H.C.P. Tripathi, J. - (1.) PETITIONER owns a house in a village in the district of Almora. A road passes through that village. In June, 1965 Petitioner received a notice from the Deputy Commissioner Almora alleging that he has "started construction of a building on the road side...without obtaining any permission for the said construction." He was directed to stop further construction and to demolish that which has already been made failing which action was to be taken Under Section 13(2) of the UP Road Side Land Control Act. Petitioner appeared before the Deputy Commissioner and pointed out to him that no new construction had been made and all that he had done was to repair the second floor of his house by replacing the wooden planks on the side walls with the masonary work and the first floor had been left untouched. For this the Petitioner alleged that no permission was needed.
(2.) THE Deputy Commissioner, how ever, held that even if the wooden walls have been substituted with masonary walls on the higher storey it needed permission of the prescribed authority. Accordingly he passed the impugned order dated 1 -9 -1965 directing the Petitioner to get the constructions removed. This writ petition is directed against that order. In the petition it has been asserted that he had only repaired the upper storey of his house by replacing tattered wooden walls with masonary walls and that the ground floor and first floor of the house had not been touched. In the counter affidavit this allegation has not been denied. On the other hand, it has been stated in paragraph 5 of the counter affidavit that "the Overseer was not sure if the floor under construction existed previously and as such there is no mode of | finding out whether the construction reported was a replacement." Again in paragraph 8 it has been averred that the Petitioner "engaged in a thorough and extensive replacement of all the said wooden walls...."
(3.) IT is thus obvious that the Petitioner's allegation is that he was neither constructing a new house nor re -erecting a new building nor extending any excavation but had only repaired the tattered walls of his upper storey by giving them a more durable character is correct. Thus it was not necessary for him to obtain permission as is envisaged Under Section 5 of the load Side Land Control Act and the impugned order directing him to demolish the construction is not sustainable.;