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Subhash Chandra v. State Of U.P. And Others - WRIT - C No. 48079 of 2005  RD-AH 1607 (8 July 2005)
Court No. 34
Civil Misc. Writ Petition No. 48079 of 2005
State of Uttar Pradesh & Ors.
Hon. Dr. B.S. Chauhan, J.
Hon. Dilip Gupta, J.
This writ petition has been filed for a direction upon the respondents not to demolish the petitioner's house situate at Sabji Manda road, Sadhupura Qasba, Post Nidhauli Kala, District Etah.
Petitioner claims that his mother Smt. Long Shree Devi had purchased plot No. 86 through a registered sale deed on 06.10.1971. After the death of his mother, the petitioner became the sole owner of the said property. The petitioner submitted an application for sanction of the map for construction of house on the aforesaid plots before the respondent no.4. The respondent no.4, after verification by the Executive Officer, sanctioned the map and the petitioner was permitted to raise linter on the nali. The respondents, under the garb of Anti Encroachment Drive, are trying to demolish the petitioner's construction illegally. They have put red mark on the petitioner's house for demolition. The petitioner submitted a representation before the respondents no. 3 and 4 on 28.06.2005 indicating that the construction has been raised after the map was sanctioned by the respondent no.4 with a request not to demolish the house of the petitioner but the respondents have not passed any order on the said representation.
We have heard Sri Swapnil Kumar, learned counsel appearing for the petitioner and Shri Adish C. Aggarwala, learned Additional Advocate General for the respondents and have perused the materials available on record.
Though, the petitioner has referred to the Government Order dated 13th May, 2005 regarding removal of encroachment from the roads, drains or public places but he has not placed on record the said Government Order. From what has been stated in the petition, it transpires that the Government Order dated 13th May, 2005 provides for removal of encroachment from the roads and drains and other public places. We fail to understand as to how any person can resist the removal of encroachment from such places as they do not have any right to encroach the roads, drains or the public places. This Court under Article 226 of the Constitution of India should not come to the aid of such persons.
This matter was also examined by the Rajasthan High Court in the case of Mohammed Yunus Vs. Urban Improvement Trust, Jodhpur & Ors, AIR 1999 Rajasthan 334 in which one of us (Dr. B.S. Chauhan, J.) was a member. It was clearly held that when the induction in the premises was void, the persons were entitled to be evicted, if fail to satisfy as under what circumstances, they could continue to possess the land and it was difficult to comprehend as to how they could contend that the authorities should take recourse to the due process of law. It is not permissible for such a person to submit that he could be evicted only after following the procedure prescribed in a particular Statute for the reason that he being rank trespasser cannot chose the procedure for his eviction.
The Authority has to assess and remove the encroachment after taking into account the various Statutes including the Public Premises Act, The Control of National Highways (Land and Traffic) Act, 2002 and the Uttar Pradesh Roadside Land Control Act, 1945 wherein there are specific provisions prohibiting the raising of constructions in certain cases.
In this view of the matter, the Authorities shall, before removing the unauthorized constructions/encroachments, give an opportunity to the petitioner to demonstrate that in fact, he had not made any encroachment and only upon being satisfied that the petitioner had in fact contravened the provisions of the Government Orders issued from time to time, take necessary steps.
Subject to the observations made above, the writ petition is disposed of.
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