Decided on December 03,1996



- (1.)Heard the submissions of the learned Senior Counsel for the petitioners, Mr. Ajit Kumar Panja, learned Advocate General for the State of West Bengal and the learned Senior Counsel for the Calcutta Municipal Corporation, Mr. Anindya Mitra.
(2.)This is a petition by the Association for South Calcutta Hawkers Union and individual persons being petitioners Nos. 2 to 13 alleging, inter alia, that they are the hawkers carrying on their trade or business on the pavements of Rash Behari Avenue and Gariahat Road, South Calcutta, by setting up stalls and according to the writ petitioners they have fundamental rights under Article 19(1)(g) of the Constitution of India to carry out such trade and that as they have come to do their trade sometime before the year 1980 still they have a legitimate expectation that they would be allowed to do so and that as they have been allowed to do so the principle of promissory estoppel will come into play. While developing the points, Mr. Panja also invited my attention regarding the Committee set up for the purpose to go into the question of rehabilitation and the question of right of the hawkers and the Committee as framed has submitted its report as in Annexure ' C ' to the writ petition. Mr. Panja ventilated the grievances that in terms of the recommendation as made by the Committee the Government till now has not done anything and his whole grievance is that till the Government comes up with some concrete proposal regarding the Settlement or rehabilitation of the hawkers, as alleged by Mr. Panja, the petitioners should not be evicted from the zone, as has been mentioned earlier, namely, the pavements of Rash Behari Avenue and Gariahat Road at South Calcutta
(3.)The first objection that has been taken by the learned Advocate-General is that though it has been claimed by the petitioners that they are hawkers from the petition itself, as appearing in paragraph 4(a) of the writ petition, they are stall holders and not hawkers, because it is admitted by them that they have set up stalls regarding different trades and business. So, the judgments which have been relied upon by Mr. Panja have no mode and manner of application in this case. It will be pertinent here to refer to those decisions as referred to by Mr. Panja, to wit, (1) Sadam Singh v. New Delhi Municipal Committee, reported in AIR 1989 SC 1988 (2) Saudan Singh v. N. D. M. C. reported in AIR 1992 SC 1153, and (3) Rambharosa Singh v. Govt. of the State of Bihar reported in AIR 1953 Pat 370. The last decision relates to promissory estoppel by acquiescence. In an unreported decision in the case of Ballygunge Hawkers Association v.The State of West Bengal a single Bench of this Court on 22nd Nov. 1996, held, inter alia, that the stall holders in Gariahat Road, at Ballygunge Railway Station. Basantidevi college and on the other side shop of 'My Club 'and the Golpark to Ballygunge New market are rank trespassers. So the question of acquiescence does not come in and that decision still holds on that decision has not been appealed against. Sitting in the coordinate jurisdiction it will be against all norms and judicial discipline to differ with the said view as that judgment has not been appealed against. So, in my view, the decision in the Rambharosa Singh's case (AIR 1953 Pat 370) (supra) has no mode and manner of application in the instant case. The other point that was canvassed before me by Mr. Pania is that the principle of estoppel and legitimate expectation. I fail to understand what is the legitimate expectation in this case. To prolong and continue with all illegal and unauthorised act is that the legitimate expectations by operation of that sort of legitimate expectation the entire state of affairs will go into the doldrums. The public has a right of thoroughfare and also has a right to use the pavements which are made for the public. That right cannot be curtailed or abridged. The public is using that thoroughfare and particularly, the residents of Calcutta are using their thoroughfare being maintained by the Corporation at their cost by payment to taxes. So, that creates a right in their favour of and that right cannot be curtailed or abridged unless the 2 public is taken to contest the petition as a whole and for that there should have been a notice given as contemplated under Order 1, Rule 8 of the Code of Civil Procedure, or for that, by a public notification. But that has not been done. In this case I may refer to Annexure 'C' to the writ petition, wherefrom it appears that at least two persons, being the learned Advocates of this Court, made their objections regarding using of the pavements by the stall holders impeding their free movement. They have not been made parties in this ease. No one knows what is their grievance. There is nothing on record to show that by any forum they have been given any hearing. The matter cannot be decided behind their back. At one point of time an objection was raised by Mr. Panja that none of the hawkers and / or petitioners can be evicted, even a trespasser, without due process of law. That is the settled law of the land. The petitioners have come before this Court to protect themselves from eviction.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.