IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9843 of 2000 with SPECIAL CIVIL APPLICATION No 7823 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : YES 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 -------------------------------------------------------------- DEVENDRA JASHUBHAI RAVAL Versus AHMEDABAD MUNICIPAL CORPORATION -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9843 of 2000 MR MIHIR H JOSHI for Petitioner MR BHASKAR TANNA, SR. Counsel WITH MR AMIT M PANCHAL for Respondent No. 1 2. Special Civil ApplicationNo 7823 of 2000 MR ASHOK K PADIA for Petitioner MR BHASKAR TANNA, SR. Counsel WITH MR AMIT M PANCHAL for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE C.K.BUCH Date of decision: 13/12/2000 CAV JUDGEMENT (Per : MR.JUSTICE C.K.BUCH) 1. Rule. Learned counsel Mr. Amit Panchal appears and waives service of Rule in both the petitions on behalf of the respondents. 2. These two writ petitions are moved under Article 226 of the Constitution of India by the petitioners of both the petition. The petitioner of Spl.C.A. No. 9843/2000 has prayed to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions declaring the action of the respondent Ahmedabad Municipal Corporation (hereinafter referred to as "AMC" or the "Corporation") of removing the permitted articles/structures from the area being No. 3/1 of Larri Stand No.3 in Final Plot No. 430 (Part) of Ellisbridge TP Scheme No.3 of the petitioner including paving, electrical installations, water connection and fixtures, as being illegal and unconstitutional and has also further prayed to restrain the respondent Corporation from obstructing the petitioner from carrying on business in acordance with the permissions and resolutions of the respondent in this behalf from time to time. So far as the petitioner of Spl.C.A. No.7823/2000 is concerned, it has been prayed to issue a writ of mandamus directing the respondents to implement the scheme (hereinafter referred to as the compromise formula") approved by this Court on 22.4.1987 and approved by the Supreme Court of India on 6.1.1988 as referred to in the said petition. It has been also prayed that a special body to implement the aforesaid compromise formula within existing administrative structure of the respondents and further prayed to restrain the respondents from removing the hawkers doing business through larries, gallas and pitches in hawking zones declared in the compromise formula. 3. Spl.C.A. No.7823 of 2000 is filed by Rajendrasinh Darshansingh Punjabi, General Secretary of Akhil Gujarat Lari Galla Patharnawala Shramik Samaj, representing the hawkers doing small business thorugh larries gallas and patharnas on the Road and streets in the city of Ahmedabad, praying for a writ of mandamus or like writ or diection directing the respondents to implement the compromise formula approved by the Hon'ble High Court of Gujarat on 22.4.1987 and approved by the Hon'ble Supreme Court of India on 6.1.1988. The petitioner has further prayed to restrain the respodents from removing the hawkers doinig business through larries, gallas and pitches in hawking zones declared in the compromise zone. 4. At the time of admission hearing of both these petitions, learned counsel appearing for the parties jointly submitted that both these petitions should be heard finally and same can be disposed of on merits without entering into other procedural formalities. Hence, at the request of learned counsel appearing for the parties, we have heard both the petitions simultaneously on merits and in view of the contentions raised in the petitions and reliefs prayed, though the reliefs prayed appear to be of different nature,but in substance, the reliefs prayed for are similar in nature as issues involved in both these petitions are almost similar. The difference is of a degree and not of kind and there is no basic difference in the reliefs claimed and hence, we dispose of both these petitions by this common judgment on merits in limine. 5(i). The facts revealed in both the petitions are having some different shades. We would like to narrate facts in brief for the sake of convenience. The petitioner of Spl.C.A.9843/2000 is one of the allottees of Larri Stand No.3 situated near Law Garden in Final Plot No. 430 of T.P.Scheme No.3 of Ellisbridge. He has challenged legality of the action of the respondent Corporation of removing permitted articles and structures from his larri-stand No.3/1 allotted to him contending that this action of the respondent Corporation is illegal, harsh, excessive, without jurisdiction and without authority of law and is in breach of principles of natural justice. It is further contended that the action is unconstitutional and void and the same is in violation of Article 19(1)(g) of the Constitution of India. (ii) It is contended that since 1956, area around Law Garden was permitted to be used for the purpose of vending eatables and on 20.10.1976, Standing Committee of the respondent Corporation passed Resolution No. 1706 proposing larri-stand adjacent to Law Garden which could accommodate 72 larriwalas. This resolution was modified on 18.10.1977 wherein it was resolved that a stripe of land admeasuring about 10 ft. in depth be carved out from garden area and the same may be used for the purpose of constructing larri-stand. It was also decided that allottee of larri-stand would have facilities of light, water, drainage and paved level ground and 36 vendors were to be accommodated in that area. We have carefully perused the aforesaid resolutions produced before us in the context of other material available on record and the contentions raised by the respondent Corporation. The petitioner, on the day on which action was taken, was doing business of selling Icecream & Kulfi in the name and style of Sahajanand Icecream & Kulfi Centre and he is doing business on the said place since more than 20 years. Similarly, other 35 persons who were