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Judgment
S. Jagadeesan, J.—The Petitioner association has filed this writ petition for the issuance of a Writ of Mandamus forbearing the Respondent herein from interfering with the right of the members of the Petitioner association to carry on their trade in between GEM & Co. and L.K.S. Jewellers situated in Usman Road, T. Nagar, Madras -17.
It is stated in the affidavit filed in support of the writ petition that 33 members of the Petitioner association, who are all small traders, are carrying on their business on the pavements on the eastern side of Usman Road, T. Nagar. Their occupation in the pavements does not cause any disturbance to the public or any obstruction to the pedestrians. The Respondent herein is trying to evict the members of the Petitioner association from the place of their occupation on the ground that the pedestrians are put to trouble and hence, the writ petition has been filed.
The Respondent herein has filed a counter affidavit wherein it is stated that Usman Road in T. Nagar is a busy road having a number of commercial establishments. The movement of the pedestrians and traffic in Usman Road is very heavy and it is a highly congested area. If the vendors are allowed to put up shops in the pavements, the pedestrians have to walk on the road exposing themselves to great risk to their lives. This Court in W.P. No. l 127 of 1980 filed by the President of Ranganathan Street Merchants Association has directed the Respondents therein to remove all the hawkers from Ranganathan Street and on the same principle, this writ petition is liable to be dismissed.
Learned Counsel for the Petitioner vehemently contended that if the members of the Petitioner association are removed from the pavements, they will be deprived of their livelihood. They are carrying on the trade for more than a decade or so and hence, there should not be any sudden removal.
It is further contended by the learned Counsel for the Petitioner that similar matters are pending before the First Bench, which has appointed a committee to go into the question of identification of trading and non-trading areas and to allot the places in the trading areas for the use of the pavement hawkers. Hence, till the committee submits such a report, the occupation of the members of the Petitioner association need not be disturbed.
I have carefully considered the contentions of the ''learned Counsel for the Petitioner.
At the outset, a look at the prayer would reveal that the writ petition has been filed as if the members of the Petitioner association have got a right to carry on their trade in between GEM & Co. and L.K.S. Jewellers situated in Usman Road. There is absolutely no document to evince such a right. It is also not clear from the averment in the affidavit filed in support of the writ petition as to how the members of the Petitioner association derive such a right to carry on their trade in Usman Road.
From the arguments of the learned Counsel for the Petitioner, it is further clear that such a right is being claimed only by way of long occupation. This Court has held in the case of Tiruchirapalli Palporul Virkum Thozhilalar Sangam Vs. The Commissioner, Corporation of Tiruchirapalli, Tiruchirapalli, that the jurisdiction of this Court under Article 226 of the Constitution of India can be invoked only to protect an existing right and not confer any new right. When the members of the Petitioner association had not established their right to cany on their trade in the platform, following the principles laid down by the Division Bench of this Court in the above judgment, the writ petition is liable to be dismissed in short.
The occupation of the platform, as stated in the counter affidavit, undoubtedly causes hindrance to the pedestrians. The platform is meant for the use of the pedestrians. By allowing the occupation of the same by the traders like the members of the Petitioner association, definitely, the pedestrians, who are legally entitled for the use of the platform, are being deprived of the benefit. In fact, the Supreme Court has held in the case of Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, that the pedestrians cannot be deprived of the use of the platform, because they are forced to risk their lives, while they are compelled to walk in the streets wherein the vehicular traffic is on the higher side. It has been held as follows:
The removal of the encroachments needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or re-passing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places.... Every Municipal Corporation has statutory obligation to provide free flow of traffic and pedestrians right to pass and re-pass freely and safely; as its concomitance, the Corporation / Municipality have statutory duty to have the encroachments removed. It would, therefore, be inexpedient to give any direction not to remove, or to allow the encroachment on the pavements or footpaths which is a constant source of unhygienic ecology, traffic hazards and risk prone to lives of the pedestrians. It would, therefore, be necessary to permit the Corporation to exercise the statutory powers to prevent encroachment of the pavements/footpaths and to prevent construction thereon. As held earlier, the Corporation should always be vigilant and should not allow encroachments of the pavements and footpaths. As soon as they notice any encroachment, they should forthwith take steps to have them removed and would not allow them to settle down for a long time.
