ORDER Ravi S. Dhavan, J. - Slips and errors in urban planning lead to a situation which becomes hard to remedy even by those who have powers vested in them by law. Permitting encroachment on public roads and streets is easy. Removing encroachments is tedious. The law does not permit any encroachment of a public road. There are no exceptions to this principle. A fundamental question then arises why plan a city. Why enact laws to discipline the planning of a city. 2. The present writ petition along with several others, is by persons who have encroached on the Agra-Mathura Road in the town of Mathura. The encroachment is running parallel to the boundary wall of the Civil Hospital; these are shops. There are forty three shops. 3. The origin of the problems is that itinerant vendors usurped the road-side. This is a public road. In each case the Municipal Board, Mathura granted a licence to conduct Tahbazari between the width of the public road, aforesaid, running contiguous and parallel to the boundary wall of the Civil Hospital As time passed each of the itinerant vendors entrenched himself on the road and other hawkers became shop-keepers. Some established wooden kiosks. The merchandise is miscellaneous ranging from general merchandise to electrical goods. It took some time for the Municipal Board to realise that itinerant vendors, who paid tahbazari and had applied to the Municipal Board to hawk their wares on the public road, became shop keepers with permanent structures. 4. Each of the shop keepers received a notice, which indicates that they had been granted temporary permission to put a structure on the public road, that temporary permission is being recalled to carry on business and occupy the road. They were to remove their structures within three days failing which it would be removed by the municipality. The notice gave an excuse to the shop keepers to institute suits before the Munsif, Mathura, and seek a temporary injunction to ward off any action of eviction for the removal of their kiosks by the Municipal Board. 5. The Munsif, Mathura, denied the temporary injunction to the shop keepers. The suits filed by the shop keepers were consolidated so that a common order was passed by the Munsif prior to hearing the prayer for temporary injunction. 5. The Munsif, Mathura, denied the temporary injunction to the shop keepers. The suits filed by the shop keepers were consolidated so that a common order was passed by the Munsif prior to hearing the prayer for temporary injunction. As the case of all the shop keepers in reference to their claim, and of the Municipal Board in seeking eviction of the shopkeepers from the public road, were common questions of fact and law, the Munsif, Mathura, by his order of 7 November, 1986 declined to grant temporary injunctions to the petitioners as plaintiffs. The view of the Munsif in declining the injunction was that the status of the shop keepers to occupy a public road was that of a licencee as a consequence of the tahbazari realised from them, which was a temporary permission to occupy the public road, and thus, the Municipal Board, Mathura was within its rights to require the shop keepers to remove the encroachments under S. 265(2) of the U.P. Municipalities Act, 1960. 6. Each of the shop keepers appealed to the District Judge, Mathura. The appeals were decided by a common judgment. In short, the learned District Judge, Mathura, upheld the order of the Munsif and affirmed that the injunction had been rightly denied to the plaintiffs. The shop keepers were given three months to remove the encroachments from the public road. The decision of the learned District Judge, Mathura, is dated 6 May, 1987. The learned District Judge was also of the view that the permission to occupy a public road was occasioned upon a license being granted to the shop keepers as a consequence of which Tahbazari was realised from the shop keepers; that the Municipal Board was within its right to terminate licence and require the shop keepers to remove the encroachment; that licencees such as the j plaintiffs had no right to retain possession and were not entitled to a temporary injunction against eviction and that in such circumstances the petitioners, regard being i had to their status, in effect, as licencees on a public road, could not embroil the municipality in litigation and further that the contention that the shop keepers could only be evicted under U.P. Public Premises (Unauthorised Occupants and Eviction) Act, 1973 was a misconceived plea. The learned District Judge also observed that granting an injunction in such cases was an abuse of the process of the Court. This implied that while denying temporary injunction the fate of the suit itself had been determined. 7. The injunction having been denied by two courts, the Munsif, Mathura, and the District Judge, Mathura, the petitioners filed the writ petitions against the common judgment delivered by the learned District Judge, Mathura. Each of the writ petitions was consolidated by the order of the Hon'ble the Chief Justice dated 23-12-1987 so that the hearing of the present writ petitions (a) is not delayed because the encroachment of a public road is in issue and (b) the suit having been consolidated while the temporary injunction was being considered, the writ petitions involving common questions of fact and law could be decided by a common judgment. It was understood between the counsel for the petitioner and counsel for the Municipal Board, Mathura, that should the petitions fail on merits, the suit would be rendered as not maintainable and the plaint may be liable to be quashed. 