1. These appeals are preferred against a common judgment rendered by Mr. Justice Padmanabhan in W. P. Nos. 1127 and 7078 of 1980, 1049 of 1981 and 2415 and 2416 of 1982 (Reported in AIR 1994 Mad 292). Writ Appeal No. 377 of 1983 is directed against W. P. No. 7078 of 1980, and W. A. Nos. 715 and 716 of 1984 are against W. P. No. 2146 of 1982 and WP No. 1127 of 1980. The writ petitions were filed by merchants who have their shops in Nethaji Subash Chandra Bose Road, Rattan Bazaar Road and Rang Nathan Street in Madras, and they have sought for issue of writs of Mandamus directing the respondents, i.e., the Commissioner of Corporation of Madras and the Commissioner of Police, Madras, to remove the obstructions and encroachments made by unauthorised hawkers in those roads. The learned Judge held that, by permitting hawkers to carry on trade on the pavements of these roads, the Commissioner of' Corporation 'has permitted an unauthorised obstruction or encroachment of public streets within the meaning of the Act, and consequently, they are bound to act according to law to remove the encroachments.' Hence when the merchants-petitioners have established their right for issue of a writ of mandamus respondents 1 and 2 were directed to act according to law and remove the obstructions on these public streets by removing the hawkers from the areas occupied by them in the respective roads. To implement this directive, respondents were granted 18 months' time to make amtentative arrangements, even though the hawkers cannot insist on alternative sites of their choice to be allotted. Further, the first respondent was also directed not to permit any more persons to encroach on these roads.
2. In these appeals, on behalf of the hawkers, Mr. K. V. Sankaran and Mr. K. N. Balasubramaniam submit that.
1. the enablement envisaged in S. 223(5) of the Madras City Municipal Corporation Act (Act IV of 1919) (hereinafter referred to as the Act), had been misunderstood and misapplied;
2. in the absence of a demand made on public authorities to discharge their duties, a Writ of Mandamus cannot issue;
3. for an alleged tort committed, the recourse could be only to a Civil Court and not to resort to remedy under Art. 226 of the Constitution of India;
4. the concepts of ingress and egress from every point of a private property on to the road and the right of public to use every inch of a road being antiquated notions and not suited to the requirements of Indian polity, the reliance placed on these concepts, rested on law obtaining in England, is erroneous:
5. the period of 18 months granted is unrelated to realities, since hawkers in Ranganathan street having come earlier to construction of shops, they have acquired' a customary right of such usage;
6. when Corporation of Madras, the first respondent had come forward with a proposal to regulate hawker trade in Nethaji Subash Chandra Bose Road (hereinafter called as Bose Road) and Rattan Bazar by drawing lots on 15-121980, it being a regulatory measure, at the instance of the writ petitioners. Such an arrangement cannot be set at naught.
3. Shop owners and merchants in Bose Road and Rattan Bazar Road claim that they have taken their shops on huge rents and spent considerable amounts in decorating them and that nearly 12,000 people are employed in these shops. The hawkers have occupied large areas in pavements and erected wooden platforms and thereby prevented free access to their shops. Certain shopkeepers filed W. P. No. 878 of 1979 through the Madras Merchants Chamber for issue of a Writ of Mandamus directing removal of hawkers, and on the Court being informed by first respondent that the pavements have been made free from encroachments by unauthorised hawkers, it was dismissed as infractuous, on 15-11-1979. Up to Sept. 1980, these two roads were free from encroachments. But from Oct. 1980 onwards they began to reappear, and now the pavements have been reoccupied. An announcement having been made that on 15-12-1980 first respondent had drawn lots for about 1301 hawkers to be allotted spaces in the pavements, and that each plot measures approximately 5ft. by 4.ft. they, I have come forward with the writ petitions. By this arrangement practically no, space would be available for pedestrian traffic, and that there would be no free access to their shops.
4. Shop-keepers in Ranaganathan Street stated that it is a prestigious business centre in Madras, where thousands of people converge and that these shops engage more than 700 people and their livelihood is also affected by hawkers practically occupying the entire road, thereby preventing free movement of pedestrians and flow of traffic. It is understood that first respondent had authorised a contractor to collect a fee of 25 paise every day from these hawkers, which is unlawful.
5. The first respondent had stated in the counter-affidavit that the Corporation is empowered under S - 223(5) of the Act to' lease the roadsides and street margins, which are vested in the corporation. Hence, it has the power to lease or license hawkers to carry on their business within the street margins, and roadsides. In Ranaganathan Street, the right having been formed out, hawkers have been permitted to sell vegetables and fruits during the period of 5 p.m. and 9 p.m. without hindrance to the main shop and stalls in the street. A nominal fee of 25 paise is collected from hawkers per day. As for second respondent no counter-affidavit was filed.
