(Abhay S. Oka and Augustine George Masih, JJ.)
Gyan Prakash ___________________________________ Petitioner;
v.
Union of India and Others _______________________ Respondent(s).
Writ Petition (C) No. 1272 of 2019, decided on May 21, 2025
The Order of the Court was delivered by
Abhay S. Oka, J.:—
1. A very important issue has been raised in this petition filed under Article 32 of the Constitution of India. In short, the issue is about the safety of our National Highways. It is pointed out in this petition, based on the report titled “Road Accidents in India – 2017”, that 53,181 persons were killed during the year 2017 on highways in India. Attention of the Court was invited to the Control of National Highways (Land and Traffic) Act, 2002 (for short, ‘the 2002 Act’) and the Highway Administration Rules, 2004 (for short, ‘the 2004 Rules’). The prayers made are very wide. Although there may be some limitations on the writ Court in granting some of the prayers, nevertheless, the issues raised are very important in the context of highway safety.
2. We have heard the petitioner appearing in person, Ms. Swati Ghildiyal, the learned counsel appointed as amicus curiae, Shri K M Nataraj, the learned Additional Solicitor General and Shri Rajiv Pratap Rudy, an intervenor, appearing in person, who is a Member of Parliament. Paragraph Nos. 1 to 7 of the order dated 20th February 2024, passed by this Court read thus:
“1. Heard the petitioner appearing in person and the learned counsel appearing for the respondents.
2. In our order dated 10th October, 2023, we had flagged the issue of implementation of the provisions of the Control of National Highways (Land and Traffic) Act, 2002 (for short “2002 Act”). The affidavits have been filed on record which only indicate that the various authorities, as contemplated by Section 3 of the 2002 Act have been constituted and/or appointed. There are very important functions entrusted to the Highway Administrations. One is of prevention of occupation of highway land (Section 24), removal of unauthorised occupation from highway (Section 26), recovery of cost of removal of unauthorized occupation and fine imposed (Section 27), to regulate right of access to highway (Section 28) and regulation of traffic on the highway when situation contemplated by sub-section 2 of Section 31 arises.
3. Firstly, we find that there is no machinery created to carry out survey of highways under the jurisdiction of the various Highway Administrations to ascertain whether there are unauthorized structures or unauthorized occupation of highway land. Unless survey is regularly carried out, the Highway Administrations will have no source of knowing whether there is any unauthorized occupation of highway land. Judicial notice will have to be taken of the fact that in different parts of India, there are unauthorized encroachments on highway land. Under Section 31(2) of the 2002 Act, it is provided that the Highway Authority must step in when highway becomes congested or unsafe for vehicular and pedestrian traffic.
4. There is no machinery provided to the citizens to complain about unauthorized occupation of the highway land, congestion or other situation contemplated by subsection 2 of Section 31 of the 2002 Act. There is no grievance redressal mechanism created for the benefit of the citizens. Unless such grievance redressal mechanism is developed and wide publicity is given to the existence of mechanism, the citizens will not have any opportunity to lodge complaints with the Highway Administrations. Moreover, by some method, periodical survey of the highways under the jurisdiction of Highway Administration has to be carried out with a view to ensure that the highways are kept free of encroachments.
5. After reading the affidavits of the Highway Administrations, one gets an impression that the machinery is available only on paper and there is no effective implementation of the provisions of the 2002 Act. We direct the Highways Administrations to come out with a scheme which will provide for regular inspection of the highways, for establishment of grievance redressal mechanism and for taking prompt action on the basis of the complaints.
6. After carrying out survey, the Highway Administrations will have to exercise the powers under Section 26 of removal of unauthorized occupation so that the highways are clear of encroachments.
7. We grant time of two months to the various Highway Administrations appointed in terms of Section 3 to report compliance. The role of the Government of India does not come to an end after appointing various Highways Administrations. It is the duty of the Government of India to ensure that the Highway Administrations function effectively and discharge their duties under the 2002 Act.”
Paragraph nos. 1 to 7 of the further order dated 30th April 2024 read thus:
“1. We have perused the affidavit dated 22nd April, 2024 filed by the Ministry of Road Transport & Highways, Government of India, reporting compliance with the directions contained in the order dated 20th February, 2024. Shri Gyan Prakash, petitioner-in-person, has many grievances to make about the implementation of the directions.
