Bombay High Court
Shri Vile Parle Kelvani Mandal And ... vs Municipal Corporation Of Greater ... on 23 October, 2015
Bench: A.S. Oka
1 wp-224.11, pil-36.10
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.224 OF 2011
Shri Vile Parle Kelvani Mandal and Ors. ... Petitioners
Versus
Municipal Corporation of Greater Mumbai and Ors. ... Respondents
WITH
PUBLIC INTEREST LITIGATION NO.36 OF 2010
Janhit Manch and Ors. ig ... Petitioners
Versus
Brihanmumbai Municipal Corporation and Ors. ... Respondents
WP NO.224 OF 2011
Mr. V.A. Thorat, Senior Counsel a/w Mrs. Prachi Tatake and Ms.
Manorama Mohanty a/w Mr. Satish Srivastava & Co. for Petitioners.
Mr. A.Y. Sakhare, Senior Counsel a/w Ms. Trupti Puranik, for
Respondent - Mumbai Municipal Corporation.
Mr. J.S. Saluja, AGP, for Respondent - State of Maharashtra.
Mr. Suresh K. Mali a/w Mr. Vishnu Choudhari, for the Respondent No.6.
Mr. M.M. Vashi, Senior Counsel a/w Mr. A.A. Siddiqui i/by A.A. Siddiqui
& Associates, for the Respondent Nos.7 and 8.
PIL NO.36 OF 2015 AND CHSW NO.23 OF 2015 A/W CHSW/57 OF
2015
Mr. Bhagwanji Raiyani, Second Petitioner in person.
Mr. A.Y. Sakhare, Senior Counsel a/w Ms. Trupti Puranik, for
Respondent - Mumbai Municipal Corporation.
Mr. J.S. Saluja, AGP for Respondent - State of Maharashtra.
Mr. Suresh K. Mali a/w Mr. Vishnu Choudhari for Applicant in Chamber
Summons No.57 of 2015.
Mr. Makarand Kale a/w Aasif Siddiqui, for Respondent Nos.7 and 8 and
for Applicant in Chamber Summons No.23 of 2015.
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CORAM : A.S. OKA & REVATI MOHITE DERE, JJ.
JUDGMENT RESERVED ON : 13th AUGUST, 2015
JUDGMENT PRONOUNCED ON : 23rd OCTOBER, 2015
JUDGMENT (PER A.S. OKA, J.):-
. In these two Petitions, the grievance is regarding the failure
of the Mumbai Municipal Corporation to take action against illegal
hawking.
FACTS OF PIL NO.36 OF 2010
2. PIL No.36 of 2010 has been filed by the second Petitioner
appearing in person who is the President of the first Petitioner along
with one Shri Dattaram Kumkar. This Petition has been filed inviting the
attention of the Court to the illegal hawking activities on the Gulmohar
Road which connects to S.V.Road and Juhu Tara Road and Versova Road
through Link Road which is a 100 feet wide extremely busy road. It is
pointed out that on a 600 meter stretch of the said road between the
Mithibai College-NMIMS College junction to the Cooper Hospital
junction, there are large number of educational institutions in which
about 25,000 students are studying. It is pointed out that on this road,
there is a large vehicular traffic and pedestrian movement as well. Apart
from the educational institutions and the Cooper Hospital, it is
predominantly a residential locality in which there are large number of
residential buildings.
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3. It is pointed out that thousands of people using Gulmohar
road have to suffer traffic jams. It is pointed out that one of the most
major causes of traffic jam is illegal shops/ stalls on footpaths on both
sides of the road. It is pointed out that in many of these stalls, the
occupants are illegally running eateries. They are cooking food in the
stalls. They are selling fast food. It is pointed out that the customers of
these stalls park their vehicles either in angular or parallel manner
which creates traffic jams. It is pointed out that these illegal stalls are
creating a lot of dirt and air as well as noise pollution. It is pointed out
that large number of party workers of a political party have been given
authorisation to run Zunka Bhakar stalls. They are also doing cooking in
the stalls.
4. The Petitioners are relying upon information obtained by
them under the Right to Information Act. The Petitioners are relying
upon large number judgments including the orders passed by the Apex
Court from time to time in Civil Appeal Nos.4156-4157 of 2002
(Maharashtra Ekta Hawkers Union and Another vs. Municipal
Corporation of Greater Mumbai and others). Reliance is placed on final
judgment delivered by the Apex Court in the said Civil Appeals which is
dated 9th September, 20131. The Petitioners are relying upon number of
photographs annexed to the Petition as well as to the additional
1 (2014)1 SCC 490
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affidavits filed by the second Petitioner appearing in person. The
prayers are for removal of stalls and various other reliefs.
