IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3420/97 TO 3449/97 SPECIAL CIVIL APPLICATION NO.3359/97 TO 3378/97 SPECIAL CIVIL APPLICATION NO. 3337/97 AND 3386/97 SPECIAL CIVIL APPLICATION NOS. 3342/97 TO 3344/97 SPECIAL CIVIL APPLICATION NOS. 3353/97, 3393/97, 3410/97, 3476/97, 3518/97, 3525/97, 3562/97, 3880/97, 4601/97 AND 4604/97. -------------------------------------------------------- For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? No. 1 and 2 Yes Nos. 3 to 5 No -------------------------------------------------------------- PAMAN BHOBHRAJMAL NAVLANI Versus DEPUTY MUNICIPAL COMMISSIONER (V) -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3420 of 1997 to 3449 of 1997 Special Civil Application No. 3359/97 to 3378/97 MR SB VAKIL for Petitioner MR G.N. DESAI WITH MR PRANAV G DESAI for Respondent No. 1 and 2 MR PRASHANT G. DESAI, GOVERNMENT PLEADER for respondent No.3 2. Special Civil Application No 3337 of 1997 to 3386/97 MR PB MAJMUDAR for Petitioner MR G.N. DESAI WITH MR PRANAV G. DESAI,for Respondent Nos. 1 and 2 MR PRASHANT G. DESAI, GOVERNMENT PLEADER for respondent No.3 3. Special Civil Application No. 3525 of 1997 MR. M.B. PARIKH for the petitioner MR. G.N. DESAI WITH PRANAV DESAI for respondent Nos. 1 MR. PRASHANT G. DESAI, GOVERNMENT PLEADER for respondent No. 2 4. Special Civil Application Nos. 3342/97, 3343/97, 3344/97, 3353/97, 3393/97, 3410/97, 3476/97, 3518/97, 3525/97, 3562/97, 3880/97, 4601/97 and 4604/97. Mr. B.S. Patel, Advocate for the petitioners Mr. G.N.Desai with Mr. Pranav G.Desai for respondent Nos. 1 and 2. Mr. Prashant G. Desai, Government Pleader for respondent No.2. CORAM : MR.JUSTICE R.K.ABICHANDANI Date of decision: 07/08/97 ORAL JUDGEMENT This group of petitions raise common points and they have been heard together at the instance of both the sides and are being disposed of by this common judgement and order. 2. The petitioners have challenged notices given to them by the respondent Vadodara Municipal Corporation by which they are required to remove the encroachments made by them within 15 days of the receipt of the notice, failing which the Corporation informed them that it would remove the encroachments at their expense. These notices narrate the fact that the temporary licence of the petitioners in respect of the placement of cabin/larry/hand-cart had expired, which dates fall in most cases in December, 1988 and March, 1989 and that they were liable to be removed in view of the Scheme framed pursuant to the directions of Hon'ble the Supreme Court. The notices were given in April, 1997. 3. According to the petitioners, they were given small plots admeasuring about 5' x 5' in the Laheripura area of Ward No.1 of the Municipal Corporation (in most cases), Near Vittal Mandir, M.G. Road, Near Julelal Temple etc. and they had constructed wooden cabins for their business. According to the petitioners most of them are displaced persons who on partition, had come to Vadodara and they were given these plots by charging the ground rent varying from one anna to 2 annas per square foot. In 1953 when this rent was increased, they had objected but through intervention of some persons, rent at the rate of 3 annas per square foot was agreed to be paid up to May, 1955. 4. It appears that from 9th March, 1953 the Collector, Baroda had sent a communication (Annexure-`C' in Spl. C.A. No. 3359 of 1997) to the President of the Hawkers' Association, Baroda to the effect that their request for space near Mahatma Gandhi statue for about 20 `larries' was accepted. Further more, in order to accommodate the refugees, it was decided to increase the area of plot near Darbar Hotel by reducing the width of the road by 25 feet so that they could accommodate 48 persons there. The site on the Mandvi Fani Gate road adjoining to the Nazarbaug wall road was also earmarked for cabins/larries of about 54 persons. It was in terms stated that looking to the interests of the city as a whole and especially of the middle classes, the Sursagar area cannot be given for shops and was to be kept open permanently. It was stated that the decisions will have to be implemented by 15th March, 1953 failing which force will be used in clearing the site. On 19th March, 1953 a communication was sent by the then Baroda Municipality to the Hawkers' Association, in which it was instructed that the present licence holders were to be distributed the plots ear-marked and the arrangement was to take place from 1st April, 1953. It was in terms stated that if no action was taken, the present licence holders shall have to be removed on 1.4.1953. On 21st April, 1953, a notice was given that wooden cabins could be prepared only after submitting a rough plan and getting it approved from the Municipality, failing which their plots in Padmavati Chaugan were liable to be cancelled. 