Public pathways cannot be encroached upon for religious structures as it infringes fundamental rights.

1. Heard Sri M.A. Siddiqui, Advocate, for petitioners, learned Standing Counsel for State - respondents and Sri Savitra Vardhan Singh, Advocate for respondent 2 - Nagar Nigam.

2. The grievance of petitioners, who are 19 in numbers and all are residents of Dauda Kheda, Police Station Para, Lucknow is that there is a public pathway connecting houses of petitioners to R.D.S.O. - Rajajipuram Road falling in Village / Mohalla Dauda Kheda. Respondents 6 and 7 are encroaching upon a public pathway by raising construction of a religious structure (Temple) and attempting to encroach upon the public land. They have already constructed a Chabutara creating obstruction in smooth passage on the said public pathway and despite several complaints to local and District authorities, none has paid any heed to said grievance of petitioners. Photographs showing partial construction raised on pathway and construction material kept on public pathway for raising further constructions have also been filed.

3. Sri Siddiqui, learned counsel for petitioners, in a very spirited manner advanced his arguments that people of this Country are basically simple and have faith in one or the other religion. They are normally soft whenever any religious activity is undertaken, even if it causes inconvenience of any kind to them. Taking advantage of such religious sentiments normally shown by majority of people, some scrupulous people do not hesitate in gross misuse by proceeding to encroach upon public land causing obstruction in smooth movement of public. Many a times, we have seen that in the garb of constructing religious structures, like Temple, Mazar, Samadhi, Mosque, Gurudwara, Church etc., public roads (including highways), streets, pathways etc. are encroached upon, obstructing or creating hindrance in smooth movement of public including vehicular traffic and once such structure is raised, due to fear of adverse consequences, people normally avoid to complain, and used to adjust such misuse. It is submitted by learned counsel for petitioners that authorities in power, who under the statute, are responsible to prevent such encroachment and illegal constructions also play soft and do not take or hesitate in taking action for preventing such activities and this is causing mushroom growth of such structures by encroaching upon public roads (including highways), streets, pathways etc. He said that though these activities, one can find in other places belong to public where such constructions are not permissible like Public parks, play grounds etc., but for the purpose of present writ petition, he is confining his argument in respect to such encroachments, made or sought to be made or attempted to be made, on public roads (including highways), streets, pathways, lanes, bye - lanes etc.

4. When called upon, learned Standing Counsel stated that such encroachment and illegal constructions, neither in law nor otherwise can be allowed, but fairly stated that looking to religious sentiments of people, authorities find it difficult to take actual action and, therefore, this Court may issue appropriate directions which may help the authorities to remove such constructions making encroachment on public roads (including highways), streets and pathways etc. and also prevent the same in future.

5. Looking to the aforesaid submissions as also the nature of order we propose to pass, we do not find any necessity to issue notice to respondents 6 and 7.

6. There is no fundamental or legal right to encroach upon a public road (including highway), street etc. and raise construction of any kind thereon. These unauthorised and illegal activities cause hindrance and interruption in free fl