Thirumangalam Fish, Vegetables Merchants' Sangam vs The State of Tamil Nadu

Srinivasan, J.—Common question arises in these cases for consideration and they are heard together. Though the Petitioners in the writ

petitions are different, the contesting Respondent in all the cases is the Municipal Commissioner, Ambattur Town, Ambattur.

W.P. No. 19836 of 1990 has been filed by Thirumangalam Fish, Vegetables Merchants'' Sangam, registered under the Societies Registration

Act on 1-9-1989. According to the Sangam, it had 80 members, who are vendors selling fish, meat, vegetables, fruits etc. along the main road

leading to Ambattur in Anna Nagar West, Madras. Their case is as follows: The members were carrying on business from 1975 along the said

road. There is no sanctioned market for the residents of the locality, who found it easy to purchase vegetables, fruits etc. from the members of the

Petitioner Sangam as their stalls are very close to their residence. The nearest market is at a distance of 14 K.M. at Aminjikarai and the people

find it very convenient to buy from the members of the Petitioner Sangam instead of travelling such a long distance. The Township has been

attempting to evict the vendors by using pressure through various sources including police force. On 20-12-1990 the Municipal Commissioner of

the Township inspected the shops and orally instructed them that all the shops should be removed, failing which they will be forcibly evicted. When

they requested for alternative places, he turned a deaf ear. Without allotting any alternative site and without giving any notice, the Municipal

Commissioner is trying to evict the members of the Sangam under the instructions from the Collector of the District. The presence of the shops on

the sides of the road does not obstruct the traffic or cause any inconvenience to the public. The action of the Commissioner is violative of the

fundamental rights of the member of the Sangam guaranteed under Article 21 of the Constitution of India. The Sangam wrote a letter to the

Commissioner on 7-12-1990 pointing out the hardship which would be caused to its Members if they are evicted. One of the shops adjacent to

the Petitioner''s shop has been regularised by the Commissioner. It would amount to illegal and arbitrary discrimination, violative, of Article 14 of

the Constitution. The members of the Sangam belong to the depressed class and the Respondents should not act contrary to their interest. On the

aforesaid averments, the Petitioner has prayed for issue of Writ of Mandamus forbearing the Respondents from interfering with the business of the

members of the Petitioner Sangam. The first Respondent is the State of Tamil Nadu, the second Respondent is the Collector of Chengai Anna

District and the third Respondent is the Municipal Commissioner.

The Petitioner filed W.M.P. No. 31173 of 1990 for ad interim injunction pending the disposal of the Writ Petition. Originally interim injunction

was granted by order dated 26-12-1990. The Municipal Commissioner Tiled W.M.P. No. 1192 of 1992 for vacating the interim order. By order

dated 6-4-1992, a learned single judge of this Court vacated the order of interim injunction and dismissed W.M.P. No. 31175 of 1990. Against

that order, the Writ Petitioner has filed W.A. No. 451 of 1992. When the above appeal was posted for hearing, it was decided to hear the main

writ petition itself. Thus, W.P. No. 19836 of 1990 has been posted.

W.P. No. 9312 of 1993 has been filed by Anna Small Merchants Association against the Commissioner, Ambattur Township and the

Collector, Chengai M.G.R. District. The prayer is for issue of Writ of Mandamus forbearing the Respondents from seeking to disturb the peaceful

possession and enjoyment and conduct of the shop vending business conducted by the members of the Petitioner Association on both sides of the

Estate Road running west to east from D.A.V. School to Padi - Puthur Nagar in Anna Nagar West Extension, Madras-101. In the affidavit filed in

support of the petition, it is stated as follows: The Association was started as a self employment scheme to relieve the pressure on the Government

to employ so many members of the Association. The Petitioner agrees that the Government cannot give employment to one and all of them and,

therefore, it is the duty on the Government to provide such vacant places that are available at their disposal. With the fond hope that they will not

be forced to remove any stall-shop on both sides of the road, they started doing business in individual shops. There was no complaint from the

public. As there is no market nearby, the residents of the locality have been purchasing from the shops of the members of the Petitioner

