Karnataka High Court
Mangalore Municipal Market Welfare ... vs The Corporation Of The City Of Mangalore ... on 4 December, 1992
Equivalent citations: AIR1993KANT220, AIR 1993 KARNATAKA 220, (1993) ILR (KANT) (1) 86 (1993) 1 KANT LJ 84, (1993) 1 KANT LJ 84
ORDER
1. The petitioner in W. P. No. 13575 of 1985 is a society called 'Manga-lore Municipal Market Welfare Society' registered under the Karnataka Societies Act, 1960. It is referred to hereinafter wards as the Society.
2. In this writ petition, the prayer sought for is as follows:--
"Wherefore, the petitioner prays that this Hon'ble Court may be pleased to :
(i) Issue a writ of prohibition restraining the respondentls from proceedings ahead with the shifting of the fish market from the Nehru Maidan Market to the new fish market wing of the Central Market situated at Market Road, Mangalore, without providing all the 132 stall-holders and 61 dry-fish vendors who are at present carrying on their business in the Nehru Maidan Market, with adequate accommodation and facilities in the new fish market.
(ii) Issue a writ in the nature of prohibition restaining the respondents from evicting the stall-holders and dry-fish vendors from their present stalls in the Nehru Maidan Market or in any manner dispossessing them of the stalls or dismantling or removing the stalls.
(iii) Pass such other orders which are just and necessary in the circumstances of the case including the award of costs.
(iv) Interim prayer: Pending disposal of the above writ petition, the petitioner prays that thus Hon'ble Court may be pleased to stay the proposed action of the respondents to shift the fish market from the Nehru Maidan Market to the newly constructed fish-market wing of the central market at Market Road, Mangalore, and from dispossessing or evicting the stall-holders and dry-fish vendors from their respective stalls in the Nehru Maidan Market, Mangalore, in the interest of justice."
3. Looking at the main prayer, it is clear that the petitioner-society has sought for a writ of Prohibition restraining respondents 1 to 3 from shifting the fish market from the Nehru Maidan Market to the new fish market wing of the Central Market situated at Market Road, Mangalore, without providing accommodation to 132 stall holders and 61 dry fish vendors in the new market where they are proposed to be shifted and for the consequential benefits including an interim order.
4. By a perusal of the order sheet, it is seen that this Court by an order dated 2-9-1985, granted an interim order for a period of four weeks and issued emergent notice to the respondents. That interim order came to be continued by an order made by this Court on 30-9-1985 and LA. No. IV filed by respondents 4 and 5 in W.P. No. 13575 of 1985 for yacating the interim order was rejected by this Court on 5-11-1985. Thus the interim order of stay has been operating in this writ petition even now.
5. The society in question came to be registered in the year 1972. The object of the society was to took after the welfare of the stall holders of the fish market established and owned by respondent 1 Corporation in Mangalore Town and to represent their grievances with the authorities and in the Courts of law to protect their rights etc.
6. According to the averments of the petitions, the members of the society consists of, inter alia, 132 stallholders of the Mangav lore fish market though at present it is situated in Nehru Maidan at Mangalore and also about 61 dry fish merchants. Therefore, the society represents its members for and on behalf of them.
7. It is not in dispute that the fish market of Mangalore which was previously called Webster Market came to be owned and run by the Mangalore City Municipality, now the Corporation of the City of Mangalore, respendents 1 and 2 in W.Ps. Nos. 13575/85 and 3190 of 1986 respectively. The said market was situated in the market road and Bha-vanthi street, Mangalore. It is the biggest market in the whole of Karnataka wherein trading of fish both dry and raw has been going on for the last many decades. Fish is supplied from Mangalore fishing area to various parts of Karnataka and other States in India. Indeed, fresh fish is being supplied even to Delhi, capital of India.
8. It is again undisputed that some of the members of the petitioner-society right from the period of their ancestors had been doing business in fish, grocery, coir products and other household articles in various stalls situated in the said Webster market originally. It is stated that about 132 stalls holde'rs who happen to be the members of the society had been carrying on their business in various household articles in several stalls. Similarly, there had been many stalls in the market dealing in fish with adequate facilities for cleaning and drying fish etc.
9. The Mangalore City Municipality, the precedessor of the present Corporation planned to construct a new central . fish market in place of the erstwhile Webster market and with the said object it directed in the year 1960 all the stall holders, dryifish vendors, raw fish vendors and vegetable vendors to vacate their respective stalls in the Webster market and to shift their business to the alternate temporary sheds put up in Nehru Maidan about half a kilo metre away from the Webster market. Accordingly, the entire market fish vendors, vegetable vendors and grocery vendors had been shifted to the new place in Nehru Maidan in the year 1960.
10. According to the said plan, respondent 1 Corporation constructed a building in a portion of the market area, a portion of which was ear-marked for the vegetable vendors. After the construction of the building in the year 1965, only vegetable vendors were shifted from the Nehru Maidan to the new market building. It is stated but disputed by the contesting respondents that about 124 stalls holders carrying business in grocery and other household articles and all the fish vendors were also directed to shift their business to the temporary sheds put up in the open space available adjacent to the new market building. An order made to this effect is as per Annexure-A dated 9-7-1965. Accordingly, the stall holders and fish vendors shifted their business to the temporary sheds and continued their business there. Despite this, once again in the year 1971, the authorities of the City of Mangalore Corporation directed all the stall holders and raw and dry fish vendors to shift their business to the Nehru Maidan with a promise to them, as alleged, that within five years from that day, a separate and substantial fish market would be constructed in place of the temporary sheds and they would be given full-fledged stalls in the new market place. Such a notice came to be issued on 12-7-1971, a copy of which is produced at Annexure-B. Thereafter, a letler as per Annexure-C was also addressed to the Commissioner and Secretary, Municipal Administration, Bangaloe, by the Commissioner of the Corporation bringing to his notice the promise held out by the concerned Minister to provide accommodation to the stall holders and fish vendors in the new market area and stating that the Mayor of the Corporation also agreed to do so. There was a reminder issued to the Government as per Annexure-D dated 14-7-1977.
