P. Parimila vs The Divisional Engineer, Highways and Rural Works Department and Another

E. Padmanabhan, J.—The petitioner prays for the issue of a writ of mandamus, forbearing the respondents from abruptly and arbitrarily

removing the petitioner''s bunk stall put-up at the border of the pavement along the line of No. 333, Anna Salai, in front of Y.M.C.A. Grounds,

opposite to ''Periar Buildings"", near the Fire Station, Chennai-600 035, except by following due process of law.

Heard the learned Counsel for the petitioner and Mr. G. Sankaran, learned Government Advocate taking notice for the respondents.

Admittedly, the petitioner is an encroacher and the encroachment is either recent or a overnight encroachment. The petitioner complains that he

is being threatened by the respondents to remove the bunk stall which has been placed on the pavement. The petitioner has no right to put up her

bunk stall and ob-struct the free flow of pedestrians and other public to use the platform. The right which the petitioner claims is on a national

highway. It is not as if the petitioner was granted permission at any point of time not she sought for the permission to locate the bunk stall. Such

encroachments of public streets and pavements and in particular main thoroughfare and the highways road, should always be removed at the

earliest opportunity without delay and at the first sign.

As has been held by the Supreme Court reported in Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, , when an

attempt has been made by somebody to encroach upon a public street or a portion of it, it is always open to the authorities to defeat such attempt

and also remove such encroachments by using such force taking im-mediate steps. It has been held thus:

Empirical study of urban and rural population in India discloses that due to lack of civic facilities and means of livelihood people from rural areas

constantly keep migrating to the urban ar-eas resulting in mushroom growth of slums and encroachment of the pavements footpaths etc. Every

Municipal Corporation has statutory obli-gation. to provide free flow of traffic and pedestrians'' right to pass and repass freely and safely, as its

concomitance, the Corporation/Municipality have statutory duty to have the encroachments removed. It would, therefore, be inexpedient to give

any direction not to remove, or to allow the encroachment on the payments or footprints which is a constant source of unhygienic ecology, traffic

hazard and risk prone to lives of the pedestri-ans. It would, therefore, be necessary to permit the Corporation to exercise the statutory powers to

prevent encroachment of the payments/foot-paths and to prevent construction thereon. As held earlier, the Corporation should always be vigilant

and should not allow encroachments of the pavements and footpaths. As soon as they notice any encroachment they should forthwith take steps to

have them removed and would not allow them to settle down for a long time. It is stated in their affidavit that they are giving 21 days notice before

taking action for ejectment of the encroachers. That procedure, in our view, is a fair proce-dure and, therefore, the right to hearing before taking

action for ejectment is not necessary in the fact-situation. But the Commissioner should ensure that everyone is served with a notice and as far as

possible by personal service and if it is not possible for reasons to be recorded in the file, through affixture of the notice on the hutment, duly

attested by two independent panaches. This procedure would avoid the dispute that they were not given opportunity; further prologation of the

encroachment and hazard to the traffic and safety of the pedestrians.

The petitioner has no right to occupy a portion of the public street or a payment or in particular national highway and seeks the assistance of this

Court.

All that the petitioner wants is due process of law to be followed in this case. When the petitioner had not chosen to secure the permission

before locating the bunk stall, in a thoroughfare or a national high-way and admittedly the bunk stall is a recent encroachment or a overnight

encroachment, this Court is not inclined to grant relief as prayed for.

Of late, this Court has condemned the tendency of small traders approaching this Court, filing an affidavit as if they have been doing bunk stall

business for years together, securing ex parte order of this Court and thereafter locating the bunks or other shops and thereafter the public

authority with contempt proceedings, forgetting the fact that they have obtained orders suppressing materials or suggesting falsehood. Such an

attitude should be deprecated and local Authorities are expected to move this Court, if such an event comes to their notice.

The petitioner has contended as if she has a fundamental right to run a bunk stall on public street or thoroughfare or a pavement. Misplaced

sympathies without a regulation and without minding the larger interest of the public will not serve the purpose. It is for the petitioner to find out

location where it is un-objectionable and where she could get a licence or permission from the authority. The action of the petitioner in locating a

bunk stall on a main road and in particular on a national highway itself cannot be appreciated and this Court will not be justified in going to the

rescue of the encroachers like the petitioner.

It is made clear that the respondents could issue three days notice and remove the bunk stall without any further delay, if necessary by use of

force or Police assistance.

With the above direction, the writ petition is dismissed. Consequently, W.M.P. No. 28276 of 1997 is also dismissed.