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Dinesh Chandra v. State Of U.P. And Others - WRIT - C No. 51708 of 2005  RD-AH 1737 (25 July 2005)
Civil Misc. Writ Petition No.54336 of 2005
Virendra Kumar Singh
State of U.P. & Ors.
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Dilip Gupta, J.
This writ petition has been filed for a direction upon the respondent nos. 1 and 2 not to demolish the construction of the petitioner as he is the bona fide owner of the land which is situated at Mohalla Kunwarganj Qasba and Tehsil Tilhar District Shahjahanpur having the area 144 sq. meter.
We have heard Sri V.R. Dwivedi, learned counsel for the petitioner and the learned Standing Counsel for the respondents 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 any person can resist the removal of encroachment from such places, as he does 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 person 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 therein that if the induction in the premises itself was void, the person was liable to prove his right to continue with possession and it was difficult to comprehend as to how he 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.
The authorities are directed to examine as to whether the petitioner has ensured compliance of the provisions of Section 5 of the Act, 1945 which necessarily requires the permission of the District Collector before raising any construction on the roadside land.
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 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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