Bombay High Court
Suchita Suresh Mohite vs Mangaon Nagar Panchayat Mangaon And Ors on 18 December, 2019
Author: R.I.Chagla
Bench: S. C. Dharmadhikari, R.I.Chagla
912-PIL.126.14+.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO.126 OF 2014
Vaibhav Deepak Sabale and Anr. ... Petitioners
versus
The State of Maharashtra and Ors. ... Respondents
WITH
IA Nos.91/2019, 71/2019, 70/2019, 69/2019, 68/2019,
67/2019, 66/2019, 65/2019. 64/2019, 63/2019, 62/2019,
61/2019, 60/2019, 59/2019, 58/2019, 57/2019, 56/2019,
55/2019, 54/2019, 53/2019, 52/2019, 50/2019, 51/2019,
49/2019, 48/2019, 47/2019, 46/2019, 45/2019, 44/2019,
43/2019, 42/2019, 41/2019, 40/2019, 39/2019, 38/2019,
37/2019, 36/2019, 35/2019, 33/2019, 32/2019, 31/2019,
30/2019, 29/2019, 28/2019, 27/2019, 26/2019, 25/2019,
24/2019, 23/2019, 22/2019, 21/2019, 20/2019, 19/2019,
18/2019, 17/2019, 15/2019, 16/2019, 13/2019, 14/2019,
12/2019, 10/2019, 11/2019, 9/2019, 8/2019, 6/2019, 5/2019,
4/2019, 3/2019, 2/2019, 34/2019, 1/2019, 7/2019, 92/2019,
72/2019, 73/2019, 74/2019, 75/2019, 76/2019, 77/2019,
78/2019, 79/2019, 80/2019, 81/2019, 82/2019, 83/2019,
84/2019, 85/2019, 86/2019, 87/2019, 88/2019, 89/2019,
90/2019 and 93 of 2019
WITH
CIVIL APPLICATION NO.66 OF 2019
IN
PUBLIC INTEREST LITIGATION NO.126 OF 2014
WITH
WRIT PETITION NO.10252 OF 2019
WITH
WRIT PETITION NO.10256 OF 2019
WITH
WRIT PETITION NO.10264 OF 2019
WITH
WRIT PETITION NO.10266 OF 2019
WITH
WRIT PETITION NO.10268 OF 2019
WITH
WRIT PETITION NO.10267 OF 2019
WITH
WRIT PETITION NO.10274 OF 2019
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WITH
WRIT PETITION NO.10275 OF 2019
WITH
WRIT PETITION NO.10288 OF 2019
WITH
WRIT PETITION NO.10588 OF 2019
WITH
WRIT PETITION NO.10589 OF 2019
WITH
WRIT PETITION NO.10590 OF 2019
WITH
WRIT PETITION NO.10591 OF 2019
WITH
WRIT PETITION NO.10592 OF 2019
WITH
WRIT PETITION NO.11419 OF 2019
WITH
WRIT PETITION NO.11511 OF 2019
WITH
WRIT PETITION (ST) NO.26004 OF 2019
WITH
WRIT PETITION (ST) NO.26005 OF 2019
WITH
WRIT PETITION (ST) NO.26007 OF 2019
WITH
WRIT PETITION (ST) NO.26044 OF 2019
WITH
WRIT PETITION (ST) NO.26045 OF 2019
WITH
WRIT PETITION (ST) NO.26012 OF 2019
WITH
WRIT PETITION (ST) NO.26179 OF 2019
WITH
WRIT PETITION (ST) NO.26264 OF 2019
WITH
WRIT PETITION (ST) NO.26388 OF 2019
WITH
WRIT PETITION (ST) NO.26550 OF 2019
WITH
WRIT PETITION (ST) NO.26650 OF 2019
WITH
WRIT PETITION (ST) NO.26651 OF 2019
WITH
WRIT PETITION (ST) NO.26738 OF 2019
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WITH
WRIT PETITION (ST) NO.26777 OF 2019
WITH
WRIT PETITION (ST) NO.26951 OF 2019
WITH
WRIT PETITION (ST) NO.26972 OF 2019
Mr.Uday P. Warunjikar for the Petitioners in PIL/126/14.
Mr.P.P.Kakade, Government Pleader with Mr.B.V.Samant
AGP for State in all matters.
Mr Abhijit Tambe i/b Mr.P.M.Arjunwadkar for Respondent
No.5. in PIL/126/14 and for Respondent No.2 in WP/10588/
2019 and WP/10590/19.
Mr C.S.Hiranandani i/b Mr.G.S.Hiranandani i/b Mr.C.G.
