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Judgment
K. Sampath, J.—The Petitioner-Association represented by its Secretary K. Ramanathan has filed the present writ petition for a mandamus
directing the Respondents not to interfere or disturb or to cause the issue of any notice to the members of the Petitioner-Association. Viz. Tamil
Nadu Bunk Shoo Self Employed Youth Association (TABSSEY Association) on the following allegations.
The Association was founded to protect the interests of self-employed youth against exploitation by Government. Corporation and Police
Personnel. It is duly registered under the Tamil Nadu Societies Registration Act, Act 27 of 1975 and the certificate bears No. Section 7/99. The
Members of the Petitioner-Association are economically very weak and also not well-informed. They erect bunk shops and sell petty articles and
run coffee and tea stalls involving minimal investment. Initial erection of such bunks was not objected to by any one. The members of the
Petitioner-Association had installed bunks at least a decade ago.
The members eke out daily income and a major portion of their income had to be paid to Corporation Officials and persons posing as Highways
Department. Whenever the members fail to meet the demand by the Corporation and Highways people, there would be threat of eviction and
execution of the same would be carried out. Whenever the owners of the bunk shops were about to be evicted, they had filed writ petitions and
obtained interim orders against dispossession. The said writ petitions have collectively been posted before the First Division Bench of this Court.
The peaceful possession of the bunks thus stands protected.
To keep the members of the Petitioner-Association constantly under threat, the second Respondent also made unreasonable demands, which
could not be complied with. He therefore, swore to uproot them and drive them to the streets. He affixed notices on few of the bunks situate at
General Hospital and located at Walltax Road u/s 379-A of the Madras City Municipal Corporation Act (hereinafter referred to as the Act) on 6-
5-1999. The Corporation did not issue licence. These facts were the subject matter of batch of writ petitions.
On 6-5-1999 evening itself a lawyer''s notice was issued to the first Respondent stating that the bunk shops located at General Hospital and
Walltax Road was subject matter of dispute before the High Court and are protected by interim orders, that their position was sought to be
disturbed by issue of notices at the instance of the Corporation Law Officer and this was nothing but a willful design to defeat the interim orders of
the High Court highly contumacious and arbitrary and that any further persistence would result in moving the High Court under Contempt of Courts
Act. Unmoved by this notice, Respondents 1 and 2 affixed one notice on 7-5-1999 purporting to be u/s 222 of the Act, the text of which
translated into English means as follows:
You are unauthorisedly conducting bunks which is a hindrance to passer-by. Hence you shall remove your bunk within three days or else it would
be forcibly removed by the Corporation without any further notice.
When such notice is due to each one of the owners of the bunks carbon copies of the same notice was purported to be served by affixture in the
first instance itself.
There was a further legal notice issued on behalf of the members of the Association to Respondents 1 and 2 telegraphically and by fax on 7-5-
1999 evening reading as follows:
Despite the telegram sent to you your men had persisted in violating the orders of the High Court by service of notice u/s 222 of the MCMC Act
today. This is a ruse to dispossess my clients forcibly. Hence each one of them have taken steps to move the High Court under Contempt of
Courts Act. The notice purported to be u/s 222 is per se defective and betrays your ulterior motive. The time granted is inadequate. It is actually
the notice to vacate them within 24 hours, for the next two days are holidays.
Please ensure that further two weeks is granted for the purpose of giving their explanation. The treatment meted out to them is as if they are not
citizens of this country but slaves who don''t enjoy the Constitution guaranteed of fair treatment in accordance with the rule of law.
When disputes relating to the eviction of bunk shops belonging to the members of the Petitioner-Association are pending decision before the First
Bench of this Court and the Respondents having failed in their duly to submit a report as required by the First Bench, they are not entitled to
dispossess the members of the Petitioner Association in any manner. The notice u/s 379-A and Section 222 of the Act are contumacious and not
in accordance with law and aimed at subverting the course of justice. Many of the members of the Petitioner Association enjoy the protection of
interim orders and are not liable to be dispossessed: Status quo had been granted. No doubt, in some cases interim order has been granted subject
to initiation of proceedings u/s 222 of the Act. Notwithstanding the interim orders, the Respondents have filed a counter affidavit undertaking to file
a report. In these circumstances, it is not open to them to take action u/s 222 of the Act. They cannot also resort to affixture as a mode of service
in the first instance itself. The notice is defective. Adequate time has not been granted. There is total lack of bona fides and has been issued with
ulterior motive. The third Respondent has been giving police protection supporting all the illegal acts of Respondents 1 and 2. They blindly
unleashed their force on the Petitioners and the Respondents had planned to carry out the operation by surprise. The members of the Petitioner-
Association being forcibly dispossessed contrary to law was imminent. It is under these circumstances that the writ petition came to be filed on 10-
5-1999 before the Vacation Court.
The writ petition was admitted on 13-5-1999 and notice was ordered in the interim application. The matter was directed to be posted on 18-5-
1999. On 18-5-1999 the matter did not reach.
The first Respondent through its Commissioner, filed a counter on 18-5-1999 to the following effect:
EVR Perivar Salai (Poonamallee High Road) and VOC Salai (Walltax Road) are maintained by the Highways Department. Neither the Highways
Department nor the Corporation of Chennai permitted the Petitioners at any time to run the trade in front of the Government General Hospital and
abutting Central Railway Station at EVR Pcriyar Salai and VOC Salai respectively. The Petitioners are running the trade without any valid licence
issued by the Corporation of Chennai and they arc only trespassers. The Petitioner-Association has failed to give a list comprising of all the names
of the Petitioner-Association before the First Bench. They failed to provide any information to substantiate that they are doing business in front of
Government General Hospital and abutting Central Railway Station. EVR Periyar Salai and VOC Salai. They are mere speculators and wanted to
create sonic rights.
The Supreme Court in Civil Appeal No. 1710/87 with W.P.(C) Nos. 1000/87, 365/87 and 677/95 and Civil Appeal No. 1536/97 arising out of
S.L.P.(C) No. 20689/93 and vide order dated 21-2-1997 has stated that by seeking to remove bunks and kiosks when located within the
hospital premises or within the premises of other medical institutions for their removal from the road margins of important and busy thoroughfares in
the three cities, viz. Madras. Vellore and Tinipur in Tamil Nadu, the authorities are not doing anything illegal. The above said decision is reported in
N. Jagadeesan, etc. Vs. District Collector, North Arcot and Others, . They are not acting arbitrarily and the reasons assigned. Viz. that they cause
hazards to health and well-being of the patients and others visiting hospitals and institutions by creating unhygienic conditions cannot be said to be
not relevant and germane.
The members of the Petitioner Association are occupying the Poonamallee High Road in front of the Government General Hospital and abutting
Central Railway Station by selling unhygienic food and they block the entire road and give trouble to the pedestrians. The Corporation of Chennai
had issued notices u/s 222 of the Act to the 10 encroachers as per the direction of the High Court in W.P. Nos. 14062/97, 13053/97, and
14290/97 dated 15-10-1997, W.P. No. 18091/98 dated 25-11-1998. W.P. Nos. 13779/97, 13989/97, 13790/97, and 13791/97 dated 15-
10-1997 and W.P. No. 18441/97 dated 10-12-1997. In respect of the remaining bunks the Corporation of Chennai issued notice u/s 379-A of
the Act for the closure of the trade since the encroachers arc doing business or selling unhygienic food in front of the Government General Hospital.