5. It appears that a suit being Civil Suit No. 1073/58 was filed in a representative capacity in the Court of the learned Civil Judge (S.D) at Baroda for a declaration that the Municipality had no right or jurisdiction to invoke the provisions of the Municipal Borough Act as the entire suit plot in Lehripura admeasuring 500 ft. had not vested in the Municipality and that it had no right to recover any lease money or ground rent or the possession of the portions of land from the plaintiffs. That suit with two other cognate suits was dismissed and regular Civil Appeals Nos. 7, 8 and 9/92 were preferred before the Extra Assistant Judge, Baroda. In that appeal, it was held that the plaintiffs were estopped from denying the title of the Municipality. The appellate Court observed that it could not be said that the appellants acting upon the licence had executed work of a permanent character and that the fact that the appellants were bound to apply for renewal in every April, showed that they were agreed to evict in the end of March, if the application for renewal of the licence was rejected in the month of April. It was held that the appellant had failed to prove that their case fell under Section 60(a)(b) of the Indian Easement Act or that their licence was not revocable. The appellate Court however held that the appellants were tenants and therefore the Municipality could not take law into its own hand and evict them by summary mode of eviction. The Municipality (the Corporation was constituted on 1.4.1966 from when the BPMC Act applied ) was therefore restrained from evicting the appellant except by due process of law. The rest of the reliefs were refused and the order of the trial Court dismissing the suit as regards the rest of the reliefs was confirmed. That decision was given on 31st August, 1963. According to the petitioners, the Municipal authorities refused to recognise them as tenants in respect of the portions occupied by them and refused to accept the rent (paragraph 4.4 of Special Civil Application No. 3359/97 etc.). It appears that the petitioners were thereafter given notices in October, 1966 under the provisions of Section 437A(2) of the Bombay Provincial Municipal Corporation Act, which became applicable because of the Municipal Corporation of Baroda, having been constituted from1.4.1966. In that notice (copy at Annexure 50 of the affidavit-in-reply of the Corporation), it was stated that an appeal was filed against the appellate decision dated 31st Aug. 1963. It was stated that the petitioners were licence holders. However, if they considered themselves as tenants their term having expired it was intended to evict them under the provisions of Section 437A and accordingly, these notices were given to show cause within 15 days as to why the order of eviction should not be made. The petitioners were informed that the hearing was fixed on 7th January, 1967. The contentions raised by the petitioners in their reply to the show cause notice were pressed by them before the concerned authority during the hearing. On 31st January, 1967 the petitioners were served with an order dated 20.1.1967 requiring them to vacate the portion within one month of the service of the order. The fact that such order was made, was admitted at the hearing and has been mentioned in paragraph 4.6 of Special Civil Application No. 3359/97, and in other petitions. Thereafter, the petitioners preferred Special Civil Application No.1124 of 1966 challenging the Constitutionality of the provisions of Section 437A and the orders made under Section 437A(1) on the ground that they were not supported by reasons. The Division Bench of this Court, hearing that petition alongwith some other cognate matters, by its decision reported in 11 G.L.R pg.1 allowed the petition, holding that the provisions of Section 437A were unconstitutional and further that the orders of eviction made under Section 437A(1) contained in the notices issued to the petitioners did not show ex-facie the reasons which led to their making and therefore, the orders were liable to be set aside. Against that decision, the matter was carried to the Supreme Court and the Supreme Court by its decision in Ahmedabad Municipality Vs. Ramanlal - AIR 1975 S.C 1187, reversed the decision of the High Court and upheld the constitutionality of Section 437A(1). As regards the ground on which the orders were set aside - namely that they did not disclose the reasons, the Supreme Court in paragraph 27 of the judgement, held: "The orders which were passed gave reasons. The orders were not served. That should not happen. That indicates inefficiency. There is no infirmity in the orders. The authorities should serve orders giving reasons for making the order." 