Decided on December 12,1960



- (1.) THIS application appears to be a sequel to a matter recently disposed of by me, being Matter No. 183 of 1959 (Sudhir Kumar Banerjee and anr. v. The Commissioner, Corporation of Calcutta and Ors.) in which the Rule has been made absolute by my judgment dated November 17, 1960, and a writ in the nature of mandamus has been issued directing the Commissioner to the Corporation of calcutta and the calcutta to remove or cause to be removed, the unauthorised constructions on the footways and footpaths on Rash Behari Avenue, abutting the premises No. 195, Rash Behari Avenue, in the suburbs of Calcutta, and to exercise all the powers conferred upon them by the Calcutta Municipal Act, 1951 or the bye-laws in force, for that purpose. A writ was issued in the nature of mandamus directing the Commissioner of Police, the respondent No. 3, to render adequate help and assist the said Commissioner to the Corporation and the Corporation of Calcutta in carrying out their statutory duties in this behalf, in clearing the obstructions including the unauthorised structures, to public user of the footpath and/or footways flanking Rash Behari Avenue at its junction with Ekdalia Road, as mentioned in the petition. The facts in that case were shortly as follows: The petitioners in that case, Sudhir Kumar Banerji and Sm. Reba Mukherji (respondents No. 1 and 2 herein) are the owners of the premises No. 195, Rash Behari Avenue. It is a vacant plot, having a road frontage of about 226 ft. on its south, upon Rash Behari Avenue, an important public street in South Calcutta. Sometime in 1955, a circular was issued, purporting to be by the "west Bengal Hawkers' Association", stating that Government had given formal permission for the establishment of a Hawkers' Corner on Rash Behari Avenue at its junction with Ekdalia Road. It appears that the Commissioner of Police had given formal permission for opening the Hawkers' Corner, without any reference to the Corporation of Calcutta, upon whose land it was proposed to establish it. Thereafter, the entire frontage of the premises No. 195, Rash Behari Avenue has been blocked by a row of stalls built on the public footpath, that is to say, on land vested in the Corporation of Calcutta. This was done without the consent of the Corporation of Calcutta, and now a market is being carried on there, not only obstructing the footpath and the use thereof by the members of the public, but also blocking up completely the access to the premises No. 195, Rash Behari Avenue. The owners approached the Corporation of Calcutta, as also the Commissioner of Police to remove the obstruction, but to no effect. The Corporation communicated with the police authorities but no reply was given to their communication. Thereafter, the said owners of premises No. 195, Rash Behari Avenue, who have been made respondents Nos. 1 and 2 in this case, made an application to this Court and a rule was issued, in Matter No. 183 of 1959, mentioned above. Originally, none of the hawkers carrying on business and occupying the hawkers' corner mentioned above were made parties. Subsequently however, some of them, whose names could be ascertained by the petitioners were made parties. Leave was granted under Order 1, Rule 8 of the Code of Civil Procedure, and advertisements were issued in newspapers requesting all parties interested to come and join in the application, if they were affected thereby. Certain members of the public availed themselves of this liberty and joined in the application, and supported the same. This application was successful and the Rule was made absolute on the 17th November, 1960 as aforesaid. Now, an application is made by 4 persons, of whom Nos. 1 and 2 state that they have been carrying on business as hawkers, in what they say is known as "rash Behari Avenue Hawkers' Corner". It is not very clear from the petition as to whether it is the same hawkers' corner at the corner of Ekdalia Road in respect of which a writ of mandamus has already been issued, but I shall assume that, this is so. The petitioner No. 3 states that he carries on business in what is known as "boulevard Hawkers' Corner" in Gariahat Road. The petitioner No. 4 states that he carries on business in what is known as "kadapara Hawkers' Corner" situated at Narkeldanga Main Road. The petitioner,; state that they have become members of an association for opening such hawkers' corners in Calcutta, an J. they approached Government for permission to do business in the streets of Calcutta. It is stated that the Government of West Bengal, as well as the Corporation of Calcutta have been informed of the forming of the West Bengal Hawkers' Association and all along permitted the petitioners to use the Corporation's footpath for opening hawkers' corners. It is said that the petitioners have got trade-license under sections 218-219 of the Calcutta Municipal Act, 1951, and petitioners Nos. 1, 2 and 3 have got licenses from the Director of Textiles, West Bengal, for carrying on business. It is said that the petitioner No. 3 paid owner's and occupier's share of taxes in respect of his stall, at the hawkers' corner at the Boulevard, at Gariahat Road. The petitioners pray that the order passed in the Matter No. 183 of 1959 be recalled and/or set aside and that the same be heard in the presence of the petitioners and that they should be given leave to come into the said application and be added as parties. They also pray that a writ of mandamus be issued directing the respondents Nos. 3 and 4 to permit the petitioners and all other hawkers in Calcutta to carry on business until suitable accommodation is found for them and a writ of mandamus directing the respondents 3, 4 and 5 not to interfere with the right of the petitioners to carry on business in the different stalls in Calcutta without giving the petitioners reasonable opportunities of being heard by the respondents Nos. 1, 2 and 3, as also leave under Order 1, Rule 8 of the Code of Civil Procedure. In my opinion, this application is wholly misconceived and not even a prima-facie case has been made out for the issue of a rule. What has been held in Matter No. 183 of 1. 