1997 Supreme(Guj) 373

Gujarat High Court
Judgename :R.K.Abichandani
PAMAN BHOBHRAJMAL NAVLANI - Appellant
Versus
DEPUTY MUNICIPAL COMMISSIONER,vadodara - Respondent
S.C.A. 3420 of 1997
Decided On : 08/07/1997

Headnote:(a) Constitution of India, 1950 - Art. 226 - Notices to remove encroachments - Step in pursuance to a scheme framed by Municipal Corporation under directions of Supreme Court & approved by Division Bench of the Court - Contention of petitioners that they were cabin holders paying regular rents to Corporation - They could not be evicted without complying due process of law - Also contended that they were not parties either before Supreme Court or Division Bench & thus any scheme framed under was not binding on them - Referring to the decision of Supreme Court, Court observed that decision of Supreme Court to frame scheme was not confined to some individual hawkers only - Impugned scheme was prepared inviting objections & suggestions of all interested parties by appointing a retired District Judge - No substance in the contention that scheme was not intended to cover persons who were not parties or persons who were having cabins at those places - That apart petitioners were licencees & licences were subject to renewal periodically - None of the petitioners possessed valid licence at the time impugned notices were given - Petitioner therefore, could not be held to have any right to continue in the place where they were having cabins.

       The decision of the Supreme Court directing the scheme to be framed was not confined to some individual hawkers only, but it was a direction on the Municipal Corporation to frame a scheme for the whole city demarcating the Hawking and Non-hawking zones, which was required to be implemented. The decision of the Supreme Court giving such directions was therefore, clearly a decision in rem binding on all hawkers of the city and the petitioners who were not party before the Supreme Court cannot claim to be exempt from the Scheme on the ground that the Scheme would bind only the parties which were before the Supreme Court. Admittedly, as stated in the scheme in the report which is incorporated therein, notices were issued inviting suggestions, representations from the interested parties. Notice dated 22nd March, 1987 was issued in Newspapers inviting the general public and hawkers to give their statements, suggestions and objections for formulation of the hawking and non-hawking zones. All these petitioners had therefore, ample opportunity to put forth their case before Mr. M.K. Desai, who was appointed to prepare the scheme. In the report, there is a clear reference to the fact that in the city of Baroda, the hawkers do their business in roving hand cart, cabins, stationary hand-carts etc. The Scheme was intended to cover not only hand larries, which were moving or stationary, but also cabins. In the judgement of this High Court in Gulam Alis (Supra) in which the direction was initially given to frame the Scheme the word `hawker was used to collectively refer larriwallas, gallawalas (i.e., cabin and stall holders) as stated in para 2 of the judgement. The word cabins occurs even in the decision of the Supreme Court in which directions were given to frame the scheme. There is therefore absolutely no substance in the contention canvassed on behalf of the petitioners that the scheme was not intended to cover persons who were not parties before the Supreme Court or persons who were having cabins at these places. It cannot be said that the scheme was confined only to hand-larries and was not applicable to cabins at these places.

       [Para 17]

       As provided by Sec. 62 of the Indian Easement Act, a licence is deemed to be revoked in case where it has been granted for a limited period on the expiry of such period. Admittedly, the earlier licenses which were given to the petitioners were to be renewed periodically and none of the petitioners possessed any valid licence at the time when impugned notices were given. Their licences had expired and that fact is clearly mentioned in the impugned notices. The petitioners therefore, had absolutely no right to cotninue in the places where they were having cabins.

       [Para 18]

       (b) Bombay Provincial Municipal Corporation Act - Sec. 231 - Power of eviction - Notice - Commissioner was empowered to exercise power Sec. 231 to remove any such structure like cabin which was erected on street as in the case without notice - In the case there were no subsisting licences in favour of petitioners - Cabin structures had become encroachment & Commissioner was competent to lawfully remove the same without notices - Question of giving any show cause notice does not servive in the facts.

