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2012 DIGILAW 3533 (MAD)

Allikulam Pazhaiyaporul v. State of Tamilnadu

2012-08-10

M.JAICHANDREN

body2012
Judgment :- 1. Heard the learned counsel appearing for the petitioner, as well as the learned counsels appearing for the respondents. 2. This writ petition has been filed by the petitioner Sangam praying that this Court may be pleased to issue a writ of Mandamus, to direct the respondents, to allocate hawking sites for the 165 members of the petitioner Sangam, near the Lillypond Business Complex, Chennai. 3. It has been stated that the petitioner Sangam, having a membership of 165 hawkers, has been registered under the Societies Registration Act, bearing Regn.No.35/91. The members of the petitioner Sangam are hawkers, who have been hawking in and around the Lillypond Business Complex area. They have been hawking in used articles, which are purchased by the poor people, for reuse. The members of the petitioner Sangam have been earning their livelihood, by carrying on the hawking activities in the Lillypond Business Complex area, for many years. 4. It has been further stated that, when South Asian Federation Games were held, at Chennai, the hawkers had been paid Rs.25/-per day, as they were prevented from hawking, during the games. This Court had also issued certain directions in the year, 1995, directing the then Chief Metropolitan Magistrate to conduct an enquiry, for the purpose of identifying the hawkers, who were carrying on hawking activities in the area concerned. Accordingly, an enquiry had been conducted, by the then Chief Metropolitan Magistrate, who had enumerated 208 hawkers. However, the second respondent had allotted hawking sites, only in favour of 133 persons, and had omitted 165 hawkers, who were also entitled to be allotted the hawking sites. 5. It has also been pointed out that the respondents are taking steps to evict the hawkers, who are the members of the petitioner Sangam, from the area concerned. The proposal to evict the hawkers are contrary to the National Policy On Urban Street Vendors, 2009. It would also violate the fundamental rights of the hawkers, guaranteed under Article 19(1)(g) of the Constitution of India. 6. It has also been submitted that the enumeration had been done, by the then Chief Metropolitan Magistrate, pursuant to the order passed, on 7.10.1999, in contempt petition No.707 of 1998. However, between the years 1995 and 1999, some of the hawkers had died and their children had been carrying on the hawking activities. 6. It has also been submitted that the enumeration had been done, by the then Chief Metropolitan Magistrate, pursuant to the order passed, on 7.10.1999, in contempt petition No.707 of 1998. However, between the years 1995 and 1999, some of the hawkers had died and their children had been carrying on the hawking activities. Thereafter, some of their family members had also been involved in hawking activities. In such circumstances, the petitioner Sangam has preferred the present writ petition, before this Court, under Article 226 of the Constitution of India. 7. Mr.V.Prakash, the learned senior counsel, appearing on behalf of the petitioner Sangam, had submitted that the hawkers, who had been carrying on hawking activities in and around the Lillypond Business Complex area, are poor people, who are eking out their livelihood, by hawking in used articles. Many of them are the members of the families, who had been carrying on hawking activities, in the said area, for a long time. Even though some of them had died in the last few years, their family members are carrying on such activities, as they have no other avocation to pursue. Therefore, they deserve to be allotted hawking sites, by the respondents, as per the National Policy On Urban Street Vendors, 2009. 8. The learned senior counsel appearing for the petitioner, had also pointed out that the order passed by the Chairman of the Hawking Zone Implementation Committee, dated 30.4.2010, relating to the allotment of hawking sites, had not taken into consideration the relevant factors to identify the hawkers, who had been carrying on the activities, in the area concerned, for a long time. Proper notification had not been issued intimating the hawkers to submit the relevant records, to substantiate their claims. Further, due to the efflux of time, there has been an increase in the number of hawkers, in the area concerned. Therefore, this Court may be pleased to direct the Hawking Zone Implementation Committee to reconsider the issue relating to the identification of the hawkers, who had been carrying on the activities, in and around the Lillypond Business Complex and to direct the respondents to allot hawking sites, to those members of the petitioner Sangam, who had been hawking in the area concerned. 9. The learned senior counsel appearing for the petitioner had relied on the decision of the Supreme Court, in GAINDA RAM Vs. 9. The learned senior counsel appearing for the petitioner had relied on the decision of the Supreme Court, in GAINDA RAM Vs. MCD (2010) 10 SCC 715 ) in support of his contentions. 