Association. The names of several such members have been entered in the Voters'' List. That is a recognition of their rights in a way. Sometime in

1990, attempts were made by some officers of the Township to disturb their possession. The Petitioner filed W.P. No. 16998 of 1990. In the final

order passed on 21-7-1992 in the said petition, the Respondent was directed to consider the individual petitions of the Petitioner''s members for

allotment. A communication has been received from the Respondent'' dated 19-11-1992 that on consideration of the public interest and to avoid

traffic congestion, the request for allotment will not be considered. Two individuals by name R. Raja and M. Pichia have been given permission by

the Respondents to put up and run shops in the place. There is no traffic congestion and there is no complaint from any public. Some reasonable

charge can be fixed for allotment to individuals and ground-rent may also be collected. The social justice enshrined in the Constitution will be

safeguarded only if the members of the Petitioner-Association are not disturbed from continuing their business on both sides of the Estate Road

running from west to east from Ambattur Industrial Estate to Thirumangalam. On the aforesaid averments, the prayer set out earlier has been made.

W.P. No. 11392 of 1993 has been filed By Thiruvalleeswarar Platform Vendors Progressive Association, Anna Nagar (West) against the state

of Tamil Nadu, the Commissioner, Ambattur Township and the Collector, Chengai M.G.R. District for issue of a Mandamus directing the second

Respondent to permit the members of the Petitioner-Association to peacefully run then-business on collection of such fees or charges and levy

from each and every member and to regularise the running of the shops by the members of the Associate on located at the place more fully

described in the Schedule in terms of the letters dated 12-4-1993 addressed to the second Respondent by the Petitioner''s representative in Lok

Sabha, Thiru D. Pandian, M.P. The Schedule refers to shops located at the place starting from the Tamil Nadu Electricity Board Sub-Station at

Estate Road near Emerald Flats, Thirumangalam, Anna Nagar (West), to the end of Tamil Nadu Government Officers'' Quarters near the Tamil

Nadu Electricity Board''s Transformer, Thiruvalleeswarar Nagar, Anna Nagar (West). The Association claims to have 101 members, a list of

which has been furnished. It is stated as follows: The members of the Association, are running vending business in several vegetables. The shops

are erected in one end of the Estate Road running from Thirumangalam upto Ambattur Estate. Each and every one of the members of the

Association is paying licence fee to the second Respondent Municipality. The members are doing retail business in various items. The residents of

the nearby locality prefer to purchase items for their needs from the shops of the Petitioner''s Members. There was never any complaint from any

public of any inconvenience because of the existence of the shops. The shops are there bunks made of wood. They are removable at any time.

They are situated at the outer end of the road and there is no complaint of traffic hazard. Their representative in Lok Sabha, Thiru. D. Pandian,

M.P. was kind enought to recommend to the second Respondent to regularise their shops. The second Respondent is also entitled to collect from

each and every member of the Association such fees or charges and levy for permitting them to peacefully run the shops. But, the subordinate

officers of the second Respondent, who are overenthusiastic, come and disturb the peaceful conduct of the business with the help of police every

day. Because the shops are made of wooden bunks, they overturn the shop by throwing away the vending items in the street. The Government has

failed in its duty to give employment and unable to solve the growing unemployment problem. It has got a Constitutional duty to safeguard those

persons who contribute by their own funds by self-employment. It is the duty of the Government to protect the interests of the small venders and it

does not do so. It is a clear violation of the fundamental rights guaranteed under the Constitution. Therefore, the Petitioner has approached this

Court with the prayer referred to earlier.