5. In PIL No.36 of 2010, Chamber Summons No.57 of 2015
has been taken out by Shri. N. Taranath Shetty seeking intervention in
the PIL and for seeking relief of restraining the Municipal Corporation
from demolishing the three stalls which are known as Aarey Sarita stalls
at Gulmohar Road, Vile Parle (W). We may note here that "Aarey" stalls
were established in Mumbai for selling the milk and milk products of
the Government of Maharashtra Dairy situated at Aarey, Mumbai. There
is a Chamber Summons being Chamber Summons (L) No.23 of 2015
taken out by Shri Shivaji Rama Gadkari and 8 others. The Applicants
are claiming to be holding stalls on the footpaths near the property of
Vile Parle Kelvani Mandal (the first Petitioner in Writ Petition No.224 of
2011) and therefore, they claim that they will be affected by the orders
passed in this PIL.
6. There is an affidavit filed by Dr. Bapu Gopinath Pawar, the
Deputy Municipal Commissioner (RE) of the Mumbai Municipal
Corporation. In the affidavit he has stated that a survey of stalls situated
on Gulmohar Road falling within 100 meters of educational institutions
was made. He stated there are 20 stalls which are falling within the
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distance of 100 meters of educational institutions. It is pointed out that
out of 20 stalls, two stalls have been demolished which were used as
Zunka Bhakar Kendra. It is pointed out that there are civil suits filed in
relation to seven Aarey stalls in which there are prohibitory orders. It is
pointed out that there are eight other licensed stalls of protected
hawkers having licenses under Section 313 (A) of the Mumbai
Municipal Corporation Act, 1888. Apart from the aforesaid stalls, there
are three stalls in respect of which licenses under Section 394 of the
said Act of 1888 have been issued. It is pointed out that though notices
of eviction have been served, the holders of the stalls have filed Civil
Suits in which there are prohibitory orders.
FACTS OF Writ Petition No.224 of 2011
7. Writ Petition No.224 of 2011 has been filed by Shri Vile
Parle Kelvani Mandal, the Principal of the Mithibai College of Arts,
Chauhan Institute of Science and A.J. College of Commerce as well as
by the Principal of Narsee Monjee College of Commerce and Economics.
The prayer in this Petition under Article 226 of the Constitution of India
is for directing the Municipal Corporation to remove stalls put up on the
footpath of Bhaktivedanta Swami Marg from Mithibai College,
Gulmohar Road upto SBM Polytechnic College on Irla Road, J.V.P.D.
Scheme, Mumbai. A prayer is also made for restraining the Municipal
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Corporation from granting any license/ permission to the hawkers to
put up stalls or to carry out business on the footpaths. The Respondent
Nos.6 to 9 have been impleaded who have been carrying out business in
the said stalls. It is pointed out in the said Petition that the first
Petitioner Society is a Charitable Trust which is running and
administering various educational institutions such as N.M. Institute of
Management studies, N.M. College, SBM Polytechnic College Mithibai
College of Arts, Chauhan Institute of Science, A.J. College of Commerce,
N.M. College of Commerce, Economics and others. It is pointed out
that about 30,000 students are taking education in the said educational
institutions run by the first Petitioner. It is pointed out that on the
footpaths surrounding the educational institutions of the Petitioners,
there are unauthorisedly constructed stalls and the hawkers are illegally
carrying out business from the said stalls. It is pointed out that stalls
have been constructed either close to the gates of the compound wall of
the institutions of the first Petitioner or by blocking the gates of the
compound wall. It is pointed out that on 30 th May, 2000 though the
said stalls were demolished by the Mumbai Municipal Corporation, the
same were allowed to be reconstructed and thereafter, no action has
been taken by the Municipal Corporation.
8. The first Petitioner made an application to the Assistant
Commissioner, 'K' Ward of the Mumbai Municipal Corporation seeking
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permission to beautify the footpaths abutting the educational
institutions run by it. On 18 th June, 2000, a permission was granted by
the fourth Respondent. As some stalls were again put up on 24 th July,
2000, the first Petitioner addressed a letter to the Senior Inspector of
Police of Juhu Police Station complaining about the unauthorised stalls
and requesting the police to patrol the said area. The first Petitioner
called upon the fourth Respondent by a letter 3 rd November, 2000 to
remove the stalls. On 12th March, 2001 the fourth Respondent informed
the first Petitioner that while carrying out demolition on 31 st May, 2000
certain stalls which were protected by the orders of the City Civil Court
were wrongly demolished. The first Petitioner was called upon to
remove the flower bed made by it on the said spot to accommodate a
stall of one Mr. N. Arumugan Nainar.
