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2003 DIGILAW 457 (PAT)

Mahesh Prasad v. Gaya Municipal Corporation

2003-04-21

R.S.GARG

body2003
Judgment 1. Shri Rama Raman Singh, Incharge Chief Executive Officer, Gaya Municipal Corporation is present in Court. 2. Shri Shambhu Nath, learned counsel has made an application for four interveners, inter alia, submitting that in accordance with the allotment orders they have been settled and as they are not the trespassers or encroachers, they cannot now be removed. 3. Let the counsel for the Gaya Municipal Corporation file a reply to the said application. This may be done within one week. 4. One Foothpath Dukandar Sangh and six others have filed an application for intervention. It is contended by them that they are the settlee on the footpath for few hours of a day to vend on the footpath and as this settlement is in their favour for the last more than 60 years they cannot now be removed from the footpath. Some reliance is also placed on the national policy and it is contended that the footpath vending in fact has assumed great importance and in cases of those who otherwise are not settled in life and are required to vend their articles to the. public. It is also contended that on some earlier occasion the Municipal Corporation, Gaya was settling this footpath in favour of certain contractors who in their turn were settling these footpath vendors and were recovering money from them. It is also contended that by their occupying the footpath they are not causing any inconvenience to the public and as the question of their bread is involved they be allowed to intervene in the matter and they cannot now be evicted unless some alternatives are provided for them. 5. Learned counsel for the petitioner has opposed the application. Learned counsel for the Gaya Municipal Corporation has also opposed the application. 6. It is contended by the respondents that the footpath dwellers or the footpath vendors do not have any fundamental right to occupy the foothpath and the Corporation cannot settle even one inch of a road in favour of anybody and as the foothpath is a part of road used for public convenience, neither it can be allotted or settled by the Corporation nor can be occupied by anybody. 7. I have heard the party at length. 8. The intervenors submissions that the intervener no. 1 is a Voluntary Association, therefore, it can represent all the footpath dwellers/vendors is misconceived. The intervenor no. 7. I have heard the party at length. 8. The intervenors submissions that the intervener no. 1 is a Voluntary Association, therefore, it can represent all the footpath dwellers/vendors is misconceived. The intervenor no. 1 is not a registered society and as such it cannot represent the interest of anybody, neither it can sue nor it can be sued in its own name. So far as the intervenor nos. 2 to 7 are concerned, their case simply is that unless the alternatives are provided they cannot be removed. In the opinion of this Court the intervention application is per se misconceived and is contrary to constitutional procedure. Even otherwise the Municipal Corporation Acts of State of Bihar do not authorise the Municipal Corporation or any Municipal Authority to settle a part of the road or a footpath in favour of anybody. Just for the sake of earning the revenue the Corporation/Municipal Authority cannot be allowed to play with the convenience of the public or create problem or rather perpetuate illegality for ever. It cannot be gainsaid that the foothpath is a part of the road. The footpath is not a plinth or a foundation to settle some of the vendors. The foothpath is to be used by the pedestrian so that they save themself from the onslaught of heavy traffic and reach safely to their destination. If such footpaths are occupied by the footpath vendors or any other persons under the alleged authority of the Municipality then the same is likely to create a problem. The vendors would sit on the footpath. The purchasers would park their vehicles on the open road and such customers shall occupy the road to purchase the articles and would also create a difficult situation in free flow of the traffic. The footpaths or the area immediately abutting it, is not meant for settlement, these are meant for the pedestrian and the convenience of the public/pedestrian cannot be sacrificed just for earning the revenue for settling two per cent people. 9. Learned counsel for the intervenors submitted that it must be presumed that two per cent of the total vendors of the township are occupying the footpaths and if this is so, then these persons cannot be evicted. I fail to understand the propriety of this argument. 9. Learned counsel for the intervenors submitted that it must be presumed that two per cent of the total vendors of the township are occupying the footpaths and if this is so, then these persons cannot be evicted. I fail to understand the propriety of this argument. For settling these two per cent of the footpath vendors, 98 per cent public cannot be allowed to suffer and that too in an illegal manner so far as the question of settling the footpath with certain contractors is concerned, but for making a point in the application for intervention nothing further has been stated. 10. The Respondent-Gaya Municipal Corporation has plainly submitted in its earlier counter affidavit that it is not settling the footpath in favour of anybody. 11. This court hereby directs the Municipal Corporation, Gaya that either directly or through any other agency it shall not settle the footpath in favour of any foothpath vendor. It shall be the duty of the Corporation to see that the footpaths are kept clean and free of the encroachers or the dwellers, so that the general public does not suffer the inconvenience. In a socialistic pattern of the society the interest of the public is of paramount consideration. When the law says that the public has to elect a Government for its ownself then a part or section cannot be allowed to defeat the rights of the majority. In a democratic set up the interest of the larger section is the interest of the society, unless there is some law that such footpath dwellers are to be provided with some alternatives or some solace. Learned counsel for the intervenors submitted that there is a national policy relating to settlement of the foothpath dwellers. In fact, that is not the national policy but is a draft of the national policy. Even if the Central Government or the State Government make out a policy to settle the footpath dwellers at some place, one cannot believe that the Central Govenment, State Government or the local administration including the Autonomous Body can settle a part or piece of the road in favour of anybody. The settlement of the footpath dwellers may be made at a third place, but it cannot be done on the footpaths. Taking into consideration the totality of the circumstances, I do not think that this application for intervention can be allowed. The settlement of the footpath dwellers may be made at a third place, but it cannot be done on the footpaths. Taking into consideration the totality of the circumstances, I do not think that this application for intervention can be allowed. The said intervenors do not have any Constitutional or statutory right, they even do not have contractual right in their favour to stay on the footpath. The application is rejected. 12. The complaint of the petitioner is that the alleged encroachment in front of his house was removed but the said dwellers have re-occupied the said place. 13. The Corporation said that even on the second and third time the encroachments were removed. According to them as the matter was not brought to their notice about any subsequent encroachments nothing could be done. In the opinion of this Court this ostrich approach of the Corporation is bad. When the Corporator and Mayor walk on the roads for sake of the votes then after securing their post/office they cannot forget that they have given certain assurance to the public and if they fall in executing the assurance or concretising the said assurance then they in fact are playing fraud with the public. Such people certainly can be taken to task. It is expected of the Corporator and Mayor that instead of sitting in their ivory tower, to face the reality of the life they would walk on the road if not bare-footed at least to see that what is the condition of the township, for betterment of which they have been elected by the public and absolute confidence has been reposed in them. The Government employees/Municipal Employees are the public servant. They are not the public bosses. They cannot expect that every morning number of people would come to their doors to raise their complaints and like old "Hakims" such complaints would be entertained by these employees and thereafter some good, bad or indifferent orders would be passed by them. If these persons, the employees while going to their office or while coming back to their home in the evening look at both sides of the road they would find the real problem faced by the public. The approach that once I close my eyes then none can see me is bad and does not matter much and in fact is not an administrative approach. The approach that once I close my eyes then none can see me is bad and does not matter much and in fact is not an administrative approach. It shall be the duty of the Corporation including its Administrative Officer and other employees to see that no encroachments are made on the footpath and if in fact encroachment is made on the footpath then the same be removed within 48 hours of this order. If any complaint from any corner is received that the Municipality is failing in its duty in getting the footpath cleared of encroachments and trespass then this Court may take serious action against the Corporation as a whole. 14. The matter be taken up for consideration on 29th April, 2003 on top of the supplementary list. 15. Let a copy of this order be handed over to the counsel for the Corporation.