Arignar Anna Bus Stand Small Scale Retail Trader's Association, Madurai vs Commissioner, Madurai Corporation

M.N. Chandurkar, C.J.—This appeal which arises against an interim order raises a question as to the nature of the right of certain persons

who utilise the premises of Anna Bus Stand at Madurai for doing their business in small mobile shops. The appeal itself has been argued at

considerable length and since any decision on the question as to whether the original petitioner was entitled to interim injunction or not would really

conclude the questions raised in the writ petition, with the consent of the learned counsel for the petitioner appellant and the learned Advocate

General who appears for the Municipal Corporation we are disposing of the writ petition itself.

Admittedly, at the Anna Bus stand and inside the actual Bus stand where the buses are parked and out of which the buses keep on coming and

going, members of the petitioner-appellant Association carry on their business of selling articles such as fruits, drinks and snacks. These articles are

kept on mobile platforms which are mounted on cycle wheels and the whole shop is thus a mobile one. The petitioner-appellant has styled itself as

Arignar Anna Bus Stand Small Scale Retail Traders Association.

The Association addressed a communication on 17-5-1983 to the Commissioner, Madurai Corporation, to the effect- ''we have been doing

business in small mobile shops at Anna Bus stand near collectorate''. They claimed not to be creating any nuisance and to he rendering services to

the commuters. They, therefore, asked for help from the Commissioner of the Madurai Corporation in order to prevent their being removed from

the premises. They also offered to pay reasonable daily rent to the Madurai Corporation. However, the Commissioner refused their request on the

ground that the Corporation was going to construct shops and lodging rooms at the bus stand. After the new bus stand came to be constructed,

the petitioner-appellant came to court with a grievance that by the order dated 13-6-1986, the Commissioner allotted 34 shops to new persons at

a monthly rent of Rs. 180 and by the same order, the permission granted to the existing shop owners i.e. the members of the petitioner association

came to be cancelled. A grievance is made that these allotments have been made without calling for any applications and that they have been made

mala fide in favour of the members of the All India Anna Dravida Munnetra Kazhagam. Apprehending that steps will be taken to evict the

members of the Association, a writ petition came to be filed. The spacious plea taken in the writ petition is that before eviction, the Corporation

should have served a notice to show cause to the actual occupants of the site and even trespassers could not be evicted without any notice. The

relief which was sought in the writ petition was the quashing of the order made on 15-6-1986 and a further direction was sought that places for

shops should be allotted to the members of the petitioner-Association.

This petition was admitted. Originally, an interim injunction was granted restraining the Corporation from evicting the members of the petitioner-

Association. Subsequently, however, this injunction was vacated as the learned Judge took the view that the persons in whose favour the injunction

was granted were unauthorised hawkers in the Municipal Bus Stand and the fact that they were subjected to levy of encroachment fees, as

admitted by the counsel for the petitioner, made it clear that the shop keepers were encroachers. The learned Judge found that it could not be

contended that wherever an encroachment upon a property belonging to Government or Municipality had taken place, such an encroachment

cannot be evicted. The learned Judge found that there was no question of issuing any notice and the members of the Association have no right to

hawk at any place. The interim injunction was. therefore, vacated. An appeal came to be filed against this order, it was admitted and interim stay

ex parte was granted.

The appeal came up for hearing before us for the stay matter. Virtually, the learned counsel for the appellant has argued the entire appeal and

the arguments substantially cover the question raised in the writ petition, namely, whether the members of the petitioner-Association could insist

upon continuing their encroachment irrespective of the absence of any right whatsoever to utilise the premises of the Municipal bus stand.

The sheet anchor of the arguments of the learned counsel for the petitioner-, appellant is the decision of the Supreme Court in the Bombay

Pavement Dwellers case in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, . The argument is that this decision of the

Supreme Court lays down that even trespassers have right to insisit on a notice to show cause as to why they should not be evicted from the

premises on which they have trespassed. Relying on that decision, the learned counsel contended that the only procedure which the Corporation

was entitled to invoke in order to evict the members of the petitioner-Association was the one which was prescribed in Tamil Nadu Public

Premises (Eviction of Unauthorised Occupants) Act, 1975 (Tamil Nadu Act I of 1976) (hereinafter called the Act). Our attention was invited to

the definition of ''public premises'' in S. 2(e)(2) where admittedly any premises belonging to, or vested in a local authority ''or any Board

constituted under any law is included in the definition of ''public premises''. Thus, the argument was that first of all a notice under S. 4 of the Act has

to be issued; then after an enquiry is made, eviction can be ordered only under S. 5 and that the trespassers or encroachers have a right of appeal

under S. 9. According to the learned counsel, unless this procedure is followed, there cannot be any eviction of the encroachers.

