High Court of Judicature at Allahabad

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 27

Second Appeal No. 379 of 2007

Shyam Narain Chaudhary

Vs.

Nagar Nigam Varanasi & Ors.,

*******

Hon. Dilip Gupta, J.

This Second Appeal has been filed by the plaintiff for setting aside the judgment and decree passed by the learned Additional District Judge, Room No. 12 Varanasi by which the Civil Appeal that had been filed by the plaintiff against the judgment and decree of the Trial Court was dismissed.

The Original Suit had been filed for a direction against the defendant No. 1 Nagar Nigam Varanasi to return the ''Gomati' and the materials kept in it to the plaintiff and for payment of damages for the illegal removal of the ''Gomati' by the Nagar Nigam from 6th November, 1997 at the rate of Rs. 150/- per day. It was stated in the plaint that the plaintiff had been permitted by the Nagar Nigam to place his Gomati near the Beniya Bagh Park in 1999 and though he had been regularly paying the amount demanded by the Nagar Nigam but yet the said Gomati was removed on 6th November, 1997 under the Anti Encroachment Drive. Though the Nagar Nigam had put in appearance in the aforesaid suit but it did not file any written statement as a result of which the proceedings commenced ex-parte. The Trial Court by means of the judgment and decree dated 12th February, 2004 observed that the plaintiff had been able to prove his case on the basis of the evidence and the defendants had not produced any evidence in rebuttal for disbelieving the evidence led by the plaintiff. It, therefore, came to the conclusion that the suit was liable to be decreed ex-parte and, accordingly, directed the defendant No. 1 to return the ''Gomati' and the materials contained therein to the plaintiff within a period of one month. However, the remaining reliefs were denied to the plaintiff.

The plaintiff then filed Civil Appeal for claiming those reliefs which had been denied by the Trial Court. It was contended that no reason had been given by the Trial Court for denying the remaining reliefs. The Appellate Court after noticing that no reason had been given by the Trial Court for refusing the remaining reliefs to the plaintiff, itself examined the materials on the record to find out whether the plaintiff was entitled to such reliefs. It came to the conclusion that the ''Gomati' had been placed on the public road which was causing public nuisance and, therefore, no illegality had been committed by the Nagar Nigam in removing the ''Gomati' under the Anti Encroachment Drive. It also came to the conclusion that the plaintiff had not acquired any right to place the ''Gomati' on the public road. It, accordingly, held that though the plaintiff was entitled to a direction for return of the ''Gomati' and the materials contained therein but the plaintiff was not entitled to damages or the other reliefs claimed by him. The Civil Appeal was, accordingly, dismissed.

Learned counsel for the appellant raised the same issues that had been considered and repelled by the lower Appellate Court. He contended that when no written statement had been filed by the Nagar Nigam and no evidence had been led on behalf of the Nagar Nigam, it was incumbent upon the Trial Court to have decreed the suit in its entirety.

This contention of the learned counsel for the appellant cannot be accepted. It is not in dispute that the ''Gomati' had been placed on the public road and that it had been removed under the Anti Encroachment Drive carried out by the Nagar Nigam Varanasi. Even though no evidence was led on behalf of the defendants, the Court was required to consider the evidence led on behalf of the plaintiff to find out whether the plaintiff was entitled to any relief. The lower Appellate Court has considered this aspect in detail and has found that the ''Gomati' had been rightly removed by the Nagar Nigam as the plaintiff had not acquired any right to place the ''Gomati' on the public road and encroach it. In such circumstances, the lower Appellate Court held that the plaintiff was not entitled to any damages.

A Division Bench of this Court in Town Area Committee, Naraini, Banda Vs. Sr. Superintendent of Police, Banda & Ors., AIR 1998 Alld. 251 while dealing with a matter whether obstructions had been created by constructing shop on the road side observed as follows:-

"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, [1964] INSC 270; 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, [1985] INSC 146; AIR 1985 SC 1206; Olga Tellis v. Bombay Municipal Corporation, [1985] INSC 155; 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, [1980] INSC 115; AIR 1980 SC 1785.

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."

A Division Bench of this Court in Pramod Tiwari Vs. Senior Superintendent of Police, Kanpur Nagar & Ors., 1999 ALL. L.J. 2063 again observed:-

"The prayer of the petitioner cannot be accepted nor can a writ be issued to the respondents that the petitioner should occupy the side walk of a public road or in the alternative he may be allotted another site. On this, the law is very clear that the roads are meant for traffic only and for no other purpose, even facilities cannot be put on the road Municipal Board, Mangalore v. Mahadeoji Maharaj, [1964] INSC 270; AIR 1965 SC 1147. There can be no fundamental right to carry on business on the public road[1985] INSC 146; , AIR 1985 SC 1206; Bombay Hawkers' Union v. Bombay Municipal Corpn. The petitioner only had a licence, at best like a hawker. The petitioner was not entitled to any particular spot on the road[1985] INSC 155; , AIR 1986 SC 180. Olga Tellis v. Bombay Municipal Corporation."

The aforesaid decisions clearly hold that no person has a right to occupy the public roads which are meant for traffic only and for no other purpose.

In this view of the matter the Second Appeal deserves to be dismissed at the admission stage as no substantial question of law arises for consideration. It is, accordingly, dismissed.

Date: 17.9.2007

NSC