IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4156-4157 OF 2002

Maharashtra Ekta Hawkers Union & Anr. (Appellants) Vs. Municipal Corporation, Greater Mumbai & Ors. ..Respondents

(WITH C.A. Nos. 4158-4159/2002, C.A. Nos. 4161-4162/2002, C.A. Nos. 4163-4164/2002, C.A. No.4160/2002, C.A. Nos. 4170-4171/2002, C.A. Nos. 4167-4169/2002, C.P. Nos. 456-458/2002 in C.A. Nos. 4167-419/2002, C.A. Nos. 4165-4166/2002, C.A. Nos. 4175-4176/2002, C.A. Nos. 4179-4180/2002, C.A. Nos. 4172-4174/2002, Conmt. Petition ( C ) Nos. 195-196/2002, C.A. No. 4178/2002, C.A. No. 4177/2002, C.A. No. 9662/2003 [ arising out of SLP ( C ) No. 23586/2003 CC 1790/2002 (CC 1790)], C.A. No. 9661/2003 [arising out of SLP ( C ) No. 23584/2003…….. CC 5664/2002 (CC 5664 )], C.A. Nos. 9663-9666/2003 [arising out of SLP ( C ) Nos. 23992-23995/2002], and C.A. No. 9667/2003 [arising out of SLP ( C ) No. 454/2003)]

JUDGEMENT

S.N.VARIAVA. J.

Leave granted in Special leave Petitions.

All these Appeals are against the Judgments of high Court dated 5th July, 2000 and 3rd may 2001. The facts leading up to these Appeals are that as far back in 1983 a number of Writ Petitions were filed in this Court, by and on behalf of a large number of persons who carried on hawking activities in Bombay. These Petitions came to be disposed of by Judgment of this Court in the case of Bombay Hawkers Union vs. Bombay Municipal Corporation reported in (1985) 3 SCC 528. By this Judgment, it was held that the right to carry on trade or business conferred by Article 19(1)(g) of the Constitution of India is subject to the provisions of sub-clause (6) of Article 19 which provided that nothing in sub-clause (g) of Article 19(1) would affect the operation of any existing law insofar as it imposed, or prevented the State from making any law imposing, in the interests of general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. It was held that no one had any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. It was held that public streets, by their very nomenclature and definition, were meant for the use of the general public. It was held that the public streets are not laid to facilitate the carrying on of private trade or business. It was held that if hawkers were to be conceded the right claimed by them they could hold the society to ransom by squatting on the center of busy thoroughfares, thereby paralyzing all civic life. It was recognized that in some of the parts of the city the hawkers had made it impossible for the pedestrians to walk on footpaths or even on the streets. This court then examined the scheme proposed by the Municipal Commissioner and laid down certain modalities for hawking and non-hawking zones. This court also accepted the restrictions /conditions proposed by the Municipal Commissioner, except for some changes. This Court then directed the Municipal Commissioner to frame a final scheme on the guidelines suggested by it.

The above mentioned Judgment was delivered on 3rd July, 1985. On 12th August, 1986 Bombay Municipal Corporation (for short BMC) approved some guidelines. It then constituted an Advisory Committee composed of officials of the Corporation, representatives of the Residents' Association, NGO's, elected representatives of the Traffic Police and representatives of the hawkers. A draft scheme was framed on 12th august, 1996. Under the draft scheme 488 zones were shown as hawking zones. Under the draft scheme 28 sites, in different wards, were earmarked for construction of hawkers' plazas. Under the draft scheme highways, arterial and trunk roads, foot over bridges, subways, certain distance around railway stations, certain radius around municipal markets, religious places, educational institutions, medical institutions and large traffic junctions, were totally banned for hawkers. BMC also got undertaken a survey by Tata Institute of Social sciences and Youth for Unity and Voluntary Action. This survey disclosed that there were approximately 1, 03,000 hawkers out of which 15,000 were licenced hawkers and approximately 22,000 were issued daily receipts or 'pautis' under a Scheme known as 'Unauthorized Occupation cum Refuse Removal Charges'.

A number of Writ Petitions came to be filed in the Bombay High Court challenging various aspects of the Scheme. In these Writ Petitions a number of interim Orders were passed. We are not really concerned with those orders except that, on 30th November, 1988, a statement was made on behalf of BMC that the scheme framed by them was only a draft scheme and that BMC would consider representations from all and would suitably modify the scheme. It must be mentioned that in an affidavit filed by BMC it was disclosed that between August 1998 till April 1999 , by issurance of 'pautis' BMC had collected Rs. 2,70,14,162/-.

