1. These writ petitions give rise to certain interesting questions of law. The petitioners in W. P. 1127 of 1980 and W. P. 2415 and 2116 of 1982 are merchants and they have their shops in Ranganathan St. T. Nagar, Madras. They have prayed for the issue of a writ of Mandamus directing respondents 1 to 3 to act according to law in removing the hawkers and pedlars from Ranganathan Street, Madras 17 and also the pavements and kerbs therein and to render them absolutely free from obstruction for vehicles and pedestrians from access to the petitioners, shops. Respondents 4 and 5 have been impleaded as additional respondents. The 4th respondent is the President of the Anna Sirukadai Viyabarigal Sangam.
2. The petitioners in W. P. 7078 of 1980 and 1049 of 1981 are shop owners who carry on their business in N. S. C. Bose Road and Rattan Bazar Road, Madras 1. The prayer in these writ petitions is for the issue of a writ of Mandamus directing the respondents viz., the Municipal Corporation of Madras represented by its Commissioner, and the Commissioner f Police, Madras, directing them to remove the obstructions and encroachments made by the unauthorised hawkers on the N. S. C, Bose Road and Rattan Bazar Road, Madras-1.
3. I shall refer to the facts in W. P.No. 2416 of 1982. Ranganathan Street connects Mambalam railway station and the Usman Road. According to the petitioners, it is a prestigious business centre where there are a number of shop sale of goods of all types and varieties. In fact that the shopping street attracts a number the shop keepers have incurred heavy expenditure in decorating their shops and equipping them with costly fittings and fixtures to attract the customers. , The annual turnover for all the shopkeepers is said to be very high and on those shops depend more than 750 people for their livelihood. The width of Ranganathan Street is said to be 30 ft. In view of the fact that Ranganathan Street is a connecting link road of Mambalam Railway Station and Usman Road, many persons pass and repass through the street during the day and late in the night. According to the petitioners, since the last few years hundreds of street vendors, referred to as hawkers for the purpose of convenience, have occupied Ranganathan Street. The hawkers are said to sell their wares ranging from vegetables to various other items on the street itself. For the purpose of carrying on their business, the hawkers squat on the street in a continuous line, they thereby effectively prevent customers from entering the shops and also the occupiers in the shops from carrying on their trade in Ranganathan Street. They also obstruct the view of the shops and the show cases from the street. As a result, the business of the various shopkeepers has not only fallen but they are being effectively prevented from carrying on their business. It is further stated in the affidavit that people find it difficult to have unrestricted ingress and egress in Ranganathan Street. On account of the presence of these hawkers Ranganathan Street has become so crowded that it has become impracticable for any person to pass and repass through the street. It is further averred that the first respondent, the Commissioner of Corporation of Madras has unauthorisedly permitted these hawkers to squat on Ranganathan Street and sell their wares by authorising a contractor to collect a fee of 25 paise every day from these hawkers. The first respondent has no authority under the City Municipal Corporation Act to permit these hawkers to carry on their trade in Ranganathan Street, thereby obstructing people from passing and repassing around the street. It is in these circumstances, the writ petitions have been filed. The petitioners have further stated that apart from them, other people who have their shops in the street have got a right to free and unrestricted egress and ingress to the street and that the said right is jeopardized by the presence of these hawkers.
4. A counter-affidavit has been filed on behalf of the Commissioner, Corporation of Madras, the first respondent. According to the Commissioner, the Corporation of Madras is empowered under Section 223 (5) of the Madras City Municipal Corporation Act, 1919 (for short the Act) to the lease roadsides and street margins which are vested in the Corporation. Ranganathan Street is vested in the Corporation. The Corporation has therefore got the power to licence vendors to run their business on the pavements which have a street margin on Ranganathan Street. It is further stated that these hawkers have been permitted to sell vegetables and fruits during certain hours of the day viz., 5.00 P.M. and 9 P.M. without hindrance to the main stalls and shops in the street. The Corporation of Madras has been collecting a nominal fee of 25 paise from the hawkers per day. The right of collecting fees from these vendors has been given to contractors every year by public auction.
5. A counter-affidavit has been filed by the fourth respondent in WP No. 1127 of 1980 who is the President of Anna Sirukadai Viyabarigal , Sangam. It is stated in the said counter-affidavit that the hawkers carry on their trade according to law. The petitioners have not suffered any injury by the fact that the hawkers carry on their trade according to law. Consequently, the petitioners have no locus standi to apply for , the issue of any writ of mandamus. Further, the question whether the action of the hawkers in trading in Ranganathan street amounts to an actionable nuisance is a question of fact which can be decided only in a suit. Though originally Ranganathan Street was a residential one, it has become a business area now. The hawkers have been. carrying on their trade for a number of years and they are engaged in a lawful business within the purview of Article 19(1)(g) of the constitution of India. They perform vital the community, the go and purchase hawkers and other day to day use. They are not carrying on any unauthorised, or unlawful occupation; nor do they obstruct the peaceful and normal carrying on the trading by the shop keepers, They are licensed to carry on their trade by the Corporation of Madras with jurisdiction. Their business doesnot in any way affect the business of the shop keepers.
6. The averments in W. P. No-. 7078 of l980 are that the petitioners are all carrying on business in Ratan Bazar Road and N. & C. Bose Road. They have ,taken their shop s on huge rent and incur very heavy expenditure in the upkeep and display of goods in their shops., Nearly 12,000 people are , employed in these various shops, In the past, hundreds of hawkers have occupied portions of the pavements of either side of Rattan Bazaar Road and N. S. C. Rose Road. The hawkers have erected wooden platforms. In some cases, they have even put up improvised roof over the platform using tarpaulin and bed-sheets. On account of the activities of these hawkers great inconvenience is being caused to the petitioners' and the public at large, Sometimes law and order problems arise on account of the quarrels and, disturbances between the hawkers and the shopkeepers. While so, the petitioners filed W. P. No 878 of 1979 through the Madras Merchants Chamber praying, for the issue of a writ of, mandamus directing the respondents to remove all the hawkers and customers from the pavements of Rattan Bazaar Road and N. S. C. Bose Road and render the pavements absolutely free from obstruction thereon. On receipt of notice the respondent entered appearance and made a statement to the court that the pavements have been made free from encroachments by unauthorised hawkers, On that ground, the writ petition was dismissed as infructuous on 0-11-1979. Though for a few months till September, 1980 the Rattan Bazaar .Road and N. S. C'. Bose Road were free from encroachment by the unauthorised hawkers since October, 198() they began to reappear one by one and now the pavements have been reoccupied by these unauthoirised hawkers. The affidavit further refers to a report that appeared in the newspapers that on 15-12-1980 the Commissioner of the Corporation of Madras drew lots for about 1301 hawkers at Nehru Stadium for for allotment of space where they could sell their wares. Accordingly the first respondent is said to have marked out the pavements on the southern side of the Rattan Bazaar Road and the western side of the N. S, C. Bose Road, each plot measures approximately 5' x 4' and, allotted to individuals. 'The width of the pavement on the southern side of the Rattan Bazaar Road ranges from 5' to 7' and on the western side of the N. S. C. Bose Road is mostly of a width of 5' and ;to a small extent of a width of 7 ft. The petitioners who have averred that the marked out portions practically occupy the entirety of the pavement leaving practically no room for a pedestrian to walk on the pavement. The marked plot is said to be right in front of each one of the shops situate on the public streets. It is alleged that the Corporation has no right to authorise any trading by the haw1kers on any part 6f'the public road much less by allotting pavement portions to each one of them. The presence of these hawkers amounts to an encroachment or an obstruction of a public street and the Commissioner of the Corporation of Madras is in duty bound to I remove such encroachment or obstruction. Since the representation made by the Petitioner to the authorities did, not yield, any result the petitioners were compelled to, file the Writ petitions.
7. No separate `counter-affidavit has been filed -by respondents 1and 2 in these writ petitions.
8. An affidavit has, been filed by respondents 3, 4 and 5 in W. M. P. Nos. 449 and 450 of 1981 filed in support of the petitions to get themselves impleaded as additional respondents, which petitions were ordered. In the said affidavit it is stated that they have been permitted since 1952 by the Government to vend their wares on the pavements without creating any disturbance to the vehicular and pedestrian traffic on the specified areas marked for their vending. 'They used to pay Rs. 5/- per month to the Government. According to them areas have now been demarcated on the pavement from the Broadway Corner to Dare House: Law College to M. E. S Law college to B. 2 Police Station: AnnamalaiMandrum to Kuralagam; Kuralagam to C1. Police Station; Sectors of the evening bazaar and the Rattan Bazaar in the areas where pavements are the broadest. Specified plots have been numbered and marked and they have been allotted on the basis of lots. According to them, they remove their shops at night. These hawkers are said to number about 8000 to 10,000. It is stated in the affidavit that these persons have been in occupation of specified plots with effect from 15-121980 and that consequently the writ petitions are liable to be dismissed.
9. I have heard very lucid and illuminating arguments from Mr. Raghavan 'and Mr. Chidambaram an behalf of the petitioners in the two batches of writ petitions. Mr. Kesava Iyengar and Mr. K, V. Sankaran on behalf of the hawkers in Ranganathan Street and Rattan Bazaar Road and N. S. C. Bose Road respectively and Mr. Sadanand on behalf of the Government and, Mr. Desabandhu on behalf of the Corporation of Madras.
10. Mr. Kesava Iyengar raised a preliminary objection that the writ petitions themselves are not maintainable. According to the learned counsel the petitioners have no locus standi to maintain the. writ petitions. He also stressed upon the, fact that the Corporation of Madras has power under S. 223(5) of the Act to, lease out road sides and street margins to the public. Accordingly, the hawkers have been permitted to carry on their trade on the road sides and street margins of Ranganathan Street by the Corporation of Madras. The Court has no Jurisdiction in exercise of its powers under Art., 226 of the Constitution to issue a writ of mandamus directing a lessor to drive out a lessee from the leased premises. Inasmuch as the petitioners' main -complaint is that their customers are prevented from entering their shops, it is for those customers to go and complain and that the petitioners have no locus standi to maintain the writ petitions.
11. Mr, Kesava Iyengar also contended that before the writ of mandamus could be asked for directing the statutory authority to perform a public duty, there must be evidence of a demand and refusal and in this case such evidence is lacking and that is fatal to the maintainability of the writ petitions,
12. the following contentions urged on behalf of the petitioners. (1) The writ petitions are maintainable. The petitioners carry on their business in. respective shops and they have go the right of egress and ingress, the right to pass and repass over Ranganathan , Street, Rattan Bazaar Road'. and N. S. C Bose Road. The Streets are vested in the Corporation and the Corporation Is bound to maintain them as such, If there are any obstructions or encroachments on the streets, the respondents are in' duty bound to remove such encroachments and obstructions. The public have got a right to pass and repass over every inch of the street. . The hawkers are in unauthorised occupation of Rang4nathan Street, the Pavements in Rattan Bazaar Road and N. S. C.Bose Road. In W. P. No. 878 of 1979 the first respondent took the stand that the Corporation' had licensed the vendor under S. 223 (2) of the Act. At the time of the hearing it was represented to this Court that the Corporation would take steps to see that the hawkers were removed and the pavements of Rattan Bazaar Road and N. S. C. Bose Road would be rendered free from encroachments and on the basis of that assurance, the writ petition was dismissed as infructuous. As a matter of fact, subsequently, the hawkers were removed. However, they were allowed to reoccupy with effect from, Oct .1980. The 'reliance placed by the Commissioner of Corporation of Madras in the counter-affidavit on S. 223 (5)-of the Act is, untenable. Apart from the fact that the hawkers carry, on their trade not on roadsides or road margins of the concerned streets, in these particular cases, there are no actual leases within the meaning of S. 223 (5) of the Act.
