Main Search Premium Members Advanced Search Disclaimer
Cites 3 docs
Olga Tellis & Ors vs Bombay Municipal Corporation & ... on 10 July, 1985
Bombay Hawkers' Union And Ors vs Bombay Municipal Corporation And ... on 3 July, 1985
Municipal Corporation Of Greater ... vs Dr. Hakimwadi Tenants ... on 24 November, 1987
Citedby 2 docs
Hiren Jashbhai Patel vs (A) on 14 October, 2013
Sanjay Agarwal And Another vs Nagar Mahapalika, Allahabad And ... on 20 April, 1999

User Queries
Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
Supreme Court of India
Ahmedabad Municipal Corporation vs Dilbagsingh Balwantsingh And Ors on 24 March, 1992
Equivalent citations: 1992 SCR (2) 322, 1992 SCC Supl. (2) 630
Author: K J Reddy
Bench: Reddy, K. Jayachandra (J)
           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.
     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.

& 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 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.

V.P.R.					     Appeal allowed.
						       328