9. Ultimately, the first Petitioner was forced to file Writ
Petition No.1799 of 2001 in this Court. The said Writ Petition was
disposed of by a Division Bench by order dated 21 st January, 2002
which reads thus :-
"P.C. :-
1. Heard parties.
2. Respondent-Corporation is directed to remove within two
weeks the hawkers on the footpath near the premises of the
Petitioner's Education institutions and allow the Petitioner
to continue the beautification work which is already
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sanctioned by the Corporation. The officer incharge of Juhu
Police Station is directed to give police protection to the
Municipal staff for the purpose of removal of the hawkers
from the footpath abutting the Petitioner premises.
3. Petition is disposed of.
4. Certified copy expedited."
10. It is pointed out that notwithstanding the said order, the
stalls have not been removed. It is pointed out that three Member
Hawking Zone Committee constituted by the Municipal Corporation by
order dated 16th August, 2005 declared Shamrao Parulekar Marg (13 th
Road) under J.V.P.D Scheme as a Non-Hawking Zone.
11. By a letter dated 12 th October, 2010 addressed by the
Advocate for the Petitioners, the first Respondent - Municipal
Corporation was called upon to remove all hawkers carrying out the
business on the footpath in the periphery of the Educational Institutions
of the first Petitioner. On 28th October, 2010, the Senior Inspector
(Removal of Encroachment) of the Mumbai Municipal Corporation
informed the Advocate for the Petitioners that encroachment removal
action has been taken and the same will be continued.
12. The case of the Petitioners is that there are number of
illegal stalls from which the hawkers operating on the footpath on the
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road in question. It is their case that the hawkers are contending that
they have obtained permissions from the Municipal Corporation to carry
out their business on the footpath. On 13th December, 2010 the Security
Guard Agency employed by the first Petitioner informed that on the
very day, a stall was constructed on the footpath and about 5 shops
have come up on the footpath. Accordingly, the Writ Petition was filed
on 7th January, 2011 by the Petitioners seeking a writ of mandamus for
setting aside the permissions/ licenses granted by the Municipal
Corporation to the hawkers to put up stalls and to carry out business on
the footpath of the said road i.e. Bhaktivedanta Swami Marg from
Mithibai College, Gulmohar Road upto SBM Polytechnic College on Irla
Road, JVPD Scheme, Mumbai. Further, a writ of mandamus is prayed
for directing the Respondents - Municipal Corporation to remove the
stalls of the hawkers. Further a relief is prayed for restraining the
Municipal Corporation from granting licenses/ permissions to carry out
business on the said footpath.
13. There are number of affidavits filed on record of the Writ
Petition. The Municipal Corporation filed an affidavit of Shri Mahendra
Chandrakant Shirke, Senior Inspector (License), K/West ward dated 24 th
March, 2011. In the said affidavit, he stated that from January, 2010 to
March, 2011 the municipal officers have taken action on 47 occasions
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against the unauthorised hawkers in the vicinity of the educational
institutions of the first Petitioner. Reliance is placed on the photographs
annexed to the affidavit. It is stated that the Juhu Police Station has
been requested to carry out patrolling in the said area. It is pointed out
that there are 26 stalls in the vicinity of the educational institutions out
of which 4 were unauthorised. It is stated that all 4 stalls have been
removed in March, 2011. In case of 2 other stalls, Suits are pending in
the City Civil Court. It is pointed out that out of the remaining 20 stalls
which are permitted by the Municipal Corporation, 5 are Handicapped
Public Call Offices (H.P.C.O), 6 are Aarey/ Aarey Sarita stalls. It is
stated that 2 stalls are Zunka Bhakar Centres, 4 other stalls have
licenses under Section 394 of the Mumbai Municipal Corporation Act,
1888 (for short "MMC Act") and 3 stalls are holding licenses under
Section 313A of the MMC Act. Relying upon the order dated 9 th
December, 2003 of the Apex Court, it was stated in the affidavit that
these stalls are allowed to continue in the Non-Hawking Zone as these
stalls have been issued licenses prior to the order of the Apex Court. It is
stated that an action has been initiated against those who have
infringed conditions of license/permit. It is claimed that though a
request was made by the Municipal Corporation to the Petitioners to
submit a proposal for beautification of pavement opposite their
Educational Institutions to ensure that there are no stalls erected, the
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Petitioners have not responded. There is another affidavit jointly filed
by Shri Umesh Chandrashekhar Bodkhe and Vijay Janardhan Gawde,
who are the officers of the Mumbai Municipal Corporation. The said
affidavit is dated 8th December, 2012. What is stated in the earlier
affidavit of Shri Mahendra Shirke is repeated in the said affidavit. In
addition, a chart giving details of the 26 stalls styled as the "Gulmohar
Road stall inventory list in K/W ward" has been annexed. There is a
further affidavit filed by Shri Ramesh Waman Pawar dated 26 th
December, 2011 who is the Assistant Commissioner, K/West ward. Same
officer Shri Ramesh Pawar filed further affidavit dated 20 th December,
2011. In the said affidavit, precautions taken by the Municipal
Corporation for preventing illegal hawking have been set out. It is
stated that a Municipal vehicle is being permanently deployed at the
site since last four months from 10.00 am to 8.00 pm. In the said
affidavit, it is stated that so far, 6 stalls out of 26 stalls in the vicinity of
the educational institutions of the first Petitioner have been demolished.