2. Before we go into the grievances, after perusing the afore- stated compliance affidavit, we propose to issue additional directions.
3. The letter dated 18th March, 2024 addressed by the Ministry of Road Transport & Highways, Government of India, records that the teams constituted as per the communication dated 18th March, 2020, will carry out frequent inspection of the National Highways for ascertaining existence of encroachments on the highways. Certain statistics is incorporated in Annexure A-5 to the compliance affidavit. Prima facie, we are not satisfied with the action taken as reflected from the said statistics when it comes to removal of encroachments on the highways as provided in Section 26 of the Control of National Highways (Land and Traffic) Act, 2002 (for short, “the 2002 Act”).
4. To test the stand taken in the compliance affidavit, we direct that a specific affidavit shall be filed placing on record the details of the inspections carried out on the National Highways and actions of removal of encroachments taken on the highways in the States of Assam, Gujarat, Karnataka, Maharashtra, Rajasthan, Tamil Nadu, Uttar Pradesh and West Bengal. We direct the Ministry of Road Transport & Highways to collect the data of (a) the inspections carried out by the inspection squads; and (b) action of removal of encroachments taken in these States up to 30th June, 2024, so that we will be able to issue further directions. A compliance affidavit on these aspects shall be filed by the concerned respondents by 26th July, 2024.
5. From the perusal of the chart at Annexure A-5 to the compliance affidavit, it appears that though notices have been issued right from April, 2023 as regards large number of encroachments on the highways, action of removal appears to have been taken in respect of few structures/occupancies. The Ministry of Road Transport & Highways will invite attention of the concerned States to this aspect. We also make it clear that wherever for taking action under Section 26 of the 2002 Act, assistance of the local Administration and local Police is required, the same shall be rendered by the Authorities of the State. The Ministry of Road Transport & Highways will forward a copy of this order to all the concerned Revenue and Police Authorities of the States.
6. As regards the paragraph 8 dealing with the non-implementation of the provisions incorporated in the 2002 Act by 2019 amendment, the learned ASG states that there is an inadvertent mistake in paragraph 46 of the affidavit. Shri Gyan Prakash, petitioner-in- person, points out that pursuant to the amendments made in the year 2019, rules were framed. But there is no reference to the rules in the affidavit. At this stage, the learned ASG clarifies that there was an amendment in the year 2019 to the Highways Administration Rules, 2004. We direct the Ministry of Road Transport & Highways to collect data regarding implementation of the Rules as amended in the year 2019 from all the States and file a better affidavit dealing with the compliance with the said Rules.
7. There are large number of issues involved in this Petition. We must record our appreciation for the persistent efforts made by the petitioner – Shri Gyan Prakash to ensure safety of our National Highways. However, we will need assistance of a member of the Bar. We, therefore, appoint Ms. Swati Ghildiyal, learned Advocate-on-Record, as Amicus Curiae to assist the Court. The Registry to provide soft copies of all the documents on record and pleadings to the learned Amicus Curiae. We request the learned Amicus Curiae to interact with the petitioner – Shri Gyan Prakash before the next date so that she can render effective assistance to the Court.”
Thereafter, on 27th August 2024, a direction was issued to the Ministry of Road Transport and Highways (for short, ‘MoRTH’) to constitute a proper team for carrying out frequent and regular inspections of all the National Highways. The order dated 27th August 2024 reads thus:
“Ms. Swati Ghildiyal, learned Amicus Curiae, has pointed out that a circular dated 18th March, 2024 has been issued by the Ministry of Road Transport & Highways, Government of India. Her concern is that if the encroachments on National Highways are to be prevented and removed, proper inspection teams must be constituted for regular inspection of Highways. She pointed out that the inspection frequency laid down in the Circular dated 18th March 2024 is the same as prescribed at the construction stage. This will not work.
