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Sunil Kumar Vaish And Others v. State Of U.P. And Others - WRIT - C No. 47926 of 2005 [2005] RD-AH 1608 (8 July 2005)


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Court No. 34

Civil Misc. Writ Petition No. 47926 of 2005

Sunil Kumar Vaish & Ors.


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 any portion of the premises/shops No.848-D of the petitioners situate on Nai Sarai (Bye Pass Road), Badaun which have been constructed after approval from the Prescribed Authority.

The petitioners belong to one family and claim that they have purchased  certain land by means of registered sale deed of Khasara No. 556, Nai Sarai, Badaun and a joint map was submitted by the petitioners which was approved for raising the constructions. Thereafter, the petitioners constructed four shops on the ground floor and two rooms on the first floor, as per the approved site plan. However, on 25.06.2005, a notice was published in Hindi Daily "Dainik Jagaran" and "Amar Ujala" that illegal constructions wouldl be demolished on 29.06.2005. Thereafter, a team of Public Works Department visited the shops of the petitioners and put the red mark as identification for demolition of shops. The petitioners apprehend that pursuant to the public notice, the respondents shall demolish the constructions.

We have heard Sri V.K. Singh, learned counsel appearing for the petitioners and Shri Adish C. Aggarwala, learned Additional Advocate General for the respondents and have perused the materials available on record.

Though, the petitioners have referred to the Government Order dated 13th May, 2005 regarding removal of encroachment from the roads, drains or public places but they have 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 petitioners to demonstrate that in fact, they had not made any encroachment and only upon being satisfied that the petitioners 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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