10. In the counter affidavit filed on behalf of the second respondent, it has been stated that the petitioner Sangam had filed a writ petition before this Court, in W.P.No.7319 of 1992, enclosing a list of 170 names, who are said to be its members. The 133 members of the petitioner Sangam had been identified by the Hawking Zone Implementation Committee, appointed for the identification of the hawkers, who are carrying on their hawking activities in and around the Lillypond Business Complex area. They had been allotted hawking space, as per the directions of the Hawking Zone Implementation Committee. Pursuant to the directions issued by this Court, in W.P.No.7319 of 1992 and W.P.No.6081 of 1999, a representation had been submitted, by the petitioner Sangam, on 19.1.2007, requesting the respondents to allot hawking space to 377 persons, who are said to be the members of the petitioner Sangam. After hearing the Sangam, as well as the Corporation of Chennai, lots had been drawn, on 7.12.2007, and hawking spaces had been allotted to 133 hawkers, who had produced sufficient documents, as proof of their hawking activities. In fact, in the representation submitted by the petitioner Sangam, on 19.1.2007, the number of members had increased to 377 from the earlier list of 170 members furnished by the petitioner Sangam at the time of the filing of the writ petition, in W.P.No.7319 of 1992. 11. It had also been stated that, when some of the shop owners had been evicted, when the restoration works were being carried on in the Victoria Hall premises, they had approached this Court for their relocation. Based on the order passed by this Court, in W.A.Nos.1584 to 1611 of 2009, and W.A.Nos.1612 to 1615 of 2009, 12 evicted shop keepers were accommodated in the area concerned. Thereafter, the National Association of Street Vendors of India had sent a representation to the Hawking Zone Implementation Committee, dated 27.1.2012, to allot space for 244 vendors. 12. It has also been stated that the petitioner Sangam had filed a writ petition suppressing certain material facts and therefore, the writ petition is liable to be dismissed. Thereafter, the National Association of Street Vendors of India had sent a representation to the Hawking Zone Implementation Committee, dated 27.1.2012, to allot space for 244 vendors. 12. It has also been stated that the petitioner Sangam had filed a writ petition suppressing certain material facts and therefore, the writ petition is liable to be dismissed. It has also been stated that the writ petition filed by the petitioner Sangam is devoid of merits. 13. At this stage of the hearing of the writ petition, Mr.P.H.Arvind Pandian, the learned Additional Advocate General, appearing for the respondents, had submitted that the prior allotment in the Lillypond Business Complex area, Chennai, had been made pursuant to the order passed by this Court, in W.P.No.7319 of 1992 and W.P.No.6081 of 1999. The allotments of hawking sites had been made, based on the report of the Hawking Zone Implementation Committee, after proper identification of the hawkers, who were carrying on their hawking activities in the area concerned. 14. He had also placed before this Court a report, along with the sketch, to show that no extra space is available in the Lillypond Business Complex area, Chennai, for considering the claims of the petitioner Sangam to allot hawking sites, to the members of the petitioner Sangam. In such circumstances, the claims made by the petitioner Sangam cannot be considered, at this stage. However, it may be open to the petitioner Sangam to submit a detailed representation to the Hawking Zone Implementation Committee, along with the relevant records, for proper identification and for providing alternate accommodation to the members of the petitioner Sangam, to carry on their hawking activities. Thereafter, it is for the the Hawking Zone Implementation Committee concerned, to consider the claims made by the petitioner Sangam and to pass appropriate orders thereon, taking into consideration the relevant factors. 15. In view of the facts and circumstances of the present case and in view of the submissions made by the learned counsels appearing for the parties concerned, and on a perusal of the records placed before this Court, it is noted that it would not be possible for the respondents to allot the hawking sites to the members of the petitioner Sangam in the Lillypond Business Complex area, Chennai, due to the non-availability of sufficient space therein. In such circumstances, this Court finds it appropriate to permit the petitioner Sangam to submit a detailed representation to the Hawking Zone Implementation Committee, within a period of four weeks from the date of receipt of a copy of this order, along with the relevant records to substantiate its claims. On such representation being submitted by the petitioner Sangam, for providing alternative accommodation, if any, for carrying on their hawking activities, the third respondent Hawking Zone Implementation Committee, shall consider the same and pass appropriate orders thereon, within a period of four weeks thereafter. 16. It is made clear that the members of the petitioner Sangam shall not be displaced or prevented from carrying on their hawking activities, till final orders are passed by the third respondent Hawking Zone Implementation Committee, on the representation to be submitted by the petitioner Sangam, as permitted by this Court, by this order. However, they shall not be permitted to cause any impediment to the respondent Corporation, in implementing the order passed by this Court, on 23.12.2011, in W.P.No.19028 of 2011 etc. (batch). The writ petition is ordered accordingly. No costs. Connected M.P.Nos.1 and 3 of 2012 are closed.