N. Jagadeesan, Etc. Vs. District Collector, North Arcot and Others - Court Judgment

Excerpt:
constitution - hospital premises - appellant installed bunks and kiosks within premises of hospital - state directed for removal of bunks and kiosks on ground of posing hazard to health of patients and others visiting hospitals - state acted in reasonable manner - removal of bunks and kiosks necessary within hospital premises - removal sought keeping in mind removal of health hazard or in interest of smooth and unobstructed flow of traffic. - [a.k. sarkar, c.j.,; j.m. shelat,; j.r. mudholkar,; m. hidayatullah, jj.] the respondents were arrested by the police for the offence of trespass and were released on bail. they were tried and sentenced to pay a fine by the nyaya panchayat, a court established under the madhya bharat panchayat act, 1949, with powers to impose only a sentence of fine. the conviction was set aside by the high court on the ground that s. 63 of the act, which provides that no legal practi- tioner shall appear on behalf of any party in a proceeding before the nyaya panchayat, violated art. 22(1) of the constitution and was therefore void. held:(per sarkar c.j., and mudholkar, j.): the high court was in error in setting aside the conviction. under art. 22(1) a person arrested has the constitutional right to consult a legal practitioner concerning his arrest; and, a person who has been arrested as well as one who though not arrested runs the risk of loss of personal liberty as a result of a trial, have the constitutional right to be defended by an advocate of their choice. but in a trial under a law which does not provide for an order resulting in the loss of his personal liberty, he is not entitled to the constitutional right, because, the article is concerned only with giving protection to personal liberty. [241 h-242 c, 244 b-c]. the act does not give any power to deprive any one of his personal liberty either by way of arrest before the trial or by way of sentence of imprisonment as a result of the trial; nor does it deprive an arrested person of his constitutional right to take steps against the arrest or to defend himself at a trial which might occasion the loss of his personal liberty. the fact that the respondents were arrested under another statute, namely, the criminal procedure code cannot make either the section or the act void. [242 g-h; 243 c-d; 244 d-e] state of bombay v. atma ram sridhar vaidya, [1951] s.c.r. 167..204, followed. quaere:...whether respondents were not entitled to the constitutional right because, at the trial they were on bail. [244 e] per bachawat and shelat jj.: section 63 of the act is violative of art. 22(1) and is void to the extent that it denies any person who is arrested the right to be defended by a legal practitioner of his choice in any trial for the crime for which he is arrested. but, the order of the high court, quashing the conviction, should be set aside, because, the respondents did not claim that they should be defended at the trial by counsel, and the circumstances of the case, the existence of s. 63 on the statute book did not cause them any prejudice. [257 g; 258 b-c] as soon as the respondents were arrested without warrants issued by a court, they acquired the rights guaranteed by art. 22(1), and they continued to have those rights though they were released on bail at the time of trial. the rights include the right to be defended even in a trial in which they were in jeopardy of only being sentenced to a fine. because, the pronoun "he" in the second part of art. 22(1) refers to "any person who is arrested'-. if in the exercise of the general powers under the criminal procedure code, the police arrest a person on the accusation of a crime for which he is liable to be tried before a special criminal court, the arrested person has the constitutional right to be defended by counsel at the trial before the special criminal court in respect of the offence for which he was arrested. even if the word "he" means "any person" there is no warrant for giving a restricted interpretation and limiting the right to be defended by counsel to a trial in which the arrested person is in jeopardy of being sentenced to death or to a term of imprisonment. [256 a-d, f-g; 257 a- b] state of punjab v. ajaib singh, [1953] s.c.r. 254, referred to. quaere:whether the tests of an arrest" laid down in ajaib singh's case are exhaustive. [257 c]. per hidayatullah j. (dissenting): the appeal should be dismissed. under art. 22, a person who is arrested for whatever reason, gets three independent rights. the first is the right to be told the reasons for the arrest as soon as an arrest is made, the second is the right to be produced before a magistrate within 24 hours and the third is the right to be defended by an advocate of his choice. when the constitution lays down in absolute terms a right to be defended by one's own counsel, it cannot be taken away by ordinary law, and. it is not sufficient to say that the accused who was so deprived, of the right, did not stand in danger of losing his personal liberty. the words "nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice," in art. 22(1), refer to a person who is arrested. personal liberty is invaded by arrest and continues to be restrained during the, period a person is on bail and, it is not sufficient to say that the accused who was so deprived prisonment. before his release on bail he defends himself against his arrest and the charge for which he is arrested, and after his release on bail, against the charge he is to answer and for answering which, the bail requires him to be present. therefore. s. 63 of the act, being inconsistent with the article, is void. though the contention was raised for the first time in the high court, since it is a question of fundamental right it must be upheld. [248 h; 249 d-f; 251 a-b, f-h; 252 b]. state of punjab v. aiaib singh. [1953] s.c.r. 254 and state of uttar pradesh v. abdul samad [1962]. s.c.r. 915. referred to. - 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 removal of the said bunk/kiosks on the ground that they are posing a hazard to the health and well being of the patients and others visiting the hospital and the institutions. it is clearly stated in the counter-affidavits filed on behalf of the government of tamil nadu that the bunks/kiosks from all the thoroughfares/roads are not being removed but only bunks/kiosks from certain extremely busy roads/thoroughfares, as specified in the said affidavits, are being remove. venkataramani, learned counsel for the appellant, has placed strong reliance upon the constitution bench decision of this court in sodan singh v.orderb.p. jeevan reddy, j.1. leave granted in the special leave petition.2. a common question arises in these writ petitions and civil appeals.3. 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 from 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 from 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 petitions 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 removal of the said bunk/kiosks on the ground that they are posing a hazard to the health and well being of the patients and others visiting the hospital 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 thorough fares 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. in fact, the widening of 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 thoroughfares/roads are not being removed but only bunks/kiosks from certain extremely busy roads/thoroughfares, as specified in the said affidavits, are being remove. 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 thoroughfares. 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 purposes'. 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 in the said place'. the above statement in the counter-affidavit are recorded herewith.4. we are of the opinion that the appellants-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 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 may be.5. 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]3scr1038 . 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.6. 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/road margins and we are sure that the concerned authorities will consider their representations and pass orders thereon without any avoidable delay.7. the writ petitions and appeals are accordingly dismissed with the above observations. no costs.

Judgment:
ORDER

B.P. Jeevan Reddy, J.

1. Leave granted in the Special Leave Petition.

2. A common question arises in these writ petitions and civil appeals.

3. 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 from 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 from 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 petitions 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 removal of the said bunk/kiosks on the ground that they are posing a hazard to the health and well being of the patients and others visiting the hospital 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 thorough fares 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. In fact, the widening of 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 thoroughfares/roads are not being removed but only bunks/kiosks from certain extremely busy roads/thoroughfares, as specified in the said affidavits, are being remove. 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 thoroughfares. 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 purposes'. 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 in the said place'. The above statement in the counter-affidavit are recorded herewith.

4. We are of the opinion that the appellants-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 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 may be.

5. 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]3SCR1038 . 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.

6. 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/road margins and we are sure that the concerned authorities will consider their representations and pass orders thereon without any avoidable delay.

7. The writ petitions and appeals are accordingly dismissed with the above observations. No costs.