R.S.Dhavan, J. - (1.) THE purpose of filing the present writ petition is to seek protection from this Court to continue to occupy the footpath running parallel to a public road in Kanpur known as the Shivala Road, behind the Kotwali Police Station. The petitioner Shivala Footpath Sansthan, Kanpur, claims to be a registered society. The petitioner's members and constituents, it is submitted, occupy the public pathway and sell churis or bangles. They apprehend eviction from the Nagar Mahapalika, Kanpur, the Kanpur Development Authority, Kanpur and the Senior Superintendent of Police, Kanpur, all arrayed as respondents. The relief sought in the writ petition is that occupation of the footpath by the members of the society, in effect, should continue and the respondents aforesaid be directed not to cause any interference in their occupying a public footpath or pathway. The Nagar Mahapalika, Kanpur, has filed a counter affidavit of the Deputy Administrator. To set the record right, the counter affidavit mentions that what has been appended as annexure '4' to the writ petition has been manufactured and is a forged document. It mentions that no such letter dated 5 August, 1986 issued by the Deputy Administrator, Nagar Mahapalika, Kanpur, is on record. It is alleged by the society that by this letter permission to occupy the public footpath and the aforesaid public road was granted as a licence, till further arrangements were made by the local body. Thus, the writ petition has been filed by concealing material facts. It is for this reason, that an application was moved before this Court on 8 December, 1986 that the petition be dismissed as withdrawn as the society aforesaid and their members have been assured alternate shops in lieu of the footpath, they occupied. This Court made it clear to the petitioner that the writ petition would be considered on merits test, the respondent -local body, Nagar Mahapalika, may be prejudiced against an assurance which was never given.
(2.) IN the counter affidavit, the Nagar Mahapalika, Kanpur, has submitted that at one stage it did permit certain persons to hawk on the road aforesaid and in lieu of this permission, tehbazari was realised. It is contended in the counter affidavit that no particular spot or place was ever given to any person to hawk on this public road and that no tahbazari was collected since March, 1982 and the tehbazari itself was revoked effective from April, 1982. The Nagar Mahapalika, contends that regard being had to the fact that this public road is a busy market place with heavy flow of traffic and pedestrians, any obstruction of the road or the footpath hampers the movement of the traffic and likewise of the pedestrian. The Nagar Mahapalika, further states that it proposes to consider utilising the space off the aforesaid public road as a parking place to relieve traffic congestion. The Nagar Mahapalika further mentions that it cannot permit the encroachment of the footpath which is primarily for the pedestrian and its illegal occupation by the petitioner is causing harm and inconvenience to the public.
(3.) THERE can be no issue on the fact that public roads and footpaths cannot be encroached upon and are inviolable. It is just as well that the Nagar Mahapalika, Kanpur recalled its earlier order by which it had permitted squatters on the footpath and consequently realised tehbazari. We reiterate, the settled view expressed by the Supreme Court, and this Court also, that no one under the law, has a right to carry on or intend to or cause business on a public road. This Court had already delivered a decision in a like matter when a public road in the town of Shahjahanpur had been encroached by vendors. This decision was delivered by a Bench of this Court, of which one of us was a member, being Writ Petition No. 9333 of 1987; Vijay Kumar Gupta and others v. Zila Parishad and others. The decision was delivered on 24 April, 1987. It is based upon three decisions of the Supreme Court.;