1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 163 OF 2009 1. Budhwarpeth Vyapari Manch through its President, Shri Gautam V. Kolvekar, Son of Vinayak D. Kolvekar, age 30 years, unmarried, business, r/o. H.No.156/11, Near Vithoba Temple, Upper Bazar, Ponda, Goa. 2. Mr. Gharu Kashinath Sawant Son of Kashinath Gharu Sawant, age 44 years, married, business, r/o. H. No.223, Jaidwada- Khandola, Post. Marcel-Goa. .. Petitioners Versus 1. The Ponda Municipal Council, with office at Ponda Municipal Building, Ponda, Goa. 2. Goa State Urban Development Agency through its member Secretary Patto, Panaji-Goa. 3. Government of Goa, Through Secretary Urban Development, Secretariat, Porvorim, Goa. 4. Director, Directorate of Municipal Administration Collectorate Building, Panaji, Goa. .. Respondents. Mr. J.E. Coelho Perreira, Senior Advocate with Mr. Amey Phadte, Advocate for the petitioners. Mr. N. Sardessai, Advocate for the respondent No.1. 2 Mr. Vivek Rodrigues, Additional Government Advocate for the respondent Nos.2 to 4. CORAM :- S. B. DESHMUKH & U. D. SALVI, JJ. DATE : 23 nd July, 2009 . ORAL JUDGMENT : (PER S. B. DESHMUKH,J.) 1. We have heard the Senior Advocate for the petitioners, the learned Counsel Mr. N. Sardessai for respondent No.1, the learned Additional Government Advocate for the respondent Nos.2,3 and 4. 2. Rule, made returnable forthwith. The learned Counsel for the respondents, waive rule notice. By consent of the parties, through their respective learned Counsel, we have heard the petition finally. 3. The first petitioner, is a 'Society' registered under the provisions of Societies Registration Act 1860. The first petitioner 'Society', is formed, with an object to provide financial help for children of poor, raise funds and to protect the interest of the first petitioner as also to extend the help to members of society and for helping their legal rights and 3 avail legal facilities provided by the State Government for the benefit of the members. The 93 members of the petitioner No.1, allegedly, are all vendors/ stall owners/ traders of Budhwarpeth Market (hereinafter referred to as 'market' for short). The petitioner No.2 is stated to be the citizen of India and is a vendor or trader in the market. The apprehension has been expressed by the petitioners in para 4 that the members of the first petitioner, are sought to be displaced from the existing premises by the respondent Nos. 1 and 2. According to the petitioners, the market has been established and set up prior to the liberation of the State of Goa i.e. prior to December, 1961 and existed in locality for more than 100 years. It is pleaded in para 5 of the petition that earlier 'CAMARA Municipal de Ponda' was being controlled by the respondent No.1. The market in question, is indisputably situate within the limits of the erstwhile 'CAMARA Municipal de Ponda'. Goa Municipalities Act, 1968 (hereinafter referred to as Act of 1968), indisputably extends to whole of the State of Goa. Section 2(27) of the Act, 1968, defines “Municipal area” meaning thereby any local area declared or deemed to be declared as Municipal area by or under this Act. The word 'Market' is also defined under Section 2(25) of the Act,1968. It provides that 'Market' 4 includes for place where persons assemble for the sale of, or for the purpose of exposing for sale, live-stock or food for live-stock or meat, fish, fruits, vegetables, drinks, animals intended for human food or any other articles of human foods whatsoever with or without the consent of the owner of such place, notwithstanding there may be no common regulation of concourse of buyers and sellers or whether or not any control is exercised over the business of or the persons frequenting the market by the owner of the place or any other person. The Budhwarpeth market, is situate within the municipal area of Ponda Municipal Council, which came into existence or took over from erstwhile 'CAMARA Municipal de Ponda' after enactment of Act, 1968. It has been also pleaded by the petitioners that initially, the market was consisting of two places along with main road and third one was added subsequently. These two places, according to the petitioners, consisted of shops, which are leased/tenanted by the respondent No.1 to the traders. These two places are single storied buildings having 35 shops at the ground floor, is the contention raised by the petitioners in para 6 of the petition. According to them, third place, was built in the year 1965, consists of ground floor and the first floor. There are eight shops tenanted to various tenants on the ground floor 5 and there are four flats on the first floor and three are tenanted or let out to the tenants and one flat is