The affidavit also states that the proposed action is in the interest of the public living nearby and of people who use the Major District Road for transport.

Affidavit filed by Chief Engineer Devi Patan (Gonda) PWD Awadhesh Sharma Chaurasia on October 25, it was filed under HC on October 20^th command to the State Government to specify the number of maps sanctioned for construction along the road in question.

The command was passed a bank of Justice Attau Rehman Masoodi and Justice Subhash Vidyarthi while dealing with a PIL complaint filed by Association for the Defense 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 states that the buildings/houses of the “encroachers” have been issued notice by the Public Works Department since they were constructed in violation of the Rule 7 of the Roadside Land Control UP Rules 1964.

Here, it can be observed that the impugned PWD notices state that the constructions are “illegal” as they were built 60 meters from the central point of the road in rural areas, which is not allowed.

For context, Rule 7 of the 1964 Rules states that the buildings they will not be built within building lines i.e. within the distances from the center line of any Major District Roads (MDRs) 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 erected by “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 Lands Control Act, 1945.

The state government claimed that any construction erected at the prescribed distance from the center of the Major District Road (MDR) it is illegal and can be demolished.

“It is relevant to mention here that in case of any illegal construction activity or any construction which is carried out contrary to the provisions of law, as the case may be, it will be dealt with by the opposite parties in accordance with law and only with a view to the aforesaid award if a such notification to 23 data subjects is only a preliminary action for which it was necessary to give an opportunity to these data subjects“, the affidavit states.

The State Government further contends (as pleaded in its counter-affidavit) that the surrounding area kilometer 38 of the Kundasar-Mahsi-Nanpara road is prone to accidents as ongoing construction has turned a previously straight road into a sharp curve.

Thus, on October 16, 2024, a 14-member committee was established to inspect and delimit the invaded areas on the mentioned roads. During the inspection, the commission found that the “S” curve near kilometer 38 was caused by construction too close to the road, which compromised visibility and contributed to frequent accidents.

The inspection report identified 24 such buildings in violation of the provisions of Rule 7. Accordingly, notices were issued to the 23 persons listed in the inspection report. The state government claims that the PW Department has also confirmed that no permissions have been granted for construction in the notified area.

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

Reply to maintainability of PIL plea

The state government’s affidavit also challenges the maintainability of the PIL on the ground that the association has not furnished its own credentials as required by Chapter XXII Rule 3 A of the Allahabad High Court Rules.

In the rejoinder filed yesterday, the association (represented by Advocate Saurabh Shankar Srivastava) specified various public interest litigations filed by it, advancing “genuine” causes for the “improvement of Society” at large.

The rejoinder further states that the state government is “shamelessly” defending and justifying its “illegal” action, marked by “unjustified discrimination against a particular community”, manifesting a punitive approach designed to administer retributive justice outside the ambit of law.

In the rejoinder, the association also stated that the demolition notices were pasted on the properties knowing full well that under these conditions, the said orders would neither be handed over to the property owners nor would they submit their responses, as most of them fled and abandoned their properties due to fears of malicious prosecution.

It is noted that in the notices issued to the alleged aggressors it was mentioned that, if the construction had been carried out with the permission of the Magistrate of the sector of Bahraich or prior approval of the department, the original copy of this permission must be provided immediately.

The notices further 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 tax proceedings .

On October 20^thHigh Court prolonged time period of 3 days to 15 days (to respond to notifications).

Hearing the case on November 6, the Court asked orally THE Government of Uttar Pradesh to make sure nothing is done selective according to the demolition notices.

“I know the state has a lot of responsibilities to maintain peace and tranquility but please ensure that things are not done selectively. There must be checks and balances. The object of securing peace is one thing; the object of the demolition is another… please do not do anything that is not in accordance with the law“: Judge Attau Rehman Masoodi said orally Additional Solicitor General VK Shahi.

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

The division bench noted that the state’s challenge to the PIL application was missing from the record and therefore listing the matter for next week, the Court asked the UP Government to specifically respond to the following three aspects of the matter:

• Whether a survey and demarcation was done as per existing law before issuing notices to private citizens?
• Whether the State has undertaken a survey to ascertain whether the persons to whom notices have been issued, are the true owners of the property, or whether some of them are merely tenants.
• If the notices are issued by the competent authorities.

The matter will now be heard on November 11.