The Highways Department sent a requisition to the Corporation on 6-5-1999 staling that they were going to evict encroachers at Poonamallee
High Road and Walltax Road, since the roads belong to them and maintained by them. They further requested the Commissioner, Corporation of
Chennai to provide necessary vehicles, men and material for the eviction operation. Accordingly, the Corporation had provided vehicles to the
Highways Department and they commenced the eviction operation at Poonamallee High Road and Waltax Road, which are under their possession
and maintenance. The Corporation of Chennai has not removed any of the above said bunks. The Highways Department is a just and necessary
party to the writ petition. It had not been made a party deliberately and the writ petition is liable to be dismissed on this ground. Some of the
members of the Petitioner-Association filed a writ petition in W.P. No. 5110/99 against the Highways Department and the same was dismissed by
this Court on 23-4-1999. This has been suppressed by the writ Petitioner. The writ petition is liable to be dismissed on this ground also. The
members of the Petitioner-Association filed W.P. Nos. 14062/97, 13053/97 and 14290/97 sought removal of the seals put up by the Health
Department of the Corporation pursuant to the order of the Supreme Court and on receipt of a lot of complaints from the general public alleging
that the members of the Petitioner-Association were selling unhygienic food. This Court upheld the action taken by this Respondent and dismissed
the writ petitions. After the dismissal of the writ petitions, the writ Petitioners had no locus standi to run the shops.''It is averred in the writ petitions
that they are running the shops and it would amount to contempt of court. There is also an admission in the writ affidavit that they are operating
without licence.
The allegations against the second Respondent are absolutely baseless. The second Respondent told this Respondent that he did not even know
who the members of the Petitioner-Association were. He has carried out his statutory duties. The writ Petitioners had produced certain order
copies in the typed set and when the order copies were verified with the list of members provided in the typed set, the names of the following
members were not found in the list of members appended in the typed set:
R. Raman - O.S. No. 1500/98 I.A. No. 3586/98 order dated 19-3-1998 by the XI Assistant City Civil Court;
W.P. No. 8498/96 filed by V. Ganesh Prasad;
W.P. No. 10137/95 filed by M. Unas Ali;
W.P. No. 2074/92 filed by B. Baskar;
I.A. No. 18685/97 in O.S. No. 7184/97 filed by M. Ramesh;
W.P. No. 365/97 C. Vijayaram;
W.P. No. 5594/96 to 5597/96 P. Govindaraj;
P. Murugan T. Vasuki and Akbar;
W.P. No. 18477/91 and W.P. No. 18478/91 Ramesh and C. Balakrishnan.
The Petitioner has enclosed order copy in the batch of writ petitions starting with W.P. No. 4578/93. In the order copy, none in the list of
members filed in the typed set figures or Petitioners cited in the batch case. The Petitioners are speculators and trespassers of the public land
causing a lot of inconvenience and nuisance to the public.
Section 222 notice has been given only because of the orders passed by this Court. The Highways Department acted as per the direction of the
Supreme Court judgment. Notice u/s 222 of the Act had been validly given and there was no defect in the same. The validity of Section 222 notice
has been upheld in many of the judgments by this Court. There is no common grievance involved. The Association is registered only in 1999. It is
not known whether the object of the Association permits filing of writ petition on behalf of its members.
The Respondents have not committed any contempt of court. The issue of notice u/s 379-A of the Act had already been challenged by some of the
members of the Petitioner-Association and it had been dismissed by this Court. This had been deliberately suppressed in the affidavit filed in
support of the writ petition. The Corporation has acted as per the direction of the Supreme Court and adopted due process of law. The Highways
Department, which was the custodian of the above said roads has removed the unauthorised bunks which were unlicensed on 11-5-1999. The
Corporation of Chennai has not removed any of the above said bunks. The writ petition is not maintainable. There are no bunks either in front of
the Government General Hospital at EVR Periyar Salai or abutting Central Railway Station at VOC Salai. The prayer has become infructuous and
it is liable to be dismissed.
On 19-5-1999 E. Padmabhan. J. passed the following order.
Mr. Karuppan; learned Counsel for the Petitioner represents that he will place materials to substantiate the claim of members of the Petitioner''s-
Association with respect to their earlier occupation on EVR Periyar Salai adjacent to the Government General Hospital as well as the period of
their occupation.
An additional counter affidavit with annexure has been filed by the first Respondent and the allegation are us under:
The Commissioner of the first Respondent Corporation obtained copy of the Byelaws of the Petitioner-Association from the Registrar of
Association of Chennai on 21-5-1999. As per annexure there are 13 members of the Association. The bunks removed on 11-5-1999, were not
covered by any valid licence issued either by the Highways Department or the Corporation of Chennai. In view of the Supreme Court direction as
well as the Police Commissioner''s report with regard to antisocial elements giving trouble to the patients and visitors to the Government General
Hospital and also passengers from Central Railway Station, the Highways Department had removed the unauthorised bunks on 11-5-1999. The
list of the unauthorised bunks removed is enclosed as annexure R-2. The members of the Petitioner-Association had not possessed any bunk either
in EVR Periyar Salai in front of the Government General Hospital or VOC Salai abutting Central Railway Station in which the Highways
Department had removed the unauthorised bunks on 11-5-1999. The members of the Petitioner-Association had therefore no locus standi to
maintain the writ petition.
The list of members given in the typed set filed along with the writ petition does not tally with the list of members given before the Registrar for
registering the Petitioner-Association. Serial No. 4 Muthusamy, serial No. 5 S.S. Anthony, serial No. 12 Velayutham and serial No. 13
Panneerselvam are not found in the list given in the typed set. In the typed set, a list of 35 members are given, but before the registering authority a
list of 13 members alone is found. The Societies Registration Act prescribed a method for removing and including members. The Petitioner-
Association had deliberately suppressed the facts regarding the membership of the Association. This goes to the root of the matter and on this
ground the writ petition is liable to be dismissed.
An affidavit regarding proof of possession has been filed on behalf of the writ Petitioner on 10-6-1999. Altogether 13 bunks belonging to the
Petitioner-Association have been uprooted.
It is unnecessary to give details at this stage and if necessary they will be noticed in the course of the order at a later point of time. The first
Respondent did not give the members of the Petitioner-Association any licence, but acquiesced in their occupation. The Corporation never gave
licence with regard to the bunk shops and they cannot uproot the bunk shops while there is protection by the interim orders of the High Court and
the competent courts. The documents produced by the victim bunk owners, viz. the photographs and newspaper cuttings would show that the
members of the Petitioner-Association had been evicted and their bunk shops destroyed. Allegation contrary is a blatant falsehood and it is
perjury. The Supreme Court upheld the eviction and took note of the fact that the dispossessed bunk owners were offered alternative sites. The
order of the Supreme Court cannot be construed to apply to persons who were not parties to the case. It does not mean that all the bunk shops in
Tamil Nadu could be removed without notice. It is something unheard of. Factually none of the bunks removed was situate inside the medical
institution. The contention regarding obstruction to pedestrians is an after-thought. There is no basis for all allegation that the members of the
Petitioner-Association are selling unhygienic food. The writ petitions referred to in the counter do not pertain to any of the members of the
Petitioner-Association. This amounts to misleading and further act of contempt. The Corporation has uprooted altogether 20 bunk shops and 13 of
them belong to the members of the Petitioner-Association. It is vague to state that for the remaining bunk shops the Corporation had issued notices
u/s 379-A of the Act. All the bunk shop owners of the Petitioner-Association were served with notices by affixture u/s 379 of the Act on 6-5-
1999, this was responded to by a lawyer''s notice. Telegraphic notices were sent subsequently. It cannot be denied that all the members, who
were protected by the interim orders of the competent courts had been dispossessed. It cannot be contended that the Highways Department had
alone caused the eviction. Even if it was true the law also binds them, they are not empowered to evict the members of the Petitioner-Association
without notice. The photographs produced would demonstrate that it was the second and the third Respondents and other officials, who were in
the scene of occurrence, destroyed the bunks and the contents that were there. Even assuming that the Highways Department Officials had
organised the demolition and eviction, inasmuch as it is admitted that the Corporation of Chennai, which had been injuncted from demolition and
destruction had provided the men and machinery for the demolition and eviction, they are liable for contempt. It is curious to contend that the other
limb of the Government is not bound by the interim orders passed against one limb of the Government. It would strike the death-knell of the rule of
law in this country. It is true that the Petitioner in W.P. No. 5110/99 is a member of the Petitioner-Association. He filed the writ petition in his
individual capacity. The writ petition came to be dismissed on the ground that there was no bunk at all. While the Petitioner Association was
contemplating the filing of an appeal the mass demolition and eviction had taken place. The Corporation had misrepresented to the court and had
obtained an order as if there was no bunk. It had played fraud on the court. The judgment thus obtained is a nullity. The dismissal of the writ
petition relating to stealing of the bunks even if it were filed by the members of the Petitioner-Association does not empower the Respondents to
demolish and evict the present Petitioners in the writ petition. The food sold by the members of the Petitioner-Association except for being priced
cheaply and being sold to customers belonging to the lower middle class society cannot be termed to be unhygienic. Without any basis the
Corporation had been indulging in such arbitrary allegation. No complaints were made from any source about the quality of the food sold by the
members of the Petitioner-Association. The Supreme Court did not direct removal of the bunks. The ratio of the orders of the Supreme Court is
not that all the bunk shops selling food items are unhygienic in nature and should be removed. The Respondents attempted to mislead the court as if
the names of the members of the Petitioner-Association are not mentioned even in the batch of the writ petitions. The total number of membership
is more than 250. The membership register and the card counterfoils are available. The question is whether the bunk shops could be demolished
and their owners evicted without notice and without following the due course of law. In any event the failure to mention about the actual list of
members does not absolve the Respondents of their contumacious act. The Petitioners would not rely on the order copy granting interim orders if
those Petitioners are not members of the Petitioner-Association. The conduct of the Respondents and their purported act of invoking Section 222
of the Act is violative of the orders made by the Division Bench in a batch of writ petitions W.P. No. 8696/85 etc. and W.P. No. 7456 and
7457/97. The collective action by the Petitioner-Association is maintainable to safeguard the interests of some of the members of the Petitioner-
Association. The orders upholding the validity of the issue of notice u/s 379 of the Act in a challenge against some of the Petitioners would not ipso
facto lead to the conclusion that all the other bunks run by the members of the Petitioner-Association should also be destroyed and evicted. The
Respondents have not -specifically stated as to who were the unsuccessful members in the bid to challenge the acts of the Corporation. The
Respondents had knowledge of the Petitioner-Association moving this Court as early as 7-5-1999 and the filing of the writ petition on 10-5-1999.
