Madras High Court
D.S.Sundar vs The Special Commissioner For ... on 20 September, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 20-09-2018
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP Nos.16054, 31211 of 2013, 13928, 13937 to 13939, 13945 to 13949, 14009, 14017, 20437, 23353 to 23355, 24609 to 24611, 29455 to 29459 and 29471 to 29475 of 2014
And
MP Nos.1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1 and 1 of 2014
WP No.16054 of 2013:
D.S.Sundar ... Petitioner
..Vs..
1.The Special Commissioner for Handicapped,
Office of the State Commissioner of Disabled,
No.15/1, Model School Road,
Thousand Light,
Chennai-600 006.
2.The Commissioner,
Corporation of Chennai,
Rippon Buildings,
Chennai-600 003.
3.Zonal Officer,
Zone IX,
Richardes Park,
Saidapet,
Chennai-600 032.
4.The Junior Engineer,
Corporation of Chennai,
No.97, Velachery Main Road,
Guindy, Chennai-600 016.
5.The General Manager,
TNSIDCO,
Regd. Office at Polwal's Road,
Kathipara Junction,
Chennai-600 016.
6.The Branch Manager,
Tamil Nadu Small Industries Development
Corporation Limited,
SIDCO, Thiru Vi Ka Industrial Estate,
Guindy,
Chennai-32. ... Respondents
PRAYER : Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents 1 to 6 herein to consider petitioner's representations dated 18.12.2012 and 17.5.2013 and grant permission to the petitioner for running a small bunk shop (petty shop) on the line of in between agriculture commodity trade union building and TANSI building, in the corder side of 100 Feet Road, SIDCO, Thiru Vi Ka Nagar, Industrial Estate, Guindy, Chennai-600 032.
For Petitioner in WP 16054/13 : Mr.D.Jagadeesan
For Petitioner in WP 31211/13 : Mr.G.Justin
For Petitioner in WP 13928/14 : Mr.P.Srinivasan
For Petitioner in WPs 13937to
13939,23353to23355/14,
29471 to 29475/14 : Mr.R.Kamaraj
For Petitioner in WPs 13945to
13949, 29455to29459/14 : Mr.L.Chandrakumar
For Petitioner in WPs 24609to
24611/14: Mr.K.Yuvaraj
For Petitioner in WP 14009/14 : Mr.G.Appavu
For Petitioner in WP 14017/14 : Mr.S.Parthasarathy
For Petitioner in WP 20437/14 : Mr.S.Pushpakaran
For Respondent-1 in WP : Mr.R.S.Selvam,
16054/13, R1&R2 in Government Advocate.
WP 31211/13, R2 in WP
13928/14, R1 in WPs
13937to13939/14, 13945to
13949/14, R-2 in WP 14017/14,
R1&R3 in WP 20437/14,R-1 in
WPs 23353to23355/14, R1&R3
in WPs 24609to24611/14, R-2
in WPs 29455to29459/14, R-1 in
WPs 29471to29475/14
For Respondents-2to4 in WP : Mrs.Narmadha Sampath,
16054/13 Additional Advocate General
Assisted by Mrs.Karthika Ashok.
For R3 in WP 31211/13, R2 in : Mrs.Narmadha Sampath,
WPs 13937to13939/14, Additional Advocate General
13945to13948/14, 23354 Assisted by Mr.R.Arunmozhi.
To 23355/14
For R3 in WP 13928/14 : Mrs.Narmadha Sampath,
Additional Advocate General
Assisted by Mr.B.B.Senthilkumar.
For R2 in WP 13949/14 : Mrs.Narmadha Sampath,
Additional Advocate General
Assisted by Mr.S.Saravanan.
For R2 in WP 20437/14 : Mrs.Narmadha Sampath,
Additional Advocate General
Assisted by Mr.C.Ravichandran.
For Respondent in WP 14009/14: Mrs.Narmadha Sampath,
R2 in WPs 24609to 24611/14, Additional Advocate General
R1 in WPs 29455to29459/14, Assisted by Mr.T.C.Gopala-
R1 in WP 14017/14,R-2 in krishnan, Standing Counsel for
WPs 29471to29475/14 Chennai Corporation.
For Respondent-5 in WP 16054/13: No Appearance
For Respondent-6 in WP 16054/13,
R3 in WPs 29455to29459/14,
R3 in WPs 29471to29475/14 : Mr.Abdul Saleem
C O M M O N O R D E R
These batch of writ petitions are filed for a direction to direct the respondents to consider the respective representations submitted the writ petitioners for granting permissions to run the Bunk Shops (Petty Shops) in various locations, within the Chennai Corporation limits.