6. That apart, on behalf of hawkers, it is further claimed that right from the days of East India Company, in Bose Road and Rattan Bazar Road, hawkers have been carrying on trade, and that in or about 1952, to avoid police harassment, they were permitted to vend their wares on the pavements without hindrance to vehicular and pedestrian traffic, and that they have been paying a monthly rent ranging from Rs. 5/-per month to the Corporation. It was in 1979, in a frenzy of clearance and in mistaken notion of responsibilities, the Corporation removed them, giving alternative sites, but later on, on investigating the matter in depth, a decision having been taken to regulate this trade by allotting specific areas, they were allowed to reoccupy. Permission had been accorded on realisation that the pavement vendors are an essential part of the requirements of society, and on these vendors, nearly 8 to 10 thousand persons depend for their livelihood. As for Ranganathan Street, there being regulatory measures enforced, as contained in the agreements, executed by the contractors, it is not open to the shop-keepers to demand removal of the hawkers.
7. Before the learned Judge the following points were taken, they being that:
1. petitioners have no locus standi' to maintain the petitions, because they are not aggrieved persons
2. a Writ of Mandamus cannot issue in the absence of demand made on the public authorities ;
3. in the -absence of special damages proved, no relief could be granted ;
4. when alternative remedy is available by way of suit, on the plea of nuisance raised, writ petition is not maintainable;
5. in a public street, when any member of the public has a right to pass and repass and not to be on it, and having the right to use every inch of the public highway, with a right to enter from the private property at any point it touches the public street; the common law rights as obtaining in England and enforced in India, are applicable to the facts and circumstances of these cases.
Except for the last point, the other, points of objections taken by the hawkers, were rejected. Relief was granted based on common law rights and by reference to Ss. 2(20), 2(26), 203, 204, 220, 221, and 223 of the Act.
8. The relevant sections of the Madras City Municipal Corporation Act are; S: 2(20) 'Public Street' means any street, road, square, court, alley, passage or riding-path over which the public have a right of way, whether a thoroughfare or not and includes -
(a) the roadway over any public bridge or causeway,
(b) the footway attached to any such street, public bridge or causeway, and
(c) the drains attached to any such street, public bridge or causeway and land, whether covered or not by any pavement, veranda, or other structure, which lies on either side of the roadway up to the and street m
boundaries of the adjacent property, of the Act whether that property is private property or public property belonging to the Government.
S. 2(26). 'Street-alignment' means a line dividing the land comprised in and forming a part of a street from the adjoining land.
S. 223(5). The council shall have power to lease roadsides, and street margins vested in the corporation for occupation on such terms and conditions and for such period as it may fix.
9. On the first point :
Does not S. 223(5) enable the Corporation of Madras to lease the roadsides and street, margins, as it may,
Mr. P. Chidambaram, learned Counsel appearing for shop-keepers in Bose Road and Rattan Bazar, by referring to several portions of the judgment of the learned Judge, submits that, when the common law rights obtaining in England have found acceptance by, Indian Courts and in the light of the definition of 'public Street' under S. 2(20), both the sides of the roadway having been entirely paved in Bose Road, and Rattan Bazar Road, and there being no roadside or street margin available, there is no scope for applying S. 223(5), to the facts and circumstances of this case.
10. The learned judge holds that the following principles are applicable, they being, that every member of the public has got a right to pass and repass over a highway or a public street, and that right does not enable him to be on it except to the extent attributable to a reasonable and proper use of the highway; and this right extends to the whole width of the highway or the street, in other words, over every inch of it, and hence a member of the Public cannot be compelled to confine himself to a part of the street at the choice of another; and that the owner of the property adjacent to the public street has a right of access at any point at which property actually touches it. The learned Judge then holds: 'S. 223(5) of the Act are entirely different from public street or portion thereof. Therefore, the pavements on which the hawkers are carrying on their trade cannot grant any licence under S. 223(5) of the Act. Once it is held that the hawkers are carrying on their trade only in public street the further question that would arise is whether the hawkers can be allowed to continue their trading activities in such streets and what is the duty of the Corporation in the general public to use such public streets.'
On this reasoning the learned Judge held that first respondent had acted without jurisdiction in permitting hawkers to carry on their trade.
11. To understand the common law rights, reliance is placed on three passages in Halbury's Laws of England, Third edition, Volume 19, with particular reference to highways, and which have been extracted in the judgments. It is stated therein that every member of public has a right to use a highway for the appropriate kind of traffic, subject only to any restriction affecting all passengers alike and that public have a right to pass along it for pass along it for the purpose of legitimate travel, but not to be on it except to the
extent attributable to a reasonable and proper use of it. An owner of land adjoining it has a right to have access at any point at which his property touches it. 'When however, the interference is authorised by statute, I no action will lie and there will be no remedy, unless compensation is provided for by the statute'. Reliance is also made on passages in law of Torts by Salmond, 17th Edition, dealing with these rights, and it was also stated therein that 'this common law right is greatly cut down by statues.' Hence, the common law rights relied upon could no applicability, if the statute itself enables the concerned Council/authority to lease or license out any portion of a highway. The learned judge has proceeded on the basis that roadsides and street margins mentioned in S. 223(5) are entirely different from public streets or portions thereof, and that the pavements in question cannot be called as a roadside or street margin.
