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Footpath Khyudra Byabasai Sangha Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Judge
Reported in108(2009)CLT241
AppellantFootpath Khyudra Byabasai Sangha
RespondentState of Orissa and ors.
Cases ReferredOrissa and Ors. v. State of Orissa and Ors.
Excerpt:
.....that law is well settled that a person who is in occupation of the land belonging to government or municipal corporation can be evicted from the land only after following the procedure established by law. the opposite parties evicted/demolished those footpath shops and cabins without giving notice and without adopting any procedure enshrined in the act 1950. the team accompanying the demolition squad looted the articles of those poor shopkeepers making them to suffer tragically. 3. learned counsel appearing on behalf of the petitioner vehemently argued that similarly situated footpath vendors of different groups like the petitioners' society are being rehabilitated by allotment of vending zone in different places at janpath and rajpath, bhubaneswar. section 407 gives power to the..........turned down the request of the petitioner for constructing the kiosk in question over the case land. bhubaneswar municipal corporation is a nodal agency for maintenance of public road and orissa municipal corporation act empowers bhubaneswar municipal corporation under section 407 to evict encroachers from the public roads. the case land being a part of the public road is subject to action by bhubaneswar municipal corporation and g.a. department is not required to handover such land to the bhubaneswar municipal corporation for eviction of unauthorized encroachers over the same. thus, the petition is liable to be dismissed.5. we have considered the rival submissions made by the learned counsel for the parties and perused the records.6. the facts which are not in dispute are that the.....
Judgment:

B.N. Mahapatra, J.

1. This Writ Petition has been filed by the Petitioner, a registered society, seeking for a direction to Opposite Party Nos. 1, 2, 3, 4 & 6 for rehabilitation of the members of the Petitioner-society by declaring plot Nos. 288, 238 & 340 corresponding to Khata No. 357 of Mouza: Bapuji Nagar, Bhubaneswar as vending zone or for allotting any other plot as vending zone in the larger interest of the members of the Petitioner society.

2. The facts and circumstances giving rise to the present Writ Petition are that the Petitioner is a registered society formed by the small shopkeepers/traders who were carrying on business on the vacant land situated between the government quarters and the footpath at Bhubaneswar from Rajmahal Square to Unit-I market area. They were earning their livelihood by putting up small shops at the right side vacant land since 1970. Bhubaneswar Municipality which was there prior to formation of Bhubaneswar Municipal Corporation used to collect fees from those footpath shopkeepers and cabin owners every day at the rate of Rs.1 per shop since 1983 in accordance with Section 307 of the Orissa Municipal Act, 1950 (hereinafter referred to as 'Act 1950).