The Commissioner of Ambattur Township has filed a counter affidavit, the substance of which is as follows: The Tamil Nadu Housing Board

framed a Housing Scheme, popularly known as Anna Nagar Scheme, developed the area by laying roads an streets along with residential plots

and commercial plots. After completion of the work, the Housing Board handed over the roads and streets in the Anna Nagar Western Extension

Area to Ambattur Municipality. By his letter No. SDI/Plg/4660/79 dated 19-9-1985, the Executive Engineer, Special Division of the Tamil Nadu

Housing Board handed over the 120 feet wide road measuring a length of 3603 feet with street lights, culverts and drains to Ambattur

Municipality. From 19-9-1985, the road has vested in the Municipality. Taking advantage of the width of the road, the Writ Petitioners have

encroached on both sides of the road. Their case that they have been carrying on business from 1975 onwards is denied. It is only in the year

1989, after the formation of the Association, the members started encroaching on the area. None of the members was granted permission to put

up any bunk over superstructure. No licence was granted to any of the members to carry on the trade within the Ambattur Municipal Area,

particularly on the 120 feet road. The Petitioners are all encroachers and wrong doers causing unhygienic injuries to the nearby residents and also

obstructing the free flow of the traffic. Very near the area of encroachment, there is a commercial complex constructed by the Tamil Nadu Housing

Board, which has been allotted to various traders. There are number of commercial flats and shopping complex area owned by the Tamil Nadu

Housing Board in Anna Nagar Extension Area for the benefit of the residents. The encroachment by the Petitioners is causing obstruction to the

free flow of traffic and it is highly unhygienic. The Petitioners are nothing short of rank trespassers on public property, which should be utilised for

public benefit. The Petitioners are not entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. The

encroachment on the public road is a nuisance to the public and liable to be removed forthwith. The Petitioners are not entitled to any notice or

provision of alternative site. The entire length and breadth of the road is required for free traffic. The Anna Nagar Western Extension is fast

developing and accommodating more and more residents. There is no question of authorising or allotting any area to the Petitioners. There is no

provision in the Tamil Nadu District Municipalities Act for recognising the Petitioners or granting licence to them, who are there encroachers.

The Petitioner in W.P. No. 19836 of 1990 filed an additional affidavit on 28-3-1995. In the said affidavit most of the averments made in the

affidavit filed along with the writ petition are repeated. The only addition is that the present street margin occupied by the Petitioners is ideal for

earmarking as trading area, since the Thirumangalam Road leading to Ambattur is a 120 feet road with 30 feet street margin and the trading in the

street margin would in no way affect the free traffic. It is alleged that if the Respondent-Municipality regulates street trading or provides a place for

market, it would be convenient for the residents of the locality and the Petitioner''s right of trading would also be safeguarded.

The Municipality has filed a common counter counter affidavit in W.P. Nos. 9312 of 1993 and 11392 of 1993. The contents of the affidavit are

also the same as those in the counter affidavit filed in W.P. No. 19836 of 1990, extracted earlier. It is averred that there are several markets

around the area within three kilometres. There is one big vegetable market at Aminjikarai within three kilometres and other markets at Padi and

Arumbakkam very near the Estate Road. Besides, there are several shopping complexes in Anna Nagar. The road is an important main road,

which serves the vehicular as well as pedestrian traffic to Ambattur Industrial Estate from Anna Nagar. It is a very busy area with heavy flow of

traffic. There are several schools and hospitals located in the area and because of the projections made by the Petitioners, the students as well as

public find it very difficult to reach their destinations. There is no open space belonging to the Municipality available in the area. It is not possible to

provide shops in the road margin.

Though in the affidavits the Petitioners claim that they have been doing business from 1975, they have not produced even a scrap of paper to

prove the same. In W.P. No. 19836 of 1990, a copy of the letter written by the Petitioner Sangam to the Commissioner of the Municipality on 7-

12-1990 has been produced-According to that letter, the business was being carried on for about ten years by 400 families. The writ petition was

presented on 24-12-1990, i.e., about 17 days after the said letter. In the affidavit, the claim made is that the business was being carried on from

1975. There is no explanation for the discrepancy. While the letter refers to 400 families, the list of members of the Sangam sets out only 80

names. In the additional typed set of papers filed in March 1995, certain documents have been produced purporting to be copies of receipts for

licence fee issued by the Municipality to certain persons by name P.K. Chandrasekaran, V. Kanniappan, M. Musthafa, G. Govindammal and C.