Gavnekar for R No.4 in PIL/126/14.
Mr.P.D.Dalvi for the Petitioners in WP/10588/19, WP/
10589/2019, WP/10590/2019, WP/10591/2019, WP/
10592/2019 and WPST/26102/2019.
S.C.Daswadikar, for the Intervenor in IA/1/19 in PIL/
126/2014.
Mr.Niranjan Mogre a/w Ms.Pooja Joshi for the Applicant in
IA/67/19 in WPST/2868/19.
Mr.Sanjeev Kadam a/w Mr.Ramdas Hakepatil in IA/68/19
in PIL/126/14.
Ms.Jai Kanade a/w Ms.Shivani Samel, Shruti Tulpule for
the Applicants/Petitioners in IA/2/19, IA/3/19, IA/5/19 in
WP/10256/19, WP/10252/19 and WP/10264/19.
Mr.Shubro Dey, Kachan Singh i/b Avinash Lalwani for the
Applicant in IA/17/19 in PIL/126/14.
Mr Sumit Kothari, Aditya P. Shirke for the Applicants in
IA Nos.41/19, 42/19, 37/19, 39/19, 38/19, 57/19, 58/19, 44/19,
47/19, 36/19, 45/19, 35/19, 46/19, 66/19, 70/19, 71/19, 72/19
and 90/19 and for the Petitioners in WPST Nos.26021/19,
26052/19, 26053/19, 26044/19, 26045/19, 26179/19, 26264/19
and 26550/19.
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Mr.Yogesh Dandekar for the Applicant in IA/48/19 & IA/59/19.
Mr.Rakesh L. Singh i/b M.V.Kini & Co. for National Highways
Authority of India.
Mr.Ruturaj N. Deshmukh i/b Mr.Pradeep M. Patil, Mr.Pravin Gole
for the Applicant in IA/65/19 and IA/92/19.
Mr.Rajesh S. Datar for the Petitioner in WP/11419/19.
Mr.Rahul More for the Applicant in IA/74/19.
Mr.M.D.Modgei for the Applicant in IA/72/19 & 2/2019.
Mr.Satish P. Nagvekar a/w Ms.Shraddha S. Nagvekar i/b
Mr.Ashish T. Suryavanshi, Mr.Sanchit S. Nagvekar for the
Applicant in IA/93/19.
Shri S.H.Divekar Nayab Tahasildar Mangaon. Mr.P.P. Gaikwad,
Sub. Divisional Engineer, National Highway, District Pen, present.
CORAM :- S. C. DHARMADHIKARI &
R.I.CHAGLA, JJ.
DATE :- DECEMBER 18, 2019 P.C. :-
1. On 8th November, 2019, we had passed a detailed order. In that order, the attention of the respondents was invited to the National Highways Act, 1956 and the Control of National Highways (Land and Traffic) Act, 2002.
2. We are sorry to note from the affidavit filed in this petition, post the order of 8th November, 2019, that the officers are where they are and they will be for obvious reasons.Page 4 of 13
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3. The first affidavit that is filed post 8th November, 2019 is of the Executive Engineer, National Highway Division, Pen, Public works Department, Government of Maharashtra. This affidavit is filed on behalf of respondent no.7 and though it says that there is a National Highway passing through Mangaon Nagar Panchayat area, known as National Highway No. 66 admeasuring approximately 4.38 kilometers in length, portion of which is divided as urban and rural area, still, there is a doubt in his mind, which prevents him from taking comprehensive action. The doubt in his mind is that the exact boundaries of the National Highway passing through Mangaon Nagar Panchayat area have not been fixed. In the absence of fixed boundaries, the extent of encroachment on the National Highway is not known. Presently, the officer's understanding is that there is a metalled road and on that road, if there is any unauthorised movement of people and parking of vehicles, then, that is considered to be an encroachment and promptly removed. If just adjacent to the tar/ metalled road, there are hawkers selling their articles and goods, they are removed, the goods of the shopkeepers placed on the road are removed and the vehicles of the customers are also taken or towed away from the area so as to ensure smooth flow of traffic.
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4. The difficulty of this officer, as projected by Mr.Samant-AGP, is that the local population does not understand the difference between a National Highway and a town road. They consider National Highway No.66 passing through Nagar Panchayat area as a town road or a local road. Therefore, they are in the habit of coming on to this road frequently and occupying portions of it.
