Tiruchirapalli Palporul Virkum Thozhilalar Sangam vs The Commissioner, Corporation of Tiruchirapalli

C. Shivappa, J.—This writ appeal is directed against the interim order of the learned single Judge dated 4.8.98 passed on W.M.P. No.

8883 of 1998 in W.P. No. 5725 of 1998. The appellant Sangam was formed to regulate the employment as well as street vending on the

Northern Platform of N.S.B. Road. Tiruchirapalli, abutting the southern wall of Theppakulam, Tiruchirapalli Town. It is the case of the appellant

that the members of the appellant Sangam are carrying on the trade of hawking their textile goods on the platform. It is their case that there is no

impediment to the free movement of the pedestrian and vehicular traffic. The members of the Sangam are apprehending threat of dispossession and

hence, they sought for a mandamus to direct the respondent to regulate the conduct of the trade and business in their respective places on the

Northern Platform of N.S.B. Road, Tiruchirappali, abutting the southern wall of Theppakulam and to forbear the respondent from forcibly evicting

the members with their wares, goods, and articles etc., from their respective places. They also sought for an interim order in W.M.P. No. 8883 of

1998

The learned single Judge held that ""the petitioners are not entitled for any interim order since the respondent wants to regulate the place for the

public and for free flow of traffic.

The learned senior counsel Mr. C. Chinnaswamy, appearing for the appellant contended that until the scheme is drawn up, so as to provide an

alternative accommodation, they may be permitted to trade in their respective places at least on special occasions, such as, festivals etc.

This Court in W.P. No. 266 of 1997, disposed of on 30.4.1997, which was filed by a Sangam for a similar relief, took the view that no one has

any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. 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 private

trade of business. If hawkers were to be conceded, the right claimed by them, they could hold the society to ransom by squatting on the centre of

busy thoroughfares, thereby paralysing all civic life. The hawkers together with their stalls or the objects which they sell and which they exhibit in

the stalls or on the roads/pavements, constitute an obstruction projection in or upon the streets and other public places. The corporation has an

obligatory duty 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.

The Apex Court in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, held that footpaths or pavements are public

properties which are intended to serve the convenience of the general public, are primarily dedicated for the purpose of passage and not for trade.

In Sodan Singh Vs. N.D.M.C. and Others, , the Apex Court held that

there cannot be a fundamental right vested in a citizen to occupy any particular place on the pavements where he can squat and engage in trading

business. Nor can the hawkers assert a fundamental right to occupy any place permanently on a pavement... Hawkers cannot be permitted to

squat on every road.

The learned single Judge keeping in view the settled position of law on this aspect declined to grant the interim order.

The learned senior counsel submitted that on humanitarian grounds, the impugned order is liable to be interfered with. In this jurisdiction, court

has to protect the right in the event of interference, but should not create a right to a party. There is no material to reflect their right to trade in their

respective places. Equally, there is no material to sustain their apprehension. No direction is sought for, for the formation of a scheme and that is

not the basis for the relief pleaded in the petition. Even if recourse is taken to push out the encroachers from the place where they are squatting, it

cannot be faulted, as it is the obligatory duty on the part of the corporation to maintain the streets free from encroachments. When a statute

contemplates an obligatory duty on the part of the authority to do a particular thing or preservation of public property for public use, any direction

against such statute amounts to scuttling a statutory duty. It is not proper for the court to direct any party much less a statutory authority not to

perform the duties even on humanitarian grounds. So, also inaction against persons similarly situated elsewhere, though amounts to non-exercise of

discretion vested in the authority, but illegality or failure to exercise discretion cannot be a defence to interfere with a legal action. Normally, since

there is no determination of a right of a party at the interim stage, unless the infringement is likely to destroy the rightly refusal of the interim order,

an appeal should not be entertained as it may have the effect of delay in disposal pf the writ petition and also create a situation to take shelter under

the interim order indefinitely.

Since the learned single Judge has declined to grant the interim order in view of the decision of this Court and that of the Apex Court, cited

supra, we are not inclined to entertain this writ appeal and, hence, the same is liable to be dismissed. Accordingly, it is dismissed at the admission

stage itself. Consequently, the connected miscellaneous petition is also dismissed.