Annmalai. The earliest payment has been made on 5-2-1993 and the last payment on 11-7-1994. The receipts do not disclose the places for

which the licence fee has been collected. There is nothing in the receipts to show that the licensees mentioned therein are carrying on business on

the road margins with reference to which the writ petitions have been filed. No affidavit has been filed by any of the persons in whose names the

receipts stand. It is not possible to place any reliance on those receipts which have been obtained during the pendency of these writ petitions. Yet

another document has been filed by the said Petitioner. It is a copy of the order dated 7-1-1993 made by the Commissioner of the Municipality.

According to that order, one L.B.K. Misra has been permitted to have a bunk shop in Padi village near Guru Chandra Hotel in a place which is

not in use and which does not obstruct the traffic on the Municipal Road in any manner. The permission is for six months u/s 183(2) of the Tamil

Nadu District Municipalities Act with a condition that whenever the road is to be widened or whenever the space is required for the Municipality,

the shop owner must vacate the place and no compensation will be paid to him. Nothing can be made out of the said order in support of the

contentions of the Petitioners. There is nothing on record to show that the space referred to in the said order is on the road margin dealt with in

these petitions. No affidavit has been filed by any person on the side of the Petitioners making any reference to the said order. In the

circumstances, no reliance can be placed thereon.

In W.P. No. 9312 of 1993, two receipts have been produced purporting to be acknowledgment of receipt of licence fees from one Raju and

from one Pitchaiah. They are dated 22-2-1993 and 5-3-1993. They have been obtained just prior to the filing of the writ petition. The receipts do

not show that they relate to places involved in the writ petition.

Similarly, in W.P. No. 11392 of 1993, some receipts have been produced to show that one Joseph has paid licence fee for tea-stalls for

1992-93 and 1993-94. Two payments were made on 26-2-1992 and two payments were made on 23-2-1993. They do not also prove that they

relate to the spaces involved in these writ petitions. A certificate bearing date 25-11-1992 issued by Village Administrative Officer, Padi and

Mugapair Villages has been produced to the effect that Joseph is having tea-stall in the Estate Road near Emerald Flats. The letter of the Member

of Parliament referred to in the affidavit tiled in support of the writ petition and mentioned in the prayer is dated 12-4-1993. It docs not help the

Petitioner in any manner. It is only a request to the Commissioner of the Municipality to negotiate with the vendors and give guide-lines to

regularise their shops without affecting the interest of the public or violating the rules of the road.

It is, therefore, clear that the case of the Petitioners that they have been carrying on business for several years prior to the filing of the writ

petitions is not supported by any evidence whatever. On the other hand, the fact that the said version is false is established by the circumstance that

the road was itself formed an completed only in 1985 when the Tamil Nadu Housing Board handed over the same to the Municipality. There could

not have been any shop on the read margin before that date as claimed by the Petitioners. There is no whisper in any of the affidavits that even

before the formation of the road, the Petitioners were occupying the same spaces in that area and carrying on business. Thus, there is no doubt

whatever that the Petitioners have come to this Court with a false claim.

There is also no doubt whatever that the Petitioners are all unauthorised occupants and rank trespassers on public property. Though a claim

has been made in the affidavits filed in support of two of the writ petitions that the members had obtained licences from the Municipality, none has

been produced before this Court in support of the said claim. It follows that the Petitioners cannot claim any right, much less a fundamental right to

continue to occupy spaces on which they have trespassed.

The aforesaid two facts are sufficient to dismiss the writ petitions. Article 226 of the Constitution of India is not intended to help trespassers

and land grabbers. Nor is it intended to help persons who come to Court with false cases and fail to disclose the real state of affairs.

Further, in so far as W.P. No. 9312 of 1993 is concerned, there is not even an averment in the affidavit that the Association is a registered

one. It has been held by a Full Bench of this Court in Tamil Nadu Panchayat Development Officers'' Association v. The Secretary to Government

of Tamil Nadu 1989 W.L.R. 84 that unregistered association cannot maintain a writ petition. Hence, that Writ Petition deserves to be dismissed on

that ground. But, we do not propose to do so as no objection has been raised by the Respondents to the maintainability of the writ petition on that

footing.

