Central Park Food Truckers ... vs The Greater Visakhapatnam ...
2022 Latest Caselaw 2085 AP

      THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

                         W.P.No.9798 of 2022
ORDER:-

      The present Writ Petition is filed under Article 226 of the

Constitution of India to declare the action of the respondent Nos.1, 3,

5, 6 & 7 in not granting permission to the Writ Petitioners and other

street vendors to re-start night food courts at service road, near old

jail road, opposite to women‟s college, Visakhapatnam even after

Covid-19 period is arbitrary, illegal and violative of Articles 14 & 21

of the Constitution of India and also violative of Section 12 of the

Street Vendors (Protection of Livelihood and Regulation of Street

Vending) Act, 2014 (in short, "the Act 7 of 2014") and consequently

prayed to direct the respondents to grant necessary permissions to

re-start night food courts.

2. The contention of the petitioner is that petitioner has formed

into a Society and got it registered under Section 9 of Societies

Registration Act, 2001 in the name and style of Central Park Food

Truckers Welfare Association. They were eaking out their livelihood

by carrying on the business of selling food items by obtaining

permission from the concerned authorities. Basing on the direction

issued by the 1st respondent vide order dated 18.03.2020 in

Rc.No.47/2020H5UCD/GVMC, they have temporarily stopped the

business due to Covid-19 pandemic.

3. The learned counsel for the petitioner submitted that the

petitioner association made a representation in Spandana portal on

03.01.2022 requesting to permit to do business i.e., running of food

courts at service road, near old jail road, opposite to women‟s college,

Visakhapatnam etc as the Covid-19 pandemic has come to normalcy.

The learned counsel for the petitioner further submitted that the 1st

respondent-Municipal Commissioner has rejected the application

made in Spandana portal, without assigning any reason.

4. Aggrieved by the same, the petitioner association filed the

present Writ Petition seeking a direction to the respondents to allow

them to run the night food courts. The matter was listed on

13.04.2022 for the first time. At the request of the counsel for the 1st

respondent, the matter was again listed on 18.04.2022.

5. Heard both sides.

6. At the time of hearing, learned counsel for the 1st respondent

raised the following contentions:-

i) The Writ Petition is not maintainable as it was filed by the

Association and he relied on the Order passed by the High Court of

Madhya Pradesh in Writ Appeal No.91 of 2022 dated 15.03.2022.

ii) The Writ Petition is not maintainable as no Writ of Mandamus

can be issued by this Court as there is no infringement of legal right

and he relied on the judgment of this Court in "Vadlamani Srinivas @

Srinivas V. Union of India, Ministry of Finance, New Delhi and two

others.1"

(iii) The petitioner herein cannot rely on the internal proceedings of

the authorities in the said context learned counsel for the 1st

respondent relied on the Judgment of the Hon‟ble Apex Court (from

Gouhati) (D.B.) in "Union of India & Others V. Vartak Labour Union2".

2013 LawSuit (AP) 19

2011 LawSuit (SC) 176

(iv) It is further stated that the petitioner association does come

under the definition of street vendors as per the Street Vendors

(Protection of Livelihood and Regulation of Street Vending) Act, 2014.

Thus, prayed to dismiss the Writ Petition.

First contention: Regarding maintainability of the Writ

Petition by the association.

7. Per contra, the learned counsel for the petitioner stated that

the Writ Petition is maintainable as in similar circumstances this

Court has allowed the Writ Petition and he relied on the Judgment of

this Court in, "Guntur Footpath & Thopudu Veedhiballu

Chiruvyaparula Sangham V. State of Andhra Pradesh 3." He further

relied on the judgment of the Hon‟ble Apex Court in, "Akhil Bharatiya

Soshit Karamchari Sangh (Railway) Represented by its Assistant

General Secretary on behalf of the Association V. Union of India and

others4" and prayed to allow the Writ Petition by directing the

respondents to grant necessary permissions to the petitioner to start

night food courts.

8. Learned counsel for the petitioner relied on the Judgment of

this Court in W.P.No.3865 of 2020 dated 16.02.2021 in, "Guntur

Footpath & Thopudu Veedhiballu Chiruvyaparula Sangham V. State of

Andhra Pradesh5", wherein this Court has not decided the issue of

maintainability of the Writ by the association. But the Writ Petition

was filed by the Association. The said Writ Petition was allowed and

Mandamus was issued against the respondents directing them not to

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(1981) AIR SC 298

(2021) 2 ALT 286

interfere with the business of the persons therein in accordance with

the provisions of the Act 7 of 2014.

