Ahmedabad
Municipal Corporation Vs. Dilbagsingh Balwantsingh & Ors [1992] INSC 90 (24 March 1992)
Reddy,
K. Jayachandra (J) Reddy, K. Jayachandra (J) Pandian, S.R. (J)
CITATION:
1992 SCR (2) 322 1992 SCC Supl. (2) 630 JT 1992 (2) 363 1992 SCALE (1)721
ACT:
Ahmedabad
Municipal Corporation Act Foot-path hawkers on public streets-Obstructions to
traffic and other public amenities-Removal by Corporation under an approved
scheme-Tactics of hawkers to thwert implementation of scheme-Interim injunction
granted in their favour vacated.
HEAD NOTE:
A
mushroom growth of public street/footpath hawkers affected the traffic and
other public amenities. The Corporation (appellant) decided to remove the
obstructions created by such hawkers, after giving them enough opportunity.
The
Corporation's action was challenged by way of writ petitions in the High Court.
The High Court after hearing all the petitioners and following the judgments of
this Court in Bombay Hawkers Union v. Bombay Municipal Corporation, [1985] 3
SCC 528 and Olga Tellis v. Bombay Municipal Corporation, [1985] 3 SCC 544
directed the Corporation to evolve a scheme having regard to the overall local
conditions in the area.
Several
special leave petitions were filed against the High Court's judgment and this
Court remitted the matter back to the High Court for consideration of the
scheme.
On
22.4.87 the High Court held that the scheme framed by the Corporation observed
to be accepted subject to certain modifications.
When
some of the aggrieved persons approached this Court, this Court permitted the
hawkers and other similarly placed traders to place their difficulties before
the High Court.
On
7.12.87 the High Court reconsidering the scheme, held that it was not necessary
to further modify the scheme and ultimately the scheme was confirmed.
The
respondents were small traders running their business in small 323 shops. they
were alleged to have made encroachments and were also covered by the scheme.
They filed several suits and withdrew them after the High Court gave its final
verdict.
On
1.10.88 the respondents filed a suit in the City Civil Court for directions and injunction. The appellant Corporation
filed a reply to the notice of motion. The City Civil Court on 18.9.89 vacated the interim injunction.
The
respondents thereupon filed an appeal in the High Court seeking interim
injunction which was admitted granting interim injunction restraining the
Corporation from removing or pulling down the business premises of the
respondents.
The
Corporation filed the present appeal questioning the High Court's order,
contending that on earlier occasions the High Court dismissed the appeals and
that the encroachment was causing nuisance and inconvenience to the public and
the Corporation was finding it extremely difficult to implement the scheme
which was considered and approved by the High Court in accordance with the
directions given by this Court.
The
respondents submitted that there was no objections to the implementation of the
scheme; and that their shops did not in any way amount to encroachment and
their locations did not cause any inconvenience or nuisance.
Allowing
the appeal, this Court,
HELD:
1.01.
Several associations of hawkers, traders and larrigallawalas filed writ
petitions and the Supreme Court directed the High Court to consider the
difficulties and finally the High Court approved the scheme subject to some
modifications. [326C]
1.02.
In the instant case notice was issued and this Court and also directed the
appellant-Corporation to seek any other relief on the basis of the order of
this Court in the S.L.P. (Civil) No.5465/89, and the S.L.P. was adjourned to
15.11.91 for enabling the Corporation to provide alternative suitable sites for
the respondents according to the scheme. Thereafter the matter was adjourned
several times at the request of the counsel. [326 F-G]
1.03.
On 4.2.92 a rejoinder was filed in which it is stated that the 324 Corporation
had offered to the respondents hawking licenses etc. under the scheme but the
respondents are not accepting the same and that the respondents were offered
four alternative sites in Plot No. 174 of the Town Planning Scheme and that the
same are suitable to carry on their businesses. [326 G-327A]
1.04.
On 7.2.92 the respondents stated before this Court that they will choose any
one of the alternative sites now offered by the appellant Corporation and more
to the offered place. The matter was again adjourned. The respondents once
again have come forward with the same kind of grievance and it is also submitted
that they are not encroaching upon the public road and some other shops
similarly situated are not being shifted and that the sites offered by the
Corporation are not suitable. [327 A-B]
1.05.
The respondents have been trying their best to thwart the implementation of the
scheme which was examined by this Court as well as the High Court on more than
one occasion. [327 B-C]
Bombay
Hawkers Union v. Bombay Municipal Corporation, [1985] 3 SCC 528; Olga Tellis v.
Bombay municipal Corporation, [1985] 3 SCC
544; Baroda Municipal Corporation v. Sharmjivi Hathlary Association & Ors.,
SLP (CIVIL) No. 5465/89-D/-3.5. 1989, referred to. & CIVIL APPELLATE JURISDICTION
: Civil Appeal No. 1117 of 1992.
From
the Judgment and Order dated 27.9.1990 of the Gujarat High Court in Appeal from
Order No. 393/89.
WITH Civil
Application No. 2857 of 1989.
T.U.
Mehta, Kuldeep Parihar and H.S. Parihar for the Appellant.
Ramesh
P. Bhatt, Ms. Tanuja Sheel, Ms. Priya Hingorani and M.N. Shroff for the
Respondents.