13. The counsel for the petitioners also contended that as persons who have got the right to pass and repass through the streets in question they have got the right to maintain the petition. On the question whether there has been a demand and a refusal on the part of the Corporation of Madras to perform their statutory duty, Mr. Raghavan contended that firstly there is no absolute rule that prior to the issue of a writ of mandamus there should have been a demand and a refusal on the part of the statutory authority and secondly the Corporation of Madras has not taken that stand in the counter affidavit; but on the other hand, the Corporation of Madras has taken the stand that they had leased out the roadsides and margins of Ranganathan Street to the various hawkers, thereby repudiating the right of the petitioners. Mr. Chidambaram stated that the petitioners in these writ petitions had filed W. P. No, 878 of 1979 in which the respondents therein viz., the Corporation of Madras and the Commissioner of Police assured that the hawkers in fact were so evicted and subsequently they again reappeared. Further, admittedly, it was found that the Corporation were allotting by lots specified areas to the various hawkers. In the circumstances, there was no question of any further demand being made by the petitioners on the statutory authorities. When the statutory authorities have taken a particular stand which is nugatory of the claims of the petitioners, it would be an exercise in futility, in any event, to direct the petitioners to make a demand on the statutory authorities to perform their statutory functions.
14. Before considering the preliminary objections raised by Mr. Kesava Iyengar with regard to the maintainability of the writ petitions, it is necessary to consider the common law right of highway and also the right of the petitioners to use Ranganathan Street and Rattan Bazaar Road and N. S. C. Bose Road to pass and repass, The highway is a passage over which members of the public are entitled to pass and repass. The essential characteristic of a highway is that every person should have the right to use it for the appropriate kind of traffic. The road or part over which only a particular class of people or a few individuals are allowed to pass and repass cannot be a highway. In Halsbury's Laws of England, Third Edition, Vol. 19, at page 12, highway is defined thus:
'A highway is a way over which all members of the public are entitled to pass and repass; and conversely, every piece of land which is subject to that public right of passage is a highway or part of a highway It is, however, an essential characteristic of a highway that every person should have a right to use it for the appropriate kind of traffic, subject only to any restrictions affecting all passengers alike. It follows that a road or path over which only individuals, or a limited class of the public (for example, the inhabitants or occupiers of a particular house, field, or village) have a right of passage, is not a highway.' As regards the extent of the right of the public over the highway, it is stated thus at page 73:
'The right of the public is a right to to pass along, a highway for the purpose of legitimate travel, not to 'be on' it, except so far as their presence is attributable to a reasonable and proper user of the highway as such. A person who is found using the highway for other puriDoses must be Dresurned to have moone thcre for such purposes and not with a legitimate object, and as against the owner Of the soil he is to be treated as a trespasser.
Again with regard to the right of access to the highway by adjoining owners, the law is stated at page 78 thus:
'An owner of land adjoining a highway is entitled to access to such highway at any point at which his land actually touches it, even though the soil of the highway is vested in another, but he has no such right if a strip of land, however narrow, belonging to another and not subject to the public right of passage, intervenes.
An adjoining owner's right of access from his premises to the highway and vice versa is a private right, and is distinct from his right to use such highway as soon as he is upon it, which (at any rate if the soil of the highway is not his)' he enjoys only as a member of the public. The right of access is not limited to the right to pass from the premises to the highway and vice versa, but includes the right of access to a wall on the boundary of the premises.'
As regards the remedy for interference with the right of access to highway Halsbury states at page 79 thus:
'Interference with a private right of access will, if wrongful, support an action and an adjoining owner may accordingly recover damages where an unreasonable use of the highway has rendered access to his shop unnecessarily inconvenient to himself or his customers. If the interference is also a public nuisance, he is entitled to recover in respect thereof if he can show particular damage, and if the obstruction, though near to a person's premises, interferes only with his public right, and not with his private right of access, his claim must be based on the ground of a public nuisance causing special damage to him.
Where, however, the interference is authorised by statute no action will lie, and there will be no remedy unless compensation is provided for by the statute.' Again at page 283 it is stated as follows:
'At common law the duty of repairing a highway includes the duty of preventing and removing obstructions, and if a highway authority sustains special damage it may bring an action for damages. This duty and power is supplemented by general statutory powers and by specific statutory powers to abate nuisances summarily or to prevent their creation.'
Salmond in his Law of Torts, 17th edition, at page 79 describes highway thus:
'A highway (including in that term any public way) is a piece of land over which the public at large possesses a right of way. A highway extends to the whole width of the space between the fences or hedges on either side partly in order to admit light and air to, it ' and partly because Macadam's system of road-making with broken stone was not introduced at the earliest until just before the end of the eighteenth century.'
The learned author again states at page 80 thus:
'Every person who occupies land immediately adjoining a Highway has a private right of access to the highway from his land and vice versa., and any act done without lawful justification whereby the exercise of this private right is obstructed is an actionable wrong. This right of access is a private right of property, and if what is complained of is sufficiently substantial to constitute an interference with that right, he may recover at least nominal damages, for it is an example of an action on the case succeeding without Proof of special damage.
...... At common law a frontager had the right of entrance and exit from his land on to a highway at any point. But this common law right has been greatly cut down by statutes (see, for example, the Highways Act, 1959, S. 155) especially since local authorities have had vested in them the surface of the highway. ... This right of access to a highway by the occupier of land abutting upon it must be distinguished from the right of passing along the highway. The former is a private and the latter a public right, and for any infringement of the former an action will lie: whereas, as we shall see in the next section, no action will lie for an infringement of the public right of passing except on proof of some special or particular consequential damage suffered by the plaintiff. The private right of access thus protected includes merely the right to get from the highway into the plaintiff's land, and from his land into the highway; and does not include a right to get to and from the plaintiff's land by going along the highway, for this is merely the public right of passage. A disturbance of this private right of access may or may not be at the time a disturbance of the public right of passage.'
In Harvey v. Truro Rural District Council 1903 LR 2 Ch 638 Joyce, J. has observed as follows:-
'In the case of an ordinary highway running between fences, although it may be of a varying and unequal width, the right of passage or way prima facie and unless there be evidence to the contrary, extends to the whole space between the fences, and those public are entitled to use the entire of it as highway, and are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and foot passengers.' The learned Judge has again observed:
'........... as Lord Tenterden observed in Rex v. Wright 1832 3 B & Ad 681. 'The space at the sides' (that is of the hard road) is also necessary to afford the benefit of air and sun. If trees and hedges might be brought close up to the part actually used as road it could not be kept sound.'
In the Madras City municipal Corporation Act, a public street is defined in S. 2 (20) thus:
'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 foot-way attached to any such street, public 'bridge or causeway and
(c) the drains attached to any such street, public bridge or causeway and the land, whether covered or not by any pavement, veranda, or other structure, which lies on either side of the roadway up to the boundaries of the adjacent property whether that property is private property or property belonging to the Government.
Street-alignment 'is defined thus under S. 2 (26) of the: Act: '
'Street-alignment means A line dividing the land comprised in adjourning a part of a street from Adjoining land.'
Section 203 of the Acts deals with vesting of public streets and their appurtenances in the corporation. It reads thus:
'All public streets in the city were served under the control of the Central or the State Government, with the pavements, stones and other materials there of, and all works, materials, implements and other things provided for such streets, drains, drainage works, tunnels and culverts whether made at the cost of the municipal fund or otherwise in, alongside or under any street. Whether public or private, and all works, materials, implements and other things, appertaining thereto and all trees not being private property growing on public streets or by the side thereof, shall vest in the corporation.
(2) The State Government may by notification withdraw any such street, drain, drainage, work , tunnel, culvert or tree from the control of the corporation.
Section 204 reads thus:'The corporation shall cause the public streets to be maintained and repaired, and may make all improvements there to which are necessary or expedient for the Public safety or convenience e.g.
Section 220. reads thus:
'No one shall build any wall or erect, any fence or other obstruction or projection or make any encroachment in or over any street or any public place the control of -which is vested in the corporation except as hereinafter provided.'
Section 221 reads thus:
'(1) The Commissioner may by notice, require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction (other than a door, gate, bar, or ground-floor window) !situated against or in front of such premises and in or over any street or any public place the control of which is vested in the corporation.
(2) If the owner or occupier of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give him a prescriptive title or where such period is less than thirty years, (for a period of thirty years) or that it was erected with the' consent of any municipal authority duly empowered in that behalf, and that the period, if any,' for which the consent is valid has not expired. the corporation shall make rea-, s0nable compensation to every person who suffers damage by the removal or alteration of the same.'
Section 223 reads
Section 223 (1) ......
(2) With, the concurrence of the Commissioner of Police the Commissioner may' grant a licence subject to such conditions and restrictions as he may think fit, for any temporary construction in any street or any public Place the control of which is vested in the corporation.
(3) No licence shall be granted under sub-,section (1) if the projection or construction is likely to be injurious to health or cause public inconvenience or otherwise materially interfere or result in material interference 'with the Use of the read as such..
(4) On, the expiry of any period for which a licence has been granted under ibis, section of after due communication of an order of suspension or revocation Of such licence the Commissioner may without notice, cause any projection or construction put up under sub-sections (1) or (2) to be removed, and the, cost of so doing shall be recoverable in the~ manner provided in Section 387 from the Person to whom the licence was granted.
(5) The council shall have power to lease road sides and street margins vested in the corporation for occupation on such terms and. conditions and for such period as it may fix. Provided that no such lease for any term exceeding three years shall be Valid unless the sanction of the State Government therefore shall have been first obtained :
Provided further that if the State Government consider that any occupation of a road side or street margin under a lease granted by the council under this section is likely to, be injurious to health or cause public inconvenience or otherwise materially interfere with use of the toad side or street margin as such, the State Government may direct the council to cancel or modify the lease and the council l shall thereupon cancel or modify the lease accordingly'.
15. From the above provisions of the Act, it is clear that all public streets and their appurtenances vest in the Corporation. No one has got a right to build any wall or erect any fence or other obstruction or projection or make any encroachment in or over any street, which is vested in the Corporation except as otherwise provided. Section 223(2) of the Act confers power on the Commissioner of the Corporation of Madras with the concurrence of the Commissioner of Police to grant licence for any temporary construction in any street or any public place the control of which is vested in the corporation and the licence will be subject to such conditions and restrictions as he may think fit, Under Section 22 (1)the Commissioner has got the power grant a licence to the owner or occupier of any premises to put up certain projections or constructions. But such projection or construction shall not be likely to be injurious to health or cause public inconvenience or otherwise materially interfere or result in material interference with the use of the road as a road. On the expiry, of the period 'of the licence the projection or temporary construction is likely to be removed .Section 223 (5)confers; power on the Commissioner to lease out road sides and street margins vested in the corporation for occupation on such terms and conditions and for such period as it may fix. Any lease for a term years shall not be valid unless the sanctions of the State Government is obtained. Any such lease shall not be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road side or street margin.
