1 W.P.No.5212.2002 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5212 OF 2002 AKATA LOTGADI AND TAPARIDHARAK KASHTAKARI KAMGAR SANGHATANA SHAHADA through its President Shri Laxman Hiralal Kadam having their office at Shahada District Dhule ...PETITIONER. VERSUS 1. THE PRESIDENT, Shahada Municipal Council, Shahada, District Dhule. 2. CHIEF EXECUTIVE OFFICER, Sahada Municipal Council, Shahada, District Dhule. 3. THE SUB-DIVISIONAL OFFICER, Taloda Division, Taloda, District Dhule. 4. THE STATE OF MAHARASHTRA ...RESPONDENTS. ... Shri. S.V.Natu,Advocate for Petitioner. Shri. J.R.Shah,Advocate for Respondent No.2. Shri. V.D.Rakh,A. G P.for Resp. No.3&4 ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. RESERVERED ON: 14th OCTOBER, 2010. PRONOUNCED ON: 26th OCTOBER, 2010. 2 W.P.No.5212.2002 JUDGMENT :[ PER : K.K.TATED, J.] 1. By this petition under Article 14, 19(1)(g) and 226 of the Constitution of India, petitioner seeks Writ of mandamus directing the respondents to provide alternate accommodation, in the event of their dispossession from the site where they are having their mobile stalls and doing their business. FEW FACTS OF THE MATTER ARE AS UNDER : 2. The Petitioner is a registered trade Union of hawkers, stall holders and self employed persons in Town Shahada, District Dhule. There are in all 55 members of the petitioner Union, who are carrying on business in town Shahada for last more than 32 to 35 years. They are doing their small business on Shahada Dhondiacha Road, Shahada Khatiya Road, Old Prakasha Road, Dongargao Road, Old Mohinda road and Nadi Panghat area of Shahada town. 3 W.P.No.5212.2002 3. It is the case of the petitioner that all of them are poor persons including tribal schedule caste and daily earners. They are holding valid license for hawking or mobile stalls which are issued by Shahada Municipal Council. In the year 1994 respondents decided to initiate a scheme of removal of encroachment and unauthorized construction from the Government land, therefore, initiated process of demolition. However, at that time petitioner’s members made representation to the respondents and pointed out that they can not take law in their hand for removing them. After considering the representation of the petitioner Union, respondents decided to offer alternate accommodation to those who are dispossessed or being dispossessed in the removal of encroachment. 4. Thereafter, respondent No.1 on 16th May, 1994 issued a letter to all concerned persons who were occupying the land for the purposes of their business and residence in the above mentioned area and offered that Municipal Council will allot the 4 W.P.No.5212.2002 plots admeasuring 10’ X 10’ on the monthly rent of Rs.100/-(Rupees One Hundred) on deposit of Rs.5000/- (Rupees Five Thousand). For the purpose of this allotment, concerned persons will have to apply in prescribed form along with necessary certificate from the Municipal Councilor. 5. It is the case of the petitioner that pursuant to the said offer, members of the petitioner’s Union applied for alternate accommodation in lieu of their present stand and deposited Rs. 5000/-(Rupees Five Thousand) as required by the respondents. Thereafter, the respondents made survey of entire area and classified the hawkers and stall holders in 22 different categories for example- Pan Stall, tea Stalls, Dhobi, Cycle Mart, Cold Drink stalls etc. and also recorded information about all those persons who are having their respective stalls in the above area, which are within limits of Municipal Council, Shahada. In spite of that, the respondents have not provided alternate 5 W.P.No.5212.2002 accommodation to the petitioner. 6. It is the case of the petitioner that the members of the Petitioner’s Union have documentary evidence to prove that they are conducting lawful business with permission of Municipal Council under valid license. They further submit that respondents have recognized all the petitioner Union’s Members as hawkers or mobile stall holders in their respective area and the respondents accepted the amount of deposit, rent and application for the purpose for alternative accommodation in Tapari complex. 7. Thereafter, in the month of August-September, respondents have decided to take action for demolition in respect of encroachment and unauthorized construction. In view of respondents action of demolition, they apprehended that respondents without giving any alternate accommodation may demolish their present shades and therefore, they approached immediately this 6 W.P.No.5212.2002 Court. The petitioner further submits that the Apex Court in the matter of Olga Tellis Vs. B.M.C. Reported in (1985)3 S.C.C. 545 and Sodansingh and others Vs. New Delhi Municipal Corporation and others 1989(4) Supreme Court Case, 155 have recognized the rights of the hawkers to carry on trade on payment of rent subject to reasonable restrictions under Article 19 of Constitution of India. They submit that it is the duty of the respondents to provide alternate accommodation to them to carry on their business in the vicinity. If alternate accommodation is not granted to them they will suffer irreparable loss and injury. They are depend on their day to day earnings only. They do not have means to acquire shops in any complex in the Shahada city. Therefore, learned counsel appearing for the petitioner submits that this Hon’ble Court be pleased to direct the respondents to provide alternate accommodation to the petitioners before evicting them from the place where presently they are carrying out their business. 7 W.P.No.5212.2002 8. On the other hand, Mr.Shah, learned counsel appearing for respondent Nos. 2 Municipal Council, vehemently opposed the prayers in the present petition. He filed affidavit in reply dated 27th September, 2010. He submits that the members of Petitioner are carrying on business on road itself, hence the petitioner does not have right to approach this Court in its extra ordinary writ jurisdiction to claim accommodation. 