One of the contentions raised was that while the request of the members of the petitioner-Association for allotment of sites which are admittedly

available for being leased out to the hawkers was rejected, the Corporation has made available those sites to other persons without following any

procedure.

The learned Advocate General has contended that on the admission of the Association itself the business which has been carried on by the

present shop owners is in mobile shops, in the sense that these are platforms mounted on four cycle wheels and the whole platform is mobile; the

shop is taken away at night and brought back on the next morning. Some of the encroachers. are doing business by bringing head loads in baskets

to the premises and there was enough power in the Corporation which owns the property to prevent the business being carried on. Therefore

according to the learned Advocate General, there was no question of issuing any show cause notice, because admittedly all of them are

encroachers and they could always be prevented from making repeated encroachments.

At the very threshold, it has to be made clear that it is open to the Corporation like any other owner of private property to prevent

encroachment being made on its property. Prevention of encroachment and removal of encroachment are two different things and an owner of

property can always take preventive steps in order to prevent misuse of or encroachment on his property. Merely because a person has been

selling his wares at a particular spot or a particular place to which he has no right #r in respect of which no leave or licence has been granted to

him, no right is created in such person to repeat a wrongful act of encroachment or trespassing upon it every day. Therefore, if vendors or hawkers

come to the bus stand every day and bring their wares, the Corporation as owner of the bus stand premises can prevent such hawkers and

vendors from making an encroachment and from entering the bus stand for the purpose of selling their wares or articles.

A question which, however, arises in some cases where these four wheelers-stalls have been located at one place for a long time and were not

being moved every day in and out is as to whether by virtue of such user, any right accrue in favour of these vendors necessitating a fullfledged

quasi judicial enquiry into a non-existent right to continue on the premises by the issue of a show cause notice under S. 4 of the Act I of 1976 or

whether there is enough power under the provisions of the Madurai City Municipal Corporation Act, 197 1, which can be invoked by the

Corporation.

We are dealing with this matter at some length because recently there has been an increased tendency to encroach on public property and

when steps are taken to remove the encroachments a defence is taken that unless a regular proceeding is taken commencing with a notice to show

cause as to why encroachers or trespassers should not be evicted, the persons who have admittedly no right to be on the premises cannot be

evicted. It is often stated that this defence is founded on the decision of the Supreme Court in the Bombay pavement dwellers'' case referred to

above. Such a defence is now common whenever public authorities make an attempt to evict trespassers and encroachers from public property.

The question which, therefore, arises is whether a full-fledged quasi-judicial enquiry is necessary in a case where even an encroacher or

trespasser knows fully well that he '' has no manner of right whatsoever to be on the premises and that he is there on the premises as a result of

encroachment made by him on public property. We, therefore, propose to analyse the decision of the Supreme Court in the pavement dwellers''

case, referred to above. As we read the decision, we do not think that decision of the Supreme Court ever contemplated that in the case of rank

trespassers, there has to be a quasi-judicial enquiry with the incidence of a right of appeal under some statutory provisions when the person who is

sought to be evicted knows full well that he has no right to remain in the premises. One must appreciate the background of the decision of the

Supreme Court. In that case, the Supreme Court was dealing with peculiar problem of great magnitude. Pavement dwellers in Bombay number

about 3,50,000 most of them staying in an improvised accommodation on the foot paths of Bombay by putting small tarpaulin or polythene covers

on some bamboo sticks by way of shelter. In some cases, rear side of some buildings often formed one of the walls, of such a temporary structure.