12. In Shorter Oxford English. Dictionary on Historical Principles, Third Edition, the meanings of the words 'Margin', 'Pavement', 'roadside', 'roadway', and 'street' are furnished as follows: -
'Margin. - That part of a surface which lies immediately within its boundary; an edge, border or brink.
Pavement: 1. A piece of paved work, a paved surface; the superficial covering of a floor, yard, street, etc., formed of stones bricks, tiles or, in later time, blocks of wood, fitted closely together; also an undivided surface of cement, concrete, asphalt, etc.
b. The paved part of a public thoroughfare; now only spec. the paved footway by the side of a street, as dist. from the roadway ME.
Roadside: 2. The side, or border, of the road; wayside.
Roadway. 1. A way used as a road; a highway.
2. The main or central portion of a road, esp. that used by vehicular traffic, in contrast to the side-paths.
Street. 2. A road in a town or village (comparatively wide, as opp, to a 'lane' or 'alley') running between two lines of houses or shops. Also, the road together with the adjacent houses. (As part of the proper name of a street, abbrev. St.) OE.'
13. Mr. P. Chidamabaram, learned Counsel for shopkeepers; by making pointed reference to the definition of word 'public street' in S. 2(20) submits that, when a footway and roadside, are separately dealt with as inclusive in a public street, and once the entirety of the sides of the roadway are paved, and called as pavement, such areas would not form part of roadsides or street margins, and therefore, all the hawkers must
be removed. In defining what is a 'public street' for the purposes of the Act, in its .inclusive definition, it is stated that it means any street, road, square, etc. over which the public have a right of way, whether as thoroughfare or not; and also includes a roadway over a public bridge, or cross-way ; a footway attached to any such street; and the drains attached to the street; and the land whether covered or not by any pavement which lies on either side of the roadway up to the boundaries of the adjacent private property or to the property belonging to State. It is necessary, to remember that though in cl. (c) the word pavement is used, in cl. (b), the expression is 'footway'. Footway means 'a path for passengers on foot'. Hence, there can be a footway earmarked by the authorities for use by passengers on foot, though not paved. Equally, whatever portion is paved, need not necessarily be the footway. Such of those categories mentioned in Cl.(c), would not form part of a footway. The word 'pavement' is, used only in the said clause with reference the land attached to a street, which may be covered or not covered by pavement, veranda, or other structures and which lies on either side of the roadway. Thus it is clear that whether a portion of a public street is paved or not is not the criteria for locating the footway. Which areas of a public street form the footways, has to be decided by the concerned authorities, it is an administrative decision to be taken by those in charge of public streets. Different categories of roads and streets are formed, dependent on~ requirements of the general public. A public, street is demarcated for different uses, taking note of ever so many factors pertaining to public needs. That is the reason why an inclusive definition is found under S. 2. (20).
14. Roads and streets may be formed in more than one manner. To mention some:
1. For its entire width, it is neither macadamised nor paved etc. and remains in the same condition as it was while pigmarked.
2. May be wholly tarred, without any formations.
3. The roadway alone is macadamised and tarred or concreted, leaving the sides as they are.
4. On the formation of the roadway, the entire area of both the sides are paved.
5. On either side close to the roadway, a certain width of land is earmarked for flower beds, benches etc. and beyond it, pavements are laid, close to the margins of the public street. (Bouleyards and promenades in New Delhi).
6. On either side of the roadway pavements are laid, and beyond them levelled vacant land lies, and still beyond this portion, drains are-located close to the margins of the public street.
7. There are also instances where in alongside the roadway on either side the drains are located and beyond them the pathway or pavement exists (in Pondicherry).
15. As to how and in what manner a public street has to be formed is an administrative decision, and in doing so, it is for the public authorities to earmark portions of a public street, to be used for different purposes, in public interest. The footway earmarked for the use of passengers on foot, need not necessarily be paved. Equally, merely because certain portions in a public street are paved, the entire paved area would not become a footway. S. 2(20)(c) contemplates paving of areas other than footway. An unpaved footway is preferred, to uneven pavements. Hence, out of the paved area it is for the public authority to decide as to which portions of it are earmarked for footways. Such decision taken could be modified, varied, altered or rescinded, from time to time, depending upon public needs. On a decision taken earmarking a portion of a public street as footway, such portions would not then come within the ambit of Cl. (c) of S. 2(20). A 'public street could exist, without any portion of it being earmarked as footway, but containing only a roadway and roadsides or street margins There is no provision made anywhere in the Act, compelling the formation of a footway. When the definition of 'public street', envisages so many categories o formation of public streets, and when Cl. (c) contemplates existence of roadsides and street margins as part of it; the conclusion of the learned Judge that 'road sides and street margins mentioned in S. 223(5) of the Act are entirely different from public streets or portions thereof', is erroneous. Any public street wherein no portion of it is earmarked as a 'footway' but a roadway alone is laid, leaving out on either side of it vacant portions, then they would be nothing but roadsides or street margins, as the case may be.