9. The learned counsel further submits that the petitioner admitted that they are encroachers, therefore they are not entitled to any relief from this Court under Article 226 of the Constitution of India. Therefore, the petition is liable to be dismissed with costs on this count also. 10. He further submits that there is no vested rights in favour of members of the petitioner to claim alternate accommodation before they be evicted from the area occupied by them as encroacher. They are encroachers and have 8 W.P.No.5212.2002 encroached upon road and as such have no right to remain on the road. They further submit that at the time of admission of present Writ Petition this Hon’ble Court passed an order on 29th January, 1996 which reads thus: “ Notice before admission has been issued and served on respondent Nos. 1 and 2. They have however, failed to appear in response to the said notices. Rule. Interim relief in terms of prayer clause(C). The said order will continue only so long as alternate premises are not offered to the petitioners.” 11. The learned counsel appearing on behalf of respondents-Municipal Council submits that Municipal Council issued a public notice in News paper of 28th June, 1996 calling upon encroachers to apply for alternate accommodation. In response to the said public notice only few persons i.e 14 encroachers applied and deposited sum of Rs. 1000/-(Rupees One Thousand) with Municipal Council. Out of 14 persons only four persons paid 9 W.P.No.5212.2002 the amount and availed the benefit extended by the Municipal Council and have taken shop premises in the complex constructed by the respondents on rental basis. In view of this the members of the petitioner are not entitled to claim alternate accommodation as they failed and inclined to apply in the year 1996. 12. He further submits that out of 55 members of petitioner, only 33 persons are doing their business and others have already created third party right in their unauthorized structures. The respondents annexed Annexure R-2” to their reply on page No. 48 showing present status of premises occupied. The learned counsel appearing on behalf of respondents-Municipal Council submits that today the members of petitioners are doing their business on road itself. In support of this contention he produced some Photographs and map showing exact situation of members of petitioner’s stall. He submits that due to the stalls on road itself, it is very difficult to maintain law and 10 W.P.No.5212.2002 order in that area. He submits that in any case the members of petitioner Union have no legal right to remain on road and obstruct traffic in the said area. Therefore, petition be dismissed with costs. 13. We have heard both sides at length. We have gone through the papers and proceedings produced by the parties and also photographs and map. It is crystal clear from the Photographs and map produced by the Municipal Council that petitioners have encroached on the road and thereby traffic in that local area have been adversely affected. Though, respondents offered alternate accommodation to the petitioners in the year 1996, they failed to apply to the respondent Municipal Council and did not avail of the alternate facility offered to them. There is no dispute that the petitioners are on Public street and caused obstruction to the traffic. The definition of street under sub-section 48 of section 2 of Maharashtra Municipalities Nagar Panchayats and 11 W.P.No.5212.2002 Industrial Townships Act, 1965, reads as under: Section : 2 .... (48) “ Street” means any road, foot way, square, court-alley or passage, accessible whether permanently of temporarily to the public, whether a thoroughfare or not:and shall include every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post , chain or other barrier, if houses shops or other buildings abut thereon and if it is used by any persons as a means of access to or from any public place or thoroughfare, whether such persons as occupiers of such buildings or not; but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid;” 14. It can be seen from perusal of definition of ‘street’ that all public streets except one owned by Government including the pavements, every vacant place, stones and other material thereof 12 W.P.No.5212.2002 shall vest in the Municipal Council. 15. The learned Counsel for the petitioner placed reliance on the Judgment in the case of Olga Tellis Vs. B.M.C. Reported in (1985)3 S.C.C. 545. It was submitted that right to hawker was also a fundamental right under Article 21 of the Constitution of India, but the Apex Court in the case of Sodansingh and others Vs. New Delhi Municipal Council and others (1989)4 Supreme Court Case, 155 while dealing with hawkers in Delhi City held that hawking on road side fall within expression ”occupation trade or business” under Article 19(1)(g) of Constitution of India, but that it was subject to the reasonable restrictions under Article 19(6) of the Constitution of India. The Apex Court in the matter of Maharashtra Ekta Hawkers Union and another Vs. Municipal Council, Greater Mumbai and others reported in (2004) 1 Supreme Court Cases, 625, in Para No.10 held that: 13 W.P.No.5212.2002 “ The above authorities make it clear that the hawkers have a right under Article 19(1)(g) of the Constitution of India. This right, however,is subject to reasonable restrictions under Article 19(6). Thus,hawking may not be permitted where, e.g.due to narrowness of road,free flow of traffic or movement of pedestrians is hindered or where for security reasons and area is required to be kept free or near hospitals,places of worship etc. There is no fundamental right Under Article 21 to carry on any hawking business. There is also no right to do hawking at any particular place. The authorities also recognized the fact that if properly regulated,the small traders can considerable and to the convenience and comfort of the general public, by making available ordinary articles of every day use for the comparatively lesser price. The Scheme must keep in mind the above principles so far as Mumbai is concerned, the scheme must comply with the conditions laid down in 14 W.P.No.5212.2002 Bombay Hawkers’ Union case. Those conditions have become final and there is no changed circumstance which necessitates any alteration.” 