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Judgment
A.P. Ravani, J.—This review application arises out of an order dated April 29, 1988 dismissing Appeal From Order No. 41 of 1988 and other allied matters. The applicants filed a civil suit in the City Civil Court. Ahmedabad challenging the legality and validity of the operation of the Scheme framed by the Commissioner, Ahmedabad Municipal Corporation and removing the applicants from their places where they are carrying on business on pavements, foot-paths and other public places. The applicants-plaintiffs had taken out a notice of motion for interim relief praying that pending the hearing and final decision of the suit, the respondents be restrained from removing the applicants from the places where they are carrying on their business on pavements, footpaths and other places. The notice of motion has been dismissed by trial Court. Appeal From Order against that order has also been dismissed by me as per order dated April, 29, 1988. This application is for review of the order dismissing the aforesaid Appeal From Order and other allied matters.
The learned Counsel for the applicants submitted that no reason whatsoever is assigned while dismissing the appeal from order and therefore it is difficult for the applicants to carry the matter further. My attention is drawn to the Supreme Court decision in the case of Kamleshbhcti Chimanbhai Patel and Ors v. Vijaykumar Parshotiambhai Patel and Anr. Special Leave to Appeal No. 4418 of 1988 decided on May 19, 1988, wherein the order passed by this Court dismissing Appeal From Order No. 353 of 1987 on, 27-12-1987 has been set aside on the ground that appeal has been decided by this Court without assigning any reason and the matter has been remanded for deciding the same on merits. The learned Counsel for the applicants further submitted that the respondent-authorities are publicly announcing that there is direction of this High Court and that of the Supreme Court to the effect that the petitioners and other similarly situated persons be removed from the places occupied by them. It is contended that though there is no such direction or observation by this High Court or the Supreme Court. the action is sought to be justified as if it is pursuant to judicial command. Therefore, this position is also required to be clarified.
The learned Counsel for the respondents submitted that against the order under review SLP is filed by the petitioners before the Supreme Court and therefore review is not maintainable and this Court has no jurisdiction to entertain the review application so long as the SLP is pending. He has further submitted that the decision of the Supreme Court in the SLP referred to herein above is confined to the facts of that particular case and the decision does not lay down any principle of universal applicability Therefore he submitted that the review application should be rejected
The learned Counsel for the respondent-corporation fairly conceded that there is no order, observation or direction in any of the judgments of the Supreme Court or of this High Court in the order under review to the effect that the petitioners should be removed from the places occupied by them. On this point, the position is abundantly clear. There is no such judicial direction ordering the respondent-corporation or for that matter any executive authority to remove the applicants from the places occupied by them. It is not understood as to why despite this clear position, public pronouncements are made by the respondent office bearers of the respondent-Municipal Corporation and sometimes even by the State Government officers, to the effect that there is direction by this High Court and/or by the Supreme Court that the larry gallas and pavement dwellers be removed from the places occupied by them. If the executive authorities feel like taking action of removal of larry gallas either on account of the assumed or real accountability to the statutory duties or on account of public pressure or for the purposes of catering to the clamours of vociferous section of the society, they may do so of their own. They may rather they should justify their action on the basis of factual data available to them. But it is against the basic canons of public administration and it is very much unfair to the judiciary to say that there are judgments and orders of this High Court and that of the Supreme Court and persuant therefore, they are taking such actions. They must be frank with the people. They must have the courage and frankness to tell the people that their action had the roots in their honest belief and they were not compelled to take such action on account of compulsion arising out of Court orders. There is no mandate from any Court directing the respondent-authorities to remove larry gallas and other such persons from the public streets, pavements and foot-paths. The executive authorities must allow their actions to be judged in Peoples Court without taking sheller or umbrage behind order of law Courts which in reality do not exist.
On the contrary, there is a decision of this High Court in the cast- of Surat Municipal Corporation Vs. Rameshchandra Shantilal Parikh and Others, wherein the direction given by the trial Court IO Sural Municipal Corporation to remove the hutment dwellers has been quashed and set aside. It is further held therein that such direction was not justified. Threfore, public pronouncements that there is a command from this High Court or from the Supreme Court for removal of larry gallaualias are likely to create wrong impression about the judicial decisions At least amongst members of the sizeable section of the population of this country, such misleading statements may lower down the prestige and image of judiciary or at any rate, it would create an impression which is not based on facts existing. If the actions (of removal and demolition) are laudable and praise worthy, why (be executive does not take credit for the same? Apart from the legal issues involved, in democracy it is right of the citizens to be informed about the correct facts so that they can judge the issues on merits. Why prevent the people to judge the executive action (of removal and demolition drive) on its own merits? Why take shelter behind Courts orders which in reality do not exist? One may pose questions; Politically is it not undemocratic? Ethically is it not immoral? Legally is it not impermissible? Better 1 may leave these questions to be answered by executive officers themselves.
