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PETITIONER: N.JAGADEESAN ETC.

       Vs.

RESPONDENT: DISTRICT COLLECTOR, NORTH ARCOT AND ORS.

DATE OF JUDGMENT:       21/02/1997

BENCH: B.P. JEEVAN REDDY, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T B.P.JEEVAN REDDY,J.      Leave granted in the Special leave Petition.      A common  question arises  in these  writ petitions and civil appeals.      The National  Association  of  Education  Self-Employed Youth [NAESEY]  is  the  petitioner  in  Writ  Petition  (C) No.1000 of  1987. The  appellants in Civil Appeal No.1710 of 1987 and Civil Appeal No._____ of 1997 [arising form Special Leave Petition (C) No.20689 of 1993] and the writ petitioner in Writ  Petition (C)  No.365 of  1987 are  members of  this Association. It  is stated  that this Association was formed under  the   inspiration  and   guidance  of   Dr.   Malcolm S.Adiseshaiah,  the   then  Vice-Chancellor  of  the  Madras University,  and   with  the   help  of   Madras  University Employment Guidance  Bureau. The members of this Association have installed bunks/kiosks within the premises of hospitals and medical  colleges and  on the road margins in the cities of Madras,  Vellore and Tiruppur in the State of Tamil Nadu. Complaining that  they are  sought to  be evicted form their premises otherwise  than in  accordance with law, one of the members of  the Association,  N. Jagadeesan,  approached the Madras High  Court  by  way  of  a  writ  petition.  It  was dismissed.  The  writ  appeal  preferred  by  him  was  also dismissed against  which Civil  Appeal No.  1710 of  1987 is preferred. A  writ petition  filed by  the Association [Writ Petition (C) No. 12916 of 1987] was also dismissed similarly against which Special Leave Petition(C) No. 20689 of 1993 is preferred. The  Association has  filed two  writ  petitioner under Article  32 of  the Constitution,  viz., Writ Petition (C) Nos.  1000 of  1987 and 365 of 1987. One of its members, Tmt. Tamilselvi  and others  have filed  Writ  Petition  (C) No.677 of  1995 directly  in this  Court. Counters have been filed on  behalf of  the respondents, according to which the position boils down to this: (1)  Insofar as  the kiosks  located within  the premises of hospitals  and   medical  institutions   in  the  State  are concerned, it  is stated  that  Health  and  Family  Welfare Department of  the Government of Tamil Nadu has directed the removal of  the said  bunks/kiosks on  the ground  that they

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are posing  a hazard  to the  health and  well being  of the patients  and   others  visiting   the  hospitals   and  the institutions. It  is stated that these bunks  and kiosks are creating unhygienic  conditions by  littering the  place and that the food items provided by them are also being consumed by the in-patients and other patients visiting the hospitals which is  proving to  be deleterious  to  their  health  and treatment. It  is  also  stated  that  several  persons  are gathering around  these bunks/kiosks  which  is  interfering with the  smooth and  peaceful working  of the hospitals and other medical institutions. (2)  So far  as the  bunks/kiosks  located  on  the  street- margins  are   concerned,  it   is  stated   that  only  the bunks/kiosks in three main thoroughfare in Madras [specified in the  counter-affidavit]  and  one  thoroughfare  each  in Vellore and Tiruppur are only being removed because they are proving  a   traffic  hazard.   It  is   stated  that  these thoroughfares are  carrying very  high volume  of multimodal traffic ranging  from bullock  carts to fast moving vehicles and that  having regard to the increasing volume of traffic, it has become necessary to remove these bunks/kiosks and re- locate them elsewhere. This removal is also necessary, it is stated, for  widening the roads has reduced the width of the footpath and  the existence  of bunks/kiosks on such reduced footpath margins  is causing further obstruction in the free movement of the people. It is clearly stated in the counter- affidavits filed  on behalf  of the Government of Tamil Nadu that the  bunks/kiosks from  all the  thoroughfare/roads are not  being   removed  but  only  bunks/kiosks  from  certain extremely busy   roads/thoroughfares,  as specified  in  the said affidavits,  are being  removed. It is also stated that so far  as  other  roads  are  concerned  only  one  or  two bunks/kiosks may  require to  be removed  depending upon the exigencies of  the situation.  Otherwise there  has been  no removal or  attempt to remove the bunks/kiosks in other road margins or  thoroughfare. It  is further stated in Para 8 of the common counter, sworn to by N. Radhakrishnan, Additional Secretary to  the Government of Tamil Nadu, that "in respect of places  where the  kiosks/bunks are  existing, apart from the 3  places mentioned  above and  also in  respect of  any other  place   which  may   be  suitable  for  locating  the kiosks/bunks, permission  would be  granted by the concerned department  considering   the  need   and   other   relevant circumstances". It  is,  of  course,  clarified  that  "such permission would  not also amount to grant of any unfettered right for  the grantee,  since it  would be purely temporary and subject to removal if the premises is required for other public purpose".  Another statement  contained in  the  said affidavit is  to the  following effect:  "there has  been no removal or  attempt to  remove bunks/kiosks  with a  view to allow any  other person to locate the said bunks/kiosks with a view  to  allow  any  other  person  to  locate  the  said bunks/kiosks in the said place". The above statements in the counter-affidavit are recorded herewith.      We are  of the  opinion that  the appellant-petitioners can have no legitimate grievance against the action taken to remove  their   bunks/kiosks  inasmuch  as  the  removal  is confined only  to (i) hospitals and medical institutions and (2)  road   margins  of   main  thoroughfares,  viz.,  three specified thoroughfares  in Madras  city  and  one  each  in Vellore and  Tiruppur. The  reasons given  by the  State for removing them  are reasonable  and acceptable.  It  is  also specifically averred by the State that they are not removing any bunk with a view to allow some other person to install a bunk in  that place.  The removal is only for the purpose of

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removal of  health hazard  or in the interests of smooth and unobstructed flow  of traffic.  Indeed, the  Government  has offered to  consider the  applications, if  any, made by the evicted persons  for locating  them on other road margins or premises, as the case may be .      Sri R.Venkataramani, learned counsel for the appellant, has placed  strong  reliance  upon  the  Constitution  Bench decision of this Court in Sodan Singh v. New Delhi Municipal Committee [1989  (3) S.C.R.1038].  It is  true that the said judgment does  recognise  that  a  member  of  a  public  is entitled to  legitimate user of the road other than actually passing or  re-passing through  it. But this is clarified by the  statement   that  such   user  shall   not  create   an unreasonable  obstruction   which  may  inconvenience  other persons having similar right to pass. It is also pointed out in the  said judgment  that what constitutes public nuisance is a  question of  fact to  be decided  in each  case having regard to  all the   relevant circumstances. In our opinion, by seeking to remove the bunks and kiosks located within the hospital premises  or within  the premises  of other medical institutions or  their removal  from  the  road  margins  of important and  busy thoroughfares  in  the  aforesaid  three cities in  Tamil Nadu, the respondents are not acting in any manner inconsistent  with the propositions enunciated in the said judgment.  We are  not able  to say  that  the  reasons assigned are neither relevant nor germane nor is it possible to say that reasons given are only a make-believe.      It shall,  of course,  be open  to the  persons who are evicted to  apply to  the appropriate  authorities  for  re- location in other appropriate areas/roads margins and we are sure that  the concerned  authorities  will  consider  their representations  and   pass  orders   thereon  without   any avoidable delay.      The  writ   petitions  and   appeals  are   accordingly dismissed with the above observations. No costs.