Andhra Pradesh High Court - Amravati
CC/399/2018 on 5 May, 2022
Author: Battu Devanand
Bench: Battu Devanand
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THE HONOURABLE SRI JUSTICE BATTU DEVANAND
CONTEMPT CASE NO.399 of 2018
ORDER:-
This Contempt Case has been filed complaining willful disobedience in implementing the Order dated 21.06.2017 passed by this Court in W.P.No.20264 of 2017.
02. The petitioner herein filed W.P.No.20264 of 2017 before this Court to declare the action of respondent authorities in trying to remove the shops of the petitioner numbering 70 at the instance of respondent No.4 and his henchmen near the Gantyada Junction away from the BC road leading from Gajuwaka Junction as illegal, arbitrary, especially Articles 14 and 21 of the Constitution of India and contrary to the certificates of vendor cards issued by the Corporation itself to the petitioner and the street vendors Act, 2014 and the taxes that they collected from the petitioner from time to time and consequently, direct the respondent authorities not to disturb the petitioner shops and destroy their livelihood.
03. This Court, while disposing of the said Writ Petition, passed the following Order on 21-06-2017:
" Considering all the facts and circumstances of the case and the grievance of the petitioner Sangham, the respondent Corporation is directed not to interfere with the subject shops of the petitioner Sangham without following due process of law".2
04. The case of the Petitioner is that the members of the Petitioner‟s Sangam are the vendors and they are possessing valid identity cards issued by the Visakhapatnam Municipal Corporation under the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 ( for short „ the Act, 2014‟). When the Municipal Corporation authorities trying to remove them, the Petitioner‟s Sangam filed Writ Petition No.20264 of 2017 before this Court. Considering the submission made by the learned Standing Counsel for the Municipal Corporation that if the Corporation finds that the vendors of the Petitioner‟s Sangam are encroachers, then only, the Corporation will take action in accordance with law and the Corporation will not interfere with the subject shops without following due process of law, this Court dispose of the Writ Petition directing the Corporation not to interfere with the subject shops of the Petitioner‟s Sangam without following due process of law.
05. The complaint of the Petitioner‟s Sangam is that on 08.11.2017, the Corporation Officials affixed a Notice on the shops of the petitioner‟s Sangam under Section 405 and 406 r/w Section 456 of the HMC Act, giving seven days time to remove the temporary shops. On 25.11.2017, the members of the Petitioner‟s Sangam submitted a reply stating that Hyderabad Municipal Corporation Act has no application and further any attempt to forcefully remove them will amount to contempt of Hon‟ble Court Order. However, on 28.01.2018, the 3 Corporation authorities serviced an Order under Section 636 of the HMC Act, 1955, informing that the buddies of the petitioner‟s Sangam have to be removed within 24 hours, else, they will be forcefully removed. On 29.01.2018 at around 10.00 am, the Municipal Corporation authorities with huge police force destroyed the buddies of the petitioner‟s Sangam and caused huge loss to the members of the petitioner‟s Sangam and thereby destroyed their lives in toto. In view of the same, the petitioner‟s Sangam contends that the respondents willfully disobeyed the orders of this Court.
06. (i) Respondent No.1 filed Counter Affidavit contending that pursuant to the Orders passed by this Hon‟ble Court in W.P.No.20264 of 2017, dated 21.06.2017, the respondent Corporation has examined the matter and inspected the subject land and found that the shops of the petitioner sangham are in encroachment of road margin leading from Pedagantyada to BC Road as they have illegally occupied the site around the existing community hall. As the Petitioner Sangam is not allowing the respondents to construct compound wall to the community hall as the compound wall was proposed to construct to prevent the encroachers from entering into the existing community hall, the respondent Corporation issued a Notice dated 25.07.2017 under Sections 405 and 406 of GHMC Act, directing the petitioner Sangam to remove the temporary buddies erected around the said community hall, but the said Notice has been returned as 4 not claimed. Thereafter, in an abundant caution, the staff of the respondent Corporation have also affixed the Notice dated 25.07.2017 on 18.11.2017 on the buddies. Thereupon, the Petitioner Sangham sent reply dated 24.11.2017 to the Notice dated 25.07.2017 stating that not to evict them from the said place without answering to the contents of the Notice dated 25.07.2017. Thereafter, the respondent Corporation issued Proceedings in RC.No.9826/2017ACPVG1, dated 20.01.2018, directing the petitioner Sangham to remove all the temporary buddies erected around the said community hall and the same was affixed on the buddies of the petitioner Sangham on 27.01.2018.
ii) Despite the order dated 20.01.2018, the petitioner‟s Sangham did not choose to vacate the place and as such, the respondent Corporation has removed the said shops departmentally on 29.01.2018 with the aid of local police, Tahsildar along with Fire Service Department and conducted panchanama to that effect. Thereafter, the respondent Corporation has constructed the compound wall around the existing community hall. Hence, the petitioner Sangham has filed the present Contempt Case with all false allegations. In due obedience of the Orders passed by this Court dated 21.06.2017, the respondent corporation has followed due process of law before initiating eviction proceedings, and as such, the respondent has not violated the orders passed by this Court, as 5 alleged by the petitioner. Therefore, there is no willful default or deliberate violation of the Orders passed by this Court by respondent No.1 and hence, it does not come within the meaning of contempt of Court under Sections 10 to 12 of the Contempt of Courts Act, 1971. Hence, the present Contempt Case is liable to be dismissed.