11. According to the averments of the petition, the assurance given by respondent 1 was not complied with though it constructed a two storeyed building in the porlion of the land where Webster market was situated in the year 1980. According to the petition, instead of offering accommodation in the new building to the existing stall holders and fish vendors, it was provided to somebody else. Tn other words, despite construction of the building in the year 1980, the vendors and stall holders continued their business in the temporary sheds in the Nehru Maidan market and instead of providing accommodation as assured to them, respondent I formed certain shops and office rooms in the new market building both in the first and second floors with a view to make money. The said shops were sold in public auction and were let out by issuing licences on fabulous rents. In other words, deviating the assurance held out to these vendors, respondent I with a view to make money provided shops and office rooms in the new market to person 'other than the stall holders and fish vendors doing business in the temporary sheds. When they approach ed the authorities of respondent 1 Corpora tion to fulfil the promise held out in their favour, they were replied that an adjacent land was sought to be acquired and after the acquisition was over, stalls would be con structed there and thereafter accommodation would be made available there to them. It is stated that even that promise was not com plied with. This is the main grievance of the petitioners.
12. It is stated that the present market area in the Nehru Maidan is having about 60,000 square feet. There are 132 stall holders carrying business in grocery and other house hold items with adequate facilities for drying fish, cleaning and movement of vehicles. The bus terminus is also situated just in front of the said market area. The stall holders and fish vendors having shifted their business to the temporary sheds in the Nehru Maidan as early asin 1971 continued their business there by spending a large amount of money towards shutters, floor etc., for which no provision was made by the Corporation. The Corporation constructed the temporary sheds with bamboos, wooden poles and tiled roofs. Therefore, the stall holders had to make their own arrangements to safeguard their business from rain and wind and this position has been continued for over 14 years since they last shifted their business from the central market to the Nehru Maidan as the Corporation failed to provide accommodation in the newly constructed market with necessary infrastructure.
13. It is averred in the petition that respondent 1 Corporation being the successor of the erstwhile Mangalore City Municipality, having control over the fish market, put up sheds with asbestos roofs in about 12,000 sq. ft., in the open yard adjacent to the vegetable market on market road in about July, 1985. The new sheds do not provide adequate facilities for the vendors. The City of Mangalore has been growing out of proportions since its population has been increasing. Respondent 1 failed to take appropriate steps to provide them adequate accommodation in the new market building. The new sheds put up by it consist of 8 mutton stalls, 8 beaf stalls, one pork stall, 6 chicken stalls and 42 stalls for dry fish merchants. Earlier stalls in the Webster market were measuring 8' x 6' whereas the stalls in the sheds newly put up measure only 3' x 6' which is hardly enough to meet the requirements of the fish merchants. Further, there is no facility whatsoever for storing, shifting, drying or cleaning the dry fish which is absolutely necessary to carry on the business in hygienic manner and to preserve the dry fish in good condition. It is stated that the opening ceremony of the new sheds in the central market was held on 15-8-1985 and till the filing of the petition (W.P. No. 13575/85) on 30th August, 1985, the 132 stall holders in the Nehru Maidan were not provided any facilities as assured in the resolution dated 6-2-1984 (Annexure-E). It is also stated in the said resolution that the lease of the land in the Nehru Maidan where the temporary sheds are put up expired on 31-5-1985 and by virtue of the expiry of the lease period, the temporary sheds in the Nehru Maidan have to be demolished unless the lease has been renewed by the competent authority. In that view of the matter, the petitioner society was hopefully expecting that necessry pucca building would be constructed providing accommodation to the stall holders before the expiry of the period of the lease. Since respondent 1 failed to comply with the assurance given to the 132 stall holders, they are put to great hardship since as they are made to run their business with the inadequate accommodation provided to them in the temporary sheds.
14. As there was an attempt being made by respondent 1 to shift these vendors from the Nehru Maidan to the newly constructed sheds in the market at Market Road, a representation dated 11-7-1980 as per An-nexure F was made to the first respondent. A letter was also addressed on 23-6-1985 to the Hon'ble Minister for Housing and Urban Development as per Annexure G. A Memorandum dated 3-7-1985 and a representation dated 6-7-1985 as per Annexures H and J respectively were also made to the Mayor of the Mangalore City Corporation. When Sri Lakshmisagar, former Hon'ble Minister for Housing and Urban Development, visited the market in the Nehru Maidan, he was apprised of the difficulties being faced by these stall holders and the attempt to shift them to the newly constructed temporary sheds in the new market at Market Road without providing adequate facilities. The Hon'ble Minister directed the Mayor and the Commissioner of the Corporation of the City of Mangalore to make adequate arrangements for the 132 stall holders and then only to shift them to the new place. It is stated that on account of non-fulfilment of the assurance given to them, the 132 stall holders have been subjected to hardship and were exposed to difficulties to do their day-to-day business. Their contention is that unless adequate accommodation is provided in the new market, they should not be shifted from the present place. Finally, on 22-7-1985 they represented to the Hon'ble Minister for Housing and Urban Development as per Annexure-K, but no action was taken by the authorities. It is further stated that the business of the stall-holders in grocery and other household articles has nexus with the business in fish because the customers coming to buy fish and mutton --come and transact with grocery and other house hold items and if only fish vendors and mutton stalls were shifted, the business of 132 stall holders in grocery and other household articles would be badly affected, thereby they would be deprived of the sole means of livelihood. Further, the sfall-holders are belonging to economically weaker section of the society and mainly depending upon the meagre income they make of the stalls. It is the apprehension in the rnind of the petitioner-society that respondent 1 is planning to shift the stall-holders also by force illegally and such an act has to be deprecated.