BMC filed a modified scheme before the Court on 31st July, 1999. By this modified scheme the number of hawking zones were brought down from 488 to 377. The number of hawkers who could be now accommodated were 38,000. The proposal for construction of hawking plazas, on 28th sites, stood deleted. On 1st March, 2000 the High Court constituted a Committee composed of the Additional Municipal Commissioner in-charge of the scheme, one K.D.Kagtala, Advocate on behalf of the Bombay Hawkers' Association, one V.R. Bhandare, Advocate for some of the residents and Smt. Neera Punj, Convenor, Citizens' Forum for protection of Public places. This Committee heard and considered representations from various persons. It then identified areas/roads which could be hawking zones and which were to be non hawking zones. The Committee thereafter made its recommendations. Now the hawking zones were reduced to 187. The High Court by the impugned Judgment dated 5th July, 2000 sanctioned the scheme with a few modifications and adjourned the matter to enable BMC to consider the manner in which it proposed to implement the scheme. The basic features of the scheme as framed by the High Court are as under:

Thereafter, on 7th September 2000 the High Court permitted cooked food to be sold by the hawkers.

Special Leave Petitions were then filed in this Court. While these special Leave Petitions were pending BMC moved the Bombay High Court for certain modifications. The high Court, by its Order dated 22nd November 2000 clarified that only small changes would be permissible. BMC then filed an affidavit dated 31st January 2001 suggesting changes in the light of representations received by it. On 3rd may 2001 the high Court rejected the proposed modifications on the ground that the proposed modification in effect amounted to reframing the sanctioned scheme.

The Scheme framed by the high Court is questioned before this Court. It now becomes necessary to consider what was held by this Court in the 'Bombay Hawkers Unions' case (supra). In that case, the Municipal Commissioner had suggested framing of a scheme on the following terms:

"As per the provision of the section 61(0) of the Bombay Municipal Corporation Act, the removal of obstruction and projections in or upon streets, bridges and other public places is an obligatory duty of the Corporation. The hawkers together with their stalls or the objects which they sell and which they exhibit in the stalls or on the roads/pavements constitute an obstruction/projection in or upon streets and other public places. Their removal is therefore, an obligatory duty of the Corporation. Having regard to our resources human, physical and financial, it is, however, obvious that we will not be able to fully discharge this duty and remove the obstruction/s projections caused by hawkers on every road, lane or pavement in the entire city of the Greater Bombay. We should, therefore, decide that within the constraints of our obstructions/projections on certain streets and public places where the pedestrians or vehicular traffic is most intense and where any obstruction/projection on the street or pavement is likely to cause great harms to public interest and cause nuisance. For example, the roads leading from suburban railway stations to the residential areas in the suburbs or the roads in the Central Business District in South Bombay connecting the suburban railway station with the offices and other places of the work as also certain arterial roads on which major goods and public transport vehicles move, could be considered as important roads and pavements where no hawkers should be allowed to do their business. No doubt, at present, on these roads/areas too, there are existing hawkers who were given licences in the past but who now do constitute an obstruction to the free and safe flow of the pedestrian and vehicular traffic. It will be possible to remove these licensed hawkers by giving them alternative sites.

Thus having regard to the resources of vehicles, staff etc. at our disposal, we could identify in the each ward the streets/areas where intensive removal action against unauthorized hawkers should be taken. This shall not, however, mean that hawking in other areas will be freely permitted. In areas other than the areas identified from time to time, having regard to the resources available and the dynamic situation, for intensive removal action, if hawkers do their hawking business without seriously affecting the vehicular and/or pedestrian traffic or causing nuisance they may be tolerated by sufferance and a daily fee at the rate of Rs.3 per day from a male hawker and at the rate of Rs.1 day from a female hawker may be recovered without prejudice to our right to remove them should the dynamic situation and the changed circumstances so demand in future. It should be made explicitly that the collection of the fee shall not be deemed to confer any right whatsoever on the hawker concerned to do his/her hawking business at the site concerned.