allotted area were also using the same for the purpose of their business and are paying sum of Rs.900/ per annum to the respondent Corporation on demand. The petitioner was also granted registration by Police Commissioner, Ahmedabad city for doing business in the area from 5.00 P.M. to 12.30 P.M. from 17.8.1979 and thereafter business period was extended from 12.30 P.M. to 2.00 A.M. during festival season and ceremonial days. (iii) According to the petitioners, AMC recommended to put up permanent structure in view of the growing popularity in the area some where in the year 1982-83 and a resolution to that effect was also passed. In the year 1983, AMC imposed certain conditions and directed to take back respective larries after business hours which resulted into litigation and Spl.C.A No. 3513 of 1983 was filed and prohibitory interim order was prayed to the effect that AMC be directed not to enforce such condition. Thereafter, in view of the representation made on 8.8.1983, the said petition came to be withdrawn. Representation made by Larri Owners Association of the area was rejected in the month of March 1984. According to the petitioners, as the scheme for permanent stall was under contemplation, representation made on 8.8.1983 was rejected. (iv) In the year 1991-92, AMC was again moved and it was submitted that larri owners may be provided facility of electric connection and ultimately, by a resolution dated 16.1.1992 bearing No. 1782 passed by the Standing Committee of AMC, it was resolved to grant No Objection Certificate (NOC) to the petitioners and other persons carrying on business in Law Garden area. It is contended that certain observations of the aforesaid resolution indicate that larri stand was a legal stand, had facilities of paving, water and drainage etc. Considering the fast development, AMC decided to issue NOC vide aforesaid resolution and petitioners have annexed said resolution at Annex.F to the petition. NOC issued by AMC was conditional and as per one of the conditions of NOC, the petitioners submitted an undertaking for not claiming compensation in the format required by the AMC. It is averred that irrespective of the set of facts, somewhere in the year 1992-93, a demolition drive was initiated by AMC in view of large number of vendors beyond 36 in number initially allowed to carry on their business in the area. (v) The petitioner and other allottees, on apprehension, filed a Civil Suit No. 168/93 before the City Civil Court and after hearing the parties, learned Judge, City Civil Court held that plaintiffs were running their business in accordance with law and there was no encroachment on road. However, the Court reserved liberty to AMC to demolish illegal construction after issuance of notice. Copy of the order passed below application exh.5 in the aforesaid civil suit is also available on record. The matter, earlier, was taken before the Apex Court. It is averred that the petitioner is not aware about any such earlier proceedings initiated before the Supreme Court of India in respect of the area which is subject matter of the petition. ( Para-9 of the petition ). 6.(i) The petitioner has mainly contended that irrespective of the set of facts as stated above, he carried on his business peacefully up to 5th August,2000, the day on which petitioner and other occupants in the subject area were served with notices from AMC and petitioner along with others was directed to remove illegal construction within 10 days from the date of receipt of the notice. Notice was issued pursuant to the order of this Court. Copy of the notice is produced at Annex.J. According to the petitioners, this notice indicates atleast one fact that the petitioner is carrying on business on Final Plot No. 430 (Part) and has been licenced to do so. It is contended that the notice was replied by the petitioner on 19.8.2000, contending inter alia, that the notice was without jurisdiction and prayed for affording personal hearing before taking any decision in the matter. Reply filed by the petitioner is available on record for our perusal at Annex.K. According to the petitioner, he & other persons voluntarily offered to pull down the structure alleged to be illegal, and on 12.9.2000, they voluntarily pulled down such construction. According to the petitioner, though this Court has not passed any order directing the AMC to demolish the existing structure of the petitioner and other persons carrying on business there and to evict them from the business premises, AMC high-handedly issued notice and initiated action of demolishing the entire structure and evicted the petitioner along with other persons- allottees in the area. According to the petitioner, AMC has wholly misconstrued the directions of this Court and by using bulldozers and with the assistance of other machineries, removed all fixtures, fittings, electric connection, cables and also removed stalls in the entire area. It is averred that the petitioner requested the officers who were at the site as well as security personnels that they are holding valid licence to carry on business in the area and they have paid licence fees up to 31.3.2001 and therefore, they cannot be removed high-handedly. According to the petitioner, action of AMC is ex-facie illegal and irrational and which is something to pre-empt adjudication ignoring all relevant facts and is not permitting the petitioner and others to do their business in the area even as per the terms of licence (Parvana) granted to them. When AMC itself has allotted space on FP No. 430(Part) Ellisbridge TP Scheme No.3 adjacent to Law Garden and had given facility of paved flooring, water, drainage, electric connection etc. and when they were doing business since more than 20 years, they could not have been thrown out merely on the fact that some structure was found offending which was voluntarily pull down by the petitioner himself and other allottees and hence