16. Mr. P. Chidambaram, the learned Counsel would still plead that roadsides and street margins cannot be earmarked close to the edges of the roadway, and that they could exist only alongside the private or State properties situate on the margins of the public street. None of the common law principles, nor any provisions made under any Act stipulate that no space could be left out between the roadway and footway. The space so left out, would come within S. 2(20)(c), and would be roadside. Boulevards are of this category.
17. It is interesting to note that in Halbury's Laws of England, Fourth Edition, Volume 21, at page 700, by reference to S. 5(2) of Highways Act, it is stated that the concerned Council can provide in any street in its area, on land abutting such streets, advertisement units, showcases, information boards and other similar structures and may let out any such structure on such terms and conditions as it deems fit. It has the power
to restrict the access of the public to any part of the street, but must not so exercise them as to prevent persons from entering the street at any place where they could enter it; to prevent the passage of the public along the street to prevent normal access to premises adjoining the street; and to obstruct use of vehicles, which is lawful. Hence in spite of the common law principles evolved; by statute, leasing out of portions of a street or road being contemplated under statute, it could be done even in England. Likewise in so far as City of Madras is concerned, a roadside or a street margin, which forms part of a public street, could be leased out under S. 223(5). They could never to treated as entirely different from public streets or portions thereof, as held by the learned Judge, as they could only fall within the ambit of Cl. (c) of S.2 (20). As contended by Mr. K. V. Sankaran, learned Counsel for the hawkers, the enablement under S. 223(5) has been misunderstood and misapplied.
18. On the Second point as to whether there is need for a prior demand-for issue of Writ of Mandamus, it is only consequent to first respondent not abiding by the stand taken in WP No. 878/79, which was dismissed on 15-11-1979, the need arose for immediately filing of the Writ petitions in 1981. It being a rule of practice, normally it has to be preceded by a demand and refusal. But under the circumstances of these cases, as pointed out by the learned Judge, by reference to the decisions cited before him; when first respondent proceeded to allot specific portions to various persons, the institution of the petitions, under such circumstances, was found to be justified. We are in entire agreement with the reasons given by the learned Judge, and hence, the writ petitions as filed are maintainable.
19. On the Third point, that, it being a tort and there being an alternative remedy, the writ petitions are not maintainable, no decision had been placed to substantiate this contention. here again, this point did not find favour before the learned Judge and, therefore, no reason exists to disagree with his conclusion thereon.
20. On the fourth point, as to whether a member of the public has got a right to pass and repass over the public street and over its whole width, in other words over every inch of it; the learned Judge, had rested more on common law principles and held that hawkers cannot stay on it. There is no arena of dispute that the entire public street vests under S. 203 in the Corporation of Madras. Reliance is placed on Municipal Board of Agra v. Sudarshan Das Shastri ILR (1915) All 9 : AIR 1914 All 341 which states that unmetalled portions on either side of metalled portion, will also form part of a public road or street. As for Anukul Chandra v. Dacca Dt. Board : AIR1928Cal485 , it also holds that the expression 'road' or 'highway' extends to the side lands as well. Yet another decision relied upon is Municipal Board v. Mahadeoji : 2SCR242 , wherein also it was held that the sidelands are ordinarily included in the streets, for they are necessary for the proper maintenance of the road, and that subject to the rights of the Municipality the public has the right to pass and repass on the highway, and that it can initiate action against trespassers though it may have a right only to manage and control the surface of the soil. It was held that Municipality cannot erect any structure on a public pathway, and hence installing of a statute being not necessary for the maintenance or user of the road as a public highway, it was an unauthorised act. In Movva Butchamma v. Venkateswara Rao. : AIR1969AP136 , it was held that the public have a right to pass and repass over every inch of the street, and it cannot, in any manner, be restricted. For this view, reliance was placed on a passage in Peacock's law relating to Easements in British India. The last of the decisions relied upon is Damodara V. Thirupurasundari : AIR1972Mad386 . It was held that adjoining owners of land abutting the highway have a right of access to it from any part of their premises. Mr. Chidambaram, learned Counsel for the shop owners, by referring to these decisions, submits that the legal principles found therein have not been assailed by appellants, and therefore, there is no substance in the claim that first respondent could earmark portions of pavements for hawkers. In the light of the definition of a 'public street' under S. 2(20), and in Cl. (c), roadsides and street margins having been contemplated, the, first three decisions relied upon do not in any manner lay down a principle different from what is contained in the said definition. They only add strength to the contention of the hawkers, that roadsides and street margins form part of a public street, and vest in the Corporation of Madras under S. 230, and in turn, read with S. 223(5) such portions can be leased out. But portions of a public street, which are covered by roadway or footway, would not come within the ambit of S. 223(5). Such portions, as pointed out by Supreme Court in Municipal Board v. Mahadeoji : 2SCR242 , are required for the maintenance or user of it as a road or public highway, and hence structures cannot be put upon them to cause hindrance to public. Being fully aware of how a public street is composed of, the right to lease out had been confined under the Act only for portions which are earmarked as roadsides or street margins. Hence, the proposal made in Dec. 1980, to earmark- portions of roadsides for hawkers, is in order.
