Bahraich Violence | 'Any 'Illegal' Construction Is Liable To Be Demolished': UP Govt To High Court, Justifies Issuance Of Notices To 'Encroachers'

The affidavit also states that the proposed action is in the interest of the public residing in the vicinity and of persons using the Major District Road for transportation.

The affidavit, filed by Chief Engineer Devi Patan (Gonda) PWD Awadhesh Sharma Chaurasia on October 25, has been filed pursuant to the HC's October 20^th order to the state government to specify the number of maps sanctioned for construction along the road in question.

The order was passed by a bench of Justice Attau Rehman Masoodi and Justice Subhash Vidyarthi while dealing with a PIL plea filed by the Association For Protection of Civil Rights challenging the UP government's proposed action to demolish properties belonging to the accused person.

The affidavit filed by the state government avers that the buildings/houses of 'encroachers' have been issued notices by its Public Works Department since they were constructed in violation of Rule 7 of the UP Roadside Land Control Rules 1964.

Here, it may be noted that the impugned PWD notices state that the constructions are "illegal" since they were built 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 states that buildings shall not be built within the building lines, i.e., within the distances from the centre-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 road in question (where the alleged illegal constructions have been raised by the 'encroachers') was initially notified as an Other District Road (ODR), but in June 2021, it was reclassified as a Major District Road (MDR) under Section 3 of The Uttar Pradesh Roadside Land Control Act, 1945.

The state government has maintained that any construction raised within the prescribed distance from the centre of the Major District Road (MDR) is illegal and liable to be demolished.

“It is relevant to mention here that in case any illegal construction activity or any construction being done contrary to the provisions of law as applicable will be dealt with by the opposite parties in accordance with law and only in view of aforesaid giving if such notice to the 23 persons concerned is only a preliminary action for which an opportunity was required to be given to such persons,” the affidavit avers.

The state government further argues (as pleaded in its counter-affidavit) that the area around kilometre 38 of the Kundasar-Mahsi-Nanpara Road is accident-prone, as ongoing construction has turned a previously straight road into a sharp curve.

Thus, on October 16, 2024, a 14-member committee was constituted to inspect and demarcate encroached areas on the mentioned roads. During the inspection, the committee found that the "S" curve near kilometer 38 had been caused by construction too close to the road, which compromised visibility and contributed to frequent accidents.

The inspection report identified 24 such buildings violating the provisions of Rule 7. Pursuant to this, notices were issued to the 23 individuals listed in the inspection report. The State Government claims that the PW Department also confirmed that no permissions had been granted for construction in the notified area.

Importantly, the affidavit also contains a letter from the appropriate authority, the Road Side Land Control Act (written to the Executive Engineer, PWD), stating that no permission had been issued from the office of the District Magistrate, Bahraich, for the construction of any building at Km. 38 of Kundasar Mahsi Nanpara (MDR).

Response to the maintainability of the PIL plea

The State Government's affidavit also challenges the maintainability of the PIL plea on the grounds that the association has failed to provide its own credentials as required by Chapter XXII rule 3 A of the Allahabad High Court rules.

In its rejoinder affidavit filed yesterday, the association (represented by Advocate Saurabh Shankar Srivastava) specified various Public Interest Litigations filed by it advancing the 'genuine' causes for the 'betterment of the Society' at large.

The rejoinder also states that the state government is 'shamelessly' defending and justifies its 'illegal' action, marked by 'undue discrimination against a specific community', manifesting a punitive approach intended to administer retributive justice outside the ambit of the law.

In its rejoinder, the association has also averred that the demolition notices were pasted on the properties knowing well that under the circumstances, the said orders would neither be delivered to the owners of the properties nor would they come forward to submit their responses, as most of them have fled and abandoned their properties due to fears of malicious prosecution.

It may be noted that the notices issued to the alleged encroachers stated that if the construction had been carried out with permission from the District Magistrate of Bahraich or prior departmental approval, the original copy of such permission must be provided immediately.

Furthermore, the notices asked the occupants to remove the 'illegal' construction within three days, adding that failure to do so would result in the authorities removing the construction with the assistance of the police and administration, and the costs incurred for the removal would be recovered through revenue proceedings.

On October 20^th, the High Court extended the 3-day time period to 15 days (to respond to the notices).

Hearing the matter on November 6, the Court orally asked the Uttar Pradesh Government to ensure that nothing is done selectively pursuant to the demolition notices.

“I know the state has a lot of responsibilities to maintain peace and tranquillity, but please ensure that things are not done selectively. There has to be checks and balances. The object of ensuring peace is one thing; the object of demolition is another…please don't do anything which is not in accordance with law”: Justice Attau Rehman Masoodi orally told the Additional Advocate General VK Shahi.

A bench of Justice Masoodi and Justice Subhash Vidyarthi also added that before any demolition is undertaken, a proper survey and demarcation must be done as per the relevant rules and laws.

The division bench noted that the state's counter to the PIL plea was missing from the file and hence, posting the matter for next week, the Court asked the UP Govt to reply to the following three aspects of the matter specifically:

• Whether a survey and demarcation were done as per the relevant law before issuing notices to private citizens?
• Whether the state undertook a survey to ascertain if the people who have been issued notices, are the real owners of the property or if some of them are just tenants.
• Whether the notices are issued by the appropriate authorities.

The matter will now come up for hearing on November 11.