He following restrictions/conditions shall be imposed on such hawkers:

This Court held that no exception could be taken to conditions (i), (ii), (iii), (iv), (vii) and (viii). This Court also held that in condition (ii) the words "they should not put up any stall or place any table, stand or such other thing or erect any type of structure whatsoever on the pitch on which they are conducting their hawking business nor should they hawk on handcarts" may stand. This Court further clarified that the condition that "they should also not put up any cloth, plastic sheet, chaddar, tarpaulin etc. as shelter" should not be construed to mean that the hawkers are not entitled to protect their wares against the sun, rain or wind. His Court clarified that the object of condition (ii) was only to ensure that no construction was put up and no handcarts were used. This Court also clarified that so far as condition (viii) was concerned the fact that daily fees were charged would not confer upon the hawkers the right to do business on any particular place. It was clarified that the fee was a kind of license fee to do business and it was not a fee charged for doing business at any particular place. This Court further held that the condition (v) was a unreasonable restrictions. This Court saw no reasons why the hawkers should not be allowed to sell cooked food, cut fruits and the like. This Court clarified that it did not mean that adulterated or unhygienic food could be sold. This Court held that hawkers had to comply with the Municipal licensing regulations and the provisions of the Prevention of Food Adulteration act, 1954. This Court lastly extended the business hours from 7 a.m. to 10 p.m. This Court then laid down following modalities:

It must be mentioned that this Judgment was delivered by Chief Justice Chandrachud (as he than was). Immediately thereafter a Constitution Bench of this Court, headed by Chief justice Chandrachud, (as he then was) delivered a Judgment in the case of Olga Tellis and others vs. Bombay Municipal Corporation and others reported in 1985(3) SCC 545. This case dealt with the rights of pavement dwellers in Bombay. On behalf of the hawkers strong reliance was placed on various observations made in this Judgment. It was submitted that this case showed that the right to hawk was also a fundamental right under article 21 of the Constitution of India. However such an argument have been negatived by this Court in the case of Sodhan Singh and others vs New Delhi Municipal Committee and others reported in 1989 (4) SCC 155. This case dealt with hawkers in the city of Delhi. It was held that the hawking on roadsides fell within the expression "occupation, trade or business" in article 19 (1) (g) but that it was subject to reasonable restrictions under article 19(6) of the constitution of India. It was held that this right was specifically for poor hawkers and not for sellers of luxury items or goods. It was further held that hawkers had no right to occupy any particular place on the pavement nor could they assert right to occupy permanently specific places demarcated on the pavement. It was held that the Municipality had a right to regulate such businesses and the Municipality was directed to frame rules and schemes regarding street trading. It was also recognized that hawking could be totally prohibited in certain areas. The Court negativated an argument based on Olga Tellis's case that the hawkers had a fundamental right under article 21. It was held that the right to carry on trade or business was not covered by article 21 and the hawkers could claim no right under article 21. It was inter-alia held as follows:-

"So far as right of a hawker to transact business while going from place to place is concerned, it has been admittedly recognized for a long period. Of course, that also is subject to proper regulation in the interest of general convenience of the public including health and security considerations. What about the right to squat on the roadside for engaging in trading business? As was stated by this Court in Bombay Hawkers Union vs. Bombay municipal Corporation_ the public streets by their nomenclature and definition are meant for the use of the general public; They are not laid to facilitate the carrying on of private business. If hawkers were to be conceded the right claimed by them, They could hold the society to ransom by squatting on the busy thoroughfares, thereby paralyzing all civic life. This is one side of the picture. On the other hand, if properly regulated according to the exigency of the circumstances, the small traders on the convenience of general public, by making available ordinary articles of everyday use for a comparatively lesser price."

Thereafter the court passed various orders accepting/modifying recommendations of the Committee appointed to consider to whom licenses were to be granted, how licenses were to be granted and the places where hawking could be permitted.

The above authorities make it clear that the hawkers have a right under article 19(1)(g) of the Constitution of India. The right however is subject to reasonable restrictions under Article 19(6). Thus hawking may not be permitted where e.g. due to narrowness of road free flow of traffic or movement of pedestrians is hindered or where for security reasons an area is required to be kept free or near hospitals, places of worship etc. There is no fundamental right under article 21 to carry on any hawking business. There is also no right to do hawking at any particular place. The authorities also recognize the fact that if properly regulated the small traders can considerably add to the convenience and comfort of the general public, by making available ordinary articles of everyday use for a comparatively lesser price. The scheme must keep in mind the above principles. So far as Mumbai is concerned the scheme must comply with the conditions laid down in the Bombay Hawkers Union's case. Those conditions have become final and there is no changed circumstance which necessitates any alteration.