There were 161 shopkeepers dealing in readymade garments, small betel shops, plastic goods shops, leather bag shops and other daily utility shops, plastic toyshops etc. Prior to filing of the present petition, the Petitioner- society apprehending illegal, arbitrary and unauthorized action of Opposite Parties filed W.R(C) No. 5862 of 2004 in this Court. By Order Dated 28.05.2005 in Misc. Case No. 5951 of 2004 this Court was pleased to pass stay order injuncting Opposite Parties not to evict the members of Petitioner-society from said plots. Even prior to filing of W.P.(C) No. 5862 of 2004, the Petitioner-society had moved this Court by filing a Writ Petition being OJ.C. No. 1228 of 1996. The said Writ Petition was disposed of on 16.02.2004 wherein this Court observed that law is well settled that a person who is in occupation of the land belonging to Government or Municipal Corporation can be evicted from the land only after following the procedure established by law. This Court further observed that the society can approach the Bhubaneswar Municipal Corporation for construction of kiosks and the latter would allow the members of the petitioner society to carry on their business on payment of consideration and fee for such kiosks. After disposal of the Writ Petition, the Petitioner society made a representation to the Mayor of Bhubaneswar Municipal Corporation to rehabilitate the members of the Petitioner-society in the vacant land where they were carrying on their business. Petitioner-society also approached this Court in W.P.(C) No. 12555 of 2004, which was disposed of on 20.11.2004 with a direction to the members.of the society to make representation before the appropriate authority within fifteen days for rehabilitation and the appropriate authority was directed to dispose of the representation within one month in the event they filed such representation. Pursuant to said order passed in W.P.(C) No. 12555 of 2004, the Secretary of the Petitioner-society made representation to the authority on 26.11.2004. The members of the Petitioner-society made joint representation to the Secretary, General Administration Department, Director of Estate and the Hon'ble Chief Minister of Orissa on 06.12.2004. Thereafter, the Petitioner-society also made another representation wherein, it was brought to the notice of the General Administration Department that since the General Administration Department had already allotted/leased out different spaces on different plots including plots where the members of the Petitioner-society were carrying on their business to other similarly situated shopkeepers, there was no impediment to lease out spaces acquired by the members of the Petitioner-society on plot Nos. 288, 238 & 340. The representation of the Petitioner-society dated 26.11.2004 made in pursuance of order of this Court passed in W.P.(C) No. 12555 of 2004 was disposed of by the Special Secretary to Government in General Administration Department vide Order Dated 27.12.2004 wherein the Petitioner's request was turned down as regards rehabilitation of the members of petitioner-society in the case land where they were carrying on their business. Thereafter, the Petitioner filed Writ Petition bearing W.P.(C) No. 339 of 2005.This Court vide order dated 07.02.2005 directed the Learned Addl. Government Advocate to obtain all necessary instructions/papers and place the same before the Court and further directed that till then status quo as on that date with regard to possession of the land in dispute shall be maintained by the parties. This order had been extended from time to time. The grievance of the Petitioner society is that when the stay Orders Dated 07.02.2005 and 14.02.2005 were in force, Opposite Parties 3 and 5 in clear violation of the order of this Court on 24.02.2008 forcibly demolished the structures and evicted the members of the Petitioner-society from the plots where they were having their shops. The Opposite Parties evicted/demolished those footpath shops and cabins without giving notice and without adopting any procedure enshrined in the Act 1950. The team accompanying the demolition squad looted the articles of those poor shopkeepers making them to suffer tragically. Hence, the Writ Petition.

3. Learned Counsel appearing on behalf of the Petitioner vehemently argued that similarly situated footpath vendors of different groups like the Petitioners' society are being rehabilitated by allotment of vending zone in different places at Janpath and Rajpath, Bhubaneswar. But, the case of the members of the Petitioner-society who stated oh the same footing to that of the other vendors, who are rehabilitated by way of providing vending zone, is not considered so far. Even though between Rajmahal Square and A.G. Square different vending zones were allotted, the Petitioner-society was evicted from the earlier place of vending in between Rajmahal Square and Unit-l market. It was also submitted that this Court while disposing of W.P.(C) No. 6483 of 1995 filed by Bapuji Nagar Khyudra Bayabasi Sangha on 09.08.1996 had directed to rehabilitate the small shopkeepers by building kiosks. Learned Counsel further suggested some alternative places where the members of the Petitioner society could be allotted vending zone. It was also argued that for the last twenty-five years, the members of the Petitioner-society had been carrying on business near the footpath, but they did not squat on the footpath causing inconvenience to the pedestrians or the traffic. The Orissa Municipal Corporation Act, 2003 came into force on 11.2.2003. Chapter XVIII of the said Act makes provision for regulation of streets. Section 407 gives power to the Commissioner to remove anything that is erected or set up on or upon or over any street or any open channel, drain or well or tank. Section 408 of the said Act requires the Commissioner to give a written notice to the owner-or occupier of any premises, wall, fence, rail, post step, booth or other structure or fixture to remove such wall, post, and fence. If the structure has been lawfully erected or set up, compensation shall be paid by the Commissioner to every person who sustains loss or damage by such removal or alteration thereof.

4. Learned Counsel for the State vehemently argued that in OJC No. 1228 of 1996 this Court vide order dated 16.2.2004 inter alia held that there is no right as such vested in the members of the Petitioner-society to continue to occupy any land belonging to the Government or the Municipal Corporation. The members of the Petitioner-society also cannot insist that so long they have not been rehabilitated in the kiosk built by the Opposite Parties they cannot be evicted from the case land. However, the Petitioner-society is always free to approach Bhubaneswar Municipal Corporation-Opposite Party No. 2 for construction of kiosk and for allowing the members of the Petitioner-society to carry on their business on payment of required consideration/ fee for such kiosk. This Court disposed of W.P.(C) No. 5862 of 2004 with the observation that since the matter in dispute had already been adjudicated in the Writ Petition bearing OJC No. 1228 of 1996, this Court did not propose to pass any further order and accordingly dismissed the Writ Petition along with Misc. Case.

