RAHDEY MOHAN Vs. ROADSIDE LAND CONTROL OFFICER

JUDGEMENT

(1.) THIS petition under Article 226 cl the Constitution of India is directed against the judgment and order dated 20-5-1981 passed by the Additional Sub-Divisional Officer (Roadside Land Control Officer), Fatehpur directing the petitioner to demolish and remove himself the unauthorised construction 16' x 31' at Mohalla Collectorganj, Qasba Fatehpur on Fatehpur Banda-Sagar Road between 226"-236" to wards east of 1 mile 8 furlong distance within 3 months from the date of the order, failing which illegal construction would be demolished through police, the expenses in doing so to be recovered as arrears of land revenue, Rs 300/- assessed as cost was directed to be paid in a fortnight failing which it was also directed to be recovered as arrears of land revenue.

(2.) THE petitioner stated that the proceedings for demolition of the constitution in dispute was taken by the State under section 13 of the U. P. Roadside Land Control Act (hereinafter referred to as the Act) in 1974-Case No. 335 of 1974. THE Roadside Land Control Officer by order dated 12-12-1974 directed to demolish and remove the disputed constitution and directed to deposit Rs.150/- as cost. THE petitioner being aggrieved by the said order had preferred a Crl. Revision No. 237 of 1975 before this Court. This Court was pleased to allow the said revision by order dated 22-12-1978, remanding the case with direction that the trial court would allow the accused (petitioner) to take up the plea that the notification was Invalid and to argue specific grounds on which the notification is said to be Invalid. It was also provided that the prosecution shall be allowed an opportunity of proving the notifications and order of demolition on the case being proved shall be passed by the District Magistrate or the Magistrate duly Invested with the powers of the District Magistrate to perform the functions under the Act.

(3.) WE have already referred to the statement of witness S. H. Siddiqui who proved the publication of the Gazette in the two non-English daily newspapers. The petitioner had not challenged or controverted the evidence of Shri S. D. Siddiqui If the petitioner himself failed to raise the plea about notification and argue about the validity of the notification before the Roadside Land Control Officer after remand, he himself is to be blamed. The judgment impugned shows that no such point was argued or pressed by the petitioner. An argument not raised or convassed before the court below generally should not be permitted to be raised in the writ petition under Article 226 of the Constitution. It is apparent from the record that the Gazette notification under section 3 (1) of the Act was duly published and a copy of the gazette notification was filed by the State in the court below itself There is presumption of conclusive proof under section 3 (7) about the declaration contained in such notification when published in official gazette that the notification has been duly made in accordance with provisions of this Act. The learned counsel for the petitioner placed reliance on khurkhur v. State through the Asstt. Engineer. PWD, AIR 1970 Alld. 198 (F.B.) and submitted, it was obligatory for the State to have proved that declaration under section 3 (1) of the Act was published after following the procedure prescribed under sub-sections (2) to (6). Shri Pradeep Chandra further submitted that there could be no presumption about the declaration under section 3(1) of the Act unless it was proved that the procedure under sub-section (2) to (6) was duly followed. WE. fully agree to the submission that there could be no legal presumption about due procedure of sub-section (2) to (6) of section 3 by mere proof that declaration under section 3 (1) of the Act. This was the precise point on which the Criminal Revision No. 237 of 1975 filed by the petitioner was allowed by this Court and case was remanded to the court below. It is conclusively shown that respondent examined the witness Shrl S. H. Siddiqui, from the Secretariat, who proved that procedure provided under section 3 (2) to (6) was duly complied and there after the publication of the declaration under section 3 (1) of the Act was published in gazette. As already observed above that the respondent after remand of the case adduced evidence and proved the necessary facta about the due compliance of the procedure under sub-section (2) to (6) of section 3, the, petitioner neither raised this argument before the court below again nor had challenged it in any manner there. WE have examined the statement of witness Shri S. H. Siddiqui annexed as CA-3 by the State respondents and we have no hestation in holding that the procedure provided under section 3 (2) to (6) was duly followed prior to publication of gazette notification about declaration under section 3 (1) of the Act, WE are not raising any presumption under section 3 (7) of the Act, but are satisfied from the evidence on record,