8. One aspect was not noticed by the trial Court or the Appellate Court and this aspect is significant. The judgments of the Supreme Court have left no doubt, on the concept of a public road. The situation which the Municipal Board, Mathura, faces is the situation being faced by practically every Nagar Mahapalika, Municipal Board, Town Area Committee or the Zila Parishad of this State or any other city. 9. It is necessary for this Court to place on record the law as of date on the concept and functions of a public road. Also, the concept of 'tahbazari' in the present day is being misunderstood. While 'tahbazari' may generate commerce and trade amongst hawkers and petty vendors, the concept must blend with legislation and the growing pressures of population on cities and towns of today. Tahbazari as was understood in mediaeval times would need to be re-examined if it interferes with the discipline of administering a city and civic life. It is not to become a nuisance. This collective activity of itinerant vendors which gives rise to 'tahbazari' is to be seen in the strict context of the laws, which control urbanisation. Tahbazari as was understood in mediaeval times would need to be re-examined if it interferes with the discipline of administering a city and civic life. It is not to become a nuisance. This collective activity of itinerant vendors which gives rise to 'tahbazari' is to be seen in the strict context of the laws, which control urbanisation. There can be no compromise on this as it affects the quality of life in a city or a town, if the discipline of protecting a road is abdicated. 10. The arguments on behalf of the petitioners to the effect that the State must justify and prove the existence of Agra-Mathura highway as a public road, is misconceived, and ridiculous. It is putting the cart before the horse. The city has been planned and a road has been declared for the user of the public, the presumption is in favour of the State that a road exists in a planned urban agglomeration. 11. The first proposition is on the concept of a public road. A road is meant only for the purposes of passage and no other. Once a road has been declared and sets part for the purposes of passage its width is immaterial. The entire expanse of the width of a public road in a planned city notwithstanding whether it is metalled or non-metalled is a road. Thus, within the spectrum of the width no structure can be Out by any one whether it is a citizen or Government. In the context of our nation this also goes for those mortals who arrange the encroachment of public roads in the name of their Gods. Public roads are not meant for them or their Gods. Urbanisation by implication presumes taking into account the future needs of the city. The very purpose of planned urbanisation and enacting legislation to maintain and preserve a city is to project the need of increased in habitation in decades to come. Roads are the first public places which notice the impact of an expanding or growing city. Today, even a dual carriage way design of a highway is outdated. No city must be planned without a three lane traffic way on either side of the centre of the road. 12. What remains beyond the metalled portion of the road is the pedestrian way, for their passage and their safety to keep them away from vehicular traffic. Today, even a dual carriage way design of a highway is outdated. No city must be planned without a three lane traffic way on either side of the centre of the road. 12. What remains beyond the metalled portion of the road is the pedestrian way, for their passage and their safety to keep them away from vehicular traffic. The pedestrian is accident prone if vehicular traffic runs into where he is to be, or if he is to take to that part of the road where the vehicular traffic must move freely. Encroachments on either side of the road disturbs this balance. 13. These two classes of users of a public road, in I modern city, are to have the public road to their best advantage. The mechanised transport and the pedestrian way must never be mixed, but to strive for this ideal, the local administration is to adhere to the strict discipline of protecting the road. A let in the discipline or abdicating the principles of urbanisation according to law, will set a process of decaying a planned town. 14. There is no doubt today on what the concept of a road is. The conforming use of a road or a street or a high-way is for the purposes of passage only. What is between a defined boundary abutting on to a road or running adjacent or between two perallel public drains on either side of the road is a street, call it by any other name as a road or a highway. The attempt to maintain even a Piyau (a kiosk) providing water for the thirsty during summer, a library or a statue of even Mahatama Gandhi was negatived by the Supreme