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Allahabad HC dismisses petition against NHAI notice for encroachment removal

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The Allahabad High Court has dismissed the petition challenging the notice issued to the petitioner by the National Highways Authority of India.

The Division Bench of Justice Manoj Kumar Gupta and Justice Sameer Jain passed this order while hearing a petition filed by Ajay Mishra.

The writ petition has been filed praying for quashing of notice dated 02.06.2022 issued by the Project Director, National Highway Authority of India, Kanpur in purported exercise of power under section 26 of Control of National Highways (Land and Traffic), Act 2002.

The notice records that the petitioner has encroached over a certain portion of National Highway no 2 which is causing hindrance in free movement of traffic, and consequently there are chances of accidents. The petitioner has been called upon to remove the encroachments within three days, failing which proceedings for removal will be initiated under the provisions of National Highways Act, 1956.

The counsel for the petitioner vehemently submitted that impugned notice is contrary to the procedural requirements of Section 26 of the Control of National Highways (Land and Traffic), Act 2002, inasmuch as, it does not fix time and place for hearing the representation.

He further submitted that the notice is not in proforma prescribed under Schedule III of the Highways Administration Rules, 2004 in respect of notices to be issued under Section 26 (2) of the Act.

The counsel for the petitioner also submitted that since the petitioner is sought to be declared as an encroacher, therefore, the respondents do not intend to pay compensation to the petitioner for the subject land, thereby seriously prejudicing the right of the petitioner.

On the other hand, Pranjal Mehrotra, counsel appearing on behalf of respondent no1 (Project Director, NHAI, Kanpur) submitted that the encroachment in question is over land which has been acquired by National Highways Authority of India under the provisions of National Highways Act, 1956.

He further submitted that an award has been made in respect of the said land in favour of the petitioner. He was duly intimated about the same by District Magistrate, Kaushambi by notice dated 05.09.2021.

It is urged that in such circumstances, the arguments advanced are technical in nature and the petitioner has no right or title in the disputed land or the constructions existing over it.

The Court said that it is true that under Section 26 (3) of Control of National Highways (Land and Traffic), Act 2002, before making summary eviction, a place and time of hearing of representation has to be fixed, which is missing in the impugned notice. However, since it is an admitted fact that the subject land and constructions had been acquired and award also made, therefore, we are of the considered opinion that no prejudice has been caused to the petitioner on account of respondent having not been fixed time for hearing of the representation.

When the Court asked the counsel for the petitioner, as to what is the defence of the petitioner, he submitted that there is likelihood of the petitioner not being paid compensation, having been declared an encroacher. The apprehension expressed is unfounded as the petitioner himself admits that the respondents have already made an award of the acquired land in his favour and proceedings for enhancement, at the behest of petitioner, are pending. In the above backdrop, even if the date and time for hearing the objection was not specified, the result remains the same.

“Consequently, we do not find it a fit case for interference in exercise of power under Article 226 of the Constitution, as the subject land is urgently required for widening of national highway to prevent accidents,” the Court observed while dismissing the petition.

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