JUDGMENT M. Katju, A.C.J. and R.S. Tripathi, J.
1. Heard counsel for the parties.
2. An application has been filed to recall the order dated 16.4.2003, by which the petition was dismissed on the basis of judgment passed in Writ Petition No. 16503 of 2001 decided on 16.4.2003. In para 6 of the affidavit filed in support of the restoration application, it is stated that the petitioner's counsel and clerk could not mark the case on 16.4.2003 in the cause list. Hence the learned counsel for the petitioner could not appear and argue the petition. In para 6, it is stated that the petitioner's case is different from the case in Writ Petition No. 16503 of 2001.
3. Since learned counsel urged that he was not heard we have heard learned counsel for the applicants/ petitioners on merits today and we are of the opinion that there is no merit in this petition. The petitioners have prayed for quashing the order dated 28.7.2001 passed by Mukhya Nagar Adhikari, Nagar Nigam, Kanpur (Annexure-9 to the writ petition). By the said order the representation dated 21.1.2001 was rejected.
4. The facts of the case are that the respondent No. 1, Nagar Nigam, Kanpur published an advertisement on 8.3.2000 in the daily newspaper 'Dainik Jagaran' to allot some small portions of the land measuring 2 x 2 metre for construction of 24 shops in Shivala Churi Market, Kanpur inviting applications with a premium of Rs. 49,600 with a further direction that only 24 such applications shall be accepted for allotment of the aforesaid portions of the land. Photocopy of the advertisement is Annexure-1. It is alleged in paragraph 3 of the writ petition that prior to the advertisement on 8.3.2000 for allotment of small portions of land of an area 2 x 2 metres for construction of 24 shops there had been a full discussion in Nagar Nigam to let out the place for 24 shops since 13 shops are already situated there and the Nagar Nigam may increase the revenue by making allotment of 24 shops. Hence it is alleged that the Nagar Nigam got a report from the engineering section for construction of 24 shops and lay out plan of the land in dispute from the property section and also report about construction and letting out of the constructed shops on the said nazul land and then it was decided under the signature of the Mukhya Nagar Adhikari to advertise the same. Photocopy of the report dated 7.3.2000 is Annexure-2.
5. It is alleged in paragraph 4 of the writ petition that in response to the aforesaid advertisement the petitioner along with two other persons made applications with bank drafts and their applications were entered in the register of the Up Nagar Adhikari immediately after getting 24 applications upto 1.29 p.m. On 8.3.2000, the matter was closed with the signature of the receiving clerk and Up Nagar Adhikari. Photocopy of the extract of 24 applications are Annexure-3 to the writ petition. It is alleged in paragraph 5 of the writ petition that the Sahayak Nagar Adhikari submitted all the applications to the Upper Mukhya Nagar Adhikari, Nagar Nigam with the bank draft for further action, and the Upper Mukhya Nagar Adhikari immediately submitted the same to the Mukhya Nagar Adhikari recommending that suitable orders for allotment of the aforesaid 24 persons be issued as they have fulfilled the required formalities within the stipulated time vide Annexure-4 to the writ petition. The Mukhya Nagar Adhikari then directed the Up Nagar Adhikari, Nagar Nigam vide memo No. 23/3/3/5 dated 10.3.2000 to deposit the amount of all the aforesaid bank drafts in the Nagar Nigam account section and ensure necessary action. Photocopy of the direction of the Mukhya Nagar Adhikari is Annexure-5 to the writ petition.
6. It is alleged in paragraph 7 of the writ petition that thereafter the matter was placed before the Executive Committee, Nagar Nigam in the meeting dated 13.6.2000 for consideration and necessary action for allotment of the said plots to the petitioners and it is alleged that to the best of the petitioners' knowledge the executive body has approved the action of the Mukhya Nagar Adhikari for allotment of shops. However, the possession was not delivered to the petitioners and the petitioners approached the respondent No. 1 several times for delivery of possession and also approached the Commissioner, Kanpur, respondent No. 2, but in vain. Thereafter they made representation to respondent No. 1 on 21.1.2001 for issuing of allotment order vide Annexure-7. They then filed writ petition in this Court which was disposed off with the direction to the respondent No. 1 to dispose of the petitioners' representation. Subsequently that representation has been rejected. Hence this petition.
7. A counter-affidavit has been filed and we have perused the same. In paragraph 5 of the same it is stated that no allotment could be made as it was nazul land and the State Government had strictly prohibited letting or sale of nazul property. Hence the scheme itself was abandoned and all the 24 persons were informed about the cancellation of the scheme and they were directed to take refund of the amount deposited. In paragraph 8 it is stated that the administration of nazul land vests in the District Magistrate, and the Nagar Nigam has no authority to let out the land and has been restrained from doing so. In paragraph 13 it is stated that by G. O. dated 23.2.1999 and 6.2.2000 a total ban has been imposed on the Nagar Nigam to allot nazul land under its management vide Annexure-C.A. 4. In paragraph 14 it is stated that it is false to say that the Nagar Nigam has allotted the land in question to the petitioners. Freehold of nazul land can only be done by the Governor at the instance of the District Magistrate and not by the Nagar Nigam. Moreover, the scheme itself has been abandoned and the petitioner cannot force the Nagar Nigam to do something which is illegal. In paragraph 16 it is stated that mere management of nazul land does not give power to the Nagar Nigam to lease out or allot or transfer nazul land. It is stated that when the scheme has been abandoned the petitioner cannot make any grievance. Moreover Shivala Choori Market is going on the road patri on both sides of the road which is causing great inconvenience to free flow of passers-by and traffic. The respondent has relied on the judgment of this Court in Liladhar Joshi v. State of U.P.. 1998 (2) AWC 835 : 1998 (1) ARC 509 copy of which is Annexure-C.A. 5 to the counter-affidavit. In that decision it has been observed :
"Roads are meant to be kept free for the sole purpose of passage and no other facilities even can be put on the roadside, nor a statue of Mahatma Gandhi, is another aspect which the Supreme Court has held in Re Manglaur Municipality v. Mahadeoji, AIR 1965 SC 1147. The roads and streets are to be kept absolutely free for the purposes of which they are laid, that is traffic and passage. Highways are meant to take traffic, sidewalks are to be kept free for movement of pedestrians. These public places, highways, streets roads and sidewalks are not meant for squatters."
8. Similarly in Shivala Footpath Sangathan Kanpur v. Kanpur Nagar Mahapalika, 1987 UPLBEC 413 copy of which is Annexure-C.A. 6 to the counter-affidavit it has been observed that no one under the law has a right to carry on any business on the public road. Public road and Footpath cannot be encroached upon and are inviolate. The Nagar Mahapalika cannot permit squatters on the footpath. In V.N. Pathak v. Vice Chairman, Varanasi Development Authority, (1999) 2 UPLBEC 1583, it has been held that no direction with the management can be given to the respondent to allot or sell a particular accommodation on the basis of mere resolution passed by the Development Authority.
9. In our opinion there is no force in this writ petition in view of the allegations in the counter affidavit. Allotment could not be done by the Nagar Nigam and in fact it is banned by the Government orders dated 23.2.1999 and 6.2.2000. Moreover, it is alleged in paragraph 17 of the counter-affidavit that Shivala Choori Market is on road patri on both sides of the road which is causing great inconvenience in the free flow of the traffic.
10. This is not a fit case for interference under Article 226 of the Constitution. The application is dismissed.