retained by the respondent No.1 for its own use. The land whereupon the market is set up and established, it has been pleaded in para 7 that, is owned by the respondent No.1. According to the contentions raised by the petitioners, the members of the petitioner No.1 and the petitioner No.2 themselves are the vendors/ stall owners carrying on their respective business activities for their livelihood and for subsistence of their families. It is contended by the petitioners in para 7 that stalls, of which the members of the petitioners and the petitioner No.2 are the owners are having fixed places marked and allotted by the respondent No.1 within the market area in respective sheds and Annexure C is the copy of the plan produced on record depicting building of market area. It has been further pleaded in para 9 that the members of the petitioner No.1 Society are mainly selling ready made garments and/or toys, groceries, bangles, household utensils including tailoring shops, fruit and vegetable shops. The facility of electricity supply, is made available and some members of the petitioner No.1 Society, according to the petitioners, have 6 their own separate electricity connections for their respective stalls. Such pleadings are raised in para 9 of the petition. They have contended that the respondent No.1 has leased by private contract, the right to collect fees or rents imposed by the respondent No.1 under Section 257 of the Act, 1968. A categorical statement is made in para 11 that the members of the petitioner No.1 are regularly paying fees to the person, collector of such fees for the respondent No.1. According to the petitioners, the respondent No.1 had been leasing the right to collect market fee from time to time. The receipts of stallage/ stallage charges of rent, according to the petitioners, have been produced along with the petition. In Para 12 and 13, reference to the resolution of the respondent No.1 Council, for providing better amenities to Ponda town somewhere in the year 2005, is made. By this resolution, it has been resolved to construct proposed market complex. 4. According to the petitioners, the market in question, situates in an area of about 7200 square meters within the limits of the property bearing Survey No.158/12 of Ponda Taluka. Adjoining land Survey No.168/1, according to the petitioners, has been acquired by the respondent No.1, however, is low lying and is separated from the market area, 7 by a nullah having four meters depth. It has been further pleaded in para 15 that Ponda town does not have a public sewage system. The area of the acquired land Survey No.168/1 admeasures 4225 square meters. The proposed market complex, designed by the respondent No.1, is described in para 16 of the petition. Grievance is raised in para 18 that the project of proposed market as designed by the respondent No.1, was not conceptualized to accommodate the members of the petitioner No.1. The request for rehabilitation of the members of the petitioner No.1, was taken up with the respondent No.2 somewhere in the year 2007 by the respondent No.1 for the purpose, to enable the respondent No.2 to get the vacant possession of site, by evicting the members of the petitioner No.1 from the respective stalls. Such eviction was intended to commence development of the market complex. In para 19, it has been pleaded that the respondents decided that the members of the petitioner No.1 temporarily accommodated in the land Survey No.168/1. The members of the petitioner No.1, were given an understanding that the rehabilitation, in land Survey No.168/1 was temporary rehabilitation and or accommodation of the members of the petitioner No.1 in the said market area was for temporary period. The members of 8 the petitioner No.1 felt that site chosen for temporary rehabilitation i.e. Survey No.168/1 by the respondent No.1 was not suitable to carrying on their trade and the said plot lacked proper access and was situated at a low level of ground and was experiencing water clogging during monsoon and they also felt that it has been inconvenient to the public require to frequent the market. Along with this, they apprehended that the stalls of the petitioners, were facing danger of being submerged. 