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Judgment
A.P. Lavande, J.—By this petition, the petitioner has challenged the notice dated 3.10.2011 issued by respondent no.1 and has sought following reliefs:-
(A) For a Writ of Certiorari or Writ in the nature of Certiorari or any other appropriate Writ, Order or Direction quashing the impugned notice dated 3.10.2011 passed by the respondent no.1.
(B) Pending the hearing and final disposal of the writ petition, the Respondent be directed by way of interim relief of staying the execution of impugned notice dated 3.10.2011 and/or direction is required to be issued to respondent no.1 directing not to evict the petitioner till final disposal of the present writ petition.
It is the case of the petitioner that he is having his hand cart/kiosk bearing Municipal registration no. 132 next to the road near Inox theatre, near Panjim market wherein he is selling stationery and consumer items. The kiosk was started with the permission of respondent no.1 about 22 years back. The kiosk is not creating any problem to the public and is almost near the private property. The petitioner has been granted licence in respect of kiosk till 2004. The petitioner is also having valid licence for the manufacture and sale of bakery products. The petitioner has also telephone connection. It is further the case of the petitioner that without any site inspection having been carried out by respondent no.1, the petitioner was issued notice dated 3.10.2011 calling upon him to remove the kiosk within a period of 48 hours in contravention of the directions given by the Apex Court in the case of Labha Ram and Sons and Others Vs. State of Punjab and Others, .
The affidavit has been filed on behalf of respondent no.1 opposing the petition in which it has been stated that respondent no.1 has acted in accordance with the directions issued by this Court in Writ Petition No. 517/2008. It is the case of respondent no.1 that kiosk is on public foot path adjoining the tarred public road and is an encroachment and blockage of the public road, and affects the pedestrian movement and results in pedestrian using the tarred road. Respondent no.1 has relied upon the photographs. In short it is the case of respondent no.1 that respondent no.1 has acted in compliance with order dated 24.2.2009 passed in Writ Petition no. 517/2008, a copy of which has been annexed to the affidavit.
Mr. John, learned Counsel for the petitioner submitted that the petitioner has been carrying on the business for more than 22 years in the kiosk and though he has licence renewed till 2004, the petitioner has been visiting the office of respondent no.1 for payment of licence fees and he has been informed that the appropriate action would be taken in the matter. Learned Counsel further submitted that before issuing notice no show cause notice was issued to the petitioner and, as such, the action of respondent no.1 is patently illegal and affects the right of the petitioner to carry on the business. According to learned counsel respondent no.1 is bound to accommodate the petitioner in the market complex before the petitioner is asked to remove his kiosk where he has been carrying on business for last 22 years. In support of his submissions Mr. John, places reliance upon the judgment of Apex Court in the case of M/s Labha Ram (supra).
Per contra, Mr. Diniz, learned counsel for respondent no.1 submitted that the petitioner has no licence issued by respondent no.1 after 2004 and perusal of the photographs clearly discloses that the petitioner has been carrying on business in the kiosk on the footpath and as such action of respondent no.1 in issuing notice to the petitioner cannot be faulted inasmuch as the petitioner has no right to carry on business on the foot path and that too after his licence has expired. Mr. Diniz placed reliance upon the judgment of the Apex Court in the case of Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, .
We have considered the rival submissions and perused the record.
Indisputably, the licence issued to the petitioner has expired in 2004. Except for bare statement during the course of arguments by learned counsel appearing for the petitioner, the petitioner has not averred in the petition that after 2004 he made any attempts to renew his licence. Perusal of the impugned notice states that the kiosk of the petitioner is on public foot path/road widening area/abutting the road. Perusal of the photographs produced by the respondent no.1 which have not been disputed by the petitioner clearly establishes that the kiosk of the petitioner is on public foot path. This being the position, the petitioner whose licence has expired in the year 2004 has no right of whatsoever to carry on business in the kiosk which is on the foot path. In so far as judgment in the case of M/s Labha Ram ( supra) is concerned in the said case Apex Court was dealing with the provisions of Punjab New Mandi Township (Development and Regulation) Act, 1960. We fail to understand as to how judgment in the case of M/s Labha Ram (supra) advances the case of the petitioner. In the present case action of respondent no.1 is in compliance with the directions given in Writ Petition no. 517/2008 by which Municipal Council/Corporation has been directed to remove the kiosks and hand carts from public foot path/road widening area/abutting the road. In the case of Ahmedabad Municipal Corporation (supra) relied upon by Mr. Diniz, the Apex Court has held that foot path/streets or pavements are public property which are intended to serve the convenience of general public and they are not meant for private use and indeed their use for a private purpose frustrates the very object for which they are carved out from portions of public roads. The Apex Court further held that no one has right to make use of public property for their private purpose without the requisite authorisation from the competent authority and therefore it would be duty of the competent authority to remove encroachment from the pavement or foot path or public street obstructing free flow of traffic or passing or repassing by the pedestrian.
In our considered view, ratio in the judgment of Ahmedabad Municipal Corporation is squarely applicable and as such no fault can be found with respondent no. 1 in issuing notice dated 3.10.2011 to the petitioner calling upon him to remove the kiosk. The record clearly discloses that the petitioner has been carrying on business on the foot path. In so far as submission made by Mr. John, that respondent no.1 is bound to accommodate the petitioner in the market complex before he is asked to remove the kiosk is concerned, we find absolutely no merit. In our considered opinion, this is not a fit case in which this Court should exercise extraordinary jurisdiction under Article 226 and/or 227 of Constitution of India invoked by the petitioner. In the result therefore, we do not find any merit in the petition. Consequently, the writ petition stands dismissed. Interim relief granted on 6.10.2011 stands vacated. Petition stands disposed of.