It is contended that the SLP is pending for admission before the Supreme Court against the order in review and therefore review application is not maintainable. In support of the aforesaid contention, except the forceful assertion, no provision of law is pointed out nor any binding decision of this High Court or that of the Supreme Court is pointed out to me. There is nothing in law to suggest that review application becomes non-maintainable once the matter is carried before the superior forum and it is pending for admission. Had the SLP been admitted and had it been pending thereafter position might have been different. In that case also review would not become non-maintainable, but different considerations may arise. However such is not case before me. I see no merit in this contention and hence the same is rejected.
It is correct to say that the decision of the Supreme Court in the SLP of Kamleshbhai Chimanlal Patel (supra) by which the order passed by this Court dismissing the appeal from order without assigning any reason has been set aside and the matter is remanded to this Court, confines to the facts and circumstances of that particular case. It does not appear that any principle of universal applicability has been laid down by the Supreme Court. However, in the special facts and circumstances of the case, to avoid any misunderstanding and to enable the applicants to understand the order dismissing appeal from order in its proper perspective, they may request for the reasons in support of the order. Such reasons are by necessarv implication mentioned in my order under review. This aspect may be examined little- elaborately.
The relevant part of the order under review reads as follows:
Having heard the learned Counsels for the parties at length and having given my anxious consideration to the problem posed before the Court, despite almost sympathy for the hawkers, larry-walas and other petty businessmen doing their business on payments, toot-path and at other public places, on account of the limited scope in these proceedings, there is no other way but to dismiss all these appeals from orders.
In the aforesaid sentence, the underlined part "on account of the limited scope in these proceedings" indicate the reasons as to why 1 had to dismiss the appeals.
In all these matters, it was argued by the learned Counsel for the respondent-Municipal Corporation that the scope of the proceedings before the Court was very limited. The matters came up before the Court by way of appeal from order and not by way of writ petitions. Therefore, the frame work within which the question can be raised was essentially decided by the width of pleadings before the trial Court and by the questions raised and decided by the trial Court. 1 was not dealing with Special Civil Application filed before this High Court. In the facts of the case the scope of the matters before me (i.e. Appeal From Orders) was very much limited as indicated hereinabove. That is the main reason why despite certain points which were argued by the learned Counsels for the appellants, 1 have not dealt with the same.
During the course of arguments, it was sought to be contended that as far as the right of hawkers, larry-gallawalas and petty businessmen carrying on their business on foot-paths and pavements is concerned, the question has been decided by the Supreme Court finally in the case of Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, . But as regards the procedure to be adopted for removing the petitioners and other like persons, the respondents were not free to adopt unjust, unfair arbitrary and/or unreasonable procedure. The procedure that may be adopted for removing the hawkers, larry-gallawalas and petty businessmen must confirm to certain norms and standards consistent with basis principles of justice and fair play. They cannot act in arbitrary and discriminatory manner. Wherever it is not impossible, fundamental principle of natural justice in the shape of affording an opportunity of being heard must be followed. In each case, wherever it is not possible to comply with this minimum principle of natural justice, reasons for dispensing with the same must be mentioned and one who asserts such impossibility must justify its action and satisfy the Court as to why he could not or would not comply with the principles of natural justice.
10-A. In the case of Olga Tellis (supra), the Supreme Court has upheld the constitutional validity of Section 314 of Bombay Provincial Municipal Corporations Act not on the ground that as a general rule, principles of natural justice (here the other side) could be dispensed wnh but on the ground that Section 314 of the Bombay Provincial Municipal Corporations Act was designed to exclude the principles of naiural justice by way of exception only and not as a general rule. It could only be in exceptional circumstances that the departure from a general role regulating all procedure that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken, is permissible. That departure from the aforesaid fundamental rule can be made only if circumstances warrant such departure. Such circumstances must be shown to exist, when so required, the harden being upon those who affirm their existence. It is the aforesaid decision of the Supreme Court which necessitates that whenever there is departure from the aforesaid fundamental rule, the Municipal Commissioner must justify his action. Failure to justify the action in contravention of the fundamental rule of principles of natural justice, may impell the Court to issue appropriate direction including the restoration of status qua ante or payment of suitable compensation so that a citizen who has been adversely affected otherwise than in due course of law may not suffer the pangs of injustice. It was rightly argued that simply because in one or two cases in past, this High Court held that there was justification for dispensing with the observance of principles of natural justice, it cannot be said that the Court has given permanent licence for making departure from observance of principles of natural justice. If one reads and understands the judgments of this High Court in that fashion it would amount to over ruling the Supreme Court decisions by this High Court. Such absured way of reading the judgment of this High Court has got to be avoided.