16. The Vesting of public street in the Municipalities under the Madras District Municipalities Act 18984 came up for consideration before a Bench of this Court in S. Sundaram Ayyar v. Municipal Council of Madras and The Secretary of State for India in Council ILR 1902 Mad 635 where it is observed as follows:
'When a street is vested in, a Municipal Council, such vesting does not transfer to the Municipal authority the rights of the owner in the site or soil over which the street exists. It does not own the soil from the, centre of the earth usque ad caelum, but, it has the exclusive right to manage, and control the surface of the soil and so much of the soil below and of space above the surface as is necessary to enable it to adequately maintain The street as a ~treel. It has also a certain property in the soil of the street which Would enable it, as owner to bring a possessory action against trespassers.'
In Municipal Board Of Agra v. Sudarshan Das Shastri ILR 1915 All 9 : AIR 1914 All 341 a Division Bench of the Allahabad High, Court observed'. as follows:
.' in our opinion all the ground, whether metalled or not, over which the public had a right of way, is just as much the public road as the metalled part. The Court would be entitled to draw the inference that any land over which The public from time immemorial had been accustomed to travel was a public street or road, and the mere fact that a special part of it was metalled for the greater convenience of the traffic would not render the unmetalled portion on each side any the less a public road or street.'
The scope of the words 'public' street or road or any part thereof' occurring in Article 146-A of the Limitation' Act arose for consideration in Anukul Chandra v. Dacca Dist. Board ( : AIR1928Cal485 ) where Suhrawardy, J. observed as follows :-
'The expression road or high way has been considered in many cases in England and it seems that the interpretation put there is not confined to the portion actually used by the public life but it extends also to the side lands. See the cases in Rex v Wright 1882 3 B & Ad. 681 and turner v. Ringwood Highway Board 1870 LR 9 Eq 418. I am not prepared to put too narrow meaning on the expression 'public street' or 'road' in Article 146-A ,as it is intended to safeguard the interest of public bodies which are not expected to be as vigilant over their rights as private individuals. I am of opinion that road in that article includes the portion which is used as road as also the lands kept on two sides as parts of the road for the purposes of the road.'
In Municipal Board v. Mahadeoji : 2SCR242 after referring to the above decisions, the law is summarised thus (Para 8):-
'The law on the subject may be briefly stated thus: Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the Highway so dedicated depends upon the extent of the user. The side lands are ordinarily included in the road, for they are necessary for the proper maintenance of the road, In the case of a pathway used for a long time. by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user.', The Supreme Court again observed thus (Paras 9 and 10):
'In the present case it is not disputed that the, metalled road was dedicated to the public. As we have indicated earlier the inference that the side lands are also included in the public way is drawn easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway the owner of the soil in general remains the occupier of it and therefore he can maintain an action for trespass against any member of the public who acts in excess of his rights.
If that is the legal position, two results flow from it, namely (1) the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it as a pathway, (2) it cannot be said that the putting up of the structures for installing the statue of Mahatma Gandhi or for piyo or library are necessary for the maintenance or the user of the road as a public highway. The said acts are unauthorised acts of the Municipality'
17. The extent of the right of a member of the public to pass and repass over a public street came up for consideration before a Bench of the Andhra Pradesh High Court in M. Butchamma v. Venkateswararao : AIR1969AP136 . There, the prayer for mandatory injunction for the removal of obstruction placed upon a public street was rejected by the trial Court and the lower appellate Court, on the ground that notwithstanding obstruction placed by plaintiff the street was wide enough to afford passage to cattle and carts and the plaintiff had not established any special damage entitling her to the relief by way of mandatory injunction. On appeal, Chinnappa Reddy J (as he then was) has observ-2d as follows (Para 5):
'The defendant cannot be heard to say that the obstruction placed by him cannot be removed so long as he has left a passage of sufficient width to enable men, cattle and carts to go. As we have said, the right of the public to pass and repass extends over every inch of the street and the defendant cannot in any manner restrict the right and compel the plaintiff to confine herself to a part of the street of the choice of the defendant.'
In this context, the learned Judge extracted the following passage from Peacock in his 'Law Relating to Easements in British India:-
'As already explained, a public right of way, being unconnected with a dominant tenement is a right in gross and clearly distinguishable from an easement. It is exercised over what is called a 'Highway........The extent and mode of enjoyment of a high way must be measured by the user as proved, or by the terms of the deed when the right is so granted, but in the absence of evidence to the contrary the public are entitled to the whole width of the way without any such restriction as may be imposed by the owner of the servient tenement in the case of a ore scriptive private way. In Regina v. United Kingdom Electric Telegraph Co. (1862) 6 LT 378, Martin B., laid down the proposition which was accepted by the Court on a motion for a new trial: 'In the case of an ordinary highway, although it may be of a varying and unequal width, running between fences one on each side the right of passage or way, prima facie, and unless there be evidence to the contrary, extends to the whole space between the fences; and that public are entitled to the use oil the entire of it as the highway and are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and foot passengers'.
18. In Damodara v. Thirupurasundari : AIR1972Mad386 , Raghavan, J., had to deal with the right of owners of land adjoining the highway to go upon the highway from any point on their land. The learned judge observed thus (para 7):-
'The plaintiffs being owners of land abutting the highway have an undoubted right of access to the street from any part of their premises. In Mackenzie's Law of Highways, 21st Edn. at page 58 it is stated as follows:-
'The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground adjacent to the highway or not. The rights of the public to pass along the highway are subject to this right. of access. Just as the right of access is subject to the right of the public, an must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway .The right of the owner of land adjoining a highway to access to or from the highway from or to any part of his land is a private right, distinct from the right to use the highway as one of the public and the owner of the l2nd whose access to the highway is obstructed may maintain an action for the injury whether the obstruction does or does not also constitute a public nuisance'.
Thus it is seen that where there is a public highway the owners of land adjoining the highway have a right to go upon the highway from any point on their land; and if that right is obstructed by any one of the owner of the land abutting the highway is entitled to maintain an action for the injury, whether the obstruction does or does not constitute a public nuisance.'
19. From the above decisions the following principles emerge. Every member of the public has got a right to pass and repass over a highway or a public street. The said right of the public is a right to pass along the highway for the purpose of legitimate travel, not to be 'on it' except to the extent their presence is attributable to a reasonable and proper user of the highway as such. The right of the public to pass and repass extends over the whole width of the highway or the street, in other words, over every inch of the street. A member of the public cannot be compelled to -confine himself to a part of the street at the choice of another. The owner of a property adjacent to a highway or a public street has got a right of access to such highway or street at any point at which his land actually touches it. His right of access from his premises to the highway and vice versa is a private right. However, his right to use such highway or public street as soon as he is 'on the highway' or the public street becomes a public right. It is the background if the above facts the locus standi of the petitioners to maintain the writ petitions has to be considered. The petitioners in W. P. Nos. 1127 of 1980, 2415 and 2416 of 1982 have averred that they are carrying on business in the shops in Ranganathan Street, which is admittedly a public street. They have got the right of access from any point of their shop to Ranganathan Street. Further, once they are on Ranganathan Street, according to allegations, they will have the right to pass and repass along Ranganathan street. That right inheres in them as members of the public. They have further stated that their customers and they are prevented by reason of the obstructions created by the hawkers to load and unload the goods from vehicles into the shops and to enter or leave the shop directly on to the street without any obstruction whatsoever. In view of these allegations it has to be held that the petitioners have sufficient personal interest in the subject matter of the writ petitions. However, Mr. Kesava Iyengar contended that the petitioners are not aggrieved persons and therefore they cannot maintain the Writ Petitions. in this connection, the learned counsel cited the decisions in N. R. & F. Mills v. ff. T. G. & Broks., : 3SCR846 . There, the question that arose for consideration was whether a competitor, in a rice mill business can feel aggrieved by the permission granted to another rice mill owner to shift his existing rice mill to the new site and the Supreme. Court answered the question in the negative. The learned counsel also cited the decision in J. N. & Co. v. State of A. P ( : 2SCR11 ). In that case, the tax collected by dealers as agents of the principals became illegal as a consequence of decisions of the High Court. But due to the Amending Act the collection become legal and as dealers theyare liable to pay that amount to the State in respect of the assessments made. The amending Act removed the exemption of Rs, 10,000/- on sale of jaggery which was given retrospective' effect. The agents questioned the constitutional validity .of the Amending Act. The Supreme Court held that the Agents have no locus. standi to question the validity. The Supreme Court held that the Agents of the dealers have no locus standi to maintain the Writ Petition, I am of the view that these two decisions are not applicable to the facts of this case. Here, the Petitioners have alleged that by reason of the obstruction caused in the public Street they are prevented from having access to the sarne from their respective shops. The petitioners have alleged a clear infringement of their right to have access to the public street which itself amounts to an injury. Consequently, they are aggrieved persons and are entitled to maintain the writ petitions. -
20. Secondly, locus standi has now received a wider interpretation, Hitherto, it was the settled view that only persons who have been directly or indirectly aggrieved by any legal injury or legal harm could have access to Courts. However, this tradition barrier which, we had inherited from Anglo Saxan Jurisprudence has been completely demolished with the recent case of S.P. Gupta v. Union of India, : 2SCR365 known as the Judges appointment and transfer case , followed by the decision in People's Union for Democratic Rights v. Union of India : (1982)IILLJ454SC known as Asia Games Workers case. It is unnecessary to state the circumstances in which the question of locus standi arose for consideration before the Supreme Court, in Judges, appointment and transfer case Bagwati J, observed as follows in dealing with the question of locus standi:
'Yet again, whenever there is a public wrong or public 'injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting mala fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busybody or a meddlesome interloper but one who has sufficient interest in the proceeding. In the absence of a machinery to effectively represent the public interest generally in Courts, it is necessary to liberalise the rule of standing in order to provide judicial redress for public injury arising from breach of public duty or from other violation of the Constitution or the law by allowing public minded persons and organisations to move the Court and act for a general or group interest, even though, they may not be directly injured in their own rights, It is only by liberalising the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violations of law. As a result, in public interest litigation-litigation undertaken for the purpose a redressing public injury, enforcing public duty, protecting social, collective, diffused rights and interests or vindicating public interest, any citizen who is acting bona fide and who has 'sufficient interest has to b-, accorded standing. What is sufficient interest to give standing to a member of the public would have to be determined by the Court in each individual case.'