959 is that the Corporation of Calcutta and the Commissioner to the Corporation are required by the provisions of the Calcutta Municipal Act, 1951 to maintain the public streets in Calcutta including the footways and footpaths, for the unobstructed user thereof by the members of the public. It has been held that, so far as Corporation lands are concerned, Government has no right to give permission to open hawkers' corners anywhere, nor has the Commissioner of Police any such right. No such right was established in the application. In such an application, it is not necessary to make the hawkers parties, because the relief claimed was to compel the Corporation and the Commissioner of Police to do their statutory duties. Out of abundant caution, however, such hawkers were made parties whose names could be ascertained, and leave was granted under Order 1, Rule 8, and the widest publicity was given by advertisement in the local papers. As stated above, some members of the public who thought themselves affected applied, and were made parties. I do not at all believe that the petitioners and particularly the petitioners Nos. 1 and 2 were unaware of the proceedings. In any event, the petitioners in the said application did not proceed surreptitiously, but took every precaution to have the widest publicity given to the said application. This application must fail on a point which goes to the root of the matter. The order made in Matter No. 183 of 1959, was made sometime ago, and the judgment has not only been signed, but the order has already been drawn up and perfected. Under the circumstances, I have no jurisdiction to recall the same or add the petitioners as parties or in any way alter my judgment. Also, this application must fail in limine because, although the petitioners ask for a writ in the nature of mandamus, no demand for justice upon the respondents have been disclosed, although a bare statement has been made that there was such a demand. A demand cannot surely be made against a statutory Corporation verbally. The case of the petitioners Nos. 3 and 4 can be disposed of on another ground also. Having nothing to do with the subject matter of the said application, they can not be made parties thereto. So far as they are concerned, no steps appear to have been taken yet, and they have no right to apply to be made parties to the said application, and have orders made therein set aside. Coming now to the petitioners Nos. 1 and 2, there is no allegation in the petition that pursuant to the order of mandamus the Corporation has yet taken any steps against them. Mr. Mukherjee appearing on behalf of the petitioners states that the main grievance of the petitioners is that the petitioners were not heard by the Court. I pointed out to Mr. Mukherjee that even assuming that his clients had a right to be heard, there was an opportunity for them to be heard. I, therefore, asked him to satisfy me on the merits of the case and to show me what legal right the petitioners have, to continue in unauthorised occupation of any part of the public street of footpaths of Calcutta. Mr. Mukherjee thereupon addressed me on the merits, so that I have now an opportunity of expressing my views upon the merits of the application as well. I asked Mr. Mukherjee to satisfy me on the fundamental question as to what legal right the petitioners have, to occupy any part of the land belonging to the Corporation, being parts of a public street, and to set up unauthorised structures thereon and to carry on business, obstructing the use of such public streets including footways and footpaths, by the members of the public, for whose benefit, they have been created. Mr. Mukherjee commenced by saying that the hawkers' corners are occupied by displaced persons from East Pakistan who are poor people and who are refugees, and therefore, they were in urgent need of earning a living. Although there is no evidence before me that the petitioners are actually displaced persons from East Pakistan, I shall assume for the moment that they are so. Nevertheless, this is scarcely an answer to my query. The petitioners have come to Court, asking for the issue of a writ of mandamus, and the petitioners Nos. 3 and 4 ask to be joined in an application in which they were not parties, and for setting aside an order, which they say, affect their rights. There can be no doubt that, before they can get any relief by way of a writ in the nature of mandamus, they will have to show a prima-facie legal right, in aid of the writ, which they are claiming. In other words, they will have to establish a legal right to occupy parts of a public street or public footpath, belonging to the Corporation of Calcutta and vested in the said statutory body, for a particular purpose. Unless the legal right is prima facie established, there can not be issued a writ in the nature of mandamus. That refugees from East Pakistan require rehabilitation is a matter upon which there can be no doubt. How such rehabilitation can best be effected, is a matter of