15. It is stated that the grievance of the society had been ventilated through local and other news papers 'Udayavani', 'Kannada Prabha' and 'Mungaru'. The copies of the newspapers publishing the grievances of the society with respect to vendors in the Nehru Maidan are produced at Annexures M to Q. The main object of the petitioner-society in ventilating the grievances of the stall-holders and fish vendors in the newspapers was to prevent respondent 1 from taking action to shift them forcibly from the Nehru Maidan to the new market place or to provide them sufficient accommodation with adequate facilities in the new market building as assured to them by respondent 1.
16. The legal contention urged on behalf of the petitioner-society is that any action to shift the members of the society from the Nehru Maidan would affect the provisions of Articles 19(1)(g) and 21 of the Constitution. In other words, because of the action on the part of the first respondent-Corporation to shift the stall holders and fish vendors to the new market without providing adequate facilities to do their day-to-day business, their right to do business as enshrined in Article 19(1)(g) of the Constitution has been affected, the licences to do so having been issued to them. Consequently, their right to livelihood as provided under Art. 21 of the Constitution is also affected.
17. A detailed statement of objections has been presented on behalf of respondent 1-Corporation, wherein the averments of the petition have been denied. The stand taken by respondent I in the statement of objections is thai the petitioner-society has no right to seek the remedy sought for in the petition.
18. Besides, in W.I'. No. 3190 of 1986 filed by one Ummer, a resident of Mangalore City, carrying on business in fish in the Nehru Maidan market, the grounds taken are more or less similar to one found in W. P. No. 13575/1985. Therefore, these two wjit petitions arc clubbed together and disposed of by the following common order.
19. The application (I.A. No. II) filed under Order 1, Rule 10, C.P.C. by respondents 4 and 5 has been allowed by this Court by an order dated 15-10-1988 and accordingly they have been implcaded as such in the petition. Their application (I.V.IV) for vacating the interim order of stay granted in W.P. No. 13575 of 1985 came to be disposed of by this Court on 5-11-1988 with the observation that since the writ petition was to be heard, it did not require consideration. The impleading application (l.A. No. III) filed under Order I, Rule 10, C.P.C.. by respondents 6 to 8 was allowed on 5-11-1988 and accordingly they have come on record as such.
20. To complete the pleading in these two writ petitions, it is better to refer to the stand taken in the statement of objections filed in detail by respondent 1-Corporation. It is stated therein that respondent 1 was not aware of all the 132 stall-holders and. 61 dry fish vendors being members of the petitioner-society muchless its Secretary K. Krishna Shetty is competent to file the writ petition. The averment that there are 138 stall holders including fish vendors is denied. According to respondent 1, there are no permanent stall holders as such. Averments of paras 2 and 3 of the writ petition arc denied as false. It is stated that on account of the growth of Mangalore Town, it became necessary to modernise the market by providing regular stalls with modern facilities and passages for customers. It was with that idea, the stall holders were requested to move on to the temporary market established in the Nehru Maidan, but it was not admitted that all the stall holders in the Central market moved on to the temporary market. It is brought to the notice of this Court that, and on their own showing as per Annexure-A that only 85 stall holders shifted to the temporary market. Respondent 1 has been maintaining a regular list of stall holders and when compared with Annexure-A, a number of original stall holders had left perhaps after assigning the stalls for valuable consideration to others. Many new entrants are also in the temporary market. Such stall holders cannot claim any right of a licensee as they are not the allottees of the stalls muchless new stalls constructed in the new market have been allotted to them. Some of these stall holders are either legal representatives of the original stall holders or they have been brought in as new comers without any right of lease conferred on them. The original market came to be divided into two-vegetable market and fish market which includes mutton market.
21. Referring to the obligation on the part of the Corporation, it is stated that respondent 1 has complied with the obligation under the Act. It is stated that pursuant to the approved plan, reconstruction of the building was taken up after demolishing the old building in Webster market; but reconstruction on the old pattern could not be taken up as bigger shops had to be constructed for the convenience of the vendors and the customers. Drainage and cleaning facilities were provided, in accordance with law. Only a portion of the market was completed in accordance with the plan which is a comprehensive plan drawn up at the first instance. The cost of construction came to be 30 lakhs and the amount invested was borrowed from the financial institutions. Prior to the reconstruction and renovation of the central market, it was situated to the west of the market cross road and to the east of this cross road, there was some vacant land belonging to the Corporation which was acquired and the central fish market has now been constructed thereon by spending over Rs. 36 lakhs. It is stated that to the west of the cross road is situated the central vegetable market and therefore it is incorrect to state that the full area of the old market had not been used as a market and on the other hand there are two markets covering the larger area providing accommodation for the stall holders. So far as the trade in fish is concerned, it is stated that there were facilities In the old market for" storing, sifting, cleaning arid drying fish, but, however, the market had to be reconstructed on account of congestion by growth of the city. That a promise was held out by respondent 1 that accommodation would be provided to all the original vendors in the new market after its construction within a period of five years or that stalls would be provided to all the stall holders, has been denied. Indeed, according to the stand taken by respondent 1, there was no such right conferred on the stall holders to seek such a prayer. According to the convention followed by the Corporation, the new stalls constructed in the new building are required to be allotted by holding public auction. There is no question of having a person to run the stall permanently. They are only licensees having licenses to run the stalls for the specified period and on the expiry of the period of licence, such stall holders have no right to remain there. No promise was held out either by the Corporation or by the Government in this behalf. The averments in paragraphs 4, 5 and others relating to promise have been denied.