5. The members of the petitioner No.1 agitated their displacement from the place where they were carrying out business activities as stall owners/ vendors/ traders. In substance, they were agitating for their temporary rehabilitation in the property bearing Survey No.168/1. The petitioners have made a statement in para 23 of the petition that despite their objection, the respondents have erected the sheds and platforms in an uneven terrain and kept said sheds ready to accommodate the members of the petitioner No.1 under the pretext of temporary rehabilitation of the members of the petitioner No.1. The photographs annexure D are placed on record along with the petition. It has been further pleaded in para 25 that planning at the hands of the 9 respondent No.1 apparently seen for market, for the shopping complex at the costs of the displacement of the members of the petitioner No.1. The petitioners have also pleaded that the members of the petitioner No.1 society, have right guaranteed under Article 19(1)(g) and Article 21 of the Constitution of India. The petitioners thus, urged this Court to grant relief to them in this petition under Articles, 19(1)(g), 21, 226 and 227 of the Constitution of India. 6. The petitioners have prayed for issuance of writ of mandamus or any other writ directions, against the respondent Nos. 1 and 2, to rehabilitate the members of the petitioner No.1 by way of temporary rehabilitation in the market with all necessary and adequate amenities to carry on their business. This petition seems to have been filed by the petitioner on March 2, 2009. The petition was taken up for admission before this Court on 6.7.2009. After hearing the Counsel for the respective parties, on 6.7.2009, this Court permitted the parties to file pleadings. Deeming completion of the pleadings is also contemplated by this order passed on 6.7.2009. It is necessary at this juncture to notice that the order was passed on 29.4.2009 directing the parties to maintain status-quo as of that date till next date of hearing. 10 This ad interim relief, in the facts and circumstances of the case, was/is continued till this date. 7. On behalf of the petitioners, learned Senior Advocate, urged that the petitioners are carrying on business activities, in the market and are the owners of the stalls. The petitioners, i.e. the members of the petitioner No.1 and the petitioner No.2, have a right to carry on any trade, business, occupation. Trading or business activity, which is being carried on by the members of the petitioner No.1 in the market, is the only source of livelihood of the petitioners and their respective families. The members of the petitioner No.1, are carrying on such business activity in the market since about 25 years. In substance, it has been argued that the petitioners are not hawkers. A nature of the business carried on by the members of the petitioner No.1, cannot be equated to the hawkers. The Counsel for the petitioner has pointed out photographs produced on record. According to the learned Senior Advocate, these photographs do depict the existence of the stall and various objects, articles exposed for sale. If two are considered together, the persons or members of the petitioner No.1 Society cannot be said to be hawkers. It is beyond imagination, according to the Senior 11 Counsel, that such objects and articles can be brought to the stalls every day morning by the members of the petitioner No.1 Society and taken back in the evening. The learned Senior Counsel has also invited our attention to the meaning of the word 'Hawker'. Aid of Shorter Oxford English dictionary is sought for that purpose. There, the meaning of the word 'Hawker' is given as 'a man, who goes from place to place selling his wares, or who carried them in the street.' 'Stall' means a bench, table, board or the like especially one in front of shop upon which the goods are exposed for sale; booth or covered stand for the sale of wares at the market, fair or in the open street. This is one of the meaning of word 'Stall' pointed out by the learned Senior Counsel from Shorter Oxford English Dictionary. In the context of words 'Hawker' and 'Stall' and to emphasis the submission on behalf of the petitioners, the learned Senior Advocate also took us to page No.36, i.e. Annexure D of the petition. Page 36 containing the photographs, wherein objects and articles which are exposed for sale, are shown. From these photographs, one of the photograph on page 36 it does appear that some garments or clothes are kept / exposed for sale and a person is sitting nearby the objects. Another photograph from page 36, clearly shows the cold drinks put 12 for sale. Pointing out photographs at page 37, it is contended that first photograph shows the various utensils have been showcased. Photograph second at page 37, according to the petitioners, depicts that stack of chilli, is put for sale. Same is the position in the photograph No.3 at page 37. Those stacks of chilli are put on the platform. According to the learned Senior Counsel, if these photographs are considered in the context of the word hawker, it cannot be said that the members of the petitioner No.1, are hawkers. He submitted that