6. According to the petitioners, a circular was issued by the Government on 7th June, 1976 informing all the Municipal authorities that wherever displaced Sindi persons had constructed cabins and were paying rent to the local authorities, whenever an occasion arose due to inevitable circumstances to remove their cabins that should be done after providing them alternative accommodation. 7. The Associations of Larriwalas, Gallawallas and Patharnawallas and such individuals from Ahmedabad, Baroda and Surat who had put up cabins or stalls were having hand carts with four wheels or were squatting for the sale of their goods on public streets and footpaths feeling aggrieved by the action being taken under Section 231 of the BPMC Act challenged the provisions of Sections 230 and 231 on the ground that they were violative of their fundamental right to business and therefore these Corporations had no authority to remove their larries or gallas or goods and should be restrained from doing so. These petitions including those filed by larry/galla/patharnawallas of the city of Baroda came to be decided by this Court and a Division Bench by its decision in Gulam Ali Gulam Nabi Sheikh Vs. Municipal Commissioner reported in 1986 G.L.H 616 held that in view of the decisions of the Supreme Court in Bombay Hawkers' Union and ors. (1985) 3 S.C.C 528 and Olga Tellis (1985) 3 SCC 545, these hawkers have no fundamental or legal right to occupy parts of public streets for doing their business and that Section 231 of the said Act was not ultra vires Article 14, 19 or 21 of the Constitution. It was held that if the Corporation failed to discharge their obligatory duty of removing the encroachments, a citizen could approach the Court for compelling the Corporation to discharge its duty, but inaction on the part of the Corporation can never confer a right to occupy the parts of public streets. In that petition the Corporations including the Baroda Municipal Corporation were directed to formulate a scheme as modified and approved by the Supreme Court in Bombay Hawkers' Union Vs. Bombay Municipal Corporation (1985) 3 S.C.C 528. The matter was carried to the Supreme Court against the Municipal Corporation of Baroda and the Supreme Court by its order dated 2nd May, 1986 disposed of the group of appeals and writ petitions (W.P. 657 of 1986) in the following terms:- "1. The petitioners/Appellants undertake to this Court that they shall remove their hand-carts and/or gallas, cabins etc. on or before December 31, 1986. However, this undertaking by the appellants/petitioners will be subject to clause (2) below. Such undertakings should mention the exact places of their present trading. The undertakings to be filed by July, 1986. 2. The appellants/petitioners, however, will be at liberty to adopt appropriate proceedings in respect of locations of the area or the places in the trading zones where the appellants/petitioners and other hawkers will be permitted to carry on their trade in the Final scheme. 3. The Municipal Corporation of Baroda shall give an opportunity to the appellants/petitioners to make their representations and will take them into consideration when it fixes hawking and non-hawking zones, the final scheme. 4. The Municipal Corporation, Baroda, should fix such zones expeditiously and in any case on or before December 15, 1986. 5. The Interim Scheme as approved by the Surat cases in clauses (5) of the Surat matters may be implemented subject to the modification that clause (4) of the Baroda interim scheme shall be deleted. There is no order as to costs." 8. As per this order, notices were issued inviting representations in the matter of fixing of the trade zones and a retired District Judge (Mr. M.K. Desai) who was entrusted the task of preparing the scheme, after hearing the persons interested pursuant to the notices issued and considering the material on record, prepared a report for hawking and non-hawking zone for the city of Baroda. In that report it was observed that in the city of Baroda the hawkers do their business in Patharnas, cabins, stationary hand carts etc. and that on the main roads the problem mainly was about hawkers selling their goods in cabins, patharnas and stationary hand larries (page 5 of the scheme). The final scheme adopted by the Corporation was challenged in Special Civil Application No. 3138/88 and other cognate matters and a Division Bench of this Court by its decision dated 5th August, 1988 rejected both the petitions summarily holding that there was no serious flaw in the scheme prepared by the Retired District Judge Mr.M.K. Desai and adopted by the Baroda Municipal Corporation. 