Court. The concept of a road had already been defined so as not to suffer an encroachment on the road in whatever form it may be. This was in the matter of Municipal Board v. Mahadevji Maharaj, AIR 1965 SC 1147 . This case was followed fifteen years later when the concept of a public street was reiterated so as not to consider or condone any other purposes upon it and the legislative intent to protect and preserve the road was upheld in the matter of State of U.P. v. Ata Mohd., AIR 1980 SC 1785 : (1980 All LJ 896). This case was followed fifteen years later when the concept of a public street was reiterated so as not to consider or condone any other purposes upon it and the legislative intent to protect and preserve the road was upheld in the matter of State of U.P. v. Ata Mohd., AIR 1980 SC 1785 : (1980 All LJ 896). Subsequently five years later the Supreme Court in a public interest litigation declined to compromise or dilute the meaning of a street of a public road when the pavement dwellers and hawkers were not given protection to occupy public roads so as to negate the purpose for which a city is planned with a laid out pattern of roads. The Supreme Court held public roads and streets as public place intended only for passage and not to suffer any encroachment no matter what it may be. These were cases arising out of the problem faced by the pavement dwellers and hawkers in Bombay. The compassion on the ground that these were poor people and their livelihood depended upon squatting on the public road was not accepted nor permitted to conflict with the law on this aspect. The Supreme Court expressed concern that encroachments would frustrate the very purpose for which roads are laid out. These are decisions in the matters relating to Olge Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 and Bombay Hawker's Union v. Bombay Municipal Corporation, AIR 1985 SC 1206 . 15. This Court, following the decisions of the Supreme Court, in like matters declined to give any relief when a local body sought removal of a kiosk on a public road. This Court in the case of Sanjay Mishra v. Nagar Palika, Etawah, AIR 1987 All 270, held that an encroachment on a public place and a construction which is against the discipline of urban planning can never be the subjectmatter of condonation as what was against the law and discipline of urban planning will always remain illegal and could never be compounded. Noticing three decisions of the Supreme Court, referred to above, a Division Bench of this Court declined to give protection to persons who had arranged to vend on a public road. Noticing three decisions of the Supreme Court, referred to above, a Division Bench of this Court declined to give protection to persons who had arranged to vend on a public road. Simultaneously, this Court in the matter of Vijay Kumar Gupta v. Zila Parishad, Shah Jahanpur, AIR 1987 All 304 certified the action of the Zila Parishad and the the Municipal Board to construct shops on a public road as wrong and against the law. The concept of a road was held to be one for passage. 16. In a recent decision in the matter of Delhi Municipal Corporation v. Gurnam Kaur, AIR 1989 SC 38 the Supreme Court expressed concern on a matter of precedent and the principle of stare decisis that its earlier decision which had the status of a declaration of law under Article 141 of the Constitution of India, escaped consideration and notice in that Court. The subject-matter was encroachment on a Public road granting concession on the ground of compassion or otherwise for the continuance of an encroachment by a Bench of the Supreme Court, on the basis of consent between a local body and the pavement squatters. Three Judges of the Supreme Court set the record right to the.effect that the Supreme Court had crystallised the law in reference to what user of a public road-was. Not appreciating the continuance of an encroachment in front of Irwin Hospital, now known as Lok Nayak Jayaprakash Narayan Hospital, the Supreme Court expressed discomfort with an earlier decision of a Division Bench of the Court by making a reference to the earlier decision as (at p. 42) : "This indeed was a very noble sentiment but incapable of being implemented in a fast growing city like the Metropolitan city of Delhi where public streets are overcrowded and the pavement squatters create a hazard to the vehicular traffic and cause obstruction to the pedestrians on the pavement." 17. The Supreme Court expressed further concern for town planners to preserve the aesthetics of planning of the city and reduce congestion on the public streets and remove encroachhments which cause obstruction to the free flow of traffic. The reference to the city was Delhi. The standards of planning, whether the aesthetics of it or law, cannot be different for any other city. 18. The reference to the city was Delhi. The standards of planning, whether the aesthetics of it or law, cannot be different for any other city. 18. In third world countries and a rapidly developing nation like ours encroachment of public roads can easily be encouraged. The removal of an encroachment becomes a tedious exercise for city administrators. 