Learned Counsel for the Petitioners have urged the following points:

1) The shops are situated in the outskirts of the city.

2) There is no regulated market to the area.

3) There is no complaint from the public.

4) The width of the road is 120 feet with a margin of 30 feet on both sides.

5) The Petitioners have been carrying on business for over 12 years. Their application for allotment of land have been rejected on untenable

grounds.

6) Some people have been allotted spaces in the area, which shows that the Municipality is discriminating between them.

7) The Petitioners cannot be evicted except under due process of law after notice and after making a provision for alternative sites.

8) An advocate should be appointed as Commissioner to inspect the spot and make a report on the facts.

Learned Counsel have certain rulings in support of their contentions.

There is no substance in the contention that because the property is situated in the outskirts of the city, the Petitioners should not be disturbed.

There is no dispute that the property is a public road vested in the Municipality. Just because it is outside the city limits, the Petitioners have no right

to trespass upon the same and claim a status of irremovability. The second contention is based on a false premise. As pointed out by the

Municipality, there are three regular markets nearby, within a distance of three kilometres and number of shopping complexes in the locality. There

is no merit in the third contention also. It is the case of the Municipality that complaints have been received from the public against the hindrance to

the use of the road by the vehicles as well as pedestrians on account of the existence of these shops. Even if there is no such complaint, it is the

duty of the Municipality to keep the road free for the purpose for which it has been formed. The Petitioners have no right to contend that they will

occupy any portion of the road obstructing the user thereof. There is no merit in the fourth contention, as with the abnormal increase in traffic day

by day, the width of 120 feet is found to be hardly sufficient. We have already pointed out that the claim of the Petitioners that they have been

doing business for more than ten years and 15 years is not true. The contention that some persons have been allotted spaces for having their shops

is also not proved. One of the Petitioners produced some allotment orders which show clearly that spaces have been allotted 50 feet away from

the 120 feet road in some side-streets. Not even one instance of allotment on the 120 feet road has been proved before this Court.

In support of the 7th contention, reliance is placed on the judgment of the Supreme Court in Olga Tellis and Others Vs. Bombay Municipal

Corporation and Others, . That case does not in any way help the Petitioners. It is categorically held in that case that no person has a right to

encroach by erecting a structure or dwellings on foot-paths, pavements or in any other place reserved or earmarked for public purpose, for

example, a garden or playground. It is not necessary for us to dwell at length on the ruling in that case, as the dictum has been amply explained in a

judgment of a Division Bench of this Court in Arignar Anna Bus Stand etc., Association v. The Commissioner, Madurai Corporation 1987 W.L.R.

136 and by the Supreme Court in Sodan Singh v. New Delhi Municipal Committee AIR 1989 SC 1988.

In the former decision, the Division Bench, to which one of us was a party, has after setting out the peculiar problem of a great magnitude

which was to be solved by the Supreme Court in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, and extracting the

relevant passages from that judgment said:

The above observation 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 Bench proceeded to refer to another passage in the judgment of the Supreme Court and said:

The above observations of the Supreme Count in our view clearly recognise the fact that the trespassers 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 had 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 authorities 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.

Again the Bench pointed out that there is nothing in the decision of the Supreme Court in the said case which lays down what whenever an

encroacher is to be removed from the public property, an alternative site should be provided to him, and indeed, no such obligation can be spelt

out against a public authority and that to do so would only mean placing a premium on the trespasser''s encroachment on public property.

In Sodan Singh''s case AIR 1989 SC 1988, the Constitution Bench of the Supreme Court negatived the contention that the fundamental rights

guaranteed under Articles 19 and 21 of the Constitution of India enable the Petitioners therein to occupy specific places demarcated on the

pavements on a permanent basis for running their business in the following words:

We do not think there is any question of application of Article 21 and we will be briefly indicating our reasons therefore later. But can there be at

all a fundamental right of a citizen to occupy a particular place on the pavement where he can squat and engage in trading business? We have no

hesitation in answering the issue against the Petitioners. The Petitioners do have the fundamental right to carry on a trade or business of their

choice, but not to do soon a particular place....