the action of AMC in demolishing entire existing structure including electric installation, paving etc. and evicting the petitioner and others from the place of business, is without jurisdiction and without authority of law. When AMC served the petitioner and others with a notice to remove only alleged offending structure and when petitioner and others have prayed for personal hearing, AMC cannot remove entire structure and evict the petitioner and others by simply abandoning the process of law and, therefore, the action of AMC is irrational and contrary to the provisions of the Act. According to the petitioner, principles of of natural justice have been violated and action, therefore, is clearly arbitrary and discriminatory. It is alleged by the petitioner that it is evident that merely some action is taken after orders of the High Court during the hearing of Public Interest Litigation (PIL), AMC has picked up the petitioner and other persons and permanent structures which were wholly illegal as indicated by the High Court, have remained untouched and structures of the petitioner and others have been removed. According to the petitioner, notice dated 5.8.2000 served on the petitioner and others stands complied with because the petitioner and other allottees themselves removed the alleged offending structure voluntarily and therefore the further action of AMC in blocking the access in the area and issuing instructions to ensure that subject plot is paved over so that there can be no restoration of use, is wholly illegal and unjustifiable. On 20.9.2000, during the course of the hearing of the petition, the petitioner moved the draft amendment in view of the contentions raised by AMC and affidavit-in-reply filed on that very day. Draft amendment was allowed. The petitioners, by amending the petition, have challenged the legality and validity of the notice dated 31.12.1994 and submitted that irrespective of the fact of issuance of notice dated 31.12.1994, AMC is not entitled to justify the notification. (ii) It is stated that inclusion of area around Law Garden in No Hawking Zone is irrational and unreasonable because the place has been used for the purpose of vending foodstuff and eatables since 1956 and vendors were not consulted before issuance of the notification. According to the petitioner, it is absolutely unreasonable to prohibit hawking near public garden since in fact both rolls absolutely in hand to hand and one is complement to another. According to the petitioner, before issuance of notification in the year 1994 and determining the factors enumerated in the scheme reflected in the notification, the Police Commissioner ought to have been consulted as regards the density of vehicular traffic and pedestrian traffic in the relevant area. According to the petitioner, final scheme as framed by the Municipal Commissioner on 9.4.1986, and as amended from time to time, is unconstitutional and the DP Road boundaries as per the Draft Revised Development Plan of 1997 is unconstitutional. Action of extension of Non Hawking Zone by AMC to the road, footpath and pavements around the public garden requires to be quashed and set aside more particularly around Law Garden. Along with the main prayer made in paras 27, 27-A & 27-AA of the petition, the petitioners have alternatively prayed that this Court should issue direction and clarification with regard to the implementation of Final Scheme and the order of the Court passed in Spl.C.A. 4269/82 and other cognate matters on 23.12.1985 as modified by the orders of this Court on 22.4.1987 and 8.12.1987. The petitioners have also prayed that AMC be restrained from obstructing the petitioner and other allottees from carrying on their business in accordance with the terms of resolution of AMC and as per the terms reflected in the licence granted to them. 7(i) Respondent AMC has resisted these petitions by filing affidavit-in-reply and has produced certain documents in support of its say. During the course of hearing of the petition and after placement of draft amendment by the petitioner, AMC has filed further affidavit of the same officer namely Mr. N.M. Baleva, Estate Officer working in AMC. Corporation has tried to clarify the factual as well as legal position in both the affidavits and has submitted that action taken by the AMC is absolutely in accordance with law and authority. Before removal of the offending structures and evicting the petitioner along with other persons carrying on business of selling eatables in the area, has considered the terms on which licence was issued and action of cancelling licence and all consequential actions were initiated with a view to act legally and judiciously. The order passed by Ld. Judge, City Civil Court on 12.4.1994 points out that liberty was granted to AMC that if encroachment or illegal construction of the shed is found, AMC would be at liberty to issue notice in respect of such unauthorised construction and/or encroachment. Language of the order passed by learned City Civil Judge does not preclude AMC from taking action in accordance with law, especially as indicated in the first line of the notice issued by AMC in the month of August-2000. (ii) It is not a matter of dispute that the petitioner did not comply with the requirements of the notice and had tried to render explanation. It is contended that when terms of licence have been accepted by the petitioner, he cannot challenge the same. As the petitioner has committed breach of more than one condition of the licence and has also simultaneously encroached upon the public street and has made unauthorised construction over the public street which was of permanent nature and was in clear infringement of the terms of licence as well as scheme framed by AMC on 9.4.1986, action taken by AMC is just, legal and proper. According to AMC, scheme framed by AMC was approved by the High Court of Gujarat vide its order dated 22.4.1997 