21. In Asian Games Workers case, the Supreme Court observed as follows:-
'It is true that the complaint of the petitioners in the Writ Petition is in regard to the violations of the provisions of labour laws designed for the welfare of workmen and therefore from a strictly traditional point view, it would be only the workmen whose legal rights are vioalated who would be entitled to approach the Court, for judicial redress. But the traditional rule of standing which confines access to the judicial process only to those to whom legal injury is caused or legal wrong is done has now been jettisoned by this Court and the narrow confines within which the rule of standing was imprisoned for long years as a result of inheritance of the Anglo-Saxon System of' Jurisprudence have -been broken and a new dimension has been given to the doctrine of locus standi which has revolutionized the whole concept of access to justice in a way not known before to the Western System of Jurisprudence.'
22. In his Administrative, Law, .4th edition, page 608 H.W.R Wade states the principle of standing thus:
'As regards the standing of an applicant for mandamus, the law should in principle be no more exacting than it is in the case of of other prerogative remedies. It should recognise that public authorities should be compellable to perform their duties, as a matter of public interest, at the instance of any person genuinely concerned and in suitable cases, subject always to discretion the Court should be able to award the remedy on the-application of a public spirited citizen who has no other interest than a regard for the due observance of the law.'
23. ..H. M. Seervai, the eminent Jurist, has considered the question of locus standi in the matter of seeking the judicial remedy by Way of a Writ of Mandamus, in his book Constitutional Law of India, Second, Edition, page 474, Para 11-196, thus., 'A Writ of Mandamus compelling Government to do its duty, and/or restraining it from committing a breach of its duty, Would clearly lie. The only question is, at whose instance? It is unlikely though not impossible, that a State Government would openly claim that even if it disposed of Government property at a gross undervalue, no one had locus standi to bring it to book by moving the Court for a. writ of Mandamus. If such a plea were taken, it is submitted that it would fail for the following reasons: Even in England the technicalities of locus standi are yielding to the need to ensure that the injury done to the public should be redressed by the enforcement of the law.As to locus standi , Prof. De. Smith, refered to the view that in applications for: mandamus, as in applications for certiorari, locus standi was not restricted by any rule of common law,andthat the Courts could grant an application made by any member of the public. After observing that the Courts had, on occasion, shown the utmost liberality in granting applications made by persons whose interest in the performance of duty was tenuous, and after giving examples of such liberal approach, he summed up the position thus:
'Normally the applicant's interest must be more substantial. than the general interests of other members of the community or interest group to which he belongs, but it is impossible to say that this is at all a firm rule.'
24. The learned author then referred to the case of Att. Gen. v. I. B. A., 1973 1 QB 629 which raised the question of the locus standi of a private person to move the Court for an injunction, with out obtaining. the Attorney General's leave as a relator, against the Independent Broadcasting Authority to restrain it from exhibiting an indecent film, and extracted the following observations of Lord,Denning M. R. in the above case.
'I regard it as a matter of high constitutional principle that if there is good .ground for supposing that Government, department or a public authority` is transgressing the law, or is about to transgress it in a way Which offends or ' injures thousands of Her Majesty's subjects, then, in the last resort, any of those offended or injured can draw it to the attention of the Courts of law and seek to have the law enforced. But this, I Would emphasize, is only in the last resort when ere is no other remedy reasonably available to secure that the law is obeyed.'
The learned author has observed at Page 476, paragraph 11.198 as follows:-
'It is submitted that if this is the law of locus standi in England, Where relator actions are available to a member of the public to vindicate public rights, a fortiorari, a member of the 'Public in India must have locus standi to vindicate public rights where relator actions are not public available except, in the case of nuisance (S. 91 CPc).'
Again at Page 762; paragraph 16.30 it is observed
'Where a statute imposes a duty, the performance or nonperformance of which is not a matter of discretion, a mandamus will be granted, ordering that to be done which the statute requires to be done, and it is not necessary that the party or corporation on whom the statutory duty is imposed should be a public official or an official body.'
The learned author after referring to R. v. Commr. of Police of Metropolis, Ex. P. Blackburn, 1968 2 QB 118 and R. v. Metropolitan Police Commr., Ex. P Blackburn 1973 1 QB 241 states:
'These two cases show that the Courts asserted the proposition that public authorities charged with the duty of enforcing law cannot refuse to enforce the law and if they did, they could be compelled to discharge their duty. That the law was laid down at the instance of a private citizen who had no personal interest, but whose intervention was described as rendering a public service had the effect of enlarging the concept of locus
25. I am therefore unable to accept the contention of Mr. Kesava Iyengar, that the Petitioners have no locus standi at all to maintain the Writ Petitions. I have already extracted the relevant sections of the Act. It is the duty of the Commissioner under Section 220 of the Act to see that no one builds any wall or erect any fence or other obstruction or projection or makes any encroachment in or over any street or any public place the control of which is vested in the corporation. I therefore reject the contention of Mr. Kesava Iyengar that the Petitioners have no locus standi to maintain the Writ Petitions.
26. The next question for consideration is whether the writ petitions for the issue of a writ of Mandamus have to be dismissed on the ground that there has been no demand and refusal. The rule which requires a demand and a refusal before an individual could move the Court for the issue of a Writ of Mandamus is not an absolute or inflexible rule. The rule is to ensure that the defaulting authority gets an opportunity of knowing what was required of him to dot and for deciding whether lie would do it of his own motion without being compelled by the Court. If the defaulting authority is made aware of the default or the irregularity complained of and had an opportunity of rectifying the defect or omission, no normal demand will be necessary. If it appears on the facts and circumstances of the case that the defaulting authority is already aware of the illegality charged against him and he is pursuing it, it would be an exercise in futility to make a demand for justice. In such a case no prior demand is required, Further, where there has been a breach of a public duty on the part o4 the State or a Public Officer, affecting by its consequence, the general interests of the public and where such duty was one imposed by a statute, it is not necessary that demand for justice should be made before the Court is moved for relief against the breach by way of a Writ of Mandamus. In such cases, the command Qf the statute must be deemed to be the demand and the failure to obey the demand is refusal. The individual who wants to compel the authority to perform the duty enjoined on him by statute need not add his own demand to the command of the law. All that he need to show is that the duty is not carried out by the public authority and if he succeeds in so showing it will amount to a refusal to comply with the demand.
27. In Administrative Law, 4th Edition, page 608, H. W. R. Wade states thus:-
'It has been said to be an imperative rule that an applicant for mandamus must have first made an express demand to the defaulting authority, calling upon it to perform its duty and that the authority must have refused. But these formalities are usually fulfilled by the conduct of the parties prior to the application, and refusal to perform the duty is readily implied from conduct. The substantial requirement is that the public authority should have been clearly informed as to what the applicant expected it to do, so that it might decide as its own option whether to act or not.'
The Court does not insist upon this condition where it is unsuitable. As Channel, J. said in R. v. Hanley Revising Barrister, 1912 (3) KB 518:
'The requirement that before the Court will issue a mandamus there must be demand to perform the act sought to be enforced and a refusal to perform it is a very useful one, but it cannot be applicable to all possible cases. Obviously it cannot apply where a person has by inadvertence omitted to do some act which he was under a duty to do and where the time within which he can do it has passed.'
28. Prof. De Smith in his Judicial Review of Administrative Action, fourth edition at page 556 states thus:-
'The general rule is that the applicant, before moving for the order, must have addressed a distinct and specific demand or request to the respondent that he performs the duty imposed upon him and the respondent must have unequivocally manifested his refusal to comply. Where the respondent has not refused compliance in express terms, it is a question of fact whether his conduct evinces a clear determination not to comply. There may also be cases where the mere fact of non-compliance with a duty will be a sufficient ground for the award of a mandamus-e.g. where the applicant has been substantially prejudiced by the respondent's procrastination in exceptional circumstances the necessity for a prior demand may be dispensed with, as where the person originally responsible for the performance of the duty has ceased to have legal authority to comply with it except in pursuance of an order by the Court.'
29. In I.Q. Masters Union v. P. R. Dutt : AIR1951Cal570 an application under Article 226 of the Constitution of India was filed for the issue of a writ of Mandamus requiring the respondents to cancel the endorsement on the certificates of seamen regarding their fitness for services in foreign vessels and to refrain from holding pre-entry medical examinations of seamen or making endorsements on their certificates as a result thereof and also for a writ of quo warranto requiring the respondents to exhibit the authority under which they are entitled to hold the office for assumption and to pass the orders and do the acts complained of. One of the contentions that was urged before the High Court was that the petitioner did not allege demand of justice and refusal and hence the application was not maintainable. Bose J. has observed thus (Paras 16 & 17):-
'It is true that the words 'demand of justice and refusal' have not been used in the petition but there is no doubt that there are sufficient facts on record both in the petition and in the other affidavits to show that protests were made and discontinuance of the wrongful system was urged by the seamer but with no effect except incurring the displeasure of the officials and suffering harassment at their hands. As observed by Ghose J. in In Re Jatindra Mohar, Sen Gupta : AIR1925Cal48 :-
'It is not indeed necessary that the word 'refuse' or any equivalent to it should be used but that there should be enough to show that the party withholds compliance and distinctly determines not to do what is required of him. Refusal may be inferred from conduct.'
It may be noted that Art. 226 of the Constitution empowers the High Court to issue to any person or authority, directions, orders or Writs besides the Writs specifically mentioned in the Article for enforcement of the fundamental rights as also for enforcement of other legal rights. The Court is vested with very wide powers and has a very wide discretion under the Article.'
30. In Ashraf Ali v. State of West Bengal : AIR1958Cal219 the Petitioners challenged the formation of the Kharagpur Municipality by the State of West Bengal and the first tax assessment made by the Commissioners of the Municipality. The learned single Judge, without going into the merits had dismissed the Petition on the preliminary ground that the petitioners had not satisfied the condition precedent to make the application for the issue of a Writ of mandamus viz., demand and refusal. On appeal, the Bench observed as -follows (Para 7):-
'The object of the rule requiring that a demand for justice should be made before a party moves the Court for a Writ of Mandamus is to ensure that the respondent got an opportunity of knowing what was required of him to do and for deciding whether he would do it of his own motion without being compelled by the Court. If that be the true reason of the rule, there can be no difficulty in assenting to the proposition that there would be sufficient compliance with it, if the respondent was made aware of the default or the irregularity complained of and that he was given an opportunity for rectifying the defect or omission, although no formal demand might have been made. What the rule requires is that before a person can be allowed to approach the court with an application for a Writ of Mandamus, he must make it appears that the person or party he wished to proceed against had been made aware of what was demanded of him and that having been so made aware, had yet failed and neglected to comply with the demand. If that appears from the facts, it can be no objection to the application for a Writ that no formal demand had been made. Indeed, although the demand has come to be described as a demand for justice, it is really a demand for the performances of a duty or for the rectification of an error. If the person proceeded against has been reminded of the duty or apprised of the error in a sufficiently specific form so that he ought to have been able to understand what was required of him, a demand for justice has been made.'
Again, the learned Chief justice has observed thus in Para 21:_
'The fourth exception contended by Mr. Banerjee raises a point which is not unknown to the law of the high prerogative writs, as administered in England. The broad proposition. is that where.. it appears from the facts of a case that the respondents are already aware of the illegality charged against them and they are pursuing it as of set purpose, it would -be a useless formality to make a. demand for justice and therefore, in such a case no prior demand is required in order that a person may sustain an application for a Writ of Mandamus. The reason for this principle is clear, because the object of the demand for 'justice is to apprise the person intended to be proceeded against of what is wanted of him and to give him an, opportunity for doing it.'
