- (1.) Heard Mr. Shashi Nandan, learned Senior Advocate, assisted by Mr. Rakesh Kumar Singh, Advocate, for the petitioners and Mr. Pranjal Mehrotra, learned counsel for respondent nos. 2 and 3.
(2.) This writ petition challenges the notice dated 27 October 2016 and the order dated 12 November 2016 issued by respondent nos. 2 and 3, respectively, in exercise of the powers under Section 26 of the Control of National Highways (Land and Traffic) Act, 2002 (for short, "Act, 2002"). In view of the notice and the order, the petitioners are expected to remove the alleged encroachment made by them on the highway land/highway forming part of NH-24 within the time stipulated therein. When the notice dated 27 October 2016 was served on the petitioners, it granted them time to make a representation within 3 days from the date of service of notice. The petitioners accordingly made a representation dated 3 November 2016. In the representation, the petitioners requested the concerned authority [Project Director, National Highways Authority of India (NHAI)] to conduct a joint measurement of the land to verify their claim that their shops are not either on highway land or on the highway, as stated in the notice. This request of the petitioners, according to learned Senior Counsel, was not acceded to, and the concerned authority of the Highway administration issued the order dated 12 November 2016, asking them to remove their shops within five days from the date of service of the order. Though, learned Senior Counsel submits that the order dated 12 November 2016 is also a notice under Section 26 (2) of the Act, 2002, Mr. Pranjal Mehrotra, counsel for NHAI submits that this is, in fact, an order under sub-section (6) of Section 26 of the Act, 2002. He submits that a notice was issued on 27 October 2016 under sub-section (2) of Section 26 and, therefore, the question of issuing a notice again under the said provision does not arise. The mention to Section 26 (2) in the order dated 12 November 2016, he submitted, indicates that this order was passed in pursuance of the notice under Section 26 (2) of the Act, 2002. We do not wish to enter into this controversy having regard to the overall facts and circumstances of the case as also reply of the petitioners dated 3 November 2016 to the notice dated 27 October 2016. In other words, we are not expressing any opinion on whether the order dated 12 November 2016 is under Section 26 (2) or under Section 26 (6) of the Act, 2002, in view of the submission made by Mr. Shashi Nandan, learned Senior Counsel.
(3.) Learned Senior Counsel for the petitioners made a grievance that NHAI ought to have carried out measurement/demarcation of the land, as requested by them in their representation, to ascertain whether petitioners' shops are on the highway land/on highway. He submitted, on instructions, that the petitioners' shops are not either on the highway land or on the highway. In view of this submission, we made a suggestion to learned counsel for the respondent-NHAI, whether it would be possible for them to measure/demarcate the highway land in the presence of the petitioners within time frame. He responded in the affirmative. Learned Senior Counsel for the petitioners also has agreed for carrying out measurement/demarcation in the presence of the petitioners, as requested by them in their representation dated 3 November 2016 and till then, he submits, the petitioners may be protected. In the circumstances, we dispose of this writ petition by the following order: (1) The respondent - NHAI shall carry out measurement/demarcation of the portion of the National Highway and the land appurtenant thereto where the shops are located, in the presence of the petitioners, after giving them seven days' notice. After the measurement/demarcation, if it is found that the shops of the petitioners are on highway land/on highway, it shall be open for them to remove the encroachment, may be after giving a reasonable time to the petitioners to remove their effects, as stated in the order dated 12 November 2016, if necessary, with police aid. (2) The removal of the shops, however, shall not preclude the petitioners from claiming either compensation or alternative land or taking any other remedy that they may be entitled for, in accordance with law. This observation shall not be construed to mean that this Court has recognized the rights of the petitioners over the portion of the land where the shops are situated. .;