If the opposite view is taken and the plea of the Petitioners is allowed a chaotic situation may follow. They may be entitled to insist that they would

carry on their business anywhere they like, either on the roads or in the government schools or hospitals or other public buildings. They may like to

enter the class rooms or the patient wards or any public office to advance their prospects. As was observed in the Bombay Hawkers'' Union and

Others Vs. Bombay Municipal Corporation and Others, , they can hold the society to ransom by squatting on the busy thorough-fare, thereby

paralysing all civic life.

We do not find any merit in the argument founded on Article 21 of the Constitution. In our opinion Article 21 is not attracted in a case of trade or

business either big or small. The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote

to be connected together.

Referring to the case of Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, , the Supreme Court distinguished the same by

stating that it was not a case of business of selling articles after investing some capital, however meagre. The Supreme Court quoted certain

passages from the judgment in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, and held that the ruling in that case did not

recognise any right in any person to trespass upon street or pavement. The Supreme Court also said that the demand of the Petitioners in that case

that the hawkers must be permitted on every road in the city could not be allowed. Kuldip Singh, J. who wrote a separate concurrent judgment

observed that street-trading was a fundamental right and said thus:

Street Trading being a fundamental right has to be made available to the citizens subject to Article 19(6) of the Constitution. It is within the

domain of the State to make any law imposing reasonable restrictions in the interest of general public. This can be done by an enactment on the

same lines as in England or by any other law permissible under Article 19(6) of the Constitution. In spite of repeated suggestions by this Court

nothing has been done in this respect. Since a citizen has no right to choose a particular place in any street for trading, it is for the State to designate

the streets and earmark the places from where street trading can be done. Inaction on the part of the State would result in negating the fundamental

right of the citizens. It is expected that the State will do the needful in this respect within a reasonable time failing which it would be left to the courts

to protect the rights of the citizens.

After the Constitution Bench decided as above the question referred to the same, the matter came before a Division Bench of three Judges and

final orders were passed on 13-3-1992. The judgment is reported in Saudan Singh and Others Vs. N.D.M.C. and Others, . In paragraph 2 of the

judgment, the Bench said:

It is, therefore, settled law that every citizen has a right to the use of a public street vested in the State as a beneficiary but this right is subject to

such reasonable restrictions as the State may choose to impose. Street-trading is able it a fundamental right under Article 19(1)(g) of the

Constitution but it is subject to reasonable restrictions which the State may choose to impose by virtue of Clause (6) of Article 19 of the

Constitution. The right to street-trading under Article 19(1)(g) of the Constitution does not, however, extend to a citizen occupying or squatting on

any specific place of his choice on the pavement regardless of the rights of others, including pedestrians, to make use of the pavements. In other

words the law laid down by the Constitution Bench permits a citizen to hawk on the street pavements by moving from one place to another without

being stationary on any part of the pavement vested in the Stage.

We have, therefore, no hesitation in holding that the Petitioners, who are rank trespassers on public street, have no right, much less a

fundamental right, to insist upon their continuing in the same place or allotment of alternative space before they are evicted therefrom. There is also

no necessity for any separate notice to them as they had ample notice in these proceedings themselves, which have been pending for more than five

years.

One of the counsel relied on the provisions of Section 182 of the Tamil Nadu District Municipalities Act and submitted that notice is necessary

before the Petitioners are evicted. The Section reads thus:

(1) The executive authority may by notice require the owner or occupier of any premises to remove or alter any projection, encroachment or

obstruction (other than a door, gate, bar or ground floor window) situated against or in front of such premises and in or over any street.

(2) If the owner or occupier of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under

the law of limitation to give any person a prescriptive title thereto or that it was erected or made with the permission or licence of any municipal

authority duly empowered in that behalf, and that the period, if any, for which the permission or licence is valid has not expired, the municipal

council shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same.

