Dismissed

Footpath Dukandar Sangh Near M. L. a. Flat and Surrounding Of Honble High Court and Anr. v. The State Of Bihar and Ors.

Patna HC16 May 2018CWJC/7638/2017

Case brief

AI extract

What is this about?

The Patna High Court dismissed a PIL filed by a footpath traders association seeking protection for their shops on encroached footpaths near the High Court. The court held the occupation was illegal and no relief could be granted to sanction continued encroachment.

What did the court decide?

The writ application seeking protection of illegal encroachments on footpaths is dismissed.

Footpath Dukandar Sangh Near M. L. a. Flat and Surrounding… — Property and Title | Patna HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.7638 of 2017

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Footpath Dukandar Sangh Near M. L. A. Flat & Surrounding Of Hon’ble High Court, Patna, through its Chairman namely Vinay Kumar Singh, Son of Hriday Narayan Singh, 2. Secretary of the Sangh Namely Mohammad Islam Ansari, son of Mohammad Sidqui Ansari, Both (1 & 2) R/o M.L.A. Flat Near High Court, P.S.- Kotwali, District- Patna-1.

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.... .... Petitioner/s Versus

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The State of Bihar through its Chief Secretary.

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Principal Secretary, Department of Urban Development, Government of Bihar, Patna.

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The Collector, Patna.

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The Commissioner, Patna Municipal Corporation, Patna, Bihar.

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M/S Kashish Constructions Pvt. Ltd., At present M.L.A. Flat Birchand Patel Road, Patna.

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The Principal Secretary, P.W.D. (Building Construction Deptt.), Govt. of Bihar, Vishwaraiya Bhawan, Bailey Road, Patna.

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.... .... Respondent/s

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=========================================================== Appearance :

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For the Petitioner/s : Mr. Vinod Kumar Seth For the Respondent/s : Mr. Lalit Kishore(PAAG1)

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=========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE

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and

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HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD) Date: 16-05-2018

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Present writ application has been filed by the petitioners

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who claim themselves as Footpath Dukandar Sangh near M.L.A Flat and surrounding of Hon’ble High Court, Patna,(petitioner no.1) and Secretary of the Sangh namely Mohammad Islam Ansari (respondent

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no.2) by way of Public Interest Litigation.

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2.They are seeking the following reliefs:-

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“(i)To protect the Shops of Footpath Dukandar Sangh which are located at M.L.A. Flat & surrounding of Hon’ble Patna High Court Patna, which has been tried to demolish by Respondent No.5 at the instance of

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Patna High Court CWJC No.7638 of 2017 dt.16-05-2018

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official Respondents.

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(ii)To direct the Respondents to take step in view of scheme of Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014.

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(iii) Any other relief/reliefs for which petitioners entitled under the law.”

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It is stated that the members of the petitioner no.1 are running computer typing, scanning, photocopy, tea stalls and stationery shops in the locality surrounding M.L.A Flat and the Hon’ble High Court, Patna. It is their case that they are doing their business over there for about 50 years. It is stated that there is a street vendors (Protections of Livelihood and Regulation of Street Vending) Act, 2014, which came in existence from 04^th March, 2014. Earlier in a set of proceeding vide order dated 28.01.2016 this Court had taken note of the aforesaid enactment and had granted some time at the instance of the then learned Principal Additional Advocate General, to complete the exercise in terms of Section 3 thereof which provides for a survey by the prescribed vending committee and thereafter to establish commercial zones/vending zones which may be provided to the street vendors. It is submitted that the State authorities who are responsible to implement the scheme in terms of statutory provision are not acting to fulfill the object behind bringing of the said beneficial Act for the street vendors.

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Patna High Court CWJC No.7638 of 2017 dt.16-05-2018

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It appears that during the pendency of the writ application on steps having been taken by the respondents to remove the encroachment from the footpaths and when the respondents State Government and Municipal Corporation took steps to get vacated or demolish the encroached areas of the footpaths and barricading were started, the petitioners filed a Interlocutory Application for amendment of the prayer whereunder they came with a prayer to direct the respondents to remove fence front of the shop of the petitioners and to ask the respondents to give appropriate compensation to the petitioners for loss of their business after barricading/fencing in front of the shops of the petitioners. The Interlocutory Application was allowed vide order dated 24.08.2017 and prayers made therein were added to the writ application. Counter affidavits were called for calling upon respondent nos.2 and 3, and Commissioner, Patna Municipal Corporation to file counter affidavit regarding the steps taken by them to implement the provisions of the Act.