21. The other point taken is that, a member of the public has the right to pass and repass over every inch of the street. This concept is subject to several restrictions that could be imposed. The definition of public street embraces within its f6ld not merely a footway but a roadway; the drains; that portion of the land which is either covered or not covered, by pavement; veranda or other structures; and' a riding-path etc., If the common law principle of right over every inch of a public street is accepted and implemented, in respect of a public street as defined under S. 2(20), a member of the public would claim that he has a right to walk in the roadway or over a flower bed or other structures erected by public authorities for regulating traffic in a public street. How is this concept of right over every inch is to be understood and enforced? In a public street, for the absolute need of public, authorities are duty bound to locate post boxes, fire hydrants with water tanks, milk 'booths, bus or jutka or cycle stands, rubbish bins and telephone booths, etc. etc. Areas covered by these public facilities form part of the public street. Hence subject to restrictions contemplated regarding user of these facilities, no member of the general public could claim that he has the right to trade -upon every inch of them. Apart from that, for public benefit, electricity fuse boxes are located, car parks, taxi or cycle stands are provided, in public streets. Here again, the right over each inch of them would be subject to certain restrictions. Apart from them, public conveniences, advertisement hoardings are also erected. Traffic roundabouts, display boards, are required for regulating vehicular traffic, and therefore, as to in what manner a public street could be enjoyed by general public -and which portions of it are to be earmarked for which manner of use, are administrative decisions. It would be preposterous to hold that the public have a right of movement over every inch of a public street, once formed, and 'that no restriction could be imposed, confining their rights to pass and repass, only along specified earmarked portions. Time restriction on nature of use is impossible. There are instances of streets being used exclusively as playgrounds during certain hours. As to which portion of a public street is to be treated as a footway or a roadside or a street margin, once decided upon, the right of the general public to use the public street, would depend upon the nature of use he may resort to subject to those reasonable restrictions. In Saghir Ahmad v. State of UP : 1SCR707 it -was held that according to English Law, which has been applied all along in India, a highway has its origin, apart from statute by dedication conferring a right of passage over it, but State only controls and regulates it, for the purpose of ensuring safety, peace, health and good morals of the public. Hence the concept of right over every inch of a public street, is not an untrammelled right but has to be necessarily regulated depending upon the nature of requirements of the general public. If structures are put upon a public street, as held in Municipal Board Y. Mahadeoji : 2SCR242 , they could be only for the necessary maintenance, or user of the street, but if the statute itself authorises leasing out of a portion of the public street, in a particular manner, then the concept of right over every inch is subject to the statutory directive.
22. Relying upon common law rights it is claimed that the public have a right to pass and repass but 'not-to be on it'. This concept would be applicable only to general public, and not to allottees, lessees or licensees who fall under S. 223(5). In Pyare Lal v. New Delhi Municipality : 3SCR747 reference is made to street trading being regulated by statutes in England and that nothing of the kind exists in India. Hence if a statutory provision is made to that effect, then this concept in common law cannot be applied. By an amending Act in 1961, S. 223(5) having been introduced the licensed hawkers can be on road sides and street margins to carry on their trade.
23. On the other point that a member of the public cannot be compelled to confine himself to a part of the street in the choice of another, here again, when several portions of a public street could be earmarked for utilisation for varied purposes depending on public requirements, it would lead to anomalies if such regulatory measures cannot be imposed for the use of a public street. Separate portions of it, could be delineated for different uses, and a pedestrian, cannot object to portions of a public street being put to use for different purposes thereby excluding his presence in certain portions of a public street. When the Act permits leasing out of certain portions of a public street, which would fall within the category of a roadside or a street margin, no exception could be taken to such user of a public street.