It is further stated that three stalls in respect of which Suits are pending
in the City Civil Court will be demolished after interim orders are
vacated. It is stated that two Zunka Bhakar stalls will be shifted in
three months as per the policy of the Municipal Corporation known as
Annadata Ahar Kendra Yojana. The correspondence made with the
police has been annexed. The order dated 30 th July, 2004 passed by the
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Apex Court in Civil Appeal Nos.4156-4157 of 2002 has been annexed to
the said affidavit which records that earlier order dated 9 th December,
2003 permitting handicapped persons who have been granted license
for running the Public Call Offices (PCO)/Aarey Sarita stalls to continue
to run those stalls even in non-hawking zones has been modified and it
is provided that no further new licenses to be granted to any other
persons including handicapped persons in the non-hawking zones. The
order specifically provides that in PCO stalls no other activity shall be
permitted and in respect of the other stalls, only the activity as provided
in the license will be permitted. Lastly, there is an affidavit dated 9 th
July, 2015 filed by Shri Parag Masurkar, the Assistant Commissioner of
the K/W ward setting out the status of the stalls. To the said affidavit, a
chart giving details of the 26 stalls styled as the "Gulmohar Road stall
inventory list in K/W ward" has been annexed. It records that 2 Zunka
Bhakar stalls and six other stalls have been demolished. He stated that
there were 5 HPCO which are permitted under Section 313A of the
MMC Act. There were 3 squatter stalls permitted under Section 313A. It
is pointed out that the holders of 7 Aarey Sarita stalls have filed suits in
the City Civil Courts out of which one has been decreed and six other
suits are pending in which there are interim orders. Out of the 3
remaining stalls, in case of 2 there are interim orders of the City Civil
Court preventing the demolition. The third stall in front of a gate of an
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educational institution of the first Petitioner was demolished, but it was
illegality reconstructed. It is pointed out that the said stall was
protected by an ad-interim order of this Court in an Appeal from Order.
14. There is an affidavit-in-reply filed by the sixth Respondent .
He claimed that he was running three Aarey Sarita stalls from the year
1986. He claimed that he has been paying ground rent either to BMC or
to Aarey. He is running Aarey Sarita Private Stall No.7 in the name of
Dhiraj Enterprises as well as Aarey Sarita Stall No.98 and 168 at N.S.
Road No.1 opposite N.M. College Vile Parle (West), Mumbai. He
claimed that a license has been granted in respect of one stall of Dhiraj
Enterprises under Section 394 of MMC Act. The said license was
revoked. He stated that he has filed a Civil Suit in the City Civil Court
for challenging action of revocation of the said license in respect of the
stall of Dhiraj Enterprises. He claimed that from the other two stalls, he
is selling products of Aarey dairy after obtaining municipal license from
the years 1981 and 1985 respectively. He claimed that the said two
stalls were constructed by the State of Maharashtra which were handed
over to him. He stated that the stall of Dhiraj Enterprises has been
constructed on the basis of the permission granted by the Government
and therefore, he has been paying ground rent to the Government and
to the Municipal Corporation. He claimed that all the three stalls are
protected and the same are protected even under the National Policy for
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Urban Street Vendors, 2009. He claimed that there are various
authorised stalls in existence for last more than 30-35 years on
Gulmohar Road which are protected.