22. It is stated that if the stalls were sold in public auction, it would fetch Rs. 3,000/- to Rs.5,800/- per stall and the Corporation needs money to repay debts. To serve the public good, regular stalls were reconstructed in the new market building making available sufficient accommodation for the vendors as well as the customers. No complaint whatever may be made against respondent 1 as to the temporary accommodation made available to these stall holders to enable them to continue their business in the Nehru Maidan. That does not mean that such persons would be entitled to seek new stalls in the new market building as of right, as such rights are not available to the stall holders. There is no contract to offer any stall to any one on a permanent basis. Indeed, respondent 1 has to augment its financial resources to repay the debts incurred for the construction of the new building of the market. In that view of the matter, it has to mobilise the resources.
23. It is denied that in the Nehru Maidan there is over 6000 sq. ft. available. As a matter of fact, according to respondent 1, the Nehru Maidan consists of open space meant for recreation, sports activities etc., to the citizens of the Mangalorc Town. It is denied that the stalls constructed in the central market urc smaller than the stalls in the Nehru Maidan. The stalls provided in the newly constructed market measure as follows :--
(a) 12 stalls each measuring 2.85 mtr. x 2 mtr.
(b) 12 stalls each measuring 2.15 mtr. x 2 mtr.
(c) 12 stalls each measuring 2,20 mtr. x 2 mtr.
(d)6 stalls totally measuring 11 mir. x 2.5 mtr.
24. Dealing with the general merchandise as has been averred in the writ petition, the Corporation submits that a list of stall holders in the temporary market discloses that there are following stalls :-
(1) Raw fish ... 12 stalls (2) Mutton ... 8 "
(3) Beef ... 8 " (4) Pork ... 3 " (5) Dry fish ... 42 "
25. According to respondent 1, it has been made clear in Annexure E that only stall holders dealing in fish, dry and raw, pork and beef in the temporary market would be provided with stalls in the newly constructed market and after such provision is made, the stalls occupied by them would be demolished, and indeed, action has been taken accordingly. The 132 stall holders were not asked to go to the new market; therefore, they cannot have any grievance if the fish market etc., is shifted to the new building. It is stated that, according to the things stand at present, it is not at all possible to construct stalls in the new market for want of space and the existing space was fully constructed where the fish vendors had been offered stalls. The Corporation has been trying its best to provide stalls for all; but it is humanly impossible to provide stall in the new building for all those who are doing business in the Nehru Maidan. It is stated that there is absolutely no connection between 32 stall holders as averred in the writ petition and the stall holders dealing in fish, mutton etc. as it was learnt that very many people buy general merchandise though, at the same time, they do not buy fish, mutton etc. Therefore, there was a real need to shift stalls of fish and mutton vendors to the new building. It is necessary to mention that the stalls of fish and mutton have to be cleaned every day as even if a small part of mutton or beef is left without it being cleaned, it will deteriorate and putrify resulting in bad smell in the whole area and sometimes it may cause diseases to spread. Indeed, according to respondent 1-Corporation, in the temporary market, there are no facilities for cleaning whereas in the newly constructed market, stalls are provided with facilities for cleaning etc, There is underground drainage and ample water facility is provided for cleaning the stalls every day after the stalls are closed and this facility is not available in the temporary market in the Nehru Maidan and it is impossible to comply with the obligatory function in that area. On the other hand, if respondent 1 fails to comply with the mandatory functions under the Act, it would be failing in its duty.
26. Referring to the assurance or promise held out by the Minister etc., respondent 1 has stated that it is not aware of any such promise either by the Corporation or by the Hon'ble Minister or by the Mayor. Whatever it is, no such direction has been given by the Government to the Corporation in that behalf. It is stated that the 132 slall holders are not at all prejudiced by their being continued in the temporary market in the Nehru Maidan which is in the heart of the City and is surrounded by roads all round. It is denied that these stall holders represent weaker section and on the other hand, it is stated that many of the stall holders have clandestinely changed hands paying huge amount of money by way of pagadi and the trade in the stall is going on as usual even after shifting the fish and mutton stalls; therefore, no amount of prejudice would be caused to them muchless it would affect their business.
27. Referring to the several documents produced in support of the writ petition particularly of the promise as alleged, the Corporation denied the said promise having been held out in that behalf. The petitioner-society has no righf to invoke the Article 19(1)(g) or 21 of the Constitution as the stall holders do their business on the licences granted to them for a specified period and the right of a licensee is distinguishable from that of the lessee arising under the Transfer of Property Act. Under the Municipalities Act, 1964 as amended in 1976, powers have been conferred on the Corporation to evict the licensees after the expiry of the period of licence without due course of general law regarding eviction being followed. Thus, the specific stand taken by respondent 1 is that the writ petitions themselves are not maintainable and no such case is made out for granting the reliefs as prayed for in them.
28. Sri Holla, learned counsel for respondent 1, argued that no reply was filed traversing the statement of objections presented on behalf of respondent I. Therefore, the averments of the statement of objections must be taken to be correct.
29. I beard learned counsel on both sides.
30. The points that arise for my consideration in these writ petitions are as follows:
(1) Whether the writ petitions can be construed as public litigation petition having regard to the nature of the prayer made therein.
(2) Whether the licences granted to the stall holders confer on them any right referable to Articles 14, 19 and 21 of the Constitution to continue their business permanently in the temporary sheds.
(3) Whether there is any obligation on respondent 1 and the State to protect the interests of the members of the society under Chapter III to eke-out their livelihood by reason of the assurance given to them.