2. The grievances of the writ petitioners are that they are running small petty shops (Bunk Shops) in various locations for number of years. The authorities are now initiating actions to evict all those Bunk Shops and under those circumstances, the writ petitioners are constrained to move the present writ petitions.
3. The respective learned counsels, appearing on behalf of the writ petitioners, contended that these Bunk Shops are the livelihood of the writ petitioners and in the event of eviction, the families of the writ petitioners would lose their livelihood. The writ petitioners are the breadwinner of their respective families and running these Bunk Shops for number of years. Thus, any eviction would cause an irreparable loss to the life of these writ petitioners as well as their family members.
4. The writ petitioners have already submitted their respective representations to the authorities competent to consider their case favourably, granting permission to run these Bunk Shops. However, the said representations are not considered by these authorities and no decision has been taken in this regard.
5. The learned Additional Advocate General, appearing on behalf of the respondents, opposed the said contentions of the learned counsels for the writ petitioners, by stating that undoubtedly certain Bunk Shops are already functioning within the jurisdiction of Chennai City. However, certain other litigations are frivolous in nature. Without even running any Bunk Shops, the writ petitions are filed and during the pendency of the writ petitions, the writ petitioners' Bunk Shops are newly commissioned. Such is the modus operandi of few owners of Bunk Shops. Thus, the same yardstick cannot be adopted in respect of all these writ petitions.
6. In these batch of writ petitions, in some cases, the Bunk Shops are being run by the persons for some years, in some cases, there is no Bunk Shop at all and in few cases, greater inconvenience to the free flow of traffic and walker's path meant for the pedestrians are also affected. In other words, it is contended that the pathway meant for the pedestrians are illegally occupied by some vendors. In such circumstances, there is a possibility for accident and therefore, it is the duty of the respondents to ensure that such sensitive areas are protected for the welfare of the public at large. The details of the non-availability of Bunk Shops are submitted by the learned Additional Advocate General appearing for the Chennai Corporation and the details are extracted hereunder:-
W.P.No. Petitioner's Name Standing Counsel's Name Remarks WP 16054/2013 D.S.Sundar Karthika Ashok No Bunk WP 31211/2013 Jainullabudeen R.Arunmozhi No Bunk WP 13928/2014 S.Saravanan B.B.Senthilkumar Available WP 13937/2014 Vinothkumar R.Aunmozhi No Bunk WP 13938/2014 G.Kathiravan R.Aunmozhi No Bunk WP 13939/2014 Velankanni R.Aunmozhi No Bunk WP 13945/2014 D.Bavani R.Aunmozhi No Bunk WP 13946/2014 S.Kanchana R.Aunmozhi No Bunk WP 13947/2014 T.Balaji R.Aunmozhi No Bunk WP 13948/2014 B.Girija R.Aunmozhi No Bunk WP 13949/2014 Masthan R.Aunmozhi No Bunk WP 14009/2014 S.Mariappan T.C.Gopalakrishnan Locked WP 14017/2014 P.Vijayakumar T.C.Gopalakrishnan Available WP 20437/2014 S.Ravikumar C.Ravichandran Available WP 23353/2014 R.Ramu R.Arunmozhi Available WP 23354/2014 Mukunthan R.Arunmozhi Available WP 23355/2014 K.Mohideen Sahul Hammed R.Arunmozhi Available WP 24609/2014 Manikandan R.Arunmozhi No Bunk WP 24610/2014 M.Krishnan R.Arunmozhi No Bunk WP 24611/2014 Saravanan R.Arunmozhi Available WP 29455/2014 K.Vishvanathan T.C.Gopalakrishnan No Bunk WP 29456/2014 Kaanjana T.C.Gopalakrishnan No Bunk WP 24557/2014 C.Prabakaran T.C.Gopalakrishnan No Bunk WP 24558/2014 C.Vinodkumar T.C.Gopalakrishnan No Bunk WP 24559/2014 E.Devaraj T.C.Gopalakrishnan No Bunk WP 29471/2014 A.Subramaniyan T.C.Gopalakrishnan No Bunk WP 29472/2014 G.Subramani T.C.Gopalakrishnan No Bunk WP 29473/2014 M.Velankanni T.C.Gopalakrishnan No Bunk WP 29474/2014 P.Sridhar T.C.Gopalakrishnan No Bunk WP 29475/2014 A.Arulamma T.C.Gopalakrishnan No Bunk
7. It is brought to the notice of this Court that the Hon'ble First Bench of this Court passed an order in a batch of writ petitions on 3.9.2015, which reads as follows:-
3. We have noticed in our last order that the present petitions are really only concerned with 'Bunk Shops' and the grievance of the petitioners is that the individual cases are liable to be considered in terms of the provisions of the said Act. We hasten to add that it only implies a consideration and not an inherent right. Whether a bunk shop is to exist or not, if it is to exist, at what location or whether there is need for some other measures of rehabilitation by regulated vending through other methodology are the aspects the committee would have to examine.