In some cases, the pavement railings served as a convenient, place to support the temporary roof. The Bombay Pavement dwellers case was not a

case of one or two pavement dwellers being evicted. That case presented the C6urt with a human problem where the Corporation was taking

steps to evict these pavement dwellers who had spread out throughout the length and breadth of Bombay. They were admittedly people who had

come to Bombay not by their sweet choice to enjoy the colourful life of Bombay. They had made their way from the villages in the interior districts

to find some means of livelihood in the belief that Bombay can provide livelihood to any one who goes there. They had left their homes in villages

which did not provide them with sufficient opportunity to earn a livelihood. The observations made by the Supreme Court in the pavement

dwellers'' case have to be read in the light of these facts and even then it, is important to remember that while highlighting the necessity of some

notice, the Supreme Court found that there being no right in the pavement dwellers to occupy public property they were trespassers and would

have to be evicted. The decision also held that the notices in the case of trespassers were necessary so as to give some time to remove themselves

from the spots or places on which they had encroached.

The relevant provision under which the Bombay Corporation was claiming a right to evict the pavement dwellers was S. 314 of the Bombay

Municipal Corporation Act, 1888. That provision was as follows-

S. 314. Power to remove without notice anything erected, deposited or hawked in contravention of S. 312, 313 or 313-A.

The Commissioner may, without notice, cause to be removed -

(a) any wall, fence, rail, post, step, booth or other structure or fixture which shall be erected or set up in or upon any street, or upon or over any

channel, drain, well or tank contrary to the provisions of sub-s. (1) of S. 312, after the same comes into force in the city or in the suburbs, after the

date of the coming into force of the Bombay Municipal (Extension of Limits) Act, 1950 or in the extended suburbs after the date of the coming into

force of the Bombay Municipal further Extention of Limits and Schedule BBA (Amendment) Act, 1956;

(b) any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, attached, or suspended in,

upon from or to any place in contravention of sub-s. (1) of S. 313.

(c) any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of S. 313-A

and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale.

Referring to these provisions, the Supreme Court pointed out that the provisions which were clear and specific empowered the Municipal

Commissioner to cause to be removed encroachment of foot paths or pavements over which the public have a right of passage. The contention

raised on behalf of the petitioners in that case was that the procedure prescribed by S. 314 for the removal of encroachment from pavements are

arbitrary and unreasonable since not only it has not provided for the giving of a notice before the removal of an encroachment, but it expressly

provided that the Municipal Corporation may cause the encroachment to be removed without notice. The Supreme Court pointed out in the

context of dealing with the question as to whether the procedure prescribed by S. 314 could be regarded as unreasonable unfair or unjust that no

one has the right to make use of a public property for a private purpose without the requisite authorisation and therefore it is erroneous to contend

that the pavement dwellers have right to encroach upon pavements by constructing dwellings thereon. It is also important to point that the Supreme

Court has also held that such a person who encroach upon public property becomes a trespasser. In para 43 it was observed as follows-

But if a person puts any public property to a use which it is not intended and is not authorised so to use it. he becomes it trespasser.

It is true that while holding that S. 314 of the Bombay Municipal Corporation Act, enabled the Commissioner in appropriate, cases to dispense

with previous notice to persons who are likely to be affected by the proposed action, the Supreme Court pointed out that S. 314 cannot be read

to mean that in total disregard of the relevant circumstances pertaining to a given situation, the Commissioner must cause the removal of an

encroachment without issuing previous notice. Elaborating the scope of S. 314 the Supreme Court observed as follows-

It must further be presumed that, while vesting in the Commissioner the power to act without notice the Legislature intended that the power should

be exercised sparingly and in cases of urgency which brook no delay. In all other cases. no departure from the audi alteram partem rule (hear the

other side) could be presumed to have been intended. Section 314, is so designed to exclude the principles of natural justice by way of exception

and not its a general rule, There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time,

place, the apprehended danger and so on. The ordinary rule which regulates all procudure is 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. The hearing may be given individually

or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been

intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist when so required, the burden being

upon those A ho affirm their existence.

It is true that S. 314 of the Bombay Municipal Corporation Act was construed by the Supreme Court as requiring that a notice to remove the

encroachments was necessary. The Supreme Court in Para 46 also contemplated the possible defences to an action for removal of encroachment

from a public property. Those possible defences were specified as follows-

For example, in the common run of cases, a person may contend in answer to a notice under S. 314 that (i) there was in fact, no encroachment on

any public road, footpath or pavement or (ii) the encroachment was so slight and negligible as to cause no nuisance or inconvenience to other

members of the public or (iii) time may be granted for removal of the encroachment in view of humane considerations arising out of persona.1,

seasonal or other factors.

