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Judgment
A.P. Lavande, J.—Heard the learned Counsel for the parties. All these petitions are being disposed of by common order since the facts and the questions of law involved in all the petitions are almost identical. By these petitions, the petitioners have sought the following reliefs :
(A) That this Court also be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction in its extra-ordinary writ jurisdiction stay the Notice dated 03/10/2011 and all action in pursuance thereof;
(B) That this Court also be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction be pleased to grant an order of stay restraining the Respondent Corporation or officials or agents or persons in authority from in any manner evicting the Petitioner by removing or dismantling the cart belonging to the Petitioner by use of brute force or any coercive measures in terms of Notices dated 29/09/2011 and 03/10/2011;
(c) That this Court also be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction be pleased to direct the Respondent nos.2 and 3 to undertake the devising of a composite Scheme in terms of the National Policy on Urban Vendors, 2009 and to submit a report to this Court;
(D) That this Court also be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction be pleased to direct the Respondent nos.2 and 3 to allot to undertake devising of a composite Rehabilitation Scheme for the purpose of relocation of the Petitioner and similarly placed persons;
(E) For ad-interim reliefs in terms of prayer clauses ''A'' and ''B'';
(F) For such other and further relief that this Court deems fit and proper;
(I) For costs.
In some of the petitions, the notices are dated 29th September, 2011.
Briefly, the case of the petitioners is as follows :
The petitioners, who are self employed, are carrying on business at different places in kiosks after obtaining the licences from erstwhile Panaji Municipal Council and respondent no.4. The kiosks have been erected after obtaining permissions from PWD as well as respondent no.4 and the same are registered with respondent no.4. The petitioners have also paid charges in respect of the kiosks from time to time. It is the case of the petitioners in Writ Petition No.659/2011, 660/2011 and 662/ 2011 that they have valid licences issued by respondent no.4 which are valid till 31st March, 2012. It is the case of the other petitioners that their licences have expired somewhere in the year 2004 or thereabout and the same have not been renewed in spite of repeated visits made by the petitioners to the office of the Corporation and assurances had been given that appropriate action would be taken in the matter. It is further the case of the petitioners that this Court gave certain directions in respect of the kiosks in Writ Petition No.148/1997 to various Municipal Councils and in spite of the said directions, the kiosks of some of the petitioners continued to exist whereas kiosks of some of the petitioners were granted licences much after Writ Petition No.148/1997 was disposed of. It is further the case of the petitioners that the petitioners and similarly placed persons were not heard in Writ Petition No.148/1997. It is further the case of the petitioners that in Writ Petition No.517/2008 filed by respondent no.5 herein and others, directions have been given by this Court without giving opportunity to the petitioners of being heard. It is further the case of the petitioners that the petitioners have got electricity connections to their kiosks after obtaining NOC from Panaji Municipal Council/ Corporation of City of Panaji which was created in terms of the City of Panaji Corporation Act, 2002. It is further the case of the petitioners that they have been carrying on business at their respective kiosks after having been granted licences by Municipal Corporation and as such, notices issued by respondent no.4 Corporation directing removal of kiosks from the respective places are patently unsustainable in law and in any case, the petitioners ought to have been given a reasonable time to remove the kiosks.
In Writ Petition No.662/2011, it is the case of the petitioner that respondent no.4 has issued handcart licence in respect of the kiosk for which assistance has been provided by Goa Handicraft Rural and Small Scale Industry Development Corporation Ltd. (in short ''GHRSSIDC''). It is further the case of the petitioner that after obtaining no objection certificate from the Executive Engineer, Division I, PWD, Panaji, the petitioner has obtained electricity connection after installing of kiosks near joggers park at Altinho.
It is further the case of the petitioners that in terms of the scheme of National Policy on Urban Street Vendors, 2009 (''the Scheme'' for short) it is imperative upon respondent nos.2 to 4 to implement the same in letter and spirit and the action of respondent no.4 in asking the petitioners to remove the kiosks is in violation of the said national policy. It is further the case of the petitioners that unless the modalities for hawking and non-hawking zones are worked out by the Corporation, the petitioners are not liable to be removed from the kiosks.
