The Guntur Footpath And Thopudu ... vs The State Of Ap
2021 Latest Caselaw 863 AP

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          *HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU

               + WRIT PETITION No.3865 of 2020
                    % 16th February, 2021

#          The          Guntur       Footpath
    &ThopuduVeedhiballuChiruvyaparulaSnagha
    m,    Guntur     rep.  by   its President,
    SattenaplliNarasimharao, S/o Yedukondalu,
    Hindu, aged about 38 years, R/o 10/3,
    Arundalpet, Guntur.
                                                        ... Petitioner


                                AND

$ The State of A.P. rep. by its Principal
   Secretary, Municipal Administration
   and Urban Develpments, Secretariat,
   Velagapudi, Amaravati and five
   others.
                                                     ... Respondents.



! Counsel for the Petitioners          : Sri Raja Reddy Koneti




^ Counsel for the 1st respondent       : Government Pleader for
                                      Municipal Administration


^ Counsel for the 2nd to 4th respondents: Sri M. Manohar Reddy
                                            Standing counsel for GMC


^ Counsel for the 5th& 6th respondents: Government Pleader for Home


< Gist:

> Head Note:

? Cases referred:

1) C.A.Nos.4156-4157 of 2002 Supreme Court of India
2) AIR 1954 SC 728
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            HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                       WRIT PETITION No.3865 of 2020

ORDER:

The traditional dispute between the right to carry on the

trade to earn livelihood; and the reasonability of the actions of

the State in restraining trade is once again raised in this Writ

Petition.

The rights of the "street vendors" have received the

consideration of the highest courts of the land. As rightly

submitted the Hon'ble Supreme Court of India itself in

Maharashtra Ekta Hawkers Union and Another v

Municipal Corporation, Greater Mumbai and Others 1 ,

which is filed as a material paper held that for the last 28

years the Hon'ble Supreme Court of India has struggled to

find a workable solution to the problems of street vendors and

other sections of society. The Hon'ble Supreme Court of India

took into consideration their conditions of life;their

contribution to the economy, to the general public etc., and

granted them certain reliefs in the form of directions. Then

anAct called "The Street Vendors (Protection of Livelihood and

Regulation of Street Vending) Act, 2014 (in short "the Act 7 of

2014") has come into force. Despite this Act 7 of 2014 and its

stipulations, the complaint made in this writ is that the street

vendors are being treated with scant respect and are being

unreasonably evicted.

C.A.Nos.4156-4157 of 2002 Supreme Court of India

The petitioners before this Court are "The Guntur

Footpath &ThopudiVeedhiballuChiruvyaparulaSangham",

(The Guntur Footpath, Push Carts, Hawkers Association).

The petitioner society is espousing the cause of its members,

who according to the writ affidavit,were unceremoniously

evicted from a vending area in the market, where they are

vending the fruits. The City Planner along with the officials of

the Municipal Corporation and the Station House Officer

accompanied by the members of the Police force have

unceremoniously thrown away the fruits etc., that are being

traded by the vendors. The contention of the learnedcounsel

for the petitioner is that the statutory rights which are given

to them under the Act 7 of 2014have been totally neglected /

violated and that despite having valid licenses; without

following the stipulated due process of law the members of

the petitioner Association have been forcibly evicted from their

legitimate place of business. Learned counsel points out that

the rights of the street vendors have been receiving attention

of the Hon'ble Supreme Court of India since decades. He

points out that in Saghir Ahmad v State of U.P. 2 ,the

importance of the street vendor in our economy has been

judicially recognized. It is also pointed out by the learned

counsel that right to carry on a trade or the business can also

be regulated but he points out that in a series of other

judgments, the Hon'ble Supreme Court of India has taken a

AIR 1954 SC 728

compassionate view and allowed the street vendors to eke out

their livelihood subject to certain restrictions. The

importance of the street vendors and their contribution to the

economy and to the general public has been recognized by the

highest Courts according to Sri RajareddyKoneti learned

counsel for the petitioner. He argues that since there was no

law in place, the Hon'ble Supreme Court of India decided that

the policy that was existing as in 2009 was directed to be

adopted as the rules and regulations and the law governing

the subject. Relying upon the judgment of the Hon'ble

Supreme Court of India in Maharashtra Ekta Hawkers

Union case, learned counsel explained the history and also

the regulations in this area of trade and pointed out that like

in any trade, subject to reasonable restrictions, street vendors

were allowed to carry on their trade. Coming to the provisions

of the Act 7 of 2014, learned counsel argues that every street

vendor has a right to conduct his business as per the law. He

draws the attention of this Court to the procedure prescribed

for the relocation and eviction of the street vendors. He

argues that even if the present vendors do not have a valid

trade licenses or certificatesthey have to be given a 30 days

notice for eviction. If after the expiry of the 30 days period the

vendor is not relocated or evicted then he could be shifted.