As has already been mentioned hereinabove a draft scheme was prepared pursuant to the judgment of this Court in the Bombay Hawkers Union's case. In the initial scheme the number of hawking zones were shown as 488, they were then brought down to 377 and ultimately have been reduced to 187 as per the scheme framed by the Bombay High Court. Under the Scheme sanctioned by the Bombay High Court only 22,000 hawkers can be accommodated. Even as per the survey carried out by BMC there were over 1,03,000 hawkers in the city of Bombay. Out of this there were 15000 licensed hawkers and app. 22000 hawkers who had been issued pautis (receipts) under a scheme initiated in 1988 and known as 'Unauthorized Occupation cum Refuse Removal Charges.' As it has already been held that the hawkers have a fundamental right under Article 19(1)(g) it would not be correct to unreasonably restrict such a right, except under circumstances set out in the guidelines laid down by this Court in the Bombay Hawkers Union's case and other reasonable restrictions set out hereafter. In our view the correct approach should be to ascertain/earmark areas where, as per the guidelines, hawking cannot be permitted. Thereafter all other areas/streets must be hawking zones.

We have, during the course of arguments, tried to go through the scheme street by street. However on a re-consideration it appears to us that this Court is not really equipped to undergo this exercise. In our view it would be preferable that this Court approve the conditions of the scheme and certain roads/streets on which hawking is to be permitted. Then, as in Sodhan Singh's case, a committee must be appointed and modalities laid down under which the committee is to function. The committee can hear interested parties and consider their representations. The committee can decide whether any particular road/street is to be declared as a non-hawking zone. We therefore confine ourselves so laying down the basic features of the scheme, appointing a committee and laying down the modalities for functioning of the committee.

At this stage it must be mentioned that we had by order dated 1st may 2003 permitted parties to make suggestions as to which additional areas can become hawking zones. A number of suggestions had been made. We are told that BMC is agreeable to include 51 more roads as hawking zones. We have considered submissions of Mr. Divan on why these additional roads should not be added to the 187 already approved by the Bombay High Court. In our view 49 of these additional roads meet all the criteria, set out hereafter, and can be included in the hawking zones. Therefore to start with we approve the 187 + 49 roads as hawking zones. The roads we have excluded are Pandey road in A Ward and Deodhar Road in F/N ward as they appear to be residential areas with no shopping line. E further clarify that amongst these 49 roads there are some roads e.g. Mahatma Gandhi Marg in A Ward which are already included in the hawking zones but on which BMC now proposes to accommodate additional hawkers. Whilst doing so BMC will ensure that there is no impediment or hindrance to vehicular traffic or pedestrians. The approval of these 49 roads is subject to approval/NOC from the traffic police. It must also be clarified that even though a road may be within a hawking zone the restrictions, set out hereunder, regarding distances from railway stations, hospitals, educational institutions, places of worship etc. on that road, if any, would continue to apply.

The restrictions/conditions on which the hawkers shall do the business are:

M.A.PAL MOHAMMAD VS. R.K.SDARANAGAM AIR 985 Mad.23

The Supreme Court has held that the hawker trade, so long as it is regulated in a proper manner could never be a public nuisance. In fact it has gone on to enumerate the advantages of having street hawkers within cities. These include the reasonable prices, the fact that traders and manufacturers look to hawkers to dispose off their accumulated stocks which they cannot sell, the reasonable prices the fruits and vegetables are sold at. The Court has noted that in many cities around the world, on certain days in the week, the vehicular traffic in the earmarked street is prohibited, and the hawkers congregate and the public in large numbers gathers to buy their requirements. The court has observed that if regulatory measures were introduced, bearing in mind the requirements of the public of free access, hygiene, safety etc., it would benefit both the hawkers and the public at large. If specific plots are allotted and they are confined to those portions, there could be no conceivable objection for such a trade to be carried out, especially when it would provide an honest livelihood for those who have meager capital but desire to carry on trade.

BOMBAY HAWKERS UNION VS. BOMBAY MUNICIPAL CORPORATION (1985)3 SCC 528.

The main issue in most of these cases was whether restrictions on hawking was violative of Article 19(1) g of the Constitution which gives the right to carry on any trade or business. This is however subject to sub clause b) which to impose reasonable restrictions in interests of the general public. The court has referred to a list of recommendations relating to restrictions on hawkers. These include identifying Hawking zones: prohibiting handcarts, and form of permanent structure including tarpaulins, cloth or plastic sheets: restrictions on timings, noise, prohibiting sale of cooked food articles and cut fruits and a precondition that the hawkers should extend full cooperation to Municipal workers as fare as cleaning the streets and managing public agencies are concerned.

