Gujarat High Court
Vakatar Samatbhai Ghusabhai vs State Of Gujarat on 25 July, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/10854/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10854 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? YES
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any YES
order made thereunder ?
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VAKATAR SAMATBHAI GHUSABHAI
Versus
STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA with MR HARSH M SURTI(3907) with MR SIKANDER
SAIYED (3458) for the PETITIONER(s) No. 1,2,3,4,5,6,7
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
RESPONDENT(s) No. 1
MS JYOTI BHATT, AGP for the Respondent No.1
MR DEEP VYAS for the Respondent No.2
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 25/07/2018
ORAL JUDGMENT
1. The petitioners in the instant petition claiming themselves to be the "street vendors" have sought protection under the Street Vendors Page 1 of 12 C/SCA/10854/2018 JUDGMENT (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (hereinafter referred to as "the said Act") for restraining the respondent No.2 from demolishing/removing their alleged constructions of shops and food stalls known as "Khetlapa Chawk" situated opposite to Karnavati Club, S. G. Road, Ahmedabad, pursuant to the notice dated 9.7.2018 issued by the respondent No.2 under Section 260(2) of the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "GPMC Act").
2. The petitioner No.1 claims to be the owner of Khetlapa Tea Stall, petitioner No.2 claims to be the owner of Indian Tadka, petitioner No.3 of Rumi Juice, petitioner No.4 of Jalaram Khaman, petitioner No.5 of Jaysingh Bhajiya, petitioner No.6 of Jilani Chat, and petitioner No.7 of Vimal Delux Pan Parlor, situated at the said "Khetlapa Chawk".
3. At the outset, it may be stated that the petitioner No.1 Vakatar Samatbhai Ghusabhai had earlier filed the petition being Special Civil Application No.10575 of 2018, seeking urgent circulation of the petition on the same day, on the ground that the Corporation had sought to remove his construction of Khetlapa Tea Stall without following the due process of law. In the said petition, he had filed certain documents to show that "Khetlapa" was a trade mark registered under the Trade Marks Act, 1999 Page 2 of 12 C/SCA/10854/2018 JUDGMENT in January 2018 for the goods and services as mentioned therein. The said documents also included the certificate of incorporation of "Khetlapa Food Products Pvt. Ltd." issued on 13.2.2018, incorporating the said Company under Section 7(2) of the Companies Act, 2013. During the course of the hearing of the said petition, an amendment was sought by the learned Advocate Mr.Mangukiya for the petitioner, running into the pages more than the original petition changing the very nature of original petition. Since the Court was not inclined to grant the said amendment, the learned Advocate Mr.Mangukiya sought permission to withdraw the said petition with liberty to file fresh petition. The Court had granted the said permission. Now the present petition has been filed by the said petitioner of the earlier petition along with the other six petitioners claiming themselves to be the owners of the shops and stalls as mentioned earlier, known as "Khetlapa Chawk", posing themselves to be the "street vendors" and seeking protection under the said Act.
4. At this juncture, it is required to be noted that after filing of the petition on 12.7.2018, the learned Advocate Mr.Mangukiya kept on seeking time for one or the other reason. When the Court insisted for hearing of the matter on 24.7.2018 during the recalling of the petition in the second round, with great reluctance he Page 3 of 12 C/SCA/10854/2018 JUDGMENT argued the matter. Mr.Deep Vyas who was appearing for the respondent No.2 on the advance copy served to him was also heard. He has placed on record the copy of the earlier petition being Special Civil Application No.10575 of 2018 for the perusal of the Court.
5. On perusing the contents of the earlier petition filed by the petitioner No.1 and the contents of the present petition, it clearly transpires that the petitioners in the present petition have not stated the true and correct facts and suppressed the material facts. The petitioners having not come with clean hands, the present petition, deserves to be dismissed on that ground alone. However, the learned Advocate Mr.Mangukiya for the petitioners having made elaborate submissions on the merits of the case in the light of the provisions contained in the Street Vendors Act, and having relied upon various judgements of this Court and Supreme Court in support of his submissions, Court deems it proper to decide the petition on merits also.