Therefore, we direct the Ministry of Road Transport & Highways to constitute proper teams for frequent and regular inspection of all National Highways to ascertain whether there are encroachments. Each team shall be made responsible for a particular stretch of individual Highways. Secondly, a mechanism should be created to ensure that the Inspecting Teams, after finding encroachments, immediately report to the competent authority empowered to remove encroachment. The Ministry shall also develop a portal where citizens can lodge complaints about the encroachments on Highways. On the portal, citizens should be able to upload photographs and location details of the encroached portions. Moreover, a facility must be also created of a toll free number to report encroachments. Action taken reports based on the complaints shall also be uploaded on the portal. It is also necessary for the Ministry to give wide publicity about the availability of the facility portal and toll-free number on all National Highways and in the media so that citizens are made aware of the facility’s existence.
We grant time till 30th September, 2024 to the Government of India to implement the above directions.
We grant time of one month to the learned Amicus Curiae to prepare a note on various issues which arise on which the directions of this Court are necessary. The note shall be provided by learned Amicus Curie by 30th September, 2024.
We direct the Ministry of Road Transport & Highways, Government of India, to place on record the details of the action taken in terms of the Circular dated 18th March 2024. The data shall be placed on record in the form of an affidavit within three weeks from today.
The petition shall be listed on 14th October, 2024 for hearing the parties and issuing interim directions.
We may also clarify that the mechanism made available for the National Highways must be extended to the State Highways. We propose to issue the necessary directions on this behalf on the next date.
There is a committee set up by this court dealing with the issue of road safety, headed by Shri Justice Abhay Sapre, a former judge of this court. The issue of encroachments on Highways has a nexus with road safety. Therefore, the Registry shall forward a copy of this order and copies of the orders which may be passed hereafter to the said committee.”
3. The learned amicus curiae has filed detailed notes dated 5th October 2024 and 4th November 2024.
4. Now, we will deal with the 2002 Act. Section 3 of the 2002 Act provides for the establishment of Highway Administrations, which reads thus:
“3. Establishment of Highway Administrations.— (1) The Central Government shall, by notification in the Official Gazette,—
(a) establish, for the purposes of this Act, a body or authority consisting of one or more officers of the Central Government or the State Government to be known as Highway Administration to exercise powers and discharge functions conferred on it under this Act; and
(b) define the limits of the Highway within which, or the length of Highway on which, a Highway Administration shall have jurisdiction:
Provided that the Central Government may, in the notification issued under this sub-section or by any general or special order, impose any condition or limitation subject to which a Highway Administration shall exercise powers and discharge functions conferred on it under this Act.
(2) The Central Government may establish one or more Highway Administrations for a State or Union territory or for a Highway under subsection (1).
(3) Subject to the provisions of this Act, the Highway Administration shall exercise powers and discharge functions conferred on it under this Act in such manner as may be prescribed.”
Section 24 deals with the prevention of the occupation of highway land. Under Section 23(1), all lands forming part of a Highway which vest in the Central Government or which do not already vest in the Central Government but have been acquired for the purposes of a Highway shall, for the purposes of the Act, be deemed to be the property of the Central Government. Section 26 creates a mechanism for the removal of unauthorised occupation of highways. Section 26 reads thus:
“26. Removal of unauthorised occupation.—(1) Where the Highway Administration or the officer authorised by such Administration in this behalf is of the opinion that it is necessary in the interest of traffic safety or convenience to cancel any permit issued under sub-section (2) of section 24, it may, after recording the reasons in writing for doing so, cancel such permit and, thereupon, the person to whom the permission was granted shall, within the period specified by an order made by the Highway Administration or such officer restore the portion of the Highway specified in the permit in such condition as it was immediately before the issuing of such permit and deliver the possession of such portion to the Highway Administration and in case such person fails to deliver such possession within such period, he shall be deemed to be in unauthorised occupation of highway land for the purposes of this section and section 27.
(2) When, as a result of the periodical inspection of highway land or otherwise, the Highway Administration or the officer authorised by such Administration in this behalf is satisfied that any unauthorised occupation has taken place on highway land, the Highway Administration or the officer so authorised shall serve a notice in a prescribed form on the person causing or responsible for such unauthorised occupation requiring him to remove such unauthorised occupation and to restore such highway land in its original condition as before the unauthorised occupation within the period specified in the notice.
