Judgment : 1. In both these writ petitions, the prayer is identical, seeking for the issue of a mandamus, forebearing the respondents from interfering with the petitioners’ business of running the bunk situated near the Kilpauk Medical College Hospital, Chennai. 2. Admittedly these petitioners have located their bunks in Poonamallee High Road which belongs to Highways Department, without obtaining the licence, as required under Sec.279 of the Madras City Municipal Corporation Act. Hence the Corporation of Madras, Health Department, issued the notice under Sec.379(A) of the Madras City Municipal Corporation Act (Act IV of 1919), calling upon the petitioners to remove their bunks, since they have installed the same without getting any licence from the Commissioner, as required under Sec.279 of the Madras City Municipal Corporation Act. 3. Mr.K.S.Natarajan, the learned counsel for the petitioners contended that Sec.279 of the Madras City Municipal Corporation Act, requires licence to keep any lodging house, eating-house, tea-shop, coffee-house, cafe, restaurant, refreshment room, or any place, where the public are admitted for repose or for consumption of any food or drink or any place where food is sold or prepared for sale. The bunk installed by the petitioners do not fall under any of the categories and as such there is no requirement for the petitioners to take licence. It is further contended by the learned counsel that the petitioner keep the food articles, tea, coffee and sold to the consumers and the consumers are never permited to go to the bunk, as there is no space. The consumers only stand outside the bunk and purchase the food articles, tea or coffee for consumption and hence the bunk cannot be called as a place where the public are admitted for repose or for consumption of any food or drink. Only the place where the public are admitted to have their food or drink, such places are required licence. Hence on this ground also the petitioners are not bound to take any licence. So the notice issued by the Health Department of the Corporation of Chennai under Sec.379-A of the Madras City Municipal Corporation Act is without any jurisdiction or authority and hence the respondents should be directed not to interfere with the business of the petitioner. 4. Hence on this ground also the petitioners are not bound to take any licence. So the notice issued by the Health Department of the Corporation of Chennai under Sec.379-A of the Madras City Municipal Corporation Act is without any jurisdiction or authority and hence the respondents should be directed not to interfere with the business of the petitioner. 4. The learned counsel for the respondents contended that the bunk will definitely attract the name ‘tea shop’ or ‘any place where food is sold’ occurring in Sec.279 of the Madras City Municipal Corporation Act. When that be so, it is necessary for the petitioner to take out the licence and the failure on their part would empower the authorities to call upon the petitioner to remove the bunk, since the petitioner did not obtain the required licence. 5. I carefully considered the contentions of both the counsel. In order to appreciate the contention of the learned counsel for the petitioner, it is but necessary to look into Sec.279 of the Madras City Municipal Corporation Act which is as follows: “279. Prohibition in respect of lodging houses: (1) No person shall without or otherwise than in conformity with the terms of a licence granted by the commissioner in this behalf, keep any lodging house, eating-house, tea-shop, coffee-house, care, restaurant, refreshment room, or any place, where the public are admitted for repose or for consumption of any food or drink or any place where food is sold or prepared for sale; Provided that no such licence shall be required for a lodging house as defined in the Madras Public Health Act, 1939, if the keeper thereof been registered under that Act. Explanation: “Lodging house” means a hotel, boarding house, choultry or rest-house other than a choultry or rest-house maintained by the Government or a local authority, unlicensed emigration depot or any place where casual visitors are received and provided with sleeping accommodation with or without food on payment but does not include a students’ hostel under public or recognized control. Explanation: “Lodging house” means a hotel, boarding house, choultry or rest-house other than a choultry or rest-house maintained by the Government or a local authority, unlicensed emigration depot or any place where casual visitors are received and provided with sleeping accommodation with or without food on payment but does not include a students’ hostel under public or recognized control. (2) The commissioner may at any time cancel or suspend any licence granted under Sub-sec.(1) if he is of opinion that the premises covered thereby are not kept in conformity with the conditions of such licence of with the provisions of any by-law made under Sec.349 relating to such premises whether or not the licence is persecuted under this Act.” A careful reading of the above section would establish how fallacy the argument is. Sec.279 prohibits any one to keep any lodging house, eating house, tea-shop, coffee-house, cafe, restaurant, refreshment room, or any place, where the public are admitted for repose or for consumption of any food or drink or any place where food is sold or prepared for sale. Even though the section specifies innumerable places requiring the licence, each one is a separate category and this will be evident from the words ‘or any place’. To run any one of the specified shops, a licence is required. The admission of public for repose or for consumption of any food or drink cannot be clubbed as a conjecture to all the specified categories. Hence, the admission of public is not simply applicable to each and every one of the categories mentioned in this section. It has relevance only in generic term to ‘any place’. 