Krishna Pal Singh Bisen vs State of U.P.and Another

D. K. Seth, J.—In this writ petition, the order dated 1212 1984 passed by the Roadside Land Control Officer, Fatehpur in Case No. 13 of 1981 has been challenged. The said case was initiated under Section 13(2) of the Roadside Land Control Act. Admittedly, BandaSagar road was notified by Notification No. 4033MS6CLA55, dated 1991955. The Assistant Engineer, Temporary Division, P.W.D., Fatehpur, lodged a complaint on 157 1977, that the petitioner had made construction within the prohibited limit from the middle line of the said road in the east side at km. 2,249 without written permission from the Collector, Fatehhpur. A map was prepared by the Assistant Engineer, which was exhibited as Ka/1 in the said case No. 13 of 1981. The said case was contested by the petitioner on the basis of notice served upon him.

The petitioner had filed his written statement and was represented by his learned advocate.

The petitioner''s case was that a house was constructed in 1944 and that there was some damage due to rain in the year 1970. The petitioner got the same repaired. Besides he had taken the point that the said officer had no jurisdiction to hear the case and that the petitioner had constructed the house on his own land and, therefore, the Government cannot object to it.

The learned counsel for the petitioner has assailed the said order dated 12121994 on the ground that it is apparent from the record, being annexure7 to the writ petition, that the alleged construction was about twenty years old. This presupposes that the said construction was made in the year 1944 when the house itself was constructed and that said report was not at all considered by the concerned officer at the time of deciding the said case. He has pointed out that no reference to the said record has been made in the impugned order. The authority, according to him, proceeded on the basis of first report of the Tehsildar, submitted on 1321980 and overlooked the other report, contained in annexure7 to the writ petition, altogether. Since the house was constructed in the year 1944 and the disputed construction was made along with it, the same can never be the subjectmatter of the said proceeding.

After hearing the learned counsel for the parties and perusing the order and materials placed before us, it appears that the said order has been passed after considering the report of the Assistant Engineer as well as the report of the Tehsildar, submitted on 1321980. On the basis of those report he has come to a finding that the disputed construction was made within the prohibited area and the same was constructed newly. On the basis of such report, there is a findings that originally the house was constructed according to the approved plan 781944. But the disputed Varandah was constructed newly.

It is apparent from the order itself that the other report being Annexure7 to the writ petition was not considered. According to the learned counsel for the petitioner the same is a material piece of evidence which was not taken into consideration. We have gone through the said report. The report proceeds on the basis that all the adjacent houses are constructed at the same line excepting the petitioner''s house which is 13 feet ahead of the line of other construction. The disputed Varandah is about 13 feet wide. There is a definite findings in the said report, contained in Annexure7 to the writ petition that the said disputed Varandah is within the prohibited area. In the said report it has been opined by the Tehsildar that the construction, appears to have been made twenty years before. It is noted in the said report that inspection was made pursuant to the order, dated 1541982. Twenty years from the said date relates back to 1962 which is long after 1955. Whereas the other report dated 1321980 clearly said that the construction was newly made, These are all finding of facts.

In exercise of writ jurisdiction this court is not supposed to enter into the disputed questions of fact. However, looking at the second report, being Annexure7 to the writ petition, we do not find that even if the said report is considered, there can be any material change in the impugned order itself. We, therefore, do not find any reason to remand the case back for consideration of the said report because of the reasons that the said report also goes against the petitioner''s case. Inasmuch as the said report held that the disputed construction is within prohibited area and was only twenty years old. The said report does not help, in any manner, the petitioner''s case. Therefore, the said report is not a material piece of evidence. Any construction made within the prohibited area after 1955 attracts the mischief of Section 13(2) of the Roadside Land Control Act.

In the circumstances, mentioned above, we are not inclined to interfere with the order and we do not find any merit and substance in the submission made by the learned counsel for the petitioner.

However, before parting with the case we, however, record our observation that the authority may take steps to demolish that part of the disputed construction, which is within the prohibited area without affecting the main structure as far as possible.

In the result the writ petition fails and is hereby dismissed. There will be no order as to costs.