(4) Whether the Directive Principles of State Policy under Part IV of the Constitution are attracted in a case like this to extend benefit thereof to the members of the petitioner-society.
(5) Whether the stall holders in question are entitled to continue to do their business in the temporary sheds in the Nehru Maidan until alternate arrangements are made in the new market to be constructed by the Corporation.
(6) Whether they have right to prevent respondent 1 from shifting the fish and mutton vendors on the grounds that they have also to be shifted simultaneously to the full fledged stalls in the new market.
(7) To what reliefs the petitioners are entitled?
31. Sri S. P. Shankar, learned counsel for the petitioners, argued that having regard to the comprehensive interest and the reliefs sought for in the writ petitions, they arc maintainable as public interest litigation is involved in them. He has placed strong reliance upon the decision of the Supreme Court in Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Associa tion etc. v. Union of India, , to drive home this point. In paragraph 63 of the judgment in the above case, the Supreme Court held as follows (at page 317 of AIR):
"63. A technical point is taken in the counter-affidavit that the 1st petitioner is an unrecognised association and that, therefore, the petition to that extent, is not sustainable. It has to be overruled. Whether the petitioners belong to a recognised union or not, the fact remains that a large body of persons with a common grievance exists and they have approached this Court under Art. 32. Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through 'class actions', 'public interest litigation', and 'representatives proceedings'. Indeed, little Indians in large numbers seeking remedies in Courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of cause of action and person aggrieved and individual litigation is becoming obsolescent in some jurisdiction. It must fairly be stated that the learned Attorney General has taken no objection to a non-recognised association maintaining the writ petitions."
32. In that view of the matter, having regard to the nature of the grievances put forward and the reliefs sought for in these [petitions and the principle laid down by the Supreme Court in the above case, J must hold that these petitions involving class actions in the interest of public and being representative, proceedings can be construed as public interest litigation petitions and hence they arc maintainable. However, the question of locus siandi of the petitioners maintaining these petitions before this Court will be dealt with at an appropriate place later.
33. As to the second point on whether the petitioners have a right referable to Articles 14, 19(1)(g) and 21 of the Constitution in view of their being granted licences to carry on business in the temporary sheds, the bone of contention of Sri Shankar is (i) that the stall holders and other vendors doing business in the temporary sheds in the Nehru Maidan on the strength of the licences granted to them have acquired a fundamental right guaranteed under Arts. 14, 19(1)(g) and 21 of the Constitution; therefore, any action to curtail such a right would enable them to approach this Court to challenge such an action of respondent 1; (ii) that a promise having been held out by the Corporation as well as the State of Karnataka that the stall holders would be provided alternate accommodation with adequate facilities in the new market building constructed by the Corporation, there is a promissory estoppel against respondents 1 and 2 when they took out a stand that the stall-holders were not entitled to alternate accommodation in the new market building; (iii) and that once stalls are allotted, the stall holders or their legal representatives are entitled to continue in the stalls allotted unaffected and any attempt to dispossess them from the so-called stalls would affect their fundamental right guaranteed under the Constitution.
34. Dealing with the first limb of argument of Sri Shankar, the Court must consider how far the right arising under Articles 14 and 19(1)(g) of the Constitution could be attributable to the members of the petitioner-society registered under the Karnataka Societies Act when their contention is that their right to do business has been affected by the auction taken by respondent 1. To answer this question, we must fall back to the statement of objections presented on behalf of respondent 1. I have already stated the specific stand taken by respondent 1 opposing the writ petitions. Sri Holla, learned counsel for respondent 1, vehemently argued referring to the factual position that originally only 87 persons were granted licences by the predecessor of the Corporation, respondent 1, to run their business in the stalls. Undisputedly, the stall in respect of which licences were granted is the property of the Corporation. Therefore, according to Sri Holla, only those 87 persons or their legal representatives would be entitled to seek reliefs and not all the 132 stall holders said to be the members of the petitioner-society.
35. At the outset, I must point out that in the absence of the rejoinder by way of reply to the statement of objections, 1 must take it for granted that though not all of them at least 87 out of them were granted licences originally. Even assuming for the purpose of arguments that all the 132 stail holders were originally inducted as stall holders on the basis of the licences granted to them, how far such persons would be entitled to seek reliefs in these petitions before this Court, has to be considered. To answer the above question, it is better to refer to the provisions of the Easements Act. Section 52 thereof defines "License" as follows:--
"Where one person grant to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such, right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."
Therefore, we will have to distinguish a right arising out of the licence defined under Section 52 of the Easements Act from that of the lease in respect of immovable property defined under Section 105 of the Transfer of Property Act. 'Section 105 thereof defines 'lease' as follows :--
"A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."
Thus, a right arising out of a licence is different from right arising out of a lease. In other words, a person enjoying a right of lease is not comparable with a person enjoying a right of a licence as a licensee. This question came to be settled long back by a Division Bench of the Madras High Court in Chinnan v. Ranjithammal, AIR 1931 Madras 216, wherein it has been held as follows at pace 217:-
" A license is not annexed to the property in respect of which it is enjoyed, nor is it a transferable or heritable right, but is a right purely personal between grantor and licensee. Unless a different intention appears it cannot be exercised by the licensee's servants or agents."
