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PETITIONER: AHMEDABAD MUNICIPAL CORPORATION

       Vs.

RESPONDENT: DILBAGSINGH BALWANTSINGH AND ORS.

DATE OF JUDGMENT24/03/1992

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PANDIAN, S.R. (J)

CITATION:  1992 SCR  (2) 322        1992 SCC  Supl.  (2) 630  JT 1992 (2)   363        1992 SCALE  (1)721

ACT:      Ahmedabad Municipal Corporation Act      Foot-path  hawkers  on public  streets-Obstructions  to traffic  and other public amenities-Removal  by  Corporation under  an  approved  scheme-Tactics  of  hawkers  to  thwert implementation of scheme-Interim injunction granted in their favour vacated.

HEADNOTE:      A  mushroom  growth of public  street/footpath  hawkers affected  the  traffic  and  other  public  amenities.   The Corporation  (appellant) decided to remove the  obstructions created   by   such  hawkers,  after  giving   them   enough opportunity.      The Corporation’s action was challenged by way of  writ petitions  in the High Court. The High Court  after  hearing all  the  petitioners and following the  judgments  of  this Court   in   Bombay  Hawkers  Union  v.   Bombay   Municipal Corporation,  [1985]  3 SCC 528 and Olga  Tellis  v.  Bombay Municipal  Corporation,  [1985]  3  SCC  544  directed   the Corporation to evolve a scheme having regard to the  overall local conditions in the area.      Several special leave petitions were filed against  the High  Court’s  judgment and this Court remitted  the  matter back to the High Court for consideration of the scheme.      On  22.4.87 the High Court held that the scheme  framed by  the  Corporation  observed to  be  accepted  subject  to certain modifications.      When  some  of the aggrieved  persons  approached  this Court, this Court permitted the hawkers and other  similarly placed  traders to place their difficulties before the  High Court.      On  7.12.87  the High Court reconsidering  the  scheme, held that it was not necessary to further modify the  scheme and ultimately the scheme was confirmed.      The  respondents  were  small  traders  running   their business in small                                                        323 shops. they were alleged to have made encroachments and were also covered  by the scheme.  They filed several  suits  and          withdrew  them after the High Court gave its  final          verdict.

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    On  1.10.88  the respondents filed a suit in  the  City Civil  Court for directions and injunction.   The  appellant Corporation filed a reply to the notice of motion.  The City Civil Court on 18.9.89 vacated the interim injunction.      The  respondents thereupon filed an appeal in the  High Court seeking interim injunction which was admitted granting interim injunction restraining the Corporation from removing or pulling down the business premises of the respondents.      The  Corporation filed the present  appeal  questioning the High Court’s order, contending that on earlier occasions the   High  Court  dismissed  the  appeals  and   that   the encroachment  was causing nuisance and inconvenience to  the public   and  the  Corporation  was  finding  it   extremely difficult  to implement the scheme which was considered  and approved by the High Court in accordance with the directions given by this Court.      The respondents submitted that there was no  objections to  the implementation of the scheme; and that  their  shops did  not  in  any  way  amount  to  encroachment  and  their locations did not cause any inconvenience or nuisance.      Allowing the appeal, this Court,      HELD:  1.01. Several associations of  hawkers,  traders and  larrigallawalas  filed writ petitions and  the  Supreme Court  directed the High Court to consider the  difficulties and  finally the High Court approved the scheme  subject  to some modifications. [326C]      1.02.  In the instant case notice was issued  and  this Court  and also directed the appellant-Corporation  to  seek any other relief on the basis of the order of this Court  in the S.L.P. (Civil) No.5465/89, and the S.L.P. was  adjourned to   15.11.91  for  enabling  the  Corporation  to   provide alternative suitable sites for the respondents according  to the  scheme.  Thereafter the matter  was  adjourned  several times at the request of the counsel. [326 F-G]      1.03.  On 4.2.92 a rejoinder was filed in which  it  is stated that the                                                        324 Corporation had offered to the respondents hawking  licenses etc. under the scheme but the respondents are not  accepting the  same  and  that  the  respondents  were  offered   four alternative  sites  in  Plot No. 174 of  the  Town  Planning Scheme  and  that the same are suitable to  carry  on  their businesses. [326 G-327A]      1.04.  On  7.2.92 the respondents  stated  before  this Court that they will choose any one of the alternative sites now  offered  by the appellant Corporation and more  to  the offered  place.   The  matter  was  again  adjourned.    The respondents once again have come forward with the same  kind of  grievance  and it is also submitted that  they  are  not encroaching  upon  the  public road  and  some  other  shops similarly situated are not being shifted and that the  sites offered by the Corporation are not suitable. [327 A-B]      1.05.  The respondents have been trying their  best  to thwart  the implementation of the scheme which was  examined by  this  Court as well as the High Court on more  than  one occasion. [327 B-C]