07. Respondent No.2 filed Counter Affidavit contending that as per the request of Respondent No.1 vide Letter dated 27.01.2018, respondent No.2 provided necessary Police Bandobust on 29.01.2018 to maintain law and order at the subject site, wherein respondent No.1 has taken up the removal of encroachment of buddies and pendals around Sangham Office for construction of Compound Wall to the Sangham Office. He contends that the contention of the petitioner that the police force destroyed the buddies of the petitioner Sangham and removed them by causing loss to the petitioner Sangam is false and baseless. Therefore, there is no willful default or deliberate violation of the Orders passed by this Court by this respondent. Hence, the present Contempt Case is liable to be dismissed.
08. Heard Sri S. Sriramachandra Murthy, learned counsel for the petitioner, and Sri S. Lakshminarayana Reddy, learned counsel for the respondent No.1 and Sri N. Pavan Kumar, learned counsel appearing for Respondent No.2 and perused the material available on record.
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09. As per the averments made in the Counter Affidavit filed by the respondent No.1 herein, it is admitted that the Corporation issued Notice dated 25.07.2017 under Section 405 and 406 of GHMC Act. They also admitted that the petitioner‟s Sangam has submitted reply to the Notice. It is also admitted by the respondent No.1 that the Proceedings are issued on 20.01.2018, directing the members of the petitioner‟s Sangam to remove all the temporary buddies. It is also admitted that on 29.01.2018, the temporary buddies of the petitioner‟s Sangam were departmentally removed with the aid of local police, Tahsildar along with Fire Service Department staff under proper panchanama.
10. As there is no dispute with regard to the removal of the petitioner‟s Sangam temporary buddies, now the issue to be considered is whether the respondents have followed due process of law in removing the shops of the petitioner‟s Sangam as directed by this Court or not?
11. The contention of the Petitioner‟s Sangam is that the Municipal Corporation, Visakhapatnam, issued identity cards to them under the Act, 2014. This fact was stated in the affidavit filed by the Writ Petitioner, which was filed along with the Writ Petition. The same was brought to the notice of the respondent No.1 through the reply submitted by the petitioner‟s Sangam on 25.11.2011 to the notice issued by the Respondent No.1. It is 7 the specific case of the petitioner in the Writ Petition and in the reply submitted to the notice of the Corporation that the provisions of the Hyderabad Municipal Corporation Act, 1955, are not applicable to the members of the Petitioner‟s Sangam due to the reason that they were issued identity cards by the Municipal Corporation under The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, and as such, the action of the Corporation authorities in removing the members of the Petitioner‟s Sangam is in violation of the Orders passed by this Court.
12. At this stage, it is appropriate to look into the Statement of Objects and reasons and the provisions of The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. This Act 7 of 2014 was enacted by the Parliament in the Sixty Fifth year of the Republic of India. The said act was brought into force with effect from 01.05.2014.
13. The Parliament enacted this Act with the statement of objects and reasons as extracted hereinunder:
i) Statement of Objects and Reasons: Street vendors constitute an important segment of the urban population.
Street vendors are those who are unable to get regular jobs in the remunerative formal sector on account of their low level of education and skills. They earn their livelihood through their own meager financial resources and sweat equity.
2. Street vending provides a source of self-employment, and thus acts as a measure of urban poverty alleviation without major Government intervention. Street vending also acts as an instrument to provide affordable as well as convenient services to a majority of urban population and has a prominent place in the urban supply chain and are an integral part of the economic growth process within urban areas.
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3. Given the pace of urbanisation and the opportunities presented through the development of urban areas, the growth of street vendors is likely to have an upward trend. It is vital that these vendors are enabled to pursue their livelihoods in a congenial and harassment free atmosphere.
4. Considering the significant contribution made by street vendors to the urban society as a whole, more specifically to the comparatively poorer sections, and to enable them to earn a livelihood through creation of good working conditions, without causing obstruction to the public, the Government of India brought out revised National Policy on Urban Street Vendors, 2009, which aims at securing right of the citizens to have adequate means of livelihood as enshrined in Articles 14, 19(1)(g), 38(2), 39(a), 39(b) and 41 of the Constitution and fostering a congenial environment for the urban street vendors to carry out their activities, without harassment from any quarter. It also aims at providing a mechanism for regulation of street vending activities to avoid congestion on sidewalks and to ensure free flow of traffic on roads by a legislative framework to enable street vendors to pursue a honest living without harassment.