6. Even apart from this, there cannot be any dispute that the bunk run by the petitioners would definitely come under the category of ‘tea shop’ since tea, coffee and other eatables are being sold by the petitioners. Even if the bunk would not attract the term ‘tea shop’ still it would fall within the clause ‘any place where food is sold’. Even if the bunk would not attract the term ‘tea shop’ still it would fall within the clause ‘any place where food is sold’. Sec.3(11-A) of the Madras City Municipal Corporation Act defines the ‘food’ as follows: “Food” includes every article (other than drugs and water) used by man for food or drink and all material used or admixed in the composition or preparation of such article and shall also include flavoring or colouring matter, confectionery, spices and condiments.” From the above definition ‘food’ includes article used by man for food or drink. Hence the eatables and the coffee as well as tea would definitely fall under the article used by man for food or drink. Hence, there cannot be any doubt the bunk is required licence as per Sec.279 of the Madras City Municipal Corporation Act. 7. One other aspect which is more relevant to consider the question is Rule 50(1) of the Rules framed under the Prevention of Food Adulteration Act, which prohibits a person to sell or exhibit for sale any article of food without a licence in the following terms: “No person shall manufacture, sell stock, distribute or exhibit for sale any article of food, including prepared food or ready to serve food, except under a licence.” 8. Explanation (v) to Sec.2(m) of the Prevention of Food Adulteration Act, defines ‘food’ as follows: “food” means any article used as food or drink for human consumption other than drugs and water and includes- (a) any article which ordinarily enters into, or is used in the consumption or preparation as human food.” A reading of the above said provisions undoubtedly establish that a licence is required for selling the food articles. 9. Sub-rule (2) of Rule 50 of the Prevention of Food Adulteration Rules 1955, prescribes the authority for the issue of licence as follows: 10. Rule 13 of the Tamil Nadu Prevention of Food Adulteration Rules, 1961 prescribes the licensing “The State Government or the local authority shall appoint licensing authorities.” authorities so far as this State is concerned, which is as follows: “The executive authority shall be the authority competent to issue licence under the Act and these rules.” 11. Rule 13 of the Tamil Nadu Prevention of Food Adulteration Rules, 1961 prescribes the licensing “The State Government or the local authority shall appoint licensing authorities.” authorities so far as this State is concerned, which is as follows: “The executive authority shall be the authority competent to issue licence under the Act and these rules.” 11. The ‘executive authority ‘is defined as follows under Rule 2(b) of the Tamil Nadu Prevention of Food Adulteration Rules, 1961: “executive authority” means- (i) in the City of Madras, the Commissioner of the Corporation of Madras; (ii) in a Municipality, the Commissioner of the Municipality; (iii) in a panchayat Town, the Executive Authority of the Panchayat Town concerned; (iv) in a Panchayat Village, the Commissioner of the Panchayat Union concerned; (v) in a Township, the Executive Authority of the Township concerned;” Sub-clause (i) of Clause (b) of Rule 2 of the Tamil Nadu Prevention of Food Adulteration Rules, 1961 makes it clear that the Commissioner of Corporation of Madras is the Executive Authority so far as the City of Madras is concerned. Hence even under the Prevention of Food Adulteration Act, the bunks are required to obtain the licence. The Health Officer under the Madras City Municipal Corporation Act is the same authority under the Prevention of Food Adulteration Act. Hence there is no infirmity in the notice issued by the second respondent, who is the competent authority for taking steps. For the reasons stated above, I am unable to appreciate the contention of the learned counsel for the petitioners”. 