It was also argued that the Petitioner has no locus standi to file the present Writ Petition for the fourth time on the self-same issue invoking extraordinary jurisdiction abusing the process of the Court and, therefore, the Petitioner is not entitled to get any relief in the present Writ Petition. The case land is the busiest road and thousands of public using it for day-to-day movements. Rehabilitation of the members of the Petitioner-society by providing vending zone will seriously jeopardize the interest of the public by creating traffic hazards to the pedestrians. Creation of vending zone and rehabilitation of the venders are being done by Bhubaneswar Municipal Corporation. The alleged fee/daily mahasul collected by the Bhubaneswar Municipal Corporation does not confer any right, title or interest on the members of the Petitioner-society over the case land. The same also does not entitle them to encroach public road thereby causing immense hardship to the public. Learned Counsel seriously challenged the allegation of looting of articles of the shopkeepers by the demolition squad and contended that the said allegation is nothing but concoction of facts as the demolition works were carried on with tne help of police officers of the concerned police station. The case land pertaining to plot Nos. 338 and 340 is Government land coming within 200ft. Master Plan Road (Rajpath) leads from Rajmahal Square to Raj Bhawan Square. The southern side of Hal plot No. 338 (excluding the area utilized for Rajpath) is part of that 200ft, Master Plan Road known as 'Janpath' running from Sisubhawan to Vani Vihar Square via Rajmahal and Master Canteen Square and it is the busiest road and thousands of city dwellers are using that road for their day today movements. The quantum of traffic is increasing day by day and expansion of the road in question is essential to accommodate the present day demand. It was further contended that Opposite Party No. 7 while disposing of the application of the Petitioner-society has taken into consideration all aspects of public utility and inconvenience caused to public over the case land and has rightly turned down the request of the Petitioner for constructing the kiosk in question over the case land. Bhubaneswar Municipal Corporation is a nodal agency for maintenance of public road and Orissa Municipal Corporation Act empowers Bhubaneswar Municipal Corporation under Section 407 to evict encroachers from the public roads. The case land being a part of the public road is subject to action by Bhubaneswar Municipal Corporation and G.A. Department is not required to handover such land to the Bhubaneswar Municipal Corporation for eviction of unauthorized encroachers over the same. Thus, the petition is liable to be dismissed.

5. We have considered the rival submissions made by the Learned Counsel for the parties and perused the records.

6. The facts which are not in dispute are that the members of the Petitioner-society have never been granted any permission by any authority under any statute to carry on their business in the case land. They, have been approaching tnis Court by way of filing repeated Writ Petitions on the self-same issue.

While disposing of W.P.(C) No. 12555 of 2004 this'Court directed the members of the society to make representation before the appropriate authority within fifteen daysfor rehabilitation and the appropriate authority was directed to dispose of the representation within one month in the event of filing of such representation. Pursuant to the said order, the Petitioner-society made representations to different authorities including the Secretary, General Adrninistra'tion Department and Director of Estates.' The said representation was disposed by the Special Secretary to the Government In General Administration Department wherein it was stated that unauthori-zed encroachments, are liable to be evicted under the Public Premises (Eviction of Unauthorized Occupants) Act, 1972. In the said order it was further.stated that as the plots in question are used by thousands dwellers and those are busiest roads for which the Petitioner's request for rehabilitation of the members by constructing kiosks over the said land cannot be considered as that would seriously jeopardize public interest by creating traffic hazards and.inconvenience to the pedestrians. Thereafter the Petitioner-society also approached this Court by way of filing Writ Petitions.

7. Now the question which falls for consideration by this Court is as to whether the Petitioner-society has any legal right which has been infringed by the Opposite Parties and the. same can be enforced through the Writ Court. At this stage, it may be relevant to refer some of the Judgments rendered by.the Hon'ble Supreme Court on this subject.