6. From the averments made in the petition, it appears that the petitioners are carrying on their respective businesses at "Khetlapa Chawk"
situated on the land bearing Survey No.755/5/6 Final Plot No.121/1, T. P. No.5, situated opposite Karnavati Club, S. G. Road, Village Makarba, Ahmedabad. The respondent Corporation on 25.4.2017 had issued a notice under Section Page 4 of 12 C/SCA/10854/2018 JUDGMENT 260(1) of the GPSC Act, calling upon one Mr.J. B. Patel and others to show cause as to why the constructions made on the said land in question without the development permission of the Corporation should not be removed. It appears that in response to the said notice, the petitioners had given reply, however, the same was not found to be satisfactory, and therefore, the respondent Corporation had issued the notices dated 8.5.2017 under Section 260(2) of the GPMC Act, informing the petitioners that they having carried out the construction in question without the permission of the Corporation, it was decided to remove the said construction. They were, therefore, called upon to remove the said illegal construction within three days of the receipt of the said notice (Annexure-A). It further appears that the said construction having not been removed by the petitioners, the Corporation had undertaken the exercise of sealing the said shops and food stalls. It also appears that the petitioners having requested to remove the seals, the concerned officer had directed to remove the seals on the payment of administrative charges by the petitioners. The petitioners thereafter did not remove the said unauthorized and illegal construction as directed in the earlier notice dated 8.5.2017, and hence, the respondent No.2 issued the impugned notice dated 9.7.2018 (Annexure-F), calling upon the petitioners to Page 5 of 12 C/SCA/10854/2018 JUDGMENT remove the same within two days i.e. on or before 11.7.2018, failing which the Corporation would remove the same at the cost and risk of the petitioners. As stated earlier, the petitioner No.1, therefore, had filed the Special Civil Application No.10575 of 2018 apprehending that their construction shall be removed. The said petition having been withdrawn with the permission of the Court, the present petition has been filed.
7. It has been vehemently submitted by the learned Advocate Mr.Mangukiya for the petitioners, placing heavy reliance on the provisions contained in the Street Vendors Act that the petitioners are the street vendors within the definition of "street vendors" contained in Section 2(l) of the said Act and that they could not be evicted till the survey conducted by the Town Vending Committee was completed and the certificate of vending was issued to them. Mr.Mangukiya has also relied upon the decisions of the Supreme Court in case of Smt. Poonamal and Ors. Vs. Union of India and Ors., reported in (1985) 3 SCC 345, in case of Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Ors., reported in (1985) 3 SCC 545, and in case of Bombay Hawkers' Union and Ors. Vs. Bombay Municipal Corporation and Ors., reported in (1985) 3 SCC 528 to submit that the petitioners are entitled to carry on their business as hawkers/street vendors. He also relied upon the Page 6 of 12 C/SCA/10854/2018 JUDGMENT decision of the Supreme Court in case of Maharashtra Ekta Hawkers Union and Anr. Vs. Municipal Corporation, Greater Mumbai and Ors., reported in (2009) 17 SCC 151, in case of Maharashtra Ekta Hawkers Union and Anr. Vs. Municipal Corporation, Greater Mumbai and Ors., reported in (2004) 1 SCC 625, as also in case of Gainda Ram and Ors. Vs. Municipal Corporation of Delhi and Ors., reported in (2010) 10 SCC 715 to submit that the pavement hawkers and squatters have fundamental right to hawking under Article 19 of the Constitution of India, subject to reasonable restrictions. According to him, the action of the respondent No.2 in issuing the impugned notices were in violation of their rights under the Street Vendors Act.
8. However, the learned Advocate Mr.Deep Vyas appearing for the respondent No.2, placing on record the papers of the earlier petition being SCA No.10575 of 2018 filed by the petitioner No.1 herein, strenuously urged that the present petition suffers from gross suppression of material facts, inasmuch as in the earlier petition, the petitioner No.1 had claimed himself to be the proprietor of "Khetlapa Tea Stall", and also produced the certificate of incorporation to show that it was a company limited by shares incorporated under Section 7(2) of the Companies Act 2013, whereas in the instant petition, the petitioner No.1 has claimed himself to be the "street vendor". The Page 7 of 12 C/SCA/10854/2018 JUDGMENT other petitioners had not bothered to give details about their status and it was only by way of subsequent amendment in the cause-title, they have shown themselves as the owners of their respective stalls and shops. He further submitted that all the petitioners are running their shops and food stalls in the name of "Khetlapa Chawk", putting up illegal constructions of permanent nature on the land in question, causing great traffic problems and other nuisances for the public at large. The respondent No.2, therefore, had issued the notices under Section 260 of the GPMC Act, calling upon them to remove the said constructions.