15. Shri Shivaji Rama Gadkari - the Respondent No.7 on behalf
of himself, Respondent Nos.8, 9 A to 9D has filed an affidavit. It is
claimed that since the year 1999-2000, they are stall holders. It is
pointed out that predecessor of Respondent Nos.9A to 9D have filed
Civil Suits in the City Civil Court which have been decreed. It is
contended that the said Respondents are selling Aarey dairy milk and
other milk products in their respective stalls as per the permission
granted by Aarey dairy on 2nd August, 2004. It is contended that the
order passed in Writ Petition No.1799 of 2001 filed by the Petitioners is
not binding on them as they were not impleaded as parties in the said
Petition.
16. There is a Chamber Summons No.137 of 2011 for
intervention filed by Aazad Hawkers' Union.
SUBMISSIONS
17. The learned Senior Counsel representing the Petitioners in
Writ Petition No.224 of 2011 has made detailed submissions. The
second Petitioner appearing in person in PIL No.36 of 2010 has made
detailed submissions.
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18. The learned Senior Counsel Shri Thorat appearing for the
Petitioners in Writ Petition No.224 of 2011 has taken us through the
various orders of this Court as well as the orders of the Apex Court
passed from time to time in Civil Appeal Nos.4156-4157 of 2002 and
other connected Petitions.
19. The learned Senior Counsel submitted that the order dated
21st January, 2002 passed by the Division Bench of this Court in Writ
Petition No.1799 of 2001 has not been challenged by anyone and that
the same has become final. He urged that the affected vendors who are
occupying the footpaths in question have not challenged the said
decision. Inviting our attention to the order dated 9 th December, 2003
passed in Civil Appeal Nos.4156-4157 of 2002 and other connected
matters and in particular Condition No.3 incorporated in paragraph 7
thereof, he urged that the direction that there should be no hawking
within 100 meters from any place of worship, holy shrine, educational
institutions and hospitals has not been disturbed by the Apex Court in
any of its subsequent orders including the final order dated 9th
September, 2013. He, therefore, submitted that apart from the aforesaid
order of this Court in Writ Petition No.1799 of 2001, there is a complete
prohibition on hawking within 100 meters of any educational
institution. He also invited our attention to the other directions
contained in clause 14 of the Judgment and Order dated 9 th December,
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2003 in the aforesaid Civil Appeals. He pointed out the direction
contained in clause 5 of paragraph 14 which makes it clear that no
cooking shall be permitted by the hawkers. He submitted that even the
sale of cooked food, cut fruit and juices is subject to obtaining of
permission/ license. He pointed out that photographs on record show
that the hawkers are cooking food in many stalls . He invited our
attention to the additional affidavit placed on record which shows that
the access to the Colleges run by the first Petitioner is blocked by some
of the stalls. He pointed out the provisions of the Street Vendors
(Protection of Livelihood and Regulation of Street Vending) Act, 2014
(for short "the Street Vendors Act"). He urged that the provisions of the
Street Vendors Act do not permit hawking within 100 meters from the
educational institutions. Moreover, it does not protect hawkers who are
obstructing entry to the private properties. He urged that the order of
this Court dated 21st January, 2002 in Writ Petition No.1799 of 2001 is
not affected by the Street Vendors Act and therefore, the said order will
have to be implemented notwithstanding the provisions of the Street
Vendors Act. He urged that the provisions of the Street Vendors Act
cannot be interpreted to mean that hawkers who are illegally carrying
on the business should be protected. The learned Senior Counsel
contended that even the definition of "street vendor" under the Street
Vendors Act does not permit cooking of food by the vendors. He would,
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therefore, urge that a direction be issued to the Municipal Corporation
to remove stalls put up by hawkers as prayed for in prayer clauses (a)
and (b) of the Petition.
20. Shri Raiyani appearing in person in support of PIL No.36 of
2012 has invited our attention to the photographs on record. He
pointed out that not only that illegal hawking is being permitted but all
hawkers are cooking food. He invited our attention to several
photographs on record of the Petition as well as photographs filed along
with the written submissions. He pointed out that the hawkers have
virtually converted their stalls into eateries. He pointed out that even
the authorised hawkers have committed breaches of the terms and
conditions on which hawking was permitted. He urged that as a result
of eateries run by the hawkers, their customers indiscriminately park
their vehicles near the stalls thereby causing traffic congestion. He
submitted that the stand taken by the Municipal Corporation that most
of the hawkers are legal is completely wrong. He pointed out that the
Aarey Sarita stall run by Dhiraj Enterprises has been converted into a
full-fledged eatery as seen from the photographs. He submitted that the
municipal officers are encouraging illegality. He submitted that as a
result of the illegal acts of hawkers occupying footpaths in and around
Gulmohar road, the entire area has become congested and the members
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of the public are suffering a great deal of inconvenience. He pointed out
that it is impossible to walk on the footpaths in the said area which
have been taken over by the hawkers. He urged that apart from all this,
unhygienic food is sold in the stalls.