While so evicting two of the bunks on the 10th morning and on 11th morning while the writ petition was about to be heard precluded the
Respondents from contending that the writ petition has become infructuous. The doctrine of actus curea neminem gravabit would come into
operation. The court would be obliged to undo the injustice done to the poor and the downtrodden.
Mr. R. Karuppan, learned Counsel for the Petitioner-Association, submitted as follows:
The first Respondent Corporation has acted in a high-handed manner in removing the bunk shops belonging to the members of the Petitioner-
Association, that it has flouted and disobeyed the orders of the court in various proceedings where the members of the Petitioner-Association were
parties, that the members of the Petitioner-Association have been paying professional tax and that to some of the members notices u/s 222 of the
Madras City Municipal Corporation Act have been issued on a Friday solely with a view to prevent their approaching this Court and that the
various interim orders obtained by the members of the Petitioner-Association gave complete protection to them. The learned Counsel further
submitted that compensation should also be directed to be given to the members of the Petitioner-Association whose bunk shops have been
uprooted in a most heartless and inhuman manner by the officials of the first Respondent-Corporation and the compensation should be fixed at the
rate of at least Rs. 200/- per day.
Mr. A.L. Somayaji, learned Senior Counsel for Mr. Ramanlal for Respondents 1 and 2 submitted as follows:
The prayer in the writ petition has become infructuous inasmuch as the various bunk shops had already been removed. The persons whose bunk
shops have been removed are not members of the Petitioner-Association. Their names do not find a place in the list furnished by the writ
Petitioner. The persons who have obtained interim orders are also not members of the Petitioner-Association. The certified copy of the Byelaws
gives a list of 13 names and those names do not tally with the names given by the writ Petitioner. The learned Senior Counsel citing the case of
Venkatesan submitted that he would fall under category 1 of the judgment of Kanakaraj, J. (as the learned judge then was). He had been going on
filing writ petitions one after another. Govindarajan, J. found so far as Venkatesan was concerned that there was no bunk shop in existence and he
was only attempting to put up a bunk shop after obtaining interim orders from court. The said Venkatesan filed W.P. No. 13425/92 and the same
was dismissed. He filed W.P. No. 5110/91 and it was dismissed on 23-4-1999. The learned Senior Counsel also relied on the various judgments
of the Supreme Court and this Court and submitted that the Petitioner-Association had not made out a case for invoking Article 226 of the
Constitution. The learned senior counsel also pointed out that even according to the writ Petitioner, the members of the Petitioner-Association did
not have any licence to carry on the trade.
Let us first examine whether the persons in respect of whom there are interim orders of court are members of the Petitioner-Association. The list
given by the Petitioner-Association contains 35 names, while the list given by the first Respondent in the additional counter contains 13 names. One
R. Ramar is not shown as a member of the Petitioner-Association in the list furnished by the Petitioner itself, but a xerox copy of a receipt showing
him as a member of the Association is available in the typed set. He has obtained an interim order in I.A. No. 3586/98 in O.S. No. 1500/98. The
XI Assistant City Civil Judge has on 10-3-1998 ordered status quo to be maintained in respect of a petty bunk stall run at the edge of the
pavement on the line of EVR Periyar Road in front of Government General Hospital opposite to Central Railway Station near Subway. Park
Town, Chennai-3. There is no indication as to what happened subsequently, whether the status quo order continues.
One Ganesh Prasad, who is also not shown as a member of the Petitioner-Association in the list furnished by it and whose name also does not
find a place in the list given by the first Respondent has obtained an order of interim stay of dispossession if steps had not been taken in
accordance with Section 328 of the Act in respect of bunk stall selling tea, coffee, biscuits, betel nuts, etc. situate in the platform outside
Government General Hospital, Chennai-3, opposite to B.H.S. Salai. This Ganesh Prasad appears to be a physically handicapped person. A
medical certificate bearing date 12-11-1993 is on file. It appears that in respect of the bunk shop claimed by this Ganesh Prasad the traffic police
have issued a certificate that the bunk shop would not hinder traffic. This was on 25-1-1993. The certificate besides saying that there was no
objection from traffic point of view to run a bunk shop opposite to Government General Hospital on E.V.R. Salai, Madras-3, by one Ganesh
Prasad of No. 6, Dharamalingam Pillai Street, Gray Nagar, Madras-12, further says that there should not be any hindrance to the free flow of
traffic and pedestrians.
One Unas Ali, who is also not shown as a member of the Petitioner-Association, has obtained an order of status quo in W.M.P. No.
16083/95 in W.P. No. 10137/95 on 1-8-1995 in respect of the Kiosk Bunk put up by him at the edge of the pavement on the line of Waltax
Road in front of Central Railway Station Main Gate by the side of Walltax Road, Park Town, Madras-3.
One Vijaykumar, who is also not shown as a member of the Petitioner-Association, has obtained an order of interim injunction in W.M.P. No.
922/93 in W.P. No. 603/93 on 12-1-1993 in respect of bunk No. C-19 functioning near the main gate of the Government General Hospital,
Madras-3.
One Baskar has obtained an interim injunction on 24-2-1992 in W.M.P. No. 2993/92 in W.P. No. 2074/92 in respect of a bunk put up by
him by the side of Walltax Raod opposite to Central Railway Station near the Southern Railway Gate. P.T., Madras-3. He is also not shown as a
member of the Petitioner-Association.
