The affidavit also states that the proposed action is in the interest of the public residing nearby and people using the main district road for transportation purposes.

The affidavit, filed by Chief Engineer Devi Patan (Gonda) PWD Awadhesh Sharma Chaurasia on October 25, was filed in accordance with the HC October 20^th order for the state government to specify the number of maps permitted for construction along the road in question.

THE order was overtaken by a shoal of Justice Attau Rehman Masoodi and Justice Subhash Vidyarthi while dealing with a PIL plea filed by the Association for the Protection of Civil Rights challenging the proposed action of the UP government to demolish the properties belonging to the accused.

The affidavit filed by the state government claims that the buildings/houses of the ‘encroachers’ were issued notices by its public works department as they were constructed in violation of the Rule 7 of the UP Roadside Land Control Rules, 1964.

Here, it is to be noted that the impugned PWD notices state that the constructions are “illegal” as they have been constructed within 60 feet of the central point of the road in rural areas, which is not permitted.

For context, Rule 7 of the 1964 Rules states that the buildings will not be built within building lines, i.e. within the distances from the center line of any major district road (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 were raised by the ‘encroachers’) was initially notified as an Other District Road (ODR), but in June 2021, it was reclassified as an 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 center of the Main District Road (MDR) is illegal and subject to demolition.

“It is pertinent to mention here that in case any illegal construction activity or any construction carried out contrary to the applicable legal provisions shall be dealt with by the opposite parties in accordance with law and only in view of the above, if such notification on 23 persons concerned constitutes only a preliminary action for which it was necessary to give these persons the opportunity“, states the affidavit.

The State Government further claims (as it explains in its counter-affidavit) that the area around kilometer 38 of the Kundasar-Mahsi-Nanpara road is prone to accidents, as ongoing construction has turned a previously straight road into a sharp bend.

Thus, on October 16, 2024, a 14-member committee was constituted to inspect and demarcate the encroached areas on the mentioned roads. During the inspection, the commission found that the “S” curve near kilometer 38 was caused by work too close to the road, compromising visibility and contributing to frequent accidents.

The inspection report identified 24 of these buildings violating the provisions of Rule 7. In line with this, notices were issued to the 23 persons listed in the inspection report. The state government says the PW department also confirmed that no permission had been granted for construction in the notified area.

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

PIL Advocacy Maintainability Response

The state government’s affidavit also challenges the maintainability of the PIL plea on the ground that the association failed to furnish its own credentials as required under Rule 3 A of Chapter XXII of the Rules of the Allahabad High Court.

In its reply under oath filed yesterday, the association (represented by Lawyer Saurabh Shankar Srivastava) specified various public interest litigations filed by her to advance the “genuine” causes for the “betterment of society” at large.

The reply also said the state government “shamelessly” defends and justifies its “illegal” action, marked by “undue discrimination against a specific community”, manifesting a punitive approach intended to administer justice retributive action outside the framework of the law.

In its reply, the association also claimed that the demolition notices were posted on the properties with full knowledge that in these circumstances, the said orders would neither be issued to the owners of the properties nor would they appear to submit their responses , for most of them fled and abandoned their properties for fear of malicious prosecution.

It may be noted that the notices issued to the alleged encroachers stated that while the construction was carried out with the permission of the District Magistrate of Bahraich or prior approval from the ministry, the original copy of this authorization must be provided immediately.

Furthermore, the notices asked the occupiers to remove the “illegal” construction within three days, adding that otherwise, the authorities would remove the construction with the help of the police and administration, and the costs incurred for withdrawal would be recovered through tax procedures.

October 20^ththe High Court extended the deadline of 3 days to 15 days (to respond to reviews).

Having heard the case on November 6, the Court asked orally THE Government of Uttar Pradesh to make sure nothing is done selectively following demolition notices.

“I know that the state has many responsibilities in maintaining peace and tranquility, but please ensure that things are not done selectively. There must be checks and balances. The goal of ensuring peace is one thing; the purpose of demolition is another… please don’t do anything that is not in accordance with the law»: Judge Attau Rehman Masoodi said orally to Additional Advocate General VK Shahi.

A bench of Justice Masoodi and Justice Subhash Vidyarthi also added that before any demolition, proper survey and demarcation should be carried out in accordance with existing rules and laws.

The division bench noted that the State’s response to the PIL plea was missing from the record and hence, by posting the matter next week, the Court asked the UP government to specifically respond to the three aspects following of the case:

• Was investigation and demarcation carried out in accordance with the relevant law before issuing notices to private citizens?
• Has the State undertaken an investigation to verify whether the people who received notices are the real owners of the property or whether some of them are just tenants?
• If the notices are issued by the competent authorities.

The case will now be heard on November 11.