16. The learned counsel appearing on behalf of respondents in support of his contentions relied on the following judgments: I] Govind Nagar shop Keepers Association and another Versus State of Maharashtra and others reported in 1998(5)Bom.C.R.280 II] Gangadhar Narayanrao Wat and others Vs. state of Maharashtra and others reported in 2006(1) ALL MR 241 and III] Mohansingh Uttamsing Tanwani Vs. The State of Maharashtra and others in Writ Petition No. 2297 of 1996 decided on 4th August, 2010 17. In the matter of Govind Nagar shop Keepers Association and another Versus State of Maharashtra and other (supra) High Court held that 15 W.P.No.5212.2002 petitioner’s occupants of land allotted for residential purposes encroaching on open places in front and converting them for business purposes seeking stay of eviction on the ground that it is question of livelihood and seeking allotment of alternative space can not be considered, as they have no right to stay on the encroached land. 18. In similar way in the matter of Gangadhar Narayanrao Wat and others Vs. state of Maharashtra and others cited supra, High Court held that encroachment on the public roads and foot path can not be legalized even if there be a policy of State Government. That Policy cannot prevail over the provisions of relevant Act and Rules unless there be an Act which overrules the provisions of the Act governing in that area. Public road and foot paths must be kept free from all encroachers. 19. In the matter of Mohansingh Uttamsing Tanwani Vs. The State of Maharashtra and others, Division Bench of this Court (Coram : B.R.GAVAI 16 W.P.No.5212.2002 AND S.V.GANGAPURWALA, JJ.) categorically held that if a person is doing business of hawking on street without any authority then he is not entitled to any relief from the Court. The facts of that case and the facts of the present case are more or less similar. 20. The right to carry on trade or business conferred by Article 19(1)(g) of the Constitution is subject to the provisions of clause(6) of Article 19 which provided that nothing in sub- clause (g) of Article 19(1) would affect the operation of any existing law insofar as it imposes, or prevents the state from making any law imposing, in the interest of general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. No one has 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 general public for passage and not 17 W.P.No.5212.2002 for carrying on trade or business. 21. In the present case when respondent Municipal Council in 1996 offered to the petitioner-Union to apply for alternate accommodation they failed to do so. Therefore, they are not entitled to any sympathy from this Court. It is admitted fact that they are on the street and are causing obstruction to public traffic. Considering the interest of the public at large we do not find that the members of petitioner Union are entitled to any order restraining the respondents from removing them. 22. The learned counsel appearing for the petitioner submits that they are ready to make representation to the Municipal Council for allotment of alternative accommodation and let the Municipal Council consider the same on its own merits. In any case the members of petitioner are free to make representations to the respondents Municipal Council for alternate accommodation, if 18 W.P.No.5212.2002 there is any scheme of the Municipal Council and if they are entitled for the same. 23. In view of this settled position of law, since we find that the members of petitioner Union are not entitled to occupy the premises which are part of the public road, in our considered view, the petitioners are not entitled to the declaration that their occupation is legal and their construction deserves to be regularized. We further hold that the members of the petitioner- Union are not entitled to any relief from this Court for allotment of alternate accommodation. 24. In view of above mentioned facts, we do not find any substance in the Writ Petition. The same is dismissed. 25. Rule is discharged. 26. Mr. Natu, learned counsel appearing on behalf of petitioner-Union seeks protection till 19 W.P.No.5212.2002 December, 2010 so as to make alternate arrangement for their business. Mr.Shah, learned counsel appearing for respondents vehemently opposed the same. 27. Considering that members of the Petitioner Union are doing their business since last more than 20 years, we are inclined to accede to the request of learned counsel of the petitioners and direct that respondents-Municipal Council, Shahada shall restrain from evicting the members of petitioner-Union from their respective premises till 31st December, 2010. We make it clear that the members of petitioner-Union are entitled to the aforesaid protection subject to their submitting undertaking to this Court within three weeks from today stating that they are in actual possession of the suit structure as on today and they will not create any third party right, interest and shall vacate the premises on the expiry of the said period. The members of the petitioner-Union who fail to submit such undertaking within the 20 W.P.No.5212.2002 stipulated period shall not be entitled to the protection and the respondents-Municipal Council shall be entitled to take action for their eviction. We further direct that if members of Petitioner Union make any representation for alternate accommodation to the Municipal Council, the Municipal Council shall consider the same within three weeks from the receipt of the same and decide on merit and communicate decision to the petitioner-Union in writing. Sd/- Sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] MTK