JUDGMENT Ravi S. Dhavan and V.P. Goel, JJ.
1. The record of these writ petitions are such that the Court is not inclined to interfere in this matter for the simple reason that it neither agrees with the petitioners nor with the respondents.
2. The Court has heard learned counsel for the petitioners, Mr. Shashi Nandan, and Mr. Y.K. Saxena, on behalf of the Town Area, Bidhuna, District Etawah, at length. All the writ petitioners raise common questions.
3. On facts on which there is no issue is that the petitioners had their Khokhas, that is to say kiosks, on the pavement of the Achhalda-Bidhuna road and on the Fast State Bank of India read. The administration decided to remove the kiosks from the road side and make permanent constructions. For this it took money for those who were to squat on the road side. The plot within the confines of these two roads is Nazul land. On this there is a plan to construct a commercial complex. In so far as the commercial complex on this plot is concerned, as long as it is in accordance with law, the Court is not concerned with this. But the petitioners before the Court, at least some of them, submitted end they are not at issues with the respondents, the local administration that in line of the space they occupied on the road side, money was taken from them for the purpose of constructing permanent shops and grant them a 30 years lease. All the petitioners have not been able to show their allotment orders but this aspect is not, relevant as the Court is neither giving any order against any petitioner individually except that the matter does not call for any interference in a prerogative writ jurisdiction.
4. By an order of the Court the Town Area, aforesaid, was required to submit in pursuance of a certiorari to show the exact location of the shops A map has been filed. This is a map has a legend of certain proposed shops. All the shops are not mentioned in this map. For instance there is a petitioner who claims allotment of shop No. 86 but there is no Shop No. 86 in the map. The purpose of requiring the Town Area to file the map was to get a topography of the two public roads and the area within. This detail has not been given by the Town Area.
5. The Court noticed from the pleadings of the parties that certain shops on the north and the east side are running parallel to the road. They are either on the road side or adjacent to the road or within close proximity of the edge of the road. The scale given in the map, 1"-8', clearly shows that there is hardly and space between the shops and the line of street alignment and the edge of the road. This is not excellence of planning. By now there are a number of decisions of the Supreme Court that nothing can come on the road. The road is meant exclusively for passage and for no other purpose. Further, set backs from the edge of the road in urban planning are to be respected. The Court does not get any confidence either from the pleadings of the parties or the map of the Town Area that the set backs prescribed have been adhered to Regard being had to the circumstances of the present case, the crowd in the shopping centre must not spill on the side walk, road side pavements or the road. The Court is of the view that this matter needs a re-examination by the District Magistrate. All those shops which a next and parallel to the road the matter needs to be inquired whether they are on the side of the road in which case no construction can exists on the space. Otherwise, if these constructions are violating the set backs next to the edge of the street, even than this is illegal. But the matter needs to be enquired first. In these circumstances, the Court cannot give any direction in the matter relating to any allotment which may be made for these particular shops which are on or next to the road if the constructions themselve cannot remain and are not in accordance with law. If the Court were to interfere in this matter, then, indirectly, the Court will be giving sanction to these shops when otherwise the matter is yet to be examined in reference to particularly those shops which are running next to and are parallel to the road side.
6. The counter-affidavit of the Town Area was to be filed in reference to the order dated 3 July, 1996 on payment of a costs of Rs. 500.00. This cost has not been deposited. The Court expects that this cost will be deposited within a week, otherwise, the certified copy will not be issued to the Town Area, unless costs are paid.
7. The District Magistrate, Etawah, shall inquire in the matter. He will inquire whether the shops made parallel to the Achchalda-Bidhuna Road and the State Bank of India road are on the road-side or within the prescribed set backs to be left from the edge of the road. In both cases, the constructions are illegal and cannot be allotted and will have to be removed. The shops will have to be located elsewhere.
8. As the Court has declined to interfere in this matter, the petitions are dismissed with costs. Interim orders are discharged.
9. A copy of this order will be sent by the Standing Counsel, U.P., to the District Magistrate, Etawah and the Secretary, Urban Planning and Development, U.P., Lucknow.