ROMESH CHANDER V.IMTIAZ KHAN (1998)4 SCC 760.

This was public interest petition on behalf of pavement hawkers and squatters. It concerns the allotment of sites to eligible squatters as per the Thareja Committee Report.

OLGA TELLIS v. BOMBAY MUNICIPAL CORPORATION (1985) SCC 545.

Though the judgment is not directly relevant as in it actually deals with the slum dwelwers, the observations made by the court regarding the forcible eviction, right to livelihood, etc. would have definite impact on the hawkers and vendors as well. The court held that eviction would lead to deprivation of livelihood and thus deprivation of life. It went on to say further that no person has the right to encroach on footpaths, pavements or any other place earmarked for a public purpose. Thus it says that forcible is not unreasonable, but that it must be according to procedure established by the law. It says, "Procedure prescribed by the law for depriving a person of his right to life must conform to the norms of justice and fair play". Thus the importance of this judgment lies in the fact that it recognizes that eviction affects the right of life and livelihood of poor people and thus the procedure followed such as a notice has to be necessarily served unless there are extreme circumstances.

SODHAN SINGH v. NDMC (1989) 4 SCC 155

Right to carry on trade not part of Article 21 but 19 (1)(g) and can be reasonably restricted under Article 19(6). Hawking on roadsides falls within the "occupation" trade or business" in Article 19(1) (g). All streets and roads are vested in the state but it holds it as a trustee and the members of the public are beneficiaries entitled to use it as a right. Therefore the municipality has full authority to permit hawkers and squatters on the sidewalk wherever at the municipality considers it convenient under the municipalities Act. But there cannot be a fundamental right vested in a citizen to occupy and place on the pavement. If the circumstances are appropriate and a small trader can do some business for the proposal gain on the pavement to the advantage of the general public and without any discomfort or annoyance to others, there can be no objection. Hawkers cannot be permitted to squat on every road. Factors like the width of the road, security etc. has to considered. Licenses must be granted periodically but not daily.

SODHAN SINGH v. NDMC (1988) 2 SCC 727

The judgment basically looked into the recommendations made by the Thareja committee. The court accepted its allotment of sites to hawkers based on number of years. This seems to be a good verdict as the committee conducted detailed, free and fair examination of the claims received. It also ordered immediate eviction of unauthorized squatters, which have been alleged to be in collusion with NDMC but at the same time unreasonable conditions regarding change of trade was prohibited as it was violative of Art . 19(1)(g).

Another notable aspect was that the court laid limitations on the arbitrary power abuse of NDMC through its discretionary functions.

GAINDRA RAM v MCD (1993) 3 SCC 179

In the case main dispute was relating to the allotment of stalls by MCD. Was arbitrary due to the sub classification made among the hawkers who possessed survey reports and those who did not. The Supreme Court affirmed this as the criteria applied to shops could not be applied to those did not have such facilities. It also directed the MCD to prevent future encroachments so that the rights of existing hawkers would not be infringed.

GAINDA RAM v. MCD (1994) 5 SCC 52.

This case looked into some of the recommendations of the Thareja committee regarding allotment of sites.

The main grievance of the hawkers is that MCD committee is allocating space on the proximity from the residence basis which rendered their right redundant.

The court held that the committee should obtain the preference of the zones from the hawkers where they would like to be accommodated and then suit their purpose as far as possible without increasing the number of slots in one zone.

GAINDA RAM v. M.C.D.(1998) 1 SCC 188.

The case involved the allotment of sites to hawkers and squatters as per the scheme evolved by the MCD. In this case the court held that the status quo granted earlier by the court itself in 1993 and which operated qua the squatters was to be continued with certain modifications in connection with those case which would be reconsidered by the committee preferably to remove the encroachments.

MUNICIPAL CORP. OF DELHI v. GURNAM KUAR (1989) 1 SCC 101.

In this the municipal corporation said that it could evict the hawkers if the due procedure of the law is followed and that there was no binding obligation on their part to provide alternate arrangement. The court affirmed this android that the principle of Jamaica Das could not be applied even if the argument lie. NT of the art. 141 is used for obiter dicta is not binding and moreover in that case the judgment was passed by the consent of the parties.