these are the stalls containing various objects/ goods/ wares, innumerable in number, exposed for sale. In fact, according to him, these are the stalls in occupation and physical possession of the members of the petitioner No.1. The shops are totally within the control of the respective members of the petitioner No.1 Society. The learned Senior Counsel for the petitioner, therefore, submitted that members of the petitioner No.1 society, cannot be called as hawkers, in fact, they cannot be equated with the activity of hawker. He submitted that they are the stall owners, businessmen carrying on their respective business for subsistence and maintenance of their respective families and are entitled for protection under Article 19(1)(g) of the Constitution of India. 13 8. The learned Senior Advocate pointed out Section 251 of the Act of 1968. According to the learned Senior Counsel for the petitioners, the power is vested with the respondent No.1 to construct, to purchase, to take on lease or otherwise acquire any building or land for the purpose of establishing a municipal market or slaughter house etc. and such stalls, shops, sheds, pens and other buildings for the use of the persons carrying trade or business in, or frequenting, such municipal markets and provide and maintain such municipal market such machines, weighs, scales and measures for weighing and measuring the goods sold therein as the Council thinks fit. The learned Senior Advocate submits that in fact, it is the statutory duty cast upon the respondent No.1 municipal Council to make available such stalls, shops in the market area for the persons carrying on business or trade activity. The Counsel for the petitioners drew our attention to Section 257 of the Act 1968. Levy of the stallages, rents and fees, is the provision made under Section 257 of the Act,1968. It has been provided that the Council may charge such stallages, rents or fees as may from time to time to be fixed by it in this behalf. The learned Advocate for the petitioner, has more specifically pointed out 14 Section 257(1)(a)(ii), which provides that stallages – charges may be fixed by the Council for the right to expose articles for sale in a Municipal market. In substance, according to the learned Senior Counsel for the petitioners, Section 251(1) imposes a duty upon the Council to make available market/ stall in the market, to the persons carrying on any trade, business etc. Such persons carrying on business or any trade in such stall, situate in the market area, has a right of user of such stall to expose articles for sale in a Municipal market. According to the Senior Advocate for the petitioners, conjoint reading of Section 251(1) with Section 257, confers a right on the members of the petitioner, to run or carry on their business in the premises or stall. In the case on hand, the stalls allegedly situate in the market. He further submits that the members of the petitioner No.1 Society, regularly, are making payment of such stallages, charged by the respondent No.1. 9. In support of the pleadings of the petitioners, the learned Counsel for the petitioners, pointed out affidavits filed on behalf of the petitioners. One of the affidavits of Mr.Gaurish Kolvekar (page 93),makes reference to the collection of 'sopo'. According to the learned Counsel for the 15 petitioners, stallage is being paid by the members of the petitioner No.1 Society, regularly, for the use and occupation of the respective stalls, in possession of the members of the petitioner No.1 Society. The Counsel for the respondent has also filed reply affidavit wherein the collection of 'sopo' is being referred. 'Sopo', is a word, seems to have been derived by the Municipal Council from the Regional language i.e. 'Konkani'. We have referred to the dictionary (Rajhans Konkani English Dictionary). The dictionary meaning of word 'sopo', is (i) seat (ii) collection of rent for a site in a Municipal market. The second meaning given in this dictionary is 'collection of rent for a site in a municipal market', seems to be more appropriate in the facts and circumstances of the case on hand. In other words, 'sopo' can be called as sopo tax to be levied and collected, by the Municipal Council i.e. the respondent No.1 in view of the provisions of the Act, 1968. This affidavit of Mr. Gaurish, mentions that he was conferred a tender or authorisation for specific period by the respondent No.1 Municipal Council for collection of 'sopo' (sopo tax). In para No.1 of this affidavit, it has been averred that Mr. Gaurish was collecting the 'sopo' for and on behalf of the respondent No.1 for the last 32 months and prior to that in the year 2002. It has been pointed out from this 16 affidavit