and supplementary report of the Court dated 7.12.1997 and also by Hon'ble Supreme Court of India. It is contended that when scheme was approved and accepted, it would not be legal or otherwise possible to reopen or to re-examine the feasibility of the scheme. According to AMC, in view of observations made in the order dated 6.1.1988, re-examination of feasibility of the scheme is only possible if any extreme difficulty arises in implementation of the judgment of the High Court. It is contended that approval of the scheme by Supreme Court of India and directions issued pursuant thereto are binding to all concerned especially in light of Article 141 of the Constitution of India. It is specifically contended that the petition is misconceived both on facts and law and should be dismissed in limine. The action taken by the Corporation is pursuant to the directions issued by this Court in exercise of its prerogative writ jurisdiction under Article 226 of the Constitution of India on 11.7.2000 ( Coram : B.C.Patel & P.B.Majmudar, JJ ). The direction is clear to the effect that the scheme prepared by the AMC pursuant to the order passed by Hon'ble Supreme Court of India while dealing with Special Leave to Appeal arising out of the orders passed by the High Court of Gujarat in Spl.C.A. Nos. 4269/82, 5592/82, 894/83, 1840/84, 108/85. 4392/88 etc. be implemented at the earliest. Notice dated 5.8.2000 was not complied with and, therefore, AMC was authorised to remove the offending structure and portions put contrary to the terms of licence issued. Notice issued to the petitioner clearly refers to the order passed by City Civil Court at Ahmedabad and AMC was given liberty to remove encroachment and illegal construction or sheds by issuing notice. AMC issued clear notice indicating that the petitioner is required to remove unauthorised encroachment within a period of 10 days and to restore the site in question to the original situation prevailing at the time of issuance of licence. It is clearly indicated in the notice that non-compliance of notice may bring to any action in accordance with law. (iii) It is the say of AMC that in view of the fact that petitioner had failed to remove illegal construction made on the site in question and the encroachment made thereon, AMC, with a view to implement directions issued by this Court and with a view to implement the scheme, has removed the structure in question and has taken steps to cancel the licence for breach of conditions of licence. On failure to comply with the notice served by the Corporation, said action is taken and it cannot be said that action is high-handed or illegal or in violation of the principles of natural justice. AMC has produced certain photographs in support of its say and it is contended that the offending structure and encroachment which was made by the petitioner and others on both the sides of the public street-road, is on the footpath and public street which is very much part of non-hawking zone declared under the scheme. There cannot be exception in view of the scheme framed and approved by the High Court and the Apex Court with certain observations as stated above. According to AMC, this is a case of breach of condition nos. 2, 4, 12, 18 & 20 of the licence and, therefore, as per condition no.23 of licence issued in favour of the petitioner and others, steps for cancellation of licence were taken. 8(i) Learned counsel appearing for the parties have taken us through the relevant case law by referring various judgments of this Court and the Apex Court. Mr. Mihir Joshi, learned counsel appearing for the petitioners has placed reliance on certain judgments of other High Courts also. Considering the nature of relief prayed by the petitioner in the back ground of the facts narrated in the petition, even if we think to lean in favour of the petitioner and other larri owners who have filed the petition, within the robe of equity and law, it cannot be done. This is not a case of removal of legal or authorised construction nor of a action without notice. It can technically be argued that there is no specific notice for cancellation of licence or the total removal of larri-gallas from the area. Case of the petitioner, of course, is confined to technicality for himself, but indirectly, he represents each person whose offending structure has been removed and/or licences are cancelled. Notice produced by the petitioner dated 5.8.2000 shows that an opportunity was afforded by the Corporation to the petitioner and by referring the order of City Civil Court, AMC had asked the petitioner to remove the offending construction and to restore the position on the day on which licence was issued. Careful reading of each paper available on record and on perusal of the photographs produced by the Corporation before us, we are not convinced that so-called offending structure was pulled down by the petitioner on 12.9.2000 himself and by other larriwalas possessing licence. Resolution of AMC passed in the year 1977-78 and 1982-83 and the decision to issue NOC facilitating them to obtain electric connection in the year 1992 is not much relevant, considering the point at issue before us. Ahmedabad has grown in each corner by leaps and bounds and, therefore, litigation concerning larri-gallawalas and pitch vendors has reached to the door steps of this Court on various occasions. Though it is contended that in the year 1982-83, AMC was to put up a permanent structure of various shops in Law Garden area in line with the structure put up near Kankaria lake at Maninagar and some resolutions were passed by the Corporation in this regard according to the petitioner, but he has not produced any such resolution. On the contrary, with the development of traffic and density of the area, it seems that the Corporation imposed certain stringent conditions as admitted and accepted by the petitioner in para-7 of the petition and, therefore only,