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PETITIONER:

N.JAGADEESAN ETC.

Vs.

RESPONDENT:

DISTRICT COLLECTOR, NORTH ARCOT AND ORS.

DATE OF JUDGMENT: 21/02/1997

BENCH:

B.P. JEEVAN REDDY, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

B.P.JEEVAN REDDY,J.

Leave granted in the Special leave Petition.

A common question arises in these writ petitions and

civil appeals.

The National Association of Education Self-Employed

Youth [NAESEY] is the petitioner in Writ Petition (C)

No.1000 of 1987. The appellants in Civil Appeal No.1710 of

1987 and Civil Appeal No._____ of 1997 [arising form Special

Leave Petition (C) No.20689 of 1993] and the writ petitioner

in Writ Petition (C) No.365 of 1987 are members of this

Association. It is stated that this Association was formed

under the inspiration and guidance of Dr. Malcolm

S.Adiseshaiah, the then Vice-Chancellor of the Madras

University, and with the help of Madras University

Employment Guidance Bureau. The members of this Association

have installed bunks/kiosks within the premises of hospitals

and medical colleges and on the road margins in the cities

of Madras, Vellore and Tiruppur in the State of Tamil Nadu.

Complaining that they are sought to be evicted form their

premises otherwise than in accordance with law, one of the

members of the Association, N. Jagadeesan, approached the

Madras High Court by way of a writ petition. It was

dismissed. The writ appeal preferred by him was also

dismissed against which Civil Appeal No. 1710 of 1987 is

preferred. A writ petition filed by the Association [Writ

Petition (C) No. 12916 of 1987] was also dismissed similarly

against which Special Leave Petition(C) No. 20689 of 1993 is

preferred. The Association has filed two writ petitioner

under Article 32 of the Constitution, viz., Writ Petition

(C) Nos. 1000 of 1987 and 365 of 1987. One of its members,

Tmt. Tamilselvi and others have filed Writ Petition (C)

No.677 of 1995 directly in this Court. Counters have been

filed on behalf of the respondents, according to which the

position boils down to this:

(1) Insofar as the kiosks located within the premises of

hospitals and medical institutions in the State are

concerned, it is stated that Health and Family Welfare

Department of the Government of Tamil Nadu has directed the

removal of the said bunks/kiosks on the ground that they

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are posing a hazard to the health and well being of the

patients and others visiting the hospitals and the

institutions. It is stated that these bunks and kiosks are

creating unhygienic conditions by littering the place and

that the food items provided by them are also being consumed

by the in-patients and other patients visiting the hospitals

which is proving to be deleterious to their health and

treatment. It is also stated that several persons are

gathering around these bunks/kiosks which is interfering

with the smooth and peaceful working of the hospitals and

other medical institutions.

(2) So far as the bunks/kiosks located on the street-

margins are concerned, it is stated that only the

bunks/kiosks in three main thoroughfare in Madras [specified

in the counter-affidavit] and one thoroughfare each in

Vellore and Tiruppur are only being removed because they are

proving a traffic hazard. It is stated that these

thoroughfares are carrying very high volume of multimodal

traffic ranging from bullock carts to fast moving vehicles

and that having regard to the increasing volume of traffic,

it has become necessary to remove these bunks/kiosks and re-

locate them elsewhere. This removal is also necessary, it is

stated, for widening the roads has reduced the width of the

footpath and the existence of bunks/kiosks on such reduced

footpath margins is causing further obstruction in the free

movement of the people. It is clearly stated in the counter-

affidavits filed on behalf of the Government of Tamil Nadu

that the bunks/kiosks from all the thoroughfare/roads are

not being removed but only bunks/kiosks from certain

extremely busy roads/thoroughfares, as specified in the

said affidavits, are being removed. It is also stated that

so far as other roads are concerned only one or two

bunks/kiosks may require to be removed depending upon the

exigencies of the situation. Otherwise there has been no

removal or attempt to remove the bunks/kiosks in other road

margins or thoroughfare. It is further stated in Para 8 of

the common counter, sworn to by N. Radhakrishnan, Additional

Secretary to the Government of Tamil Nadu, that "in respect

of places where the kiosks/bunks are existing, apart from

the 3 places mentioned above and also in respect of any

other place which may be suitable for locating the

kiosks/bunks, permission would be granted by the concerned

department considering the need and other relevant

circumstances". It is, of course, clarified that "such

permission would not also amount to grant of any unfettered

right for the grantee, since it would be purely temporary

and subject to removal if the premises is required for other

public purpose". Another statement contained in the said

affidavit is to the following effect: "there has been no

removal or attempt to remove bunks/kiosks with a view to

allow any other person to locate the said bunks/kiosks with

a view to allow any other person to locate the said

bunks/kiosks in the said place". The above statements in the

counter-affidavit are recorded herewith.

We are of the opinion that the appellant-petitioners

can have no legitimate grievance against the action taken to

remove their bunks/kiosks inasmuch as the removal is

confined only to (i) hospitals and medical institutions and

(2) road margins of main thoroughfares, viz., three

specified thoroughfares in Madras city and one each in

Vellore and Tiruppur. The reasons given by the State for

removing them are reasonable and acceptable. It is also

specifically averred by the State that they are not removing

any bunk with a view to allow some other person to install a

bunk in that place. The removal is only for the purpose of

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removal of health hazard or in the interests of smooth and

unobstructed flow of traffic. Indeed, the Government has

offered to consider the applications, if any, made by the

evicted persons for locating them on other road margins or

premises, as the case may be .

Sri R.Venkataramani, learned counsel for the appellant,

has placed strong reliance upon the Constitution Bench

decision of this Court in Sodan Singh v. New Delhi Municipal

Committee [1989 (3) S.C.R.1038]. It is true that the said

judgment does recognise that a member of a public is

entitled to legitimate user of the road other than actually

passing or re-passing through it. But this is clarified by

the statement that such user shall not create an

unreasonable obstruction which may inconvenience other

persons having similar right to pass. It is also pointed out

in the said judgment that what constitutes public nuisance

is a question of fact to be decided in each case having

regard to all the relevant circumstances. In our opinion,

by seeking to remove the bunks and kiosks located within the

hospital premises or within the premises of other medical

institutions or their removal from the road margins of

important and busy thoroughfares in the aforesaid three

cities in Tamil Nadu, the respondents are not acting in any

manner inconsistent with the propositions enunciated in the

said judgment. We are not able to say that the reasons

assigned are neither relevant nor germane nor is it possible

to say that reasons given are only a make-believe.

It shall, of course, be open to the persons who are

evicted to apply to the appropriate authorities for re-

location in other appropriate areas/roads margins and we are

sure that the concerned authorities will consider their

representations and pass orders thereon without any

avoidable delay.

The writ petitions and appeals are accordingly

dismissed with the above observations. No costs.