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Madhya Pradesh High Court · body

2007 DIGILAW 724 (MP)

Madan Mohan Kaushik v. State of M. P.

2007-07-13

A.K.PATNAIK, RAJENDRA MENON

body2007
ORDER Patnaik, C.J. -- 1. This writ petition was originally filed by Mr. Madan Mohan Kaushik, Advocate who resided at Chhatri Mandi, Lashkar, Gwalior. He has stated in the writ petition that he has to go by' hIS , from his house on the road from Mehandiwali Gali to Chhatri Park and from Chhatri Park to Janakganj Hospital and from Janakganj Hospital,. Maharaj Bada to Janakganj Chouraha, Lashkar. He has stated that kirana shop keepers just opposite to Chatri Park have put up wooden and iron benches covering near about 12 of road and on these wooden and iron benches, they are keeping kirana commodities for sale from 9:30 a.m. to 9:00 p.m. He has further stated that fruit sellers are also putting up their four-wheeler thelas on the road after the kirana shops and selling fruits on the road right from 8:30 a.m. to 9:30 p.m. and similarly, some vegetable sellers are keeping their shops on the main road covering near about 6 road. He has further stated that the Municipal Corporation, Gwalior has provided shops for vegetable sellers in the Chhatri Park but they are not occupying these shops constructed by the Municipal Corporation on the road side. He has stated that as a result of these obstructions made by the kirana shops and the thelas, it is not possible to go through the road during peak hours from 9:00 a.m. to 1:00 p.m. and from 4:00 p.m. to 7:30 p.m. even on foot. He has accordingly prayed for a direction to the respondents to remove the obstructions made by the kirana shop keepers from the corner of the Chhatri Park till Mehandiwali Gali and also for direction to the respondents not to allow the kirana merchants including fruit sellers and vegetable sellers from holding their shops on the roads and instead make the road available for use of the public. 2. After the death of the original petitioner, Mr. Lakhanlal Goswami, another advocate, has been substituted in place of the original petitioner. The writ petition has been heard from time to time and various interim orders have been passed by the Court. By the interim orders the Court has also appointed Commissioners for inspection of the different areas in Gwalior city for removing encroachments from the roads. 3. Lakhanlal Goswami, another advocate, has been substituted in place of the original petitioner. The writ petition has been heard from time to time and various interim orders have been passed by the Court. By the interim orders the Court has also appointed Commissioners for inspection of the different areas in Gwalior city for removing encroachments from the roads. 3. When the matter was taken up for hearing yesterday (12.2.1007), we passed orders after hearing learned counsel for the parties, requesting Mr. J.D. Suryawanshi, who was appointed as Commissioner by the Court, to inspect the area from Chhatri Park to Mehandiwali Gali and submit a report by 10:30 a.m. today whether the obstructions, benches, thelas, etc. are on the road as alleged in the writ petition or whether these have been removed in the meanwhile. Pusuant to the said order, Mr. J.D. Suryawanshi and Mr. C.S. Dixit, Commissioners appointed by the Court have submitted report saying that when they visited Chhatri Mandi and its adjoining area at about 7:30 p.m., they found that 5 to 6 police persons and approximately 8 to 10 employees of the Municipal Corporation had been deputed by the authorities to remove the encorachments. They have also stated in the report that they found in the old High Court area, Daulat Ganj, Bada, Gandhi Market, Janakganj area and all other places that shop keepers had encroached outside their shops on the road and there were also hawkers. They have also stated in their report that opposite to Inderganj Police Station, the area reserved for parking was being used by Chat-walas and a regular Chat Market opposite Police Station Jayendraganj. They have stated in their report that this only shows that only, temporary measures have been taken by the authorities to remove encroachments in the Chhatri Bazar after getting information of the order passed by this Court on 12.7.2007 requesting the Commissioners to inspect the places and submit the report. 4. After hearing the learned counsel for the parties we find that adequate provisions have been made in the M.P. Municipal Corporation Act, 1956 (for short "the Act of 1956") to ensure that there is no encroachment, temporary or permanent, on any portion of the road. Section 322 and 322A of the Act of 1956 are quoted herein below: "322. 4. After hearing the learned counsel for the parties we find that adequate provisions have been made in the M.P. Municipal Corporation Act, 1956 (for short "the Act of 1956") to ensure that there is no encroachment, temporary or permanent, on any portion of the road. Section 322 and 322A of the Act of 1956 are quoted herein below: "322. Prohibition of obstruction in streets -- (1) No person shall, except with the written permission of the Commissioner granted in this behalf and in accordance with such conditions including the payment of rent or fee, as he may impose either generally or specially in this behalf – (a) erect or set up any wall, fence, rail, post, step, booth or other structure whether fixed or movable or whether of a permanent or temporary nature, or any fixture in or upon any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy any portion of such street, channel, drain, well or tank; (b) deposit upon any street or upon any open channel, drain or well in any street or upon any public place, any stall, chair, bench, box, ladder, bale or other thing whatsoever, so as to form an obstruction thereto or encroachment thereon. (2) Whoever contravenes any provision of sub-section (1) shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees or with both and with further fine which may extend to one hundred rupees for every day on which such contravention continues after the date of first conviction for such offence. (3) Without prejudice to the action under sub-section (2), the Commissioner notwithstanding anything contained in this Act, may after giving such notice as may be prescribed, cause to be removed any obstruction or encorachment as described in clause (a) and (b) of sub-section (1). (4) Any of the things caused to be removed by the Commissioner under sub-section (3), shall, unless the owner thereof turns up to take back such things and pays to the Commissioner the charges for the removal and storage of such things, be disposed or by the Commissioner by public auction or in such other manner and within such time as the Commissioner thinks fit. (5) The police officer shall not investigate into the offence under this section except on a report made in writing in this behalf by the Commissioner. 322-A. Maintenance of record and submission of report of encroachment -- (1) Every officer incharge of a Ward Committee or such other officer or servant to whom the duties have been assigned to the maintain record of open land or public places belonging to the Corporation shall be responsible to submit reports of occurrence of t any encroachment. (2) The Commissioner on receipt of report under sub-section (1) shall take action to remove such encroachment as soon as possible. (3) If the officer or servant incharge responsible to keep watch over the encroachments, fails to inform the Commissioner within one month from the date of occurrence of encroachment, such officer or servant shall be deemed to be guilty of dereliction of his duties and disciplinary action shall be taken against such officer or servant. (4) The Commissioner shall inform the Mayor-in-Council every month about the status of encroachment on open land or public places belonging to the Corporation, the action taken or proposed to be taken in respect of them and the name of officers and servants found guilty of dereliction of duties as envisaged under sub-section (3). 5. It will be clear from sub-section (1) of section 322 of the Act of 1956, quoted above, that no person shall, except with the written permission of the Commissioner granted in this behalf and in accordance with such conditions including the payment of rent or fee, as may be imposed, erect or set up any structure whether fixed or movable or whether of permanent or temporary nature or any fixture in or upon any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy any portion of such street, channel, drain, well or tank and further no person shall deposit upon any street or upon any open channel, drain or well in any street or upon any public place, any stall, chair, bench box, ladder, bale or other thing whatsoever, so as to form an obstruction thereto or encroachment thereon. Sub-section (2) of section 322 quoted above further provides that whoever contravenes any provision of sub-section (1) by putting any of the obstructions on the streets, channel, drain, well or tank, as mentioned therein, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees or with both. Section (3) of section 322 of the Act of 1956 further provides that without prejudice to the action under sub-section (2), the Commissioner may after giving such notice as may be prescribed, cause to be removed any obstruction or encroachment as described in clauses (a) and (b) of sub-section (1) of section 322 of the Act of 1956. Sub-section (4) of section 322 of the Act of 1956 further provides that when any of the things is caused to be removed by the Commissioner under sub-section (3), unless the owner thereof turns up to take back such things and pays to the Commissioner the charges for the removal and storage of such things, the Commissioner can dispose of such things by public auction or in such other manner as the Commissioner thinks fit. Sub-section (5) of section 322 of the Act of 1956 states that the police officer shall not investigate the offence under this section except on a report made in writing in this behalf by the Commissioner. 6. Thus, unless written permission is granted by the Commissioner, no person can put up a thela or a bench, wooden or iron, or any other shop, temporary or permanent, on a street of Gwalior city under the jurisdiction of the Municipal Corporation, Gwalior. The Commissioner, Municipal Corporation is vested with adequate powers under section 322 of the Act of 1956 to take action against any person, who puts up a thela, bench or table or any other structure, permanent or temporary on any of the streets of the Municipal Corporation, Gwalior including the power to remove such obstructions and ask the police officers to investigate and initiate prosecution of such person who has put up the obstruction on the road. Although sub-section (3) of section 322 of the Act of 1956 uses the word 'may', the Commissioner, Municipal Corporation, in our considered opinion, is under a statutory obligation to cause to remove any obstruction or encroachment on the road and he cannot take a defence when a road is obstructed or encroached by thelas, benches and other kinds of shops so as to cause inconvenience to the general public that it is within his sole discretion whether to cause removal of such obstruction or encroachment from the road. The word 'may' has been used in sub-section (3) of section 322 by the Legislature in defence to the high office of the Commissioner and not to vest an absolute discretion in him to cause or not to cause removal of the obstruction or encroachment. This will be clear from the fact section 322-A of the Act of 1956, which provides that every officer incharge of a Ward Committee or such other officer or servant to whom the duties have been assigned to maintain record of open land or public places belonging to the Corporation shall be responsible to submit