Andhra HC (Pre-Telangana)
Mohammed Suleman And Another vs Special Officer, Municipal ... on 22 February, 1994
Equivalent citations: AIR1994AP275, AIR 1994 ANDHRA PRADESH 275, (1994) 1 LS 217 (1992) 2 ANDH LT 193, (1992) 2 ANDH LT 193
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER
1. The petitioners herein claim to have erected temporary wooden structures (referred to in the writ petition as Dabbas) of the dimension of 6 x 4 feet some time in or about the year 1980 and they have been doing the business of auto-electrical repairs of vulcanising. These two structures (or bunks) rest on the compound wall of King Koti Palace building adjacent to the public road. The petitioners submit that the Municipal Corporation has been granting permission to run shops after collecting encroachment fee. The first encroachment fee receipt issued by the Municipal Corporation on 24-8-81 and the last of the receipts dated 2-3-91 issued to the 1st petitioner are filed. In the case of the 2nd petitioner, the encroachment-fee receipt dated 10-9-85 and 21-3-91 are filed. It is seen from the letter dated 24-4-81 issued by the Estate Officer of the Municipal Corporation and the receipts that the encroachment-fee was collected and permission was granted on year to year basis. It is claimed that there is no obstruction to the vehicular traffic or pedestrians on account of the existence of these bunks. It is not in dispute that after the year 1991, no encroachment-fee was collected from the petitioners and no permission was granted to the petitioners. It is stated in the writ petition that the officials of the Municipal Corporation 'dodged' to receive the fees and they began threatening to remove the Dabbas on 10-11-93. The oral representation made by the petitioners was of no avail. Hence the petitioners submit that they have no other alternative but to approach this Court. The petitioners have sought for a direction to the respondent not to interfere with the peaceful possession of the Dabbas and not to remove them and to regularise their continuance or to allow separate space for doing their business. The learned counsel for the petitioners submits that the threatened action of the Municipal Corporation is violative of the petitioners' rights under Articles 19 (1)(g) and 21 of the Constitution, that the Municipal Corporation cannot interfere with their right to do business unless and until appropriate space is allotted to them and that the Municipal Corporation itself, having permitted the petitioners to put up temporary bunks on the collection of fee, cannot force the petitioners to remove them. In any case, without giving a reasonable notice, the peti-
tioners cannot be evicted. It is also submitted in the course of arguments that some other persons who have put up similar structures are being permitted to continue at the same place and that the action against the petitioner amounts to discrimination. The learned Counsel has relied upon various judgments of this Court which will be adverted to later.
2. In the counter affidavit filed by the Assistant City Planner, Circle VI on behalf of the respondents, it is stated that the Corporation, with a view to take up the widening of Boggulakunta road as per approved road development plan, had not been collecting encroachment-fee from the petitioners from 1990-91 onwards. It is stated that the existing old compound wall of King Koti is being affected by the road widening. The Corporation is taking over the site from the concerned owners including the State Government for road widening. By allowing scooters and other vehicles in front of their bunks, lot of traffic problems are created by the petitioners on this important road. It is denied that the petitioners have ever approached the Corporation. It is then stated that the petitioners' bunks were removed on 16-11-93 and suppressing this fact the present writ petition was filed as if there is a threat of removal. It is categorically stated that the petitioners' bunks are no longer existing on the road in question. It is submitted that the Corporation has removed all the encroachments excepting the bunks covered by the order of the City Civil Court. In the course of arguments, it is stated that even those bunks have been removed after the injunction order was vacated. It is contended that the Corporation has every right to remove the encroachment by exercising the power under Section 405 of the Hyderabad Municipal Corporation Act.
3. It is submitted by the learned Counsel for the respondent that no notice need be given under any statutory provision for removing the encroachments on a public road and that the petitioner's cannot plead their individual hardship when a public utility work is being undertaken by the Corporation. It is submitted that the question of invasion of petitioner's fundamental rights does not arise in a case of this nature and the Corporation did not adopt any discriminatory attitude as alleged by the petitioners. Inasmuch as the structures of petitioners have already been removed by the date of filing the writ petition, it is submitted that the writ petition itself has become infructuous.
