Ezhumbur Railadi Salaiyora Sirukadai Viyabarigal Sangam vs The Commissioner, Corporation of Madras Rippon Buildings, Madras and another

The petitioner association has filed this writ petition seeking for the issue of a writ of mandamus, directing the respondents to regularise the road

side vending of 81 members of petitioner sangam, the list of which has been furnished in the annexure to the writ petition.

The case of the petitioner sangam is that the members are occupying the platforms opposite to Egmore Railway station and sell several

commodities for the past 40 years. The Corporation authorities very often disturbing their business unlawfully and hence the occupation of the

members of the petitioner sangam should be regularised so that they can have a peaceful business. It is further stated in the affidavit that in the year

1976 the petitioners became the members of the association called Madras pavement Traders welfare congress which consisting of almost all the

roadside vendors of the entire Madras City. In 1986 the police as well as the Corporation officials refused the joint request for regularising the

vending in the plat forms by granting lease or licence. Even though the petitioner filed the W.P.No.11424 of 1986 and obtained the interim order

from this court, ultimately the writ petition was dismissed as withdrawn.

Mr.P.V. Bakthavatsalam, the learned counsel for the petitioner contended that the Supreme Court has directed a scheme to be framed by the

Corporation in respect of all the pavement hawkers in the City by notifying the vending and non-vending areas and to allot the place in the vending

areas to the hawkers. In fact a batch of cases are pending before the learned First Bench. If this writ petition is disposed of on merits, rejecting the

claim of the petitioners then the members of the petitioner association may not be entitled to get any allotment, even if the Corporation frames a

scheme. As the framing of the scheme itself is pending, the members of the petitioner association may be permitted to carry on their business in the

place where they are now carrying on and the writ petition may be dismissed with the said direction.

A counter affidavit has been filed on behalf of the respondents wherein it is stated that the unauthorised occupation of the members of the

petitioner sangam in the platform causes inconvenience to the pedestrians which consequentially affect the free flow of vehicular traffic in the area.

The place occupied by the members of the petitioner sangam admittedly lying opposite to Egmore Railway station and the road is having heavy

vehicular traffic. Hence the place now occupied by the members of the petitioner sangam is highly objectionable one and as such the relief sought

for by the petitioners cannot be granted. More over, some of the hawkers have put- up the shed on the storm water drainage cover and this leads

to the obstruction in the removal of any water stagnation during the rainy season.

I carefully considered the above contention of both the counsel. At the outset it is to be made clear that the pavement hawkers is not a countable

one so that the Corporation can form a scheme to demarcate the vending area and allot the same. In each artery road in the city as well as all the

busy areas the pavements are mainly occupied by the hawkers. Irrespective of the busy locality and the movement of the pedestrians,

unfortunately, the Corporation authorities as well as the other appropriate authorities have closed their eyes for considerable period. This resulted

in the mushroom growth of the occupation of the hawkers in the pavements. Even though by number of orders this court has directed the

corporation to remove the unauthorised occupations in the pavements, still the process is incomplete and on each occasion it is reported that

inspite of the removal there are recurrences and the Corporation authorities are not in a position to prevent such recurrences, really it is a sad state

of affairs.

Coming to the place occupied by the members of the petitioner sangam, admittedly, the place is opposite to Egmore Railway Station. The plan

submitted by the petitioner along with the writ petition clearly shows the location of the pavement and the number of complexes in the area. Almost

more than half a dozen hotels are there. The shopping complexes and small shops are also situated. Apart from the location of the hotels, shops,

number of bus stops for the City Buses passing through the area are also located. Egmore being a terminus for some of the City buses the places

have to be earmarked for stopping of such vehicles also.

When it is admittedly situated opposite to the Egmore Railway Station, it is needless to say that the occupation of the members of the petitioner

sangam will cause definitely inconvenience to the pedestrians. The road leads to the station would also with heavy flow of traffic, as the commuters

or the train have to be dropped and to be taken back. When the railway station is situated there, naturally auto-rickshaw stand as well as the taxi

stand and car parking are also situated there. I do not think more than this, any details are necessary to describe the situation of the locality.

When the road is a heavy traffic one having bus stops as well as the bus stand for the terminus buses, the pedestrians have to confine to the

platforms for their own safety. If the pedestrians are allowed to pass through the main roads, it would be highly unsafe as they are risking their life,

considering the heavy vehicular traffic in the road. Hence I do not find any reason to interfere in the action of the respondents in evicting the

unauthorised occupation of the members of the petitioner association.

More over, the person who sworn to the affidavit is one Mohammed, the President of the Ezhumbur Railadi Salaiyora SiruKadai Viyabarigal

Sangam. He has given his age as 50 in the affidavit and stated that the members of the petitioner sangam were carrying on the trade for the past

over 40 years. It is not clear as to the members of the petitioner sangam are occupying the place by way of hereditary right.