On behalf of respondent no.4, affidavits have been filed by the Deputy Commissioner of Corporation, opposing the admission of the writ petitions. It is the case of respondent no.4 that pursuant to the order passed dated 24th February, 2009 in Writ Petition No.517/2008 action has been taken by respondent no.4 since the kiosks of the petitioners are encroachment on footpath/ public street. It is the case of respondent no.4 that the impugned notices have been issued in compliance of the order of this Court dated 24th February, 2009 and in compliance of the duty of the Corporation to remove illegal kiosks from the public streets.
Respondent no.5 has filed affidavit, inter alia stating that the action taken by respondent no.4 is in compliance with the directions issued by this Court in Writ Petition Nos.148/1997 and 517/2008.
Mr. Rao, learned Counsel for the petitioners in support of the petitions reiterated the stand taken in Writ Petitions and made the following submissions :
(i) The petitioners have been carrying on business in the kiosks after obtaining licences from respondent no.4 and as such, the impugned notices are patently illegal.
(ii) Although in respect of kiosks of some of the petitioners, the licences have expired in the year 2004 or prior thereto, the petitioners are carrying on business for a number of years in the kiosks and they have visited the office of respondent no.4 on several occasions and they have been promised that appropriate action would be taken in the matter.
(iii) The petitioners are not liable to be removed from the kiosks unless they are rehabilitated by devising the scheme by respondent nos.2 and 3 in terms of the National Policy on Urban Street Vendors, 2009.
(iv) The petitioners having carried on business in the respective kiosks for number of years without any action having been taken by respondent no.4, the petitioners have a legitimate expectation that no action would be taken since the petitioners have not been carrying on business illegally, but on the contrary carrying on the business after obtaining the licences from respondent no.4.
(v) The bye-laws framed by the Panaji Municipal Council which have been adopted by the Corporation of City of Panaji have not been acted upon for a considerable time and as such, they have ceased to be in force by doctrine of desuetude.
(vi) The kiosks of the petitioners having been granted electricity connections, respondent no.4 is not entitled now to contend that the kiosks are liable to be removed by the petitioners.
(vii) The petitioners were not heard by this Court before issuing directions in Writ Petition Nos.148/1997 and 517/2008 and as such, the action taken by respondent no.4 without giving opportunity of being heard to the petitioners, is patently unsustainable in law.
(viii) In the event this Court is not inclined to entertain the petitions, time be granted to the petitioners to remove the kiosks and/ or to take appropriate steps.
In support of the submissions made, Mr. Rao placed reliance upon the following judgments :
(i) Municipal Corporation For City of Pune and Another Vs. Bharat Forge Co. Ltd. and others; (1995)3 SCC 434
(ii) Gainda Ram and Others Vs. M.C.D. and Others, .
(iii) Maharashtra Ekta Hawkwers Union and Another Vs. Municipal Corporation, Greater Mumbai and Others, .
(iv) Delhi Development Authority Vs. Ram Prakash, .
Mr. Rao has also cited several authorities in support of his submission that doctrine of legitimate expectation is attracted in the present case. We do not deem it necessary to refer to the same since the petitioners have not laid any foundation in the petition in respect of the plea taken during the course of argument.
Mr. Ferreira, learned Assistant Solicitor General for respondent no.1 submitted that the kiosks in respect of which licences have been granted to the petitioners are of temporary nature and the directions issued by this Court in Writ Petition Nos.148/1997 and 517/2008 are binding on respondent no.4 and as such, its action cannot be faulted. Mr. Ferreira further submitted that the guidelines laid down in National Policy do not have force of law and as such, no Mandamus could be issued to enforce these guidelines.
