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Madras High Court
M. N. CHANDURKAR,SATHIADEV
M.A.Pal Mohammed - Appellant
Versus
R.K.Sadarangani - Respondent
Decided On : 08/09/1984
MADRAS CITY MUNICIPAL CORPORATION ACT - S.223(5) - ENABLING PROVISION - LEASING OF ROADSIDES AND STREET MARGINS - SCOPE - COMMON LAW RIGHTS OF PUBLIC TO USE EVERY INCH OF PUBLIC STREET - APPLICABILITY - REGULATORY MEASURES BY AUTHORITIES - REASONABLENESS - HAWKER TRADE - REGULATION - NECESSITY - PUBLIC NUISANCE - DETERMINATION - FACTORS.
Fact of the Case:
Shop owners and merchants in Nethaji Subash Chandra Bose Road, Rattan Bazaar Road, and Ranganathan Street in Madras filed writ petitions seeking a writ of mandamus directing the Commissioner of Corporation of Madras and the Commissioner of Police, Madras, to remove obstructions and encroachments made by unauthorized hawkers in those roads. The learned Judge held that the Commissioner of Corporation "has permitted an unauthorized obstruction or encroachment of public streets within the meaning of the Act, and consequently, they are bound to act according to law to remove the encroachments". Hence, respondents were directed to act according to law and remove the obstructions on these public streets by removing the hawkers from the areas occupied by them in the respective roads. To implement this directive, respondents were granted 18 months' time to make alternative arrangements, even though the hawkers cannot insist on alternative sites of their choice to be allotted. On behalf of the hawkers, it was submitted that the enablement envisaged in S.223(5) of the Madras City Municipal Corporation Act (Act IV of 1919) (hereinafter referred to as the Act), had been misunderstood and misapplied; in the absence of a demand made on public authorities to discharge their duties, a Writ of Mandamus cannot issue; for an alleged tort committed, the recourse could be only to a Civil Court and not to resort to remedy under Art.226 of the Constitution of India; the concepts of ingress and egress from every point of a private property on to the road and the right of public to use every inch of a road being antiquated notions and not suited to the requirements of Indian polity, the reliance placed on these concepts, rested on law obtaining in England, is erroneous; the period of 18 months granted is unrelated to realities, since hawkers in Ranganathan street having come earlier to construction of shops, they have acquired a customary right of such usage; when Corporation of Madras, the first respondent had come forward with a proposal to regulate hawker trade in Nethaji Subash Chandra Bose Road (hereinafter called as Bose Road) and Rattan Bazar by drawing lots on 15-12-1980, it being a regulatory measure, at the instance of the writ petitioners, such an arrangement cannot be set at naught.
Finding of the Court:
The Court held that S.223(5) of the Act empowers the Council only to lease out roadsides and street margins. Roadsides and street margins mentioned in S.223(5) of the Act are entirely different from public streets or portions thereof. S.223(5) does not authorise the Council to lease out a public street or a portion thereof. Therefore, the pavements on which the hawkers are carrying on their trade cannot be called as a roadside or a street margin. If so, the first respondent cannot grant any licence under S.223(5) of the Act. Once it is held that the hawkers are carrying on their trade only in public street, the further question that would arise is whether the hawkers can be allowed to continue their trading activities in such streets and what is the duty of the Corporation in their regard and what is the right of the general public to use such public streets. The Court further held that the common law rights relied upon could have no applicability, if the statute itself enables the concerned Council/authority to lease or license out any portion of a highway. The Court also held that the concept of right over every inch of a public street is not an untrammelled right but has to be necessarily regulated depending upon the nature of requirements of the general public. If structures are put upon a public street, as held in Municipal Board v. Mahadeoji (1965) 2 SCR 242 : (AIR 1965 SC 1147), they could be only for the necessary maintenance or user of the street, but if the statute itself authorises leasing out of a portion of the public street, in a particular manner, then the concept of right over every inch is subject to the statutory directive. The Court also held that hawker trade, so long as it is regulated in a proper manner by concerned public authorities, could never be a public nuisance. Rather, general public by and large, are not only attracted by this type of trade, but look forward to it for more than one reason.
Issues: 1. Whether S.223(5) of the Madras City Municipal Corporation Act (Act IV of 1919) enables the Corporation of Madras to lease roadsides and street margins, as it may deem fit? 2. Whether a Writ of Mandamus can issue in the absence of demand made on the public authorities? 3. Whether for an alleged tort committed, the recourse could be only to a Civil Court and not to resort to remedy under Art.226 of the Constitution of India? 4. Whether the concepts of ingress and egress from every point of a private property on to the road and the right of public to use every inch of a road being antiquated notions and not suited to the requirements of Indian polity, the reliance placed on these concepts, rested on law obtaining in England, is erroneous? 5. Whether the period of 18 months granted is unrelated to realities, since hawkers in Ranganathan street having come earlier to construction of shops, they have acquired a customary right of such usage? 6. Whether when Corporation of Madras, the first respondent had come forward with a proposal to regulate hawker trade in Nethaji Subash Chandra Bose Road (hereinafter called as Bose Road) and Rattan Bazar by drawing lots on 15-12-1980, it being a regulatory measure, at the instance of the writ petitioners, such an arrangement cannot be set at naught?