(3) The notice under sub-section (2) shall specify therein the highway land in respect of which such notice is issued, the period within which the unauthorised occupation on such land is required to be removed, the place and time of hearing any representation, if any, which the person to whom the notice is addressed may make within the time specified in the notice and that failure to comply with such notice shall render the person specified in the notice liable to penalty, and summary eviction from the highway land in respect of which such notice is issued, under sub-section (6).
(4) The service of the notice under sub-section (2) shall be made by delivering a copy thereof to the person to whom such notice is addressed or to his agent or other person on his behalf or by registered post addressed to the person to whom such notice is addressed and an acknowledgment purporting to be signed by such person or his agent or other person on his behalf or an endorsement by a postal employee that such person or his agent or such other person on his behalf has refused to take delivery may be deemed to be prima facie proof of service.
(5) Where the service of the notice is not made in the manner provided under sub-section (4), the contents of the notice shall be advertised in a local newspaper for the knowledge of the person to whom the notice is addressed and such advertisement shall be deemed to be the service of such notice on such person.
(6) Where the service of notice under sub-section (2) has been made under sub-section (4) or sub-section (5) and the unauthorised occupation on the highway land in respect of which such notice is served has not been removed within the time specified in the notice for such purpose and no reasonable cause has been shown before the Highway Administration or the officer authorised by such Administration in this behalf for not so removing unauthorised occupation, the Highway Administration or such officer as the case may be, shall cause such unauthorised occupation to be removed at the expenses of the Central Government or the State Government, as the case may be, and impose penalty on the person to whom the notice is addressed which shall be five hundred rupees per square metre of the land so unauthorisedly occupied and where the penalty so imposed is less than the cost of such land, the penalty may be extended equal to such cost.
(7) Notwithstanding anything contained in this section, the Highway Administration or the officer authorised by such Administration in this behalf shall have power without issuing any notice under this section to remove the unauthorised occupation on the highway land, if such unauthorised occupation is in the nature of—
(a) exposing any goods or article—
(i) in open air; or
(ii) through temporary stall, kiosk, booth or any other shop of temporary nature,
(b) construction or erection, whether temporary or permanent, or
(c) trespass or other unauthorised occupation which can be removed easily without use of any machine or other device, and in removing such occupation, the Highway Administration or such officer may take assistance of the police, if necessary, to remove such occupation by use of the reasonable force necessary for such removal.
(8) Notwithstanding anything contained in this section, if the Highway Administration or the officer authorised by such Administration in this behalf is of the opinion that any unauthorised occupation on the highway land is of such a nature that the immediate removal of which is necessary in the interest of—
(a) the safety of traffic on the Highway; or
(b) the safety of any structure forming part of the Highway,
and no notice can be served on the person responsible for such unauthorised occupation under this section without undue delay owing to his absence or for any other reason, the Highway Administration or the officer authorised by such Administration may make such construction including alteration of any construction as may be feasible at the prescribed cost necessary for the safety referred to in clause (a) or clause (b) or have such unauthorised occupation removed in the manner specified in sub-section (7).
(9) The Highway Administration or an officer authorised by such Administration in this behalf shall, for the purposes of this section or section 27, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) issuing commissions for the examination of witnesses; and
(d) any other matter which may be prescribed,
and any proceeding before such Administration or officer shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860) and the Administration or the officer shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).”
Under Section 26, a power is conferred on the Highway Administrations or the officer authorised by the Highway Administrations to cancel the permission granted under subsection (2) of Section 24. Sub-section (2) of Section 26 contemplates periodical inspection of highway land so that unauthorised occupation of highway land can be noticed and action can be taken by following the procedure laid down in sub-sections (2) to (6) of Section 26. Sub-section (2) onwards lays down the procedure to be followed, which is essential for complying with the principles of natural justice. The mode and manner of service of the show cause notice under subsection (2) of Section 26 is also laid down. Power under sub- section (6) of Section 26 is of the removal of unauthorised occupation of highway land.
5. Power under sub-section (8) of Section 26 is an independent power to immediately remove unauthorised occupation on highway land. Power under sub-section (8) of Section 26 can be exercised for the safety of traffic on the Highway or for the safety of any structure forming part of the Highway. The issues raised in this petition revolve around the unauthorised occupation of the highway land.