Having regard to these possible defences, the Supreme Court proceeded to observe that it would not be right to assume that the Commissioner

would reject these or similar other considerations without a careful application of mind. These possible defences are however not relevant in the

present case where the petitioners have encroached on the premises to be used as bus stand.

The above observations will therefore show that in a matter like the present one when admittedly the members of the petitioner association

have no manner of right to be on public property, they are clearly trespassers and the only notice which is necessary on the facts of the present

case is a notice to remove themselves from public property.

The Supreme Court dealt with the rights of trespassers under the Law of Torts, in the following observations made in the Pavement Dweller

case. The Supreme Court observed -

But, even the Law of Torts requires that though a trespasser may be evicted forcibly, the force used must be no greater than what is reasonable

and appropriate to the occasion and what is even more important ''the trespasser should be asked and given a reasonable opportunity to depart

before force is used to expel him'' (see Ramaswami Iyer''s Law of Torts, 7th Edn., by Justice and Mrs. S. K. Desai, page 98, para 4 1). Besides,

under the La w of Torts, necessity is a plausible defence, which enables a person to escape liability on the ground that the acts complained of are

necessary to prevent greater damage, inter alia, to himself. Here, as elsewhere, in the Law of Torts, a balance has to be struck between competing

sets of rules .....(see Salamond and Heuston''s Law of Torts, 18th Edn., Chap. 2 1, page 463, Art. 185 - ''necessity'').

The above observations of the Supreme Court in our view clearly recognise the fact that the trespasser''s can be evicted by the use of force but

only limit the force to what is reasonable and appropriate to the occasion. It does not appear to us that it was ever intended by this decision to

provide a handle to rank trespassers to continue to encroach on the public property on which they have trespassed. All that was intended was that

they must be given an opportunity to remove themselves which is altogether a different thing from making a quasi judicial enquiry into a right to

continue and not to be evicted when admittedly every one of the encroachers or trespassers knows that he has no right whatsoever to continue on

those premises. It is a futile plea- to take when any action by a public authority to evict rank trespassers is taken under the provisions of the statute

under which the public authority are entitled to exercise their powers that there has to be a quasi-judicial enquiry before a person can be evicted.

Such a plea must be rejected outright.

Neither the above decision of the Supreme Court nor Act I of 1976 sets at naught. the powers of the Municipal Corporation vested in. it by

statutory provisions to evict trespassers from its property. Section 314 of the Bombay Municipal Corporation Act, under which Action was sought

ot be taken in the Pavement

Dwellere case is analogous to S. 471 of the Madurai Municipal Corporation, Act. Section 471 reads as follows : -

Consequences of failure to obtain licences, etc., or of breach of the same- (1) If under this Act, or any rule, by-law or regulation made under it,

the licence or permission of the Council Standing Committee or Commissioner or registration in the office of the Corporation is necessary, for the

doing of any act and if such Act is done, without such licence or permission or registration or in a manner inconsistent with the terms of any such

licence or permission, -

(a) the Commissioner may by notice require the person so doing such act to alter, remove or as far as practicable restore to its original state the

whole or any part of any property, movable or immovable, public or private, affected thereby within a time to be specified in the notice-,

(b) the Commissioner or any officer duty authorised by him may also enter into or on any building or land where such act is done and take all such

steps as may be necessary to prevent the continuance of such act; and

(c) if no, penalty has been specifically provided in this Act for so doing such act, the person so doing it shall be liable on conviction before a

Magistrate to a fine not exceeding one hundred rupees for every such offence;

(2) No claim shall lie against the Commissioner or any other person for any damage or inconvenience caused by the exercise of the power given

under this section or by the use of the force necessary for the purpose of carrying out the provisions of this section,

A bare reading of this provision will show that what is contemplated by the notice under S. 471 is exactly what is contemplated in the case of

trespassers by law of torts, namely a notice directing the encroachers to remove themselves from the premises encroached upon. It is only this

notice which can be insisted upon in the case of land belonging to the Corporation where there is a provision like the one under S. 471 of the