       By virtue of the provision of Sec. 231, the Commissioner was, without notice, empowered to remove any such structure like cabin which was erected on the street. Since there was no subsisting licence, it can never be said that the cabin remained on the street with any written permission of the Commissioner. Immediately when the licence ended, the structure became an encroachment and the Commissioner could lawfully remove the same without notice under Sec. 231. The expression the Commissioner may without notice, cause to be removed . . . has reference only to a notice to quit which is not required as per this provision. Therefore, even without a notice to quit being issued, that is to say even without any forewarning, the obstruction could be removed from a public street. This power is absolutely necessary because if a public street is encroached upon by placing an obstruction which may require immediate removal it may cause great damage or inconvenience to the public if prompt action is not taken under Sec. 231. When even a notice to quit is not required to be given by that provision, it follows that there could be no question of giving any show cause notice or hearing to such encroachers. The provisions of Sec. 231 therefore clearly exclude giving of any show cause notice as to why the encroachment should not be removed. However, having regard to the fact that even a trespasser should have an opportunity to remove himself, or his belongings on the principle of fairplay, an opportunity is to be given remove the obstruction, but surely not on the doctrine of audi-alteram partem.

       [Para 19]

       (c) Natural Justice - Opportunity of hearing - Encroachment of public place - Court observed that no one has a right to encroach the public property & claim the procedure of opportunity of hearing - However in cases where Corporation allows settlement of encroacher for a longtime a Modicum of reasonable notice for removal may be necessary in order to have fair play - In the case impugned notices for 15 days to petitioners to remove encroachments on public streets in Non-Howking Zones proper.

       The provisions of Sec. 231 came to be considered in a recent decision of the Honble Supreme Court in Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan, reported in 1997 (1) GLH 438 and that decision is a complete answer to the contention sought to be raised on behalf of the petitioners that they may be given a hearing before removal of the encroachments. The Supreme Court observed that removal of such encroachments requires urgent action and the competent authority must ensure constant vigil on encroachment of the public places. It was observed that no one has a right to encroach the public property and claim the procedure of opportunity of hearing, which would be a tardious and time-consuming process leading to putting a premium for high-handed and unauthorised acts of encroachment and unlawful squatting.

       [Para 20]

       If the Corporation allows settlement of encroachers for a long time for reasons best known to them, then necessarily a modicum of reasonable notice for removal, say two weeks or ten days, and its personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. It was held that this would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers.

       In the instant case, the impugned notices gave 15 days time to the petitioners to remove the encroachments and clear the public streets which fall in the Non-Hawking zones. The petitioners have already for a long period thwarted the implementation of the scheme and this group of petition is yet another attempt to do the same. The Honble the Supreme Court has already expressed its displeasure against any orders being passed by the subordinate Courts, which would have the effect of thwarting the final Scheme framed by the Baroda Municipal Corporation, as noted hereinabove.

       [Para 21]

       (d) Words & phrases - Word `hawkers - Scope of - Nothing unusual in calling a person who puts up a stall or cabin for selling his goods at a public place a hawker - Contention that hawkers do not include cabin holder can hardly be accepted - Also no substance in the contention that final scheme referred to `hawkers/hand cart holders, therefore not applicable to petitioners who are cabin holders.

       The contention that the word `hawkers will not include cabin holders can hardly be accepted. There can be hawkers who have four wheeled carts or who squat on the streets and also those who have stalls. This aspect is borne out from the decision of the Honble the Supreme Court in Bombay Hawkers Union vs. Bombay Municipal Corporation, reported in AIR 1985 SC 1206. It was observed by the Honble the Supreme Court in paragraph 2 of the judgement that broadly there are three types of hawkers and that there can be hawkers who have stalls. Even in Gulam Alis case (Supra) this Court had included `galla or `cabin holders amongst the expression `hawkers and directed the Hawking and Non-Hawking Zones Scheme to be prepared in that context. Therefore, there is nothing unusual in calling a person who puts up a stall or cabin for selling his goods at a public place, a hawker. The petitioners were hawking their goods which were displayed in their cabins. In this view of the matter and more particularly because even these cabins are the subject matter of the final Scheme which had been approved by Honble the Supreme Court, there is no substance in the contention canvassed on behalf of the petitioners that these petitioners are not hawkers or that the final Scheme was not applicable to them because they were cabin holders and not hand cart holders.

       [Para 23]