31. Mr. Kesava Iyengar drew my attention to the third conclusion arrived at by Beg, J. (as be -then was) in State of Haryana v. ehanan Mal. : 3SCR688 which is to the following effect:
'Any petitioner who applies for a writ or order in the nature of a Mandamus should in compliance with a well known rule: of practice ordinarily, -first call upon the, authority concerned to, discharge its legal obligation -and show that it has refused, or neglected to carry it out within a reasonable time before applying to a Court for such an order even where the alleged obligation is established.'
The rule laid down by the Supreme Court in State of 'Haryana v., Chanan Mal, : 3SCR688 does not in any Way run, counter to the principles laid down in the above cases. in fact, the Supreme Court has styled the rule as a rule of practice and added that ordinarily the issue of a writ of mandamus should be preceded by a demand and refusal.
32. On the facts of the case on hand, the conduct of the first respondent clearly shows that he is determined not to obey the duty enjoined on him. under the Act to remove the encroachments or obstructions to the public street. In the case of Ranganathan Street it is averred in the counter-affidavit that they have granted licences under S. 223 (5) of the Act to hawkers and that they are collecting a fee of 25 paise per day from every hawker by farming out' the right to a. contractor. As regards Rattan Bazaar Road and N. S. C. Bose Road the petitioners had already filed a writ petition and in the said writ petition the first respondent gave an assurance that he would .remove the encroachment on the roads. It is now stated that they have allotted specific portions by lots to various vendors to carry on their trade on the road sides-. In. these circumstances, I am unable to accept the contention of Mr. Kesava Iyengar that the writ petitions have to be dismissed on the ground that there was no demand and refusal prior to the filing of the writ petitions.
33. The next argument of Mr. Kesava 1yengar is an action in a court ,of law for the removal of obstruction in a public street can be maintained only if the petitioners show that they have sustained special damages due to the obstruction caused and proving of such special damages is a question of fact which can be agitated only in a properly instituted civil suit and not in the writ 1 petitions and since an alternative remedy is, available by way of suit, without exhausting that remedy the petitioners cannot maintain the writ petitions. Therefore, the next . question to, be considered is whether before the petitioners can claim any relief it is necessary for them to prove ~any special damage. It is one of the principles of English law that before a member of a public can pray for the removal of obstruction on a highway be must prove special damage. In Halsbury's Laws of England, Third Edition, Vol.,19 page 280, the law is stated thus:
'A member of the public can only maintain an. Action for damages or an injunction in respect of a. nuisance to a highway, if he has sustained therefrom some substantial injury beyond that suffered by the rest of the public, such injury being direct and Dot merely consequential. '
However, this rule has not been held to be applicable to India, by a long line of decisions. In Kandasami Kovundan v. Karupanna Kovundan, 1913 MWN 1001 it has been held that for establishing a public right of way which constituted a public nuisance a suit cannot be maintained without the sanction of the Advocate General under S, 91 C. P.C. and without proof of special damages. In Manzur Hassan v .M. D. Zaman, () the question arose whether a particular section of the Muslims have got a right to take a religious procession, through a public street. One of the contentions was that a civil suit could not be maintained unless they were able to establish special damages. Certain observations of Westropp, C. J. and Melvill, J in Satku Valad Kadir Sausarre v. Ibrahim Aga Valad Mirza Aga ILR (1877) 2 Bom 457, were relied upon to the effect that a civil suit could not be maintained in respect of an obstruction to carry procession along a public read unless the plaintiffs were able to prove some special damage to themselves personally in addition to the general inconvenience occasioned to the public. The Privy Council speaking ,through Lord Dunedin observed thus:
'The Judgment really proceeds entirely on English authorities, which lay down the difference between proceedings by indictment and by civil action.
In their Lordships, opinion such a way of deciding the case was , inadmissible. The distinction between indictment and action in, regard to what is done on a highway is a distinction peculiar to English law and ought not to be applied in India.'
In Munusami v. Kuppusami, AIR 1939 Mad .691 Wadsworth. J... followed the ratio of the Privy Council and observed thus:
'The English rule requiring proof of special damage in cases in which a member of the public prays for the removal of an obstruction to a public way does not, apply to, India, Hence a, person can .,maintain a, suit, for establishing, a public right and removal of an obstruction which constituted a public nuisance, without the sanction of the Advocate General under S. 91 and without proof of special damage.'
34. In Subbamma v. Narayanamurthi, 1949 MWN 38 : AIR 1949 Mad 634 the suit was filed by a member of the public for a declaration that a portion marked KLMN in the plaint plan was a public pathway and for possession of a portion out of the same after ejecting the first defendant and for a mandatory injunction directing the defendant to remove a wall which was constructed on the pathway and for other reliefs. One of the contentions raised by the first defendant was that the suit was not maintainable without the sanction of the Advocate General under S. 91, C, P. C. or at any rate without proof of special damage. After referring to the conflicting decisions on the subject and the decision0 of the Privy Council in Manzur Hassan v. M. D. Zaman, ( ) Satyanarayana Rao, J. observed as follows:
'It is the correctness 'f the application of the English common law rule that came up for consideration before the Judicial Committee. The Judicial Committee did not rest their decision on the ground that the special rule as to damage did not apply to the class of cases before them but that the rule itself had no application to India, and that the distinction was peculiar to the English law and that it should not be extended to India. In view of this clear pronouncement it is difficult to confine the decision of the Privy Council to what may be called the procession cases as did the learned judges of, the Calcutta and Patna High Courts, I respectfully agree with Wadsworth, J. in his interpretation of the Privy Council decision that it deals generally with the whole class of cases governing the rights of the public to use the public way.' ..;
The decision ' of the Privy Council is founded on the larger principle that in-an action by -a private individual for relief in respect of a public nuisance it was not necessary under Indian law to establish special damage. The passage , already quoted makes no exception of any sort and is general in its scope. , I am unable to accept the view taken, by the Calcutta and the Patna High Courts and in my pinion the decision of Wadsworth, J. is right.'
35. in Mandakinee v. Basantakumaree, : AIR1933Cal884 a Bench of the Calcutta High Court stated the law thus:
'A member of the public can maintain a suit for removal of obstruction of a public highway, if his right of passage through it is obstructed, without proof of special damage.'
36. In Muncl. Commr. Delhi V. Mohammed Ibrahim AIR 1935 Lah 196 the Court observed as follows:
'The question of special damages is very simple. In such cases it is not necessary to prove that any special injury has taken place before a person wronged by the Committee can take action against it. In Sheonarayan v. Din Dayal it was held that where a plaintiff complains of an invasion of his rights as owner of property the beneficial enjoyment of which is adversely affected, he can sue for the removal of the obstruction of a public way without showing, special injury to himself beyond that suffered by any member of the public.'
Then after extracting a passage from Mandakinee Debee v. Basanta Kumaree Debee ( : AIR1933Cal884 ) the Court observed as follows:
'The principle of English Law which requires proof of special damage in such cases is not applicable to India.'
The learned Judges then followed the decision of the Privy Council in Manzur Hassan v. M. D. Zaman .
37. A similar question arose in Pyarelal v. Santlal, AIR 1972 Raj 103. The case arises under the Bikaner Municipal Act. The municipality of a certain town allowed temporary wooden stalls being put up for trade abutting a public road. Suits were filed challenging the legality of the act and for an injunction restraining the Municipality for letting out any portion of the public road in future and for a mandatory injunction for the removal of the obstruction one of the contentions that was raised was no suit can be maintained without proof of special damage. After referring to the decision of Privy Council in Manzur Hassan v. M. D. Zaman ) the Bench observed as follows.
'The above case before the Privy Council was clearly one-for the removed of public nuisance. We have referred to the definition of public nuisance above. It includes an act which causes or which must necessarily' cause injury, obstruction, or annoyance to persons who may have occasion to use any public right. An individual has a public right to pass along a public highway practising his religious observances peacefully and if any one interferes with this right, he commits public nuisance. A body of persons have the same right as an individual. A suit for declaration of such a right and for injunction restraining those who interfere with it is a suit for removal of a public nuisance.'
Again after referring to various other cases, the Bench observed as follows:
'From the above decision of their Lordships of the Privy Council, we infer that in case the right of any person to pass along a highway is obstructed or interfered with, he can maintain a suit without proving any other damage.'
38. Mr. Kesava Iyengar very strongly relied upon the decisions in Ramabrahma Sastri v. Lakshminarasinharn AIR 1957 A P 44 and Neti Gopalakrishna v. Narasimham, AIR 1958 AP 586. In Ramabrahma Sastri v. Lakshminarasimhan AIR 1957 AP 44 Viswanatha Sastry, - J. observed as follows (at p. 47):
'I am humbly of the opinion that apart from S. 91 C. P. C. and in conformity with its provisions, no action can he maintained by an individual against another for obstruction to a public highway without proof of special damage. This rule is founded on adequate reasons of public policy that a man who may have committed some public injury shall not be harassed by innumerable actions by persons who have not sustained any damage or injury peculiar to themselves. It had been enforced by Indian Courts as a rule of justice, equity and good conscience till 1924 and in my judgment, has not been abrogated by the decision of the Privy Council in .'
The learned Judge explained away the decision of the Privy Council on the ground that the case related to the right of the members of a particular section of the community to use the highway in a particular manner legitimately open to them.
39. The decision in Neti Gopalakrishna v. Narasimham AIR 1958 AP 586 is that of a Bench of the Andhra Pradesh High Court Subba Rao, C. J., extracted the observation of Viswanatha Sastry, J. hi Ramabrahma 'Sastri v. Lakshminarasimhan AIR 1957 AP 44 and stated (at p. 591):
We respectfully accept and adopt the aforesaid observations:
'Section 91 of the Civil P. C. recognises the said legal conception and creates a right of action to remedy a public nuisance with certain limitations. Under the section, in the case of a public nuisance the Advocate-General or two or more persons having obtained the consent in writing of the Advocate-General may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
Apart from this section no individual can maintain an action against another for a relief against public nuisance except on proof of special damage. The law vis-a-vis public nuisance has been firmly established. The public and every one thereof has a right to use the entire width of a public highway without obstruction.
Any person or body of persons or even a public body cannot interfere with that right unless statutorily or otherwise legally empowered to do so. Such an obstruction without any averment of special damage could be removed by following the procedure prescribed under Section 91. C. P. C.
But an individual cannot maintain a m7dt to remove it unless by reason of such obstruction special damage of a substantial character has been caused t* him or to his premises.'
