M A PAL MOHD Vs. R K SADARANGANI

JUDGEMENT

(1.) These appeals are preferred against a common judgment rendered by Mr. Justice Padmanabhan in W. P. Nos. 1127 and 7078 of 1980, 1049 of 1981 and 2415 and 2416 of 1982 (Reported in AIR 1984 Mad 292). Writ Appeal No. 377 of 1983 is directed against W. P. No. 7078 of 1980, and W. A. Nos. 715 and 716 of 1984 are against W. P. No. 2146 of 1982 and WP No. 1127 of 1980. The writ petitions were filed by merchants who have their shops in Nethaji Subash Chandra Bose Road, Rattan Bazaar Road and Ranganathan Street in Madras, and they have sought for issue of writs of Mandamus directing the respondents, i.e., the Commissioner of Corporation of Madras and the Commissioner of Police, Madras, to remove the obstructions and encroachments made by unauthorised hawkers in those roads. The learned Judge held that, by permitting hawkers to carry on trade on the pavements of these roads, the Commissioner of Corporation "has permitted an unauthorised obstruction or encroachment of public streets within the meaning of the Act, and consequently, they are bound to act according to law to remove the encroachments". Hence when the merchants-petitioners have established their right for issue of a writ of mandamus, respondents 1 and 2 were directed to act according to law and remove the obstructions on these public streets by removing the hawkers from the areas occupied by them in the respective roads. To implement this directive, respondents were granted 18 months' time to make alternative arrangements, even though the hawkers cannot insist on alternative sites of their choice to be allotted. Further, the first respondent was also directed not to permit any more persons to encroach on these roads.

(2.) In these appeals, on behalf of the hawkers, Mr. K. V. Sankaran and Mr. K. N. Balasubramaniam submit that 1. the enablement envisaged in S.223(5) of the Madras City Municipal Corporation Act (Act IV of 1919) (hereinafter referred to as the Act), had been misunderstood and misapplied; 2. in the absence of a demand made on public authorities to discharge their duties, a Writ of Mandamus cannot issue;

(3.) for an alleged tort committed, the recourse could be only to a Civil Court and not to resort to remedy under Art.226 of the Constitution of India;