19. There is to be excellence in planning in all spheres. The road is a public property. It has to be safeguarded. A city or a town is to be planned and administered with a strive towards excellence as part of collective activity so that city life, with the nation, constantly rises to higher levels of endeavour and achievements. This concept, is otherwise a constitutional obligation which descends as a formal duty upon every citizen of India. The obligation is set under Article 51A. Town Planners, executives, legislators and Judges do not cease to be citizens nor can ignore the chapter on Fundamental Duties, as inserted by an amendment, as a Chapter, Part IVA, in 1976. 20. Town planning is a collective effort. It is an endeavour which exacts fineness and perfection of planning. This, is the strive for excellence which the Constitution exacts as an obligation as part of planning in all spheres. In this context, encroachment of a public road, no matter what form it takes is the very antithesis of planning or a strive for excellence. 21. Thus, the encroachment on the Mathura Agra Road running more. or less North, North-East to South, South-West next to the Civil Hospital and Victoria Park and marked on the map of the Municipal Board, Mathura, (produced before the Court by an application and affidavit of the Executive Officer) cannot be permitted to continue and must be removed either voluntarily by the petitioners, else the action to demolish the shops by the Municipal Board, Mathura cannot be said to be illegal by this Court. 22. This Court must place on record the manner in which the learned standing Counsel for the State of Uttar Pradesh and otherwise appearing on behalf of the Municipal Board, Mathura, Mr. S. B. Goswami, Advocate, has assisted the Court in resolving this problem with a positive approach. In this, the Court must also appreciate the approach of Mr. 22. This Court must place on record the manner in which the learned standing Counsel for the State of Uttar Pradesh and otherwise appearing on behalf of the Municipal Board, Mathura, Mr. S. B. Goswami, Advocate, has assisted the Court in resolving this problem with a positive approach. In this, the Court must also appreciate the approach of Mr. B. Dixit, Senior Advocate, appearing on behalf of the petitioners in joining the counsel for the Municipal Board in a coordinated effort to find and seek a graceful solution. After the law was placed at the Bar he accepted that regard being had to the law and the decisions of the Supreme Court and this Court it would be futile to continue the arguments that an encroachment of a public road must be overlooked. Learned Standing Counsel, aforesaid, presented a scheme before the Court that in the vicinity of the encroachment the Mathura Development Authority has constructed a planned shopping centre and each of the petitioners will be accommodated. Simultaneously, the learned Standing. Counsel contended that it may not be misunderstood that it is the obligation of the State or the Municipal Board to find alternate sites for the petitioners. But, the learned Standing Counsel placed the scheme as a solution by fairly contending, that the new shopping complex is ready and the shops have not been occupied and will be kept vacant for each of the petitioners upon a rate which will be standardised for any other shop keeper, who may be applying. Learned counsel for the petitioners, accepted the proposal made by the Mathura Development Authority that each of the shop keepers, as were plaintiffs before the trial Court may apply to seek an allotment into the new shopping complex. Let this be so. 23. Now comes the question on the modality of clearing the public road where the petitioners are at present squatting so that no random demolition takes place, but as the encroachments have to be removed, this Court grants each of the shop keepers four months from today and until 30 September, 1989, when the monsoon will be abating, to apply and seek allotment into the new shopping complex and shift themselves into it. Each of the petitioners must make his application seeking allotment into the new shopping complex before 30 June, 1989 so that the Administrator, Municipal Board, can process the allotment applications and make the allotments within two weeks thereafter and then intimate the petitioners of the allotment which has been made and the monetary consideration which each a1k tree will have to pay, and the period within which the money against the allotment is to be deposited. When these formalities are completed, not later than 31 August, 1989 the Municipal Board, Mathura, will be at liberty to demolish the encroachment after 30 September, 1989. Before this the petitioners will be free to remove their kiosks or shops. 24. The Court reiterates its appreciation of both the parties and their counsel in resolving this delicate issue. 25. The decision of this petition inevitably means that the suits which have been filed by the petitioners in effect seeking permanent injunction against the Municipal Board, Mathura, have been rendered redundant and are now liable to be dismissed. The decision of the District Judge, Mathura, dated 6 May, 1987, is upheld. 26. The petition is dismissed. But regard being had to the circumstances cost will be on parties.