40. But in a latter decision of the Andhra Pradesh High Court in Butchamma v. Venkateswararao : AIR1969AP136 a similar question arose again for consideration before Jaganmolian Reddy, C. J. and Chinnappa Reddy, J. (as he then was) It may be mentioned here that Jaganmohan Reddy C. J. was a party to the decision in Ned Gopalakrishna v. Narasimham AIR 1953 AP 586 strongly relied on by Mr. Kesava Iyengar. In this later decision, the Bench followed the decisions of the Privy Council in Manzur Hasan v. Muhammad Zaman ; Mandakinee Debi v. Basantakumari Debi ( : AIR1933Cal884 ); Municipal Commiltee, Delhi v. Mohammad Ibrahim, AIR 1935 Lah 196; Munuswami Chetty v. Kuppusami Chetty AIR 1939 Mad 691; and Subbamma v. Narayanamurthi AIR 1949 Mad 634 and held:
'right of public to pass and repass extended over every inch of street and plaintiff was entitled to, mandatory injunction for removal of obstructions without proof of special damage.'
41. On a consideration of the various decisions cited before me I am of the view that the consistent line of cases is to the effect that the English rule which requires proof of special damage in cases in which a member of the public prays for the removal of obstruction to the public way does not apply to India, As has been rightly pointed out by Wadsworth, J., if I may say so with great respect, the decision of the Privy Council in Manzur Hassan v. M, D. Zaman ( ) cannot be confined only to cases where a right of a section of 'the community to take out a procession along a highway is involved, but it deals generally with the whole class of cases governing the rights of the public to use the public way. In this respect, I am inclined to follow the Bench decision of the Andhra Pradesh High Court in Butchamma v. Venkateswararao : AIR1969AP136 and the Bench decision of the Rajasthan High Court in Pyarelal v. Santlal AIR 1972 Raj 103 and hold that it is not necessary for the petitioners to prove special damages for seeking the relief prayed for in the writ petitions.
42. The next argument of Mr. Kesava Iyengar is that the obstruction caused by the hawkers and vendors in the public street would only amount to a public nuisance and S. 91, C. P. C. provides that in the case of a public nuisance or other wrongful act affecting or likely to affect the public, a suit for a declaration and injunction may be instituted. Therefore, the remedy of the petitioners is only to file a suit under S. 91, C. P. C. When the petitioners have got an alternative remedy by way of suit and when they have not exhausted that remedy, the writ petitions have to be dismissed On that ground. I am unable to agree with the learned counsel. No doubt, the remedy of a civil suit under Sec. 91, C.P.C. may be an alternative remedy But the existence of an alternative remedy is not always fatal to the filing of the writ petitions. Of course, a writ of mandamus is not a writ of course or a writ of right but as a rule discretionary. It will be open, to the Court to refuse to exercise the discretion if there is an alternative remedy available at law.But the said alternative remedy must be equally convenient, beneficial and effectual. If the Court finds that the alternative remedy, will involve delay and no complicated questions of fact for consideration, then the, writ will not be refused on the ground of the existence of an alternative remedy. The Court will have to take a liberal view in determining whether or not a writ shall issue particularly so when the petitioners seek to enforce a performance of duties of a public nature. H. W. R. Wade in his Administrative Law,Fourth Edition, page 601 states:
'Instead of being astute to discover reasons for not applying this great constitutional remedy for error and mis-government, we think it our duty to be vigilant to apply it in every case to which by any reasonable construction it can be made applicable (R. v. Hansky Revising Barrister (1912) 3 KB 518)'.
Mr. Kesava. Iyengar very heavily learned on the decision of the Bombay High Court in Dinbai Petit v. M.S. Noronha : AIR1946Bom407 which dealt with the scope of Section 45 of the Specific Relief Act, 1877. In, that case it was found that a, writ , of mandamus could no' be issued when the alternative remedy of a suit is available. To quote Chagla, J., in, his concurrent judgment.
'I see no reason to restrict 1he meaning of the expression specific and adequate legal remedy: to merely:remedy given by a statute and not an ordinary right of suit. The question which the Court has to consider in every case is whether the alter native remedy, whether it be a right of suit or a. specific remedy. given by a statute, is as canvenient, as- beneficia I and as effectual as the remedy which the Court can grant under Section 45 Specific Relief Act. I do not think it -is possible to. urge that ' tile right of suit is not a specific ,and, adequate legal remedy , as contemplated by Section 45 Specific Relief Act'.
However is significant to state that on the facts of that case the learned Judges of the Bombay High Court held that the right of suit was not as convenient and effectual as was the application under Section 45 of the Specific Relief Act, in view of the fact that no suit could be filed against the Government until the expiry of 60 days notice as provided in Section 80) C. P. C.
43. The next decision cited by Mr. Kesava Iyengar is that in New Satgram Engg. Works v. Union of India : 1SCR406 . All, that the Supreme Court has held in that case is that where there is a dispute as to whether a particular property vests or not under the provisions of the Coal Mines (Nationali8ation) Act, 1973 is a civil dispute and can only be decided by' a Civil Court. These two decisions do not in any manner affect tile maintainability of the present writ petitions.
44. In this case, it is admitted in the counter, affidavits' that the hawkers are, trading in tile pavements of Ranganathan street Ratan, Bazaar Road and N. S. C Bose Road which are public streets within the meaning of the Act. I have already found that the petitioners have, as occupiers of shops in these roads, the, right of getting on to the street from any point in their shops which is a, private right and they have also got the right along with the members of the public to pass, and repass over every inch of the public street without any obstruction in any manner. The Act clearly enjoins the first respondent to remove unauthorised encroachments or obstructions from the public street. On the facts and circumstances of this case, I am of the view that the remedy of suit will not be an effectual and speedy remedy. I therefore reject the contention of Mr. Kesava Iyengar on the ground of alternative remedy.
45. In the result , I overrule the preliminary objection raised by Mr. Kesava: Iyengar that the writ petitions are liable to be dismissed in limline on the various grounds.
46. The next question to be considered is whether the petitioners are entitled to the issue of a writ of mandamus on the merits. The State Government, the third respondent herein, has not filed any,: counter-affidavit. I have already, extracted the averments in the affidavits filed in support of the writ petitions relating to Ranganathan Street as well as in the writ petitions relating to Rattan Bazaar Road and N. S. C. Bose Road. In the affidavit filed in support of the W. P. No, 2416 of 1992 it is stated that hawkers have occupied the entire length of Ranganathan St. The total width of the street is said to be only 30' and the hawkers are said to occupy 9' on either side of the street and thus the presence of these hawkers causes insurmountable nuisance and hindrance to the free move ment of the Public. Similarly in the affidavit filed in support of the writ petitions relating to Rattan Bazaar Road and N. S. C. Bose Road it is clearly averred that after the disposal of W. P. No. 878 of 1979, the encroachments on the pavements were removed, but the vendors began to reappear, in October, 1980. It is further ayerred that the, first , respondent with the concurrence of the second respondent had marked out plots measur ing 5'x4' on the. western side of 'the N. S. C. Bose Road and allotted the same to various vendors . with effect from 1-1-1981. The pavement on the western side of N. S. C. Bose Road is said to be of a width of 5 ft. only for the most part and of a width of 7 ft. only for a small length of the road., It is fur ther stated that the marked plots practically occupied the entire width of the pavement leaving no room for a pedes-trian to , walk. In the Rattan Bazaar Road plots each of an extent,of '5x4' are marked out on the pavements on the southern side. In the result, practically' no space is left for the pu.blic to walk along the road. In W. P. Nos. 2415 and 2416 of 1982 a common counter- affidavit has been filed by the Commissioner, Cor poration of Madras. There is absolutely no denial of the allegations made in the affidavit filed in support of the writ petitions viz., the hawkers are occupying 9 f t. on either side of Ranganathan Street. On the other hand, it is state.as follows in paragraph 5 of the counter affidavit: 'I submit there are only two issues involved in this case viz., (1) whether the Corporation of Madras has got power to allow the vendors to run business on the pavement in Ranganathan Street and (2) whether such allowing would amount to nuisance.' There is thus a clear admission in the counter affidavit filed by tile Commissioner Corporation of Madras that hawkers occupied pavements on either side- of, Ranganathan Street. It is unnecessary to go into the allegation of Mr. M. Raghavan that there are no pavements in Ranganathan Street because it is not the case of the Commissioner in the counter affidavit that the pavements do not form part of Ranganathan Street. The 4th respondent in W. P. No. 2416 of 1982 has filed a counter-affidavit. There is no denial of the allegations made in tile affidavit that the width of Ranganathan Street is only 30 ft. and the hawkers carry on business occupying 9 ft. of the street on either side. On the other hand, para 9 states : 'Regarding the averments made in paragraphs 2 to 4 the petitioner is put to strict proof of the same and I submit that the business of the petitioner is in no way affected by the existence and the carrying on of the respondents, trade in Ranganathan Street.' The fourth respondent in W. P. No. 1127 of 1980 has filed a counter affidavit. He has also not denied the averments specifically made in the affidavit that the width of Ranganathan Street is 30 feet, and the hawkers occupied 9 ft. on either side of the street. Or the other hand, it is stated in paragraph 9 'I submit that the business of the petitioner is in no way affected by the existence and the carrying on of the respondents, trade in Ranganathan Street. It can therefore be taken as admitted that the hawkers are occupying for the purpose of their trade 9 ft. on either, side of Ranganathan Street and the width of Ranganathan Street is only 30 feet.
47. As regards N. S. C. Bose Road and Rattan Bazaar Road the Commissioner has filed a counter affidavit in W. P. No. 7078 of 1980. Here also I do not find any specific denial of the allegations.made in the affidavit filed in support of the writ petitions that the hawkers have been allowed to occupy the pavements of Rattan Bazaar Road and N. S. C. Bose Road The counter-affidavit states.
'It has been stated that the selling of goods on the Pavements is causing great inconvenience to the general public who use the pavements. To get over this situation and at the same time to -help the street vendors to earn their livelihood the Corporation, selected a few sites on pavements wherever the 'width, of the pavement is wide enough to accommodate the footpath and hawkers and prohibited tile hawkers in other places ........ As already stated these- vendors are permitted: only in the area where the pavements are broad.' It is again stated in paragraph 12: 'With regard to the averments of the petitioners as contained in para. 11 it is stated as follows. The statement that the marked plots practically occupy the entire width of pavement, leaving practically no room for a pedes-trian to walk is totally wrong. A minimum clear width of 2.5 meters of pavement is avai lable, after allowing for stalls, for pedes-trians to walk.'
48. The additional respondent has not filed any counter-affidavit in the writ petitions. However, in the affidavit filed in support of W. M. P. Nos. 449 and 450 of 1981 it is admitted that the hawkers have been permitted to carry on their trade in certain sections of Rattan Bazaar Road and N. S. C. Bose Road. They have not filed any counter-affidavit denying the averments in the affidavit filed in support of the writ petitions that the existence of these hawkers on the pavements of Rattan Bazzar Road and N.S.C. Bose Road makes it difficult for members of the public to freely pass and repass and for even shopkeepers' to have access to the concerned roads. It has therefore to be taken as admitted that the hawkers have been permitted to carry on their trade on certain portions of the pavements of Rattan Bazaar Road and N. S. C. Bose Road. Though the Commissioner has stated that the permission has been granted to hawkers to carry on trade only in places where the pavements are broad, the measurements of the pavement given by the petitioners had not been denied. It is in the light of the admitted facts the question has to be considered whether the Corporation has got the power or authority under the provisions of the Act to permit the hawkers to carry on their trade in Ranganathan Street, Rattan. Bazaar Road and N. S. C. Bose Road and whether the presence of these hawkers causes obstruction to the public street.
