Holding

The Supreme Court held that the respondents were attempting to thwart the implementation of the approved scheme, and therefore the High Court’s interim injunction was vacated, allowing the corporation to proceed with removal under the scheme.

Summary

The Ahmedabad Municipal Corporation (AMC) framed a scheme to remove foot‑path hawkers whose mushrooming presence was obstructing traffic and public amenities. The High Court, following Supreme Court precedents, approved the scheme with certain modifications. Four small traders, covered by the scheme, filed a suit in the City Civil Court seeking an injunction against their removal; the court initially granted, then vacated, the injunction. The High Court later granted an interim injunction restraining AMC from removing the traders, which AMC appealed to the Supreme Court. The Supreme Court held that the traders were deliberately thwarting the implementation of the approved scheme despite being offered alternative sites, and therefore the High Court’s injunction was an abuse of process. Consequently, the appeal was allowed, the High Court’s order and interim injunction were set aside, and the City Civil Court’s order vacating the injunction was confirmed.

Issues considered

Whether the interim injunction restraining the municipal corporation from removing foot‑path hawkers should be upheld.
Whether the respondents’ refusal to accept alternative sites constitutes an encroachment and a thwarting of the scheme.
Whether the High Court’s injunction amounts to an abuse of process in light of the approved scheme.

Legislation cited

Ahmedabad Municipal Corporation Act

Subjects

hawkersencroachmentmunicipal corporationpublic amenityinterim injunctionscheme implementationabuse of processalternative site

Judgment

A AHMED ABAD MUNICIPAL CORPORATION
v.
DILBAGSINGH BALWANTSINGH AND ORS.
+--r
MARCH 24, 1992

B [S. RATNAVEL PANDIAN AND K. JAYACHANDRA REDDY, JJ.]

Ahmedabad Municipal Corporation Act-Foot-path hawkers on public +--
streets--Obstructions to traffic and other public amenities-Removal by Cor-
poration under an approved scheme-Tactics of hawkers to thwert implemen-
c tation of scheme--lnterim injunction granted in their favour vacated.
..,-
JI(
A mushroom growth of public street/footpath hawkers affected the
traffic and other public amenities. The Corporation (appell?nt) decided to
remove the obstructions created by such hawkers, after giving them enough y
opportunity.
D
The Corporation's action was challenged by way of writ petitions in
the High Court. The High Court after hearing all the petitioners and
following the judgments of this Court in Bombay Hawkers Union v. Bombay
Municipal Corporation, [1985) 3 SCC 528 and Olga Tellis v. Bombay
Municipal Corporation, [1985) 3 SCC 544 directed the Corporation to
E evolve a scheme having regard to the overall local conditions in the area.

Several special leave petitions were filed against the High Court's --,l-.
judgment and this Court remitted the matter back to the High Court for
consideration of the scheme.
F
On 22.4.87 the High Court held that the scheme framed by the
Corporation deserved to be accepted subject to certain modifications.

When some of the aggrieved persons approached this Court, this

G
Court permitted the hawkers and other similarly placed traders to place
their difficulties before the High Court.
>'
.....
On 7.12.87 the High Court reconsidering the scheme, held that it was
not necessary to further modify the scheme and ultimately the scheme was
confirmed.

H The respondents were small traders running their business in small ~-
322
MUNICIPAL CORPN. v. DILBAGSINGH BALWANTSINGH 323

shops. They were alleged to have made encroachments and were also A
covered by the scheme. They filed several suits and withdrew them after
the High Court gave its final verdict.

On 1.10.88 the respondents filed a suit in the City Civil Court for
directions and injunction. The appellant Corporation filed a reply to th~
notice of motion. The City Civil Court on 18.9.89 vacated the interim B
injunction.

The respondents thereupon filed an appeal in the High Court seek·
ing interim injunction which was admitted granting interim injunction
restraining the Corporation from removing or pulling down the business
premises of the respondents.
c
The Corporation filed the present appeal questioning the High
Court's order, contending that on earlier occasions the High Court dis·
missed the appeals and that the encroachment was causing nuisance and
inconvenience to the public and the Corporation was finding it extremely D
difficult to implement the scheme which was considered and approved by
the High Court in accordance with the directfons given by this Court.