21. Shri S.K. Mali representing the 6 th Respondent in Writ
Petition No.224 of 2011 has also made detailed submissions. He is also
representing the Applicant in Chamber Summons No. 57 of 2015 in PIL
No.36 of 2010. He pointed out that sixth Respondent in Writ Petition
No.224 of 2011 Shri N.Taranath Shetty is running the following three
stalls : (1) Juhu Friends Association (Aarey Sarita) stall No.98; (2)
Dhiraj Enterprises (Aarey Sarita) stall No.7; (3) Vikas Mitra Mandal
(Aarey Sarita) stall No.168 opposite Mithibai College Gulmohar Road
No.1, Vile Parle (West). His submission is that the said Respondent in
Writ Petition No.224 of 2011 is running the said stalls for 34 years and
the stalls are protected. He pointed out that as far as the stall of the
Dhiraj Enterprises is concerned, by letter dated 8th June, 1987, the Ward
Officer permitted construction of Aarey Sarita stall. He pointed out that
Juhu Friends Association Stall has been allowed under the letter dated
23rd November, 1989 by the Controller (Procurement and Distribution)
Greater Bombay Meal Scheme for the sale of Aarey dairy products. He
pointed out that Vikas Mitra Mandal Aarey Sarita stall was allowed
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under the letter dated 3rd January, 1992 by the Controller (Procurement
and Distribution) Greater Bombay Meal Scheme. He urged that the said
Respondent is running the said stalls for selling only milk products. He
submitted that the three stalls are protected and the protection
continues even under the Streets Vendors Act. Shri M.M. Vashi, the
learned Senior Counsel appearing for Respondent Nos.7 and 8 in Writ
Petition No.224 of 2011 who are the Applicants in Chamber Summons
No.23 of 2015 has made detailed submissions. He invited our attention
to the orders passed by the Apex Court from time to time in Civil Nos.
4156-4157 of 2002 and urged that the stalls of the concerned
Respondents have been duly protected. Without prejudice to the rights
and contentions of the said Respondents, he urged that the said
Respondents are willing to shift their stalls on the footpaths abutting
educational institutions of the first Petitioner in Writ Petition No.224 of
2011 provided the said Respondents are accommodated elsewhere by
the Municipal Corporation by allotting pitches/stalls. Inviting our
attention to the various provisions of the Street Vendors Act, he
submitted that the said Act is brought on the statute book with the
object of protecting the rights of urban vendors. Inviting our attention
to the elaborate scheme provided under the said Act for protecting
street vendors, he submitted that even the Rules have not been framed
under the said Act and therefore, the Street Vending Committee is not
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in existence. He pointed out that even the Town Vending Committee is
not in existence and therefore, the survey as contemplated by Section 3
is not carried out. He urged that in view of Sub-section (3) of Section
3, unless a survey is conducted by the Town Vending Committee, no
street vendor can be evicted or relocated. He urged that unless a
certificate of vending is issued to all vendors, no one can be evicted or
relocated. He invited our attention to Section 31 of the Street Vendors
Act which provides that the Appropriate Government shall undertake
promotional measures of making available credit insurance and other
welfare schemes including social welfare security for street vendors. He
pointed out that contents of the plan for street vendors are provided in
the First Schedule. He pointed out the matters to be provided in the
scheme for the street vendors which is required to be framed by the
Appropriate Government have been incorporated in the Second
Schedule. He pointed out the principles of relocation incorporated in
Second Schedule. He urged that no street vendor can be disturbed now.
22. The learned AGP has placed on record a letter dated 4 th
August, 2015 addressed to him by the Joint Secretary, Urban
development Department. The letter records that a Committee has been
constituted for framing of the Rules in accordance with Sub-section (1)
of Section 36 of the Street Vendors Act. The letter records that a
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scheme is required to be formulated under Section (1) of Section 38.