One C.V. Latheef had applied for a mandamus in respect of a bunk alleged to have been put by him and run in the pavement in front of
Government General Hospital near main entrance gate on EVR High Road, Madras-3, to forbear the Corporation and its officers from removing
the said bunk in an arbitrary manner except through procedure known to law and suggesting alternative site. This C.V. Latheef is claimed to be a
member of the Petitioner-Association. In the list given by the Petitioner-Association a name C.V. Abdul Latheef appears. It is not known as to
whether the two persons are one and the same. Even otherwise C.V. Latheef has filed the writ petition independently in W.P. No. 3120/96 in
respect of which an interim order had been passed by the First Bench on 11-11-1998. The First Bench had taken the commissioner to task for not
taking steps for providing alternative sites for hawkers, that no concrete steps had been taken for framing any scheme and that not even a
preliminary survey of the hawkers had been undertaken. The Bench also has pointed out that due to explosion of population in the city several
individuals have started squatting upon the road margins and started doing business. The problems are of high magnitude and its requires immediate
attention. We are pained to note that instead of taking immediate steps, even remote attempt is not made to deal with the situation much less for the
present, not even for the future. The administration will wake up and invoke their expertise to deal with the situation rather than forcing the hands of
the court to substitute itself for execution. If those steps are not taken the authorities including the commissioner shall be held personally responsible
and appropriate orders will be passed call on 15-12-1998.
One M. Ramesh has obtained an order of interim injunction restraining the Health Officer and the Assistant Health Officer, Corporation of
Chennai, from interfering with the peaceful conduct of the petty bunk stall at the edge of the pavement on the line of EVR Periyar Road in front of
Government General Hospital opposite to Central Railway Station. Park Town, Chennai-3, in I.A. No. 18685/97 in O.S. No. 7184/97. The XIII
Assistant City Civil Judge, Madras, has passed an order on 20-10-1997 to the following effect:
Affidavit of service filed, Served.
Respondents called absent at 4.55 p.m.
Set ex parte. Petition allowed.
It is to be pointed out even at this stage how callously indifferent the authorities are in respect of court proceedings. This leads us to very serious
suspicion about the bona fides and wonder whether they have played into the hands of the various parties.
In W.P. Nos. 18477 and 18478 of 1991 and W.P. No. 2452/92 Ramesh, C. Balakrishnan and R. Gnanamoorthy, who are not shown as
members of the Association, Kanakaraj, J. by order dated 21-2-1992 directed the Commissioner, Corporation of Madras, the Divisional
Engineer, Highways and Rural Works, Madras-18 and others that they should not remove the Petitioners bunk shops without following the
procedure prescribed u/s 222 of the City Municipal Corporation Act. Ramesh sought relief in respect of Kiosk put up and run by him at the main
gate of Government General Hospital opposite to Subway by the side of Poonamallee High Road, Park Town, Madras-3. Balakrishnan had
sought relief in respect of Kiosk put up by him by the side of EVR Road opposite to Sangam. Theatre, Kilpauk, Madras-10, and Gnanamoorthy
had sought relief in respect of bunk put up by him at the eastern way of Flower Bazaar Bus Stand and on the western side of a private Shop,
Esplanade, Madras-1. It may also be pointed out at this stage itself that the authorities were directed to issue notice u/s 222 of the Act. After
issuance of such notice there would be embargo for removing those bunks. In any event, the three persons are not shown to be members of the
Petitioner-Association.
One Lalitha is the Petitioner in W.P. No. 1324/93. She had sought relief in respect of a bunk put up by her at the edge of the pavement near
Government General Hospital Gate and Subway. Poonamallee High Road, Madras, wherein she was running Snack Kiosk. This writ petition is
also covered by the order of the Bench and it is to be further noted that Lalitha is not shown to be a member in the list furnished, though there is a
card included in the typed set showing her to be a member.
One Lalitha has filed a writ petition in W.P. No. 13989 seeking a direction to the Respondents, viz. The Commissioner. Corporation of
Chennai, Health Officer and the Assistant Health Officer to remove the seal which had been put up by the Assistant Health Officer on 12-7-1997
and allow the Petitioner to run her business in the bunk Kiosk on EVR High Road in front of Government General Hospital Main Gale opposite to
Central Railway Station, Chennai-3. Pending the writ petition. She sought interim relief in W.M.P. No. 22462/97 and on 12-9-1997 the direction
prayed for was granted by this Court. It is not known whether it is the same Petitioner covered by W.P. No. 1324/93. As already stated, she is
not shown to be a member of the Petitioner-Association.
One Diwan Ahamed, who is a card holder of the Petitioner-Association, sought relief in respect of a bunk situate in front of middle of
Government General Hospital, EVR Road, Madras-3, and he is one of the Petitioners in the writ batch in which the Bench passed an order on 11-
11-1998. The said Diwan Ahamed has filed a suit in O.S. No. 7114/97 and in I.A. No. 18535/97 an interim injunction has been granted in his
favour in respect of a petty Snack Kiosk in the bunk put up at the edge of the pavement in front of the Mortuary Gate in Government General
Hospital measuring about 8'' x 6''. It is seen that the Commissioner had been served, but did not appear and he was set ex parte, the petition was
allowed on that score.
One Akbar, son of Jaffrullah is the Petitioner in W.P. No. 5592/96. It was also dealt with by the Bench. He is not shown to be a member of
the Petitioner-Association. The said Akbar had on 25-4-1996 been granted stay of dispossession until further orders, if steps were not taken in
accordance with Section 222 of the Act.
One Aboobucker had filed W.P. No. 11782/92. It was heard by Kanakaraj, J. with some other similar writ petitions. The learned Judge while
disposing of the writ petitions evolved a comprehensive formula in the case of bunk shops. Aboobucker is not shown to be a member here.
One Anbu was the Petitioner in W.P. No. 12156/92. This writ petition also was disposed of by Kanakaraj, J. by the common order already
referred to Anbu is shown to be a member in the list furnished.
One Chandrabose is not shown to be a member, but one Bose @ Vijayaram is shown as a member in the list. He has filed W.P. No. 7456/97
and the same was disposed of by E. Padmanabhan, J. along with another writ petition filed by one Mani in W.P. No. 7457/97. One M.S. Mani is
shown as a member, whereas one P. Mani is the Petitioner in W.P. No. 7457/97. E. Padmanabhan, J. referred to several authorities and directed
the authorities to issue three weeks notice to the Petitioners therein and thereafter evict them by following the procedure prescribed under the law.
The learned Judge further observed that the Respondents (The Corporation of Madras) should take action forthwith to remove the occupation of
the Petitioners if it was considered as an encroachment and causing obstruction to the free flow of traffic.
The above exhausts the list of persons who have taken proceedings either in the Civil Court or in this Court and obtained some orders. Only
some of them are members of the Petitioner-Association. Having regard to the allegation made on their behalf that the authorities are flouting the
''orders of this Court granting interim relief or final relief, the remedy if any, to them is not available in the present writ petition. Their relief is
elsewhere.
The next question will be whether the persons whose bunk shops have been removed are members of the Petitioner-Association. The
additional counter affidavit has given the necessary annexure giving the details regarding this. Diwan Mohamad whose shop had been removed,
figures as No. 4 in the list of members produced by the writ Petitioner-Association. Ganesh Prasad is the second in the list of removal and he is not
a member. One Vijaykumar is shown as No. 3 in the removal and he figures as No. 7 in the list of members. Devandran Sujatha and Ramesh
whose bunks have been removed are not members of the Petitioner, Association. The seventh in the list given by the first Respondent is
Venkatesh. One Venkatesh is shown as a member in the list. It is not known as to whether both are one and the same person. It has already been
noticed that Venkatesan has filed writ petitions W.P. Nos. 13425/92 and 5110/91. In view of those two cases Venkatesan cannot get any relief in
the present writ petition. Sankar/Senthil Kumar whose bunks have been removed are shown as members. The name of one Vijaykumar figures as
No. 9. It has already been noticed that Vijayakumar figured as No. 3 earlier. In the list of members only one name is given as Vijaykumar. It is not
known as to whether there are two Vijaykumars or only one. Only one Vijaykumar has been shown as a member. Putli Bai, Banu,Padmaiah
Naidu. Raghavan, Amaravathi and Akbar figure as Nos. 10 to 15 in the list of persons whose bunks had been removed. The case of Akbar has
already been referred to and he is a Petitioner in one of the writ petitions in the batch dealt with by the First Bench. The others are not shown to be
members. One Manikandan is shown as No. 16 in the list of removal and he is shown as No. 8 in the list of members. Suriya. Manohar and Yunas
Ali whose bunks have been removed are not shown to be members of the Petitioner-Association. The case of Yunas Ali having filed W.P. No.
