M N ELUMALAI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) WRIT Petition No. 6027 of 1998 was listed on 17.9.1998. Learned counsel for the petitioners wanted an adjournment for three days. I therefore posted the said WRIT Petition on 18.9.1998. On 18.9.1998 the matter did not reach. Subsequently, I was sitting in a Division Bench. The case was listed to-day.

(2.) LEARNED counsel for the petitioners has filed an affidavit in the following terms:

(3.) IN the affidavit, the petitioners have stated that their ancestors and forefathers started the business of selling vegetables and leaves etc., some time in 1950. The abovesaid market is commonly known as "Tank Market" and every one in Mylapore area in particular and the residents of Madras city in general know about the market and the market has gained wide popularity from among the general public The market is situate adjacent to the Kapaleeswarar Temple on the southern side and the platform around the tank is 11 feet wide on the outer side of the fence and 18 feet width on the inner side of the fence. The platform wherein the petitioners are carrying on the business is 11 feet wide and 67 to 80 shops have been set up. The petitioners are very poor people and from the income derived from the said business of selling vegetables etc., they have to sustain themselves and their families. They do not have any other avocation in life. They are poor people, who cannot invest huge sums of money. They buy the articles required from the wholesale Kothawal Market and with the profit earned by selling the vegetables to the general public they have to sustain their lives. While so, the Assistant Engineer, Corporation of Madras, Division No. 132 called the petitioners and threatened that they will be removed at any time since the Chief Minister of Tamil Nadu wanted to beautify the surroundings of the Kapaleeswarar Temple and also to maintain the Temple in a noteworthy manner. If the petitioners were thrown away from the market, then they will be left with no other remedy and no relief can be obtained by them. Hence to safeguard their interests, they have invoked Article 226 of the Constitution of INdia. The main contentions of the petitioners are that (i) the respondents cannot dislodge or remove them from the shops, unless a suitable alternative accommodation is opened and given to them by the respondents, which will be both beneficial to the general public as well as to the petitioners; (ii) the petitioners are not the trespassers, occupying the shops without any authority; and (iii) the fact that the Commissioner of Corporation of Madras has been collecting the licence fee from 1960 till 1989 either by themselves or by leasing out to third parties to collect the licence fee on their behalf cannot entitle him to throw away the petitioners from the shops, without affording them a suitable and proper place for their alternative accommodation. The trading on pavements and streets is a fundamental right and the Government can only impose reasonable restrictions and regulate them and the Government cannot prohibit such tradings. As laid down by the Honourable Supreme Court in Sodan Singh v. New DelhiMunicipal Committee (AIR 1989 S.C. 1988) the right to carry on trade or business mentioned in Article 19(1)(g) on street pavements, if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or repassing and for no other use. Since the petitioners are not the trespassers, Section 223(2) of Madras City Municipal Corporation Act, 1919 cannot be invoked. Hence, the Writ Petition.