The respondents submitted that there was no objections to the
implementation of the scheme; and that their shops did not in any way
amount' to encroachment and their locations did not cause any incon- E
venience or nuisance.

Allowing the appeal, this Court,

HELD: 1.01. Several associations of hawkers, traders and larri-
gallawalas filed writ petitions and the Supreme Court directed the High F
Court to consider the difficulties and finally the High Court approved the
~ scheme subject to some modifications. [326C]

1.02. In the instant case notice was issued and this Court also directed
the appellant-Corporation to seek any other relief on the basis of the order G
of this Court in the S.L.P.(Civil) No.5465/89, and the S.L.P. was adjourned to
15.11.91 for enabling the Corporation to provide alternative suitable sites
for the respondents according to the scheme. Thereafter the matter was
adjourned several times at the request of the counsel. [326F·G]

1.03. On 4.2.92 a rejoinder was filed in which it is stated that the H
324 SUPREME COURT REPORTS (1992) 2 S.C.R.

A Corporation had offered to the respondents hawking licenses etc. under
the scheme but the respondents are not accepting the same and that the
respondents were offered four alternative sites in Plot No. 174 of the Town
Planning Scheme and that the same are suitable to carry on their busi-
nesses. [326G-327A]

B 1.04. On 7.2.92 the respondents stated before this Court that they will
choose any one of the alternative sites now offered by the appellant Cor-
poration and mo•e to the offered place. The matter was again adjourned.
The respondents once again have come forward with the same kind of
grievance and it is also submitted that they are not encroaching upon the
C public road and some other shops similarly situated are not being shifted
and that the sites offered by the Corporation are not suitable. (327A-BJ

1.05. The respondents have been trying their best to thwart the
implementation of the scheme which was examined by this Court as well
as the High Court on more than one occasion. (3278-CJ
D
Bombay Hawkers Union v. Bombay Municipal Corporation, (1985) 3
SCC 528; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 544;
Baroda Municipal Corporation v. Shannjivi Hathlary Association & Ors.,
SLP (CML) No. 5465/89-D/-3.5. 1989, referred to.
E CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1117 of
1992.

From the Judgment and Order dated 27.9.1990 of the Gujarat High
Court in Appeal from Order No. 393/89;
F
WITH

Civil Application No. 2857 of 1989.

T.U. Mehta, Kuldeep Parihar and H.S. Parihar for the Appellant.
G
Ramesh P. Bhatt, Ms. Tanuja Shee~ Ms. Priya Hingorani and M.N.
Shroff for the Respondents.

The Judgment of the Court was delivered·by

H K. JAYACHANDRA REDDY, J. Leave granted.
MUNICIPAL CORPN. v. DILBAGSINGH BALWM'TSINGH [REDDY, J.] 325

~_.. ._).._ Ahmedabad Municipal Corporation ('Corporation' for short) is the A
appellant herein and the four respondents are small traders running their
businesses in small shops. They claimed that their shops are 10 feet away
from the public road. According to the appellant Corporation there was a
mushroom growth of public street/footpath hawkers which affected the
traffic and-other public amenities and therefore the pol~ce/public
B
J...~ Authorities within the Municipal Corporation area. were constrained to
remove the obstructions created by such hawkers after giving them enough
opportunity. The said action of the police/public authorities had been
challenged by way of a number of petitions in the High Court of Gujarat.
The High Court after hearing all the petitioners and following the Judg-
ments of this Court in Bombay Hawkers Union v. Bombay Municipal c
Corporation, (1985] 3 SCC 528 and Olga Tellis v. Bombay Municipal Cor-
poration, [1985] 3 SCC 544 directed the Corporation to evolve a scheme
~
having regard to the overall local conditions in the area. Questioning the
above said order and judgment of the High Court several special leave
petitions were filed and 'this Court remitted the matter back to the High
D
Court of Gujarat for consideration of the scheme in the light of certain
observations made therein. The High Court by its order dated 22.4.87 held
that the scheme framed by the Corporation deserves to be accepted subject
to certain modifications. Again some of the persons aggrieved by the said
order of the High Court approached this Court and this Court permitted
the hawkers and other similarly placed traders to place their difficulties E
·->.- before the High Court. The High Court reconsidered the scheme· and by
an order dated 7.12.87 held that it is not necessary to further modify the
scheme and ultimately the scheme was confirmed. The respondents who
are alleged to have made encroachments and who are also covered by the
scheme ftled several suits and withdrew them after the High Court gave its
F
final verdict. The respondents again filed a Sl;lit on 1.10.88 in the City Civil
Court, Ahmedabad for directions and injunction. The City Civil Court
granted interim injunction. The appellant Corporation filed a reply to the
-1.c. notice of motion. The City Civil Court by its order dated 18.9.89 vacated
the interim injunction. The respondents thereupon filed an appeal in the
High Court and also sought interim injunction. The High Court admitted G
the appeal and granted interim injunction restraining the Corporation from
removing or pulling down the business premises of the respondents. Ques"
tioning the same the Corporation has filed the present appeal.
--)_
It was contended that on earlier occasions the High Court dismissed H
326 SUPREME COURT REPORTS [1992) 2 S.C.R.