This view has been followed by a Division Bench of this Court in Savithri V. Rao v. Commissioner, Corporation of the City of Mangalore, . Indeed, this Court had an occasion to consider whether the Corporation was entitled under Section 370 of the Karnataka Municipal Corporations Act, 1976 as amended by Karnataka Act No. 14 of 1977 to evict occupants of public markets without recourse to the procedure provided under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974. The Division Bench to which I was a party referring to the provisions of Section 370 held as follows at p. 2175 :--
"It is true that the 1974 Act is a special enactment which prescribes a special procedure for eviction of unauthorised occupants from public premises and having regard to the definition of the word 'public premises' in the said Act, every premises belonging to a local authority like the Corporation is a public premises. But it is also a general provision applicable to all premises of the State and all its instrumentalities including local authorities. Section 370, however, is a special provision applicable to public markets belonging to the Corporation. It has been incorporated designedly by the Legislature to regulate the occupation of public markets. It has no application to all other buildings/ premises of the Corporation, that is, other than public markets. In respect of buildings/ premises other than public markets, the Corporation, in order to evict an unauthorised occupant, has to resort to the 1974 Act.... It-is also significant that the Municipal Corporations Act is a later enactment than the 1974 Act. The incorporation of Section 370 into the Municipal Corporations Act makes it clear that the Legislature considered that a special provision as the one contained in the said section was essential in order to control markets and the power to evict a person occupying a premises in a public market on any one of the grounds specified in Section 370 of the Act was essential in public interest, and, therefore, the Legislature has considered that such a special power has to be conferred on the Commissioner of the Corporation under Section 370 of the said Act. The contention advanced, if accepted, would render Section 370 otiose and therefore should be rejected. Under the said section a Corporation is entitled to evict any person occupying a premises in a public market, if any one of the grounds mentioned in the said provision was available."
36. There the contention that the premises held by the Corporation would come within the purview of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 and that therefore persons in occupation of the markets could not be evicted without recourse to the procedure provided in the 1974 Act was repelled by holding that the provisions of the said Act were not applicable to the markets held and controlled by the Municipal Corporations as the same were governed by the special provisions of Section 370 of the Corporation Act of 1976. Thus, a person who had been enjoying right of license cannot contend that he has a right to be evicted only under the Public Premises Act. It is also made clear in the above decision that a licensee has no right of protection of the statute against action of eviction. Therefore, it is not possible to concede to the submission of Sri Shankar that persons doing business in the stalls belonging to the Corporation on the basis of the licences granted to them can seek protection under the statute. Secondly, all the 87 persons who were originally granted licences by the Corporation are not before this Court. Some of the unauthorised persons or the legal representatives of the original licenses are before us. The question is whether they would be entitled to protection under the statute. My answer is 'no' because, when a person enjoying certain right under a license himself has no protection under the statute against eviction, his legal representatives or any unauthorised person cannot have better right and hence none of them would be entitled to such protection. This is the view taken by the Madras High Court. That being so. it is needless to point out that no protection under the statute would be available to third persons who have come before this Court merely on the ground that they are members of the petitioner-society. To say in one word, such persons do not have locus standi to maintain these petitions.
37. Now the question is whether the fundamental right guaranteed to a citizen of India under Articles 14 and 19(1)(g) of the Constitution would come to the aid of the petitioners herein. Sri Shankar placed strong reliance on the decision of the Supreme Court in Olga Tcllis v. Bombay Municipal Corporation and Vayyapuri Kuppusami v. State of Maharashtra, and Sedan Singh v. New Delhi Municipal Commissioner, AIR 1989 SC 1988 : 1989 All LJ 1097, to sustain his arguments. In OlgaTeilis's case, the Supreme Court referred to the provisions of Article 21 of the Constitution read with Sec. 314 of the Bombay Municipal Corporation Act, held in paragraphs 31 and 32 as follows at pages 193 and 194 of AIR 1986 :''--
"The scope of the jurisdiction of this Court to deal with writ petitions under Art. 32 of the Constitution was examined by a Special Bench of this Court in Smt. Ujjam Bai v. State of Uttar Pradesh . That decision would show that, in three classes of cases, the question of enforcement of the fundamental rights would arise, namely, (1) where action is taken under a statute which is ultra vires the Constitution; (2) where the statute is intra vires but the action taken is without jurisdiction; and (3) an authority under an obligation to act judicially passes an order in violation of the principles of natural justice. These categories are, of course, riot exhaustive. In Naresh Shridhar Mirajkar v. State of Maharashtra, , a Special Bench of nine learned Judges of this Court held that, where the action taken against a citizen is procedurally ultra vires, the aggrieved party can move this Court under Art. 32. The contention of the petitioners is that the procedure prescribed by Sec. 314 of the B. M. C. Act being arbitrary and unfair, it is not "procedure established by law" within the meaning of Art. 21 and, therefore, they cannot be deprived of their fundamental right to life by resorting to that procedure. The petitions are clearly maintainable under Art. 32 of Constitution.
32. As we have stated while summing up the petitioners'case, the main plank of their argument is that the right to life which is guaranteed by Art. 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dewllings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Art. 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally import ant facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional Tight to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaning-fulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live. Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey, (1954) 347 MD 442, that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois, (1877) 94 US 113, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U. P. ."
38. I am of the opinion that the above ruling came to be laid down by the Supreme Court while interpreting the provisions of Article 21 based upon the peculiar facts and circumstances of case where action was sought to be taken by the Municipal Corporation, Bombay seeking to evict pavement dwellers in Bombay City. That is not the point or the factual position arising in these petitions. Secondly, the ruling in Olga Tellis's case came to be distinguished by the subsequent judgment in Sodan Singh's case wherein their Lordships were called upon to deal with the question whether trading on pavements of the streets could be said to be a right referable to Article 19(1)(g) of the Constitution. Distinguishing the ruling in Olga Tellis's case, the Supreme Court held that street trading is a fundamental right guaranteed under Art. 19(1)(g) of the Constitution, but it is obviously subject to reasonable restrictions imposed by the State under Article 19(6) of the Constitution. However, it has been further held that there is no fundamental right of a citizen to occupy a particular place in any street for the purpose of engaging himself in 'street trading'. In the instant case, we have not been called upon to deal with a case of street trading or trade on pavements of the streets. On the other hand, we have been called upon to decide the question whether a licensee doing business in a stall belonging to the Corporation would be entitled to seek for enforcement of fundamental right under Article 19(1)(g) of the Constitution. I am clearly of the opinion that having regard to the facts arising in these cases, the principle: laid down by the Supreme Court in the above two cases cannot be pressed into service to decide a right of a person doing business as a licensee that too after the expiry of the period of license. My answer is such a person cannot invoke the provisions of Articles 14 and 19(1)(g) muchless 21 of the Constitution.
