Bahraini violence | ‘Any ‘illegal’ construction to be demolished’: UP Govt to High Court to justify issuing notices to ‘encroachers’

The affidavit also states that the proposed action is in the interest of the public living nearby and persons using the Main District Road for transportation.

Affidavit submitted Chief Engineer Devi Pathan (Gonda) PWD Avadhesh Sharma Chaurasia On October 25, it was submitted according to HC on October 20^thousand order to the State Government to indicate the number of maps permitted for construction along the road in question.

The order passed the bench Justice Attau Rehman Masudi and Justice Subhash Vidyarthi during the pendency of the PIL petition filed Association for the Protection of Citizens’ Rights challenging the UP Government’s proposed action to demolish the property belonging to the accused.

In a statement filed by the state government, it has been alleged that the houses/houses of the “encroachers” have been issued notices by the Public Works Department as they were constructed in violation of Rule 7 of the UP Roadside Land Control Rules 1964.

It may be noted here that the impugned PWD notifications have stated that the structures are “illegal” as they have been constructed within 60 feet of the central point of the road in rural areas, which is not permissible.

For context, Rule 7 of the 1964 Rules claims that the building not being built within the building lines i.e. within the distances from the center line of any major district roads (MDR) which are 60 feet for open and agricultural areas and 45 feet for urban and industrial areas.

The affidavit categorically states that the said road (on which the “offenders” had allegedly made illegal constructions) was initially notified as an Other District Road (ODR) but was reclassified as a Major District Road (MDR) in June 2021 under Section 3 of the Act of Uttar Pradesh on Control of Roadside Lands, 1945.

The state government claims that any construction erected at a prescribed distance from the center of a major district road (MDR) is illegal and should be demolished.

“It is important to note here that in case of any illegal construction activity or any construction carried out contrary to the provisions of the law, the opposite parties will be dealt with according to law and only in view of the above provision if such notice is given to the 23 persons concerned, is only a preliminary action for which it was necessary to provide an opportunity to such persons“, the affidavit states.

The State Government also contends (as contended in its counter affidavit) that the area around 38 kilometers of the Kundasar-Mahsi-Nanpara road is prone to accidents as ongoing construction has turned the previously straight road into a sharp bend.

Thus, on October 16, 2024, a commission of 14 people was created to survey and demarcate prohibited areas on the specified roads. During the inspection, the committee found that the “S” turn near the 38th kilometer was caused by construction too close to the road, which reduced visibility and contributed to frequent accidents.

The inspection report found 24 such buildings in violation of Rule 7. Accordingly, notices were issued to 23 persons mentioned in the inspection report. The state government claims that the Health Department has also confirmed that no construction permits have been issued in the notified area.

Significantly, the affidavit also contains a letter from the concerned authority, the Roads Control Act (written to the Executive Engineer, PWD), stating that the District Magistrate of Bahraich had not granted permission for any development on Km. 38 Kundasar Mahsi Nanpara (MDR).

Reply to maintainability of PIL application

The state government’s affidavit also challenges the maintainability of the PIL on the ground that the association has not provided its own authority as required by Rule 3 A of Chapter XXII of the Allahabad High Court Rules.

In its statement in reply filed yesterday, the association (in person Advocate Saurabh Shankar Srivastava) pointed out the various public interest litigation cases she filed to advance “genuine” causes of “betterment of society” as a whole.

The response also stated that the state government is “shamelessly” defending and justifying its “illegal” actions labeled as “unlawful discrimination against a particular community”, demonstrating a punitive approach aimed at administering punitive justice outside the law.

In its reply, the association also claimed that the demolition notices were pasted on the property knowing full well that under the circumstances the said orders would not be served on the property owners and they would not come forward to file their responses, as most of them fled and abandoned their property for fear of malicious persecution.

It should be noted that in the notices issued to the alleged violators, it was stated that if the construction was carried out with the permission of the district judge of Bachreich or prior approval of the department, the original of such authorization must be provided immediately.

In addition, the notice asked the residents to remove the “illegal” structure within three days, adding that if they do not do so, the authorities with the help of the police and the administration will dismantle the structure, and the costs incurred for the dismantling will be recovered in revenue proceedings.

October 20^thousandHigh Court expanded period from 3 days to 15 days (provide a response to the message).

Considering the case on November 6, the court asked verbally in Uttar Pradesh Govt to make sure nothing is done selectively according to demolition notices.

“I know that the state has many responsibilities to maintain peace and tranquility, but please make sure that everything is not done selectively. There must be a system of checks and balances. The purpose of securing peace is one thing; the demolition object is different…please don’t do anything illegal”: Judge Attau Rehman Masudi orally told in Additional Advocate General Shahi V.K.

Bench with Justice Masudi and Justice Subhash Vidyarthi also added that before any demolition, proper survey and demarcation should be done as per relevant rules and laws.

The Division Bench observed that the state’s reply to the PIL was missing from the case file and hence posting the case for next week, the Court asked the UP Government to specifically respond on the following three aspects of the case:

• Was research and demarcation carried out in accordance with the relevant law before issuing notices to private individuals?
• Has the state conducted a survey to find out whether the people who have been issued notices are the real owners of the property or some of them are just tenants.
• Are notifications issued by the relevant authorities?

Now the case will be considered on November 11.