JUDGMENT Ravi S. Dhavan, J.
1. This is a strange case of a local body, the Town Area Committee, Naraini, Banda, filing a writ petition before the High Court challenging the order, in effect, of the State of Uttar Pradesh, when it was asked not to construct shops on the roadside as it is against the law. The Town Area Committee instead of cleaning up the road so that it is available without obstruction for the purpose for which it is laid, that is, for passage or highway traffic saw arrangements to block and construct the Naraini Uttara Marg, by constructing temporary kiosks, Gumtis and shops. Not only this, thereafter, the Town Area Committee proceeded to make the constructions permanent.
2. This met with resistance from the Superintendent of Police, Banda, who tried to persuade the Town Area Committee that the constructions are on the side of the road and this would affect (a) the passage, (b) the Police Station behind it and (c) a Fire Brigade Station. The Town Area Committee would hear none of the objections from the local administration and took up a defence that it had obtained the sanction of the Collector, Banda, to construct the shops. In the counter affidavit which has been filed by the State of Uttar Pradesh on behalf of the Superintendent of Police, Banda, the latter has even gone to the extent of submitting that the Collector, Banda, did not have power to sanction the unauthorised construction of shops on nazul land and on the roadside.
3. The Court has heard counsel for the petitioner, learned Standing Counsel and examined the record of the writ petition, which has been replied by a counter affidavit, but not controverted by a rejoinder affidavit from the Town Area Committee.
4. This Court is satisfied that what the Superintendent of Police, Banda, submits is correct. A road is meant for passage only and for no other purpose. A road and with it the sidewalk, patri or roadside has its conforming use for the purpose for which it has been laid out. More than thirty years ago the Supreme Court has settled this matter that on a road or a roadside there can neither be obstructions in the nature of shops, nor facilities not even a statute of Mahatma Gandhi, Mangalore Municipality v. Mahadeoji, AIR 1965 SC 1147. The principle that a road is to be kept open for passage only and for no other purpose has been reiterated by the Supreme Court later-in several cases, Bombay Hawkers' Union v. Bombay Municipal Corporation, AIR 1985 SC 1206; Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. What is vested in the Municipality by law as a street and if the Municipality put the street to any other user than for which it was intended, the State as its owner, is entitled to intervene and maintain an action and to get any person in illegal occupation evicted State of U. P. v. Ata Mohd, AIR 1980 SC 1785.
5. Today there should be no doubt in the mind of any public authority, local body. State Government or the Government of India that the roads of the nation are to be kept absolutely free without obstructions and only for the purpose for which a road or a highway has been carved out. Obstructing public roads, the like of which the Town Area Committee is doing is the negation of planning.
6. Along with the counter affidavit, the Superintendent of Police, Banda, has placed before the Court a general circular which has been circulated to the District Officers of the State to prevent constructions of public roads and strictly monitor control of unauthorised constructions on public roads. Initially this circular had been issued in 1945. The circular was reiterated by a Government Order No. 6169-LO/XXIII-PWD, dated 21 December 1950, Annexure CA-I, and this provides dimensions for national and provincial highways, major district roads, other district roads, village roads, cement concrete tracks, motor roads (in hills), bridle roads (in hills). The circular cautions all district administrations to ensure that no construction is allowed within the periphery indicated in the Government Order. It would be appropriate that the entire Government Order be reproduced, which is as below :
"To, No. 6169-LO/XXII-PWD66-7, 1950 Sri G. K.
Joshi, Up Sachiv.
UTTAR PRADESH SHASHAN.
To, ALL THE DISTRICT OFFICERS, UTTAR PRADESH.
Subject: PrevenCion of Ribbon Development Standards for Control and Building Lines Sir, I am directed to invite a reference to section 3 of the Uttar Pradesh Road Side Control Act, SI.No.