9. Before dealing with the rival contentions raised by the learned Advocates for the parties, it may be noted that the petitioners prior to filing of the present petition had never claimed themselves to be the street vendors nor they had approached the competent authority under the said Act, seeking licence or certificate of vending for the purpose of seeking protection under the said Act. It is axiomatic that in order to maintain the writ of mandamus, the petition must be bona fide and not frivolous; that there must exist proper pleadings, and that the petitioner must have made a demand in clear and unambiguous terms before the concerned authority, prior to seeking writ of mandamus. Beneficial reference of the decisions of Supreme Page 8 of 12 C/SCA/10854/2018 JUDGMENT Court in case of State of Haryana and Anr. Vs. Chanan Mal etc., reported in AIR 1976 SC 1654, and in case of Rajasthan State Industrial Development and Investment Corporation and Anr. Vs. Diamond and Gem Development Corporation Limited and Anr., reported in (2013) 5 SCC 470 be made in this regard. The petitioners not only have not made any demand seeking protection under the said Act prior to filing of the petition, the Court has found that the petitioners have made incorrect and misleading statements in the petition, which alone would disentitle them to claim equitable relief under Article 226 of the Constitution of India.
10. So far as the Street Vendors Act is concerned, it may be stated that the said Act has been enacted to protect the rights of urban street vendors, and to regulate street vending activities and for the matters connected therewith. As per the statement of objects and reasons, the Act aims at protecting the livelihood rights of the street vendors by making necessary provisions for compulsory registration of the persons intending to carry out street vending activities and for issuance of certificate of vending and identity cards to them. The definition of "street vendor" has been given in Section 2(l), which reads as under:-
"2. Definitions.--(1) In this Act, unless the Page 9 of 12 C/SCA/10854/2018 JUDGMENT context otherwise requires,--
(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, sidewalk, 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;"
11. Section 3 of the said Act deals with the survey of street vendors and protection from eviction or relocation. Section 4 deals with the issue of certificate of vending. Section 5 deals with the conditions for issuance of certificate of vending. Section 12 deals with the rights of street vendor, which states inter alia that every street vendor shall have the right to carry on the business of street vending activities in accordance with the terms and conditions mentioned in the certificate of vending. Meaning thereby the person claiming to be the street vendor must possess the certificate of vending issued under the said Act and then he would have right to carry on business of street vending activities in accordance with the terms and conditions mentioned in such certificate.
Page 10 of 12C/SCA/10854/2018 JUDGMENT
12. Apart from the fact that the present petitioners have neither applied for nor hold any certificate of vending as contemplated under the Act, the very submission of Mr.Mangukiya to treat the petitioners as street vendors sounds absolutely frivolous. It is extremely incomprehensible to accept his submission to treat the persons like the petitioner No.1, who has got "Khetlapa" as the registered trade mark, and has also got the company incorporated in the name of "Khetlapa Food Products Pvt. Ltd." under the Companies Act, as the "street vendors" under the said Act. None of the provisions contained in the Street Vendors Act could be made applicable to the present petitioners, who all together are running their respective businesses at the "Khetlapa Chawk", and do not hold any certificate of vending under the said Act.
13. From the photographs annexed to the present petition also, it clearly appears that the constructions in question of shops and that stalls known as "Khetlapa Chawk" are constructions of permanent nature. The petitioners, admittedly had not obtained any permission from the concerned authority to put up such constructions, and therefore, the same are absolutely illegal constructions. The respondent No.2, therefore, after issuing the notices as contemplated under Section 260(1) and Section 260(2) of the GPMC Act, and after affording sufficient opportunity of hearing to Page 11 of 12 C/SCA/10854/2018 JUDGMENT the petitioners, has issued the final notice dated 9.7.2018 calling upon them to remove the said illegal construction, which could not be said to be arbitrary or illegal. The Supreme Court has in catena of decisions strongly deprecated the inaction on the part of local authorities in not taking action against the persons carrying on illegal constructions as also their action in regularizing such illegal constructions. To cite a few decisions are in case of Esha Ekta Apartments Cooperative Housing Society Limited and Ors. Vs. Municipal Corporation of Mumbai and Ors., reported in (2013) 5 SCC 357, in case of Royal Paradise Hotel Vs. State of Haryana, reported in (2006) 7 SCC 597, in case of Shanti Sports Club and Anr. Vs. Union of India and Ors., reported (2009) 15 SCC 705 etc.
14. In that view of the matter, the petition being devoid of merits deserves to be dismissed. Further, since the Court has found that the petitioners have not disclosed the true and correct facts and have suppressed material facts, the petition deserves to be dismissed with cost. Accordingly, the petition is dismissed with cost of Rs.25,000/- to be paid to the respondent No.2 Corporation within one week from today.
Sd/-
(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 12 of 12