Kamla Devi and Others vs Nagar Nigam and Others

We have heard learned counsel for parties and perused the pleadings of writ petition. Learned counsel submitted that petitioners belong to weaker section of the society in terms of definition as contained in the explanation to Section 26-A of the Uttar Pradesh Urban Planning and Development Act, 1973, therefore, before issuing order of demolition of petitioners'' houses, alleged to be constructed on the public lands, they should have been given opportunity by way of issuance of notice. It is also a submission of learned counsel that the petitioners have been provided electricity and water connection, apart from other civic facilities, therefore, Municipal Corporation, Lucknow, should not have passed the impugned order for demolition of their houses without prior intimation.

On the other hand, learned counsel for Lucknow Municipal Corporation, while referring to Section 296of Uttar Pradesh Municipal Corporation Adhiniyam, 1959, submits that the Municipal Commissioner may, without notice, remove anything erected, deposited or hawked or exposed for sale in contravention of Act.

On due consideration of rival submissions, we do not find any merit in the submission of the petitioners for the reason that admittedly houses were constructed on public land, some time 40 years back, as claimed by the petitioners. Though learned counsel argues that the petitioners are the members of weaker section of society and relies upon the explanations to the provisions of the proviso to Section 26-A of the U.P. Act of 1973 in support of the argument, that the petitioners cannot be removed from the public lands without giving notice but we do not find any substance in this contention.

The explanation to the proviso to Section 26-A of the U.P. Act of 1973 on reproduction reads as under:--

(1) a person belonging to ''weaker section'' means a person

(a) whose family on the date of commencement of the Uttar Pradesh Urban Planning and Development (Amendment) Act, 1997 does not hold any immovable property in any city as defined in the Uttar Pradesh Municipal Corporation Act, 1959 or any Municipal Area as defined in the Uttar Pradesh Municipalities Act, 1916;

It is also admitted that the petitioners constructed houses sometime 40 years back on the public land. However, Section 26-A of the U.P. Act of 1973 where under the petitioners have sought the protection was inserted by the U.P. Act No. 3 of 1997, thus, at the time of raising illegal construction and during the stay over the land for a period of about 20 years thereafter there was no provision of law to provide them opportunity by way of show cause notice before removal of the encroachments. Moreover, it is also not clear from the documents annexed with the writ petition that the petitioners'' names are entered as the members of weaker section of society in the Municipal record. Thus simply by not holding any land within the notified urban area/municipal limit, the petitioners do not become entitled to be called the members of the weaker section of the society for the purpose of illegally occupying the public land. Moreover, if we are to accede to this submission of learned counsel for the petitioners, then, even landlords with big land holdings of agricultural lands can become the members of the weaker section of the society, on the ground that they do not hold any land in urban areas and in case of encroachments over public land, they can not be removed without issuance of show cause notice. Thus, we are not inclined to accept the writ petition, hence, it is hereby dismissed.

However, looking to the fact that the petitioners claim to have stayed on the public land for over 40 years, it would have been appropriate for the Lucknow Municipal Corporation to issue a notice before taking a decision to demolish their houses. Thus in the special facts and circumstances of the case, we direct the Lucknow Municipal Corporation to give an opportunity by issuing show cause notice to the petitioners and take decision on their replies within a period of 15 days. In case of rejection of the replies, the petitioners shall be provided 10 days time, thereafter, to remove and shift their household articles to places where they propose to settle. After the said period, the Lucknow Municipal Corporation will be at liberty to remove the encroachment by demolishing the illegal constructions/structures. The writ petition is dismissed with aforesaid directions and observations.