Category of Roads Control Line from the centre line Open and agriculture area Normal Road Width Road width from centre of road on each side threof Building Line at 1 1/2 times of road width from centre line thereof
1. National & Provincial 220 100 50 75 Highways
2. Major District Road 220 80 40 60
3. Other District Road 220 66 33 50
4. Village Road 220 25 12 1/2 '0
5. Cement concrete tracks 110 40 20 30
6. Major Roads in (hills) 110 66 33 50
7. Bridle Roads (in hills) 55 33 10 1/2.
Urban and Industrial area SI. No. Category of roads Normal road width Road width from centre of road on each side thereof Building line of at 1 1/2 times of road width from centre line thereof
1. National & Provincial Highways 80 40 60 2, Major District Road 60 30 45
3. Other District Road 40 20 30
4. Village Road 25 12 1/2 20
5. Cement concrete tracks 40 20 30
6. Major Roads in (hills)
-
-
-
7. Bridle Roads (in hills)
-
-
-
1945 in terms of which the State Government can declare any road side land up to a maximum width of four hundred and forty yards from the centre line of the Road a controlled area. Different control lines have been fixed for the different classes of roads. Accordingly, where necessary, the road side lands have been controlled and precious permission of the Collectors concerned have to be sought for under section 5 of the Act for constructions to be erected on such lands, Government have been advised that building lines ought to be fixed within the Control lines so as to prevent ribbon development along side roads. The following statement will show the control lines, road widths, and building lines that have been fixed by Government for the various classes of roads. (On page 367).
I am to request you kindly to see that no constructions are allowed within the building lines as fixed above subject to the provisions of section 6 (4) of the Act. I am also to request you to ensure that permission for constructions etc. are granted to applicants with the previous concurrence of the roads in their charge and of the local bodies concerned for their roads as already instructed in Govt. Circular No. 112 C/XXIII, PWA-86-C-1950, dated February 22, 1954.
Yours faithfully, Sd/-
Up Sachiv."
7. Of any standards which were laid down in 1946 and reiterated in 1960, the pressure is being felt whether it is a motorable road in a metropolis, or a Town Area, or in a village. The increase of traffic requires increasing standards of width and the question of decreasing these standards does not arise. The Court will even go to the extent that the State of Uttar Pradesh will be within its right to increase the parameters of the dimensions which are given in the aforesaid Government order so that the roads are widened to take the pressure of traffic of the next century. The planning for it must begin now. The year 2000 is only two years away.
8. From the counter affidavit, the Court finds that the Town Area Committee even filed a suit to protect its illegal, constructions and this litigation is pending before the Munsif, Banda. The submission on this is made in paragraph 14. After the decision of the Supreme Court on what the concept of a road is, it is unlikely that this litigation can proceed and the respondent who had filed the counter affidavit (the Senior Superintendent of Police, Banda) should draw the attention of the trial Court, aforesaid, that by law public roads or highways cannot be obstructed with any constructions, even facilities, and that the Supreme Court and the High Court have held it so.
9. Learned counsel for the Town Area Committee submits that the shops in question were constructed on nazul land. Be that as it may. The fact that nazul land may vest in a local body for management does not mean that it can do what it likes with the land which has been given to it for management. In paragraph 21 of the counter affidavit, the Superintendent of Police, Banda, has denied that the Town Area Committee can control this land. On the roadside nothing can be constructed. If the Town Area Committee is desirous of constructing a municipal market, it may do so on some other nazu land, but not on the roadside and it cannot deny me parameters set by the Government Order of 21 December 1960.
10. On the totality of circumstances and the fact that the Public Works Department, the Superintendent of Police, Banda, is resisting that a public road be narrowed by obstructions, his contention is fortified by law. The filing of the petition itself was misadvised. The sooner it is laid to rest, the better it would be. The petition is dismissed. The Superintendent of Police, Banda, will give three months time to the Town Area Committee to vacate the shops which have been constructed on the roadside, in context, failing which he will take appropriate action to free the public road from either being narrowed or obstructed.
11. The interim order of 29 September 1989 is discharged.
12. A copy of this order will be sent to the Secretary, Nagar Vikas, Government of U. P., Lucknow, the Chief Secretary, U.P., and the Secretary, Surface Transport, Government of India, New Delhi.