10137/95 has already been referred to. One Gunasekar is No. 20 in the list furnished by the first Respondent and he is not shown to be a member.
A Venkatesh figures as No. 21. It has already been dealt with. One Vaduvambal apparently had two bunks and both the bunks had been
removed. Another Manikandan with initials M.V. figures as No. 24 in the removal list. It is not known as to whether he is the same person referred
to earlier. One Mani is shown as No. 25. There is one M.S. Mani figuring in the list of members. Jothi figures in the list of removal as No. 26 and
the name of Jothi does not figure in the list of members. Akbar figures again as No. 27. The case has already been dealt with.
Only such of those persons whose shops have been removed and who are members of the Petitioner-Association can if at all seek any relief in
the present writ petition. The incidental question that has to be considered is whether proper authorities have been impleaded in the present writ
petition. It is claimed by the first Respondent-Corporation that the two roads involved belong to the Highways Department and the Highways
Department not having been made parties no relief could be granted in the writ petition. It is not as if the Petitioner-Association is not aware of the
fact that the two roads are maintained by the Highways Department. In one or two earlier writ petitions Highways Department was made a party
and relief sought for against the Highways Department. I do not agree with the learned Counsel for the writ Petitioner Mr. Karuppan that without
involving the Highways Department if at all any relief could be granted in the instant case.
Complaining of deprivation of the means of livelihood of its members by removal of the bunk shops/Kiosks in road margins, at the entrance to
hospitals, etc. the Petitioner-Association has filed the present writ petition. The learned Counsel for the Petitioner-Association Mr. Karuppan is
well-founded in his submission that deprivation of means of livelihood amounts to deprivation of lifer
Originally in In Re: Sant Ram, . The Supreme Court held that-
the language of Article 21 could not be pressed in aid of the argument that the word ""life"" in Article 21 include livelihood also.
In the case before the Supreme Court, the Registrar of the Supreme Court exercising powers under Rule 24 of the Supreme Court Rules issued a
notice to the Appellant in that case and one person to show cause why their names should not be included in the list of touts. That notice was
challenged by the Appellant on the ground inter alia that it contravened Article 21 of the Constitution since, by the inclusion of his name in the list of
touts, he was deprived of his right to livelihood, which was included in the right to life. It was under those circumstances the Supreme Court held
that the word ''life'' would not include livelihood. This decision was followed in A.V. Nachane v. Union of India 1982-I SCC 205 and in Begulla
Bapi Raju v. State of U.P. 1984-I SCC 66.
However, in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni 1983-I SCC 124 this was departed from by
the Supreme Court in the context of service jurisprudence. The Supreme Court observed that.
the word life"" in Article 21 included livelihood and that where the outcome of a departmental enquiry was likely to adversely affect the reputation
or livelihood of a person, some of the finer graces of human civilisation which make life worth living would be jeopardized and the same can be put
in jeopardy only by law which inheres fair procedure.
Sant Ram Case was distinguished by the Supreme Court in Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. 1985-3 SCC
545 stating that,
Under the Constitution no person can claim the right to livelihood by the pursuit of an opprobrious occupation or a nefarious trade or business, like
toutism gambling or living on the gains of prostitution.
According to the Supreme Court in Olga Tellis Case ""the sweep of the right to life conferred by Article 21 was wide and far reaching. Life means
something more than mere animal existence. An equally important face of that right is the right to livelihood because no person can live without the
means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of
depriving a person of his right to life, would be to deprive him of his means of livelihood to the point of abrogation.
The question to be considered next is whether there could be deprivation of life. The Supreme Court has answered the question thus in
Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, :
the Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the
procedure, in the given circumstances, fair and reasonable.
The Petitioner-Association claims that its members are entitled to have bunk shops/Kiosks in road margins, at the entrance to hospitals, etc, as
of right and that they cannot be dislodged come what may. In any event, that is the prayer in the writ petition. No particulars are given as to where
the bunks shops/Kiosks situate. At the same time, it is not disputed that the bunk shops were located in road margins and in front of hospitals. Do
they have any fundamental right to continue? That takes us to the next question.
What are roads for? The Supreme Court in Bombay Hawkers'' case 1985-3 SCC 528 has stated as follows:
The public streets by their nomenclature and definition are meant for the use of the general public; they are not laid to facilitate the earning on of
private business. The proposition that all public streets and roads in India vest in the State but that the State holds them as trustee on behalf of the
public, and the members of the public are entitled as beneficiaries to use them as a matter of right and that this right is limited only by the similar
rights possessed by every other citizen to use the pathways and further that the State as trustee is entitled to impose all necessary limitations on the
character and extent of the user, should be treated as of universal application.
In Sodan Singh and Ors. v. New Delhi Municipal Committee and Ors. AIR 1989 SC 1988 : 1989 4 SCC 155 : 1989-2 SCR 1038 a five Judges
Bench of the Supreme Court observed as follows:
The primary object of building roads is to facilitate people to travel from one point to another. But a traveller should not create an unreasonable
obstruction which may inconvenience other persons having similar right to pass: he should not make excessive use of the road to the prejudice of
the others. Liberty of an individual comes to an end when the liberty of another commences. Subject to this, a member of the public is entitled to
other legitimate user of the road also besides actually passing or re-passing through it. The other legitimate user of the road may be one of the
following:
An individual may have to alight from a vehicle or pick up a friend, collect certain articles or unload goods or have to take some rest after a long
and strenuous journey. What is required of him is that he should not create an unreasonable obstruction which may inconvenience other persons
having similar right to pass; he should not make excessive use of the road to the prejudice of the others.
The Supreme Court further elaborated as to what can be included in the legitimate user and what will constitute public nuisance can be ascertained
only by taking into account all the relevant circumstances including the size of the road, the amount of traffic and the nature of the additional use one
wants to make of the public streets. This has to be judged objectively and here comes the role of public authorities. In Ahmedabad Municipal
Corporation Vs. Nawab Khan Gulab Khan and others, the Supreme Court observed as follows:
Every Municipal Corporation has statutory obligations to provide free flow of traffic and pedestrians right to pass and repass freely and safely as its
concomitance, the Corporation/Municipality has statutory duty to have the encroachments removed. The encroachments on the pavements or foot-
paths which is a constant source of unhygienic ecology, traffic hazards and risk prone to lives of the pedestrians.
The next question is whether a citizen has a right to carry on his trade or business on street pavements. The Supreme Court has indeed said in
Sodan Singh''s case already referred to:
The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated cannot be
denied on the ground that the streets are meant exclusively for passing or repassing and for no other use. Proper regulation is, however, a
necessary condition as otherwise the very object of laying out roads to facilitate traffic may be defeated. Allowing the right to trade without
appropriate control is likely to lead to unhealthy competition and quarrel between traders and travelling public and sometimes amongst the traders
themselves resulting in chaos. The right is subject to reasonable restrictions under Clause (6) of Article 19.
The Supreme Court further observed:
If an opposite view is taken and the plea of the Petitioners is allowed, a chaotic situation may follow. They may be entitled to insist that they would
carry on their business anywhere they like, either on the roads or in the Government schools or hospitals or other public buildings. They may like to
enter the classrooms or the patient wards or any public office to advance their prospects. As was observed in the Bombay Hawkers'' case they
will hold the society to ransom by squatting on the busy thoroughfare, thereby paralyzing all civic life.
There cannot be a fundamental right of a citizen to occupy a particular place on the pavement where he can squat and engage in trading business.