9. Thereafter, on the plea that the provisions in the Scheme were not worked out appropriately and that the respondents were not provided suitable places within the hawking zones, the hawkers of Baroda had approached the Civil Court and obtained an order of injunction, which fact was brought to the notice of the Supreme Court in S.L.P No. 546/89 and Hon'ble Supreme Court by its order dated 3.5.89 dismissed the suit and vacated all the inter-locutory orders made therein by the Baroda Court making the following observations:- "We are of the view that it was an attempt to thwart the scheme by approaching the Civil Court. It is an abuse of process of the Court and gives rise to a situation where contempt action should lie. We, however, do not propose to take such action, but consider it very appropriate and in the interest of justice to direct dismissal of the suit itself. By this order of ours, the said suit being No. 1761 of 1989 in the Court of 6th Joint Civil Judge, Sr. Division, Vadodara shall stand dismissed and all interlocutory orders made therein shall stand dismissed. We however, would like to record the assurance given to us by counsel for the Municipal Corporation that within a week from the date of application, appropriate hawking licences in the hawking zones shall be issued by the Municipal Corporation upon applications being made for such licences." 10. According to the petitioners, in October, 1988 the Corporation launched a drive for removing all larries, gallas and cabins which were on the roads. The case of the petitioners is that they are cabin holders and have been paying regular rents to the Corporation in respect of their wooden cabins and therefore, they cannot be compared with `larry galla' owners. The petitioners who are cabin owners were being made the target of the drive to remove encroachments from the roads and therefore, 48 cabin holders filed Special Civil Application No. 7396/88 challenging the impending action of the Corporation of removing their cabins from opposite Khajuria Mazjid, Laheripura etc. That petition came up for hearing before Hon'ble Mr.Justice N.N.Mathur and by the judgement and order dated 22.2.96, it was held that the petitioners had approached the Court only on apprehension and therefore, the petition was not maintainable. While rejecting the petition, it was directed that if the Corporation takes any action for eviction of the petitioners in accordance with law, it shall not be enforced for a period of 15 days. It was contended in that petition that the petitioners could not be summarily evicted under Section 231 of the said Act since they were having the cabins for over a long period. 11 The learned Counsel Mr. S.B. Vakil, Mr. P.B.Majumdar, Mr. B.S.Patel and Mr. M.B.Parikh have addressed the Court in respect of their respective matters. The contentions raised in the lead group argued by Mr. S.B.Vakil have been adopted by the other learned Counsel who also made some additional submissions. 12. It was contended on behalf of the petitioners that the impugned notices did not mention that it was issued under the provisions of Section 231 of the said Act. These notices only referred to the decisions of the Courts including the decisions of the Supreme Court. it was submitted that the petitioners were not parties to the matters in which the Supreme court gave directions in connection with the formulation of the scheme by the Baroda Municipal Corporation and therefore, the scheme was not binding on the petitioners. It was submitted that there was total non-application of mind in issuing the impugned notices because appropriate deletions were not made and at some places the blanks were not even filled-in. The alternatives were mentioned without indicating applicable words. Further more, these notices were given for enforcement of hawking and non-hawking zone scheme and could not affect the petitioners who were not parties to the matters in which the judgements mentioned therein were rendered. It was submitted that the decisions of the Supreme Court mentioned in the notice was not a judgement in rem and it could only bind the persons who were parties before the Court. Even amongst those parties these decisions would bind only with reference to the subject matter of those petitions. It was further argued that the petitioners who were parties in the matter before the Supreme Court were persons who were having hand carts and hand larries and they were not cabin holders like the petitioners. It was submitted that the petitioners who are cabin holders stood on a different footing and could not