5. If the National Highways Act, 1956 was present to the mind of the authority filing this affidavit, he would have known that this Act applies to a situation where there is a declaration contemplated of certain highways to be the National Highways and for matters connected therewith. We had already invited the attention of the State to sub-section (1) of section 2 of this Act, which says that each of the highways specified in the Schedule is hereby declared to be a National Highway. It is not disputed before us that in this Schedule, there is indeed a reference to this road and it is a National Highway as under:-
New Description of National Highways Old NH SI.No. NH No. (NHs) No. 198 66 The highway starting from its junction 17, 47, with NH-48 near panvel connecting 204 Indapur, Mahad, Rajapur, Kudal in the State of Maharashtra, Panaji, Margao in the State of Goa, Karwar, Honavar, Udupi, Mangalore in the state of Karnataka, Kasaragod, Kannur, Ponnani, Edappalli, Ernakulam, Thiruvananthapuram in the State of Kerala and terminating at its junction with NH-44 near Kanniyakumari in the State of Tamil Nadu.Page 6 of 13
J.V.Salunke, PS ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 20:57:14 ::: 912-PIL.126.14+.doc It is, therefore, declared as a National Highway.
6. Now, insofar as the National Highway is concerned, there are adequate provisions in both the enactments and it is, to our mind, surprising that this officer, who files the affidavits, knows that the National Highways vest in the Union. The highways include all lands appurtenant thereto, whether demarcated or not, all bridges, culverts, tunnels, causeways, carriageways and other structures constructed on or across such highways and all fences, trees, posts and boundary, furlong and milestones of such highways or any land appurtenant to such highways. The officer, therefore, should have immediately got in touch with the National Highways Authority of India, its regional office and the superiors, if the regional office does not have the necessary material to ascertain and satisfy himself about the width of this National Highway if at all there was any doubt. If he says that the concerned road is a National Highway, then, he should not have entertained any doubt. Yet, he entertains a doubt and that is, to our mind, surprising and shocking. We do not know whether this affidavit is filed to assist the court or to mislead it. We also do not find any anxiety to remove encroachers and obstructionists on this National Highway and such vague affidavits are filed only to assist them to continue their illegal and unauthorised activities. Page 7 of 13 J.V.Salunke, PS ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 20:57:14 ::: 912-PIL.126.14+.doc Therefore, the State Government may decide to undertake any measurement through the Revenue and Public Works Department officers, but the measurement should result in preparation of a map, decisive and conclusive, particularly in regard to the length and width of the National Highway. We would go by the Schedule to the National Highways Act, 1956 and the materials found in the allied Acts. We would go by the records maintained in the ordinary and normal course of business about all National Highways by the National Highways Authority of India. We do not expect any assistance in this regard from the State officials.
7. It is precisely for that reason that this matter is pending and it is for this reason that those knowing fully well the consequences of their acts are taking chances by moving interim applications in this PIL. They know that their fate is virtually sealed. However, inevitable can be delayed and postponed. In the meanwhile, if the officers are not sure of themselves, they will keep on postponing the execution and enforcement of even binding orders.
8. We are compelled to observe as above simply because even the Collector of District Raigad files an affidavit and says that the Tahsildar has submitted reports stating that non-agricultural and in some cases construction permissions have been given by Page 8 of 13 J.V.Salunke, PS ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 20:57:14 ::: 912-PIL.126.14+.doc Revenue Department prior to 26th June, 2015 when Nagar Panchayat, Mangaon has come into existence, for construction adjoining the National Highway No.66 within the limits of villages Nanore, Khandad, Utekhol and Mangaon within the jurisdiction of Mangaon Grampanchayat of the Raigad District. He refers to the non-agricultural permissions and consequent use of lands and identifies them to be 72 in number. They are situated near the National Highway. Such permissions are granted from the year 1990 to 2015.
9. The Collector seems to be oblivious of the mandate of the National Highways Act, 1956 and is also unaware of the competence of any local authority to grant such permissions when the land vests in the Central Government. When the Collector knows that this is a National Highway, then, why has he not, till date, issued directions to his subordinates to proceed against such constructions is not clarified to us. These acts of the locals have blessings of their political bosses and associates. However, the Collector should not be concerned about this and he must proceed to ignore all such interventions. If he has any problem in performing his official duty, he must candidly inform this court and thereafter, it will be for this court to ensure that no structure adjoining such National Highway remains in existence Page 9 of 13 J.V.Salunke, PS ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 20:57:14 ::: 912-PIL.126.14+.doc hereafter. Further, no local authority can grant any permission for any construction or conversion of user and he must leave the matter for we will interpret the law. If tomorrow we find from the scheme of the legislation that there is no power to grant permission once the National Highway vests in the Union and as defined in the law, then, the Collector will have to enforce and execute our orders. If the Collector does not desire that this court enlightens him further and finds him guilty of inaction and visits him with such consequences as are permissible in law, then, hereafter he should not file such vague affidavits. He should not join the subordinate Revenue officials in informing this court that National Highway No.66 is required to be measured insofar as its portion in Mangaon municipal area. The Collector informs us that this measurement work is under progress and will be completed shortly, after which, the correct boundaries of ribbon area will be placed on record. The Collector says that only when the measurement is done, he will identify the non-agricultural violations, if any, in ribbon area.
