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2017 DIGILAW 2379 (ALL)

SANGAM LAL YADAV v. STATE OF UTTAR PRADESH

2017-10-13

AJAY BHANOT, TARUN AGARWALA

body2017
JUDGMENT : 1. We have heard Sri Murlidhar Misra, the learned counsel for the petitioners, the learned Additional Chief Standing Counsel for the State, Sri A.P. Paul, the learned counsel for the Allahabad Development Authority and Sri Pranjal Mehrotra, the learned counsel for the Bridge Corporation. 2. The petitioners are living in Mohalla Pura Gaderiya in their parental house and have also shops on plot no.758, which is marked as an Abadi in the revenue record. 3. The petitioners have filed the present writ petition for a direction to demarcate the width of Rana Parakram Jung Bahadur Road from the middle of the existing road equally on both sides towards West and East in accordance with the provisions of the U.P. Roadside Land Control Act, 1945 (hereinafter referred to as the Act) read with U.P. Roadside Land Control Rules, 1964 (hereinafter referred to as the Rules). The petitioners have also prayed that respondents be restrained from demolishing their old houses and shops except in accordance with law. 4. The immediate cause for filing the writ petition is, that the District Administration has sanctioned a Railway Over Bridge (ROB) on plot no.755, which is a declared road measuring .753 Hectare equivalent to 7530 Square Metres for the ensuing Ardh Kumbha, which will occur in January, 2019. A team of experts made a survey on 16.9.2017 and found that the State land bordering the existing road on plot no.755 was encroached by 41 dwellers. Notices were issued to 41 dwellers directing them to remove the encroachment failing which the State machineries would demolish their structure at their own expenses. 5. Four petitioners have filed two writ petitions before this Court contending that they have not made any encroachment and that no notice was ever served upon them and further contended that a survey should be made properly so that the width of the road is properly demarcated. 6. This Court by an order dated 6.10.2017 directed the District Magistrate to make a physical survey in the presence of the petitioners and consider the objection. Based on the aforesaid order an inspection was carried out on the spot by a team of revenue officials, namely, Additional District Magistrate City, Allahabad, Chief Revenue Officer, Allahabad, Secretary, Allahabad Development Authority, Allahabad, Nagar Ayukt, Nagar Nigam, Allahabad, Executive Engineer, Construction Division-Ist, Public Works Department, Allahabad Sub Divisional Magistrate, Sadar, Allahabad and Tehsildar, Sadar, Allahabad. 7. Based on the aforesaid order an inspection was carried out on the spot by a team of revenue officials, namely, Additional District Magistrate City, Allahabad, Chief Revenue Officer, Allahabad, Secretary, Allahabad Development Authority, Allahabad, Nagar Ayukt, Nagar Nigam, Allahabad, Executive Engineer, Construction Division-Ist, Public Works Department, Allahabad Sub Divisional Magistrate, Sadar, Allahabad and Tehsildar, Sadar, Allahabad. 7. A report has been submitted indicating that out of four petitioners only two were present and that the District Magistrate also received objections from other dwellers, which was all considered and that when a survey was being made the petitioners left the spot and did not participate. The report of the District Magistrate was brought on record, which indicates that the objections of the petitioners and others were baseless and without any supporting evidence. 8. By our order dated 11.10.2017, we further directed the District Magistrate to measure plot no.755 existing on the spot as on date. A supplementary affidavit has been filed by the District Magistrate dated 13.10.2017 indicating that on the basis of a fixed point the road in question was measured and it was found that the total area of the road is 7224 Square Metres whereas the total area of the road is .753 Hectares as per the Khatauni of 1424 Fasli, which is equivalent to 7530 Square Metre. It was also stated that the measurement of the area of 7224 Square Metres includes the encroached area of the four petitioners before us. 9. The submission of the learned counsel for the petitioners that the width of the road has to be measured from the centre point of the road as per Section 3 of the U.P. Roadside Land Control Act, 1945 read with Rule 7 of the Rules is patently erroneous. Nothing has been indicated that the road has been declared a controlled area under the notification issued under Section 3 of the said Act nor Rule 7 of the Rules would be applicable. Rule 7 of the Rules is applicable only when an application is made by a person for construction on a road side land for which purpose, permission is required and the necessary guidelines have been given under Rule 7 of the Rules. Rule 7 of the Rules is applicable only when an application is made by a person for construction on a road side land for which purpose, permission is required and the necessary guidelines have been given under Rule 7 of the Rules. In the absence of declaration of a controlled area, the Act is not applicable and consequently, the administration has to fall back on the area indicated in the Khatauni and measurement can only be taken from the existing fixed point fixed by the revenue authorities. In the report dated 16.9.2017 as well as in the affidavit filed today, it is apparently clear that the measurements and the demarcation process was made by the revenue officials on the basis of the fixed point that was available wherein on one hand the width of the road was indicated as 84 metres on the South and on the North the width of the road was indicated as 55 Feet. The measurement made from a fixed point by the revenue officer has not been denied by the petitioners. 10. The area has also been indicated showing the alleged encroachment by the petitioner and other dwellers. The respondents have also indicated that only a portion of the encroachment made by the encroachers would be demolished and not the entire encroachment. The fact, that when the Court directed to make a fresh survey, the petitioners left the premises and did not participate. They also did not file any objection personally before this Court and only chose to file an objection through a pairokar, who apparently is a student and had no connection with the issue of the land. 11. In the light of the aforesaid, it is apparently clear that on the basis of the measurement made by the revenue official from the fixed point there exists an encroachment and consequently, no relief can be granted to the petitioners since no sufficient evidence has been placed before the Writ Court. 12. The writ petition is dismissed leaving it open to the petitioners to approach the appropriate forum for whatsoever relief they seek. 13. We, however, make it clear to the District Administration that in the event, an exercise of demolition is being done, the same shall be recorded through a video for future evidence.