Madurai City Municipal Corporation Act. If on such notice being given, the person does not remove himself, then the Corporation will have power

under S. 471(b) to take such steps as are necessary to prevent the continuance of trespass. We have, therefore, no manner of doubt that the entire

claim for a notice to show cause against removal from the place and for a, quasi-judicial enquiry under the provisions of Act I of 1976 is wholly

frivolous and unwarranted. We are, therefore, unable to see how the members of the petitioner- Association can insist on an injunction from being

removed from the premises of the bus stand for the remaining on which they have no manner of right. The Corporation will therefore be at liberty

to take necessary steps under S. 471,of the Act for their removal if they continue there in spite of a notice to remove themselves under S.471.

There is also nothing in the decision of the Supreme Court in the Pavement dwellers'' case, which lays down that whenever an encroacher is to

be removed from the public property aft alternative site should be provided to him. Indeed, no such obligation can be spelt out against a public

authority. To d6so would only mean placing a premium on the trespasser''s encroachment on public property.

Even in the Pavement dwellers'' case even though the Supreme Court held that a notice was necessary on the facts of that case, the Supreme

Court clearly observed that though normally the Municipal Corporation would have been- directed to afford an opportunity to the petitioners to

show why the encroachments committed by them on pavements or footpaths should not be removed, the opportunity which was denied by the

Commissioner was granted by the Supreme Court in an ample measure, both sides having made their contentions elaborately on facts as well as on

law. The Supreme Court even on facts found that the Commissioner was justified in directing the removal of encroachments committed by the

petitioners on pavements, footpaths or accessory roads. The Supreme Court then referred to the decision in S.L. Kapoor Vs. Jagmohan and

Others, , where it was observed that ''where on the admitted or indisputable facts only one conclusion is possible and under the law only one

Penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe

natural justice but because Courts do not issue futile writs."" The Supreme Court therefore positively took the view that there wits no justification for

asking the Commissioner to hear the petitioners and proceeded to make an order that the petitioners should not be evicted from the pavements,

footpaths or accessory roads until one month after the conclusion of the current monsoon season, that is to say, until October 31, 1985. The

Supreme Court also made it clear that the offer of alternative pitches to such pavement dwellers should be made good in the spirit in which it was

made, though the Supreme Court did not make it a condition precedent to the removal of the encroachments committed by the'' trespassers.

Similarly, in the instant case also, the members of the petitioner. Association having encroached upon public property within the premises of the

bus stand have not been able to show any right and it is therefore futile to issue a writ to the Municipality to issue a notice to them. They are

therefore not entitled to any writ as asked for. In so far as the other grievance of the petitioner-association that the Corporation has improperly

allotted places meant for shops to other persons after having rejected the request is concerned, there is much substance in it. The places which are

marked outside the bus stand were admittedly even according to the Corporation, intended to be made available for mobile shops. But having

decided to make those places available for the mobile shops, it was not-open to the Corporation to make allotments at their sweet will.

Admittedly, no applications have been invited for these places. The places have not been auctioned. The Corporation was dealing with public

property and when public property is to be made available for the benefit of citizens on payment, all persons interested must be given an

opportunity to make a claim for allotment of that property. The best way. to allot these places is therefore by a public auction which also results in

maximum revenue to the Corporation. We have been informed by the learned Advocate General that out of the allottees, the ten persons have

already occupied the places allotted to them. It may not be proper to make any adverse order against those ten persons when those ten persons

are not parties to the petition. But we are told that the allotment is only for the year 1986-87 and would come to an end on 31-3-1987. The

proper direction in the instant case to be given to the Corporation would be that such of the sites as are available for being granted for mobile

shops excluding those ten will be allotted by public auction, after giving sufficient notice in the newspapers at Madurai. In respect of. the ten shops,

allotment of which is due to expire on 31-31987, we direct that those shops will not be re-allocated except- by public auction with effect from 1-

4-1987. The present stall holders who are members of the petitioner-association will like any other person be entitled to bid at the auction.

Accordingly we vacate the injunction granted by us earlier. The appeal is dismissed.

In so far as the writ petition is also concerned, in the light of what we have stated earlier, the petitioner association is not entitled to the

injunction sought by it. To the extent of our directions that are given, above, the writ petition is partly allowed and disposed of. No costs.

Order accordingly.