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2003 DIGILAW 440 (KER)

Suresh v. Corporation of Cochin

2003-07-10

M.RAMACHANDRAN

body2003
Judgment :- 1. In view of the nature of the contentions, that have been raised in these Writ Petitions, they are disposed of by a common judgment. 2. M/S. Murali Purushothaman, Paulson Thomas and Philip J. Vettickattu had appeared on behalf of the petitioners. Sri. N.N. Sugunapalan and Sri. Premchand had represented the Corporation of Kochi. 3. The facts could be stated as herein below: The petitioner in W.P.(C) No. 21382/2003 had been given permission, in 1988, for putting up a bunk shop on the side of a road within the Corporation area. This was with a specific condition that she would be obliged to remove the bunk, without any sort of claims, on demand by the Corporation. The petitioner had put up the bunk at her costs and had been in occupation thereof ever since and is attending to job works of typewriting. However, the licence fee and ground rent were accepted thereafter only up to 1998. Thereafter the Corporation had been refusing to receive the ground rent and no licence is issued. In respect of W.P.(C) No. 21546 of 2003, the original allotment was in 1988 and the petitioner is conducting C-class shop. Here also for the past about 4 to 5 years the Corporation had not been receiving ground rent offered. There are four petitioners in W.P.(C) No. 21586/2003 the allotment was in the year 1992. It was for a two year period, but there was no renewal effected thereafter. In W.P.(C) No. 21654/2003, the petitioners are identically situated and here also there is no licence as at present and as in the other cases. The petitioners are occupying the premises on the strength of the first allotments. It is stated that the officers of the Corporation has now instructed them to remove the shops forthwith. This necessitated the filing of the Writ Petitions, as according to them, the insistence for vacating the premises and removing the bunks are unsupportable. 4. The petitioners rest their claims on the following grounds: (i) Their initial occupation is legal and they should not have been treated as persons who are trespassers. (ii) Their occupation cause no hindrance of whatever nature to the general public and in fact adds on to service to a large section of the community. (iii) Even in case such removal was necessary, adequate notice ought to have been given to them. (ii) Their occupation cause no hindrance of whatever nature to the general public and in fact adds on to service to a large section of the community. (iii) Even in case such removal was necessary, adequate notice ought to have been given to them. (iv) The petitioners being members of lowest strata of society would have lost their opportunity to earn a decent livelihood and since no measures for rehabilitating them are there, the proposal will affect their right to life and this Court's interference is necessary. It had also been pleaded that the present steps were without bona fides, since as in some other instances the idea was to get the petitioners out of the premises so as to allot the area to others who are already earmarked. 5. Submissions were made highlighting the above contentions. Sri.Murali Purushothaman, leading the arguments had referred to a number of decisions of this Court as also the Honourable Supreme Court, whereby he had placed materials both in support of his arguments and the possible objection that could have been canvassed by the Corporation. 6. The Standing Counsel for the Corporation submitted that there was absolutely no mala fide involved and the allegations were without justification. In a number of cases, this Court had repeatedly indicated that the hindrance caused by indiscriminate functioning of bunk shops was obvious and the Corporation should take action to remove the bunks for facilitating better vehicular and pedestrian traffic. It is also submitted that there was no proposal to re-allot the bunks to any others, especially taking notice of the increased vehicular traffic and importance of the locality. Necessity for wide roads or at least to utilise the full space already there for facilitating free flow of traffic have become an urgent need. 7. According to them, the petitioners may not be justified in contending that there was no hindrance because of their occupation. Of course, they are occupying road margins and during early 1990's Corporation had thought of allotting such places to persons who were in the lower class of Society facilitating them to earn a decent livelihood. But it was only a temporary arrangement, as could be seen from the letters of allotment. The increased volume of two wheelers and four wheelers was creating constant traffic jam and the bottlenecks created by the location of the shops really required that the area was cleared. But it was only a temporary arrangement, as could be seen from the letters of allotment. The increased volume of two wheelers and four wheelers was creating constant traffic jam and the bottlenecks created by the location of the shops really required that the area was cleared. The projections received by them was that even the existing width of the road might be insufficient to contain the traffic, which was increasing day by day. Even though the petitioners were catering to the needs of the community in general, the inadequacy of the space had compelled the Corporation to look into the matter, in a positive direction. It was for this reason that for the last 4 to 5 years the petitioners were directed to vacate the shops. They were not obliging and it was not a case of absence of notice. The fact that the Corporation was not receiving the ground rent itself indicated that the occupation of the petitioners were treated as objectionable. No concrete steps for rehabilitation was available and the petitioners cannot be under the impression that they could indefinitely occupy road margins, and it was not a case where they are caught unaware. Violation of rights under Art. 21 was not at all there, as petitioners had to yield to the larger interests of the community. 