JUDGMENT:      Bombay  Hawkers Union v. Bombay Municipal  Corporation, [1985]   3  SCC  528;  Olga  Tellis  v.   Bombay   municipal Corporation, [1985] 3 SCC 544; Baroda Municipal  Corporation v.  Sharmjivi Hathlary Association & Ors., SLP  (CIVIL)  No. 5465/89-D/-3.5. 1989, referred to.

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&      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1117 of 1992.      From  the  Judgment and Order dated  27.9.1990  of  the Gujarat High Court in Appeal from Order No. 393/89.           WITH      Civil Application No. 2857 of 1989.      T.U.  Mehta, Kuldeep Parihar and H.S. Parihar  for  the Appellant.      Ramesh P. Bhatt, Ms. Tanuja Sheel, Ms. Priya  Hingorani and M.N. Shroff for the Respondents.      The Judgment of Court was delivered by      K.JAYACHANDRA REDDY, J. Leave granted                                                        325      Ahmedabad  Municipal  Corporation  (’Corporation’   for short) is the appellant herein and the four respondents  are small traders running their businesses in small shops.  They claimed  that their shops are 10 feet away from  the  public road.   According to the appellant Corporation there  was  a mushroom  growth  of public  street/footpath  hawkers  which affected   the  traffic  and  other  public  amenities   and therefore the police/public Authorities within the Municipal Corporation area were constrained to remove the obstructions created   by   such  hawkers  after   giving   them   enough opportunity.    The   said  action  of   the   police/public authorities  had  been  challenged by way  of  a  number  of petitions  in  the High Court of Gujarat.   The  High  Court after   hearing  all  the  petitioners  and  following   the Judgments  of this Court in Bombay Hawkers Union  v.  Bombay Municipal  Corporation, [1985] 3 SCC 528 and Olga Tellis  v. Bombay Municipal Corporation, [1985] 3 SCC 544 directed  the Corporation to evolve a scheme having regard to the  overall local  conditions in the area.  Questioning the  above  said order  and judgment of the High Court several special  leave petitions were filed and this Court remitted the matter back to the High Court of Gujarat for consideration of the scheme in the light of certain observations made therein.  The High Court by its order dated 22.4.87 held that the scheme framed by  the  Corporation  deserves to  be  accepted  subject  to certain  modifications. Again some of the persons  aggrieved by  the said order of the High Court approached  this  Court and  this  Court permitted the hawkers and  other  similarly placed  traders to place their difficulties before the  High Court.   The  High Court reconsidered the scheme and  by  an order dated 7.12.87 held that it is not necessary to further modify  the scheme and ultimately the scheme was  confirmed. The  respondents who are alleged to have made  encroachments and  who are also covered by the scheme filed several  suits and  withdrew  them  after the High  Court  gave  its  final verdict.   The respondents again filed a suit on 1.10.88  in the   City  Civil  Court,  Ahmedabad  for   directions   and injunction. The City Civil Court granted interim injunction. The  appellant  Corporation filed a reply to the  notice  of motion.   The  City Civil Court by its order  dated  18.8.89 vacated  the interim injunction.  The respondents  thereupon filed  an appeal in the High Court and also  sought  interim injunction.  The High Court admitted the appeal and  granted interim injunction restraining the Corporation from removing or  pulling down the business premises of  the  respondents. Questioning  the same the Corporation has filed the  present appeal.      It  was  contended that on earlier occasions  the  High Court dismissed                                                        326 the  appeals and that the encroachment is  causing  nuisance

