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Rajasthan High Court · body

2005 DIGILAW 2667 (RAJ)

Laxman Das v. State of Rajasthan

2005-10-17

RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-The petitioners in both these petitions were granted licence to carry on trade on cabins/hand carts at the place allotted to them at Mount Abu on the various places which are part of public streets. Vide impugned orders, the petitioners have been directed to remove their cabin/hand carts from the place they are carrying on their trades. The trade in such cabin/hand carts duly licensed is being carried out for last 15 years, at the time of filing of petitions in 1993 by the petitioner. Like petitioners, there are several other hand cart traders for varying periods, some of them even for more than 20 years and some for about 5 years. It is alleged that those who are licensed to trade in hand carts are required to pay license charges on various accounts including rent for a piece of land measuring about 6 x 4 the land occupied by such hand carts. .2. The first notice to some of persons, who were carrying on their trade on cabins/hand carts, was given on 28.07.1993 Annexure-4 in the Writ Petition No. 3923/1993 purporting to be in compliance of directions given by this Court in order dated 12.03.1993 and 13.04.1993. .3. The two decisions referred to in Notice Exhibit-4 as aforesaid may be examined. 4. In the first instance one Hazari Vaishnav an employee of the Municipal Board filed the S.B. Civil Writ Petition No. 4917/1991, seeking a mandamus against the Board to remove unauthorised construction and various other obstructions created on road side of Mount Abu. .5. The said Writ Petition No. 4917/1991 was decided by the learned Single Judge on 12.03.1993 by treating it to be a public interest litigation. The prayer which was made in that petition was stated by the Court to be the mandamus to clear the road sides of unauthorised construction and various other unauthorised obstructions in Mount Abu. The petition was disposed of with the following directions:- .“It is directed that the Municipal Board shall take proper steps to remove the unauthorized occupant on the public way and clear the road for public use. Since, the Mount Abu is only a Hill Station in whole of Rajasthan, therefore, the beauty of this place has to be maintained and proper roads has to be kept and unauthorized occupant should be removed so as to facilitate the public at large.” 6. Since, the Mount Abu is only a Hill Station in whole of Rajasthan, therefore, the beauty of this place has to be maintained and proper roads has to be kept and unauthorized occupant should be removed so as to facilitate the public at large.” 6. The order dated 12.03.1993 was made subject matter of D.B. Special Appeal No. 166/1993 by Laghu Vyapar Sangh. The said special appeal was decided vide order dated 13.04.1993. While disposing of the special appeal, the Division Bench clarified the order passed by the learned Single Judge as under:-“It may be clarified here that the Court has ordered for removal of unauthorized occupants and if any occupation is authorized and if the person to whom the permission is granted by the Municipal Board, is working within the parameters of permission granted by the Municipal Board, then he should be removed according to law if Municipality so chooses and not otherwise but if somebody has transgressed the conditions of the permission or is in authorised occupant beyond the terms of condition then he simply cannot be protected and has to be removed from that according to law under the orders that have been passed by the learned Single Judge.” 7. In both the petitions, the grievance is made in respect of notices issued on 28.07.1993 alleging that the petitioners have committed encroachment on the public land and are doing their business by setting up cabins/hand carts at the public place which is causing inconvenience to the tourists and citizens as they are using the public way which is also affecting the beauty and ecology of Mount Abu and they were directed to remove their cabins/hand carts and report. The immediate reason for issuing such notices was based on the two decisions referred to above, while acknowledging the Government circulars which have been issued time to time for stopping the encroachment and removing such encroachment from the public places. 8. The immediate reason for issuing such notices was based on the two decisions referred to above, while acknowledging the Government circulars which have been issued time to time for stopping the encroachment and removing such encroachment from the public places. 8. The petitioners have placed material on record that since 1990 they have been requesting the Municipal Corporation for giving facility to them for setting up their cabins/hand carts where other persons have been alleged to have set up their cabins/hand carts and they commenced their businesses only a few years before whereas the petitioners are displaced persons as a result of the partition of the country and they have been settled at Mount Abu by State Government by granting them licences as aforesaid to carry on the trading activities under the licence. 9. The order of removal has been passed without affording any opportunity of hearing is not in dispute. We have noticed above that only reason given for removing the alleged encroachment is the directions contained in the aforesaid two orders passed by this Court. 10. In the reply submitted to the writ petition, the reason stated for issuing the order for removing the cabin/hand carts is something different than what has been given in the notice for removing the cabins. In reply, it has been submitted that licence was given for moveable hand carts and not for stationary hand carts. 11. The reply was only indicative of the fact that trading activity by the petitioners were started at the given place as a result of licence issued to them and they are not occupying the places as trespasser whether they committed any breach of the conditions of the licence is not the reason for which the licenses have been cancelled and they have not been asked to remove their cabin/hand carts on any alleged breach of terms of license after holding an enquiry. 12. The two orders referred to above have clearly indicated that the Court has not countenanced removing of any person carrying on trade in cabin/hand carts at the stated place under a license without due process of law and due process of law would include adherence to principles of natural justice as the situation of the case would demand and to hear the petitioners before asking them to remove their cabin/hand carts from the place in question. 13. 