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Allahabad High Court · body

2017 DIGILAW 114 (ALL)

Phool Singh v. State of U. P.

2017-01-10

DILIP B.BHOSALE, YASHWANT VARMA

body2017
JUDGMENT Heard Mr. D.K. Srivastava, learned counsel for the petitioner and Mr. Shandilya, learned Additional Chief Standing Counsel for the State-respondents. The writ petition challenges the notice/order dated 4.3.2016 issued/passed by respondent no. 4 under the provisions of the U.P. Roadside Land Control Act, 1945 (for short 'Act') for violating the provisions of Sections 5 and 6 thereof. By this notice, respondent no. 4 has directed the petitioner to remove the unauthorized/illegal constructions made by him in a "controlled area". Section 5 of the Act provides that no person shall erect or re-erect any building, or make or extend any excavation in a controlled area. It appears that a declaration under Section 3 of the Act, notifies the area, where the petitioner has raised constructions, as a controlled area. In this backdrop, counsel for the petitioner, at the outset, invited our attention to sub-section (6) of Section 6 in particular to contend that, in view of the deeming provision under sub-section (6) of Section 6, the petitioner could raise constructions since his application seeking permission to make constructions in the controlled area was not rejected by the Collector within three months from the date of application. He also invited our attention to Section 5 to submit that the case of the petitioner falls under clause (a) thereof and since he sought permission to raise constructions and his application had not been considered and rejected, the petitioner was entitled to make constructions under sub-section (6) of Section 6 of the Act. The submission made by the counsel for the petitioner deserves to be rejected outright for the following reasons: Section 5 of the Act reads thus: "5. Restriction on building etc. in a controlled area.-- Notwithstanding anything contained in any other law for the time being in force, ? (a) no person shall erect or re-erect any building, or make or extend any excavation in a controlled area; and (b) no person shall, except with the previous permission of the Collector in writing, law out any means of access to a road in a controlled area." Sub-section (1) and sub-section (6) of Section 6 read thus: "6. Application for permission to build etc., and the grant or refusal of such permission. ? Application for permission to build etc., and the grant or refusal of such permission. ? (1) Every person desiring to obtain the permission referred to in Section 5 shall make an application in writing to the Collector in such form and containing such information in respect of the means of access to which the application relates as may be prescribed. ---Hindi--- (6) If at the expiration of a period of three months after an application under sub-section (1) has been made to the Collector no order in writing has been passed by the Collector, [the applicant may give a notice in writing to the Collector and if no order is passed within thirty days from the date of receipts of such notice], permission shall be deemed to have been given without the imposition of any conditions." From a bare perusal of Section 5 and clause (a) thereof, it is clear that notwithstanding anything contained in any other law for the time being in force, no person shall erect or re-erect any building or make or extend any excavation in a controlled area. Sub-section (1) of Section 6 provides that every person desiring to obtain the permission referred to in Section 5 shall make an application in writing to the Collector in the prescribed form. The word 'permission' referred to in sub-section (1) of Section 6 is relatable to the word 'permission' employed in clause (b) of Section 5. Clause (b) in our opinion has no application. Insofar as the present case is concerned, it was specifically submitted that the case of the petitioner falls under clause (a) of Section 5. Even if it is assumed that the deeming provision would operate even for raising constructions in a controlled area, still the petitioner cannot justify his action of making constructions in a controlled area since admittedly a notice in writing to the Collector, as contemplated under sub-section (6) of Section 6, was not given by the petitioner and that being so, the deeming provision would not come into play. On this ground also, the petition deserves to be dismissed. In the circumstances, no case is made out. The petition is, accordingly, dismissed.