The learned counsel thus submits that a special procedure

has beengiveninthis Central Enactment for the purpose of

evicting the vendors. He also relies upon Section 33 of the

Act which is as follows:

"33. Act to have overriding effect - the provisions of this Act shall have effect notwithstanding anything inconsistent therein contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."

Therefore, the contentions of the learned counsel for the

petitioner are that the members of the petitioner Association

have valid licenses; that they are eligible to continue their

trade in terms of the said licenses and that they cannot be

suddenly evicted. By relying upon Section 33 of the Act 7 of

2014 he submits that this provision of this Act will have an

overriding effect over the local Municipal laws. Learned

counsel for the petitioner ultimately relies upon Section 27 of

the Act 7 of 2014 and argues that the harassment of street

vendors, which has been going on for generations, has been

addressed by including the subject section which prevents the

harassment by police or by any other authorities. Therefore,

learned counsel Sri Raja Reddy argues that the actions of the

respondents in this case are totally contrary to the law.

In reply to this Sri Naresh Kumar, representing learned

standing counsel for the 2nd respondent Sri M. Manohar

Reddy argues with considerable force that the members of the

petitionerare not entitled to any relief. According to the

learned standing counsel the street vendors' policy has been

brought into existence in the Municipal Corporation of

Guntur. The Guntur City has been divided into red zone,

green zone and amber zone. In the red zone it is submitted

that no business can be carried on at all. It is mentioned that

the members of the petitioner have encroached upon the road

and are selling the fruits in the red zone area. It is a very

heavily populated area with buildings and with heavy traffic.

Therefore, learned standing counsel argues that in order to

facilitate the free flow of traffic and to lessen the

inconvenience to the general public, the petitioner's members

were directed to vacate the area. It is also mentioned that the

pushcarts were on the road margins and in the just before the

entrance of the Lalapet fruit market. Therefore, learned

standing counsel argues that the action taken by the

respondent-corporation is correct. He also questions the

locus of the petitioner's association to file the Writ Petition

since according to him the action was taken against the

individual members and not for the Association.

In rejoinder Sri Raja Reddy Koneti argues by relying on

the Memo filed by him with USR No.40850-2020 to argue that

the Lalapet area is not mentioned either in the red zone or in

the amber zone. The classification of three zones is

mentioned in this document, which is signed by the

Commissioner, Guntur Municipal Corporation, who has also

filed the counter affidavit as per him. According to the

learned counsel for the petitioner since Lalapet Bazar is not

mentioned in these zones and so the contention of the learned

standing counsel is not correct. Apart from that he argues

that the provisions of the Act have not been followed either in

letter or in spirit.

This Court after considering the submissions made

notices that there is no dispute about the fact that the Act 7

of 2014 applies to the facts and circumstances of the case.

That the street vendors are being regulated is also admitted in

the counter affidavit. The question that falls for consideration

is whether the action taken in this case is correct or not.

In the opinion of this Court the following definitions,

which are found under Section 2 (1) of the Act 7 of 2014 are

important:-

"Section 2 (1) (l) street vendor means a person engaged in vending of articles, goods, wares, food items or merchandise of everyday use or offering services to the general public, in a street, lane, sidewalk, footpath, pavement, public park or any other public place or private area, from a temporary built up structure or by moving from place to place and includes hawker, peddler, squatter and all other synonymous terms which may be local or region specific; and the words street vending with their grammatical variations and cognate expressions, shall be construed accordingly; (Emphasis supplied) Section 2(1) (d) mobile vendors means street vendors who carry out vending activities in designated area by moving from one place to another place vending their goods and services;

Section 2(1) (k) stationary vendors means street vendors who carry out vending activities on regular basis at a specific location;

Section 2(1) (e) natural market means a market where sellers and buyers have traditionally congregated for the sale and purchase of products or services and has been

determine das such by the local authority on the recommendations of the Town Vending Committee; Section 2(1) (n) vending zone means an area or a place or a location designated as such by the local authority, on the recommendations of the Town Vending Committee, for the specific use by street vendors for street vending and includes footpath, side walk, pavement, embankment, portions of a street, waiting area for public or any such place considered suitable for vending activities and providing services to the general public." (Emphasis supplied).

The above definitions make it clear that street vendors

can carry on business in a street, lane, site walk, footpath,

pavement etc. The vending zone also includes a footpath, side

walk, pavement, embankment, portion of street also. In

addition, natural market means and includes the market

where sellers and buyers have traditionally congregated.