24. On the next point that the owner of a property- adjacent to a highway or a public street has got a right of access to any point of his property which actually touches it, this right is not unavailable to the shopkeepers. In a public street wherein no pavement is laid, and, no footway earmarked, there could be only a roadway and a roadside or street margin, as the case may be. In a public street, where pavements are erected, it is open to the authority to earmark a portion of the paved area as 'footway' (Sec. 2(20)(b)), and declare the other portions as failing within S. 2(20)(c), and the right to lease under S. 223(5) could be confined only to those portions of sec. 2(20)(c) and no other. A roadside or a street margin could be close to the roadway as happens in boulevards or promenades. Shop-keepers and residents in such areas expect the footway to be close to their properties and not close to the roadway. There is nothing to infer under S. 2(20) that the portions of a public street which fall under Cl. (c) therein cannot be located on either side of the roadway. By localising a roadside or a street margin, sandwiched between a roadway and a footway, in broad public streets, it helps the property owners 'bordering the public street, to have ingress and egress ever every inch of the public street. Their right to have ingress and egress to the public street is thereby assured. As for pedestrians, they have immediate access to the shops and houses etc. As already pointed out, merely b6cause, the roadside, is also paved, such portions would not automatically become footway within the scope of S. 2(20)(b). The criteria is not paving, but what is declared as reserved for footway. Hence, the right of ingress and egress from, every inch of the property is, not defeated by such an arrangement and hence the concept of right of use over every inch, is subject to regulatory measures that could be imposed by authorities, and as pointed out above.
25. On the fifth point that hawkers have acquired a customary right, it would not be improper to infer that as for Bose Road and Rattan Bazar Road, for several years, hawkers have been there but certainly not to the extent to which they are now found and considered to be a public nuisance. As for Ranganathan Street, Thyagaraya Nagar area, having come into existence under city improvement schemes, there is no scope for plea of customary rights. The carrying on of this trade, which is unauthorised, and no material having been placed except for general plea raised, in this proceeding, such a customary right pleaded cannot be upheld.
26. As for Ranganathan Street, Mr. K. N. Balasubraimanian, learned Counsel for hawkers, states that vegetable vendors were there in large numbers to cater to the needs of the commuters as they emerge, from electric trains in Mambalam Station, and only thereafter, the shop-keepers having located them in front of residential houses, they cannot now turn round and attempt to throwaway the hawkers who have acquired rights to carry on their trade. As far as Ranganathan Street is concerned, it is of a width of 30 feet and of a length of 1190 feet. First respondent would state that the right of hawking had been farmed out and as per the terms and conditions entered into between the contractor and the corporation; hawkers in vegetables are permitted only between 5 p.m. and 9 p.m. No pavement is laid. The width of the tarred portion had been extended almost to the entire width of the street-taking note of the hawker's requirements. Therefore, the existing condition of this road is quite different from what obtains in Bose Road or in Rattan Bazar Road. No footpath as such had been carved out. Hence, this is the public street wherein apart from the roadway on either side of it, the left out portions form ;street margins. Merely because the entire width of it or almost its width is tarred, it would not mean that there could be no street margin earmarked by the first respondent. It has the right to take, a decision as to what is the width of the roadway, the footway and the width of the roadside or street margin. S. 223(5) could then apply only to roadsides or street margins and not to other portions. In the concluding stages Mr. Balasubramaniam, the learned Counsel, referred to Vanderpant v. Mayfair Hotel Co. (1930) 1 Ch. 138 to claim that a private individual who seeks to restrain the obstruction of a public highway must prove that he has sustained a particular damage other than and beyond the general inconvenience and injuries suffered by the public. The existence of nuisance is one of degree arid depends upon the circumstances of each case. In East Fremantle Corporation v. Annois (1902) AC 213, the question involved was, as to whether the owner of a property, could make a grievance when the gradient of the road is reduced, and it was held that there ;As no remedy available, since none had been given by statute under such circumstances. In H. L. Shah v. Commr. of Police : 2SCR266 , it was held that the appropriate authority can impose reasonable regulations in order to ensure the safety and convenience of the people in the use of public highways, and such regulations are not inconsistent with the fundamental right of assembly. Holding of a meeting in a highway will not necessarily be illegal and it may be sanctioned by custom, or rest on permission, and there is a well-recognised right in India of taking, out processions on public thoroughfares as an incident of well understood right of,' user by the public. Hence, he pleads that, customary right of usage of a thoroughfare, is available in law, and hence, the vegetable vendors and other hawkers have acquired such a customary right in Ranganathan Street, and hence the shop-owners, who had come later on, cannot make a grievance against them.
27. Mr. Sampath Kumar, appearing for the shop-owners in. that street, submits that, on either side only nine feet of space is left out, and it is not covered by pavement, and the contractor who had taken on lease had virtually occupied the entirety of the road, and the so-called time regulation had never been practised and that neither of the respondents had taken any steps to regulate the hawker trade, which had virtually prevented the movement of vehicular traffic, and hence, there has been a total non-compliance of the provisions of the Act.
