N. L. Ganguly, J. - (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. The impugned order has been passed by the respondent no. 1 in pursuance of proceedings after the High Courts remand order This time the petitioner had not approached the Sessions Court in appeal or Criminal revision before this Court, but filed' this writ petition. The learned counsel for the petitioner submitted that the Impugned judgment is bad in law and illegal on the grounds : (I) The Roadside Land Control Officer has cot decided the question about the non-publication of the notification in two non-eng!ish newspapers, as directed by this Court in Crl. Revision No. 237 of 1975. (II) The Roadside Land Control Officer failed to comply with the High Court's order. (III) The Roadside Land Control Officer has not considered the evidence led by the petitioner on the ground that the witness examined is the father of the petitioner. (IV) The Roadside Land Control Officer has not recorded any finding that the disputed construction was not made prior to the date of notification published in the Gazette 1955-59. (V) The order directing the petitioner to deposit Rs, 300/- as costs or expenses is unwarranted. (VI) The Sub-Divisional Officer who decided the case was not competent in law and had no jurisdiction to proceed against the petitioner. It would be convenient for properly adjudicating the petition by referring the relevant provisions of the Act itself The Act was legislated with a view to control the haphazard construction of buildings along the roads including the national highways. The State Government may by notification in the official gazette, declare under section 3 (1) of the Act any land within a distance of four hundred and forty yards from the centre line of any road to be a controlled area for the purposes of the Act. Provision of section 3 (2) of the Act are quoted as under :- "3 (2). When an order has been made refusing permission to erect or re erect a building any person who has exercised the right of appeal given by sub-section (1) of section 7 may, within three months of the date of the order of the State Government, make to the State Government a claim for compensation on the ground that his interest in the land concerned is injuriously affected by the said order." "3 (3). On receipt of a claim under sub-section (2), the State Government shall either proceed to acquire the land concerned under the Land Acquisition, Act, 1894, or transfer the claim for disposal to an officer exercising the powers of a Collector under the said Act : Provided that in case the State Government decided to acquire the land, (i) It shall not be necessary for land occupied by a place of worship, tomb, cenotaph, graveyard, graves or marghat to be included (ii) the claimant shall be entitled to be repaid by the acquiring authority the amount of expense which he may have properly incurred in connection with the preparation and submission of his claim for compensation under this section, and in default of agreement such an amount shall be determined by the authority deciding the value of the lend in the proceeding under the Land Acquisition Act, 1894 " The learned counsel for the petitioner submitted that the State before making the declaration under section 1 had failed to get the said declaration in at least 2 newspapers printed other than In English language. The High Court was satisfied about this deficiency when the criminal revision filed by the petitioner was finally decided by this Court and this Court was pleased to remand the case to the authority below. The learned counsel Sri Pradeed Chandra placed paragraph no. 8 of the writ petition in which It is stated.." the officer has not decided the question about the non-publication of the notification in two non -English newspapers The respondent-State filed counter affidavit and in paragraph 10 it has been stated that the petitioner did not challenged the evidence adduced by the State at initial stage. After remand order by the High Court, the State produced Sri S. H. Siddiqui, dealing Assistant of the U. P. State Secretariat who stated about publication of the declaration in 2 non-vernacular newspapers. The witness filed the copies of the gazette publication and also copies of publication in Hindi and Urdu in daily "Navajeevan" and "Haq", The statement of witness recorded in the Court below have been annexed with the counter affidavit. The submission of learned counsel for petitioner to this aspect is thus misconceived. The High Court's judgment remanding the case stated," The case Is remanded back to Roadside Land Control Offices where the accused be allowed to take up the piea that the notification was invalid and to argue specific grounds on which the notification is said to be unlawful. The prosecution shall be allowed an opportunity of proving the notification.
(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, The learned counsel for petitioner submitted that construction in dispute existed at the spot for more than 30 years and it could not be ordered to be demolished. He also submitted that the courts below have not considered evidence led by the petitioner. The submission is devoid of merit. The judgment impugned shows that the petitioner's witnesses have been disbelieved by the court below on the ground that one witness examined is the father of petitioner as such interested and other witness is of a distant place and is not reliable. The findings of fact recorded after appreciation of evidence is not open to challenge under Article 226. The learned counsel for the petitioner is not justified in urging thai the court below had not complied with the directions of the High Court in the remand order, The learned court below recorded findings that since the gazette notification under section 3 (1) of the Act declaring the area as Regulated are* w.e.f. 19-9-1955 and 30-4-1959 and the disputed construction was wised in presence of P. V. Shri Sharma Junior Engineer who is posted there since 1969. Thus, the construction in question is proved to have been made after the date of the declaration of the regulated area. The submission of Shri Pradeep Chandra that the court below has not recorded a finding that the disputed construction was not raised prior to the dates of notifications published in the gazette 1955 and 1959. This argument is wholly misconceived to expect for negative proof of a fact. A fact could be positively proved. The respondents have proved that the construction was raised in presence of PW Shri Sharma, Junior Engineer, who is in Fatehpur since after 1969. The burden of proof that construction in question was 30 years old or existed prior to the notification and declaration under the Act was on the petitioner himself, which he failed to discharge.;