13. This dispute is longstanding between the petitioners and the respondents. Whereas the petitioners are claiming that they have permanently settled for long period, longevity depending on their initiation of trading activities. Instead of giving the benefit of permanent settlement by giving pucca cabins in priority to those who have started a new business and unsettling the persons like petitioners, who are displaced persons and were granted license to trade on Thelas/cabins with a view to settle them in Mount Abu under such scheme, is arbitrary action. Moreover persons like petitioners, who were granted license to trade on Thelas or Cabins whether stationary or movable, it cannot be said that they are carrying on trading activity on the place in question without authority of law who could be removed directly under the orders referred to in the notice. 14. If they are required to be removed from that place in the public interest, the Division Bench has clearly stated in its order that if any occupation is authorised and if the person, to whom the permission is granted by the Municipal Board is working within the parameters of permission granted by the Municipal Board, then he should be removed according to law, if municipality so chooses and not otherwise, but if somebody has transgressed the condition of the permission or is in unauthroised occupant beyond the terms of conditions then he simply cannot be protected and has to be removed from that place according to law. 15. In my opinion, the two decisions referred to above clearly provide safeguard to the petitioners against their unlawful removal from the places they were doing their business of Hand carts or cabin though it does give indefinite sign against removal from the places except it is felt necessary in public street. In the reply reference has been made to certain public interest for which removal is sought but which is not the foundation of the notice. In this regard also, the indication of procedure to be adopted is clear. Removal of person licensed to trade on hand carts or cabin will require firstly the cancellation of license in accordance with law and only thereafter such persons can be removed. 16. While tackling this problem, the Municipal Board is further required to take into consideration the principle enunciated by the Supreme Court in Sodan Singh & etc. Removal of person licensed to trade on hand carts or cabin will require firstly the cancellation of license in accordance with law and only thereafter such persons can be removed. 16. While tackling this problem, the Municipal Board is further required to take into consideration the principle enunciated by the Supreme Court in Sodan Singh & etc. vs. New Delhi Municipal Committee & Anr etc., AIR 1989 SC 1988 in which the question of trading on hand carts or cabin on the street pavement by small traders was considered by a Five Judges Bench and it has been held to be part of right to carry on trade or business mentioned in Article 19(1)(g) by not approving the observations made in Pyarelal vs. NDMC, AIR 1968 SC 133 . The Court has clearly indicated that a reasonable view has to be taken to balance the right of public to use the streets or public ways and right to carry on street trade which causes public inconveniences in the streets or pathways. It would be apposite to refer to the observations made by the Supreme Court in Sodan Singhs case in relation to right to trade on pavement by small dealers. The Court recalled the principle from Bombay Hawkers Union vs. Bombay Municipal Corporation, AIR 1985 SC 1206 that:- “the public street by their nomenclature and definition are meant for the use of the general public they are not laid to facilitate the carrying on of private business. If hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the busy thoroughfares, thereby paralysing all civil life. This is one side of the picture. On the other hand, the right if properly regulated according to the exigency of the circumstances, the small traders on the side walks can considerably add to the comfort and convenience of general public, by making available ordinary articles of every day use for a comparatively lesser price. An ordinary person, not very affluent, while hurrging towards his home after days work can pick up find a regular market. If the circumstances are appropriate and a small trader can do some business for personal gain on the pavement to the advantage of the general public and without any discomfort or annoyance to the others, we do not see any objection to his carrying on the business. If the circumstances are appropriate and a small trader can do some business for personal gain on the pavement to the advantage of the general public and without any discomfort or annoyance to the others, we do not see any objection to his carrying on the business. Appreciating this analogy the municipalities of different cities and towns in the country have been allowing such traders. The Supreme Court further held that:- “The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use. Proper regulation is, however, a necessary condition as otherwise the very object of laying out roads to facilitate traffic may be defeated. Allowing the right to trade without appropriate control is likely to lead to unhealthy competition and quarrel between traders and, travelling public and sometimes amongst the traders themselves resulting in chaos. The right is subject to reasonable restrictions under Clause (6) of Article 19. If the matter is examined in this light it will appear that the principle stated in Saghir Ahmads case, AIR 1954 SC 728 in connection with transport business applies to the hawkers case also. The proposition that all public streets and roads in India vest in the State but that the State holds them as trustee on behalf of the public, and the members of the public are entitled as beneficiaries to use them as a matter of right, and that this right is limited only by the similar rights possessed by every other citizen to use the pathways, and further that the State as trustee is entitled to impose all necessary limitations on the character and extent of user should be treated as of universal application.” 17. While Court did not agree with the right to carry on such trade is violative of Article 21, it had no hesitation in coming to the conclusion that the petitioners who have fundamental rights to carry on their business. But they have no fundamental right to carry on trade at any specified place. It is for the State to designate the street and earmark the places from where street trading can be carried on. But they have no fundamental right to carry on trade at any specified place. It is for the State to designate the street and earmark the places from where street trading can be carried on. Such right is also subject to the reasonable restrictions and conditions be imposed by the State depending on the facts and circumstances of the case. 18. Be that as it may, on these observations I have invited attention only for the purpose of making the respondents alive to this position of law while they take any decision in respect of the petitioners for continuing at the place or their removal from the place by providing alternative place for carrying on their trade. 19. With the aforesaid observations, these writ petitions stand disposed of .