A perusal of the Section shows that it has no applicability in this case. That will apply only to cases in which owners or occupiers of certain

premises make a projection or encroachment or obstruction in front of such premises and in or over any street. The expression ''premises'' has not

been defined in the Act and the dictionary meaning has to be applied. According to ""Shorter Oxford English Dictionary"", ''premises'' means ""a

house or building with its grounds or other appurtenances''. ''None of the Petitioners is owning or occupying any premises by the side of the road.

Hence, the Petitioners cannot seek refuge u/s 182 of the Act.

One other contention urged is that no action has been taken by the police u/s 71(xi) of the Madras City Police Act to prosecute the Petitioners

for obstructing the thoroughfare. There is absolutely no merit in the contention. Just because the police have failed to prosecute the Petitioners, no

inference can be drawn therefrom that the encroachment on public roads is lawful.

One of us sitting singly has dismissed W.P. Nos. 4926, 5007 and 5178 of 1993 (Pondy Bazaar Petty Shop Traders Association v. The

Commissioner, Corporation of Madras), by judgment dated 18-1- 1994 negativing a similar claim made by certain persons carrying on hawking in

different streets in T''Nagar, Madras. After referring o the various rulings on the subject and in particular the judgment of the Supreme Court in

Saudan Singh and Others Vs. N.D.M.C. and Others, , the learned judge said:

Thus, the above ruling, in my view has reiterated the earlier ratio that a citizen has no right to remain in a particular place on any part or

pavement of the road and carry on his trade even though a right is available to trade on the streets by moving from one place to another instead of

remaining stationary in a particular place. The above rulings clearly negatived the claims of the Petitioners that their members have got a right to

remain stationed on public roads and carry on trading or business. I am also satisfied that the claim of the Respondents that on account of the

encroachments on the public roads by the members of the Petitioners, crimes like chain snatching, pick-pocketing, etc., take place every day, is

well founded. On account of such encroachments, public are unable to use the pavements and pathways which are specifically earmarked for their

use, which results in members of public walking on the roads preventing free flow of vehicular traffic and resulting in road accidents which more

often are fatal.

In my opinion, the Corporation of Madras has a statutory duty to keep the pavements and pathways unobstructed so as to allow pedestrians

to have easy access and free movement. It is not uncommon that on account of such unauthorised encroachment in pavements, members of public

are not in a position to easily reach the licensed shops an premises and they have to follow a circuitous route to reach such business premises. I

have to take note of the submissions of Mr. R. Krishnamoorthi, Learned Senior Counsel appearing for the Corporation, that on account of illegal

encroachments by the members of the Petitioners, number of petitions have been received from the shop owners stating that they are carrying on

lawful trade and business by following the necessary rules and regulations and their business is vitally and materially affected by unauthorised

encroachments in pavements. Their complaint further appears to be that a person who commits encroachment and trespass on pavements should

not be encouraged. This complaint of regular shop owners, in my view, is not without substance. Consequently. I reject the contentions of the

Petitioners that they have got a fundamental right to carry on business, and that the same is protected under Articles 19 and 21 of the Constitution

of India. No right, in my opinion, can be claimed by the members of the Petitioners to encroach on public pavements and pathways and carry on

trade stationed in a particular place on such pavements and pathways. I am unable to countenance the submission of the Petitioner.

We endorse fully the view expressed in he above passage.

In the view we have taken as above, there is no question of appointing an Advocate as Commissioner to inspect the spot and submit a report.

A public street cannot be converted into a market, thereby depriving the public of their lawful use of the road for which it has been formed.

Learned Counsel for the Petitioners prayed for grant of some time to vacate the places. As pointed out already, these petitions have been

pending for quite a long time. Though interlocutory applications for injunction were dismissed, the Petitioners have managed to continue in the same

place by mentioning to the Court in the last moment and getting some oral orders from different learned judges. We do not find any justification to

grant any further time to the Petitioners. Moreover, when the prayer for interlocutory orders has been negatived during the pendency of the writ

petitions, it is not possible or proper to permit the Petitioners to continue in occupation when their claims are found against and final orders passed

in the writ petitions.

In the result, the writ petitions and the writ appeal are dismissed. There will be no order as to costs.