Dismissed

Saiyed Noorali Lalmiya Son of Saiyed Lalmiya v. State of Gujarat

Gujarat HC1 Dec 2021SCA/10853/2016

Case brief

AI extract

What is this about?

This court dismissed petitions seeking to quash eviction notices and regularize shops under the Street Vendors Act. The bench held that petitioners were outsiders to the lease which expired in 1971 without renewal and did not qualify as street vendors for the Act's protection.

What did the court decide?

Evasion notices were upheld; petitions for quashing notices and regularization under the Street Vendors Act were dismissed.

Saiyed Noorali Lalmiya Son of Saiyed Lalmiya Vs State of… — Landlord and Tenant | Gujarat HC (2021)

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C/SCA/10853/2016 ORDER DATED: 01/12/2021

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 10853 of 2016

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With R/SPECIAL CIVIL APPLICATION NO. 10854 of 2016

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SAIYED NOORALI LALMIYA SON OF SAIYED LALMIYA & 9 other(s) Versus STATE OF GUJARAT & 3 other(s)

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Appearance:

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MR SUBRAMANIAM IYER(2104) for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9 MR MEET THAKKAR, ASST GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 1

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MR MEHUL H RATHOD(701) for the Respondent(s) No. 4 NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3

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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV

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Date : 01/12/2021

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ORAL ORDER

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Both these petitions filed under Article 226 of the Constitution of India are challenging the notices dated 27.05.2016 issued by the Kalol Nagarpalika and the present petitioners have sought a direction not to evict the petitioners from their respective shops and regularize the cabin in compliance of the provisions contained in the Street Vendors Act.

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The case of the petitioners is that in the year 1967, the Kalol Nagarpalika allotted cabin to several persons including the petitioners. The same was done on a monthly rent of Rs.800/-. They have been since then carrying out business at the said premises and rent is being collected by the Nagarpalika. The petitioners further submit that it in the month of April 2008 that the Nagarpalika suddenly stopped collecting rent and now by the impugned notice the petitioners are being sought to be evicted.

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Page 1 of 4

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C/SCA/10853/2016 ORDER DATED: 01/12/2021

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Mr. Subramaniam Iyer, learned advocate appearing for the petitioners would submit that there are no complaints against the petitioners. He submitted that the petitioners cannot be said to be illegal encroachers or unauthorized occupants. He would submit that the order dated 09.03.2005 passed in Special Civil Application No. 603 of 2005 is read out of context. He submitted that the order was in context of removal of the President of Municipality in exercise of powers under Section 37 of the Gujarat Municipalities Act and has no nexus with the present issue. He would further submit that in accordance with the order passed in Letters Patent Appeal No. 449 of 2005 on 20.02.2009, the direction was issued that it will be open for the concerned authorities to regularize the encroachments on public property in accordance with the policies and circulars.

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3.1 Heavy emphasis is placed on the provisions of the Protection of Livelihood and Regulation of Street Vending Act, 2014 (for short ‘the Act’). Relying on the statement of objects and reasons of the Act, Mr. Iyer would submit that considering the significant contribution made by the street vendors to the urban society and to enable them to earn livelihood without obstructing the public, the Act is a mechanism by which their rights are to be protected in consonance with the requirements of urbanisation and without causing undue harassment to the petitioners. He submitted that the vendors must be permitted to sustain their own living without harassment. Relying on section 27 of The Street Vendors (Protection and Livelihood and Regulation of Street Vending) Act, 2014 and the definitions under the Act namely 2(e) and 2(k) he would submit that they are stationary vendors and therefore in compliance of Section 3 of the Act they must be given alternative site to carry on business.

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Page 2 of 4

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C/SCA/10853/2016 ORDER DATED: 01/12/2021

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Mr. Mehul Rathod, learned advocate appearing for the Nagarpalika has invited the attention of the court to the affidavit-in-reply and submitted that in the present case what is evident is that the land in question is situated on a 15 mtrs road which is forming part of the T.P. Scheme. The lease was for 11 months and 29 days which was not extended after the year 1971. He would reiterate the submissions as made in the petitions being SCA No. 8864 of 2016 and another in context of the resolutions dated 30.02.2005 and 31.07.2015. Reading the affidavit-in-reply, Mr. Rathod would submit that in accordance with the observations made by the Division Bench in Letters Patent Appeal vide order dated 09.03.2005, the decision is appropriately taken.

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Be it noted that today by way of a separate reasoned order in SCA No. 8864 of 2016 and another, this court has in extenso recorded similar submissions and facts in context of the petitioners therein. The issue at large is the same as in those petitions, the only difference being that the road in question there was station road, Kalol whereas this is a road near Town Hall. It is necessarily pointed out and the submission of Mr. Rathod appears to be reasonable in stating that by virtue of passage of time population, traffic and the commercial activities it has become an acute necessity to widen the road to cater to the need of the public at large. As far as submissions of Mr. Iyer in context of the Act of 2014 is concerned, this court has clearly opined in the judgement dated 01.12.2021 in SCA No. 8864 of 2016 which is as under:

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“viii. As far as the argument of Mr.Shah that under The Street Vendors (Protection and Livelihood and Regulation of Street Vending) Act, 2014, no street vendor shall be evicted unless relocated. Reading the definition of the word ‘Street Vendor’ it would indicate that a person engaged in vending of articles, goods,

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Page 3 of 4

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C/SCA/10853/2016 ORDER DATED: 01/12/2021

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wares, food items or merchandise of everyday use or offering services to the general public, in a street, lane side walk, footpath, pavement, public park or any other public place or private area, from a temporary built up structure or by moving from place to place and includes hawker, peddler, squatter and all other synonymous terms which may be local or region specific; and the words “street vending” with their grammatical variations and cognate expressions, shall be constructed accordingly. When photographs are seen, it is apparent that the petitioners do not qualify themselves to be called as “street vendors”.

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ix.The aforesaid circumstances as narrated herein above would indicate that the petitioners have no legal right to retain the possession of the lands or the cabins on which the Nagarpalika wants to remove them for a public purpose of widening road due to the growth in urbanization and population. By virtue of extinguishment of lease they do not qualify themselves as tenants and even by virtue of their conduct of alienating the cabins of other they do not qualify as street vendors.”

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The contentions raised by the learned advocate for the petitioners shall not come to their rescue inasmuch as the petitioners herein were allotted pucca cabins on the land which was leased to them. The tenure of the lease ran out in 1971 and thereafter there was no renewal of lease and therefore the argument of the petitioners that they are not encroachers and the question of order of the Letters Patent Appeal shall not apply.

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For the reasons above, these petitions are dismissed.

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(BIREN VAISHNAV, J)

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DIVYA

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Page 4 of 4

Saiyed Noorali Lalmiya Son of Saiyed Lalmiya v. State of Gujarat

Case brief

What is this about?

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Saiyed Noorali Lalmiya Son of Saiyed Lalmiya v. State of Gujarat

Case brief

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What did the court decide?

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