The Madurai Maanagar Old Motor Spare Parts Dealers' Association vs Madurai City Municipal Corporation

P.D. Dinakaran, J,

The petitioner is the Old Motor Spare Parts Dealers'' Association, represented by its President. The Members of the Petitioner-Association are

having their shops in Krishnarayar Teppakkulam East and South Streets of Madurai Town. On an earlier occasion, when the Petitioner-

Association moved a Writ Petition in W. P. No. 2363 of 2004, specifically alleging that the Maduri City Municipal Corporation proposes to lease

out the roadside open space to the individual vendors, recording the undertaking given before this Court by the learned standing counsel for the

Madurai Corporation that the Corporation is not proposing or having any plan to lease out or to give license for the open space area of the two

streets, the said Writ Petition was disposed of by this Court on 14.10.2004, with an observation that if anybody has applied for lease or license for

the open space area of the said two streets, the Members of the Petitioner-Association should be given a chance to oppose the same.

2.1. In spite of the above clear undertaking that the Madurai Corporation is not proposing or having any plan to lease out the open space area in

the said two Streets, the Corporation has now chosen to publish tender notification dated 19.1.2005, proposing to lease but the roadside open

space for shops measuring 6 x 4 s,ft. each in the said two streets by conducting an auction on 9.2.2005.

2.2. Inter alia, it is also contended that the very width of the impugned streets is only 18 ft. and both the streets are over-crowded and it will cause

great hardship to the public as well as the customers if the roadsides of these narrow streets are auctioned to the hawkers.

2.3. Hence, the petitioner-association has preferred this petition for issuance of a writ of certiorarified mandamus to call for the records relating to

the Auction Notification of the respondent in MV 4.24590/2004 published in ""Dhina Bhoomi"" Tamil Daily dated 21.1.2005 in respect of Auction

for granting lease or license of the open space sites-shops of Krishnarayar Teppakkulam East and South Streets of Madurai Town to be held on

9.2.2005 and quash the same and consequently direct the respondent and their officials by forbearing them from in any way leasing out or giving

license of the open space area of the two public streets by names called Krishanarayar Teppakkulam East and South Streets of Madurai Town to

any body for their business or trade purposes by conducting the auction either on 9.2.2005 or on any other subsequent dates as advertised by the

respondent in Dhina Bhoomi Tamil Daily dated 21.1.2005 and to keep these streets as it is and pass such other and further orders.

Mr. P. Srinivas, learned counsel taking notice for the respondent-Madurai Corporation, fairly concedes that the Corporation had given an

undertaking before this Court while disposing the W. P. No. 2363 of 2004 to the effect that the respondent-Madurai Corporation is not proposing

or having any plan to lease out or to give license for the open space area of the two streets. However, the Standing Counsel submits that the

Members of the Petitioner-Association are also encroaching the open space available in front of their respective shops.

After giving due consideration to the submissions of both sides, we are unable to appreciate either the stand of the Petitioner-Association in so

far as the encroachments of the open space in front of their shops in the said two Streets, or the proposal of the Respondent-Madurai Corporation

to lease out the open space by conducting an auction on 9.2.2005 by issuing Tender Notification dated 19.1.2005, published in Tamil Daily ""Dhina

Boomi"", dated 21.1.2005.

It is the settled law that public streets by their very nomenclature and definition, are meant for the use of the general public and they are not laid

to facilitate the carrying on of any private trade or business. If the hawkers were to be conceded the right claimed by them, they could hold the

society to ransom by squatting on the center of busy thoroughfares, and thereby paralysing all civil life. The hawkers together with their shops or

the objects which they sell and which they exhibit in the shops or on the roadside pavements, constitute an obstruction-projection in or upon the

streets and other public places. The Corporation has an obligatory duly to maintain streets and passages for the benefit of the general public. In the

event of any encroachment, the authority has the power to see that such Streets are kept for the purpose for which it was intended without allowing

the encroachment to frustrate the object, vide Tiruchirapalli Palporul Virkum Thozhilalar Sangam Vs. The Commissioner, Corporation of

Tiruchirapalli, Tiruchirapalli, .

Therefore, this Court has a duty to protect the rights of the public to use the public streets, in the event of any interference of the streets.

Because there is a statutory obligation vested on the Madurai Corporation to maintain the Roads and Streets free from any encroachments. When

the Statute contemplates certain obligatory duty on the part of the Corporation to do a particular thing for preservation of the public property for

public use, the Court has got every right to point out such duty to the statutory authorities and direct them to discharge their public duly.

Of course, it is also a settled law that no one has the right to encroach on the public street and the hawkers or squatters have no right to occupy

any particular place on the pavement. But, if the livelihood of any hawker is affected offending Articles 19(1)(g) and 21 of the Constitution of India,

the same could be regulated under Article 19(6) of the Constitution of India by the local bodies, exercising their statutory power. 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. All public streets and roads in India vest in the State but 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. The right of pavement hawker is

thus subject to reasonable restrictions under Clause (6) of Article 19 of the Constitution of India and they cannot hold the society to ransom by

squatting on the busy thoroughfare thereby paralysing all civic life. Therefore, while regretting for the proposal to lease out the roadside open space

for shops, the local body are expected to take various circumstances into consideration, viz., location, width and the necessity of security

measures, etc. There should be a rational basis for the choice of the licensees. A policy decision should be taken in regard to the articles which

should be permitted to be sold on the pavements. Unless the State and the local body take a clear decision on these issues, it may not be proper to

lease out the roadside space of the public streets for traders, which would not only affect the shop owners on the street, but also the customers as

well as the general public at large, particularly, when the grant of lease is intended in narrow streets.

But, in the instant case, the Corporation has fairly undertook that the Corporation is not proposing or having any plan to lease out or to give

license for the open space area of the two streets in the and ors. dated 14.10.2004 made in W. P. No. 2363 of 2004. Therefore, the impugned

proposal for leasing out the roadsides of the public streets as proposed in the notification dated 19.1.2005 is arbitrary and unjustified, as they

propose to violate their own undertaking recorded before this Court, which was given after due consideration. That apart, in the larger interest of

the society, unless a valid license/lease is granted to run shops on the roadsides of the public streets, by exercising statutory powers under the

Madurai City Municipal Corporation Act, 1971, we are of the considered opinion that such encroachers, who are squatting on the public street

offending the traffic and the free movement of the public are liable to be evicted, of course by following the due process of law.

For all the above reasons, while quashing the impugned Tender Notification, dated 19.1.2005, inviting tenders for grant of license for the open

space in the Krishanarayar Teppakkulam East and South Streets of Madurai Town and forbearing the respondent-Madurai Corporation from in

any way leasing out or giving any license of the open space area of the said two Streets and directing the members of Petitioner-Association

themselves to remove their encroachments in front of their respective shops, we also direct the respondent-Madurai Corporation to take all

effective steps to remove all encroachments in all the public roads and streets within the jurisdiction of this Temple City, if necessary with the aid of

the police, but following the due process of law. Unless and otherwise such occupants are protected by valid license/lease granted by the

respondent/Corporation, the respondent shall comply the above directions without any undue delay.

The writ petition is ordered with the above directions. No costs.

The Registry is directed to forward a copy of this and ors. to the District Collector, Madurai; and (ii) The Commissioner of Police, Madurai City.