ABHAI RAJ SINGH Vs. NAGAR MAHAPALIKA ALLAHABAD

JUDGEMENT

(1.) This case was heard along with the group of the following writ petitions : Writ Petition Nos. 3119 of 1987. 7394 of 1987. 4409 of 1988, 5515 of 1988. 12615 of 1988. 14904 of 1988. 5660 of 1989 and 5661 of 1989. By and large, the controversy raised in the writ petition is no different than in the matter of San/ay Agarwal v. Nagar Mahapalika, Allahabad and others, Writ Petition No. 3119 of 1987. decided on 20.4.1999. It is in these circumstances that part of the proceedings in the case of Sanjay Agarwal v. Nagar Mahapalika and others, while these matters were pending are recorded in the resume of proceedings of this case also. In all these cases, regardless of the aspect on who filed them, the issue was common. Thus, every counsel who appeared, whether in the Sanjay Agarwal's case (supra) on the present case, and counsel for the State respondents alike, were agreed that the issue is : What is the concept of a public road? it was in these circumstances that all these cases were grouped together and heard together.

(2.) The Court need not repeat the entire argument in the present case as these have been noticed in detail in the Sanjay Agarwal's case (supra), with which this case was connected. In Sanjay Agarwal's case, the Court has noticed several decisions of the Supreme Court. The thesis, in context, after having examined various decisions of the Supreme Court rendered in the last 40 years, is to the effect that a public road or a side-walk or a paltri does not suffer any encroachment by anybody, whether by a vendor, private person or even the State. Public roads are laid only for the purpose for which they are meant, that is to say, passage and for no other purpose. In the Judgment, re. Sanjay Agarwal's case (supra), the Court has relied upon decisions of the Supreme Court. which do not permit encroachments on public roads, whether they were in the nature of a piao (roadside drinking water facility), library or even a statue of Mahatma Gandhi. Arguments on fundamental rights of life and liberty to justify encroachment on public roads were negatived by the Supreme Court. The decisions of the Supreme Court, relied upon in the context of the matter are : Municipal Board, Mangalaur v. Mahadeoji Maharaj. AIR 1965 SC 1147 ; State of U. P. v. Ata Mohd., AIR 1980 SC 1785 ; Bombay Hawkers Union v. Bombay Municipal Corporation, AIR 1985 SC 1206 ; Olga Tellis v. Bombay Municipal Corporation. AIR 1986 SC 180 ; Delhi Municipal Corporation v. Gurnam Kaur, AIR 1989 SC 38 : Sohan Singh v. New Delhi Municipal Committee. AIR 1989 SC 1988 ; Ahmedabad Municipal Corporation a. D. Baliuant Singh, JT 1992 (2) SC 363 ; Gobind Pershad Jagdish Pershad v. New Delhi Municipal Committee, AIR 1993 SC 2313. These decisions, which otherwise are law under the Constitution, give a clear cut guidelines that public roads, roadsides, side walks, and the pattri. cannot be encroached. These public roads, the road-side or the pattri are meant for use as passage only and for no other ; neither facilities, utilities nor business. What lies between defined boundaries of the properties abutting the road as also the land between the metal road and the drains, are public pathways and part of the road. These areas are meant for passage only and no other purposes and are to be kept free at all time.

(3.) Unfortunately, of late. In Uttar Pradesh these public spaces, the road side is being encroached for facilities by the local administration and the State. These are also being encroached by granting licences to people in politics with power and clout. Both the phenomenon are illegal. The local administration clears public roads by easily evicting the poor vendor who admittedly occupies the road-side illegally. But, what about the rich who have occupied the road-side for business on a licence so cheaply available? Why is such occupation being tolerated? Are there to standards to enforce the law? One for the poor illegal squatter and the other for the rich, powerful influential illegal encroacher who buys a public road on a petty licence fee? Then, does the State or the local administration and the municipality have another set of standards to permit encroachment of the road-side by putting tube-wells and sub-stations and facilities on these spaces? No. The Supreme Court has held that the road-side is meant for the purpose for which it is laid out, that is, passage and for no other. This, then is the standard for the maintenance and the upkeep of public roads, the road side and the pattri adjoining the public road. All other constructions are illegalities which cannot be condoned under the law. These Illegalities are incurable.