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State Of U.P. v. 9th-A.D.J. Bareilly And Ors - WRIT - C No. 1594 of 1999 [2007] RD-AH 12177 (17 July 2007)


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Court No.23

Civil Misc. Writ Petition No.1594 of 1999

State of U.P. through Assistant Engineer, P.W.D. Construction Division, Civil Lines, Bareilly Vs. IXth Additional District Judge, Bareilly and others

Hon'ble S.U. Khan, J.

List revised. No one appears for the contesting respondent.

Heard learned standing counsel for the petitioner.

Two shops near a temple were constructed by the Sarvarakar of the temple. Proceedings for demolition and eviction were initiated under U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 against  respondents No.2, 3 & 4 by Public Works Department, Bareilly. The case of the P.W.D. was that the shops had illegally been constructed on P.W.D. land which was part of Lucknow-Delhi High-way. On the file of Prescribed Authority, the case was registered as case No.38 of 1988. Shops were alleged to have been constructed shortly before the notice by Respondent No.2, Baba Ram Sarvarkar, Mandir, Hanumanji Brijman Mandir and let out to respondents No.3 & 4, Ram Singh Yadav and Harbans Singh. Prescribed Authority/City Magistrate, Bareilly passed the order of eviction on 23.03.1989 holding that the shops had been constructed on the P.W.D. land admeasuring 6x3.55 squire metres. Against order dated 23.03.1989, respondents No.2, 3 & 4 filed Misc. Appeal No.35 of 1989. The IXth A.D.J. allowed the appeal on 05.05.1998, hence this writ petition.

The Appellate Court held that the case of the applicant-P.W.D. was not proved by its witness in the examination-in-chief. However, according to the Appellate Court, the case was proved in the cross-examination. Haribabu Surveyer, Construction Division, P.W.D., Bareilly was examined as witness of the applicant. He stated that in December 1987, two pakka shops had been constructed after encroaching upon the government land on Delhi-Lucknow High-way near 249 k.m stone. A copy of survey map of India was also filed showing the encroachment. Even if necessary facts are proved in cross-examination, it is sufficient proof. If deficiency left in the examination-in-chief of applicant's witness is removed by the cross-examination, then the opposite party cannot say that the facts shall not be treated to be proved. In such situation, he can only take his advocate to task. May be respondents' advocate was not an artist, because only an artist knows where to stop.

The other reason given by the Appellate Court is that the temple is also situate over the government land and no proceedings for demolition and eviction were being taken against the temple. If due to any reason P.W.D. did not consider it proper to take action against some religious place standing since long, then it does not mean that no action for demolition and dispossession can be taken against the shops or other non-religious constructions recently made by the managers of the said religious places.

Some technical reasons have also been given by the Appellate Court like vagueness in the notice etc. However, the fact is that the respondents could not show their right over the land in dispute. They could also not show that the construction were old. Shops were constructed in December, 1987 and eviction proceedings were taken in January, 1988. It was amply proved that land was part of road/patri and belonged to P.W.D.

In my opinion, impugned order is utterly erroneous in law. Accordingly, writ petition is allowed. Order of the Appellate Court is set aside. Order passed by the Prescribed Authority is restored.




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