Even while launching drive for removing the applicants and such other persons from public places, the order of priority should be determined in just, fair and reasonable manner. Removal-drive should not be started indiscriminately and in unreasonable manner. It should be free from the vice of partiality. It should be determined as to from where the larry gallawalas and such other persons are required to be removed first. Priority should be determined on the basis of some rational and intelligible criteria such as comparative hardships to the pedestrains and the general public and also to the larry galla-walasi arid other like persons. While launching the drive for removal, places where hardships to the pedestrians and general public is uttmos and where it might have become compelling necessity to remove the larry gallawalas, cabin-holders and such other persons, they may be touched first and that too in confirmity with the just, fair and reasonable procedure. The localities where the hardship may be in the form of slight inconvenience which is likely to be the case in posh residential areas or outskirts of the city or other developing market areas, need not and may not be touched at all or at any rate in the initial stages of the drive they can be left untouched.
It was also indicated That reasonable procedure for accommodating the displaced persons at the places where the scheme permits larry gallas should be determined first, otherwise from amongst the displaced persons the realh needy and affected persons would be deprived of their livelihood while it may be that favourites and/or new underserving persons mighi be inducted in the place where schemes permit larry gallas. In this connection, it may be pointed out that the basis for allotment of licence places and the scheme should be determined in advance and made known to the public. One may mention that for alternative accommodation, whatever and whenever to be made, the criterion for allotment of place should be determined and published well in advance: one such criterion may be "First removed, first to get the new place".
During the course of discussion, it also transpired that as far as possible, there should be no removal and even if removal of petitioners and others similarly situated is to be affected, it should be effected in such a way that it may cause least possible inconvenience and proper safeguards for the safe removal and thereafter for preservation and protection of the property should be made and observed. It must be realised that the hawkers, hutment dwellers and such other persons are not criminals. They are not committing any criminal offence when they encroach upon the part of the public street or public places. At the most, these are "involuntary acts". They are compelled by inevitable circumstances and not guided by choice. Thus, at best, it is a civil trespass and trespass is a tort. Even a trespasser is entitled to reasonable notice and minimum force is to be used while removing him. This is so held by the Supreme Court in the case of Olga Tellis (supra).
It is evident that the aforesaid considerations arise out of the decision of this High Court in the case of Nehru Marg Cabin Association, reported in [1988 (1)] XXIX (1) GLR 441 and out of the decision of the Supreme Court in the case of Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, and also on account of certain constitutional provisions. The learned Counsel for the respondent-Municipal Corporation had pointed out a Division Bench judgment of this High Court. According to the learned Counsel for the respondents, the aforesaid points were concluded and now it was not open to the petitioners to raise the same again. However, prima facie, 1 was not inclined to agree with the submission made by the learned Counsel for the respondents. Even after the Division Bench judgment of this High Court referred to by the learned Counsel for the respondents, the question as regards just, fair and reasonable procedure to be adopted by the respondent authorities while taking action of removal of larry gallawallas, cabin holders and such other persons from public places does remain open. This is so because of the fact as to whether the action taken confirms with the just, fair and reasonable procedure or not is essentially a question of fact which is to be decided by examining the facts of each case. This was my opinion. But I did not go into the question because as indicated in my order. I was dealing with Appeal from Order, in the facts and circumstances of the case, on account of the limitations of the proceedings and particularly in view of the fact that no such contentions were raised in the pleadings of the parties or at the time of hearing before the trial Court, I felt rather helpless. Therefore, in these proceedings, there was no other way but to dismiss the appeals from order.
However, in fairness to the learned Counsel for the respondent Municipal Corporation it must be stated that in due deference to the suggestions made by the Court as regards certain formalities to be observed before taking actual action of removal, he did not object to the same. 1 made certain observations as regards notice to be given and such other formalities to be adopted. Since I was dismissing the Appeal From Order and the scope of Appeal From Order was very limited, nothing more could be done except making observation and expressing certain hopes.
In above view of the matter, 1 do not think that the review can be allowed and order dismissing Appeal From Order summarily can be set aside.
In the result, the Review Application is rejected. Rule discharged.