Allahabad High Court
Birendra Bahadur Singh vs State Of U.P.Throu Its ... on 4 March, 2013
Author: Uma Nath Singh
Bench: Uma Nath Singh, Virendra Kumar Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Writ Petition No. 7397 (MB) of 2012. Birendra Bahadur Singh. .....................Petitioner. Versus State of U.P. and others ..........................Opp. Parties. Hon'ble Uma Nath Singh, J.
Hon'ble Virendra Kumar Dixit, J.
(Per Virendra Kumar Dixti, J.)
1.We have heard learned counsel for the parties and perused the pleadings of writ petition.
2.By means of this petition the petitioner has prayed for a writ in the nature of certiorari quashing the order dated 18.08.2012 passed by Assistant Engineer (3rd), National Highway Division, P.W.D. Lucknow (annexure-1 to the writ petition) and further a writ in the nature of mandamus commanding the respondents not to interfere in the matters related to Plot No. 466 (old no. 717), Town Haidergarh, district Barabanki.
3.The facts of the case, in brief, are that the petitioner is the owner of residential house situate at plot no. 466 (old number 717), town Haidergarh, District Barabanki. This plot is located on one side of Lucknow-Sultanpur highway, which is registered as Abadi land in the Annual Register or Shatvarshik Khatauni dated 26.3.1993. This plot was originally registered in the name of one Ram Singh, whom the petitioner alleges to be his ancestor. Against Ram Singh, a complaint under Section 13 of the U.P.Road Side Land Control Act, 1945 , hereinafter referred to as Act, 1945 was made alleging that he had made an illegal encroachment on the controlled area of Lucknow-Sultanpur Highway, in respect of which a case bearing no. 8 of 1967 was registered, which was decided by Sub Divisional Magistrate Haidergarh, Barabanki vide his judgment and order dated 19.9.1967 holding that the charge against Ram Singh was not found proved and accordingly he was acquitted. Against the aforesaid judgment, no appeal was preferred and according to the petitioner, aforesaid judgment of Sub Divisional Magistrate Haidergah attained finality.
4.The petitioner was issued a notice dated 7.4.1993 alleging that his house is built over the area falling on National Highway 56 and has to be demolished. He alongwith the co-owner of the plot preferred a writ petition bearing no. 1800 (M/S) of 1993 before this Court, in which, operation of the said notice was stayed. ON 27.8.2010, a fresh notice was issued by respondent no. 3 to the petitioner under Sections 5 and 6 of the Act, 1945 alleging that he has made illegal constructions at a distance of only 10 meters from the centre line of the National Highway No.56 on road-side land and the same has to be demolished. The petitioner challenged the said notice dated 27.08.2010 by filing Writ Petition No. 7939 (MB) of 2011 which was disposed of by this Court on 05.01.2012. The order passed in the said writ petition reads as under :
"Since the instant petition has been preferred against the impugned show cause notice, it shall be appropriate that the petitioner may file objection before the respondents within one month along with the copy of the judgment of Sub Divisional Magistrate, Haidergarh, Barabanki. In case such objection is filed, opposite party no. 6 shall look into the matter and adjudicate the controversy after taking into account the aforesaid judgment and order passed in Case No. 8 of 1967 by passing a speaking and reasoned order after affording opportunity of hearing to the parties, expeditiously, say within a period of four months from the date of production of certified copy of this order. For the period of six months or till disposal of the objection, whichever is earlier, status quo as it exists today shall be maintained by the parties."
5.The impugned order dated 18.8.2012 has been passed by respondent no. 3 in compliance of the aforesaid order of this Court.
6.Submission of the petitioner is that the objections filed by him before respondent no.3 Assistant Engineer (3rd) National Highway Division, P.W.D., Lucknow were wrongly rejected and the impugned order has been passed in an illegal and arbitrary manner. Submission further is that the matter has already been adjudicated by the court of Sub Divisional Magistrate, Haidergarh in case no. 8 of 1967 filed against Ram Singh, in which he was found to be the owner and occupant of plot no. 466 (old no. 717), hence this matter cannot be re-adjudicated as it is barred by the principles of res judicata. The impugned order has also been questioned, alleging that it has been passed in violation of principles of natural justice. Learned counsel for the petitioner further submits that the petitioner is entitled to protection under savings clauses enumerated in Section 16 of the Act on reproduction reads as :-
"16. Savings :- Nothing in this Act shall apply to -
(a) the erection or re-erection of buildings upon land included in the inhabited site of any village as entered and demarcated in the revenue records or upon sites in a muncipal, notified or town area that are already built up on the date of the issue of the notification under sub-section (2) of Section 3 of this Act ;
(b) the erection or re-erection of a place of worship or a tomb, cenotaph, grave, graveyard, or marghat or of a wall enclosing a place of worship, tomb, cenotaph, grave, graveyard, or marghat on land which is at the time a notification under sub-section (2) of Section 3 is published by the (State Government), occupied by or for the purposes of such place of worship, tomb, cenotaph, grace, graveyard, or marghat ;
(c)excavations (including well) made in the ordinary course of agricultural operations ;
(d) the construction of an unmetalled road intended to give access to land solely for agricultural purposes.
7.On the other hand, respondents have assailed the claim of the petitioner, alleging that the disputed constructions have been raised on road side land illegally, which are liable to be demolished. There was no illegality in the impugned order, which is a reasoned order, having been passed after taking into account the evidence/documents brought on record. The petitioner was required to appear before respondent no. 3 through letters dated 16.7.2012 and 22.3.2012 in view of his request for being personally heard, but he failed to appear on the dates fixed, hence there was no violation of principles of natural justice as alleged.
8. A perusal of Clause (a) of aforesaid section reveals that it saves the constructions that are already built up on the date of issue of the notification under sub-section (2) of Section 3 of the Act. The land in question was declared to be a controlled area by notification dated 11.8.1960 issued by the State Government under Section 3 (2) of the Act. Therefore, after issue of the said notification it is mandatory to obtain prior permission from the Collector concerned for erection or re-erection of any building within the controlled area as provided under Sections 5 and 6 of the Act. In case of refusal by the Collector to grant permission a right to appeal to the State Government has been provided under Section 7 of the Act.
9.On a careful consideration of the pleadings and submissions of the parties, we are of the considered view that this petition raises disputed questions of facts and is not maintainable. It is not the case of the petitioner that impugned constructions are in existence since 1963 and no further constructions were raised, which are the subject-matter of subsequent notice. The order dated 19.9.1967 passed by Sub Divisional Magistrate, Haidergah, in criminal proceedings, does not decide the right and title of the petitioner over the plot in question and will not operate as res judicata while deciding the controversy by the competent court.
10.The writ petition is accordingly dismissed as not maintainable. The petitioner is at liberty to approach the appropriate forum as per law to decide the controversy raised in this petition. It is made clear that we have not decided the claims of parties and any observation made in this judgment will not come in the way of competent authority while deciding the issues raised. No costs.
Dated :04.03.2013 Amit