14. In Section 2 (L) the "Street Vendor" is defined as extracted hereinunder:
"street vendor" means a person engaged in vending of articles, goods, wares, food items or merchandise of everyday use or offering services to the general public, in a street, lane, side walk, footpath, pavement, public park or any other public place or private area, from a temporary built up structure or by moving from place to place and includes hawker, peddler, squatter and all other synonymous terms which may be local or region specific; and the words "street vending" with their grammatical variations and cognate expressions, shall be construed accordingly;
15. In Section 18, the procedure for Relocation or Eviction of Street Vendors is provided as extracted hereinunder:
18. Relocation or eviction of street vendors.--
(1) The local authority may, on the recommendations of the Town Vending Committee, declare a zone or part of it to be a no-vending zone for any public purpose and relocate the street vendors vending in that area, in such manner as may be specified in the scheme.
(2) The local authority shall evict such street vendor whose certificate of vending has been cancelled under section 10 or who does not have a certificate of vending and vends without 9 such certificate, in such manner as may be specified in the scheme.
(3) No street vendor shall be relocated or evicted by the local authority from the place specified in the certificate of vending unless he has been given thirty days‟ notice for the same in such manner as may be specified in the scheme.
(4) A street vendor shall be relocated or evicted by the local authority physically in such manner as may be specified in the scheme only after he had failed to vacate the place specified in the certificate of vending, after the expiry of the period specified in the notice.
(5) Every street vendor who fails to relocate or vacate the place specified in the certificate of vending, after the expiry of the period specified in the notice, shall be liable to pay for every day of such default, a penalty which may extend up to two hundred and fifty rupees, as may be determined by the local authority, but shall not be more than the value of goods seized.
16. In Section 27, the protection provided for street vendors from police and other authorities as extracted hereinunder:
27. Prevention of harassment by police and other authorities.--
Notwithstanding anything contained in any other law for the time being in force, no street vendor who carries on the street vending activities in accordance with the terms and conditions of his certificate of vending shall be prevented from exercising such rights by any person or police or any other authority exercising powers under any other authority exercising powers under any other law for the time being in force.
17. On careful perusal of the above mentioned provisions of the Act 7 of 2014, the Local Authority has to issue 30 days‟ notice to relocate or evict the street vendor. Admittedly, no such notice contemplated under Section 18 of the Act was issued to the members of the petitioner‟s Sangam. Though the Petitioner‟s Sangam contended in the Writ Petition and also in the reply to the show cause notice issued by the Corporation, the contention of the petitioner did not consider by the Corporation Officials and removed the members of the 10 Petitioner‟s Sangam with the help of Police, Revenue and Fire Service Department Staff.
18. As per the direction of this Court, the Corporation authorities have to follow due process of law and till such time, they are directed not to interfere with the subject shops of the Petitioner‟s Sangam. In view of the aforestated factual position, in the considered opinion of this Court, the Corporation authorities without following due process of law provided under the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, which is applicable to the petitioner, high handedly removed the temporary buddies of the members of the petitioner‟s Sangam, and as such, in our considered view, the respondent No.1 willfully disobeyed the order passed by this Court. Therefore, the respondent No.1 is found guilty of Contempt of Court and he is liable for the punishment under the provisions of the Contempt of Court Act.
19. As per the request of the respondent No.1 vide Letter dated 27.01.2018, the respondent No.2 provided Police Aid on 29.01.2018 to maintain law and order at the subject site, wherein the respondent No.1 has taken up the removal of Petitioner‟s buddies. Therefore, in our view, the respondent No.2 discharged his official duties to provide Bandobust as per the request of the respondent No.1, and as such, in our view, there is no contempt on the part of the respondent No.2. 11 Accordingly, this Contempt Case can be closed against the Respondent No.2.
20. With regard to Respondent No.3, on careful examination of the record, there is no material available to come to a conclusion that he has committed Contempt of Court and as such, the Contempt Case can be closed against the Respondent No.3.
21. For the aforementioned reasons, this Contempt Case is allowed against the Respondent No.1 and the Contemnor is sentenced to undergo Simple Imprisonment for a period of three months and to pay a fine of Rs.2,000/- (Rupees Two Thousand only), in default of payment of fine, he shall undergo Simple Imprisonment for a period of one week.
22. The Contempt Case against Respondent Nos. 2 and 3 is dismissed.
23. After dictating the above order, the learned counsel for the Respondent No.1/Contemnor requested this Court to suspend the above order, so as to enable him to prefer an appeal.
24. At request of learned counsel for Respondent No.1/Contemnor, the above order is suspended for a period of Six (06) weeks to prefer an appeal. In case, no appeal is preferred or no stay is granted by the Appellate Court in the Appeal, if any preferred, the Respondent No.1/Contemnor shall 12 surrender before the Registrar (Judicial), High Court of Andhra Pradesh, on 16.06.2022 before 05.00 pm to undergo sentence. On such surrender, the Registrar (Judicial) shall commit him to jail to undergo punishment.
25. There is no order as to costs.
Miscellaneous petitions pending, if any, in this case shall stand closed.
______________________ JUSTICE BATTU DEVANAND Date: 04.05.2022 eha 13 THE HONOURABLE SRI JUSTICE BATTU DEVANAND C.C.No.399 of 2018 Date : 04.05.2022 eha