The jurisdiction of this court under Article 226 of the Constitution of India for the issue of mandamus can be exercised only to protect the

existing right of the aggrieved. It has been so held by a Division Bench of this court in Tiruchirapalli Palporul Virkum Thozhilalar Sangam Vs. The

Commissioner, Corporation of Tiruchirapalli, Tiruchirapalli, , The learned Judges of the Division Bench further held that the jurisdiction under

Article 226 of the constitution of India cannot be invoked to confer a right. The prayer in the writ petition is nothing but a conferment of a right of

occupation on the petitioners. Hence basing upon the above principles laid down by the Division Bench, I am of the view that the writ petition itself

is not maintainable.

It is worthwhile to refer the judgment of S.S Subramani, J in Saraswathi v. The Tahsildar, Poonamallee Taluk, Thiruvallur District, 1998 (III)

MLJ 21 where the learned Judge has held that the wrong doer cannot invoice the discretionary and equitable jurisdiction of this court for the

issuance of a writ of mandamus in the following terms:

After entering into another man''s land, in this case the Government land, the trespassers themselves invoke the writ jurisdiction, and claim equity

in their favour, though they have no legal right. I am only refusing the relief to the petitioners, and as we held by the High Court of Calcutta, the

remedy of the petitioners is the public law and not invoking Article 226 of the Constitution of India, Court refuses to exercise the discretionary

remedy in favour of a wrong doer.

The learned Judge has also placed reliance of the judgment of the Calcutta High Court in Ran Jam Kumar Halder and others v. C.M.D.A and

others, 1 C.W.N. 249 where it has been held as follows:-

Mandamus will not lie where there is no occasion for its issuance, Mandamus should be refused where me result would be injurious and

unreasonable or detrimental to public and/or public interest. It is well-settled principle that mandamus may be refused when wrong injustice is

done. The purpose of mandamus is to remedy a wrong and not to promote one.

The Allahabad High Court has also taken a similar view in the case of Pramod Tiwari v. Senior Superintendent of Police, Kanpur Nagar, AIR

1999 All. 289 where the Division Bench has held as follows:

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, Manglaur Vs. Sri Mahadeoji Maharaj, . There can be no fundamental

right to cany on business on the public road. Bombay Hawkers'' Union and Others Vs. Bombay Municipal Corporation and Others, . The

petitioner only had a licence, at best like a hawker. The petitioner was not entitled to any particular spot on the road. Olga Tellis and Others Vs.

Bombay Municipal Corporation and Others,

In order to consider as to whether the petitioners ''right'' has been involved, it may be of some use to look into the judgment of the Supreme

Court in Mr ''X'' Vs. Hospital ''Z'', where the apex Court has considered term ''right''

RIGHT"" is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for

such interest would be a legal duty. That is how Salmond has defined the ""Right"", in order, therefore, that an interest becomes the subject of a legal

right, it has to have not merely legal protection but also legal recognition. The elements of a ""LEGAL RIGHT"" are that the ""right"" is vested in a

person and is available against a person who is under a corresponding obligation and duty to respect that right and has to act or forbear from

acting in a manner so as to prevent the violation of the right. If therefore, there is a legal right vested in a person, the latter can seek its protection

against a person who is bound by a corresponding duty not to violate that right.

If the discussion of the apex court is taken into consideration, there is no doubt that the petitioners have no right to seek for the regularisation of

their occupation in the public platform.

The supreme Court in the case of N. Jagadeesan, etc. Vs. District Collector, North Arcot and Others, has held as follows:

It is stated that these thoroughfares are carrying very high volume of multimodal traffic ranging from bullock carts to fast moving vehicles and that

having regard to the increasing volume of traffic, it has become necessary to remove these bunks/kiosks and re-locate them elsewhere. This

removal is also necessary, it is stated, for widening the road. In fact, the widening of roads has reduced the width of the footpath and the existence

of bunks/kiosks on such reduced footpath margins is causing further obstruction in the free movement of the people.

So far as the contention of the learned counsel for the petitioner about the framing of the scheme is concerned, one should not close his eyes

over the increase in the flow of traffic in the main road. Within the city limits, there is no possibility of widening the roads. The corporation has now

adopted the construction of the fly-overs. Even the construction of fly-overs at some places had caused inconvenience to the heavy vehicular

traffic.

When the authorities are placed in such a helpless position to control the vehicular traffic, in my opinion, they cannot be compelled to frame a

scheme to locate the hawkers within the City limits on the pavements.

It may be seen from the records that the petitioner association is having 81 members (as per the annexure enclosed along with with writ

petition). If one platform is to be permitted to occupy such a large number of persons; that too in a busy locality, as mentioned above, it goes

without saying that the pedestrians may not be in a position to use the pavements for their use. Even the pavement hawkers themselves will find

scrambling for space. Hence this court is of the opinion that the occupation of such large number of occupants in one pavement; that too opposite

to railway station cannot be permitted or their occupation can be regularised.

I do not find any reason for framing a scheme for the hawkers and permit them to occupy on the pavements; thereby depriving the legally

entitled pedestrians from their use.

Hence I do not find any merit in the writ petition and accordingly the same is dismissed.