1. The Petitioners belong to a relatively affluent section of the society. Petitioner No. 1 is a doctor and runs Dhanlaxmi Urological Hospital in the locality of Juna Wadaj area of city of Ahmedabad. One of the petitioners is a Trustee of a public trust known as Mahirachand. S. Raheja (Radhaswamiwala) Social Centre. All the petitioners reside and/or carry on their occupation in the locality of Juna Wadaj. The petitioners have averred that they are suffering special damage on account of the alleged nuisance caused by hawkers, hutment dwellers and others. However, the petition has a camouflage of public interest litigation in as much as the petitioners claim the relief by which all the residents of the locality may be benefited. In substance, the petition provides an illustration as to how the concept of 'Public interest litigation' can be twisted, distorted and then misused so as to deprive the numerous citizens of their right to exist.
2. By this petition, the petitioners pray that the nuisance caused on account of encroachment on the public street by hawkers, petty traders and other businessmen be directed to be removed and abated by the respondent-Municipal Corporation. It is further prayed that the nuisance on account of emission of smoke, passing of urine on public street by the hutment dwellers who are residing in this area, be also directed to be removed and abated. The petitioners further pray that the effluent water of the gutter overflows in the open. This causes serious traffic problems and as it emits foul odour, it causes considerable difficulties and renders the life of the persons residing in the locality quite uncomfortable and this type of nuisance should also be directed to be removed. It is contended that it is the obligatory, duty of the Municipal Corporation under S. 63 of the Bombay Provincial Municipal Corporation Act (hereinafter referred to as 'the Act') to take measures to see that the encroachment be removed and nuisance which is being caused to the petitioners and other residents of the area be also removed and abated and the locality be kept clean and in hygienic condition. The petitioners also rely upon the provisions of S. 231 of the Act and submit that the powers conferred upon the municipal authorities under S. 231 are the powers coupled with duty and the duty is cast under S. 63 of the Act to perform certain obligatory functions. If the Municipal Corporation fails to perform its duties, so runs the argument, this Court should direct the respondent-Municipal Corporation by a writ of mandamus to perform its obligatory duties irrespective of the humanitarian considerations and consequences to the poor people residing in the area.
3. The petition is liable to be rejected firstly on the ground that necessary parties directly to be affected are not joined in the petition. There is an allegation of encroachment on public street by the traders, hawkers and some businessmen as well as by hutment-dwellers. According to the petitioners, if the encroachment is removed and they are directed to conduct themselves in a particular fashion, the nuisance will be removed and the Municipal Corporation should be directed to take this step. If the prayer made in the petition is granted, the persons to be affected by the act would be persons who are alleged to have encroached upon public land. These persons are not parties before this Court. In above view of the matter and also for the following reasons the petition cannot be entertained; (1) As to whether there is encroachment or not is a question of fact and it is difficult to ascertain in a petition under Art. 226, of the Constitution as to who has caused encroachment. This cannot be determined without recording evidence and without allowing the parties to lead evidence. Normally this Court would not adopt this course in a petition under Art. 226. (2). The persons who are alleged to have made encroachment and who are alleged to be residing in hutments are not parties in this petition. Without hearing them no order which may adversely affect them can be passed. It may be that they may not have encroached upon public land and they might be residing on a private land which may be open, or they might be residing on public land for a number of years which might have ripened into a right to lawful possession and ownership. These are questions of fact which cannot be decided by affidavits and in absence of parties who are alleged to have made such illegal encroachment.
4. As far as obligatory duty of the Municipal Corporation is concerned and the contention that the humanitarian consideration should not weigh with the Court while deciding the legal issue, I am afraid, the argument cannot be accepted. The persons who are alleged to have made encroachment on public street and who are doing their business by selling eatables or by carrying on repairing work and the persons who are residing in hutments are also the citizens of this country, In fact, they constitute a major section of our population. They are also entitled to right to live and right to exist and they also can claim the protection of fundamental rights. While interpreting laws and implementing the laws or giving direction to implement laws, the Court cannot be oblivious of the constitutional mandate given in Part IV of the Constitution. Nobody carries on business on road or on pavement in unsecured position by his choice. No one would like to remain at the mercy of policemen and at the mercy of municipal employees. It is the socio-economic condition of the country that in big cities considerable population is forced to live in this condition and is forced to earn livelihood by putting hard labour in unsecured position. It may be public street and/or it may be an open land belonging to somebody else. It is in respect of these persons that constitutional mandate is given in Art. 38 of the Constitution which reads as under: -
'38. State to secure a social order for the promotion of welfare of the people. - (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social economic and political, shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimise the inequalities income, and endeavour to eliminate inequalities in status facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.'
It is the duty of the State to promote welfare of the people so as to secure as effectively as it may, a social order in which justice social, economic and political, is involved. The Court, which cannot promote welfare measures, would be extremely slow and reluctant to pass any order by which the normal condition of the poor people which is not better than animal existence is further worsened. If the Court does so, the Court would be doing something against the mandate of the Constitution, Law cannot be implemented or no authority acting under the statute can be directed to act in such a way that it acts against the socio-economic interest of the people and adversely affects their rights to exist.
5. Reference may also be made to the provisions of Art. 39A of the Constitution which directs the State to secure the operation of the legal system so as to promote justice on the basis of equal opportunity. Justice can be promoted not by passing certain directions by which the socio-economic condition of the poorer persons of the society is further deteriorated.
6. It is true that if the averments made in the petition are correct, the same may cause some hardship to the locality. But on that count the remedy is not by way of petition under Art. 226 of the Constitution. It would be better if an opinion is created and the executive authorities who are charged with the duty to look after the welfare of the people and who are charged with other duties, determine the order of priority and be conscious of the fact that there are degrading conditions and their lot requires to be immediately improved. The remedy lies in making the concerned authorities conscious about these facts and forcing them to take measures for uplifting the level of economic standard of the poor people and for making alternative arrangement for them. Unless it is shown that there are circumstances and there are resources for making provision for the better living of the hutment-dwellers and the authority concerned, in this case Municipal Corporation, is intentionally not sparing the resources for the development of the poorer section of the society, and the funds at the disposal of the Municipal Corporation are being squandered away in some other unnecessary and useless activity, no purpose would be served by calling upon the Municipal Corporation to take action which would definitely harm to lot of the poor.
7. The decision of the Supreme Court in the case of Ratlam Municipality v. Vardhichand reported in AIR 1980 SC 1622 has no application to the facts and circumstances of this case. In that case the Municipality did not take measures to abate the nuisance caused in a locality due to existence of open drains, pits and public excretion by hutment dwellers for want of lavatories. The Municipal Council pleaded the insufficiency of funds. The Supreme Court held that in such cases, insufficiency of funds is no justification for inaction by the Municipal Council. There was no question of conflict between fundamental rights of numerous citizens (i.e. right to life and right to exist in at least sub-human conditions) and the statutory right of another section of citizens to get the 'nuisance' abated so that they can live comfortably in a clean atmosphere. In the instance case if the prayer as sought for is granted, it would affect the fundamental right of the citizens to live. Therefore, reliance on this decision of the Supreme Court is of no help to the petitioners.
8. In view of the above, the petition is rejected with no order as to costs. Notice discharged.
9. Petition dismissed.