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and   inconvenience   to  the  public  and   the   appellant Corporation  is finding it extremely difficult to  implement the  scheme  which has been considered and approved  by  the High  Court in accordance with the directions given by  this Court.   Learned counsel for the respondents submitted  that there  is no objection to the implementation of the  scheme. But  so far as the respondents’ shops are concerned, it  was submitted that they do not in any way amount to encroachment and  their  locations  do not  cause  any  inconvenience  or nuisance.      As  already mentioned several associations of  hawkers, traders  and larri-gallawalas filed writ petitions  and  the Supreme  Court  directed  the High  Court  to  consider  the difficulties  and  finally as stated above  the  High  Court approved  the  scheme subject to some modifications.   In  a similar matter which was the subject matter of S.L.P.(Civil) No.  5465/89  - Baroda Municipal  Corporation  v.  Sharmjivi Hathlary  Association & Ors.  This Court by its order  dated 3.5.89 observed thus :           "We  are  of the view that it was  an  attempt  to          thwart  the Scheme by approaching the Civil  Court. It  is an abuse of process of the Court and gives rise to  a situation where contempt action should lie.  We, however, do not  propose  to  take such action,  but  consider  it  very appropriate  in the interest of justice to direct  dismissal of  the suit itself.  By this order of ours, the  said  suit being  No.  1761  of 1985 in the Court of  6th  Joint  Civil Judge,  Sr.  Div., Vadodara, shall stand dismissed  and  all interlocutory orders made therein shall stand dismissed."      However, in the instant case notice was issued and this Court  also directed the appellant Corporation to  seek  any other relief on the basis of the order of this Court in  the above S.L.P. (Civil) no. 5465/89.  By an order dated 13.9.91 the  S.L.P.  was  adjourned to  15.11.91  for  enabling  the Corporation  to provide alternative suitable sites  for  the respondents according to the scheme.  Thereafter the  matter was  adjourned several times at the request of the  counsel. Meanwhile  on  4.2.92 a rejoinder was filed in which  it  is stated  that the Corporation had offered to the  respondents hawking  licenses etc. under the scheme but the  respondents are not accepting the same.  It is also stated therein  that the respondents were offered four alternative sites in  plot No. 174 of the Town Planning scheme and that the                                                        327 same  are suitable to carry on their businesses.  On  7.2.92 learned counsel appearing for the respondents stated  before this Court that they will choose any one of the  alternative sites  now offered by the appellant Corporation and move  to the  offered  place.  The matter was again  adjourned.   The respondents once again have come forward with the same  kind of  grievance  and it is also submitted that  they  are  not encroaching  upon  the  public road  and  some  other  shops similarly situated are not being shifted and that the  sites offered by the Corporation are not suitable.  We have  heard both  the  parties at length and we are satisfied  that  the respondents  have  been  trying their  best  to  thwart  the implementation  of  the scheme which was  examined  by  this Court  as well as the High Court on more than one  occasion. Therefore  we  allow this appeal with costs, set  aside  the order of the High Court in Civil Application No. 2857/89  in Appeal  from Order No. 393/89 dated 27.9.90 and the  interim injunction  granted  by the High Court stands  vacated.   We confirm  the  order of the City Civil  Court  dated  18.9.89 vacating the injunction.  Consequently Appeal from Order No. 393/89 pending in the High Court stands dismissed.

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V.P.R.                                       Appeal allowed.                                                        328