But, how do we deprive a person of his means of livelihood and will it always be by the so-called due process of law. As noticed already,
such a deprivation must be according to the procedure in the given circumstances, fair and reasonable. To become fair, just and reasonable, it
would not be enough that the procedure prescribed in law is a formality. It must be pragmatic and realistic one to meet the given fact-situation. No
flexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The
removal of encroachment needs urgent action. Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, .
In N. Jagadeesan, etc. Vs. District Collector, North Arcot and Others, relating to removal of bunks and Kiosks located within the hospital
premises or within the premises of other medical institutions or their removal from the road margins of important and busy thoroughfares in the
aforesaid three cities in Tamil Nadu, the Supreme Court observed that the Respondents are not acting in any manner inconsistent with the
propositions enunciated in Sodan Singh''s case. We are not able to say that the reasons assigned are neither relevant nor germane nor is it possible
to say that the reasons given are only a make-believe.
we are of the opinion that the Appellants/Petitioners can have no legitimate grievance against the action taken to remove their bunks/kiosks
inasmuch as the removal is confined only to (i) hospitals and medical institutions, and (ii) road margins of main thoroughfares, viz. three specified
thoroughfares in Madras city and one each in Vellore and Tiruppur. The reasons given by the State for removing them are reasonable and
acceptable. It is also specifically averred by the State that they are not removing any bunk with a view to allow some other persons to install a
bunk in that place. The removal is only for the purpose of removal of health hazard or in the interest of smooth and unobstructed flow of traffic.
Indeed, the Government has offered to consider the applications, if any, made by the evicted persons for locating them on other road margins or
premises, as the case may be.
Explaining Sudan Singh''s case, the Supreme Court observed as follows:
It is true that the said judgment does recognise that a member of a public is entitled to legitimate user of the roads other than actually passing or re-
passing through it. But this is clarified by the statement that such user shall not create an unreasonable obstruction which may inconvenience other
persons having similar right to pass. It is also pointed out in the said judgment that what constitutes public nuisance is a question of fact to be
decided in each case having regard to all the relevant circumstances.
In K. Kavitha v. The Commissioner, Corporation of Madras W.P. Nos. 3299 and 3300 of 1997 decided on 13-2-1997 C. Shivappa, J.
followed the judgment of the Supreme Court in Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, . It related to
removal of bunks.
In another decision in WP relating to hawkers the same learned Judge referred to a number of decisions of the Supreme Court starting from
OLGA TELLIS case and held that the hawkers were not entitled to regularization as sought for and there was nothing like affecting their livelihood
or providing an opportunity of being heard detrimental to the public interest. The question which arose for consideration in the case before the
learned Judge were:
(1) Whether the members of the Petitioners'' Sangam (Periyar Salaiyora Sirukadai Viyabarikal Sangam) were entitled to seek regularisation by
way of lease or licence to continue to do their trade activities on the road margin situate in Esplanade Road and North Fort Vadapathai Road
adjacent to T.T.C. Bus stand and E.B. Building.
(2) Whether hawkers carrying on trade or business on pavements could claim right under Article 21 of the Constitution?
(3) Whether the principle of natural justice namely. Audi Alteram partem required to be followed.
The learned Judge held that the hawkers together with their stalls or the objects which they sell and which they exhibit in the stalls or on the
lands/pavements, constitute an obstruction/projection in or upon streets and other public places, that their removal was obligatory duty of the
Corporation, that in the event of any encroachment, the authority had the power to see that such streets vested in the authority kept for the purpose
for which it was intended without allowing the encroachment to frustrate the object. The learned Judge further held that keeping in view the
obligatory duty of the corporation, in order to ensure safety to the pedestrians, to prevent the traffic hazard and to promote the purpose for which
pavement is meant for the members of the Petitioner Sangam are not entitled to seek regularization by way of lease or licence to continue their
trade activities on the road margins.
On point No. 2 the learned Judge held that the hawkers had made pavements their place of business detriment to the public interest causing
nuisance and traffic hazards unmindful of all inconvenience to the general public, that in order to prevent incalculable hardship and nuisance to the
general public, deprivation of persons who earn their livelihood on pavements became inevitable and that the removal of such encroachment on
foot path or trading on pavement over which the public had right of passage or access could not be regarded as unreasonable, unfair or unjust....
Individuals do not have the inherent right to conduct their private business on the streets nor can they acquire a vested right to use the streets for
carrying on commercial business.
The learned Judge has also observed as follows:
The State is entitled to impose all such limitations on the character and extent of user as may be requested for protecting the rights of the general
public. The State may even prohibit the running of transport buses and lorries on particular streets or roads, if such running would interfere with the
rights of pedestrians to pass and re-pass as it might if the street is narrow or congested.... Even the recovery of the prescribed daily fee shall not
bestow on them any right whatsoever over the space used by them for hawking on the day on which the fee is recovered. Where the trade is
frustrating the object for which the rights are meant for eviction is inevitable. Therefore, the use of public streets for private gain causing incalculable
hardship and nuisance to general public cannot be permitted under the guise of right of livelihood.
On the third point relating to non-observance of principles of natural justice the learned Judge found that the urgency in the situation may
warrant disregard of Audi Alteram partem rule. ""It is not uncommon if the number of persons affected is indeterminate, to give public notice in a
manner fairly and reasonably calculated to alert those likely to be interested in the subject matter may be enough to satisfy the rule. Where the
person claiming to be aggrieved must be assumed to have known or did in fact know what was being alleged or what was likely to happen to him,
then due to non-service such class of persons or person suffers no real detriment. The concept of fair hearing in accordance with natural justice
will, therefore, vary significantly in different contexts. When it is settled in law the user of pavements detrimental to general public and such users
have no right, this principle of fair hearing need not be strictly construed in the context in which the Petitioners are placed.
""If the encroachment is of recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has right
to encroach upon public property and claim the procedure of opportunity of hearing which would be a tedious and time-consuming process leading
to putting a premium for highhanded and unauthorized act of encroachment and unlawful squatting.... It is not appropriate to strictly comply with
the requirements of natural justice in the strict sense of the term, but does not mean that they should not be intimated or forewarned to clear the
road before removal. But, non-providing such time will not give them right to resist the act which is just and reasonable and in public interest and
such grant of time need not be according to the convenience of the trader. Here, it is enough lo say that it may be inappropriate for observance of
natural justice to its fullest extent for reasons of urgency and on broader grounds of public policy.
In W.P. No. 13200 of 1997 S.S. Subramani, J. dealt with a case relating to bunk shop situate in front of the Kilpauk Medical College
Hospital, Chennai. The contention of Petitioner in that case was that he was an unemployed educated that he established a small bunk shop with
the help of the authorities concerned under the self-employment Scheme, that he was appointed as Agent of the Tamil Nadu Poultry Development
Corporation by their order dated 27.7.1990, that ever since that date he had been in peaceful possession and running the business from the place
in front of Kilpauk Medical College Hospital, Chennai, that though he was supposed to sell only the products of the said Corporation, he had
suspended that business temporarily and had been selling tea and coffee from the. kiosk, that it was his only source of living, that the Corporation
had issued a notice u/s 279 of the Madras City Municipal Corporation Act asking him to stop the business failing which they had threatened to
remove him along with the bunk, that selling only coffee or tea would not amount to selling food or drink and therefore he was not liable to be
dispossessed. The learned Judge held that Section 279 of the Act contemplated that taking of a licence was necessary for doing business at any
place and that in as much as the Petitioner therein had not taken a licence though he had been permitted to install a bunk by the Tamil Nadu Poultry
Development Corporation for sale of the goods of that Corporation and that the action of the Municipal Corporation was justified.
