it shall be lawful for the State Government to fix different building or control lines in respect of any highway, or portions thereof.] (2) Not less than sixty days before issuing a notification under sub-section (1) the State Government shall cause to be published in the Official Gazette and in the prescribed manner in the village and at the headquarters of the [taluka, tahsil or mahal] of the district in which the highway is situate a notification stating that it proposes to issue a notification in terms of sub-section (1), and specifying therein all the lands situated between the highway boundary and the control line proposed to be fixed under such notification and in the case of new works, also lands benefiting by the construction or development of the highway, as the case may be, together with a notice requiring all persons affected by such notification, who wish to make any objection Trupti 7/10 901-wp9780-21group or suggestion with respect to the issue of such a notification, to submit their objections or suggestions in writing to the Highway Authority or appear before such authority, within two months of the publication of the notification in the Official Gazette or within one month from the date of the publication of the notification in the village, whichever period expires later.
(3) The Highway Authority shall, after all such objections or suggestions have been considered or heard, as the case may be, and after such further inquiry, if any, as it thinks necessary, forward to the State Government a copy of the record of its proceedings held by it together with a report setting forth its recommendations on the on the or suggestions.
(4) If, before the expiration of the time allowed by sub-section (2) for the filing or hearing of objections or suggestions, no objections: or suggestion has been made, the State Government shall proceeded at once to issue the notification under sub-section (1). If any such objection or suggestions has been made, the State Government shall consider the record and the report referred to in sub-section (3) and may either--
(a) abandon the proposal to issue the notification under sub-section (1), or
(b) issue the notification under sub-section (1) with such modifications, if any, as it thinks fit. (5) In considering the objections or suggestions, the decision of the State Government on the question, of issuing the notification under sub-section (1) shall be final and conclusive."
Trupti 8/10 901-wp9780-21group As reproduced above, the procedure is of fixing boundaries with notice and hearing objections. Section 8 of the Act of 1955 thereafter contemplates a map to be prepared and maintained. Section 8 reads thus :
"8. Map to be prepared and maintained .- Within two months from the date of publication of the notification under sub-section (1) of section 7 fixing the highway boundary, building line and control line with respect to any highway, the Highway Authority shall cause a map to be made of the area through which such highway passes and shall cause to be marked thereon the highway boundaries and building and control lines and any other particulars necessary for, the purposes of this Act and within one month from the date of making any alteration or addition thereto cause the said map to be corrected and such map with the date indicated thereon of the last time when the same shall have been so corrected shall be kept in the office of the Highway Authority. Such map, which shall bear the seal of the Highway Authority, shall be open to inspection. Copies of such map shall also be kept for inspector at such other places as may be prescribed".
Therefore, the definition of 'highway' is not to be seen in isolation and it only provides a guidance as to how the boundaries have been fixed and map has to be prepared under Sections 7 and 8 of the Act of 1955.
5. In none of the cases before us, the record of the exercise covered under Sections 7 and 8 of the Act of 1955 is placed before us. It is sought to be contended on behalf of the State that contemporaneous record in the form of village map and survey reports would indicate the Trupti 9/10 901-wp9780-21group area. However, once a legislation specially covering the subject matter lays down a particular methodology to be followed for fixing boundaries, that should be a primary evidence of what is to be considered as a highway.
6. Failure of the Respondents to prepare these boundaries and maps cannot be to the prejudice of the Petitioners. If the contention of the Respondents based on the Act of 1955 is to be accepted, the scheme must be followed in entirety. In view of the failure of the Respondents to follow the provisions of the Act of 1955, how the Respondents can seek benefit of the definition is a question that the Respondents will have to answer. Section 15 of the Act of 1955 is also sought to be brought to our notice. It is an indicative of the fact that if any land is required by the Highway Authorities power to acquire the land.
7. Prima facie, we do not find any specific provision under the Act of 1955 which states that whatever is defined under Section 2 (h) (i) automatically vests in the State that too without any exercise carried out under Sections 7 and 8 of the Act of 1955. An explanation will have to be called for from the concerned State Authorities as to why the actions under Sections 7 and 8 of the Act of 1955 was not taken if not in the past or at least before handing over the State Highway to the National Highway.
Trupti
10/10 901-wp9780-21group
8. Considering the fact that this failure is also likely to be prejudicial to the public exchequer, we direct that the matter be placed before the Principal Secretary, Public Works Department, who will call for a report from the concerned officers of the Highway Authorities under the Act of 1955, who were under duty to take steps under Sections 7 and 8 of the Act of 1955 and because of their failure this litigation has arisen. Thereafter, the Principal Secretary, Public Works Department either through himself or an affidavit vetted by him will place an explanation on record.
9. Stand over to 18 November 2022.
10. Registry will send a copy of this order to the Principal Secretary, Public Works Department for his perusal and reference.
11. The learned AGP states that the office of the Government Pleader will ensure that a copy of this order is placed before the Principal Secretary, Public Works Department directly for his perusal.
12. Ad-interim order, if any, granted earlier to continue till the next date.
( SHARMILA U. DESHMUKH, J. ) ( NITIN JAMDAR, J. ) Trupti