Harish Kumar and Others vs State of Uttarakhand and Others

Barin Ghosh, C.J. Delay Condonation Application

The application for condonation of delay is allowed. Delay in filing the Special Appeal is hereby condoned.

Special Appeal No. 141 of 2010

Admit. With the consent of the parties, the appeal is taken up for hearing.

It is contended that the Appellants before us were not parties to the Writ Petition No. 847 of 2006 (M/B), nor they were parties to the Writ Petition No. 896 of 2006 (M/B). Some of them were. Event if we accept the said contention, the situation does not alter. By the judgment and order under appeal, the writ petition filed by them and registered as Writ Petition No. 2067 of 2009 (M/S), has been dismissed, inter alia, on the ground that the Petitioners were parties to Writ Petition No. 847 of 2006 (M/B) and Writ Petition No. 896 of 2006 (M/B) and, while they permitted Writ Petition No. 846 of 2006 (M/B) to be dismissed as withdrawn; their writ petition, registered as Writ Petition No. 896 of 2006 (M/B), was dismissed. The other reason appears to be withdrawal of Writ Petition No. 382 of 2009 filed before the Hon''ble Supreme Court without liberty to file a writ petition. The learned Counsel for the Appellants has drawn our attention to the order passed on Writ Petition No. 382 of 2009 by the Hon''ble Supreme Court, wherefrom it appears that while the Petitioners in the said writ petition were permitted to withdraw the said writ petition, liberty of the Petitioners was preserved to avail such remedy as may be available to them in law. There is no dispute that after having had withdrawn the writ petition filed before the Hon''ble Supreme Court, the other remedy that was available to the Petitioners was to file a writ petition before this Court. In such view of the matter, we are of the view that the order under appeal, on the premise that the Petitioners exhausted their remedy of approaching this Court by filing a writ petition, is not sustainable.

However, the judgment and order under appeal did not close the matter on the said technical ground alone. The learned Judge went into the facts of the case. The purpose of approaching this Court by the Appellants was to thwart the efforts made by the Respondent - municipality to remove the Appellants who, according to the Respondent - municipality, were squatting on the public land and thereby causing hindrance to public facilities available in the town of Haridwar. It was contended that the Appellants are carrying on their businesses through shops and kiosks and those are in existence for the last 70 years. No evidence that those shops and kiosks are in existence for the last 70 years was brought on records of the writ petition, nor any attempt has been made to bring any evidence in support thereof in this appeal. Appellants are contending that the Respondent - municipality acknowledged that the Appellants are carrying on their businesses through those shops and kiosks, and also permitted them to do so by issuing Tehbazari tickets. Tehbazari tickets are issued to hawkers. In law, hawkers do not carry on business in shops or kiosks. They hawk their wares at one place and carry the same to other during the same day, either on their shoulders or through some other means. The moment a person holds out that he has been acknowledged as a hawker, he represents to be a hawker and not a shopkeeper or a kiosk owner.

The learned Counsel for the Appellants drew our attention to two judgments and orders of the Hon''ble Supreme Court. One was rendered in Writ Petition (C) No. 1030 of 1986 (Vijay Kumar and Ors. v. State of U.P. and Ors.) and the other in Writ Petition (C) No. 318 of 1991 (Laghu Vyapark Sewa Simiti v. The State of U.P. and Anr.). In the first judgment, as would be evident therefrom, the Hon''ble Supreme Court was concerned with those shopkeepers who have been granted licence to carry on business through such shops by the Respondent - municipality. After having had granted such licence, the Respondent - municipality wanted to remove those shops. The Hon''ble Supreme Court, in those circumstances, interfered and directed that while the shops may be removed, the shop-owners thereof must be rehabilitated. The nature and character of shop-owners, dealt in the second judgment, cannot be deciphered from the Judgment. We do not think that the Hon''ble Supreme Court issued an order not to disturb the persons mentioned in the said judgment without noting that the persons concerned had right to be not disturbed. Such right can only accrue when the person concerned has an established right to be on the land in question, either by way of a grant or licence or otherwise. The squatter of a public land has no right to be on such public land and, accordingly, we proceed to hold that the second judgment of the Hon''ble Supreme Court, referred to above, did not apply to a squatter as that of the Appellants before us. In as much as the Appellants have not been able to bring on record any right, either acknowledged or otherwise, to be on the land upon which they are squatting, we do not think they had any right to file a writ petition to stop the municipality to bring to an end such squatting.

The learned Counsel for the Appellants, we think, without even bothering to read the judgment of the Hon''ble Supreme Court, rendered in the case of Sodan Singh and Others Vs. New Delhi Municipal Committee and Others, cited the same before us to strengthen his argument that a squatter on a public land is entitled to squat thereon permanently, as is the contention in the present writ petition. In that case, the right of hawkers to hawk has been upheld.

Furthermore, the learned Counsel for the municipality has informed us that the said shops / kiosks have already been removed.

We, accordingly, dismiss the appeal.