be equated with larrywallas or hand-cart owners who would creating obstructions on the public road. It was then contended that there was a decree already passed in a representative suit, declaring that the petitioners were allotted the plot as tenants and the Municipality (as it then was) was not entitled to evict them by summary mode of eviction and except by due process of law. It was contended that the petitioners were issued receipts for the rents paid by them and they were not trespassers. Since they occupied the portions with the permission of the Municipality, there was no question of evicting them under the provisions of Section 231 of the Act. It was further submitted that Section 231 cannot be invoked where the place is occupied with the permission of the Commissioner. It was also argued that cabins were affixed with the land, they were not things which can be said to have been placed or deposited on a public place as envisaged by Section 230 of the Act. It was submitted that clause (a) and (b) of Section 231 were not at all attracted in the instant case. It was argued that notice was required by virtue of the decision of the Court (N.N.Mathur,J.) in Special Civil Application No. 7396/88, in which it was directed that if the Corporation takes a decision, the petitioners will not be dis-possessed for 15 days. Therefore, according to the learned Counsel, the provisions of Section 231 which could apply where notice was not required to be given, could not be invoked. It was then contended that hearing was absolutely necessary before taking any action even under Section 231 of the said Act. It was contended that no order could be made to throw the petitioners out without giving them hearing. If hearings were given, they could have contended that they were given permission to occupy these places and put up other defences. Reliance was placed on the decisions of the Court in Hasmukhbhai Dhanjibhai Zaveri Vs. R. Parthasarthy reported in 12 GLR 128, J.G. Vyas Vs. Vijay Housing Devt. reported in 35(1) GLR 377 and Dalwadi Laljibhai Gatorbhai Vs. State of Gujarat reported in 1995 G.L.H. 1 in support of his contention that hearing was required to be given before removing the cabins of the petitioners. It was however, submitted that the impugned notice was not based on Section 230 or 231 and had proceeded on the basis of the scheme framed by the Baroda Municipal Corporation pursuant to the orders of the Supreme Court. It was also contended that affidavits cannot spell out what was not there in the notice and since it was not mentioned in the impugned notices that they were issued under the provisions of Section 231(1) of the Act, the fact that the Corporation now states so in the affidavit, cannot make them as notices issued under the provisions of Section 231 of the Act. Reliance was placed in support of this contention on the decision of the Supreme Court in Mohinder Singh Vs. Chief Election Commissioner reported in AIR 1978 S.C 851. It was further argued that the alternative site were offered only after the filing of these petitions and that the conditions incorporated in the offer would show that they were not real alternative sites. It was also submitted that the alternative sites were in a place where the petitioners will not be able to do their business peacefully and there were boot-leggers and other anti-social elements around, which would not permit the petitioners to do their business peacefully. It was contended that in some cases (Special Civil Application No. 3360/97) transfers were allowed and accordingly cabins were transferred to other names. It was also submitted that in the case of the petitioner of Special Civil Application No. 3448/97, an interim relief was granted by the Civil Court in Regular Civil Suit No.799/85 by order dated 30.9.97 was operated. A certified copy of that order is placed on record. In that order, it is observed that it was not prima-facie shown that the Municipal Corporation had accepted the plaintiff as a tenant and that mere acceptance of the amount would not make the plaintiff as tenant. It was also observed that there was a dispute as to whether the plaintiff was a licensee or a tenant. However, since the plaintiff was in occupation, interim relief was granted. 13. Mr. P.B. Majumdar, the learned Counsel appearing for the petitioners of the petitions argued by him, contended that there was a registration certificate issued in the petitioners' favour under the provisions of the Shops and Establishments Act, that they were paying professional tax and that their possession was lawful and they cannot be ranked as trespassers. It was also submitted that Sindhis who had settled as refugees in Baroda were to