Therefore, merely on the ground that the petitioners have

allegedly encroached into the road or carried on business on a

road margin is not by itself a ground to throw them out of

their business. Section 12 (1) of the Act 7 of 2014 gives a right

to every street vendor to carry on his business in accordance

with law. They also have a duty to maintain cleanliness,

hygiene under Section 15 of the Act 7 of 2014 and to

maintain civil amenities in vending zone under section 16 of

the Act. If in the opinion of the respondent-Corporation the

street vendors are to be relocated and are to be stopped from

conducting their business, they will have to follow the

procedure stipulated under Section 18 of the Act 7 of 2014,

which mandates that the vendor should be given a 30

daysnotice for relocation or eviction. The procedure is very

clearly stipulated under Section 18 of the Act 7 of 2014. The

plan to promote street vending should be prepared in line

with Section 21 of the Act 7 of 2014 and it should be revised

for every five years. In preparing the plan under Section 21of

the Act 7 of 2014 the local authority shall keep into

consideration what is stipulated in the first schedule of the

Act, including the right of the commuters and the public to

use the said area. Therefore, it is clear that the plan should

consider the rights of the petitioners and other street vendors

and also the rights of the commuters and the general public

to move freely in the areas. Specific areas should be

earmarked for vending. The mere fact that there is

overcrowding or there are sanitary concerns in the existing

market shall not be a ground to evict the hawker / vendor.

Similarly, any existing market or natural market cannot be

declared as no vending zone. Therefore, this Court is of the

opinion that while the intention of the respondents may be

laudable, the manner in which they have exercised their

power is questionable.

As rightly mentioned by the learned counsel for the

petitioner Section 33 of the Act 7 of 2014 states that the

provisions of this Act shall have effect notwithstanding

anything inconsistent in any other law. Similarly, Section 27

of the Act 7 of 2014 also starts with a non obstante clause

and states that no street vendor shall be harassed by the

police or other authorities.

It is hoped that all the provisions of this Act would be

kept in mind by the respondents and other civic authorities

before taking action against the street vendors. This Court is

not holding that the street vendors have an absolute right to

carry on their business in a place of their choice. No right is

absolute and it is always subject to reasonable restrictions.

In the case on hand the Act 7 of 2014, which is a special

enactment dealing with the rights of the street vendors

provides the methodology for regulating the business being

carried on. Even if this Section 33 of the Act 7 of 2014 is

ignored still in view of the fact that as this Act 7 of 2014 is a

special law, it will prevail over the provisions of the

Hyderabad Municipal Corporation Act as applicable to the city

of Guntur or any other Corporation. The maxim

generaliaspecialibus non-derogant or the special law prevails

over the general law is squarely applicable to this case. The

procedure prescribed under this Act alone has to be strictly

followed in case the Corporation wishes to take action against

the street vendors.

Factually also this Court agrees with the learned

counsel for the petitioner that this particular market at

Lalapet is not declared as a 'non-vending zone'. It does not

find place either in the red zone or in the amber zone. The

mere fact that the petitioners were conducting business on

the road margins is not by itself a ground to forcibly evict

them. The definitions of "vending zone" includes a foot path,

side walk, pavement, embankment etc. Therefore, unless and

until the area has been declared as a no vending zone in

terms of Section 21 of the Act 7 of 2014 and first schedule

etc., and the other provisions are complied with the

petitioner's members have a right to carry on their business.

Terms and conditions of their licenses should also specify

this. It is hoped that the plan for street vending under

Section 21 of the Act 7 of 2014 read with the First Schedule

will be carefully prepared balancing the needs of the

vendors,the general public / commuters, right to use roads

free flow of traffic etc.In the facts of this case that the

petitioners have made out a case for interference. This Court

also holds that the Association has the right to espouse the

cause of its members.

Accordingly, the Writ Petition is allowed and there shall

be a mandamus against the respondents not to interfere with

the business of the persons in Lalapet Fruit market etc.,

except in accordance with the provisions of the Act 7 of 2014.

It is hoped that the anguish expressed by the Hon'ble

Supreme Court of India in the Maharashtra Ekta Hawkers

Union case that for almost three decades (by then) the

highest Court is trying to find a practical solution will be

addressed by the Civil officials by implementing the Act 7 of

2014 in its true, letter and spirit. So that the conflicting

interests of the street vendors and the general public / public

authorities are truly balanced. There shall be no order as to

costs.

Consequently, the Miscellaneous Applications pending,

if any, in these Writ Petitions shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:16.02.2021.

Note: LR copy to be marked.

B/o Ssv