4. The real grievance came from the decision of the Corporation which sought to rule out any consideration of the bunk shops, something which could not have been done in our view. The committee under the Act would have to look into these aspects to come to a conclusion specifically in view of the definition of Section 2(l) of the said Act, which defines 'street vendor' to include a temporary built up structure. The plea of the petitioner is predicated on the fact that the bunk owners would thus necessarily have to be considered under the Provisions of the Said Act. To this extent, we are in agreement with the plea advanced on behalf of the petitioner.
5. In paragraph-5 of the order dated 28.05.2015, we had in fact made some suggestions which could be looked into and those aspects would be examined by the authorities, while framing the policy or by the Committee, as the case may be.
6. Since aforesaid is the only controversy raised, it is conceded that any action against the petitioner would necessarily have to await the decision of the constitution of the Committee, its policy and thereafter consideration by the Committee and thus there would have no threat in the mean time. This however does not mean give a license to persons to keep on setting up bunk shops and no protection would be available to such cases. We also make it clear that the existence in the mean time of the bunk shops already in place does not also mean that they will not comply with the norms applicable depending on the activity they are carrying on in the bunk shops it cannot be a license to do what they please. When example of this keep any endeavour to sell goods which are prohibited or where eatables are involved and norms are not met and hygiene etc. In such situation also, the Corporation can take necessary action. In case of difficulty, liberty to move in W.P.No.4962 of 2013.
7. The petitioners are also not entitled to either increase the size of their bunk shops or to spread beyond the periphery of the bunk still their cases are considered.
8. The Street Vendors Act, 2014 (Central Act 7 of 2014) came into force with effect from 1.5.2014. Section 2(d) of the Act, defines Mobile Vendors as follows:-
Mobile Vendors means street vendors who carryout vending activities in designated area by moving from one place to another place vending their goods and services.
9. Section 2(l) of the Act, defines Street Vendor as follows:-
(l) 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.
10. Section 2(m) of the Act, defines Town Vending Committee as follows:
(m) Town Vending Committee means the body constituted by the appropriate Government under Section 22.
11. Section 2(n) of the Act, defines Vending Zone as follows:-
(n) vending zone means an area or a place or a location designated as such by the local authority, on the recommendations of the Town Vending Committee, for the specific use by street vendors for street vending and includes footpath, side walk, pavement, embankment, portions of a street, waiting area for public or any such place considered suitable for vending activities and providing services to the general public.
12. Section 4 of the Act, deals with Issue of Certificate of Vending. Section 5 of the Act, stipulates the Conditions for issue of Certificate of Vending. Section 6 of the Act, enumerates the Categories of Certificate of Vending and issue of Identity Cards. Section 8 of the Act, provides Vending Fees. Chapter VII to Section 22 of the Act, deals with Town Vending Committee. The Town Vending Committee is empowered to consider the grievances and the representations submitted by the vendors or the owners of such Bunk Shops. Chapter V of the Act, deals with Dispute Redressal Mechanism. Section 20 of the Act, stipulates Redressal of grievances or Resolution of Disputes of Street Vendors. Accordingly, the appropriate Government may constitute one or more Committees consisting of a Chairperson, who has been a Civil Judge or a Judicial Magistrate and two other professionals, having such experience as may be prescribed for the purpose of deciding the applications received under sub-section (2) of the Act.
13. Section 20 (2) of the Act, states that every Street Vendor, who has a grievance or dispute, may make an application in writing to the Committee constituted under sub-section (1) in such form and manner as may be prescribed. Sub-clause (3) to Section 20 of the Act, states that on receipt of grievance or dispute under sub-section (2), the Committee referred to in sub-section (1) shall, after verification and enquiry in such manner, as may be prescribed, take steps for redressal of such grievance or resolution of such dispute, within such time and in such manner as may be prescribed.
14. Sub-clause (4) to Section 20 of the Act, states that any person, who is aggrieved by the decision of the Committee, may prefer an appeal to the local authority in such form, within such time and in such manner as may be prescribed.
15. Thus, the Redressal Mechanism has already been provided under the Act itself. The nature of the Bunk Shops and the area under occupation and other relevant factors are to be considered by the Committee, while taking decisions in this regard. The authorities are also bound to consider the fact that whether a permanent Bunk Shops can be allowed in a particular place or these vendors can be allowed to do mobile vending business. All these factors are to be considered by the Competent Authorities and this Court cannot entertain any claim in respect of installation of such permanent Bunk Shops, Mobile Vending or Street Vending in a writ petition under Article 226 of the Constitution of India and a comprehensive policy decision is required for the purpose of allowing these categories of vending in public roads and in public places. Allowing such categories of vending in public places must be regulated by the Competent Authorities.
