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Madras High Court
PADMANABHAN
K.Sudarsan - Appellant
Versus
Commissioner, Corporation of Madras - Respondent
Decided On : 04/13/1983
The Madras City Municipal Corporation Act, 1919 (Madras Act IV of 1919) (the Act) vests the public streets in the Corporation and empowers it to maintain and repair them. Section 223(5) of the Act authorizes the Corporation to lease road sides and street margins for occupation on such terms and conditions and for such period as it may fix. The petitioners, who are shop owners in Ranganathan Street, Rattan Bazaar Road, and N.S.C. Bose Road in Madras, filed writ petitions seeking the issue of a writ of mandamus directing the Corporation to remove the hawkers and pedlars who had occupied the pavements and kerbs of these roads, obstructing the petitioners' access to their shops and causing inconvenience to the public. The Corporation contended that it had leased the road sides and street margins to the hawkers under Section 223(5) of the Act and that the hawkers had been permitted to carry on their trade only between 5.00 and 9.00 p.m. on a day. The High Court held that the Corporation had acted without jurisdiction in permitting the hawkers to trade on the pavements of the roads in question, as Section 223(5) of the Act did not authorize the Corporation to lease out a public street or a portion thereof. The Court also held that the hawkers had no fundamental right to carry on trade on public streets and that their presence on the pavements amounted to a public nuisance. However, the Court granted the Corporation twelve months' time to make alternative arrangements and to remove the obstruction on the roads, considering the economic realities of the situation and the need to provide the hawkers with a place to carry on their trade. The Court also directed the Corporation not to permit any more persons to make encroachments on the roads for the purpose of carrying on trade.
Fact of the Case:
The petitioners, who are shop owners in Ranganathan Street, Rattan Bazaar Road, and N.S.C. Bose Road in Madras, filed writ petitions seeking the issue of a writ of mandamus directing the Corporation to remove the hawkers and pedlars who had occupied the pavements and kerbs of these roads, obstructing the petitioners' access to their shops and causing inconvenience to the public. The Corporation contended that it had leased the road sides and street margins to the hawkers under Section 223(5) of the Act and that the hawkers had been permitted to carry on their trade only between 5.00 and 9.00 p.m. on a day.
Finding of the Court:
The High Court held that the Corporation had acted without jurisdiction in permitting the hawkers to trade on the pavements of the roads in question, as Section 223(5) of the Act did not authorize the Corporation to lease out a public street or a portion thereof. The Court also held that the hawkers had no fundamental right to carry on trade on public streets and that their presence on the pavements amounted to a public nuisance.
Issues: 1. Whether the Corporation had the authority to lease out the pavements of the roads in question to the hawkers under Section 223(5) of the Act. 2. Whether the hawkers had a fundamental right to carry on trade on public streets. 3. Whether the presence of the hawkers on the pavements amounted to a public nuisance.
Ratio Decidendi: 1. Section 223(5) of the Act authorizes the Corporation to lease road sides and street margins for occupation, but it does not authorize the Corporation to lease out a public street or a portion thereof. The pavements of the roads in question are part of the public streets and therefore the Corporation had no authority to lease them out to the hawkers. 2. The hawkers have no fundamental right to carry on trade on public streets. The right to carry on trade is a fundamental right only when it is carried on in a lawful manner and in a place where it is permitted by law. Carrying on trade on public streets is not a lawful manner and is therefore not protected by the fundamental right to carry on trade. 3. The presence of the hawkers on the pavements amounts to a public nuisance. A public nuisance is an act or omission which causes inconvenience or annoyance to the public. The hawkers' occupation of the pavements obstructs the free passage of the public and causes inconvenience to the shop owners, and therefore it amounts to a public nuisance.
Final Decision: The High Court issued a writ of mandamus directing the Corporation to remove the hawkers and pedlars from the pavements and kerbs of the roads in question within twelve months. The Court also directed the Corporation not to permit any more persons to make encroachments on the roads for the purpose of carrying on trade.
ORDER :- These writ petitions give rise to certain interesting questions of law. The petitioners in W. P. 1127 of 1980 and W. P. 2415 and 2416 of 1982 are merchants and they have their shops in Ranganathan St. T. Nagar, Madras. They have prayed for the issue of a writ of Mandamus directing respondents 1 to 3 to act according to law in removing the hawkers and pedlars from Ranganathan Street, Madras 17 and also the pavements and kerbs therein and to render them absolutely free from obstruction for vehicles and pedestrians from access to the petitioners, shops. Respondents 4 and 5 have been impleaded as additional respondents.
The 4th respondent is the President of the Anna Sirukadai Viyabarigal Sangam.
2. The petitioners in W. P. 7078 of 1980 and 1049 of 1981 are shop owners who carry on their business in N. S.C. Bose Road and Rattan Bazar Road, Madras 1. The prayer in these writ petitions is for the issue of a writ of Mandamus directing the respondents viz., the Municipal Corporation of Madras represented by its Commissioner, and the Commissioner of Police, Madras, directing them to remove the obstructions and encroachments made by the unauthorised hawkers on the N. S.C. Bose Road and Rattan Bazar Road, Madras-1.
3. I shall refer to the facts in W. P. 2416 of 1982. Ranganathan Street connects Mambalam railway station and Usman Road. According to the petitioners, it is a prestigious business center where there are a number of shopkeepers engaged in the sale of goods of all types and varieties. In view of the fact that the shopping centre in the street attracts a number of customers the shopkeepers have incurred heavy expenditure . ... .. ... ...
in decorating their shops and equipping them with costly fittings and fixtures to attract the customers. The annual turnover for all the shopkeepers is said to be very high and on those shops depend more than 750 people for their livelihood. The width of Ranganathan Street is said to be 30 ft. In view of the fact that Rananathan Street is a connecting link road of Mambalam Railway Station and Usman Road, many persons pass and repass through the street during the day and late in the night. According to the petitioners, since the last few years hundreds of street vendors, referred to as hawkers for the purpose of convenience, have occupied Ranganathan Street. The hawkers are said to sell their wares ranging from vegetables to various other items on the street itself. For the purpose of carrying on their business, the hawkers squat on the street in a continuous line, they thereby effectively prevent customers from entering the shops and also the occupiers in the shops from carrying on their trade in Ranganathan Street. They also obstruct the view of the shops and the show cases from the street. As a result, the business of the various shopkeepers has not only fallen but they are being effectively prevented from carrying on their business. It is further stated in the affidavit that people find it difficult to have unrestricted ingress and egress in Ranganathan Street. On account of the presence of these hawkers Ranganathan Street has become so crowded that it has become impracticable for any person to pass and repass through the street. It is further averred that the first respondent, the Commissioner of Corporation of Madras has unauthorisedly permitted these hawkers to squat on Ranganathan Street and sell their wares by authorising a contractor to collect a fee of 25 paise every day from these hawkers. The first respondent has no authority under the City Municipal Corporation Act to permit these hawkers to carry on their trade in Ranganathan Street, thereby obstructing people from passing and repassing around the street. It is in these circumstances, the writ petitions have been filed. The petitioners have further stated that apart from them, other people who have their shops in the street have got a right to free and unrestricted egress and ingress to the street and that the said
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