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2014 DIGILAW 2701 (ALL)

INDRA PAL v. STATE OF U. P.

2014-09-03

A.P.SAHI, VIVEK KUMAR BIRLA

body2014
JUDGMENT By the Court.—Heard Sri M.P. Singh, learned counsel for the petitioners and Sri Vivek Verma, learned counsel for the Kanpur Development Authority as well as the Nagar Nigam, Kanpur Nagar. 2. A road widening is taking place and under the said scheme, the road which is sought to be widened, is to be extended to the width of 250 ft. As a result of such road widening, the petitioners contend that their constructions in the colony adjacent to the road are being removed in the name of encroachment. 3. The ground for challenge is that the petitioners have been already settled with the houses which are standing in the area in question under the U.P. Slum Areas (Improvement and Clearance) Act, 1962. For this they have relied on their particular house Nos. which have been protected under the notification issued by the State Government on 30.4.1982, copy whereof has been filed as Annexure-1 to the writ petition. 4. The contention of Sri Singh is that if the house of the petitioners stand protected under the said notification then they cannot be cleared of in the name of encroachment or road widening as the petitioners would in that event require rehabilitation or even otherwise compensation. Such an action can only be permitted after it is ascertained as to whether the petitioners are entitled to such protection or not. 5. We, therefore, find it necessary to dispose of this writ petition with a direction to the Development Authority and the Nagar Nigam both to proceed only after disposing of the objections of the petitioners in accordance with law keeping in view the aforesaid provisions of 1962 Act and the Master Plan or any other law that may have come into force after the 1962 Act and its impact thereon. 6. It is noticed that Public Interest Litigation No. 44530 of 2013 was filed before this Court in respect of the same road which is sought to be widened and the following judgement was delivered on 29.8.2013, which is quoted below: Heard the learned counsel for the petitioner, the learned counsel for the Kanpur Nagar Nigam and the learned counsel for the State. This writ petition has been filed by way of Public Interest Litigation to seek directions from this Court for removal of various kinds of encroachments/unauthorized constructions on 250 Feet wide road as per the master plan of Kanpur Mahanagar. This writ petition has been filed by way of Public Interest Litigation to seek directions from this Court for removal of various kinds of encroachments/unauthorized constructions on 250 Feet wide road as per the master plan of Kanpur Mahanagar. According to the representation dated 12.6.2013 contained in Annexure-1 the stretch of PWD road proposed to be 250 Feet wide from Tat Mill Chawraha, Babu Purva Police Station to Yashoda Nagar, which is adjoining to Transport Nagar is a very busy road and the residents as well as the rushing traffic are suffering on account of frequent congestions on account of encroachments made by more than hundred truck bodybuilders and auto service stands where trucks are parked in a haphazard manner for the purposes of repair etc. Examples of such unauthorized constructions have also been furnished in the representation. Fruits and vegetables vendors are also allegedly creating permanent impediments in the flow of traffic on that road. Learned counsel for the State has received instructions apparently from the Authorities of the Traffic Police who have suggested that to remove encroachments from various places in Kanpur Town in an effective manner, a joint Cell for removal of encroachments needs to be created so that the Kanpur Municipal Corporation, the Traffic Police and the Public Works Department may participate in that Cell and cooperate with each other to carryout much required and sustained movements for removal of such encroachments as pointed out by the petitioner. Learned counsel for the Kanpur Municipal Corporation has assured this Court that if the District Magistrate and the District Police provide cooperation, the Corporation shall take necessary steps and control the menace of encroachments on the road in question effectively within a short time. In the facts of the case we direct the District Magistrate, Kanpur Nagar (respondent No. 3), the Nagar Ayukt, Nagar Nigam, Kanpur Nagar (respondent No. 4) and the Senior Superintendent of Police, Kanpur Nagar (respondent No. 5) to constitute an Encroachments Removal Cell for Kanpur Nagar within two weeks of receipt of a certified copy of this order. The Cell shall be responsible for coordinating the activities of all the three Organizations/Authorities to ensure that encroachments are removed wherever necessary in larger public interest particularly for smooth flow of traffic on the roads. The Cell shall be responsible for coordinating the activities of all the three Organizations/Authorities to ensure that encroachments are removed wherever necessary in larger public interest particularly for smooth flow of traffic on the roads. The encroachments pointed out by the petitioner should receive a special attention of the Cell and it should take effective steps to remove the encroachments, particularly those which are likely to create traffic jams and impede smooth flow of traffic at an early date within two months. The Cell shall also study traffic problems of Kanpur Nagar in larger context and suggest solutions such as by construction of flyovers etc. The writ petition is disposed of. 7. As a consequence of the directions issued in the said PIL, the road widening was undertaken and is under progress. Several other petitioners had come up before this Court and their writ petitions were dismissed with liberty to file a civil suit. These are Writ Petitions No. 33310 of 2014 and 33544 of 2014, copies of the said judgement has been placed before the Court. 8. We, however, find that there is distinction in the aforesaid two writ petitions to the effect that no plea relating to the U.P. Slum Areas (Improvement and Clearance) Act, 1962 was raised therein whereas in the instant case, the protection of the Slum Area Act, 1962 has been sought by persons who claim to be in possession of such houses for which a notification is said to have been issued on 30.4.1982. Thus, this case is distinct on facts as against the aforesaid two writ petitions. However, since directions have been issued in the PIL, we accordingly provide that the Encroachment Removal Cell as quoted under the judgement dated 29.8.2013 shall examine the claim of the petitioners and pass appropriate orders within eight weeks from the date of production of a certified copy of this order. 9. In the event, the Encroachment Cell finds that this is not an encroachment and the dispute is covered by any other law for the time being in force, it shall transmit the matter to the competent authority, either the Development Authority or the Nagar Nigam for passing appropriate orders in accordance with law so that the petitioners may have their future remedies against any orders that might be passed adverse to them. 10. The writ petition is disposed of with the said observations. —————