In W.P. Nos. 10139/96, 11428 and 11429 of 1997 P. Sathasivam, J. on 1.10.1997 considered the question relating to bunk shops. The first
writ petition had been filed against the Highways Department and the commissioner of Police, while the second writ petition had been filed against
the Corporation and the police. The writ petitions were by different persons. The prayer was for mandamus forbearing the Respondents from
removing the bunk of the Petitioner therein situate and running in the pavement near the entrance gate of General Hospital opposite to Central
Railway Station, Poonamallee High Road, Chennai-3.. The second writ petition was for mandamus forbearing the Respondents therein from
interfering with the Petitioner''s peaceful possession and-running of his bunk shop situate near General Hospital main Gate and third writ petition
was for mandamus forbearing the Respondents from interfering with the Petitioner''s peaceful possession and running of his bunk shop situate near
the Government General Hospital near the Mortuary Main Gate. The first writ petition was by one individual, the second and the third writ petitions
were by the same person. The learned Judge after referring to the facts obtaining in the writ petitions relied on the decisions of the Supreme Court
in N. Jagadeesan''s case and the Ahemadabad Municipal Corporation case and also the unreported decisions of C. Shivappa, J. and S.S.
Subramani, J. already referred to refused relief to the Petitioners. The leaned Judge towards the close of his order has observed as follows:
The Petitioners have located their bunk shops near the Entry Gate of the Government General Hospital which is one of the biggest hospitals in the
city of Chennai where thousands of patients as well as several other persons visit the hospital daily and in such a circumstances, the statutory duty
is cast on the first Respondent to check and verify regarding the hygienic condition in the bunk shops as well as in the near-by areas. It is also
surprising how the traffic police have certified that the existence of such bunk shops are not hindrance to traffic. The place in question is in the heart
of the city. It is just opposite to Central Railway Station. In addition to this, a number of commercial activities are also going there apart from the
existence of Govt. General Hospital. In an area like this, the pavements must be allowed to be free in order to free movements of pedestrians.
Since these shops are put up near the entry gate of General Hospital, on health point of view also the first Respondent is competent to regulate.
In W.P. Nos. 14062, 13053 and 14290 of 1997 before S.S. Subramani, J. notice had been issued to the Petitioners to close the business
since they were not having the licence. The learned Judge dismissed the writ petitions holding that the corporation was justified in directing them to
close their business. In one of the cases before the learned Judge the prayer was to permit the Petitioner therein to run her business in bunk kiosk
near Southern Railway Office Main Gate, Waltax Road, Chennai after removal of the seal which had been put up by the Assistant Health Officer,
Corporation of Madras. The Petitioner was refused relief.
In the Communist Party of India (M) v. Bharat Kumar and Ors. 1998 (I) CTC 46 : 1998-I-L.W. 406 the Supreme Court while upholding the
decision of a Full Bench of the Kerala High Court relating to call for bundh, held, affirming the judgment of the Full Bunch that there cannot be right
to call or enforce the bundh which interfered with the exercise of fundamental freedom of other citizens in addition to causing national loss in many
ways, was the right conclusion.
N. Arunachalam and Ors. v. The Avadi Municipality rep. by its Executive Officer, Avadi 1998 Writ L.R. 726 writ petitions were filed by
occupants of Government lands in Paruthipattu in Thiruvallur District to restrain the Respondent municipality from interfering with Petitioner''s
peaceful possession and enjoyment of the property. It was particularly contended that those occupants had constructed houses, obtained electricity
and telephone connections. Rejecting the case of the occupants S. Jagadeesan, J. held that merely because the possession was with them for
considerably a long period that would not confer any right on them to seek a writ of mandamus. The learned Judge further held that there was no
fundamental right to Petitioners to seek allotments of alternative sites, particularly, when the Petitioners were found to be rank trespassers and that
they could not be permitted to take advantage of their own illegal acts. The learned judge also made observations regarding the duty of the
executive not to allow encroachments and to take steps to prevent and remove the encroachments and keep vigil over the Government property.
In W.P. No. 684 of 1997 order dated 20.11.1998 the learned Judge followed his earlier reported judgment. In paragraph-8 of the judgment
the learned Judge observed as follows.
By these encroachments, virtually the purpose for which the road margin as well as the platforms are provided is totally lost and when the
authorities find that the pedestrians are put to inconvenience in crossing the streets, as well as the encroachment causes hindrance to the free flow
of vehicular traffic. It is open to the authorities to remove such encroachments in the public interest.
In W.P. No. 18091 of 1998 filed by one C.V. Latheef of 10, Arunachalam II Street, Chennai-30 the learned Judge refused the relief of
Mandamus forbearing the Highways Department as well as the Corporation of Chennai from removing the bunk put up by the Petitioner on the
pavement of E.V.R. Periyar Road, in front of the Government General Hospital.
In another writ petition W.P. No. 17739/98 the learned Judge refused relief to K. Purshothaman for a mandamus directing the Respondents to
restore and put back the Petitioner''s bunk shop in the place from where it was removed on 9-11-98 namely on the pavement abutting the
Corporation"" s compound wall near Nirmaki Tea Stall. People Park Road near Old Moore Market. Park Town, Chennai-3, and for permission to
have a bunk shop to continue in the said place till the Respondents removed the other four bunk shops situate nearby. The learned Judge referred
to a Bench decision in Tiruchirappalli Palporul Virkum Thozhilalar Sangam-Rep. by its President v. Commissioner, Corporation of Tirichirappalli
1998-II CTC 610 : 1999-I-L.W. 367 which held that the court had to protect the existing right of an individual in the event of interference and it
could not create a right to a party. In that case it was found that the Petitioner was an encroacher on the pavement having a bunk shop, as such he
had no existing right to be protected. The learned Judge also observed as follows:
By mere invocation of the jurisdiction of the Civil Court, by way of interim order, the courts are not expected to create a right in favour of the
trespassers, but virtually the subordinate courts are doing the same tiling, i.e. Creating a right by interim orders in favour of trespassers, which is
contrary to the principles laid down by this Court. The subordinate courts are bound to follow the judgment of this Court and dispose of those suits
in terms of the judgment of the Division Bench referred to above...in all cases of encroachment, there is no dispute over the property because it is
the admitted case of the encroachers that they are in occupation of the public property and the authorities are trying to interfere or interfering with
their possession. They do not claim any title over the property but claim only a right of occupation till they are evicted under the due process of
law.
In a batch of writ petitions in W.P. Nos. 11782/92 etc. Kanakaraj, J. (as the learned Judge then was) had occasion to consider the question
elaborately and as already mentioned evolved a formula, which in the view I am taking, is not necessary to elaborate.
In P.V. Vijaykumar and Ors. v. The Commissioner, Dharmapuri Municipality and Anr. 1991-2 MLJ 114 : AIR 1993 Madras 93
Bakthavatsalam, J. (as the learned Judge then was) held as follows:
It is well-settled that even assuming that a person is an encroacher, procedure known to law has to be followed before removing him from his
place. Taking possession of shops by the Municipality arbitrarily amounts to infringement of fundamental rights under Article 14 of the
Constitution.... It is but proper that the Municipality should be directed to put back the Petitioners in possession of the sites, so that they can
construct temporary structures and continue their trade in the said places. It is open to the Municipality to take action against the Petitioners
according to law after giving notice to them if they are encroachers.
The learned Judge followed the decision of the Supreme Court in Mohammed Hanif v. State of Assam 1969-2 SCC 782. This decision is heavily
relied upon by Mr. Karuppan and he beseeches the Court to give similar directions. We will examine whether such directions could be given at a
later stage.
Admittedly, the members of the Petitioner-Association do not have licences to run the bunks. It is conceded in the affidavit in support of the
writ petition itself. The authorities had been periodically taking criminal proceedings and the members of the Petitioner-Association had been facing
the said proceedings and paying the penalty or fine as the case may be without demur. As pointed out by Kanakaraj, J. even if licence had been
issued, it would not give any special right to the licensee. It has not been shown that the members of the Petitioner-Association obtained any
permission from the Corporation before putting up the bunks. There can be absolutely no doubt that they have encroached on public roads and
they are a source of nuisance to the pedestrians. The pedestrians are obstructed from using the regular platforms meant for them necessitating their
getting down to the main roads resulting in avoidable accidents. They cannot claim any right to squat on Government property. As has been
observed in N. Jagadeesan, etc. Vs. District Collector, North Arcot and Others, nobody shall create an unreasonable obstruction which may
inconvenience the other persons having similar right to pass. It has been further observed that what constituted public nuisance is a question of fact
to be decided in each case having regard to all the relevant circumstances. In the instant case, the Highways Department had sought the assistance
of the Corporation for removing the obstruction in the shape of bunk shops. The Corporation had merely obliged another wing of the executive.