Para no.63 in the judgment of the Hon‟ble Apex Court in,

"Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented by

its Assistant General Secretary on behalf of the Association V. Union of

India and others6" is extracted as hereunder:-

"Para No.63. A technical point is taken in the counter affidavit that

the 1st petitioner is an unrecognised association and that, therefore,

the petitioner to that extent, is not sustainable. It has to be

overruled. Whether the petitioners belong to a recognized union or

not, the fact remains that a large body of persons with a common

grievance exists and they have approached this Court under Article

32. Our current proccssual jurisprudence is not of individualistic

Anglo-Indian mould. It is broad based and people-oriented, and

envisions access to justice through „class actions‟, „public interest

litigation‟, and „representative proceedings‟. Indeed, little Indians in

large numbers seeking remedies in courts through collective

proceedings, instead of being driven to an expensive plurality of

litigations, is an affirmation of participative justice in our

democracy. We have no hesitation in holding that the narrow

concept of „cause of action‟ and „person aggrieved‟ and individual

litigation is becoming obsolescent in some jurisdictions. It must

fairly be stated that the learned Attorney General has taken no

objection to a non-recognized association maintaining the Writ

Petitions".

Hence, in the light of the above judgment of the Hon‟ble Apex

Court, the contention raised by the learned counsel for the 1st

(1981) AIR SC 298

respondent is untenable and rejected. The petitioner society can

maintain the Writ Petition.

Second contention: No Writ of Mandamus can be issued as there is

no infringement of legal right by relying on the judgment in

"Vadlamani Srinivas @ Srinivas V. Union of India, Ministry of Finance,

New Delhi and two others".7

9. For the above said contention, this Court relies on the

judgment reported in, "Shaik Dastagiri and another V. The Executive

Officer, Udaygiri Gram Panchayat and another 8" wherein it is held

that the right to carry on trade or profession is a fundamental right

under Article 19(1)(g) of the Constitution of India. The learned Judge

in the said judgment has relied on the following judgments:-

In "Sodan Singh V. New Delhi Municipal Committee 9",

"Ahmedabad Municipal Corporation V. Nawab Khan10",

"N. Jagadeesan V. District Collector, North Arcot11" and in other cases,

the Hon‟ble Supreme Court held that the common law right of

trading on pavements of streets also forms part of the right under

Article 19(1)(g) of the Constitution of India. If properly regulated

cannot be denied on the ground that the streets are meant

exclusively for passing or repassing and for no other use. Proper

regulation is, however, a necessary condition as otherwise the very

object of laying out roads - to facilitate traffic - may be defeated.

Allowing the right to trade without appropriate control is likely to

lead to unhealthy competition and quarrel between traders and

2013 LawSuit (AP) 19

2002 SCC OnLine AP 196

AIR 1989 SC 1988

AIR 1997 SC 152

AIR 1997 SC 1197

travelling public and sometimes amongst the traders themselves

resulting in chaos. If the matter is examined in this light, it will

appear that the principles stated in "Saghir Ahmad's case12" in

connection with transport business applies to the hawker‟s case also.

Street trading is a recognized as a fundamental right.

10. As per the judgment cited by the learned counsel for the 1st

respondent, the Writ of Mandamus can be issued only when there is

infringement of the legal right. Here, in the present case the right to

carry on trade and profession is a fundamental right. Where, in this

case, the respondents were not given permission to carry on trade or

profession. Hence, it is invasion of the fundamental right as held in,

"Shaik Dastagiri and another V. The Executive Officer, Udaygiri Gram

Panchayat and another13." Hence, the citation relied by the learned

counsel for the 1st respondent is in favour of the petitioner herein.

11. As per the afore stated judgment, carrying on trade or business

is a fundamental right. When such right is violated a Writ Petition

under Article 226 of the Constitution of India is maintainable. Hence,

the contention raised by the petitioner in "Vadlamani Srinivas @

Srinivas V. Union of India, Ministry of Finance, New Delhi and two

others14" is not applicable to the present facts and circumstances of

the case, for the raised contention.

Third contention: The petitioner herein cannot rely on the internal

proceedings of the authorities.