Ratio Decidendi: 1. S.223(5) of the Act empowers the Council only to lease out roadsides and street margins. Roadsides and street margins mentioned in S.223(5) of the Act are entirely different from public streets or portions thereof. S.223(5) does not authorise the Council to lease out a public street or a portion thereof. Therefore, the pavements on which the hawkers are carrying on their trade cannot be called as a roadside or a street margin. If so, the first respondent cannot grant any licence under S.223(5) of the Act. Once it is held that the hawkers are carrying on their trade only in public street, the further question that would arise is whether the hawkers can be allowed to continue their trading activities in such streets and what is the duty of the Corporation in their regard and what is the right of the general public to use such public streets. 2. In the absence of a demand made on public authorities to discharge their duties, a Writ of Mandamus cannot issue. 3. For an alleged tort committed, the recourse could be only to a Civil Court and not to resort to remedy under Art.226 of the Constitution of India. 4. The concepts of ingress and egress from every point of a private property on to the road and the right of public to use every inch of a road being antiquated notions and not suited to the requirements of Indian polity, the reliance placed on these concepts, rested on law obtaining in England, is erroneous. 5. The period of 18 months granted is unrelated to realities, since hawkers in Ranganathan street having come earlier to construction of shops, they have acquired a customary right of such usage. 6. When Corporation of Madras, the first respondent had come forward with a proposal to regulate hawker trade in Nethaji Subash Chandra Bose Road (hereinafter called as Bose Road) and Rattan Bazar by drawing lots on 15-12-1980, it being a regulatory measure, at the instance of the writ petitioners, such an arrangement cannot be set at naught.
Final Decision: W. A. No. 377 of 1983 is allowed and W. A. Nos. 715 and 716 of 1984 are allowed to the limited extent as indicated above, no costs.
SATHIADEV, J. :- These appeals are preferred against a common judgment rendered by Mr. Justice Padmanabhan in W. P. Nos. 1127 and 7078 of 1980, 1049 of 1981 and 2415 and 2416 of 1982 (Reported in AIR 1984 Mad 292). Writ Appeal No. 377 of 1983 is directed against W. P. No. 7078 of 1980, and W. A. Nos. 715 and 716 of 1984 are against W. P. No. 2146 of 1982 and WP No. 1127 of 1980. The writ petitions were filed by merchants who have their shops in Nethaji Subash Chandra Bose Road, Rattan Bazaar Road and Ranganathan Street in Madras, and they have sought for issue of writs of Mandamus directing the respondents, i.e., the Commissioner of Corporation of Madras and the Commissioner of Police, Madras, to remove the obstructions and encroachments made by unauthorised hawkers in those roads. The learned Judge held that, by permitting hawkers to carry on trade on the pavements of these roads, the Commissioner of Corporation "has permitted an unauthorised obstruction or encroachment of public streets within the meaning of the Act, and consequently, they are bound to act according to law to remove the encroachments". Hence when the merchants-petitioners have established their right for issue of a writ of mandamus, respondents 1 and 2 were directed to act according to law and remove the obstructions on these public streets by removing the hawkers from the areas occupied by them in the respective roads. To implement this directive, respondents were granted 18 months' time to make alternative arrangements, even though the hawkers cannot insist on alternative sites of their choice to be allotted. Further, the first respondent was also directed not to permit any more persons to encroach on these roads.
2. In these appeals, on behalf of the hawkers, Mr. K. V. Sankaran and Mr. K. N. Balasubramaniam submit that 1. the enablement envisaged in S.223(5) of the Madras City Municipal Corporation Act (Act IV of 1919) (hereinafter referred to as the Act), had been misunderstood and misapplied;
2. in the absence of a demand made on public authorities to discharge their duties, a Writ of Mandamus cannot issue;
3. for an alleged tort committed, the recourse could be only to a Civil Court and not to resort to remedy under Art.226 of the Constitution of India;
4. the concepts of ingress and egress from every point of a private property on to the road and the right of public to use every inch of a road being antiquated notions and not suited to the requirements of Indian polity, the reliance placed on these concepts, rested on law obtaining in England, is erroneous;
5. the period of 18 months granted is unrelated to realities, since hawkers in Ranganathan street having come earlier to construction of shops, they have acquired a customary right of such usage;
6. when Corporation of Madras, the first respondent had come forward with a proposal to regulate hawker trade in Nethaji Subash Chandra Bose Road (hereinafter called as Bose Road) and Rattan Bazar by drawing lots on 15-12-1980, it being a regulatory measure, at the instance of the writ petitioners, such an arrangement cannot be set at naught.
3. Shop owners and merchants in Bose Road and Rattan Bazar Road claim that they have taken their shops on huge rents and spent considerable amounts in decorating them and that nearly 12,000 people are employed in these shops. The hawkers have occupied large areas in pavements and erected wooden platforms and thereby prevented free access to their shops. Certain shopkeepers filed W. P. No. 878 of 1979 through the Madras Merchants Chamber for issue of a Writ of Mandamus directing removal of hawkers, and on the Court being informed by first respondent that the pavements have been made free from encroachments by unauthorised hawkers, it was dismissed as infructuous, on 15-11-1979. Up to Sept. 1980, these two roads were free from encroachments, but from Oct. 1980 onwards they began to reappear, and now the pavements have been reoccupied. An announcement having been made
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