that Mr. Gaurish was frequenting market every day, for collection of 'sopo' and knows the members of the first petitioner as well as the petitioner No.2 himself. He has made a statement on oath in para 2 of this affidavit that the members of the petitioner No.1 Society are traders, operating in Ponda municipal market, selling ready made garments, bangles, utensils, spices, stationary items etc. and have been occupying the stalls in the market area covered with asbestos. A categorical sentence is pointed out to us which we are reproducing herein “they have sort of fixed kiosks with arrangements to close and open the same with a door”. End of para 2, the affiant states that they have been occupying the said area for number of years, though they used to pay fee on daily basis. In para 3 of this affidavit, affiant states that as a collector of Hawker's fee, he was collecting stallages, charges from the members of the petitioner No.1. All of them were there all the time at fixed places. Apart from his status as a 'sopo' collector, further statement is made in para 3 that he has seen the members of the first petitioner society at the respective places selling their goods for the last 20 years. Thus, to support the pleadings of the petitioners that they are operating in the market, possessing respective stalls at the respective places 17 with specific area, this affidavit of Mr. Gaurish is pointed out to us. According to the learned Senior Counsel for the petitioners, the affidavit of this Gaurish has well supported the contentions and the pleadings of the petitioners. Another affidavit on behalf of the petitioners pointed out to us, is of Mr. Tulshidas Naik (page 96 of the petition). This person Mr. Naik claims to be a trader selling coconuts and vegetables in the market since 12 years prior to filing of this affidavit. He has made a statement that he is sitting at the hawkers zone in the open where the other vendors of fruits, vegetables sat for the business activity. In para 2, Mr. Naik states that the members of the first petitioner including the second petitioner has covered place in the market with fixed stalls. They have built- in kiosks with arrangement for locking their respective kiosks at night. This affiant claims to be a hawker and, therefore, in para 4 of the affidavit, states that he is attending the market on daily basis. In the morning, he used to come to the market with his goods and night, returns to his residence. He further states that same is the practise followed by the other vendors in the market. Third affidavit on behalf of the petitioners is of Mr. Gokuldas Narayan Mamlekar (page 100), a person claiming to be a vendor in the market last about 35 years. He claimed that he was holding 18 a kiosks in the market, which was used for selling coconuts, fruits and cigarettes and paid stallage tax till the year 1989. According to him, in the year 1989 under the garb of road widening, his kiosks was removed on the promise of rehabilitation, by the respondent No.1. According to him, he was not having any option but to become daily vendor and, therefore, since then, he is selling his goods i.e. coconuts and fruits at the said hawker's zone. In para 3 of this affidavit, the affiant Mr. Gokuldas has made a statement that 15 days back with the help of police, all vendors of perishable commodities sitting in the open area covered by tarpaulin, were shifted to the Hawker's zone where inadequate space on the platform is made available to them i.e. for keeping their goods and selling their goods. Fourth is affidavit of Mr. Kashinath Porobo, (page 103), who claims to be a vendor in market since about 8 years. In para 2 of his affidavit, he testifies that the vendors were displaced from the existing places forcefully with the help of police and were lodged in a place, which is inadequate. In para 6 of the affidavit, affiant states that he knows the members of the first petitioner and all of them have fixed stalls in the market under a covered shed, which existed for number of years i.e. for about 25 years. 19 10. Apart from the pleadings and material brought in support of the case pleaded by the petitioners, the learned Senior Advocate, has also pointed out the affidavit in reply filed on behalf of the respondent No.1 Municipal Council (page 44) (affidavit of Mr. Jayant Tari, Chief Officer). The learned Senior Counsel pointed out in para 3(b) of this affidavit. The grievance is raised on the basis of the pleadings of the reply affidavit, that the members of the petitioner No.1 Society are tried to be equated with the hawkers illegally. Para 4 of this affidavit, is also commented upon by the Advocate for the petitioners. There it has been stated by the affiant