YACOB Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONERS, 86 in number, claim to be members of an association of bunk merchants in Trivandrum city. The bunks owned by these petitioners are erected in various paths of the Trivandrum city and the petitioners claim that they have been doing this business since last several years. They allege that they have obtained licence from the Corporation and these places were identified by the Corporation authority. PETITIONERS contend that these bunks do not cause any obstruction to the traffic of the vehicles and that they will not in any way adversely affect the interest of the public. On 4-1-1992 public works department issued a circular that unauthorised bunks from the PWD puramboke and road margin would be removed immediately. PETITIONERS allege that their shops are not unauthorised. PETITIONERS allege that so long as bunk shops do not cause any obstruction to the traffic, there is no justification for removing the same in a summary manner. PETITIONERS' association has sent a representation before the Government, but no action was taken and the petitioners seek for a writ of mandamus restraining the respondents from interfering with the trade or business activity of the petitioners and to remove the licenced bunks till a scheme is evolved and implemented for rehabilitant the petitioners.

(2.) ON behalf of the third respondent a counter affidavit is filed. The bunks of the petitioners are situated in different parts of Trivandrum city. Some of them are in the road margin and road puramboke. Some are situated either in corporation land or on road margins coming under the jurisdiction of Executive engineer of National Highways. The list of bunks situated in road margin under the control of the third respondent are given in Ext. R3 (a ). The 4th respondent, the Corporation of Trivandrum has no right or authority to permit installation of bunks in PWD road margin. The bunks in PWD road margin cause serious hazards to the pedestrians as well as vehicular traffic. The third respondent in his official capacity is responsible for the proper up keep of the road and road margin under his control. He has initiated action to evict the unauthorised bunks erected in PWD road margin. Therefore, the bunks shown in Ext. R3 (a) are to be removed. The bunks erected in PWD road margin without the prior permission of PWD authorities are unauthorised and due to these bunks the pedestrians arc compelled to walk on road and this causes major road accidents. Though the petitioners have right to carry on business they have no right to encroach upon Government land. Action has been initiated only to remove unauthorised bunks.

(3.) THE shops which are mentioned in Ext. R3 (a) are by the side of the road. THE Government Pleader points out that these bunk shops are unauthorised. THE counsel for the petitioners submitted that even if these shops arc unauthorised they are not liable to be evicted and it is argued that (hey have got a right to carry on their profession and it is for the local authorities to provide adequate facilities to these petitioners to conduct their trade and business. Reliance was placed on decision of Supreme Court reported in Sodan Singh v. New Delhi Municipal Committee (AIR 1988 SC 1988) and soudan Singh v. N. D. M. C. (AIR 1992 SC 1153 ). Sodan Singh v. New Delhi municipal Committee is a case relating to the hawkers who were trading on the pavements of roads in the city of Delhi. In that case, the Supreme Court ultimately held that, street trading being a fundamental right guaranteed by the Constitution has been made available subject to Art. 19 (6) of the constitution. It was held that: "it is within the domain of the State to make any law imposing reasonable restrictions in the interest of general public. This can be done by an enactment on the same lines as in England or by any oilier law permissible under Art. 19 (6) of the Constitution. " In the very same decision, the Supreme Court affirmed the view taken in the earlier decision reported in Bombay Hawkers' Union v. Bombay municipal Corporation (AIR 1985 SC 1206) that'the removal of encroachments on the footpaths or pavements over which the public has the right of passage or access cannot be regarded as unreasonable, unfair or unjust. THE Supreme Court further affirmed that: "footpaths or pavements are public properties which lire intended to serve the convenience of (lie general public. THEy are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. THE main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. THEre is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing, re passing, are competing claims and that the former should be preferred to the latter. No one has the right to make use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have me right to encroach upon pavements by constructing dwellings thereon. Public streets, of which pavements form a path are primarily dedicated for the. purpose of passage and, even the pedestrians have but the limited right of using pavements for the purpose of passing and repassing. " So, I am of the view that the decision reported in Sodan singh v. New Delhi Municipal Committee is in any way helpful to the petitioners.