WRIT PETITION FILED IN ANDHRA PRADESH HIGH COURT TO DECLARE THE ACTION OF RESPONDENT ARBITRAY AND ILLEGAL
Andhra Pradesh High Court – Amravati
NAGAVANI FILING STATION vs THE STATE OF ANDHRA PRADESH
BENCH – HONOURABLE SMT. JUSTICE V. SUJATHA
WRIT PETITION No. 6026 of 2023
DATE OF JUDGEMENT – 12 MAY 2023
FACTS
The present writ petition came to be filed under Article 226 of the Constitution of India seeking the to issue an order in the nature of WRIT OF MANDAMUS declaring the action of the Respondent No.6 (The Executive Engineer (R AND B) AND Highway Administrator) in issuing impugned letter dated 22.02.2023, by highhandedly directing the Respondent Authorities for the removal of the petitioners Filling Station/Petrol Bunk in total located in an extent of 6950 sq.feet situated at the right side bank of Sarvepally Canal, in Nellore Town, SPSR Nellore District, without there being any kind of obstruction or interruption caused by the petitioners Filling Station/Petrol Bunk to the Right of Way of NH 67 as illegal, arbitrary, discriminatory, against Principles of Natural Justice as well as violative of Articles 14, 21 and 300A of the Constitution of India and consequently set aside the impugned, dated 22.02.2023 issued by the 6th Respondent.
The petitioner, along with one Sri. D. Sugunakar Reddy are running a Petrol Bunk under the name and style of M/s. Nagavani Filling Station. The said filling station was established in an extent of 6950 sq. feet, situated at the right-side bank of Sarvepally Canal in Nellore Town, Nellore District. The schedule property was leased out by the Government in the year 1964 in favour of the 8th respondent (M/s. Indian Oil Corporation Limited) and the same was extended from time to time.
The Ministry of Road Transport and Highways sanctioned works pertaining to constructions of two-lane major bridge across Penna River at Km.739.234 of NH-67 including approaches parallel to existing two-lane bridge in SPS Nellore District in the State of Andhra Pradesh through EPC Contract under Annual Plan 2021-22. Subsequently, the 6th respondent issued impugned letter dated 2.02.2023 directing the petitioner to clear the site as the petrol bunk is falling in the approaches of subject work, entrusted to the Executive Engineer (R&B) and requested to clear it in order to execute the above subject work i.e., construction of two-lane major bridge across Penna River. Challenging which, the present writ petition was filed.
The learned Government Pleader for Roads and Buildings has filed a detailed counter stating that the petitioner’s petrol bunk named as M/s. Nagavani Filling Station (IOCL Dealers) is located in Nellore Bit-I village, and falls partly in NH-67 Road land and partly in canal poramboke land. Out of total extent of 586.276 sq.mts of this Petrol Bunk, 285.814 sq.mts is covered under NH-67 Right of Way (ROW) and the remaining extent of 300.462 sq. mts is on Canal poramboke land. It is further stated that the petitioner is running the petrol bunk without obtaining access permission from the National Highways epartment, which is mandatory as per “The Control of National Highways (Land and Traffic Act). 2002”. Also, on enquiry with Water resources Department, the Executive Engineer, Nellore Central Division has addressed a letter to the petitioner dated 25.10.2021 to pay the arrears of lease amount Rs.59,29,362/- for a period of 21 years from 2000 to 2021 and vacate the said premises, as canal modernization work is under progress.
It is further stated that the statement of the petitioner i.e., the Lease being extended from time to time by the government is not correct. The Superintending Engineer, Irrigation Circle, Nellore has informed that no Lease is in force by the Water resources department with IOCL or with any individual Firm or person for the petrol bunk located in Canal Poramboke land in Nellore village and also informed that their department has no objection for the Highway bridge project. It has also been stated that 48% of the petitioner’s petrol bunk is falling in NH-67 road land, which was obstructing the ongoing Highway project and it is required to be removed to the encroachment portion of NH land for widening and this stretch was identified as accident-prone Zone by the “District Road Safety Committee” in which removal of this Petrol bunk is also included.
It is further submitted that the Ministry of Road Transport & Highways, New Delhi has sanctioned the work “Construction of Two Lane Major Bridge across Penna River at Km.739.234 of NH-67 including approaches parallel to existing 2 lane bridge in SPS Nellore District in the State of Andhra Pradesh through EPC contract under Annual Plan 2021-22” and appointed Revenue Divisional Officer, Nellore as Competent Authority of Land Acquisition (CALA) for the subject work vide Notification under section 3(a) of NH Act, and was published in Gazette of India. Thereafter, the Land Acquisition procedure was strictly followed as per National Highways Act 1956 and accordingly notification under Section 3A of NG Act, was published on 15.02.2022 in the “Andhra Prabha” Telugu daily and “The Hindu” English daily dated 09.03.2022, calling for any objections from the interested persons before the competent authority i.e., Revenue Divisional Officer, Nellore within 21 days from the date of publications in news Papers as per 3C of NH Act. In spite of the same, the petitioner has failed to submit any objections thereafter.
Thereafter, a notification under Section 3D of NH Act, dated 08.09.2022 was also published in the Official Gazette, the land specified in the said schedule shall vest absolutely in the Central Government, free from all encumbrances. Subsequently, CALA has published notification under section 3G(3) of NH Act 1956 in two local newspapers i.e., Andhra Prabha Telugu Daily and the Deccan Chronicle English Daily on 01.10.2022, calling the persons whose lands were proposed for acquisition, to attend for award enquiry on 10.10.2022, before CALA and Revenue Divisional officer, Nellore dated 06.01.2023, duly following the Land Acquisition procedure as per NH Act.
It is further stated that the above project includes Construction of two new Bridges, one is Major Bridge and the other is a Minor and also includes formation of new approach roads for improving the Highway geometrics at both ends of these structures, which is very important for highway traffic entering and leaving the Nellore city and also from road safety point of view. Along with the counter, the letter dated 14.04.2023 has also been filed wherein the Superintending Engineer, Irrigation Circle, Nellore has given No Objection for the extent of 300.462 sq.mts which is on the Canal poramboke land. But, however, only because of the land occupied by the petitioner in 285.814 sq.mts, which is covered under NH-67, the respondents are unable to proceed further with the said project, which is seriously objected by the counsel for the petitioner.
JUDGEMENT
This Court feels it appropriate to order for a survey as follows:
- The respondents, with the assistance of the Mandal Surveyor, shall conduct a survey to demarcate the road margins in survey No.95 in an extent of 6950 sq. feet, situated at the right side bank of Sarvepally Canal in Nellore Town, SPSR Nellore District. This survey shall be conducted in the presence of the petitioner or their representatives and also in the presence of the respondent No.8 along with the Superintending Engineer, Irrigation Circle, Nellore has given No Objection for the extent of 300.462 sq. mts which is on the Canal poramboke land.
2. For the purpose of enabling these persons to be present at the time of the survey, notices shall be given to the petitioner, the 8th respondent and as well as the Superintending Engineer, Irrigation Circle, Nellore.
3. After the survey is conducted, if it is found, that the petitioner has encroached theroad margin, it would be open to the respondents to take appropriate action in accordance with law. This survey shall be completed within a period of six weeks from today.
4. Till such survey is completed, the respondents shall not interfere with the petitioner’s possession over the subject land, without following due process of law.
Accordingly, with the above directions, this Writ Petition was disposed of.
JUDGEMENT REVIEWED BY HARSHIT JAIN
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