Mr. Dessai, learned Counsel for respondent no.4 submitted that except for the petitioners in Writ Petition Nos.659/2011, 660/2011 and 662/2011, the licences issued in favour of the other petitioners have expired and as such they have no locus to file the present writ petitions since they have been carrying on business illegally without obtaining licences from respondent no.4. According to Mr. Dessai, perusal of the notices issued to the petitioners disclose that the Corporation had removed all the kiosks in compliance with the directions given by this Court and the petitioners have been illegally carrying on business in their kiosks without obtaining licences and that too on the public footpath/ road widening area/ abutting the road which is in contravention of the directions given by this Court in Writ Petition No.148/1997. Mr. Dessai further submitted that the case set up by the petitioners that they have been carrying on business for number of years, has been disputed by respondent no.4 and as such, there is serious disputed question of fact which may not be decided in the writ petitions. Mr. Dessai further submitted that the action of respondent no.4 is in compliance with the directions given by this Court in various Writ Petitions. Learned Counsel further submitted that it was not necessary for this Court to hear the petitioners individually either in Writ Petition No.148/1997 or Writ Petition No.517/2008 and in case the petitioners desired to be heard they ought to have made appropriate applications in the said writ petitions. Mr. Dessai further submitted that in any case, the directions given by this Court, are to act in accordance with law and bye-laws and as such, no prejudice could be said to have caused to the petitioners by not giving opportunity of being heard before passing orders in Writ Petition nos.148/1997 and 517/2008. Mr. Dessai further pointed out that in Writ Petition nos.665/2011 and 667/2011, the licences are not in the names of the petitioners and as such, they have no locus to file the present Writ Petitions.
We have considered the rival submissions, perused the record and the judgments relied upon.
Indisputably, in all Writ Petitions except Writ Petition Nos.659/2011, 660/2011 and 662/2011 the licences have expired. The licences have expired in the year 1998, 2004, 2006 and 2011 and as such, these petitioners have no locus to file the present petitions inasmuch as the petitioners have no valid licences in their favour and as such, there is no obligation on respondent no.4 to permit them to carry on business without licences in their favour and without payment of charges. It is difficult to accept the contentions of these petitioners that after their licences expired, they have been visiting the office of the Corporation and they have been promised that the matter would be looked into. Firstly there are no pleadings to this effect in the petitions. Moreover, the petitioners having carried on business for some time after obtaining licence and after having paid necessary charges to the Municipal Council / Municipal Corporation, it was quite natural for these petitioners to take appropriate action within a reasonable time to get their licences renewed. Therefore, the necessary sequitur is that these petitioners have been carrying on business in the respective kiosks without obtaining necessary licences and without payment of requisite charges. Moreover, perusal of the notices issued to the petitioners disclose that the petitioners have been carrying on the business by placing the kiosks on the public footpath / road widening area/ abutting the road thereby causing inconvenience to the pedestrians and vehicular movement. No doubt, it was expected of respondent no.4 to specify as to whether the handcart/ kiosk of each of the petitioners was on footpath / road widening area/ abutting the road. However, the petitioners have not stated in the writ petitions that the statement made in the notices issued by respondent no.4 is factually incorrect. This being the position, the stand of respondent no.4 that the kiosks of the petitioners are on the public footpath / road widening area/ abutting the road has to be accepted. Once this position is accepted, the action of respondent no.4 in calling upon the petitioners to remove the kiosks cannot be faulted in view of the directions given by this Court in Writ Petition Nos.148/1997 and 517/2008. The said directions are as under :
Directions given in Writ Petition No.148/1997 :
All illegal projections/ display boards/ storage of goods or materials outside shops on streets/ footpaths by owners of shops abutting on public streets/ footpaths will be put to an end. All the four Municipal Councils will advertise by a public notice in newspapers within fifteen days from today, a direction to all such shop owners to remove/ abate all encroachments on municipal footpaths/ roads. In case there is non-compliance then the Chief officers of the Councils to act under the powers issued to them under Sub-section (3) of Section 174 which does not require any notice to be given before taking action.
It is appropriate that a further direction be given that the Chief Officers of the four Municipal Councils shall not issue any new licence for putting up any construction like kiosks on the street including footpath, or reserving a specific area for hawking to a specific individual.