10. We would highly appreciate if Mr.Samant requests, on our behalf, the National Highways Authority of India to handover the certified true copies of all the relevant documents in their possession, on the basis of which, the said portion was declared as Page 10 of 13 J.V.Salunke, PS ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 20:57:14 ::: 912-PIL.126.14+.doc a National Highway and that road which passes through Mangaon municipal area is of the same width as has been widened up to the limits of that municipal area. We want the Collector, through Mr.Samant, to be enlightened and made aware of the fact that the National Highway passing through this Mangaon area should be of the same width as it is before the said municipal limits commence. If on either sides there are two or three lanes before this municipal area, then, through this municipal area as well, we want these lanes to be maintained on either sides. Whether it is the Collector or the National Highways Authority of India, the necessary steps will have to be taken by them. It is only because of the persuasion of Mr.Samant that we are not imposing personal costs on the Collector as also the Executive Engineer Mr.Ratnakar K. Bamne although we find his affidavit to be hopelessly vague and containing misleading statements.
11. We remind all concerned about the observations of the Hon'ble Supreme Court in the case of M/s.International Tourist Corporation etc. etc. vs. State of Haryana and Ors. 1. At pages 779- 780, the Hon'ble Supreme Court holds as under:-
"10. ..... There cannot be the slightest doubt that the State of Haryana incurs considerable expenditure for the maintenance of roads and providing facilities for the transport of goods and passengers within the State of Haryana. The maintenance of highways other than the 1 AIR 1981 SC 774 Page 11 of 13 J.V.Salunke, PS ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 20:57:14 ::: 912-PIL.126.14+.doc National Highways is exclusively the responsibility of the State Government. While the maintenance of National Highways is the responsibility of the Union Government, under S. 5 of the National Highways Act, that very provision empowers the Central Government to direct that any function in relation to the development and maintenance of a National Highway shall also be exercisable by the concerned State Government. Sec. 6 further empowers the Central Government to give directions to the State Government as to the carrying out of the provisions of the Act and Sec. 8 authorises the Central Government to enter into an agreement with the State Government in relation to the development and maintenance of the whole or part of a National Highway situated within the State including a provision for the sharing of expenditure. Therefore, the State Government is not altogether devoid of responsibility in the matter of development and maintenance of a national highway, though the primary responsibility is that of the Union Government. It is under a statutory obligation to obey the directions given by the Central Government with respect to the development and maintenance of national highways and may enter into an agreement to share the expenditure. That part of the highway which is within a municipal area is excluded from the definition of a national highway and therefore, the responsibility for the development and maintenance of that part of the highway is certainly on the state Government and the Municipal Committee concerned. Since the development and maintenance of that part of the highway which is within a municipal area is equally important for the smooth flow of passengers and goods along the national highway it has to be said that in developing and maintaining the highway which is within a municipal area, the State Government is surely facilitating the flow of passengers and goods along the national highway. Apart from this, other facilities provided by the state Government along all highways including national highways, such as lighting, traffic control, amenities for passengers, halting places for buses and trucks are available for use by everyone including those travelling along the national highways. It cannot therefore, be said that the State Government confers no benefits and renders no service in connection with traffic moving along national highways and is, therefore, not entitled to levy a compensatory and regulatory tax on passengers and goods carried on national highways. We are satisfied that there is sufficient nexus between the tax and Page 12 of 13 J.V.Salunke, PS ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 20:57:14 ::: 912-PIL.126.14+.doc passengers and goods carried on national highways to justify the imposition."
12. Stand over to 16th January, 2020.
13. In our order of 8th November, 2019 and even during today's hearing, we did not permit the interveners to place before us their grievances with regard to the apprehended action simply because the affidavits placed on record by the respondents were of the nature referred above.
14. Writ Petition (ST) No. 26738 of 2019 is de-tagged from this group of matters. To be listed separately as per its turn. (R.I.CHAGLA, J.) (S.C.DHARMADHIKARI, J.) Page 13 of 13 J.V.Salunke, PS ::: Uploaded on - 20/12/2019 ::: Downloaded on - 20/12/2019 20:57:14 :::