Allahabad High Court
Vikash Rai & 14 Others vs State Of U.P. & 12 Others on 25 March, 2014
Bench: Amreshwar Pratap Sahi, Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 21
Case :- WRIT - C No. - 17151 of 2014
Petitioner :- Vikash Rai & 14 Others
Respondent :- State Of U.P. & 12 Others
Counsel for Petitioner :- K.S. Rathaur
Counsel for Respondent :- C.S.C.,Shiv Kumar Yadav,Shivam Yadav,Vivek Varma
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Vivek Kumar Birla,J.
Heard Sri Rathore learned counsel for the petitioners, Sri Shivam Yadav for the respondents no.6 to 9, the learned Standing Counsel for the respondents no.1 to 5 and 10 to 12 and Sri Vivek Varma for the respondents no.13. The petitioners have challenged the notice for removal of construction over 100 feet wide road, Nirala Nagar Juhi Kalan, Kanpur. Such proceedings have been undertaken under Section 26(A)-1 read with Section 26(A)-4 of the U.P. Urban Planning and Development Act, 1973.
Sri Shiv Kumar Yadav has appeared for the caveator who had filed Writ Petition No.71974 of 2009.
This is a matter which has arisen on account of an allegation of encroachment over a 100 feet wide road in Kanpur which became subject matter of allotment through the Government Orders dated 15.1.2009 and 19.1.2009. The road which was 100 feet wide was reduced to 60 feet and the scheme appears to have been floated on the birthday of the former Chief Minister of U.P. on 15.1.2009.
Learned counsel for the petitioners submits that these Government Orders have been issued in the exercise of powers under Section 41 of the U.P. Urban Planning and Development Act, 1973. Learned counsel has further relied on certain interim orders passed by this Court and has urged that once the petitioners have been rehabilitated under a particular scheme it is not open to the respondents to carry out any demolition in the name of encroachment.
We had called upon the learned counsel for the petitioners to clarify the status of the land from the revenue records in order to understand as to whether a road or any other such public utility land can be subject matter of allotment to private persons. In spite of repeated queries, learned counsel for the petitioners has been unable to point out any material that may be termed as a valid revenue record to indicate that the land over which the encroachments are stated to have been raised is not a public utility land.
Consequently, we are of the opinion that by an executive fiat namely Government Orders, as relied upon by the petitioners, no title or right can accrue either in the development authority or the State to barter away public utility land. Even under the Government Order itself Clause 3.12(6) thereof specifically excludes any such area from such allotment. Any lease or other document founded on such allotment cannot be sustained nor a government order can be based as a birthday return gift.
We are, therefore, of the clear opinion that the petitioners are clear encroachers over public utility land and therefore the directions issued in Writ Petition No.71974 of 2009 have to be complied with.
The petitioners have no legal or any other right available in law so as to maintain this petition. Rejected.
Order Date :- 25.3.2014
Anand Sri./-
