Court No. - 10
Case :- WRIT - C No. - 25640 of 2018 Petitioner :- Mohammad Atahar Siddiqui And 8 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Satyawan Shahi,Amit Saxena Counsel for Respondent :- C.S.C.
Hon'ble Vikram Nath,J.
Hon'ble Daya Shankar Tripathi,J.
Upon a mention being made by Sri Satyawan Shahi and Sri S.M. Iqbal, Advocates appearing for the petitioner that the District Administration of Fatehpur is bent upon demolishing the constructions of the petitioners made over the land of the petitioners and in accordance with law without affording any opportunity or giving any notice. It is further mentioned that at 10:40 p.m. on 22.08.2018 i.e. yesterday a notice has been handed over to the petitioner that the demolition would take place at 12:00 noon today. The petitioner prepared an application and presented before us which was directed to be submitted in the Registry and thereafter the same was summoned along with the record of the writ petition. It is on account of the aforesaid urgency expressed that the matter has been taken up out of turn after calling for the records from the office as recorded above.
We have heard, learned counsel for the petitioners, Sri Ajeet Kumar Singh, learned Additional Advocate General assisted by Sri Sudhanshu Srivastava, learned Additional Chief Standing Counsel for the State-respondents.
In this matter, earlier repeatedly time was granted to the State- respondents to obtain instructions, but the same was not coming thereafter an order was passed on 9th August, 2018, that in case the instructions are not received the Collector, Fatehpur and the Executive Engineer, P.W.D. (Road Construction, Division), Fatehpur would remain present. Thereafter, it appears that matter was not taken up and by order dated 21st August, 2018 it was fixed for 24th August, 2018, However, upon mention being made as already recorded above the case has been taken up today along with application and supplementary affidavit filed today. The petitioners have annexed copy of the notice, which is said to have been served on one of the petitioners at 10:40 p.m. yesterday i.e. 22nd August, 2018. The said notice refers to an earlier notice dated 14/16th July, 2018 and also a public notice being made for removal of constructions as per the red ink marked on all the constructions which were causing obstructions in the road widening and which has been made in violation of the existing bye-laws, rules and regulations. However, learned counsels for the petitioners have vehemently submitted that no such prior notice was given to the petitioners.
Today, Sri Ajeet Kumar Singh, learned Additional Advocate General has placed instructions received from the Collector, Fatehpur and the Executive Engineer, P.W.D. (Road Construction, Division), Fatehpur. According to the same, the petitioners have raised constructions in violation of the The Uttar Pradesh Roadside Land Control Act, 1945 which strictly prohibits raising of any constructions for a distance of 60 feet from the centre of the road but the petitioners had raised constrution covering about 25 feet. The instructions further mention that the petitioners are fully aware of the proceedings and not only the petitioners but all the neighbourhood of the petitioners on the highway who have raised constructions unauthorizedly in violation of the relevant rules and regulations and bye-laws. The marking was done by red chalk indicating that these were offending constructions and had to be removed. Public notice was also published in newspapers. It is also the case that all others whose constructions were similar to those of the petitioners and covered the restricted area have already removed their offending constructions and it is only the petitioners who have approached this Court. They have also misrepresented before the authorities that even in the absence of any interim order they filed affidavits stating that High Court has granted an interim order staying demolition, whereas in fact there was no such interim injunction by this Court. Majority of these constructions are of commercial in nature as the petitioners have constructed shops and hotels over the restricted area and now are opposing the removal of the same. It is also the case of the respondents that under various orders passed by this Court and the Apex Court, any constructions made in violation of The Uttar Pradesh Roadside Land Control Act, 1945 and other applicable Acts, Rules and Regulations the unauthorized constructions over public land have to be removed. Merley because constructions have been raised and have been allowed to continue for a substantial period will not create any right or defence with the owners to retain such possession. The petitioners at best, if their constructions are made over their bhoomidhari land would be entitled to compensation but they cannot resist removal of such constructions which are illegal. Such compensation would be payable only if their land is being utilized for construction of the road and not merely because the constructions are to be removed but the land remains with the petitioners, no compensation would be payable.
Sri Ajeet Kumar Singh, learned Additional Advocate General has also stated upon instructions that out of nine petitioners eight of the petitioners have already removed their constructions either before filing the petition or during its pendency and it is only petitioner no.1 who is resisting.
Thus, we do not find any merit in this petition warranting interfernce in exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution.
Petition lacks merit and is accordingly dismissed.
At this stage, Sri Satyawan Shahi, learned counsel for the petitioners prays for a reasonable time being allowed to the petitioners to remove constructions on their own rather than the District Administration demolishing the same as that may result into additional loss to the petitioners.
On the other hand, serious objections have been raised by Sri Ajeet Kumar Singh, learned Additional Advocate General that the entire road widening is held up because of the objections being raised by the petitioners and therefore the Court may not grant any further time.
Considering the aforesaid submissions, we were inclined to grant 24 hours time to the petitioners to remove their construtions but on the request of Sri Satyawan Shahi, learned counsel for the petitioners, 48 hours time is allowed. We accordingly provide that if the petitioners do not remove their constructions by 12:00 Noon on 25th August, 2018, the District Administration would be free to proceed with the demolition exercise. Till 25th August, 2018, 12:00 Noon the respondents may not demolish the constructions in question.
Order Date :- 23.8.2018 Ashutosh (Daya Shankar Tripathi,J.) (Vikram Nath,J.)