In the event of any of those who were issued licences for putting up permanent structures have violated the terms of licence, action should be taken to cancel the licence expeditiously and after giving notice and considering the reply received.
The Councils or the Chief Officers have no power to grant licence for permanent structures on road-widening areas and areas which do not form part of the public street. If any such licences have been given on the expiry of the present period of licence, the same shall not be renewed.
The Municipal Councils to consider in which of the public streets hawking is to be permitted. The zones for hawking on the public streets on which hawking can be carried out shall be fixed after inviting public objections and considering the convenience of pedestrians.
In respect of existing duly licensed structures which comply with the terms of the licence, the Municipal Councils to take a policy decision and frame guidelines for their continuance! re-location on areas earmarked for hawking but not to inconvenience the pedestrians.
Each Municipal Council to constitute a special cell if not already existing directly under the Chief Officer, which shall entertain complaints in the matter of illegal encroachments on public streets, public ways, road-widening spaces and on complaints being received, to take appropriate action under law within 30 days of the receipt of the complaint. The Chief Officer shall be personally liable for taking action thereon.
Directions given in Writ Petition No.517!2008:
2)...........If any gadas/ handcarts are found to be without any licence or they are encroaching upon the public roads, streets, footpaths, etc., the Corporation to act in accordance with law, and take action within a period 3 months from today.
3) Since the gadas/ handcarts have been cleared as per orders of this Court, it is not necessary to keep the petition pending. However, we direct the Corporation-Respondent no.1 to act in accordance with law, in case any illegal encroachment by way of putting up gadas/ handcarts is found by it and remove the same within a period of 3 months from today. Subject to what is stated above, the writ petition is disposed off.
Insofar as the submission made by Mr. Rao that the kiosks of the petitioners have been given electricity connections after obtaining NOC from the Municipal Council, Panaji / Municipal Corporation, Panaji is concerned, we are of the view that this argument does not advance the case of the petitioners. Once it is held that the petitioners are carrying on the business without obtaining appropriate licences and at prohibited places which is contrary to the directions given by this Court, the petitioners cannot be given any protection on the ground that they have been able to secure electricity connections in respect of their kiosks. The fact that the petitioners have obtained electricity connections by itself would not entitle the petitioners to claim any right or equity in their favour. The authorities concerned with the grant of electricity connections are expected to ensure that the structure in respect of which electricity connection is sought, has been erected in accordance with law and after obtaining necessary permissions.
Insofar as the argument based on doctrine of legitimate expectation made by Mr. Rao is concerned, we do not deem it necessary to deal with the same inasmuch as there is no factual foundation laid in the petitions and as such, this argument advanced during the course of argument, deserves to be rejected. Insofar as the submission made by Mr. Rao that the bye-laws of Panaji Municipal Council which have been adopted by respondent no.4 have not been acted upon for a number of years by respondent no.4 and as such the doctrine of desuetude is attracted is concerned, no foundation has been laid in the petitions in support of this argument and, as such, the argument deserves to be rejected outright. However, even if the argument is tested on the merits, we find that the argument is patently unsustainable in law inasmuch as the acceptance of such an argument would result in permitting the persons to have their kiosks/ handcarts at the places they choose within the jurisdiction of respondent no.4 thereby causing serious inconvenience to the public at large. The bye-laws are framed to regulate the setting up of business in kiosks/ handcarts. Therefore, even on merits, we find that the argument deserves to be rejected.
Insofar as the submission made by Mr. Rao that the petitioners were not heard before issuing directions in Writ Petition Nos.148/1997 and 517/2008 is concerned, we find absolutely no merit therein. By the impugned directions, Panaji Municipal Council and respondent no.4 have been directed to act in accordance with the provisions of the Act and bye-laws and as such, by no stretch of imagination, it can be said that the rights of the petitioners have been affected by these directions.