6. Under the National Highways Act, 1956 (for short, ‘the 1956 Act’), Section 4 provides that the National Highways shall vest in the Union of India. In fact, under the 2002 Act, there is a provision in the form of Section 23, which stipulates that highway land shall be deemed to be the property of the Central Government. Therefore, it is the obligation of the Central Government to maintain the National Highways. The maintenance of highways includes the obligation to keep them in good condition. It also includes keeping them free of encroachments and, most importantly, providing adequate safety measures to reduce the possibility of accidents.
7. The Highway Administration, under the 2002 Act, was established by the notification dated 16th September 2019. The Highway Administration consists of the Secretary, MoRTH; Member-DG (Road Development) and Special Secretary, MoRTH; Chairman NHAI (National Highways Authority of India); Managing Director, NHIDCL (National Highways & Infrastructure Development Corporation Limited) and Additional Secretary and Finance Advisor, MoRTH; and Joint Secretary, MoRTH.
8. Section 4 of the 2002 Act deals with the powers and functions of the Highway Administration. It only lays down that the powers and functions of the Highway Administration shall be subject to conditions and limitations as may be imposed by the notification issued under sub-section (1) of Section 3 of the 2002 Act. An order was passed on 16th September 2019, in exercise of the powers under sub-section (2) of Section 3 of the 2002 Act, by which the functions have been assigned to three members of the Highway Administration. It is further stated that Project Director of the NHAI, General Manager or Deputy General Manager of the NHIDCL and Executive Engineer of the National Highways wing of the State Public Works Department shall have the powers and functions of Highway Administration under Sections 24, 26, 27, 30, 33, 36, 37 and 43 of the 2002 Act.
9. The 2004 Rules were amended by the Highway Administration (Amendment) Rules, 2019. Rule 3 was substituted, which outlines the powers and functions of the Highway Administration. Rule 3 reads thus:
“3. Powers and functions by Highway Administrations.- (1) Subject to the provisions of the Act and the conditions or limitations imposed by the Central Government under the proviso to subsection (1) of section 3 of the Act, to the Highway Administration, it shall:
(a) lay down policies and implementation framework for the Highway Administration consistent with the provisions of the Act;
(b) issue general orders for regulation of different types of traffic on National Highways under Chapter V of the Act;
(c) decide on the allocation of functions and responsibilities among different Highway Administration at different levels;
(d) issue executive orders/Standard Operating Procedures (SOPs) in respect of delivery of various services and enforcement of provisions of the Act and the rules and regulations from time to time;
(e) undertake periodical review and monitor the functioning of Highway Administration at different levels;
(f) any other functions and responsibilities assigned under the Act and the rules thereunder.
(2) Subject to the provisions under sub-section (2) of section 3 of the Act, the Highway Administration, shall:
a) be subject to the overall superintendence and control of the Highway Administration established under sub-section (1) of section 3 of the Act.
b) undertake periodic review of the functioning of the Highway Administration at different levels in respect of delivery of services and ensure enforcement of all the Standard Operating Procedures and executive instructions issued by the Highway Administration.
c) issue executive orders/Standard Operating Procedures (SOPs) in respect of delivery of various services and enforcement of provisions of the Act and the rules and regulations from time to time;
d) issue specific orders for regulation of different classes of traffic on National Highways under Chapter V of the Act;
e) any other functions and responsibilities assigned under the Act and the rules thereunder.”
10. Returning to the earlier orders of this Court, the primary concern of this Court is the removal of unauthorised occupation of highway lands through the exercise of power under Section 26 of the 2002 Act. By filing the affidavit, the MoRTH has placed on record, the data regarding the action taken for the removal of unauthorised occupation in some states. After finding that there was no effective action, detailed directions were issued by this Court on 18th March 2024.
11. As far as the direction regarding the development of a portal for uploading complaints regarding encroachments on the highways, the stand taken by the Highway Administration is that there is a toll-free number (1033) operational to enable the citizens to report incidents, accidents and unsafe driving conditions on the National Highways. However, it is not specifically mentioned that the complaints about unauthorised occupation on highway lands can be lodged on the said toll-free number. It is unclear whether any complaint regarding unauthorised occupation of Highways was received through the medium of the toll-free number.
