Judgment : D.S. Sinha, J. 1. HEARD Shri Manoj Gupta, holding brief of Shri V. K. Gupta, learned counsel appearing for the petitioner and Shri Vinay Malaviya, learned standing counsel representing the respondents. 2. THE order dated 7th May, 1979, a copy whereof is Annexure 6 to the petition, passed by the Collector Road Side Land Control Officer, Muzaffamagar, the respondent No. 2. under Section 13 (2) of the U. P. Road Side Land Control Act, 1945, hereinafter called the Act, is under challenge in this petition under Article 226 of the Constitution of India. By the impugned order the petitioner has been called upon to remove the disputed construction within the time specified in the order. The order is founded on the twin findings that the area where the disputed construction lies is controlled area with effect from 12th January. 1957 ; and that the disputed construction was raised in April 1973 in contravention of the provision of the Act. 3. LEARNED counsel for the petitioner contends that the impugned order is totally illegal and without Jurisdiction inasmuch as the provisions of the Act have no application qua the disputed construction. To buttress his submission learned counsel relies upon the provisions of Section 16 of the Act, specially the second part of its sub-section (a). 4. COUNTERING the submission of the learned counsel for the petitioner, the learned standing counsel, representing the respondents, asserts that provisions of Section 16 of the Act are not attracted on the facts and in the circumstances of the case. Sub-Section (a) of Section 16 of the act, whereupon reliance is placed on behalf of the petitioner, reads thus :- "16. Saving.-Nothing in this Act shall apply to- (a) the erection or re-erection of buildings upon land included in the inhabited site of any village as entered and demarcated in the revenue records or upon sites in a municipal, notified, or town area that are already built up on the date of the issue of the notification under sub-section (2) of Section 3 of this Act;" (Emphasis supplied) 5. A bare perusal of sub-section (a) of Section 16 reveals that only such erection or re-erection of buildings is saved which is (i) upon on land included in the inhabited site of any village as entered and demarcated in the revenue records, (ii) or upon sites in a municipal, notified, or town area that are already built up on the date of the issue of the notification under sub-section (2) of Section 3 of the Act. 6. TO succeed in claiming exemption contemplated in Section 16 (a) of the Act the petitioner was required to prove that the site whereupon disputed construction has been erected or re-erected by him was upon the site which had already been built up on 12th January, 1957, the date on which the notification declaring the land whereupon the disputed construction stands to be a controlled area was issued. There is no material on record to arrive at conclusion that the site whereupon the disputed construction has been erected by the petitioner was already a built up area on the date of notification declaring the area as controlled area. In fact, the petitioner never contested the proceedings on this plea. This plea has been raised before this Court for the first time. It cannot be gainsaid that the question whether the site whereupon the disputed construction has been erected by the petitioner was already a built up site on the relevant date is basically a question of fact, and that it can be determined only on production of evidence, oral and documentary. Normally, such exercise is not permissible in the proceedings under Article 226 of the Constitution of India. 7. THERE being no material to sustain the plea of the petitioner that the site on which the disputed construction stands was already a built up area on the relevant date, the exemption from the provisions of the Act, as claimed by the petitioner, is not available to him. 8. THE foregoing discussion leads to an irresistible conclusion that the petition has no substance and deserves to be dismissed. Accordingly, the petition is dismissed. THE interim order dated 18th August, 1979 shall stand discharged. THE order of the respondent No. 2, dated 7th May. 1979, be implemented and executed without any further delay. There is no order as to costs.