8. Reference was made by the petitioners to the decisions rendered by the Supreme Court in Olga Tellis v. Bombay Municipal Corporation, 1985 (3) SCC 545; Chameli Singh v. State of U.P., 1996 (2) SCC 549; P.G. Gupta v. State of Gujarat, 1995 Supp. (2) SCC 182 and Ahamedabad Municipal Corporation v. Nawab Khan Gulab Khan, AIR 1997 SC 152. However, though reference to the hardship that were highlighted in several of the judgments, the ultimate conclusion was that no absolute principles can be laid down and the measures to be taken differ from case to case. Also there were occupation of rank usurpers, and petitioners cannot be equated with them, for they were occupying on valid lease, and who had given undertaking to vacate on demand being made. The Supreme Court had also indicated that in case of long occupation a notice of about two weeks would have been reasonable before sending them away. In cases of encroachment immediate action was to be taken and necessity for notice was not a pre-requirement. The Supreme Court had also indicated that in case of long occupation a notice of about two weeks would have been reasonable before sending them away. In cases of encroachment immediate action was to be taken and necessity for notice was not a pre-requirement. The Court also referred for the Courts to adopt a "commonsense view" to be taken in such matters. 9. In the matter of persons with disability, the Court had occasion to consider that rehabilitation in respect of them was a public duty. However, the general trend of the decision was that occupation when found objectionable could not be permitted to be continued, but a humanitarian approach was to be taken before dispossessing them. 10. Reference had also been made to decisions reported in 2000 (1) KLT 148 (Vasanth Nagar Allottees Assn. v. District Collector) and M.V. Mohan Nair & Ors. v. State & Ors. (1994 (2) KLJ 1080). Road side margins, this Court held, were to be used only for the purpose of the up keep and management of the roads and could not have been used for any other purpose. It had also been held that footpaths and pavements are public properties which are intended to serve the convenience of general public, and not meant for use by certain individuals for their private purposes. In the date of growing vehicular traffic, the Court had expressed an opinion that it may be thoroughly unsafe for the pedestrians to walk on the road exposing themselves to risk and it was the duty of the Corporation to see that bunk shops are removed which were situated by the side of public roads. 11. Under S. 368 of the Municipalities Act, the local authorities are empowered to give licence for occupation on the road side margins, if it is not likely to be injurious to the health of general public or public use. In the situation, it could be held that the Corporation has absolute powers in these region and of course State Government is empowered to issue appropriate instructions, if they are of the opinion that occupation is permitted indiscriminately. 12. In the case at hand, the Corporation apparently has taken a decision to remove the bunks which had originally been sanctioned, after the expiry of term, or in any case, exercising the powers reserved with them at the time of allotment. This cannot be termed as objectionable. 12. In the case at hand, the Corporation apparently has taken a decision to remove the bunks which had originally been sanctioned, after the expiry of term, or in any case, exercising the powers reserved with them at the time of allotment. This cannot be termed as objectionable. It has to be held that as at present persons are unauthorisedly occupying road margins without licence. It is possible for the Corporation therefore to exercise powers of eviction under S.368(6) even without notice. Power is vested on them to remove the constructions at their discretion. 13. Licence for running a business is a prime requirement for any entrepreneur. Admittedly the petitioners' licences have not been renewed for years. There is sufficient indication to show that the Corporation had been asking them to vacate the premises and the petitioners are benefitted only because of the lethargy shown because of the reluctance to take follow up action. The occupation, therefore, has to be treated as unauthorised. Here the common man is the person who is put to risk. As footpaths are obstructed by positioning the bunks, he has necessarily to step down to the road, which is crowded with vehicles. The plight can well be imagined. The steps taken by the Corporation is not all arbitrary and is the need of the hour. 14. The learned Standing Counsel for the Corporation submits that rehabilitation measures have been thought of, but it is yet to get a concrete shape, and to the extent possible, the grievances of the petitioners will be attempted to be redressed, in due course. 15. I hold that the petitioners are not entitled to the reliefs prayed for. Their claims are not based on any legal principles. It is however necessary that a breathing time be granted to them. Temporary electric connection has been granted to their bunk shops on the recommendation of the Corporation of Kochi and they are working full-fledged gadgets for a number of years. Therefore, I think the maximum relief that could be granted in their favour is to give them to surrender possession. Temporary electric connection has been granted to their bunk shops on the recommendation of the Corporation of Kochi and they are working full-fledged gadgets for a number of years. Therefore, I think the maximum relief that could be granted in their favour is to give them to surrender possession. Proposal for removal of the bunks belonging to the petitioners are to be kept in abeyance for about two weeks, so that it may be possible for them to take appropriate steps for removing the articles belonging to them to safe places and for seeing that the bunks are removed with the least damage. The Corporation can enter and take repossession of the sites any day after 31st of July, 2003. 16. The Writ Petitions are dismissed.