12. Learned counsel for the 1st respondent submits that the letter

addressed by the 1st respondent to the 5th respondent to consider for

AIR 1954 SC 728

2002 SCC OnLine AP 196

2013 LawSuit (AP) 19

the open of the food court by the petitioner association is an internal

proceeding which cannot be relied by the petitioner association. He

relied on the judgment cited supra, he stated that the petitioner

cannot agitate before this Court seeking a direction to grant

permission for running the food court. It is a known law that the

internal departmental communications and notings in department

files donot have the sanction of law and does not create any

enforceable right. Learned counsel for the petitioner relied on the

above proceedings to the extent that the 1st respondent has

recommended the VMRDA to consider for a restart of the food court.

The 1st respondent ought not be oblivious of the fact that it is only a

recommendation by the 1st respondent to the 5th respondent to

consider the case of the petitioner for restart of the food court after

Covid-19 pandemic. However, the 5th respondent has declined the

said recommendation of the 1st respondent. Hence, the present Writ

Petition.

Fourth contention:

13. Learned counsel for the 1st respondent has raised another

ground that the members of the petitioner-association does come

under the definition of street vendors. It is appropriate to extract the

relevant provisions in Act No.7 of 2014. They are extracted as

hereunder:

Section 2(d) Mobile Vendors: 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(k) Stationary Vendors: Stationary Vendor means street vendors who carry out vending activities on regular basis at a specific location;

Section 2(l) Street Vendor: 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;

Section 3 Survey of street vendor sand protection from eviction or relocation: (1) The Town Vending Committee shall, within such period and in such manner as may be specified in the scheme, conduct a survey of all existing street vendors, within the area under its jurisdiction, and subsequent survey shall be carried out at least once in every five years.

(2) The Town Vending Committee shall ensure that all existing street vendors, identified in the survey, are accommodated in the vending zones subject to a norm conforming to two and half per cent of the population of the ward or zone or town or city, as the case may be, in accordance with the plan for street vending and the holding capacity of the vending zones.

(3) No street vendor shall be evicted or as the case may be, relocated till the survey specified under sub-section (1) has been completed and the certificate of vending is issued to all street vendors.

Section 12. Rights of Street Vendors:- (1) Every street vendor shall have the right to carry on the business of street vending activities in accordance with the terms and conditions mentioned in the certificate of vending.

Section 13. Right of street vendor for a new site or area on relocation: Every street vendor, who possess a certificate of vending, shall, in case of his relocation under section 18 be entitled for new site or area, as the case may be, for carrying out

his vending activities as may be determined by the local authority, in consultation with the Town Vending Committee.

14. On the conspectus of above definitions, there is no gain saying

that the petitioner association does not come under the purview of

street vendor. The above said definitions make it clear that the Street

Vendors can carry on business in a street, lane, sidewalk, footpath,

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

pavement, embankment, portion of street also. The contention raised

by the respondents that the petitioner association are not the street

vendors and ought to have carried on business in the road margin is

not tenable as per the judgment in, "Guntur Footpath & Thopudu

Veedhiballu Chiruvyaparula Sangham V. State of Andhra Pradesh 15"

and "Shaik Dastagiri and another V. The Executive Officer, Udaygiri

Gram Panchayat and another16" and every street vendor shall have

the right to carry on the business of street vending activities in

accordance with the terms and conditions mentioned in the

certificate of vending. Therefore, merely on the ground that the

petitioner association members 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. In the afore cited

judgment i.e., "Guntur Footpath & Thopudu Veedhiballu

Chiruvyaparula Sangham V. State of Andhra Pradesh,17" the learned

Judge has held that Act 7 of 2014 is a special Act and it will prevail

over the provisions of the Municipal Corporation Act.

15. In view of the facts and circumstances of the case and

considering the submissions of both learned counsels and on a

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2002 SCC OnLine AP 196

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perusal of the material on record, this Court deems it appropriate to

dispose of the Writ Petition by directing the petitioner association to

file an application under Section 3 of Act 7 of 2014 to the concerned

authority and the concerned authority shall process the application

in accordance with law, within a reasonable time, i.e., not more than

three (3) weeks from the date of receipt of a copy of the order and

shall consider the application in a positive manner as the right to

carryon business is a fundamental right.

16. With the above direction the Writ Petition stands disposed of.

There shall be no order as to costs.

Miscellaneous Petitions pending, if any, shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: -04-2022 EPS

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

W.P.No.9798 OF 2022

Date: -04-2022

EPS