28. Arrangement or regulatory measure now obtaining in Ranganathan Street; I As stated above, there is no scope for accepting the plea of customary usage, particularly when first respondent points out that it, had farmed out the right of hawkers trade in the said street, fixing 25 paise per day per hawker. As for the plea that, only for a limited period of four hours between 5 p.m. and 9 p.m. hawker trade is permit, it is a deliberate false statement made by the Commissioner, to the full knowledge of every citizen in Madras. The agreement entered into for the period from 1-4-1979 to 31-3-1980 produced, shows that there is no limit prescribed regarding the number of hawkers. The areas to be occupied by them had not been demarcated. The purpose stated in the schedule is for the temporary vegetable stalls situated on the roadside margins in Ranganathan Street, T. Nagar, the fee for a stall is 0.25 paise per day.' Here again, to anybody's knowledge in the city, the hawkers are not restricted only to sell vegetables. No material is placed before Court as to what actions had been taken for contravention of the conditions by the contractor. Cl. (7) states that receipts have to be issued and accounts to be maintained, none of them placed before Court to prove that any regulatory measure of any extent carried but by first respondent. Cl. 8 states that the contractor shall not allow any articles except vegetables to be sold. Road portion is precluded from being used by hawkers. Cl. It confers power on Commissioner to regulate the arrangement of stalls and to prevent non-specified goods being sold. General public while reading the judgment would only react that the first respondent Commissioner of the Corporation had miserably failed to enforce many of the conditions of the agreement, and puts the general public to suffer nuisance beyond measure. Knowing quite well that by not earmarking the area and not limiting the number of hawkers, it would enable the contractor to make phenomenal profit to the detriment of public interest in permitting unlimited number of hawkers .to carry on multifarious trades which are not included in the schedule, and without any restriction of time limit whatsoever the unauthorised and illegal use of portions of this street is being perpetrated. The leasing out of the road margin, has to be so devised that right of ingress and egress from any point of the properties on the road margin of this public street, will have to be maintained to a reasonable width. Beyond this portion, and up to the roadway it would be a street margin, and the, earmarking of stalls therein will have to be carried out in such a manner that the
access to the shops and the house properties must be in alignment with the extent of the width of the permitted openings. This portion of street margin to be kept free up to the point of touching the roadway. Vehicular traffic in roadway may be regulated or prohibited during certain hours, but no portion of it can be leased out under S. 223(5). No footway having been earmarked, the rights which flow out of it would not be available in such a street. So long as, the agreement is confined only to hawking in vegetables during fixed hours, the terms and conditions as existing under the agreement have to be strictly enforced in public interest on or before 30-9-1984 by first respondent. As and when the conditions are varied depending upon such terms, they will have to be scrupulously adhered to and enforced by Commissioner from time to time.
29. As to what could be done after (lie existing agreement expires, it is held that first respondent has the right lo invoke S. 223(5); only over demarcated street margins in Ranganthan Street. In implementing it, care must be taken to allow a reasonable width alongside the boundaries of the properties on the outer margins of the street, so that the respectively owners would have the right of ingress and egress from every point of their properties, and also by providing clear out well demarcated access in alignment with the permitted openings, now existing, from each property up to the roadway. Lines to be drawn showing the edges of roadway. .As the present licence expires by April, 1985 and as time is required to decide as to what appropriate arrangements are to be enforced for utilisation of to be demarcated street margins by hawkers, time is granted till 1-7-1985, and to this extent a writ of Mandamus is issued directing respondents to remove other unauthorised hawkers by that date. This mandate is apart from what has to be done by 30-9-1984, as already stated.