May be the members of the Petitioner-Association were eking out their livelihood by sale of commodities from the various bunks, they were
occupying. As pointed out by the Supreme Court in Ahmedabad Municipal Corporation case:
It is rather unfortunate that even after half the century from the date of independence, no constructive planning has been implemented to ameliorate
the conditions of the rural people by providing regular source of livelihood or infrastructural facilities like health, education, sanitation, etc. It would
be for the union of India, all the State Governments and the Planning Commission, which are Constitutional functionaries to evolve such policies
and schemes as are necessary to provide continuous means of employment in the rural area so that in the lean period, after agricultural operations,
the agricultural labour or the rural poor would fall back upon those services to eke out their livelihood. The middle class and upper middle class
people in the rural areas, due to lack of educational and medical facilities, migrate to the nearby urban areas resulting in constant increase in urban
population. Once infrastructural facilities are provided by proper planning and execution, necessarily the urge to migrate to the urban areas would
no longer compel the rural people for their transplantation in the urban areas. It is therefore, for the executive to evolve the scheme and have them
implemented in letter and spirit.... The encroacher''s are no exceptions to that Constitutional right to judicial redressal.... When an encroacher
approaches the Court, the Court is required to examine whether the encroacher had any right and to what extent he would be given protection and
relief.... It is true that in all cases it may not be necessary that he should be provided with an alternative accommodation at the expense of the State
which if given due credence, would abuse of the judicial process.
The members of the Petitioner-Association have not been able to show any lawful origin for the right claimed by them. They may be poor and
simple encroachers. Merely because they had managed to occupy portions of the public roads and had continued for a considerable length of time,
it would not clothe them with any vestige of right to persist and continue in the same place. It may be a fact that before removing the bunks they
had not been heard. But as pointed out in Olga Tellis case, it is not necessary to remand the matter though no hearing was afforded by the statutory
authority inasmuch as the aggrieved party got sufficient opportunity of hearing before this Court. The maximum that can be done to the members of
the Petitioner-Association, who it is alleged had been deprived of their means of livelihood, is to direct the authorities to give an opportunity to
them to give vent to their grievances and if possible to relocate them and rehabilitate them in as speedily a manner as possible. Having regard to the
fact that private interest is to yield to public welfare to give a direction to the authorities to restore the bunks to them would amount to jeopardising
the welfare of the general public. In Chief Secretary and Ors. v. Mathai Kuriakose and Ors. AIR 1989 Kerala 113 a learned single Judge of the
Kerala High Court observed as follows:
The court should not allow a small section of people to thwart or render nugatory the benefit to millions of people.
As pointed out by the Supreme Court again in Ahmedabad Municipal Corporation case.
It would not be expedient to give any direction not to remove or to allow the encroachments 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 construction thereon.
On the merits of the individual claims. I have already dealt with in the earlier portion of the judgment.
In the course of evolving the formula referred to earlier learned Judge J. Kanakraj. J. made certain observations, which are very relevant
Persons who never had a shop or a bunk shop filed writ petitions as if they had put up a bunk shop and the same was in existence for a long time
at a particular place, and obtained orders of this Court. It was brought to my notice that after such orders, these persons proceed to the same
place and then put up a bunk for the first time and paste the orders of the Court all round their bunk shops. It is needless to point out that there has
been a mushroom growth of such Kiosks and bunk shops in the recent past. Shops begin to appear in busy roads and at the entrance of schools,
colleges and other institutions. without any regard for the safety of the students, public and the pedestrians and sometimes causing traffic hazards.
One such instance came to may notice in W.P. No. 17029/92 and after noticing the facts, I had also passed similar orders in W.M.P. Nos.
16784/92 and 28591/92 in W.P. No. 11803/92 on 18-12-1992. Similarly, Bakthavatsalam, J. dismissed a writ petition in W.P. No. 2965/93 on
18-2-1993 holding that the Petitioner in that petition had not established that he was running the bunk shop for a long time.
The learned Judge has also pointed out that the very remittance of licence fee to the Corporation of Madras would not clothe the persons with any
special rights. In W.P. No. 7152/92, by an order dated 10-7-1992. Govindaswamy, J. dealt with a case where originally permission was granted
and later on the Corporation of Madras refused to grant permission on the ground that the existence of the bunk shop was a disturbance to the
traffic. The learned Judge held that the reason given by the Corporation of Madras was justifiable reason and that the Petitioner in that case could
not compel the Corporation of Madras to grant licence. The writ petition was accordingly dismissed. It would thus be seen that this Court has
changed its attitude towards such bunk shops only because many persons had sought to exploit and misuse the sympathetic attitude of the Court.
Further the Courts cannot be static or dormant and should move with the times and the needs of the Society. The growth of population, the
increase in the number of vehicles on the roads necessitate the use of pavements by the pedestrians. There should be some traffic discipline if the
number of road accidents is to be prevented. The increasing number of bunk shops and Kiosks on the pavements do cause inconvenience to the
public, especially when they are located near schools, colleges and other such institutions or at cross-roads. It may be that a few are benefitted by
the existence of such shops in the sense that they can get a cheap glass of tea or coffee and snacks. It may be that the persons running the shops
are able to eke out their livelihood by running such small shops. But, one has to strike a balance between the rights and liabilities of both sections of
the people. A citizen must be prepared to make certain amount of sacrifice so that all the people can live as comfortably as possible, without
causing hindrance to the rights and liberties of other citizens. For instance, if a shop is located a little away from the crowd where there is less
traffic, such shopkeepers can also make money as long as their products are good and they keep a healthy and clean surrounding. If the
shopkeeper establishes his reputation, his business is bound to succeed.
It is now well-known that this Court has approved such shops for hawkers in the Rattan Bazaar, the N.S.C. Bose Road and on the North
Beach Road, where the Burma Bazaar is located. Therefore, one would expect such persons to ask for permission from the Corporation of
Madras and then establish a bunk shop in a place, which is least objectionable to the public. But, these Petitioners have taken the law into their
own hands by putting up bunk shops on places of their choice and then making it a fait accompli hoping that they can take umbrage under the legal
principle that even an encroacher cannot be removed without following the procedure prescribed by law. It appears to me that this is a totally
incorrect and wrong approach and should never be encouraged by Courts. Why should a citizen alone be permitted to take the law into his own
hands and put up a bunk shop much to the inconvenience of the public and then raise the bogey that he cannot be removed except in accordance
with law? Much worse is the recent development of getting orders from Court and then putting up the bunk shops.
One important principle which has been laid down by the Supreme Court is that there is no fundamental right vesting in citizen to occupy any
particular place on the pavement and insist on squatting and engaging in doing business in such a particular place.
For all the reasons stated above, the writ petition fails and the same is dismissed. However, there will be no order as to costs. Consequently,
the injunction petition W.M.P. No. 12464/99 is also dismissed.
As Gide Andre said ""everything has been said already; but no one is listening: we must always begin again."" As has been said in Ahmedabad
Municipal Corporation case, ""the removal of encroachment 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 repassing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the
roads or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance
of right to obstruct removal of the encroachment."" The Municipal Corporations allow settlement of encroachers as observed by the Supreme Court
in Ahmedabad Municipal Corporation case ""for reasons best known to them and reasons are not far to seek."" As observed in Chief Secretary and
Ors. v. Mathi Kuriakose and Ors. AIR 1989 Kerala 113 ""the State as an institution needs effective protection, when it has necessarily to manage
its affairs through human agencies, which sometimes may include persons without necessary involvement and commitment."" It appears to be a far
cry.