A the appeals and that the encroachment is causing nuisance and incon-
venience to the public and the appellant Corporation is finding it extremely
difficult to implement the scheme which has been considered and approved
by the High Court in accordance with the directions given by this Court.
Learned counsel for the respondents submitted that there is no objection
to the implementation of the scheme. But so far as the respondents' shops
B are concerned, it was submitted that they do not in any way amount to
encroachment and their locations do not cause any inconvenience or
nmsance.

As already mentioned several associations of hawkers, traders and
C larri-ga!!awalas filed writ petitions and the Supreme Court directed the
High Court to consider the difficulties and finally as stated above the High
Court approved the scheme subject to some modifications. In a similar
matter which was the subject matter of S.L.P.(Civil) No. 5465189 - Baroda
Municipal Corporation v. Sharmjivi Hathlary Association & Ors. This Court
D by its order dated 3.5.89 observed thus :

"We are of the view that it. was an attempt to thwart the Scheme
by approaching the Civil Court. It is an abuse of process of the
Court and gives rise to a situation where contempt action
should lie. We, however, do not propose to take such action,
E but consider it very appropriate in the interest of justice to
direct dismissal of the suit itself. By this order of ours, the said
suit being No. 1761of1985 in the Court of 6th Joint Civil Judge,
Sr. Div., Vadodara, shall stand dismissed and all interlocutory
orders made therein shall stand dismissed."
F
However, in the instant case notice was issued and this Court also
directed the appellant Corporation to seek any other relief on the basis of
the order of this Court in the above S.L.P. (Civil) No. 5465/89. By an order
dated 13.9.91 the S.L.P. was adjourned to 15.11.91 for enabling the Cor-
G poration to provide alternative suitable sites for the respondents according
to the scheme. Thereafter the matter was adjourned several times at the
request of the counsel. Meanwhile on 4.2.92 a rejoinder was filed in which
it is stated that the Corporation had offered to the respondents hawking
licenses etc. under the scheme but the respondents are not accepting the
same. It is also stated therein that the respondents were offered four
H alternative sites in plot No. 174 of the Town Planning scheme and that the
MUNICIPAL CORPN. v. DILBAGSINGH BALWANTSINGH [REDDY, J.) 327

same are suitable to carry on their businesses. On 7.2.92 learned counsel A
appearing for the respondents stated before this Court that they will choose
any one of the alternative sites now offered by the appellant Corporation
and move to the offered place. The matter was again adjourned. The
respondents once again have come forward with the same kind of grievance
and it is also submitted that they are not encroaching upon the public ~oad
and some other shops similarly situated are not being shifted and that the B
sites offered by the Corporation are not suitable. We have heard both the
parties at length and we are satisfied that the respondents have been trying
their best to thwart the implementation of the scheme which was examined
by this Court as well as the High Court on more than one occasion.
Therefore. we allow this appeal with costs, set aside the order of the High C
Court in Civil Application No.2857/89 in Appeal from Order No. 393i89
dated 27.9.90 and the interim injunction granted by the High Court stands
vacated. We confirm the order of the City Civil Court dated 18.9.89
vacating the injunction. Consequently Appeal from Order No. 393/89
pending in the High Court stands dismissed.

V.P.R. Appeal allowed.