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Mewa Lal & Others v. State Of U.P. Thru' Principal Secy. & Ors. - WRIT - C No. 49352 of 2005  RD-AH 1675 (18 July 2005)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 49352 OF 2005
Mewa Lal & Ors. ------------- Petitioners
State of U.P. & Ors. ------------- Respondents
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Dilip Gupta, J.
This writ petition has been filed for a direction upon the respondents not to demolish the constructed house and shop situated over plots in question in Village Ashapur, Pargana Shivpur, District Varanasi under the drive for removal of undauthorised construction.
The petitioners' claim to be recorded tenure holder of the plots over which house and shop exist. Certain land had already been acquired in the year 1957 for widening the road. On 27.6.2005, the respondents threatened to demolish the house and shop alleging that the encroachment had been done. The petitioners, therefore, submitted a representation on 28.6.2005 and 1.7.2005 before the District Collector, Varanasi but the same are pending decision.
We have heard Sri Bhagwati Prasad, learned counsel for the petitioners and the learned Standing Counsel for respondent nos. 1 to 4 and 7 to 9 and Shri Atul Mehra, learned counsel for respondent nos. 5 and 6, and have perused the materials available on record.
From the averments made in the petition it transpires that the respondents intend to remove the encroachment from the roads, drains and other public places.
We fail to understand as to how persons 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 nor such disputed question of facts can be determined in writ jurisdiction.
This matter was also examined by the Rajasthan High Court in the case of Mohammed Yunus Vs. Urban Improvement Trust, Jodhpur & Ors, AIR 1999 Raj. 334 in which one of us (Dr. B.S. Chauhan, J.) was a member. It was clearly held that if the induction in the premises is void, the person was liable to prove his right to continue with possession and it was difficult to comprehend as to how they could contend that the authorities should take recourse to the procedure prescribed in a particular Statute.
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, they had not made any encroachment and only upon being satisfied that the petitioners had in fact contravened the provisions of the Act or 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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