39. Coming to the next limb of argument of Sri Shankar that the doctrine of promissory estoppel operates against the Corporation respondent-1 on its failure to comply with the promise held out by it to the stall holders that they would be given adequate alternate accommodation in the new market, factually the petitioners have not been able to impress upon the Court that there was such a promise held by the authorities particularly respondent-1 in their favour. A mere reference to the paper cuttings from the daily newspapers produced before the Court as Annexures do not constitute -evidence that there was a promise held out. On the other hand, in the counter affidavit, these averments have been denied as false. Therefore, in the absence of positive evidence that there was such a promise, the plea taken in the petitions remains as the plea only. In other words, in the absence of any proof that there was a promise held out, I must say that this is only a plea. No doubt, there were representations said to have been made by the stall holders before the Commissioner, Administrator, Mayor and the Hon'ble Minister in this behalf, but as against these representations, no specific assurance or promise is given by the competent authority. To reiterate the argument of Sri Holla, the averments in this behalf has been denied and no rejoinder has been filed to traverse this denial in the statement of objections. Even otherwise, the contention of Sri Shankar is not tenable because there cannot be estoppel against the State. The law on this aspect has been clearly laid down by the Supreme Court in the very judgment in Volga Tellis's case. In that judgment, considering the provisions of Section 115 of the Evidence Act with reference to Articles 14, 16, 19, 21 and 226 of the Constitution, the Supreme Court has held in paragraphs 28 and 29 as follows :--
"There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights.There can also be; no waiver of fundamental rights. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. We're the argument of estoppel valid, an all-powerful state could easily tempt an individual to forgo his precious personal freedoms on promise of transitory, immediate benefits."
Thus, the question of enforcing Section 115 of the Evidence Act as against the State or the first respondent Corporation which is an instrumentality of the State under Article 12 of the Constitution, does not arise in a case like this. In that view of the matter, the contention of Sri Shankar with regard to doctrine of estoppel will have to be rejected.
40. Another limb of argument of the learned counsel for the petitioner is that the directive principles of State policy under Part-IV of the Constitution are attracted in a case of this kind for the purpose extending benefit thereof to the members of the petitioner-society. He submitted that in the absence of a right available to the petitioners under Articles 19(1)(g) and 21 of the Constitution and in the absence of any statutory provisions, the Court may consider the protection given to such persons under Chapter-IV of the Constitution. 1 do not think that there is any force in this submission. The Supreme Court had an occasion to consider the similar question in Kesavananda Bharati v. State of Kerala, wherein referring to Article 39(b)-(c) of the Constitution, the Supreme Court held :
"These clauses, together with other provisions of the Constitution, contain one main objective, namely, the building of a welfare State and an egalitarian social order, -- to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revocation. Through such a social revolution the Constitution seeks to fulfil the basic need of the common man and to change the structure of the society, without which political democracy has no meaning."
But, at the same time, the Court held :
"A law matle for implementing these directives, instead of being contrary to the Preamble, would be in conformity with it because while it may cut down individual liberty of a few, it widens the horizon for the many e.g., a scheme for agrarian reform." (H. S. Srinivasa v. State of Karnataka AIR 1987 SC 1518:JT 1987 ( 3 ) SC 26.
The Court further held :
"Because the Directive Principles cannot directly override the Fundamental Rights and because without implementation of the Directive, the very conditions for the enjoyment of Fundamental Rights by all cannot be created, the Constitution has been amended several times, culminating in the insertion of Art. 31C to ensure that the implementation of Art. 39(b)(c) cannot be blocked by the guarantee of Fundamental Rights."
But all that we have got to notice is whether any right arising out of Chapter-lV of the Constitution is enforceable or justiciable in the Courts of law. To answer this, the Supreme Court held in the very decision:
"The Directives, however, differ from the Fundamental Rights contained in Part-111 of the Constitution or the ordinary laws of the land, in the following respects:
(i) The Directives are not enforceable in the Courts and do not create any justiciable rights in favour of individuals.
xx xx"
Therefore, even presuming for the purpose of argument that any such rights as are contained in Chapter-IV of the Constitution arc available to the petitioner for enforcement, such rights not being justiciable or enforceable in the Court of law, they cannot be equaled with those arising out of Chapter-111 of the Constitution. Sri Shaiikarhiis not been able to convince the Court that the rights accrued to the petitioners from Chapter-I V of the Constitution could be enforceable. In deed, as observed by the Supreme Court with a view to building up a welfare State and an egalitarian social order, to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution, it is for the legislature to look into these mailers and to make an appropriate legislation with a view to safeguarding interests of the citizen including persons such as members of the petitioner-society. In the absence of any such legislation, it is not possible to hold that any such rights said to have been accrued to the petitioners could be enforceable or justiciable. Thus, I do not see any force in the submission of Sri Shankar.
41. Dealing with the question whether the stall holders can continue to do their business in the temporary sheds in the Nehru Maidan until alternate arrangements are made in the new market to be constructed by the Corporation, at the out-set, I may point out that, according to Sri Holla, learned counsel for respondent-1 Corporation, certain lands were sought to be acquired by the State Government on behalf of the Corporation in the year 1985 and that as there was an interim order staying further proceedings of the acquisition, possession of the said lands could not be taken and hence there was delay.