8. Law is well settled that only legally protected right can be enforced through Court. The existence of such right is the condition precedent to invoke the Writ jurisdiction. The Apex Court in State of Orissa v. Madan Gopal Rungta : AIR (39) 1952 SC 12, held:

The Issuing of writs or directions by the High Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Article.

A Constitution Bench of the Supreme Court in Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal and Ors. : AIR 1962 SC 1044 held as under:

The article in terms does not, describe the classes of persons entitled to apply there under; but is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. In State of Orissa v. Madan Gopal Rungt'a : AIR 1952 SC 12, this Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Article 226 of the .Constitution. In Chiranjit Lai Chowdhuri v. Union of India AIR 1951 SC 41, it has been held by this Court that the legal right that can be enforced... .must ordinarily be the right of the Petitioner himself who complains of infarction of such right and approaches the court for relief. The question, therefore, is whether in the present case the Petitioner has a legal right and whether it has been infringed by the contesting Respondents.

The Hon'ble Supreme Court in the case of Jasbhai Motibhai Desasi v. Roshan Kumar, Haji Bashir Ahmed and Ors. : AIR 1976 SC 578 held:

In order to have the locus standi to invoke, certiorari jurisdiction, the petitioner should be an 'aggrieved person'. The expression 'aggrieved person' denotes an elastic, and, to an extent, an exclusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged; the specific circumstances of the case, the nature and extent of the Petitioner's interest, and the nature and extent of the prejudice or injury suffered by him.

In Milk Producers Association, Orissa and Ors. v. State of Orissa and Ors. : (2006) 3 SCC 229 while dealing with same situation in Bhubaneswar itself, the Apex Court repelled the case of promissory estoppel given to similarly situated persons and held that the question of promissory estoppel in such a case does not arise.The Apex Court held that the rank trespassers cannot claim the right of rehabilitation. The Court observed as under:

There does not exist any legal concept which confers a legal right upon an encroacher to be rehabilitated. The matter may be different where the State comes out with a policy decision which meets the constitutional scheme as envisaged under Article 162 of the Constitution. In the instant case, we have noticed that the Appellants have failed to show existence of any such scheme, which can be said to be irretrievable in nature. In view of the 2003 Act, even the doctrine of promissory estoppel will have no application.

9. Needless to say that writ is issued only to advance cause of justice. The Writ Court cannot thwart the cause of justice. An aggrieved person who suffered legal injury can only approach the Writ Court for equitable relief and the Court can only enforce a legal right.

10. If the instant case is examined in the light of the aforesaid legal proposition, we have no hesitation to hold that the members of the Petitioner-society have-no legally protected right which can be enforced through a Writ Court.

11. However, before parting with this case, we deem it appropriate to observe that the Petitioner in paragraph-21 of the Writ Petition suggested location of different places where the members of the society can be allotted vending zones. They are as under:

(a) The place where earlier the members were vending in between Rajmahal Square and Unit-I Market;

(b) The vacant place by the side of newly settled vending zone 'Mahavir Market' near Rajmahal Square;

(c) The vacant places nearby Old Bus stand, Unit-II;

(d) Back side of Unit-I Market (internal road) near Kasturba Nari Mahal;

(e) Any other place as per the consideration of the Opp. Parties; While considering the representation, the Special secretary to Government in General Administration Department assigning valid reasons has rejected the Petitioner's claim for rehabilitation over the case land where earlier the members were vending in between Rajmahal Square and Unit-1. Market. However, the Petitioner's prayer for rehabilitation in any other alternative place mentioned hereinabove has not been considered by the said authority. We, therefore, dispose of this Writ Petition with a request to the Opposite Parties to consider the Petitioners' claim for rehabilitation in any alternative place mentioned hereinabove, if possible. We make such a request only because the Opposite Parties have already rehabilitated other footpath vendors of different group by allotment of vending zones at different places of Rajmahal and Janpath in Bhubaneswar. However, we make it clear that this request will not be treated as a direction to the Opposite Parties by this Court.

12. With the aforesaid observation the Writ Petition is disposed of. No costs.

MR. I.M. Quddusi, ACJ.

I agree.


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