4. First I will take up the contention whether the petitioners should have been put on notice before the removal of the structures by the Corporation officials. This raises the question whether Sec. 405 of the Hyderabad Municipal Corporation Act would apply or Sec. 406 would apply. If it is a case falling under Section 405, the Commissioner is not normally required to give prior notice before removing the unauthorised structures. Whether or not principles of natural justice apply under any circumstances in a case falling under Section 405 is a different aspect which I shall deal with later. Under Sec. 406, the Commissioner may, by written notice, require the owner or occupier of the premises to remove the wall, fence, rail, post, step, booth or other structure or thing. However, if the structure or fixture had been lawfully erected or set up compensation should be paid by the Corporation to the person who sustains loss or damage by the removal thereof. Sec. 405 is a specific provision which empowers the Commissioner to remove any wall, fence, rail, post, step, booth or other structure whether fixed or movable and whether of a permanent or a temporary nature or any fixture which shall be erected or set up in or upon or over any street, open channel, drain, well or tank contrary to the provisions of this Act. The term 'street' includes a highway, a road footway, path or passage. The 'Dabbas' erected by the petitioners comes under a booth or 'other structure'. The said structure being an-en-croachment over a road or foot-fath or passage, is liable to be removed without notice. The very judgment cited by the learned Counsel for the petitioners brings out the distinction between the two sections, though there appears to be a typographical or inadvertent error in referring to Sec. 405 as Sec. 406 here and there. This is what the Division Bench consisting of Sardar Ali Khan and M. N. Rao, JJ. in M. Rajkumar v. Excise Superintendent, said:
"Under S'. 406 what is really contemplated is that where the situation brooks no delay and where there is a clear element of urgency involved in the matter, for instance, if any wall, fence, rail, post, path or other structure.... or any fixture which has been erected or set up in or upon or over any street, any open channel, drain, well or tank, contrary to the provisions of the Act, then, obviously it stands to reason that the Commissioner cannot be put to the trouble of giving notice in such matters which call for immediate remedy to be resorted to remove the obstacle which has been created in the public interest..... The overall point to be read within the frame-work of S. 406 is that it is only when immediate action is required in public interest, such structures which have been put up as mentioned therein can be caused to be removed by the Commissioner by dispensing with giving of a notice. S. 406 of the Hyderabad Municipal Corporation Act, on the other hand, lays down the well-recognised principle that the Commissioner may, by written notice, cause to be removed certain structures or fixtures which are erected or set up....... It is a well recognised proposition of law which, perhaps, requires no citation of cases that a person, who is the owner or occupier of the premises of the nature existing in this case cannot be proceeded against in the absence of a prior notice issued by the Commissioner. In other words, the law does not permit any one to spring a surprise by way of demolition of the premises consisting of the shop of the type in question which has been in existence for a period of ten years of which the 1st petitioner is a licensee since 17-11-1990".
The learned Judges then left it to the Corporation to proceed against the petitioner if they deem fit and proper after giving notice to the petitioner in accordance with law. In the case dealt with by the Division Bench, it does not appear- that the structure which was sought to be demolished was put up on a street. The structure sought to be demolished therein was a private premises in which the toddy business was being carried on. Hence, Sec. 406 was held to be applicable. The observations in this judgment do not therefore support the petitioners' case. Apart from the distinction pointed out by the Division Bench, Sec. 406 in my considered view, ' applies to structures or fixtures which might have been lawfully erected or set up initially but the continued existence thereof becomes unlawful in view of the subsequent amendments to the Act or the Rules or in view of certain subsequent events, such as cancellation of permissions wrongly granted earlier. In such a case, the owner or occupier of the contiguous premises in relation to which the structure was erected, can be asked to remove the same subject, of course, to the obligation on the part of the Corporation to pay compensation for the loss or damage sustained on account of removal or alteration of the structure.