high-policy, and assuming that it is the legal duty of the West Bengal Government to effect such rehabilitation, it must do so in a manner which is lawful, and which does not affect the right, of third parties and particularly of the members of the public. For example, the Government can set apart Government lands for the purpose of permitting displaced persons to carry on business and to erect such structures thereon as it may think fit. Such refugee markets have already been opened in Calcutta, Delhi and other places. But this is no answer to the question as to what right such displaced persons have in forcibly occupying lands belonging to the Corporation, which are set apart as public streets, including footways and footpaths. The license issued by the Director of Textiles can not in law permit such user. In other words, the Director of Textiles has no right to permit the petitioners to use any part of the Corporation lands for the purpose of carrying on a business. So far as the payment of tax by the petitioner No. 4 at Boulevard Hawkers' Corner is concerned, I have already held that the respondent No. 3 does not come into the picture at all, as no action has yet been taken in respect of the Boulevard Hawkers' Corner and he has no right to come into the Matter No. 183 of 1959. If he claims a right to property and if and when that right is sought to be disturbed he will have his legal remedies. At present however, he has not showed me any semblance of a right. The Corporation of Calcutta is a statutory Corporation and it can only allow any encroachment upon public streets or footpaths, if permitted by the Act or any Bye-laws made thereunder and subject to the restrictions imposed thereby. It has no right to allow, half a public street, or a good portion of a footpath flanking it, to be occupied by hawkers, thus obstructing the user thereof. A trade license under sections 218-219 of the Calcutta Municipal Act, cannot confer such a right. Coming back to the question that I have posed to Mr. Mukherjee, viz. the legal right of the petitioners, and particularly of the petitioners Nos. I and 2, with whom we are really concerned in this case, he says that the right is to be found in section 447 of the Calcutta Municipal Act, 1951. That section runs as follows :- "no person shall, within a radius of 50 yards from the outward confines of a municipal market as specified in sub-clause (a) of section 5, clause (42), carry on any business or trade as a hawker or squatter or shall carry on any business of, or sell any meat, fish or vegetables. The Commissioner shall have the power to close any such business or trade. "
(2.) IN my opinion, this section has not the remotest bearing on the question at issue. This section is intended to protect municipal markets from competition, and prevents any business or trade being carried on by hawkers or squatters within 50 yards of the outward confines of a municipal market. Surely this can not be taken to be a charter for hawkers carrying on business on public streets or footways, by encroaching thereon and building unauthorised structures, and obstructing the user thereof by members of the public. Mr. Mukherjee says that he would not go so far as to say that this section confers any express right upon his clients, but in his view it confers an implied right. In other words, he says that hawkers and squatters within a radius of 50 yards from the confines of a municipal market can be prevented from carrying on their trade, and in this case the Corporation and the Commissioner thereof, not having prevented the association from carrying on such trade, a right was created. Firstly, there is nothing to show that we are dealing here with the case of a hawker or a squatter carrying on business within 50 yards of a municipal market. No such allegation has been made in the petition. Then again, section 447 does not deal with the question of a hawker or a squatter carrying on business on Corporation lands and particularly on public streets or a public footpath I must say that the correspondence disclosed in this application is amusing to peruse. The whole matter seems to have been arranged between the Deputy Commissioner of Police, Head Quarters and one Sri Arabinda Bose who styles himself as the "president, West Bengal Hawkers' Association". The Deputy Commissioner of Police says that he was "declaring" certain places as hawkers' corners. I am not aware of any law which enables him to do so. Indeed, in the application which I have disposed of, no such power was established or even put forward. In the correspondence disclosed in this application, there is no reference to the hawkers' corner at the junction of Ekdalia Road and Rash Behari Avenue, It relates to other places, with which we were not directly concerned in that application. In one letter, dated 7th April, 1954 the Deputy Commissioner of Police, Head Quarters, wrote to the Commissioner of the Corporation of Calcutta, raying that from the police side there was no objection to declaring the "narkeldanga Main Road Side" as a hawkers' corner, "provided you agree". No agreement on behalf of the Commissioner to the Corporation has been disclosed or alleged. Indeed, no letter from the Corporation or its Commissioner has been disclosed, as granting permission to the members of the said Association to use any part of a public road or footway, for opening hawkers' corners, nor is there any declaration to that effect. It is to be remembered that neither the Commissioner of Police nor the police authorities nor the Commissioner of the Corporation, nor the Corporation