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A counter affidavit has been filed on behalf of respondent no.2, wherein it is stated that in exercise of power conferred under Section 36 of the Act, the respondent State has made Bihar Street Vendors (Protection of Livelihood and Regulation of Street Vending) Rules, 2017, (hereinafter referred to as the “Bihar

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Patna High Court CWJC No.7638 of 2017 dt.16-05-2018

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Act”) which has been published in an Extraordinary Gazette on 16^th February, 2017. Further in exercise of powers conferred by Section 38 of the Bihar Act, the State Government after consultation with Urban Local Bodies and the Town Vending Committee has framed the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Scheme-2017 which has been published in Bihar Extraordinary Gazette on 16^th February, 2017. Under the Scheme, it is stated that the competent authority to implement the scheme is the concerned municipal body and hence the Urban Development and Housing Department has requested the Municipal Commissioner, Patna Municipal Corporation, to look into the matter.

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The Additional Municipal Commissioner, Patna Municipal Corporation (respondent no.4) has also filed a counter affidavit. He has taken a stand that so far as the first prayer of the petitioner Sangh is concerned, they do not have any right to encroach upon the road/streets surrounding the Hon’ble Patna High Court area and no relief can be granted to them in such circumstances. Regarding the second prayer it is stated that the Patna Municipal Corporation is already acting upon implementation of the Bihar Act and a Vending Committee has been constituted which is working towards identification of vending sites/zones. It is stated in the affidavit that out of identified 21 vending zones, 19 have already been measured

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Patna High Court CWJC No.7638 of 2017 dt.16-05-2018

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and rest is in process. It is further stated that 552 Identity Cards of vendors have already been printed as on 21.09.2017 and 109 Identity Cards have already been distributed and the remaining Identity Cards preparation and distribution work is under process.

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Having heard learned counsel for the petitioner, learned Advocate General for the State and learned counsel representing the Patna Municipal Corporation, we are of the considered opinion that the petitioners who claim themselves as Foothpath Dukandar Sangh and members thereof have no legal right much less any fundamental right to run their shops by encroaching upon the footpaths surrounding the M.L.A Flats and the Hon’ble Patna High Court. The Public Interest Litigation cannot be maintained by the petitioners who admittedly are occupying the footpaths meant for pedestrians de-hors to any legal right.

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In fact in the garb of the Public Interest Litigation they are only trying to create a hindrance in the matter of removal of encroachments from the footpaths. It is in the larger public interest that the footpaths are left free for the pedestrians to move. This Court need not highlight the menaces of encroachments prevailing on the footpaths which some time contributes towards the accidental death of the pedestrians who are compelled to walk on roads meant for running of vehicles. We are of the view that some of the prayers made by the

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petitioners are in the nature of seeking sanction to continue illegal occupation and possession of the footpaths which cannot be allowed by this Court. The writ application seeking such prayers is hereby dismissed.

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In the affidavit filed by the Additional Municipal Commissioner, Patna Municipal Corporation, it is stated that steps have already been taken to identify the vending zones, in fact they have identified some of the vending zones and are in the process of implementing the scheme. We leave it open for the individual vendor to approach the competent authority under the Bihar Act and the Scheme framed thereunder seeking rehabilitation in accordance with the scheme which shall be considered by the competent authority in terms of the Bihar Act and the scheme framed thereunder within a reasonable period.

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It is however made clear that their filing of claim and the consideration thereof shall be a totally independent exercise by the competent authority and that will not confer any reason and ground for the petitioners and members thereof to continue with the illegal occupation and possession of the footpaths, if they are still there. The respondent authorities shall be free to proceed with the removal of encroachments and other beautification work as have been taken by them which must be completed without any hindrance.

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Patna High Court CWJC No.7638 of 2017 dt.16-05-2018

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The writ application stands disposed of accordingly.

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(Rajendra Menon, CJ)

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Arvind/R.R.Ojha	(Rajeev Ranjan Prasad, J)
AFR/NAFR
CAV DATE
UploadingDate 19.05.2018
Transmission
Date

Footpath Dukandar Sangh Near M. L. a. Flat and Surrounding Of Honble High Court and Anr. v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Footpath Dukandar Sangh Near M. L. a. Flat and Surrounding Of Honble High Court and Anr. v. The State Of Bihar and Ors.

Case brief

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What did the court decide?

What the court decided

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