30. Hawker Trade: It is claimed by shop-owners that this trade is a public, nuisance. Hawker trade, so long as it is regulated in a proper manner by concerned public authorities, could never be a public nuisance. Rather, general public by and large, are not only attracted by this type of trade, but look forward to i for more than one reason. Shorn of mounting overheads, which assume alarming proportions when goods are sold in sophisticated shops, the same type o goods are sold for reasonable prices with less percentage of, profit. Even traders and manufacturers look to hawker trade to dispose of their accumulated stocks, which they cannot sell, because either the design is not in vogue or the demand for such type of goods no longer exists, or due to rejection of goods by foreign buyers they could not be exported but still of good quality etc. Furthermore, when vegetables, fruits, flowers are required, general public invariably look forward to a hawker rather than go in for such stuff in shops, which are unreasonably expensive. The economic conditions of people is such, that they look forward to hawkers, who along could sell for lesser price, the type of goods carrying a quality which would suffice their needs and aspirations. Quite often the shop owner, before whose shop the hawker is trading, depends on him for clearance of his accumulated stock, for a small margin he may earn. Even a shop owner who complains about the existence of hawkers, as he returns home buys his other household requirements from these hawkers. In many leading cities in the world on certain days in a week, the vehicular traffic in the earmarked street is prohibited, and hawkers congregate, and public in large numbers gather to buy their requirements. Hence it is not as if this type of trade is found only in India. It could never be characterised as an illegal or unethical trade. Mainly because public authorities have failed to regulate their locations, it has resulted in a grievance being made by shop-owners, as if it is a trade that should be excluded. If regulatory measures, are introduced, bearing in mind the requirements of the public of free access, public hygiene, public safety and the like, they can also prosper and the general public thereby benefited. If specific plots are allotted and they are confined to those portions, there could be no conceivable objection for such a lawful trade to be carried out, particularly When it would provide an honest livelihood for those who have meagre capital but having a keen desire, to
carry on a trade. On regulatory measures introduced, it could never be a public nuisance. Hence, as on date, under the Act only in roadsides and street margins, which are so demarcated and declared by the first respondent, in public streets, S. 223(5) could be applied.
31. As for Subash Chandra Bose Road and Rattan Bazar Road, first respondent has the right to demarcate the road margins, adjoining the roadway, and lease out such portions, as it may deem fit. The footway of a width as required, once demarcated, taking note of the heavy movement of pedestrians, no portion of it can be leased out under S. 223(5). It is claimed by first respondent that the width of the footway is maintained at 2.5 metres right through. Records produced show that Pallavan Transport Corporation had assessed that during peak hours nearly 2670 vehicles, and 1500 cycles pass by, and that not less than 20,000 passengers are transported per hour along this stretch of road, and that nearly 6000 pedestrians cross the road at authorised and unauthorised places during peak hours. Hence, when the paramount duty of the two respondents herein is to take note of the minimal requirements of the general public, to pass and repass in these public streets freely, the width of the footway should be more than the width of the roadside that may be earmarked for hawker trade. Unless it is properly balanced, public resentment would continue. Wherever S. 223(5) is applied a precondition is imposed upon the first respondent to declare and clearly demarcate the area covered by roadsides or street margins. As far as these two roads are concerned, the footway could be easily demarcated by drawing a line in a different colour, as done in dividing the roadway with a yellow line, or by laying the footway portions with coloured slabs. The portions earmarked as roadside may even be slightly on a higher level, so that general public may know as to whether there is any infringement of their right of free movement in the footway allotted to them. The location of footway alongside the shops, enables the shop-owners and their customers to have the right of ingress and egress from their properly al every point, and also extends free movement for their customers, once they emerge on to the footway. This is all they could secure, whether the right claimed is under common law or under the Act, as it stands now.
32. One other contention taken is that, the hawkers in these two roads have been permitted by first respondent to carry on this trade for several years, and that they have been paying a. monthly rent ranging
five rupees to the Corporation, and hence they have acquired vested rights. Learned counsel for the Corporation, would state that, to this day, no amount had been collected from any of the hawkers and Commissioner in counter-affidavit does not admit this claim. Only when the proposed scheme is implemented, it would collect lease amount. When the hawkers have not paid first respondent even a single paisa to this day, they cannot claim that they have acquired any rights to stay on, in the property vested in it. Records produced go to show that more than 1500 hawkers are occupying in these two roads alone extensive portions of the property vesting in corporation, but no revenue is derived by it. When public properties are utilised by a section of the people, the general public have a right to derive income from such users. In Ranganathan Street, for the year 1-4-1979 to 31-3-1980 the licence amount for the whole year is Rs. 18,200/-. When unauthorised use of public property exists, any section of the public have the, right to compel the public authority to enforce regulatory measures. Commissioner of Corporation, with knowledge of what is going on, had allowed sizable amounts of revenue to be forgone for years together. To avoid loss
of revenue to public, the proper course is to regulate by allotting plots only in roadside or street margin areas in the City. In roads, to avoid unimpressive stalls being put up, design and dimensional specifications of dismantalable stalls can be prescribed, so that uniformity sets in right through the roads, and hygienic surroundings are developed, and public streets are properly maintained.
33. Hence, in so far as Subhash Chandra Bose Road and Rattan Bazar Road are concerned, first respondent is granted time till 31-12-1984 for implementing the decision already taken to allot stalls for hawkers, gearing in mind the extent to which alone, it could do under S. 223(5) of the Act i.e., only within demarcated road-sides and definitely not in roadways and footways, In the light of what have been stated above, W. A. No. 377 of 1983 is allowed and W.A. Nos. 715 and 716 of 1984 are allowed to the limited extent as indicated above no costs.
34. A carbon copy of this order is handed over to Counsel for respondent Govt. today in Court-Hall.
35. Order accordingly.