12. The learned counsel for the petitioners, however, relied upon the judgment reporteod in Emperor v. Ganapathi Aiyar Emperor v. Ganapathi Aiyar Emperor v. Ganapathi Aiyar 23 MLJ. 732 in support of his contention that no licence is required for bunks. The learned Judges of the Division Bench held so while interpreting Bye-law 169 of the City Municipal Act which arose for consideration. Byelaw 169 has been extracted in the said judgment as follows: “No person shall expose for sale or keep for the purposes of sale any article intended for human food which is unwholesome or unfit for human consumption.” The question arose for consideration in that case is whether the ‘food’ in the said bye law includes drink or not. Byelaw 169 has been extracted in the said judgment as follows: “No person shall expose for sale or keep for the purposes of sale any article intended for human food which is unwholesome or unfit for human consumption.” The question arose for consideration in that case is whether the ‘food’ in the said bye law includes drink or not. The learned Judges considered the question and said ‘no’ because there is no definition of the term ‘food’ either in the Madras City Municipal Corporation Act or apparently in the corresponding Acts in Calcutta or Bombay. That is not the situation now before us. The City Municipal Corporation Act clearly defines ‘food’. The Food Adulteration Act also clearly defines ‘food’ which includes ‘drink’. Hence the said judgment has no relevance to the facts of the present case. 13. Even assuming the notice is invalid, still the prayer in the writ petition cannot be granted. When the place occupied by the petitioners is being a public place in a highway, there is no doubt that they are the encroachers of the property belonging to the Highways Department. Ordinarily the encroachment ought not to have been permitted. Even though it has been permitted for some reason or other, still the authorities have to remove such encroachments when the places occupied by the petitioner is required for the public purpose. Undoubtedly the occupation of the petitioners would cause inconvenience to the vehicular traffic, that too especially near the Government hospital situated in a highway. In such circumstance, the respondents cannot be restrained from interfering with the business of the petitioners. 14. In a recent judgment, the Division Bench of this Court in the judgment reported in Sekhar v. Malligarjuna Rao (2000)3 MLJ. 123 had categorically held that a wrong does cannot approach this court for any redressal. The petitioners being the encroachers on the public property situated in the highway can definitely be termed as ‘wrong doers’ and hence on the principles laid down by the Division Bench of this Court also they are not entitled for the relief sought for in these writ petitions. 15. The petitioners being the encroachers on the public property situated in the highway can definitely be termed as ‘wrong doers’ and hence on the principles laid down by the Division Bench of this Court also they are not entitled for the relief sought for in these writ petitions. 15. In fact I have held so in yet another case reported in Aathi v. Tamil Nadu Housing Board (2000)3 L.W. 531, where it was contended that the Tamil Nadu State Housing Board Act do not contain any provision to issue notice, calling upon the encroacher to vacate and as such the Housing Board cannot seek for the removal of the encroachments. It is held that irrespective of the jurisdiction of the authorities, the question for consideration is what is the right of the encroacher to continue in occupation. On that ground it has been held that being an encroacher the petitioner has no right to continue to be in possession and the same principle would also apply to the facts of the present case. 16. As held in the case Tiruchirapalli Palporul Virkum Thozhilalar Sangam v. Commissioner Corporation of Trichy Tiruchirapalli Palporul Virkum Thozhilalar Sangam v. Commissioner Corporation of Trichy Tiruchirapalli Palporul Virkum Thozhilalar Sangam v. Commissioner Corporation of Trichy (1998)2 C.T.C. 610 by another Division Bench, the jurisdiction under Art.226 of the Constitution of India can be invoked by an individual to protect his legal right and not to create a new right. The encroacher having no legal right to be safeguarded, the writ petition is misconceived. 17. Further, it is worth to refer the judgment of the Supreme Court in Saudan Singh v. N.D.M.C. Saudan Singh v. N.D.M.C. Saudan Singh v. N.D.M.C. A.I.R. 1992 S.C. 1153 wherein it is held as follows: “It is, therefore, settled law that every citizen has a right to the use of a public street vested in the State as a beneficiary but this right is subject to such reasonable restrictions as the State may choose to impose. Street-trading is able it a fundamental right under Art.19(1)(g) of the Constitution but it is subject to reasonable restrictions which the State may choose to impose by virtue of Clause (6) of Art.19 of the Constitution. Street-trading is able it a fundamental right under Art.19(1)(g) of the Constitution but it is subject to reasonable restrictions which the State may choose to impose by virtue of Clause (6) of Art.19 of the Constitution. The right to street-trading under Art.19(1)(g) of the Constitution does not, however, extend to a citizen occupying or squatting on any specific place of his choice on the payment regardless of the rights of others, including pedestrians, to make use of the pavements. In other words the law laid down by the Constitution Bench permits a citizen to hawk on the street pavements by moving from one place to another without being stationary on any part of the pavement vested in the stage.” On the principles laid down in the above judgment also the petitioners have no right to occupy the place in the platform. If the prayer in the writ petition is granted. Virtually it will amount to prevent the authorities from discharging their lawful obligations to the society. 18. Hence there is absolutely no merit in the writ petitions. Accordingly both the writ petitions are dismissed.