reports of occurrence of such encroachment and the Commissioner, on receipt of such report 'shall take action to remove such encroachment as soon as possible'. Since a mandatory duty has been cast on the Commissioner, Municipal Corporation, to remove the encroachments on the road, the Court can direct the Commissioner, Municipal Corporation, to henceforth ensure that there are no encroachments on the roads of Gwalior Municipal Corporation and such encroachments are removed in accordance with sections 322 and 322-A of the Act of 1956. We make it clear that any violation of this direction by the Commissioner, Municipal Corporation or any interference by any authority to frustrate this direction of the Court will be treated as contempt of this Court and appropriate proceedings be initiated against the Commissioner, Municipal Corporation or such other person as the case may be. 7. This is not to say that no person will be allowed to sell fruits, vegetable or other items in thelas or benches, tables etc. in any street or road of Gwalior Municipal Corporation. Article 19(1)(g) of the Constitution provides that 'all citizens shall have the right to practice any profession, or to carry on any occupation, trade or business'. 7. This is not to say that no person will be allowed to sell fruits, vegetable or other items in thelas or benches, tables etc. in any street or road of Gwalior Municipal Corporation. Article 19(1)(g) of the Constitution provides that 'all citizens shall have the right to practice any profession, or to carry on any occupation, trade or business'. Clause (6) of Article 19 of the Constitution provides that nothing in Article 19(1)(g) shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by Article 19(1)(g) of the Constitution in the interest of the general public. Hence, the hawkers selling vegetables, fruits, etc. have a fundamental right under Article 19(1)(g) of the Constitution to carry on their business even within the city of Gwalior. Selling of vegetables, fruits etc. by hawker in the city of Gwalior may also be necessary in the interest of general public. Residents of the Gwalior city may like to buy their daily requirements of vegetables, fruits etc. from hawkers at cheaper rates than from bigger shops located in the regular markets because the prices at such bigger shops in regular market may be higher on account of the higher establishment cost. But hawkers cannot be allowed to carry on their business of sale of vegetables, fruits etc. at any place of their choice in the city of Gwalior and in particular those places where their activity of selling vegetables, fruits etc. may obstruct the regular traffic on the road and cause inconvenience to the general public. As provided in Article 19(6) of the Constitution, the State can make a law imposing in the interest of general public reasonable restrictions to carry on their trades under Article 19(1)(g) of the Constitution. 8. The fundamental right of hawkers and other persons carrying on their business by selling various items in thelas, benches, tables etc. on the road side is thus subject to the section 322 of the Act of 1956 which provides that an obstruction on the street can be put only with the permission of the Commissioner, Municipal Corporation. 8. The fundamental right of hawkers and other persons carrying on their business by selling various items in thelas, benches, tables etc. on the road side is thus subject to the section 322 of the Act of 1956 which provides that an obstruction on the street can be put only with the permission of the Commissioner, Municipal Corporation. Section 366(1) of the Act of 1956 provides that whenever it is prescribed by or under the Act that the permission of the Commissioner is necessary for doing of any act, such permission shall, unless it is otherwise expressly provided, be in writing. Sub-section (2) to (10) of section 366 provide the manner in which such permission can be granted by the Commissioner. Hence, the Commissioner may consider granting permission to such hawkers strictly in accordance with the provisions of section 366 of the Act and the byelaws if made by the Municipal Corporation in this regard. But while granting such permission, the Commissioner will have to ensure that grant of such permission will not cause any inconvenience to the general public or to the traffic on the road. As a matter of fact, the provisions of section Court of the Act 1956 have been made by the Legislature to ensure that no portion of the road or street is obstructed by any person. It is only where grant of permission will not obstruct the road and will not cause any inconvenience to the general public and the traffic that permission can be granted by the Commissioner and it is only when such permission is .granted that the hawkers can cause the obstruction permitted by the commissioner and not otherwise. 9. We, therefore, direct that no person, who does not have a permission from the Commissioner, Municipal Corporation, Gwalior, will create any obstruction on any of the roads or foot paths within the jurisdiction of the Municipal Corporation, Gwalior by putting a thela, table, bench or any other structure, temporary or permanent, on the streets or roads of Gwalior Municipal Corporation. It is needless to say that as and when, the Commissioner submits a report to the police to take action against the encroachers on the roads, the police will forthwith take action for investigation and prosecution of the offenders. 10. With the aforesaid directions, the writ petition is disposed of. It is needless to say that as and when, the Commissioner submits a report to the police to take action against the encroachers on the roads, the police will forthwith take action for investigation and prosecution of the offenders. 10. With the aforesaid directions, the writ petition is disposed of. Considering the facts and circumstances of the case, there shall be no orders as to cost.