12. Instead of developing the portal, it is claimed by the Highway Administration that a mobile application known as “Rajmargyatra”, which has various features for Highway users to report incidents, hazards or concerns relating to highway safety. The learned amicus curiae has noted that the application users can submit complaints with geo-tagged photos, videos and remarks. The application permits the complaints to be filed about various aspects, such as poor workmanship, potholes and various other issues. There is a facility to track the status of the grievance. The learned amicus curiae has also pointed out certain issues in the functionality of the app including an unclear procedure of redressal of complaints and lack of opportunity for complainants to provide feedback on resolution of their complaints. As a response to the issues flagged by the amicus, the Highway Administration has submitted that the app is being revamped and a portal for reporting complaints related to unauthorized encroachments is under development by NHAI. It is further submitted that the grievance redressal portal shall also contain an option to view the status of their complaints and action taken, along with an option to appeal.
13. Now, in view of Rule 3, as amended in the year 2019, the Highway Administration has to perform its mandatory duties laid down in sub-rules (1) and (2) of Rule 3 of the 2004 Rules. The duty of the Highway Administration includes formulating Standard Operating Procedures (SOP) in respect of the delivery of various services and the enforcement of provisions of the 2002 Act. Nothing is brought on record to demonstrate the performance of these duties by the Highway Administration. Regarding the removal of unauthorised occupation of highway lands, what is important is Section 24 of the 2002 Act, which provides for the prevention of such occupation. Both provisions of Sections 24 and 26 must be implemented in their true letter and spirit.
14. About regular inspection of the Highways, as rightly suggested by the learned amicus curiae, there is a need to issue exhaustive circulars on this aspect setting out the names and designations of the members of the inspection team, the frequency of inspections, the time intervals of inspections, allocation of highway stretches to the respective inspection teams and timely report of encroachments by the inspection teams. The learned amicus curiae rightly suggested that it is necessary to constitute a dedicated surveillance team consisting of the State Police for manning the National Highways. The surveillance teams must constantly carry out patrolling so that there is no unauthorised occupation of highway lands. In fact, Highways must be kept under surveillance by CCTV cameras. As far as this petition is concerned, it must remain pending as this is a fit case where this Court will have to issue a continuing mandamus. For the time being, we issue the following directions:—
i. We direct the Highway Administration constituted under sub-section (1) of Section 3 of the 2002 Act to place on record the steps taken to implement the duties and functions of the Highway Administration in terms of Rule 3 of the 2004 Rules as amended on 16th September 2019. This direction shall be implemented by the 8th respondent-Joint Secretary (Highways), MoRTH, by filing an affidavit along with necessary documents within three months from today;
ii. We direct the Highway Administration and the 1st respondent, Union of India, to give wide publicity to the availability of ‘Rajmargyatra’ mobile application on print, electronic, as well as social media. Information about the availability of this mobile application shall be displayed prominently at toll and food plazas on Highways. This direction shall also be implemented within three months from today;
iii. We direct the 8th respondent to file on record the details of various categories of complaints lodged on the ‘Rajmargyatra’ mobile application, including complaints regarding unauthorised occupation of highway lands and action taken thereon. We further direct the 2nd respondent, NHAI to report compliance regarding the creation of grievance redressal portal for reporting complaints relating to unauthorised occupation of highways. The compliance affidavits shall be filed within three months from today;
iv. We direct the Highway Administration to issue a detailed SOP regarding the constitution of teams for inspection of the National Highways, including collection of data regarding unauthorised occupation of highway lands;
v. We direct the 1st respondent, Union of India, to constitute surveillance teams consisting of State Police or other forces. The duty of the surveillance teams will be to do patrolling regularly and punctually. Even this compliance shall be reported within a period of three months from today;
vi. We direct the Highway Administration and the concerned respondents who are members of the same to take into consideration the suggestions submitted by the learned amicus curiae on 5th October 2024 and take steps to implement the said suggestions. The said suggestions shall be discussed in the meeting of the Highway Administration so that appropriate decisions can be taken on the implementation thereof; and
vii. We record an appreciation for the assistance rendered by Ms Swati Ghildiyal, the learned counsel appointed as amicus curiae.
viii. List for reporting compliance on 15th September 2025.
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