49. It is not disputed that in the earlier writ petition the first respondent took the stand that they had permitted the hawkers to occupy the pavements in Rattan Bazaar Road and N. S. C. Bose Road in exercise of their power under Section 223 (2) of the Act. In these writ petitions they have rightly not claimed to have exercised the power under Section 223 (2) of the Act. Section 223 (2) of the Act empowers the first respondent to grant a licence with the concurrence of the Commissioner of Police only for putting up any temporary construction in any street or in any public place the control of which is vested in the corporation. Further such a licence cannot also be granted if 'he projection or construction is likely to be injurious to health or cause public inconvenience or otherwise materially interfere or result in material interference with the use of the road as such. Section 223 (4) empowers the first respondent to remove such construction without notice after the expiry of the period of licence. The power that is now invoked by the first respondent is that under Section 223 (5) of the Act which empowers the council to lease road sides and street margins vested in the corporation for occupation on such terms and conditions and for such period as it may fix. As regards Ranganathan Street. it is admitted that the first respondent has farmed out the right to collect fees from the hawkers who trade on the pavements of Ranganathan Street. I put a specific question to the learned counsel for the corporation whether a lease or licence has been granted to any specified individual or specified number of individuals to carry on trade in the pavements of Ranganathan Street. The learned counsel frankly stated that he was not in a position to produce any records to show the particulars of individuals to whom a licence or lease has been granted by the corporation, Unless the first respondent is in a position to inform the Court that a licence or lease has been granted to certain specified individuals, then the first respondent could not have farmed out the right to collect fees from such licensees or lessees. From the facts disclosed to me by the first respondent it looks as if the first respondent has permitted the contractor to permit such hawkers as he might consider fit to carry on trade in the pavements of Ranganathan Street and collect 25 paise per day from each of such hawkers. The learned counsel for the first respondent was not even in a position to tell me whether the corporation has fixed at least the number of hawkers who are allowed to carry on their trade. In such circumstances, I am of the view that so far as Ranganathan Street is concerned there is absolutely no licence, let alone a lease granted by the first respondent, to any specified individual or individuals either in exercise of the powers under Section 223 (2) of the Act or under Section 223 (5) of the Act
- As regards Rattan Bazaar Road and N. S. C. Bose Road excepting for the statement that ~the Corporation has marked out and permitted the hawkers to occupy certain portions of the pavements of the two roads where it is broad, no lease deeds as such were produced before me. But Mr. K. V. Sankaran on behalf of respondents 4 and 5 states that such lease deed-, could not be executed in view of the filing of the writ petitions.
50. This leads me on to the question as to what is the scope of the power vested in the council under Section 223 (5) of the Act? Section 223 (5) of the Act empowers the council only to lease out road sides and street margins. Road sides and street margins mentioned in Section 223 (5) of the Act are entirely different from public streets or portions thereof. Section 223 (5) does not authorise the council to lease out a public street or a portion thereof. I have already referred to the definition of a public street in 2 (20) of the Act which includes the pavements also. I have also referred to a street alignment as meaning a line dividing the land comprised in and forming a part of a street from the adjoining land. The definition of a street alignment means that the road extends up to the adjoining land which may be any other land vested in the corporation or Government paremboke land or land belonging to a private owner. Therefore, the pavements on which the hawkers are carrying on their trade cannot be called as a roadside or street margin. If so, the first respondent cannot grant any lease under Section 223 (5) of the Act. Once it is held that the hawkers are carrying on their trade only in the public street, the further question that would arise is whether the hawkers can be allowed to continue their trading activities in such public streets and what is the duty of the corporation in this regard and what is the right of the general public to use such public streets. As has been seen already, both the English and Indian decisions state that the right of the public is to pass and repass along the public street and such a right extends over the whole width and every inch of the public street. The duty of the corporation is to maintain the public street for the public safety and convenience. Section 204 of the Act states that the corporation shall cause the public streets to be maintained and repaired and may make all improvements thereto which are necessary or expedient for the public safety or convenience. The public street vests in the corporation only for the purpose of being maintained and used as a public street and not for any other purpose such as letting out or leasing out for purposes not contemplated under the provisions of the Act. I therefore hold that the first respondent has acted without jurisdiction in permitting these hawkers to trade in the pavements of Ranganathan Street, Rattan Bazaar Road and N. S. C. Bose Road.
51. Mr. Kesava Iyengar argued that the hawkers have got a fundamental right to trade on a public street. In this connection, the learned counsel cited the decision in C. S. S. Motor Service v. State of Madras : AIR1953Mad279 . The question that arose for consideration before a Bench of this Court was whether a citizen has a right to ply transport vehicles on Public pathway as a matter of right. After referring to the various authorities the Court observed as follows (para 24):-
'The true position then is that all public streets and roads vest in the State but that the State holds them as trustee on behalf of the public. The members of the public are entitled as beneficiaries to, use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustee on behalf of the public is entitled to, impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally. Thus the nature of the road may be such that it may be suitable for heavy traffic and it will be within the competence of the Legislature to limit the use of the Streets to vehicles which do not exceed specified size- and weight. Such regulations have been held to be valid as within the police power of the State in America... for the same reason the State might even prohibit the running of transport buses and lorries on particular streets or roads if such running would interfere with the rights of, pedestrians to: pass and repass as it might if the street is narrow or conjested, but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways.'?
52. This decision was approved by the Supreme Court in Saghir Ahmad v. State of U. P. : 1SCR707 , where Mukherjea, J., speaking for the Court observed thus (Para 9):
'According to English law, which, has been applied all along in India, a high way has its origin, apart from statute ,in dedication, either express or implied, by the owner of land, of a right of passage over it to the public and the acceptance of that right by the public (vide Pratt and Mackenzie on Law of Highways, 191b edn. page 13). In the large majority of cases this dedication is presumed from long and uninterrupted user of a way by the public, and the presumption in such cases is so strong as to dispense with all enquiry into the actual intention of the owner of the soil and it is not even material to enquire who the owner was. The fact that the remembers of the public have a right of passing and re-passing over a highway does not mean however that all highways could be legitimately used as foot passages only and that any other user is possible only with the permission or suifterence of the State. It is from the nature of the user that the extent of the right of passage has to be inferred and the settled principle is that the right extends to all forms of traffic which have been usual and accustomed and also to all which are reasonably similar and incidental thereto.The law has been thus stated in Halsbury's Laws of England (Vide Vol. 16. P. 185): '... ' But the right of the pub lic to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the : Motor - Vehicles, Act. The right exists anterior to any legislation on this subject as an incident of public rights over a' highway.The State only controls and regulates it for the purpose of ensuring safety, peace,health and good morals of the public.Once the position is accepted that a member of the public is, entitled to ply motor vehicles on the public road as an , incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect to the highway is not in any way affected thereby and we cannot agree with the learned Advocate-General t hat the user of, a public road for purposes of trade is an extraordinary or special use of the highway which can be acquired only under Special Sanction. from the State.'
These two cases are clearly distinguishable. As 'has been observed by Mukherjea, J. the right of plying motor vehicles is only an incident of public rights over a highway and it is immaterial whether a person plies a vehicle for pleasure or for the purpose of his trade.
53. In Pyare Lal v. Delhi Municipality, : 3SCR747 the Supreme Court was concerned with the question, whether a citizen hag got a fundamental right to trade in a public street. The Writ petition was filed for the issue of a writ restraining the New Delhi Municipal Commitee from interfering with the petitioner's right to carry 'on his trade on a site beside the service lane at the back of a shop off Janpath, New Delhi it was admitted that the site was part of a public street. He was granted a licence by the municipality on a monthly fee of Rs. 25/-. Thereafter, the municipality decided to allot alternative sites to, the various squatters and the petitioner was 'not given an alternative site. When the municipality attemped to remove him he filed the writ petition. 'After referring to a passage from Halsbury's' Laws of England, Vol, 33 (Third Edition) Article 998 at page 586 headed 'regulation o f street trading', Mitter, J. observed as follows:-.
'It would appear that street trading is regulated by certain statute in England a d we have nothing of, the kind here, On the basis, of the above passage, it cannot be said that persons in India have a lawful right to pursue street trading and such trading may be regulated but not altogether prevented. On the authority of Roberts v. Hopwood, 1925 AC 578 it was argued by learned counsel that Section 173 at best gave discretion to the committee to regulate street trading and therefore the same has to be exercised reasonably and could not altogether be prevented.'
The Supreme Court after holding that the citations referred to in , Roberts v. Hopwood, 1925 AC. 578. and Pyx Granite Co. v. Ministry of. Housing (1958) 1 All ER 625 have no bearing on the question before them, further observed thus (at P. 138 of AIR 1968 SC):
'Clearly the presence of the stall holders on public streets and sale of cooked food was against public hygiene and Section 173 (1) could be availed of to stop the same. Learned counsel also cited the case of C. S. S. Motor Service v. State of Madras, : AIR1953Mad279 . There it was argued that the petitioners had a right to carry on motor transport business and that this was a right guaranteed under. Article 19(1)(g) of the Constitution. It was held that the regulation of motor traffic must be determined with the object of serving 'the interests of the public. Further it was held that a system of licensing which had for its object the regulation of trade was not repugnant to Article. 19(1)(g). We do .not think that the observations in that case are of any assistance to the appellants. It appears to us that this series of litigation was the result of the, N. D. M. C. allowing trade of a kind on public streets which it should have never allowed. Out of sympathy for them the N. D. M. C. bad permitted the continuance of the trade -for a long, time. But no exception can, be taken to their exercise of power, tinder Section 173 of the Punjab Municipal Act to eradicate the evil. After all, every person has a right to, pass and repass along a public street. He cannot be heard to say that he has a fundamental right to carry on street trading and particularly in a manner which is bound to create insanitary and unhygienic conditions in the neighbourhood.'
54. The same principle was laid down by the Delhi High Court in Prakash v., Municipal Corporation of Delhi,' , Where the Delhi High Court has observed as follows:-
'Streets are primarily meant to provide passage.. They have to be kept clear for the use for which they are meant and the corporation is specifically charged by the Act as shown hereafter with the duty to do so. . Assuming therefore that the business for which the licence is required under Section 420 or the things for the placing of which permission is required under Section 321 are fundamental rights the restrictions imposed by these two sections are pre-eminently reasonable and in public interest and cannot be assailed as infringing- Art. 19(1)(g) of the Constitution.'
55. I am therefore unable to uphold the contention of Mr. Kesava lyengar and Mr. Sankaran that the hawkers have got a fundamental right to carry on their trade in public streets.