Insofar as the petitioners in Writ Petition Nos.659/2011, 660/2011 and 662/2011 are concerned, no doubt their licences are valid till 31st March, 2012. However, as stated above, since the kiosks are on public footpath / road widening area/ abutting the road, the mere fact that they have got licences in their favour valid upto 31st March, 2012, would not entitle these petitioners to carry on business in their respective kiosks at the said places. Renewal of licences by respondent no.4 till 31st March, 2012 would entitle these petitioners to carry on business in their kiosks at such places as may be permissible in law, but after having accepted the stand of respondent no.4 that the kiosks of these petitioners are on public footpath / road widening area/ abutting the road, we are unable to give any protection to these petitioners inasmuch as the same would be in contravention of the directions given in Writ Petition Nos.148/1997 and 517/2008. Therefore, in respect of the notices issued by respondent no.4 in Writ Petition Nos.659/2011, 660/2011 and 662/2011, the petitioners are not entitled to reliefs sought in their petitions.
Insofar as the petitioner in Writ Petition No.662/2011 is concerned, perusal of the record discloses that the petitioner is selected by GHRSSIDC for assistance under Goa Youth Rojgar Yojana (Self-employment Scheme). The petitioner was allotted a built up kiosk of size of 2x1.25 metres at the cost of Rs.39,000/- in terms of the communication dated 30th September, 2009 addressed to the petitioner. It is pertinent to note that clause 5 of the said communication provides that lease deed was to be executed with private property owner before handing over the erected kiosk. It is, therefore, clear that it was necessary for the petitioner to execute lease deed with private property owner even before handing over of kiosk by GHRSSIDC to the petitioner. The petitioner was expected to carry on business in the kiosk in the private property and not on the public footpath / road widening area/ abutting the road. The kiosk of the petitioner having been found on public footpath / road widening area/ abutting the road, the mere fact that the petitioner has been granted licence by the Corporation and the electricity connection by the electricity department, would not entitle the petitioner to carry on business in the said kiosk on public footpath / road widening area/ abutting the road. Therefore, the petitioner in Writ Petition No.662/2011 is also not entitled to the reliefs sought in the petition.
We are not inclined to accede to the submission made by Mr. Rao that unless the scheme is devised by respondent nos.2 and 3 in terms of the National Policy on Urban Street Vendors, 2009, the petitioners are not liable to be removed from the kiosks. We have already held that the action of respondent no.4 in issuing the notices to the petitioners, cannot be faulted since the petitioners'' kiosks are on public footpath/ road widening area/ abutting the road which are in violation of the bye-laws and as such, the action taken by respondent no.4 cannot be faulted. The petitioners have not approached respondent nos.2 and 3 for devising a scheme for their rehabilitation. The petitioners are free to make appropriate representation to respondent nos.2 and 3 and in the event the petitioners choose to do so, respondent nos.2 and 3 are expected to take appropriate decision in accordance with law. However, this liberty should not be construed as granting time to respondent no.4 to take action in accordance with the notices dated 29th September, 2011 and 3rd October, 2011 issued to the petitioners. We are also not inclined to grant any time to the petitioners either to remove the kiosks or to make appropriate arrangement inasmuch as the notices have been issued on 29th September, 2011 and 3rd October, 2011 and admittedly, these notices have not been acted upon by respondent no.4 till date. Since respondent no.4 has acted in compliance with the directions issued by this Court in Writ Petition Nos.148/1997 and 517/2008, we are of the considered opinion that it would be inappropriate for this Court to grant any time to the petitioners.
It is the case of the petitioners in Writ Petition Nos.659/2011, 660/2011 and 662/2011 that they have been lawfully carrying on the business in the kiosks and their licences have been renewed till 31st March, 2012. According to respondent no.4, these petitioners have been carrying on business in kiosks situated on the public footpath/ road widening area/ abutting the road. We, therefore, deem it appropriate to direct respondent no.4 that before granting and/ or renewing the licences for handcarts/ kiosks, respondent no.4 shall identify the places where the business shall be carried on. Respondent no.4 shall not renew the licences in respect of the handcarts/ kiosks without verifying that the business is carried on in compliance with the bye-laws in force and not on public footpath/ road widening area/ abutting the road. In the result, therefore, we do not find any merit in the writ petitions. Consequently Writ Petitions stand dismissed with no order as to costs.