The letter records that the Committee was constituted to frame the
scheme as well as the Rules. It is pointed out that the Committee has
submitted draft Rules and draft scheme to the State Government which
have been approved by the Department of Law and Justice subject to
certain conditions. It is stated that the process of formulation of the
scheme and framing of the Rules may require at least a period of four
months. He stated that the Street Vendors Act has come into force with
effect from 1st May 2014.
23. The learned Senior Counsel Shri Sakhare appearing for the
Mumbai Municipal Corporation invited our attention to the affidavits
filed by the Municipal officers in these two Petitions. He pointed out the
charts annexed to the affidavits and in particular the affidavit dated 7 th
July, 2015 filed in Writ Petition No.224 of 2011. He pointed out that the
action taken as regards each illegal stall has been set out. He invited
our attention to the chart annexed to the said affidavit. He pointed out
that out of 26 stalls listed in the said chart, stalls at Sr. No.10, 11, 18,
19, 22, 23 and 25 have been demolished. He pointed out that in case of
stalls at Sr. Nos.1, 2, 4, 7, 8, 9, 12, 15 and 21, Suits are pending in the
City Civil Court in which prohibitory orders have been passed. He
pointed out that certain stalls are protected by grant of license under
Section 313A of the Mumbai Municipal Corporation Act. He pointed
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out that stall at Sr. No.17 was shifted and existing structure of the stall
was demolished on 12th January, 2015. Inviting our attention to the
provisions of the Street Vendors Act he submitted that in view of the
prohibition imposed by the provisions of the Street Vendors Act, no
further action can be taken by the Municipal Corporation.
24. Shri Raiyani, the Petitioner appearing in person in the PIL
submitted that whenever action is proposed to be taken by the
Municipal Corporation against illegal hawkers, a precaution should be
taken by filing caveats in the concerned Courts and by ensuring that the
Suits and proceedings are contested. He pointed out the manner in
which the Suits are progressing in the City Civil Court, he urged that
the directions be given to dispose of the Suits in a time-bound program.
CONSIDERATION OF THE DECISIONS OF THE APEX COURT
25. We have carefully considered the submissions. Firstly, it
will be necessary to make a reference to various orders passed by the
Apex Court in the case of Bombay Hawker's Union vs Bombay Municipal
Corporation2 as well as in the case of Maharashtra Ekta Hawkers Union
and another vs. Municipal Corporation of Greater Mumbai and others
(Civil Appeal Nos.4156-4157 of 2002 and other connected matters).
2 (1985)3 SCC 582
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26. In the case of Bombay Hawker's Union, certain directions
were issued by the Apex Court. In paragraph No.9, the Apex Court
reproduced the guidelines suggested by the Commissioner of the
Mumbai Municipal Corporation in his letter addressed to the Mayor
which read thus:
"The following restrictions/conditions shall be imposed on such
hawkers:
(i) They should do their hawking business only on an area of 1
Mt. × 1 Mt. on the footpath wherever it exists or on the
extreme sides of the carriage way, in such a manner that
the vehicular and pedestrian traffic is not obstructed and
access to shops and residences is not blocked.
(ii) 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. They
should also not put up any cloth, plastic sheet, chaddar,
tarpaulin etc. as shelter.
(iii) They should not hawk within 100 metres from any
place of worship, holy shrine, educational institution
and general hospital and within the periphery of 150
metres from any Municipal or other market.
(iv) They should not create any noise for attracting the
public/customers.
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(v) They should not hawk any cooked food articles, cut
fruits etc.
(vi) They should do their hawking business only between 7
a.m. and 9 p.m. on the day on which the prescribed daily
fee is recovered. In other words, payment of the prescribed
daily fee shall not be deemed to authorise them to do their
hawking business beyond the aforesaid hours.
(vii) They should extend full co-operation to Municipal
conservancy staff for cleaning the streets and footpaths and
also to other Municipal staff for carrying out any Municipal
work. They should also cooperate with other Government
and public agencies such as the B.E.S.T. Undertaking,
Bombay Telephones, B.S.E.S. Ltd., etc. for laying cables or
for doing any repair/development work."
