High Court · 2011

All the writ petitions based on same set of facts and raising the same i ssue, have been heard together and are being disposed of by this common judgemen t and order. The petitioners and their members, claiming themselves to be engaged in 2. business of hawking in the Paltanbazar and Fancybazar area, filed these writ pet itions challenging their threatened eviction, collection of fine by Guwahati Mun icipality for their unauthorized occupation of public places and the tender noti ce dated 26.2.2007, by which the Guwahati Municipal Corporation (for short GMC) invited tenders for engaging successful tenderers as Collector of fine from such unauthorized occupiers of public places in the aforesaid Paltanbazar and Fancyb azar area.

3. We have heard Mr. J. I. Borbhuiya and Mr. R. Dubey, learned counsels for the petitioners as well as Mr. H. Sharma, learned Standing Counsel, GMC.

4. It is submitted that during the pendency of the writ petitions, the impu gned NIT has spent its force and thus not required to be adjudicated upon. Refer ring to the representation stated to have been filed by the petitioners to the G MC authority agitating their aforesaid grievance, learned counsel for the petiti oners have prayed for a direction to the said authority to dispose of the repres entation taking not of all the relevant facts including the plight of the Hawker s, who are running their respective business in the aforesaid public places. In this connection, Mr. Borbhuiya, learned counsel representing the petitioners in WP(C) 1491/2007, has placed reliance on the decision of the Apex Court in Sodan Singh & Ors Vs. New Delhi Municipal Committee & Ors reported in (1989) 4 SCC 15 5, so as to emphasis that the authorities in the GMC should take a pragmatic ap proach to the matter towards accommodating the petitioners and their members ena bling them to run their petty businesses.

5. Learned counsel for the petitioners have also referred to the decision o f this Court in Bihattar Paltanbazar Khudra Bebosai Sanatha & Ors. Vs. State of Assam and others involved in WP(C) No. 4178/2006, which was disposed of by order dated 4.12.2006. By the said order, a Single Bench of this Court provided thus :- (cid:28)Considering the above submissions of the learned counsel for the parties and th e materials on record, I dispose of the writ petition providing that the petitio ners shall in no way disturb the flow of vehicular traffic and the pedestrians b y occupying any public place. However, the GMC authorities will be entitled to e vict them in case of any illegal occupation or if any part of the public place i s occupied and even otherwise also if the respondents feel that the petitioners are obstructing free flow of vehicular traffic and the pedestrians. Needless to say that such eviction should be in accordance with law. In addition, the petiti oner shall also make representation to the competent authorities of the GMC high lighting their grievance urging for redressal of the same. With the above directions and observations, the writ petition stands disposed of . (cid:29)

6. It is submitted that pursuant to the aforesaid order of this Court, the GMC authority issued the impugned N IT towards collection of fine of Rs. 20/- as Scavenging Tax from the Howkers who are doing businesses in the public places i n and around the Fancybazar and Paltanbazar area. When the matter was taken up b y the learned Single Judge, a question was formulated as to the admissibility of such a course of action within the scheme of GMC Act, 1971. By order dated 10.4 .2007 formulating the above question, the matter was referred to the Division Be nch and this is how, the matter is now before us. While formulating the particul ar question, it was observed that if the petitioners and their members are unaut horized occupants of public places, by imposing a fine of Rs. 20/- per day, whet her such illegal occupation of public places could have been legalized.

7. So far as the first grievance of the petitioners are concerned i.e. thei r apprehension regarding eviction from the public places in which they do petty businesses as Howkers, Mr. H. Sharma, learned Standing Counsel, GMC, submits tha t although such Howkers were evicted in the past upteen number of times but ther e has always been the tendency to once again occupy the public places to carry o ut their businesses. He submits that it was in such circumstances, the GMC autho rity taking recourse to Section 352 of the GMC Act, decided to impose scavenging tax/ fine on such unauthorized occupants. It was for that purpose, the impugned NIT was issued. For a ready reference, Section 352 of the Act is reproduced bel ow :- (cid:28)352. Prohibition of deposit, etc. of things in streets. -(1) No person shall, e xcept with the permission of the Commissioner, and on payment of such fee as he in each case thinks fit, place or deposit upon any street, or upon any open chan nel, drain or well in any street, or upon any public place, any stall, chair, be nch, box, ladder, bale or other things whatsoever so as to form an obstruction t hereto or encroachment thereon. (cid:29)

8. As noticed above, the impugned NIT dated 26.2.2007 has already spent its force and thus we need not adjudicate the legality or otherwise of the said NIT at this stage. So far as the grievance relating to non-disposal of the represen tation dated 17.12.2006 (Annexure-3) to WP(C) No. 1491/2007) addressed to the Co mmissioner, GMC, Mr. H. Sharma, learned Standing Counsel, GMC fairly submits th at there would no difficulty to take note of the said representation and dispose of the same in accordance with law.

9. This now leads us to the larger issue formulated in this proceeding whic h is as to whether by way of imposing the fine / scavenging tax, the GMC authori ty can legalise the unauthorized occupation of public places by the Howkers. The particular situation and difficulty in which the GMC authority has decided to i mpose the said fine / scavenging tax, has been noted above. It being not a case of eviction from a permanent structure and the Howkers being engaged in their da ily businesses on temporary basis occupying the public places, it is always diff icult for the GMC authorities to evict them on daily basis. On the other hand, i mmediately after their eviction, the normal tendency is to occupy the places onc e again and in the process, the GMC authorities are forced to take steps for cle aning the areas under their occupation on regular basis. It was in such circumst ances, the GMC authorities took recourse to the said provision i.e. Section 352 of the Act towards imposing Scavenging tax/fine, so as to utilize the funds coll ected for keeping the areas clean and dirt free. We do not find any infirmity in such a course of action.

10. It is submitted by Mr. H. Sharma, learned Standing Counsel, GMC that in fact, the fine imposed which is Rs. 20/- per day, is a very meager amount and th e same requires enhancement. We leave the matter to the sound discretion of the GMC authority, who will decide the issue taking note of all the attending facts and circumstances and the aforesaid provision of the Act.

11. All the writ petitions are disposed of taking note of the fact that the impugned NIT has already spent its force. Direction is hereby issued to the Comm issioner, GMC to take on record the aforesaid representation dated 17.12.2006 (A nnexure-3) and dispose of the same as expeditiously as possible, preferably with in three months from today.

12. As regards the imposition of Scavenging tax/ fine, the GMC authority may take appropriate measures in this regard taking note of the observations made a bove and in accordance with law. We hasten to add that the aforesaid order dated 4.12.2006 passed in WP(C) 4178/2006 of the Single Bench having attained its fin ality, will continue to hold the field towards adopting measures by the GMC auth ority in respect of unauthorized occupation of the public places.

13. Needless to say that order to be passed on the said representation shall cover the cases of all the writ petitioners.

14. With the above directions and observations, all the writ petitions stand disposed of, without however, any order as to costs.