AHMEDABAD MUNICIPAL CORPORATION Vs. DILBAGSINGH BALWANTSINGH

JUDGEMENT

(1.) Leave granted.

(2.) 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 and Olga Tellis v. Bombay Municipal Corporation 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 22/04/1987 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 difficultiesbefore the High court. The High court reconsidered the scheme and by an order dated 7/12/1987 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 1/10/1988 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 18/09/1989 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.

(3.) It was contended that on earlier occasions the High court dismissed the appeals and that the encroachment is causing nuisance 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.