5. The learned counsel for the petitioners has referred to the judgment of a Division Bench of this Court in W. A. No. 1400/92 wherein it was directed that the persons having 'Dabbas' by the side of compound wall of D. M. H. Office shall not be evicted without following the due procedure and in accordance with law. It is not mentioned therein what the due procedure is and whether the writ petitioners were entitled to prior notice. In the absence of any such discussion, that decision is not of much help to resolve the present controversy.
6. In my considered view, Sec. 405 of the H.M.C. Act while it enables the Commissioner to direct removal of a structure or fixture erected or set up in or upon a street contrary to law, does not give a carte-blanche to the Commissioner to act without notice, in each and every case falling under Clause (a) of Section 405. The expression 'may' is significant. It imports an element of discretion confided to the designated statutory authority viz., the Commissioner. Removal without notice is not a 'must' in all cases despite the fact that the structure, etc. mentioned in Clause (a) of Section 405 had been erected in -violation of the provisions of the Act. Far from casting a mandatory obligation to proceed without notice, the opening part of the section vests the Commissioner with discretion to proceed to take action without notice to the affected person. It is well settled that a discretionary power has to be exercised reasonably on a proper application of mind to the facts of the case. A discretion exercised casually and without application of mind to the relevant factors introduces an element of arbitrariness and strikes at the root of the exercise of power. Distortions or excesses in the exercise of discretionary power have to be scrupulously avoided by the repository of power. Viewed from this angle, can it be said that in the instant case the Commissioner exercised the discretion in a reasonable manner after taking into account the relevant factors? On the facts of this case, I am unable to say that the Commissioner was justified in law in causing the structures in question to be removed without any notice. The wooden structures were erected by the petitioners more than a decade back to the full knowledge of the officials of the Municipal Corporation. It is the specific case of the petitioners that they obtained permission from the Corporation for the erection of the wooden 'Dabbas'. In the material papers filed along with the writ petition, the communication dated 24-8-81 issued by the Estate Officer, M.C.H. -- the 1st petitioner, has been filed. The communication reads as follows:
"With reference to your application cited, you are hereby directed to pay a sum of Rs. 384/- (Rupees three hundred and eighty four only) towards encroachment fee for one year w.e.f. 1-4-1981 in advance for erection of Wooden Bunj admeasuring 4' x 4' = 16 sq. feet at Kingkothi Palace compound wall and on the way to Boggulakunta as per plan and intimate within (7) days so that further action can be taken."
This communication read in conjunction with the encroachment-fee receipts covering several years starting from 1981 furnish clear proof that the officials of the Municipal Corporation allowed the petitioners to carry on the business in these wooden Dabbas. The allegation that the petitioners were granted permission has not been denied in the counter. No records have been placed before me to rebut the material furnished by the petitioners in this regard. It may be that the two structures were erected on the 'street' without specific permission of the Commissioner as contemplated by Section 401 of the H.M.C. Act. But the fact remains that the Corporation officials did extend their blessings to the initially unauthorised act and even addressed official commications to remit a specific sum towards encroachment-fee 'in advance' for the erection of the structures. Going by this communication, it may even give the impression that the structures were put up only after getting the permission from the Estate Officer of the Municipal Corporation. But, in view of the specific statement in the affidavit that the petitioners put up these structures in the year 1980, the only inference to be drawn is that permission was granted to the petitioners in the year 1981 to occupy the structures already put up and to carry on their business subject to payment of encroachment-fee. Such permission may not be strictly in accordance with Section 401 of the H.M.C. Act. Nevertheless, as I already said, the structures were allowed to remain by the Municipal Corporation for well over a decade by the conscious act of collecting the encroachment-fee as quid pro quo. The other fact to be noted is that the road-widening programme was in the contemplation of the Corporation at least from the year 1991 onwards. This is quite clear from the averments in para-2 of the counter. It is stated in the counter that from 1990-91, the Corporation had not been collecting the encroachment-fee. If so, no grave