56. Mr. Kesava Iyengar then contended that the hawkers have been permitted .to carry on their trade only between 5.00 and 9.00 p. m. on a day and if at all there is any restriction of the right of the petitioners and the public at large to pass and repass ever the public street it is only between 5'00 and 9.00 p. m. every day and that such a restriction will be a reasonable restriction. I have already found that the hawkers have no fundamental right to carry on trade on public streets. The members of the public have the right to pass and repass at their pleasure for the purpose of legitimate travel. This right of their cannot be restricted to particular hours. Further it is a matter of which judicial notice can be taken that the time is such when one could normally expect movement of heavy traffic through the streets. In this connection, it will be useful to refer to the following passage from the judgment of Mathew, J. in Himat Lal v. Police Commr., : 2SCR266 where the learned Judge had to consider the right of a person to hold meetings on public streets during particular hours. Mathew, J. observed as follows (at Pp. 98 & 99):-
'The only right acquired by the public is a right to pass and repass it at their pleasure for the purpose of legitimate travel...... A meeting held on highway,although it might be a trespass againstthe authority in which the highway is vested is not, on the ground, wrongful members of the public. As far as they are concerned. the meeting is it is a nuisance. As the public are entitled to, the unobstructed .use of the highway for passing and re passing, any meeting which, appreciably obstructs the , highway would seem , to constitute such a nuisance. The test is whether it renders the way less commodious than before to the public. The fact that sufficient altern'ative passage space is left is no defence.'
In this case, the question of reasonableness does not arise as the hawkers have --no fundamental right to, carry on trade on public street. Further the carrying on trade by the hawkers in public streets is a public nuisance. Therefore, to quote Mathew. J. the test is whether it renders the way less commodious than before to the public and the fact that sufficient alternative passage space is left or there is no obstruction to the public way during the other hours of the day is no defence. The citation referred to by Mr. Kesava Iyengar in Paul v. Robson, ILR 42 Cal 46 : AIR 1914 PC 45 is clearly distinguishable. That was a case of an easement of light and air and the Privy Council followed the legal test formulated in such actions by Lord Devey in Coll's case 1904 AC 179 that 'the owner of the dominant tenement is entitled to the uninterrupted access through his ancient windows of a quantity of light, the measure of which is what is required for the ordinary purpose of inhabitancy or business of the tenement according to the ordinary notions of mankind.'
57. Further, as argued by the learned counsel for the petitioners, to carry on trade on public streets, since it amounts to public nuisance, is an offence punishable under the I. P. C. Section 268 of the I. P. C. states:
'A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or advantage.'
58. In Queen Empress v. Virappa Chetti, ILR (1896) Mad 433 the accused was charged with the offence of causing obstruction in a public way. The Magistrate acquitted the accused on the ground that the encroachment did not cause any danger, observation or annoyance to the public. On appeal the court observed as follows:
'It may be that Section 283 is inapplicable in the absence of evidence that danger, obstruction or injury was caused to any particular person, but the acts of the accused clearly fell within the definition of a public nuisance in S. 268, I P. C. and was therefore punishable under Section 290 I. P. C.'.
59. Section 71(xi) of the Madras City Police Act states:
'Whoever, in any public place commits any of the following offences, shall be liable on conviction to fine not exceeding two hundred and fifty rupees, or to imprisonment which may extend to three months:-
(xi) in any way wilfully obstructs or causes obstruction to the free passage of any thoroughfare.'
60. From the above provisions it is clear that by permitting the hawkers to carry on trade in the public street, the respondents 1 to 3 are allowing the hawkers to commit an offence.
61. Mr. Kesava Iyengar then contended that the hawkers are carrying on a trade which is useful to the public and it is necessary in public interest. Further, the carrying on the trade by these hawkers in these public streets is more convenient and advantageous to the public at large. That is why, the corporation of Madras has permitted the hawkers to carry on their trade in these public streets by allotting specific portions of the road and by collecting a nominal fee. In view of the fact that the carrying on trade by these hawkers in these public streets is more convenient and advantageous to the public, these hawkers should be allowed to continue their trade in these streets. I do not agree. A common nuisance cannot be excused on the ground that it causes some convenience or advantage. It is no defence to an action of public nuisance that the trade of business in question is a useful one and one which is necessary in public interest. In Adams v. Ursell 1913 1 Ch 269 an injunction was granted restraining the defendant from carrying on the business of a fried fish shop although it was proved that there were large works in the neighbourhood and that it was principally inhabited by the working classes and it would be a great hardship both to the defendant and to the working people who came to the shop for food to stop the defendant carrying on the business there.
62. Mr. Kesava Iyengar then put forward a contention that the petitioners are all shop owners who had come to a busy street of the city with the knowledge that the street is crowded and cannot therefore complain of the nuisance. In other words, the learned counsel submitted that the petitioners having come to the place of nuisance must suffer the same. In Bliss v. Hall 1838 4 BNC 183 the defendant had set up a tallow chandlery which emitted 'diverse, noisome, noxious and offensive vapours, fumes, smells and stenches to the discomfort of the plaintiff who had taken a house near it. It was held to be no defence that the business had been in existence for three years before the plaintiff's arrival, for he came to the house, with all the rights which the common law affords and one of them is a right to wholesome air. In Ratlam Municipality v. Vardhichand : 1980CriLJ1075 Krishna Iyer, J. observed as follows (at p. 1630):
'A strange plea was put forward by the Municipal Council before the High Court which was justly repelled, viz.,that the owners of houses had gone to that locality on their own choice with eyes open and, therefore, could not complain if human excreta was flowing, 'dirt was stinking, mosquitoes were multiplying and health was held hostage. A public body constituted for the principal statutory duty of ensuring sanitation and health cannot outrage the court by such an ugly plea.'
Therefore, there is no merit in the contention of Mr. Kesava Iyengar that the petitioners having come to the place of nuisance must suffer the same.
63. Mr. K. V. Shankaran cited the decisions in Board of Trustees, Port of Bombay v. D. R. Nadkarni : (1983)ILLJ1SC and D. S. Nakara v. Union of India : (1983)ILLJ104SC and argued that the right of the hawkers to trade in the public street in question amounted to a right of life and if they are directed to be removed Art. 21 of the Constitution would be attracted. I am unable to see how the decisions cited by the learned counsel are applicable to the facts of this case; nor how the right of the hawkers under Art. 21 would be affected.
64. To sum up, I bold that by permitting these hawkers to carry on trade on the pavements of Ranganathan Street, Rattan Bazaar Road and N. S. C. Bose Road, the first respondent has permitted an unauthorised obstruction or encroachment on public streets within the meaning of the Act, and consequently they are bound to act according to law to remove the encroachments. The petitioners have established their right for the issue of a writ of mandamus directing respondents 1 and 2 to act according to law and remove the encroachments on public streets viz., Ranganathan, street, Rattan Bazaar Road and N. S. C. Bose Road by removing the hawkers from the pavements of the respective roads.
65. I shall be failing ir my duty it before declaring the relief to which the petitioners are entitled I close my eyes to the other side of the picture. Before I do that, it is necessary to extract the following observations of Lord Denning regarding the proper role of a judge (vide Law versus Justice by Justice V. R. Krishna Iyer, Page 24):
'My root belief is that proper role of a Judge is to do justice between the parties before him. If there is any rule Of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid that rule - or even to change it so as to do justice in the instant case before him. He need not wait for the legislature to intervene because that can never be of any help in the instant case. I would emphasise, however, the world 'legitimately' the judge is himself subject to the law and must abide by it.'
In the present case we are faced with a living problem. The core of the defence lies in their battle to live. To issue a Writ of mandamus directing the first respondent to throw overboard these hawkers overnight would be to ignore the economic realities of the situation. Hundreds and hundreds of these hawkers, men and women, depend for their daily bread on the small trade they carry on, They have resorted to these pavements not for pleasure and entertainment but to carry on their trade, to win their daily bread, to keep themselves and the members of their family clothed and free from hunger. They have come to these pavements because they cannot afford the wherewithal to rent out shops and showcases for their trade in the city of Madras at the rate of Rs. 4 or Rs. 5 per sq. ft. as stated by the petitioners. Every man and woman, however poor he or she may be, is entitled to human equality with his or her fellow beings and is entitled to live with dignity by carrying on a trade or occupation of his or her choice. Every citizen is entitled to the minimum needs which will enable him to realise his personality within his or her native endowment. The American Declaration of Independence declares that all men are created equal, th4t they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty and the pursuit of Happiness; that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. To quote Harold.Laski from his 'A Grammer of Politics (1925) page 14271-72:
'Equality, therefore, involves up to the Margin of sufficiency identity of response to primary needs. And that is what is meant by justice. We are rendering to each man his own by giving him what enables him to be a man. We are, of course, therein protecting the weak and limiting the power of the strong. We so act because the common welfare includes the welfare of the weak as well as of the strong. Grant, as we may well grant, that this involves a payment by society to men and women who limp after its vanguard, the quality of the state depends on its regarding their lives as worth preserving. To act otherwise is to regard them not as persons but as instruments...
66. The goal of the Constitution among others is the attainment of justice social, economic and , political and equality of status and opportunity. Part IV of the Constitution enjoins that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social, order if, which justice, social, economic and political shall inform all institutions of national life. While Art. 19(1)(g) declares that all citizens shall, have the fundamental right to practise any profession or to carry on any occupation, trade or business, Art. 39(a) directs the State to formulate its -policy towards securing that the citizens, men and women, equally have the right to adequate means of Livelihood. Our Constitution guarantees equality before law. The doctrine of the welfare State is based on the principle that the greater economic and Social good of the greater number requires greater intervention of Government and ' adoption of public measures aimed at general economic development. Today the intervention of the Government is required in every, aspect and system of life. One of the half-marks of a welfare State is to furnish direct service to the members of the political community by providing the necessary amenities to carry on their trade and occupation, to lead a dignified life, and' secure the primary comforts, unemployment benefit etc. It is, therefore, clearly the duty of the Government in a welfare State to take note of the conditions in which large number of the weaker sections of the community are compelled to carry on their trade and to see that they are provided with the necessary amenities to carry on their trade or occupation as guaranteed by Art. 19(1)(g) of, the Constitution, of India and as enjoined by the Directive Principles enshrined in the Constitution, In the case of these hawkers who fight for their very livelihood in these writ petitions, what is necessary is a place, viz., a market place where they can carry on their lawful trade . It is therefore, the duty of the third respondent, the State, to provide an alternative site where these vendors can carry on their trade in respect of which they have got a fundamental right, though not a fundamental right to trade on public street. From the point of view of the State, it will take time to make necessary alternative arrangements to enable these hundreds and hundreds of street vendors to carry on their trade.; Equally, as I have already stated, it will amount to practically depriving these hawkers of their daily bread if they are ordered to be removed,.from the streets overnight. I therefore consider it appropriate that respondents 1 to 3 are granted twelve months time to make alternative arrangements and to remove the obstruction on these public roads, viz..,,. Ranganathan Street, Rattan Bazaar Road and N. S. C. Bose Road. Of course these hawkers cannot insist that alternative sites of their choice should be allotted in the meanwhile it is equally necessary to, give direction to the first respondent not to permit any more persons to make, encroachments on these roads for purpose of carrying on trade. A writ, of. Mandamus will be issued on the above terms.
67. There will be no order as to costs,
68. Order accordingly.