42. Supporting this submission of Sri Holla, Sri Subbanna, learned Government Advocate appearing for the State, submitted that the stay having been vacated, the State was able to issue final notification and thereafter an award in this behalf came to be passed in the year 1989; that pursuant to the passing of the award, possession of the lands was also taken over and that the lands were then available at the disposal of the Corporation for construction of the new market building according to the approved plan. In this behalf, Sri Holla also submitted that once the proposed project was complete and the building constructed in accordance with the approved plan, there might not be any difficulty for rcspondent-1 to provide accommodation for all the stall holders in the new market. However, he submitted that that was not a ground to prevent respondent-1 from taking action to evict the stall holders as, according to him, the stall holders had no right under the statute muchless vested right in them and that therefore they were liable to be evicted in the interests of the Corporation of the City of Mangalore as it had been losing heavy revenue for the last seven years. He further submitted that the interim order of stay granted by this Court in these cases had been operating since 1985 and that therefore large amount of revenue was being lost to the Corporation.
43. I have already noticed the stand taken by the Corporation in the statement of objections referred in the earlier paragraphs. The specific stand taken by respondent-1 is that in view of the special provisions of the statute governing the r-iarkets and the stallholders, respondent-1 Corporation is entitled to take action to evict the stall holders as that action is in the larger interests of the Corporation. While considering whether a person having a right on lease can be put on par with a person having a right on licence, I have referred to the decision of a Division Bench of this Court in Savithri's case where the question arose for consideration was whether, in view of the special provisions of Section 370 of the Act, the Corporation was entitled to evict occupants of public markets without resort to the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974, and have held that rights arising out of a licence and a lease are different and a person doing business on the strength of a licence has no right to continue to do so after the expiry of the period of licence, following the decision of this Court in Savithri's case.
44. Another aspect that is required to be considered in this case is that the Karnataka Municipal Corporations Act, 1976 (Karnataka Act No. 14 of 1977) is a self-contained Code and apart from the special power conferred upon the Corporation under Section 370, there are other provisions particularly Section 369 which deals with power of municipal authorities in respect of public markets in regard to imposition and collection of fees for the sale of goods in public markets etc. The fees imposable and recoverable under S. 369 are in respect of public markets established and run by the Corporation and let out under licences. As 1 have already stated that it is an undisputed fact that a licence issued in respect of a public market is revocable and the licence granted by the Corporation to an individual citizen in respect of a stall in the public market is neither transferable nor heritable as held by the Madras High Court in Chinnan's case, referred to above. In that view of the matter, let alone others, even the 87 stall holders originally granted licences as contended by Sri Holla, learned counsel for respondent-l, and as stated in the statement of objections, have no transferable or heritable rights. In other words, any right arising out of a licence not being transferable or heritable, any third person based upon such licence cannot contend that he has a right to remain in the stall after the expiry of the period of licence. Admittedly, the licences issued were for a period of two years and without the same being renewed from time to time, such licensees cannot have any right or interest to continue in the stalls and in the absence of any contract or statutory right, it is impermissible for the stall holders to contend that they have a right to remain in the stalls till alternate arrangements are made. As already stated, it is for the Corporation to allow them to be in, or evict them from the stalls maintained by it, in the interests of public. According to Sri Holla, learned counsel for respondent-l, accommodation provided in the Nehru Maidan to the stall holders and fish vendors was only a tentative arrangement and when the full-fledged stalls were constructed in the new market and were offered for occupation, the stall holders entitled to occupy the stalls offered cannot contend that they would continue in the present place until adequate facilities are provided in the new market. His contention is that in order to comply with the statutory obligation, respondent-l has to take action for eviction of the stall holders. 1 have already held that the stall holders have no statutory right conferred on them to continue their business in the stalls in question. The eviction of stall holders from the Nehru Maidan is required to comply with the statutory obligation on the part of respondent 1 to prevent nuisance or obstruction in any market-place and to maintain hygienic conditions in the interest of general public and the Corporation has undoubtedly got power to do so vested in it under Section 370 of the Act as hold by this Court in Savitri's case. In the circumstances, they cannot contend that they are entitled to continue to be in the temporary stalls at the Nehru Maidan until alternate arrangements are made in the new market. Hence, I answer point No. 5 in the negative.
45. Touching the last point concerning the contention of the stall holders that all of them should be simultaneously shifted along with fish and mutton vendors to the full-fledged stalls in the new market, I have to notice it only to be rejected for the simple reason that, first of all, all of them are not entitled to be accommodated in the new market, for the reasons stated above, and hence question of shifting them simultaneously along with fish and mutton vendors to the new market does not arise at all. Secondly, the contention of Sri Holla is that at present the Corporation cannot accommodate all the eligible stall holders in the new market building for want of stalls and that the remaining eligible stall holders and other vendors would be accommodated in the new market building to be constructed on the land now acquired for the purpose. Therefore, 1 do not see any logic in the contention of the stall holders that all of them should be simultaneously shifted along with fish and mutton vendors to the newly constructed market building with adequate facilities. Hence, this contention is also without any substance and I answer the point accordingly.
46. In the result and for the reasons stated above, i make the following ORDER These writ petitions fail and are accordingly dismissed. No costs. However, it is open to the members of the petitioners society and others aggrieved by the action of eviction to be taken hereafterwards to approach the Corporation after proposed market building is constructed on the acquired land for accommodation in it in which event the Corporation will consider their case sympathetically having regard to the length of the business they conducted in the temporary sheets in accordance with law.
47. Petition dismissed.