urgency could have arisen overnight so as to warrant a drastic action of demolition of the decade-old structures without notice. Considerations of fair play and justice could have at least prompted the Corporation authorities to give a notice to the petitioners giving reasonable time for vacation/removal of structures instead of taking the petitioners by surprise on the crucial day. It must therefore be held that the invocation of the power to remove the offending structures under Section 405 of H.M.C! Act without notice is arbitrary and unjustified. Having regard to the undisputed and indisputable facts of the case, a reasonable notice, say, of about three or four weeks could not have resulted in any detriment to the public interest or convenience. On the other hand, it would have brought about fair deal and just treatment to the petitioners who were in a way encouraged by the Corporation itself to put up the structures. Before parting with the discussion on this aspect, I would like to refer to the judgment of the Bombay High Court in Catholic Association of Bombay v. Municipal Corporation of Greater Bombay, . That was a case of removal of a Holy Cross projecting over the pedestal of a forty feet-wide public street without notice under Section 314 (a) of the Bombay Municipal Corporation Act. S. M. Daud, J. pointed out firstly that the fixture removed did not really constitute an obstruction or an encroachment upon any portion of the street. Secondly it was held that even if Section 314 of the Act applied, it did not exclude a reasonable procedure to be followed depending upon the circumstances of the case. This part of the reasoning of the Bombay High Court equally applies to the present case.
7. In view of the above discussion I must hold that the removal of the wooden structures without giving any prior notice to the petitioners is an arbitrary and illegal action on the part of the Municipal Corporation. What relief has to be granted in the light of this finding will be dealt with later.
8. The learned Counsel for the petitioner relied upon certain passages in Saudan Singh v. N. D. M. C., in support of this contention that the petitioners' right to do business by occupying the wooden structures permitted to be erected by the Corporation itself cannot be interfered with, especially when proper alternative site has not been allotted to the petitioners. At paragraph 2 of the aforementioned judgment, the Supreme Court observed:
"It is, therefore, settled law that every citizen has a right to the use of a public street vested in the state as a beneficiary but this right is subject to such reasonable restrictions as the State may choose to impose. Stree-trading is albeit a fundamental right under Art. 19(1)(g) of the Constitution but it is subject to reasonable restrictions which the State may choose to impose by virtue of Cl. (6) of Art. 19 of the Constitution. The right to street-trading under Art. 19 (1)(g) of the Constitution does not, however, extend to a citizen occupying or squatting on any specific place of his choke on the pavement regardless of the right of others, including pedestrians, to make use of the pavements. In other words, the law laid down by the Constitution Bench permits a citizen to hawk on the street pavement by moving from one place to another without being stationary on any part of the pavement vested in the State."
9. Far from supporting the case of the petitioners, these observations negative the existence of any fundamental or other legal right to put up a structure on road margin and run a workshop therein. The petitioners cannot compare themselves to hawkers selling sundry articles on pavements. Even in that case, the Supreme Court made it clear that the hawkers did not have any unrestricted or unfettered right. The limited right to hawk, on the pavements by moving from one place to another without being stationary and without causing inconvenience to the pedestrians was emphasised by the Supreme Court. In the aforementioned case, the Supreme Court was only reiterating the legal position laid down by the Constitution Bench in Sodan Singh v. N. D. M. C., AIR 1989 SC 1988 : 1989 All LJ 1097. It is therefore apposite to refer to some of the observations of the Constitution Bench in Sodan Singh's case which were reiterated in the later judgment in the same case. At paragraph 20, it was held that the hawkers doing business on pavements cannot invoke Article 21 of the Constitution. Referring to OLGA Tellis v. Bombay Municipal Corporation, the Supreme Court observed:
"It was not a case of a business of selling articles after investing some capital, however meagre."
The above observations equally apply to the case on hand. Their Lordships further observed:
'Besides, the Court in Olga Tellis, affirmed the validity of Section 314 of the Bombay Municipal Corporation Act on the ground that 'removal of encroachments on the footpaths or pavements over which the public has the right of passage or access cannot be regarded as unreasonable, unfair or unjust'."
