Himachal Pradesh High Court
Mohinder Paul Sharma vs State Of Hp Through Principal on 4 May, 2022
Bench: Sabina, Satyen Vaidya
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 4th DAY OF MAY, 2022
BEFORE
.
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION No. 2689 OF 2022
Between:-
MOHINDER PAUL SHARMA,
S/O LATE SH. SITA RAM SHARMA,
AGE 59 YEARS RESIDENT OF
VILLAGE DABROG POST OFFICE
SARKAGHAT DISTRICT MADI, H.P.
OCCUPATION RETIRED GOVERNMENT
EMPLOYEE.
....PETITIONER
(BY SH. MOHIT THAKUR, ADVOCATE)
AND
1. STATE OF HP THROUGH PRINCIPAL
SECRETARY HPPWD, GOVERNMENT
OF HIMACHAL PRADESH.
2. EXECUTIVE ENGINEER, HPPWD,
SARKAGHAT, DISTRICT MANDI,
HP
3. ASSISTANT ENGINEER HPPWD,
SUB DIVISION SARKAGHAT,
DISTRICT MANDI, H.P.
4. DEPUTY COMMISSIONER, MANDI,
H.P.
5. SDM SARKAGHAT, DISTRICT
MANDI, H.P.
6. INDER PAL SINGH, KANUNGO,
S/O PARENTAGE NOT KNOWN
C/O SDM SARKAGHAT,
DISTRICT MANDI, H.P.
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7. RAJ KUMAR SAINI, S/O
PARENTAGE NOT KNOW AT PRESENT
ASSISTANT ENGINEER, B&R SUB
DIVISION HPPWD SARKAGHAT,
.
DISTRICT MANDI HP.
....RESPONDENTS
(MR. ASHWANI SHARMA, ADDITIONAL ADVOCATE
GENERAL FOR R-1 TO 5,).
This petition coming on for orders this day, Hon'ble
Mr. Justice Satyen Vaidya passed the following:
ORDER
Heard.
By way of instant petition, petitioner has prayed for following substantive reliefs:
"i) To issue writ in the nature of mandamus directing the respondents to strictly abide by the provisions as contain din Section 4 of the Act (Annexure P-1) with regard to preparation of Road Infrastructure Map for the road Dabrog Yoh Bakrata Gadhyani Bhuvan Badar Road in Tehsil Sarkaghat after proper demarcation in the presence of all affected parties in a time bound manner clearly depicting the boundaries and landmarks of the road.
ii) The demolition of the house of the petitioner as carried out by the respondents in the absence of Map as required under Section 4 (1) ::: Downloaded on - 05/05/2022 20:05:09 :::CIS -3- & (6) and that too on the basis of an illegal, false demarcation report Annexure P-4 bypassing the prescribed procedure as .
contained in Annexure P-1 may be held to be illegal as beyond the provisions of the applicable statute (Annexure P-1) and being violative of the rights of the petitioner under the Constitution.
iii) The respondents may immediately be directed to consider the objections as raised by the petitioner by way of Annexures P-5 and P-6 against the illegal demarcation report (Annexure P-4) and further proper fresh demarcation in the presence of the parties may be allowed to be conducted on the spot leading to the preparation of map as referred to above.
Annexure P-4 may be quashed and set aside being illegal and violative of Rules of natural justice.
iv) That the respondent No.1 may be directed to institute and conduct a proper enquiry that why till date the road infrastructure map of the road d in question was not prepared and under what circumstances the illegal demolition drive on the basis of an unconfirmed demarcation report was conducted against the petitioner in violation of law and the rules of natural justice and further suitable action may also be taken against the erring officers for violating the law.
::: Downloaded on - 05/05/2022 20:05:09 :::CIS -4-v) The petitioner may also be suitably compensated for clear cut violation of the statutory provisions as contained in Annexure .
P-1 whereby the house of the petitioner has been illegally demolished which was located on his own land and that too by way of bypassing all rules of natural justice and statutory provisions and even without passing a formal order of demolition.
vi) The respondents may be directed that
encroachment on the road may not be
removed selectively but action may be taken against all who have encroached on the road in question."
2. The case of petitioner is that he has constructed a house in Khasra Nos. 240 and 242, which is located by the side of the road known as "Dabrog Yoh Bakrata Gadhyani Bhuvani Badar Road" (for short 'road'). It is alleged that respondents No. 1 to 3 under Himachal Pradesh Road Infrastructure Construction Act, 2002 (for short the 'Act') are mandated to prepare road infrastructure map of road infrastructure in every Division of HP PWD in accordance with Section 4 of the Act, but no road infrastructure map has been prepared for the road. As per petitioner, the violation of Section 3 of the Act is mandatorily to be determined with reference to the road infrastructure map. It is contended that respondents No. 1 to 3 ::: Downloaded on - 05/05/2022 20:05:09 :::CIS -5- in violation of such dictum of the Act issued notice dated 18.6.2021 (Annexure P-2) to the petitioner, which was replied .
and objected to by the petitioner on 22.6.2021 but his reply/objection was not considered and house of the petitioner on aforesaid land was demolished after conducting an illegal proceedings of demarcation dated 9.8.2021.
3. Petitioner has also taken an exception to the fact that he has represented to the respondents No. 4 and 5 against the demarcation conducted on 9.8.2021, but no action has been taken thereon.
4. Sub-section (6) of Section 4 of the Act reads as under:-
"The occurrence of all prohibited activities within the jurisdiction of the prescribed/confirmatory authority may be determined with reference to this road infrastructure map of the concerned vision of Himachal Pradesh Public Works Department."
5. A plain reading of aforesaid provision makes it clear that prohibited activities are not to be mandatorily determined with reference to the road infrastructure map as the term used is "may" and not "shall", thus, there is no strength in the contention of petitioner that the existence of road infrastructure ::: Downloaded on - 05/05/2022 20:05:09 :::CIS -6- map is a sign-qua-non for initiation of any action under the Act against prohibited activities.
.
6. Petitioner was issued a notice dated 18.6.2021 under sub-Section (3) of Section 6 of the Act. It was clearly notified by way of such notice that petitioner had raised unauthorized construction on road infrastructure and the petitioner was directed to remove the said construction within three days, failing which, the needful was proposed to be done by the department at the risk and costs of the petitioner. The notice so issued cannot be faulted, on the ground that there was no road infrastructure map, for the reasons detailed hereinabove.
7. Section 8 of the Act provided a remedy to the petitioner to file objections against the notice dated 18.6.2021 to the Confirmatory Authority within three days from the date of order. On such objections being filed, the Confirmatory Authority was under the mandate to pass the orders, after affording the objector with an opportunity of being heard. The petitioner instead of availing the remedy under Section 8 of the Act, presented a reply to the prescribed authority itself.
Therefore, the petitioner cannot be allowed to raise any ::: Downloaded on - 05/05/2022 20:05:09 :::CIS -7- grievance against the notice dated 18.6.2021 and consequent demolition effected by the authorities.
.
8. As regard, the grievance of petitioner in respect of illegality in demarcation, the petitioner again cannot be allowed to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, as the order of demarcation is appealable under H.P. Land Revenue Act.
9. In light of above discussion, petitioner has failed to make out any case for interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India and the petition is accordingly dismissed.
Pending applications, if any, also stand disposed of.
(Sabina)
Judge
(Satyen Vaidya)
4th May, 2022 Judge
(kck)
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