JUDGMENT Ravi S. Dhavan, J.
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.
4. What remains is the issue on the facts of this case. This case was filed with the petitioner complaining that the public roads of Allahabad overnight were being encroached. The petitioner brought to the notice of the Court that in the vicinity of a certain area more than two tube-wells were being constructed on the pattri (sidewalk) of public roads. The petition had relied on the decisions of the Supreme Court that public roads cannot be encroached even for facilities and utilities. The Court had granted a stay order. Unfortunately, despite the stay order of the High Court, the tube-wells were constructed on the road-side. The state of construction, at the time when the petition was brought, is on record as photographs show that the process to construct was on. While the matter was pending, in violation of the orders of the High Court, the tube-wells were constructed. The Court mentions this because when this matter was brought to the notice of learned Advocate General, U. P., it was in these circumstances that an undertaking was given to the Court by learned Advocate General. U. P., along with the Administrator, Nagar Mahapalika, Allahabad, .....that there would be no further boring of tube-wells on public roads of the city". Further, the proceedings record "....... The learned Advocate General, U. P. has given an undertaking on behalf of the respondents and the State that should the Court permit the functioning of the tube-wells on the public roads as an ad interim measure, the respondents and the State shall remove the constructions and projection over the tube-wells when directed by this Court, and honour and abide by the result of the writ petition". The Court accepted the undertaking. The learned Advocate General, U. P., had understood that naked violation of the orders of the High Court to rush through the constructions of tube-wells on the side of public roads was violation of the Supreme Courtjudgmenls and the order of the High Court, both.
5. In between this case has lain until it came up for hearing after eleven years along with Sanjay Agarwal's case (supra) and other writ petitions, with which the record of this writ petition was connected.
6. The very order where the assurance and the undertaking of the Administrator. Nagar Mahapalika and learned Advocate General. U. P., is recorded permitted suggestion of alternate sides apart from public roads. The time for all this exercise before the Court now is over. In the last eleven years, it was entirely up to the administration to understand what the concept of a public road and its side walks are. Even today when the Court records this order, it appears that the State Government has taken a very strict measure and the highways and the roads throughout the city are being cleared for the reason that public roads and highways have been choked. Allahabad itself is witnessing bulldozers razing constructions of illegal occupations of roads, notwithstanding whoever may have made it. Once the Supreme Court has declared on what the concept of a public road is, encroachments of public roads, and it does not matter who may have caused it. must be removed.
7. In this case, it Is also recorded that it was the concern of learned Advocate General, U. P.. that water scarcity should best be planned. This Court is not dwelling on detailed orders on the planning of water scarcity in Allahabad and these are sufficiently contained in the order of the High Court dated 26h May, 1988. This concern of the High Court need not be repeated. Suffice it to say that for any plan for giving Allahabad another water works has yet to be executed and the problem of water scarcity will not be solved by putting tube-wells on public roads. In this regard, though, the Court recalls on what the Secretary, Nagar Vikas; had intimated the Court and as is recorded in the order of 27 August. 1990. At that time, the Secretary . Nagar Vikas, intimated the High Court that Allahabad had been allocated about Rs. 7.5 crores for water works and out of this amount, he submitted, a substantial amount was misutilised by paying salaries of the staff. He further submitted that a large amount has been debited for the non-payment of the grant. Allahabad still needs another water works apart from the expansion of the present one, which cannot cater to the needs of the city, today, relying on a water works established a century ago.
8. With the concept of the public road having been declared by the Supreme Court that encroachments cannot be made on the road-side, whether shops or facilities, these tube-wells are no exception. In the circumstances, these facilities cannot be put on the public roads. These tube-wells in question, on the undertaking of learned Advocate General, U. P.. and the assurance of the Administrator. Nagar Mahapalika, which undertaking is reiterated by learned Chief Standing Counsel, U. P., today, must be removed from the public roads. Two tube-wells are on the Thornhlll Road (Maharishi Dayanand Marg) : one in front of and next to the gate of St. Mary's Convent High School and the other at the intersection of Thornhlll Road and Kanpur Road, but on Thornhill Road towards east. The third constructed also during proceedings is on Mayo Road, the road-side next to the back of the State Bank of India. These tube-wells shall be removed from the public roads, that is, Thornhill Road (Maharishi Dayanand Marg) and Mayo Road, Learned Chief Standing Counsel. U. P., while giving his undertaking has made a request to the Court that while he undertakes on behalf of the State reiterating the undertaking of learned Advocate General. U. P.. that these tube-wells shall be removed, the Court may consider his prayer that they may be permitted to continue for the duration of the summer, until 30 September. 1999. Thereafter, learned Chief Standing Counsel undertakes that within one month, that is. on or before 31 October, 1999, all three tube-wells will be removed from the public roads, that is, Thornhtil Road (Maharishi Dayanand Marg) and Mayo Road, so that these public roads are rendered free from encroachments. The undertaking is accepted. ifis ordered for execution, accordingly.
9. The petition succeeds.
10. In view of the undertaking given by learned Chief Standing Counsel. U.P.. there will be no order on costs.
11. Let a copy of this Judgment be sent to the Chief Secretary, Uttar Pradesh.