16. In the event of failure on the part of the authorities to regulate such kind of Mobile Vending, Street Vending or Bunk Shops, the same will cause great hindrance for the general public and the same will further affect the free flow of traffic in the City areas. As far as the Chennai City is concerned, it is already flooded with automobiles and other activities. The public roads are mostly occupied for parking the motor vehicles in an irregular manner.
17. The Corporation Authorities are not initiating any effective steps to control these illegal parkings in the public areas, more specifically, in Chennai City Corporation limits. On account of such irregular and illegal parking of motor vehicles in public roads and in other areas, the same causes lot of nuisances and agony to the citizen, who all are using the public roads for travelling purposes.
18. For instance, in a road, wherein two sides are utilised for the purpose of parking the vehicles, then it would be difficult for the persons to use the road and more specifically, the emergency vehicles like Ambulance, Police Vehicles are also struck on account of such illegal parkings. Effective measures are not taken to control such illegal parkings within the City limits and the Police Officials, who are empowered to control such parkings are also not performing their duties and responsibilities in an efficient manner. Here and there, they are allowing the vehicles or towing the same, in spite of large scale violations are happening day-in and day-out in the City limits.
19. Thus, under these circumstances, regulating the Vendors are certainly important. Equally, regulating the illegal parkings and ensuring free flow of regular traffic, is also certainly required, this Court is of an opinion when the question of regulating the free flow of traffic in public roads, all other public places, the authorities competent should ensure that the irregular vending or installation of bunk shops are to be controlled and regulated. Equally, it is important that all such other illegalities in the public roads and public places are also to be monitored and controlled effectively and efficiently. Thus, the writ petitioners are bound to approach the Town Vending Committee constituted under the provisions of the Street Vendors Act, 2014, for the purpose of redressing their grievances. The Town Vending Committee also shall consider all other aspects, including the public utility and other practical difficulties of the citizen of Chennai at large.
20. The learned Additional Advocate General, appearing on behalf of the Chennai Corporation, brought to the notice of this Court that the Town Vending Committee has already been constituted. However, on account of want of Quorum, it is not functioning and the elections are already commenced for electing the members for the Tow Vending Committee and the process will be completed soon. Thus, the writ petitioners may approach the Town Vending Committee for redressing their grievances in the manner known to law.
21. In respect of eviction of encroachers, the Hon'ble Division Bench also passed an order on 19.2.2018 in WP No.15093 of 2017 etc., batch, the learned Additional Advocate General, appearing for the respondents, brought to the notice of this Court that pursuant to the orders of the Hon'ble Division Bench, some of the encroachments were already removed. Under these circumstances, if any encroachments are left out, the same also shall be removed by following the procedures contemplated under law.
22. In this view of the matter, the relief, as such,sought for by the writ petitioners in these batch of writ petitions, cannot be granted. However, it is made clear that all such grievances, now brought to the notice of this Court, can be vindicated before the Committee constituted under the provisions of the Act, for the purpose of redressal of the cases of the writ petitioners in these batch of writ petitions and the writ petitioners are at liberty to submit their respective representations/applications/objections before the Town Vending Committee for their consideration and for taking a decision on merits and in accordance with law and considering the policy decisions of the Government in this regard. If any person is in occupation of a Non-Vending Zone or not meant for vending, as per the decisions of the competent authorities, then the authorities are bound to evict all those encroachers by following the procedures contemplated under the Tamil Nadu Land Encroachments Act, 1905.
23. Accordingly, all these writ petitions stand disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
20-09-2018 Index : Yes.
Internet : Yes.
Speaking order Svn To
1.The Superintending Engineer, CEDC/South, The Tamil Nadu Generation and Distribution Corporation Ltd (TANGEDCO), Chennai.
2.The Assistant Executive Engineer/O&M, The Tamil Nadu Generation and Distribution Corporation Ltd (TANGEDCO), Nanganallur Sub Division, CEDC/South, Nanganallur, Chennai-600 061.
3.The Assistant Electrical Engineer/O&M, The Tamil Nadu Generation and Distribution Corporation Ltd (TANGEDCO), Nanganallur Sub Division, CEDC/South, Nanganallur, Chennai-600 061.
S.M.SUBRAMANIAM, J.
Svn WP Nos.16054, 31211 of 2013, 13928, 13937 to 13939, 13945 to 13949, 14009, 14017, 20437, 23353 to 23355, 24609 to 24611, 29455 to 29459 and 29471 to 29475 of 2014.
20-09-2018