At paragraphs 18 and 19, the Surpeme Court clearly emphasised that the petitioners before them -- pavement vendors/ hawkers did not have a fundamental right to carry on the trade at a particular place.
10. Following the ratio of the Supreme Court's decision in Sodan Singh case (supra), I hold that the petitioners have no legal right to insist that they should be permitted to retain their structures on a busy road margin when the road itself is sought to be widened nor can it be said that till an alternative accommodation is shown by the Municipal Corporation, the petitioners have a right to continue their business even at the cost of holding up the road widening programme. No doubt, a scheme has been directed to be framed in Sodan Singh's case (spura) to regulate the street trading and to rehabilitate some of them in the zone specially selected for squatting/hawking and while considering the scheme prepared by a Committee, the Supreme Court pointed out the need to adopt a compassionate approach so as to ensure that genuine squatters/hawkers are not denied their daily bread on the altar of technicalities (vide para-2 of Saudan Singh case (supra)). But nowhere it is spelt out that in all cases of encroachment of public roads and streets by poor for the purpose of making their livelihood, a proposal for rehabilitation in an alternative place is a condition precedent for taking any step to remove the encroachment. A large section of pavement vendors in the city of Delhi called for a special approach especially having regard to the fact that the permision to squat was being granted to the traders on daily basis or for short periods by the Corporation itself. The Corporation itself conducted a survey and prepared a scheme to determine the categories of persons to be considered for grant of permission to squat subject to availability of space. In framing the scheme, the hawkers/squatters in busy areas having severe traffic congestion were allotted space for their business in some less busy areas. The case of two or three persons running mechanical workshops by putting up temporary structures on the road margin are not comparable to cases of large section of squatters/hawkers considered by the Supreme Court in the aforementioned case, especially when the road widening work had to be urgently undertaken in public interest. It is not even the case of the petitioners that they were prepared to go to any place or that they approached the Municipal Corporation for a grant of suitable site at a non-objectionable. place.
11. The learned Counsel for the petitioners strongly relied upon the judgment rendered by my learned brother, Motilal B. Naik in W.P. No. 10239/89. The writ petition was filed by an Association representing petty traders -- about hundred in number, seeking an order to restrain the Municipal Corporation from demolishing the kiosks (small bunks). It was the specific case of the petitioners therein -- which was not controverted in the counter that they were allotted the space for putting up kiosks between the years 1975 and 1980 and they were paying ground rent of Rs.48/- per bunk. Earlier, they were having their bunks at different places, viz., near Secunderabad Railway Station. Market street, etc. In order, to widen the road leading to railway station, the Corporation authorities promised to provide them alternative space at S. D. Road and a notification was issued in the newspapers on 18-11-1975 calling for applications for allotment of sites for putting up the bunks. It was stated therein that preference would be given to the applicants who vacated their bunks around Secunderabad Railway Station. Pursuant to that decision, the petitioners were permitted to erect the bunks. When there was a move for removal of these bunks put up on the road-margin which, according to the petitioners, was not being used by the pedestrians, the writ petition was filed. Motilal B.. Naik, J. restrained the respondent from interfering with the trading activity of the members of the petitioner-Association till a scheme for rehabiliting them was worked out, subject to the collection of rents as earlier. The learned Judge emphasised the need to adopt a pragmatic approach in an endeavour to ensure social justice to the citizens and to find a workable solution to meet the twin problems of unemployment and traffic hazards. In my view, the facts which presented themselves for consideration by the learned Judge are qualitatively different from the facts of the present case. The facts of that case are somewhat similar to Sodan singh's case. However there is one point of distinction --the distinction being that the squatters and hawkers did not put up any temporary structures like kiosks. The Supreme Court categorically observed that no fundamental right was vested in the citizen to carry on business on a public road or street at a fixed place. Whether in the light of the decision of the Constitution Bench of the Supreme Court, the decision rendered in W.P. No. 10213/89 is correct or not, need not be gone into as I am told that a writ appeal against the said decision is pending. Suffice it to say that the facts therein are quite different and the directions given therein cannot be made applicable to all situations involving encroachments of public roads. It may be, that on the facts of that case where large number of kiosk vendors who were rehabilitated once were sought to be evicted, the framing of the scheme was considered just and expedient by the learned Judge. But, the magnitude and nature of the problem there differs very much from the facts of the present case. Hence I am not inclined to grant the relief on the same terms as was done in that case.