The occupation of the members of the Petitioner association cannot be a legal one, since, as already found, they have no right to occupy such a public place. Hence, undoubtedly, the occupation of the platforms by the members of the Petitioner association is a wrongful act. Yet another Division Bench of this Court has held in the case of Sekar v. Maliigarjuna Rao 2000 (3) MLJ 123 : 2001 W.L.R. 140 that a wrong doer cannot come before this Court for any relief under Article 226 of the Constitution of India.
It may be worthwhile to refer one more judgment of this Court in the case of Tamizhaga Kudiasaivazh Nallvutor Munnetra Sangam 232/91 Annai Sathya Nagar, Rajaji Salai, Opposite Reserve Bank of India, Chennai-9 Vs. State of Tamil Nadu and 4 others, wherein the learned Judge held as follows:
In B. Saraswathi and 8 Ors. v. Tahsildar Poonamallee Taluk, Thiravalur District 1998 WLR 181, S.S. Subramani, J has held that the Petitioners therein admitted that they are in possession of the Government land and that they did not claim that they came into possession on the basis of the consent by the Government. They are rank trespassers is evident from their own admission. Even though they claim to be in possession for the last more than 20 years, their legal status is only as trespassers. The learned Judge held that alter entering into another man''s land, in this case the Government land, the trespassers themselves claim writ jurisdiction and claim equity in their favour though they have no legal right and declined to grant the relief to the petition following the judgment of the Calcutta High Court. The learned Judge followed the decision of the Supreme Court in A.P. Christians Medical Educational Society Vs. Government of Andhra Pradesh and Another, and Chief Secretary and Others Vs. Mathai Kuriakose and Others, for refusing the relief of mandamus at the hands of trespassers.
On this ground also, the members of the Petitioner association are not entitled for any relief.
So far as the request of the learned Counsel for the Petitioner that the members of the Petitioner association may be permitted to occupy the place in the platforms till the committee appointed by the First Bench of this Court submits the report is concerned, it is unnecessary for me to repeat in detail to reject the contenation except to extract a portion of the order in W.P. No. 2116 of 1994 dated 24.10.2000 wherein an identical request was made by the learned Counsel for the Petitioners therein. The relevant portion is as follows:
Coming to the request of the counsel for the Petitioners to permit the Petitioners to occupy the place till the scheme is framed, as already pointed out by the Division Bench, I am of the view that there is no possibility of the framing of the scheme in the near future, as the conduct of the Respondents is very clear in this regard. Even if the Respondents come out with the proposal for framing of the scheme, it depends upon the area to be chosen by them, allotment of such sites to the platform vendors and whether all the vendors, the encroachers on the platforms and roads can be accommodated in that area are the questions to be gone into. Definitely, there will be loggerheads in the allotment of the sites and it is not an easy task to satisfy the encroachers. If till such time the encroachers have to occupy the platforms, as pointed out by the Apex Court in the judgment, the life of the pedestrians will be at constant peril. There is no justification to permit the hawkers in the platforms and the streets pending the framing of the scheme, considering the immediate need of the places for the pedestrians and the movement of the vehicle.
As the Division Bench of this Court pointed out, the Corporation can be directed to enumerate a list of encroachers and have the list to provide them in the place as and when the scheme is framed. When the authorities plead before this Court that the encroachment is a recurring problem, as there are repeated cases of recurrences even after such removal of the encroachments, as well as new ones, I do not think the Respondents can be permitted to further add their evil to the society.
Hence, there is no merit in the contentions raised by the learned Counsel for the Petitioner.
Accordingly, the writ petition is dismissed. No costs. Consequently, the above W.M.P. is also dismissed.