The
Judgment of Court was delivered by K.JAYACHANDRA REDDY, J. Leave granted 325 Ahmedabad
Municipal Corporation ('Corporation' for short) is the appellant herein and the
four respondents are small traders running their businesses in small shops.
They claimed that their shops are 10 feet away from the public road. According
to the appellant Corporation there was a mushroom growth of public
street/footpath hawkers which affected the traffic and other public amenities
and therefore the police/public Authorities within the Municipal Corporation
area were constrained to remove the obstructions created by such hawkers after
giving them enough opportunity. The said action of the police/public
authorities had been challenged by way of a number of petitions in the High
Court of Gujarat. The High Court after hearing all the petitioners and
following the Judgments of this Court in Bombay Hawkers Union v. Bombay
Municipal Corporation, [1985] 3 SCC 528 and Olga Tellis v. Bombay Municipal
Corporation, [1985] 3 SCC 544 directed the Corporation to evolve a scheme
having regard to the overall local conditions in the area. Questioning the
above said order and judgment of the High Court several special leave petitions
were filed and this Court remitted the matter back to the High Court of Gujarat
for consideration of the scheme in the light of certain observations made
therein. The High Court by its order dated 22.4.87 held that the scheme framed
by the Corporation deserves to be accepted subject to certain modifications.
Again some of the persons aggrieved by the said order of the High Court
approached this Court and this Court permitted the hawkers and other similarly
placed traders to place their difficulties before the High Court. The High
Court reconsidered the scheme and by an order dated 7.12.87 held that it is not
necessary to further modify the scheme and ultimately the scheme was confirmed.
The
respondents who are alleged to have made encroachments and who are also covered
by the scheme filed several suits and withdrew them after the High Court gave
its final verdict. The respondents again filed a suit on 1.10.88 in the City Civil Court, Ahmedabad for directions and
injunction. The City
Civil Court granted
interim injunction.
The
appellant Corporation filed a reply to the notice of motion. The City Civil Court by its order dated 18.8.89 vacated
the interim injunction. The respondents thereupon filed an appeal in the High
Court and also sought interim injunction. The High Court admitted the appeal
and granted interim injunction restraining the Corporation from removing or
pulling down the business premises of the respondents.
Questioning
the same the Corporation has filed the present appeal.
It was
contended that on earlier occasions the High Court dismissed 326 the appeals
and that the encroachment is causing nuisance and inconvenience to the public
and the appellant Corporation is finding it extremely difficult to implement
the scheme which has been considered and approved by the High Court in
accordance with the directions given by this Court. Learned counsel for the
respondents submitted that there is no objection to the implementation of the
scheme.
But so
far as the respondents' shops are concerned, it was submitted that they do not
in any way amount to encroachment and their locations do not cause any
inconvenience or nuisance.
As
already mentioned several associations of hawkers, traders and larri-gallawalas
filed writ petitions and the Supreme Court directed the High Court to consider
the difficulties and finally as stated above the High Court approved the scheme
subject to some modifications. In a similar matter which was the subject matter
of S.L.P.(Civil) No. 5465/89 - Baroda
Municipal Corporation v. Sharmjivi Hathlary Association & Ors. This Court
by its order dated 3.5.89 observed thus :
"We
are of the view that it was an attempt to thwart the Scheme by approaching the Civil Court.
It is
an abuse of process of the Court and gives rise to a situation where contempt
action should lie. We, however, do not propose to take such action, but
consider it very appropriate in the interest of justice to direct dismissal of
the suit itself. By this order of ours, the said suit being No. 1761 of 1985 in
the Court of 6th Joint Civil Judge, Sr. Div., Vadodara, shall stand dismissed
and all interlocutory orders made therein shall stand dismissed." However,
in the instant case notice was issued and this Court also directed the
appellant Corporation to seek any other relief on the basis of the order of
this Court in the above S.L.P. (Civil) no. 5465/89. By an order dated 13.9.91
the S.L.P. was adjourned to 15.11.91 for enabling the Corporation to provide
alternative suitable sites for the respondents according to the scheme.
Thereafter the matter was adjourned several times at the request of the
counsel.
Meanwhile
on 4.2.92 a rejoinder was filed in which it is stated that the Corporation had
offered to the respondents hawking licenses etc. under the scheme but the
respondents are not accepting the same. It is also stated therein that the respondents
were offered four alternative sites in plot No. 174 of the Town Planning scheme
and that the 327 same are suitable to carry on their businesses. On 7.2.92
learned counsel appearing for the respondents stated before this Court that
they will choose any one of the alternative sites now offered by the appellant
Corporation and move to the offered place. The matter was again adjourned. The
respondents once again have come forward with the same kind of grievance and it
is also submitted that they are not encroaching upon the public road and some
other shops similarly situated are not being shifted and that the sites offered
by the Corporation are not suitable. We have heard both the parties at length
and we are satisfied that the respondents have been trying their best to thwart
the implementation of the scheme which was examined by this Court as well as
the High Court on more than one occasion.
Therefore
we allow this appeal with costs, set aside the order of the High Court in Civil
Application No. 2857/89 in Appeal from Order No. 393/89 dated 27.9.90 and the
interim injunction granted by the High Court stands vacated. We confirm the
order of the City Civil Court dated 18.9.89 vacating the injunction.
Consequently Appeal from Order No. 393/89 pending in the High Court stands
dismissed.
V.P.R.
Appeal allowed.
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