12. Some arguments were advanced at the bar on the factual question whether the wooden bunks were removed by the time of filing the writ petition and whether any other bunks similarly situated as those of the petitioners' were allowed to remain. It is categorically stated in the counter that the petitioners' bunks were removed on 16-11-1993 and the writ petition was filed on 19-11-1993 suppressing this fact. It is asserted in the counter that the petitioners' bunks are standing on the site. As it was alleged in the reply affidavit that the petitioners were still running their business on the very same site. I asked the learned Standing Counsel to re-check whether in fact the wooden structures are still existing or they have been put back in their original place after removal. The learned Standing Counsel stated that after inspection by the Corporation officials he was informed that the bunks are not in existence and the petitioners are not doing business. The averments in the reply affidavits in this regard are quite vague. It is stated that when there was a threat of removal, the petitioners themselves removed the 'Dabbas' and kept them in a safe place on 23-11-1993 and the petitioners continued to carry on the works without 'Dabbas'. This is not the case pleaded in the affidavit filed in support of the writ petition or before the counter was filed. I am not prepared to place any reliance on these averments in the reply affidavit. With regard to the question whether any other similarly located bunks have been allowed to remain on the same road, it is categorically stated in the counter affidavit that the Corporation removed all the encroachments except the bunks covered by the stay order issued by the City Civil Court. The learned Standing Counsel Mr. Jwala also stated in the course of arguments that even those bunks were removed after the injunction orders were vacated. Hence I do not see any substance in the plea of discrimination sought to be made out by the petitioners.
13. What then is the relief to be granted to the petitioners ? In spite of my finding that the removal of structures without reasonable notice was illegal, I am not inclined to give a direction to permit the petitioner to re-erect the structures on the some-old site for remote than one reason. I have not found fault with the decision taken by the Municipal Corporation to remove the structures which undoubtedly constituted encroachments on the property. I have not rested my decision on the footing that the petitioners have any legal right to squat on the property. I have only found fault with the procedurre adopted and the manner in which the structures were abruptly removed by the Corporation officials. Secondly, it cannot be doubted that the encroachment has to be removed to widen the road which is very essential for relieving the traffic congestion on this busy road. In such a situation, it would not be just and proper to give a direction to restore the structures subject to right of removal of the structures, later on after giving due notice to the petitioners. Such a direction would perhaps be an empty formality which would not subserve the interests of the petitioners or the public. Hence I consider that in order to remedy the wrong done to the petitioners, the Municipal Corporation shall be directed to pay a reasonable compensation for the loss sustained by the petitioners by reason of abrupt removal of the structures. The fact that in a closely allied section viz., Section 406, compensation is provided for in a more or less similar situation reinforces my view that the award of compensation is the proper relief. While awarding the compensation, of course, the loss of business and other indirect loss is not to be taken into account. The loss must be assessed on the basis of the possible expenditure the petitioners may be put to in order to set up the structures of similar nature and the damage that might have been caused to the articles and material in the course of forcible removal of the structures. Such loss could be estimated on rough and ready basis at Rs. 2.000/-. Accordingly, I direct the respondents to pay the petitioners Rs. 2,000/-each towards compensation within six weeks from the date of receipt of this order. I further direct the respondent to consider the request of the petitioners for allotment of alternative site as and when the Corporation sets apart certain areas for rehabilitation of displaced traders doing business on the road-margins or pavements.
14. The writ petition is allowed with the above directions. No costs.
15. Petition allowed.