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1983 Supreme(Cal) 217
HIGH COURT OF CALCUTTA
MOOKERJEE, J.
Community Services Society - Appellant
Versus
State – Respondent
Decided on : Aug 04, 1983
K.M. Yusuf, L.C. Behani, Ram Bijay Bhattacharjee, S.K.Panja, Suchandra Mukherjee, T.C. Ray,
Pavement dwellers do not have any legal right to reside on public streets, and authorities are not required to provide prior notice before evicting them.
Headnote:
PAVEMENT DWELLERS - EVICTION - RIGHT TO POSSESSION - PUBLIC STREETS - ENCROACHMENTS - WRIT JURISDICTION - ARTICLE 226 OF THE CONSTITUTION OF INDIA - CALCUTTA MUNICIPAL ACT, 1953 - SECTION 5(30) - LEGAL RIGHTS - MORAL RIGHTS - AUDI ALTERAM PARTEM - PRESCRIPTIVE RIGHT - INTERIM ORDER - REHABILITATION.
Fact of the Case:
Petitioners, a registered society and its members, challenged the eviction orders issued by the respondents for removing encroachments and obstructions, including the petitioners' dwellings, from the pavements of the Eastern Metropolitan Bypass in Calcutta. The petitioners claimed to have resided on the pavements for 15-20 years and earned their livelihood through various means. They argued that the pavements were not part of public streets and that they had a right to reside there.
Finding of the Court:
The court held that the petitioners did not have any legal right to reside on the pavements, which were part of public streets as defined under Section 5(30) of the Calcutta Municipal Act, 1953. The court further held that the petitioners' occupation of the pavements did not give them any prescriptive right against the State. The court also clarified that the respondents were not required to provide prior notice to the petitioners before evicting them, as they had no legal right to possession.
Issues: 1. Whether the pavements on the sides of public streets are part of the said streets. 2. Whether the petitioners had a legal right to reside on the pavements. 3. Whether the respondents were required to provide prior notice to the petitioners before evicting them.
Ratio Decidendi: 1. The court interpreted Section 5(30) of the Calcutta Municipal Act, 1953, which defines 'public street' to include footways attached to streets, roads, etc., over which the public has a right of way. The court held that the pavements on the sides of public streets are also public streets. 2. The court held that the petitioners did not have any legal right to reside on the pavements, as pavement dwellers do not have any right to reside on public streets recognized or protected by the Constitution or ordinary laws. 3. The court held that the respondents were not required to provide prior notice to the petitioners before evicting them, as they had no legal right to possession.
Final Decision: The court rejected the writ petition filed by the petitioners, holding that they did not have any legal right to reside on the pavements and that the respondents were not required to provide prior notice before evicting them. The court, however, expressed hope that the authorities would sympathetically consider the question of rehabilitation of those who were going to be evicted.
1. THE petitioner no. 1 is stated to be a registered society established, inter-alia, for various social welfare activities and it has been averred that a number of pavement dwellers of Calcutta are among its members. The petitioner nos. 2 and 3 are Joint Secretaries of the petitioner no. 1 society. It has been alleged that the petitioner nos. 4 to 7 have been living an the Western side of the Eastern Metropolitan Bypass between Bidhan Sishu udyan and Muslim Burial Ground. In their writ petition, the petitioners, inter-alia, have prayed that the respondents be commanded to withdraw, cancel and rescind their orders for evicting the petitioners 4 to 7 and other pavement dwellers of the city of Calcutta. The respondents who have been served with the copies of the writ application, have contested the aforesaid prayers of the petitioners.
2. THE petitioners 4 to 7 claimed to have come to Calcutta 15/20 years ago in search of employment and that they have been residing with their families on the pavements by constructing kutchha structures. The petitioner no. 4 is a rickshaw-puller while the petitioner 5 to 7 earn their livelihood by making coals or briquettes. Recently, the State government and the other civic bodies including the Calcutta Improvement trust and the Corporation of Calcutta have decided to remove obstructions and encroachments on both sides of Eastern Metropolitan Bypass. The respondents have started 'drives' to demolish the structures which have been constructed on both sides of the Eastern Metropolitan Bypass. I understand that the State Government and the other civic bodies have also taken similar steps to remove obstructions and encroachments made on other pavements and public streets of Calcutta.
Mr. Behani, who has appeared on behalf of the petitioners, has submitted, that, without notice and without giving any hearing, the respondents have no power or authority to forcibly evict the petitioner nos. 4 to 7 who have been living in their respective dwellings for nearly 1520 years. Mr. Behani has also contended that pavements upon which the petitioner nos. 4 to 7 have built their huts do not form any part of any public street and the same do not constitute obstructions or encroachments upon a public street. The learned advocate for the petitioner has also urged the plea of hardship caused to the pavement dwellers who would be evicted without providing alternative places for their homes.
3. IT is not for the court exercising jurisdiction under Article 226 of the Constitution to probe into the reason why in recent years a large number of urban poors have taken shelters on the pavements, roads and other public places. While their services are being utilised, many of the urban poor so far have not been provided with shelters fit for human beings. Such mushroom growth of pavement dwellings by making encroachments upon pavements of public streets and other public places have also posed problems of health morals and safety. One's conscience is likely to be, deeply stirred by the tribulations of the pavement dwellers of Calcutta but the court would be unable to alleviate them unless necessary conditions for obtaining legal redress are fulfilled. Article 226 of the Constitution has not vested courts with unfettered powers to administer equity not based on justiciable foundation (see Manjula Manjari Dei v. M. C. Pradhan A. I. R. 1952 Orissa 344).
4. MR. Tapas Roy, learned advocate who appeared on behalf of the Corporation of Calcutta, has rightly pointed out that the court exercising writ jurisdiction does not protect possession of a person unless he establishes his legal right to such possession. The existence of a right is the foundation for obtaining relief under Article 226 of the Constitution of India (vide State of Orissa v. Madan Gopal A. I. R. 1952 S. C. 143, state of Orissa v. Ramchandra A. I. R. 1964 S. C. 685, State of Orissa v. Indra Kumar A. I. R. 1972 S. C. 2112 ). A person who has bare possession of a
