Mohan vs The Commissioner, Corporation of Madras and The Junior Engineer Division 68

N.K. Jain, C.J.—All the writ petitions relate to the bunk shops. Hence, they are taken up together. The facts are more or less similar. For

the sake of convenience the facts in W.P. No. 12356 of 1992 is narrated.

W.P. No. 12356 of 1992 is filed by the Petitioner praying this Court to issue a direction forbearing the Respondents from removing the bunk

shop put up by him in the pavement near Valliammal School, opposite to Chinthamani, 1st Main Road, Anna Nagar, Madras-102.

The Petitioner is alleged to be an educated person coming from economically weaker section of the society. He put up a small bunk in the

pavement near Valliammal School, Anna Nagar, Chennai and eking out his livelihood. The claim of the Petitioner is that he cannot be removed

from his working place by the Respondents without compliance of the provisions of law.

In W.M.P. No. 17438 of 1992 in W.P. No. 12356 of 1992, interim injunction was granted on 18.8.1992.

The other writ petitions were also filed by persons, similarly placed, some individually, and some of them through associations, with the

allegations that they are running business in bunk shops at various areas/parts/places in the City of Chennai. It is also stated that they are eking out

their livelihood by vending goods, such as readymade garments, hosiery, textile, fancy goods, electric and electronic goods, at different places of

the city.

Since, the question involved in all the writ petitions are one and the same, seeking direction to allow the Petitioners to remain in the bunk shops

at different places/ areas/road-corners of the city, they are being disposed of by the common order, as agreed.

The Respondent-Corporation of Chennai has filed counter in all the writ petitions uniformly, denying the allegations as alleged. It is stated that

the Petitioner and similarly placed persons have erected bunks in the Corporation Public Roads, without any licence or permission. It is further

stated that no materials has been placed on record in respect of the writ petitions filed by Associations, to show that they are the members of the

respective Associations, at the relevant point of time. No subsisting right has been shown by the individuals. It is also stated that the public streets

cannot be utilised illegally by encroachers, in the garb of right of occupation, trade or business, guaranteed under Article 19 (1) (g) of the

Constitution, and there is no question of any violation, by the Respondent. It is also stated that the Corporation-Council had passed a resolution

not to grant any licence or permission for the purpose of erection of such bunk shops.

Respondent-Commissioner c."" Police has also filed a counter stating that the Petitioners have not obtained any licence or permission either from

the Corporation of Chennai or from the police, and they cannot have any right to run the business on public streets, or roads, or pavements.

The Learned Counsel for the Petitioner in W.P. No. 12356 of 1992 submits that the Petitioners are eking out their livelihood by having petty

bunk shops, hawking goods of readymade garments, tea shops, and having telephone booth, etc.. He submits that in the event of their removal,

they will be thrown out of job, and their fundamental right of doing trade will be infringed. The Learned Counsel also submits that the present

Petitioners'' case may also be considered by the Committee, which is considering the case of hawkers, as per the directions of this Court in

W.M.P. No. 22086 of 1999 in W.P. No. 4578 of 1993 dated 10.1.2001.

The Learned Counsel for the other Petitioners have also reiterated the arguments made by the Learned Counsel for the Petitioner in W.P. No.

12356 of 1992.

To this, the Learned Counsel for the Respondent-Corporation of Chennai submits that the Petitioners are mere trespassers doing their business

without any valid licence or permission. Even if any payment of fee has been paid by some of them, as alleged, it will not create any right or equity

in the absence of any subsisting right. It is also submitted that the hawkers'' case cannot be made applicable to the facts of the present cases, and

public streets cannot be allowed to be used in the garb of occupation of trade or business by putting up bunk shops, and the members of the public

are supposed to use that, as path way without any hindrance or obstruction. He also submits that in the garb of interim orders obtained from this

Court, though in some cases the interim orders have been vacated and in some others main writ petitions have already been dismissed for default,

after removal of some bunks some others have encroached. As such they are not entitled for any relief.

The Learned Counsel submits that none of the Petitioners are entitled for any indulgence from this Court, as they are rank trespassers having no

subsisting right. The Learned Counsel also submits that this Court after considering all aspects by detailed judgments in W.A. No. 947 of 2000,

dated 5.7.2000 (Sekhar and 8 Ors. v. D. Malligarjuna Rao and 4 Ors.), W.A. No. 1258 of 2000 dated 4.8.2000 (Madras Pavement Traders

Welfare Congress v. State of Tamil Nadu and 3 Ors.) and W.A. Nos. 1056 and 1236 of 1999 dated 5.1.2001 (A. Venkatesan v. The Divisional

Engineer, Highways and Rural Works Department, Chepauk, Chennai and Anr.), had not interfered with the removal of encroachments. So, in the

facts of the given cases, no relief, as prayed for, can be granted.

We have heard the Learned Counsel for the parties, and perused the materials on record. The alleged facts are all disputed questions of fact,

which need investigation, and cannot be gone into by this Court. But, the only point for consideration is whether the Petitioners can be allowed to

retain the bunk shops in path ways/ streets/ roads/ corners/ areas. As alleged, the Petitioners have put up bunk shops on the pavements along side

the roads, at various places, without obtaining any valid licence or permission. The Petitioners are not able to show that they are having any

subsisting right. They are also not able to show as to how and when they put up bunk shops in public roads. On consideration, we find that this

Court can neither issue a direction to grant licence, nor can give any direction to regularise the Petitioners, for doing trade on the pavements, by

putting up bunk shops. More particularly, as per the submission of the Learned Counsel for the Corporation, the Corporation has decided not to

grant any licence or permission, which is a policy decision. The public interest is paramount. Therefore, allowing to put up bunk shops at such

pathways/ streets/roads/corners/areas, otherwise is not reasonable and no direction can be issued.

So far as the argument that some directions may be issued to consider the present Petitioners'' cases also, as issued in the hawkers'' case is

concerned, the same is not acceptable in the facts and circumstances of the present cases. That apart, mere possession of bunk shops on the

public road will not give any right to persons like the Petitioners herein, nor they are entitled for consideration as per the directions given in the case

of hawkers, as they did not claim any particular place or space permanently, as that of the Petitioners in the present cases. More so, we find no

reason to take a different view from the above three judgments, cited above.

For the reasons stated above, we find no merits in these cases. Accordingly, all the writ petitions are dismissed. Consequently, all the

connected W.M. Ps. are also dismissed. Interim orders, if any, in any of the writ petitions, shall stand discharged. However, no order as to costs.