of Calcutta, and not even the Government, has any right whatsoever under the law to "declare" any part of a public street or a public footpath to be a hawkers' corner. Such a declaration implies that hawkers would be entitled to occupy parts or a public street or a footpath and erect unauthorised structures thereon. There is no provision of law for making any such declaration. The erection of such covered structures require the sanction of the Corporation. No such sanction was ever asked for or obtained. The basic fact is that the Corporation is bound by statute to provide public streets including footways for the use of the members of the public and to keep them in unobstructed user by the members of the public. I have- held that this is not a discretion but a legal obligation. An attempt has been made in this application to show that only a part of a footpath has been obstructed, and not the whole. In my opinion, that is immaterial. No part of a footpath or a public street can be obstructed, and such user is wholly illegal. The bye-laws allow certain regulated user of a public street or public footpath, and this is the utmost that the Corporation car. allow. That Mr. Mukherjee has not been able to find out any provision excepting section 447 of the Calcutta Municipal Act, 1951 to support his clients' case, amply demonstrates the fact that there exists no legal foundation for the claim of the petitioners. Next, Mr. Mukherjee argues that since the petitioners have been occupying the stalls in the respective hawkers' corners for some time, without any steps being taken by the Corporation a right has been created in favour of his clients, by estoppel. He argues that the Corporation was stopped from not being satisfied that there was any obstruction. This, in my opinion is a strange argument. Here, we have substantial structures being made, occupying a considerable portion of a public street or footpath, which obstructions have been effected without the slightest foundation of a legal right, and yet the Corporation is sought to be stopped from removing the obstructions, which is its legal obligation and which it is bound to do under the law. As I have held, the law enjoins upon the Corporation and the Commissioner, the statutory duty of removing obstructions from the footpath and public streets. If the Commissioner to the Corporation or the Corporation have not carried out their legal obligations so far, that can not create an estoppel against a statutory provision. The fact however is that the Corporation has been, to a certain extent, frustrated by the attitude taken by the police authorities, who have been declaring hawkers' corners and granting permissions which they have not the slightest legal right to do. The result is that large markets have sprung into existence, and the Corporation can not possibly remove these markets without the help of the police, which has so long not been forth-coming. A letter has been disclosed, as written by the Chief Minister of West Bengal, to the effect that the hawkers who do not fall under the Shops and Establishments Act may continue to enjoy the privileges of being hawkers with licenses. In my opinion, this establishes nothing. This does not grant to the hawkers the right to encroach on Corporation lands and to build unauthorised structures on public roads and pathways.
(3.) THE result is that the petitioners have failed to' establish even a prima facie right, to be in occupation of the so called "hawkers' Corners", situated on public streets and public footpaths of Calcutta. The appeal is really to our emotions and not to our intellect. If we are to be a progressive nation, we can not afford to permit our larger vision to be blurred by mere emotion. Nobody ever argues that displaced persons should not be rendered assistance. But no problem in history has ever been solved by creating another. This fair City of Calcutta was claimed out of the salt marshes by the British, and at one time it was the pride of India. It served for sometime as the Capital, and it had a pride-of-place, being called the "second City in the British Empire. " Macaulay described it with rapture as the "city of Palaces". But since then, we have fallen into sad times. Although this great city is the life-line of the State, we find it fit to bedeck her with filth and abomination, girdle her with impassable roads and footways and anoint her with open drains and festering garbage. It is mentioned in the petition that members of the public "have patronized these hawkers' corners and have raised no objection". As an argument, it is futile. For example, members of the public do at times patronize black-markets or do not hesitate to buy smuggled goods. It does not however establish that there is public approval for such illegal operations. In Matter No. 183 of 1959, advertisements were issued in the press, and members of the public joined in the application and in no uncertain manner condemned the unwarranted encroachments on public footpaths in Calcutta. I am well satisfied that this is the public verdict. Mr. Mukherjee lastly argued that we should at least have compassion, and these hawkers should have some time to vacate. I asked him whether his clients were prepared to give an undertaking to Court to vacate within a reasonable time, in which case I might be able to do something. His clients are unwilling to give any such undertaking. The law must therefore take its course. Nothing has been shown to my satisfaction to recall my previous order. The application is dismissed.;

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