(Emphasis added)
The Apex Court considered the suggestions and held thus:
"10. We have considered carefully the eight conditions
mentioned above, subject to which the Commissioner
proposes to grant licences to the hawkers. No exception
can be taken to conditions (i), (ii), (iii), (iv), (vii) and
(viii) except that conditions (ii) and (viii) require a
little clarification. The first part of condition (ii)
beginning with the words "They should not put up any
stall" and ending with the words "nor should they hawk on
handcarts" may stand. But, the second part of that
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condition should not be construed to mean that the
hawkers will not be entitled even to protect their wares
against the sun, rain, wind and so on, by spreading a cloth,
plastic sheet, chaddar, tarpaulin etc. The object of that
condition is to ensure that no construction is put up and no
handcarts are used. Insofar as condition (viii) is concerned,
all that it should be understood to mean is that the fact
that a daily fee is charged will not confer upon the hawker
the right to do his business at any particular place. That is
because, the daily fee is a kind of licence fee to do
business; it is not a fee charged for doing business at any
particular place. The Commissioner will, therefore, be free
to impose conditions (i), (ii), (iii), (iv), (vii) and (viii)
while granting licences to the hawkers in the Hawking
Zones, after making the necessary clarifications in
conditions (ii) and (viii). Condition (v) is an
unreasonable restriction on the hawkers' right to carry
on their trade or business and must be dropped. There
are several working families in Bombay, belonging to
different strata of society, which depend upon the food
supplied by hawkers. We do not see any valid reason
why hawkers should not be allowed to sell cooked food,
cut fruits and the like. That will, of course, not confer
upon them the licence to sell adulterated or unhygienic
food. They shall have to comply, like any other vendor
of food, with the Municipal licensing regulations and
the provisions of the Prevention of Food Adulteration
Act, 1954. Lastly, the hours of business mentioned in
condition (vi) should be from 7 a.m. to 10 p.m. instead
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of 7 a.m, to 9 p.m. In cities like Bombay, nights are
quite young at 10 p.m.
(emphasis added)
Thus, the Apex Court did not permit cooking of food by the
vendors and they were permitted to sell only the cooked food. The Apex
Court also directed that no hawking shall be permissible within the
distance of 100 meters from the educational institutions.
27. The Appeals before the Apex Court in the case of
Maharashtra Ekta Hawkers Union arose out of the Judgments of this
Court dated 5th July, 2000 and 3rd May, 2001. By the Judgment dated 5th
July, 2000 this Court sanctioned a scheme for hawking and non-
hawking zones. There were various orders passed by the Apex Court
from time to time. In the order dated 9th December, 2003, the Apex
Court passed elaborate directions after taking into consideration the
aforesaid directions issued in the case the Bombay Hawker's Union.
Paragraph 14 of the said Order reads thus :-
"14. The restrictions/conditions on which the hawkers shall
do business are:
(1) An area of 1 m × 1 m on one side of the footpath
wherever they exist or on an extreme side of the
carriageway, in such a manner that the vehicular and
pedestrian traffic is not obstructed and access to shops
and residences is not blocked. We further clarify that
even where hawking is permitted, it can only be on one
side of the footpath or road and under no circumstances
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on both sides of the footpaths or roads. We, however,
clarify that aarey/saritastalls and sugarcane vendors
would require and may be permitted an area of more
than 1 m × 1 m but not more than 2 m × 1 m.
(2) Hawkers must not put up stalls or place any tables,
stand or such other thing or erect any type of structure.
They should also not use handcarts. However, they may
protect their goods from the sun, rain or wind.
Obviously, this condition would not apply
to aarey/saritastalls.
(3) There should be no hawking within 100 metres from
any place of worship, holy shrine, educational
institutions and hospitals or within 150 metres from
any municipal or other markets or from any railway
station. There should be no hawking on footbridges
and overbridges. Further, certain areas may be required
to be kept free of hawkers for security reasons.
However, outside places of worship hawkers can be
permitted to sell items required by the devotees for
offering to the deity or for placing in the place of
worship e.g. flowers, sandalwood, candles, agarbattis,
coconuts etc.
(4) The hawkers must not create any noise or play any
instrument or music for attracting the public or the
customers.
(5) They can only sell cooked foods, cut fruits, juices
and the like. We are unable to accept the submission
that cooking should be permitted. We direct that no
cooking of any nature whatsoever shall be
permitted. Even where cooked food or cut fruits or
the like are sold, the food must not be adulterated or
unhygienic. All Municipal Licensing Regulations and
the provisions of the Prevention of Food
Adulteration Act must be complied with.
(6) Hawking must be only between 7.00 a.m. and 10.00
p.m.
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(7) Hawking will be on the basis of payment of a prescribed
fee to be fixed by BMC. However, the payment of
prescribed fee shall not be deemed to authorize the
hawker to do his business beyond the prescribed hours
and would not confer on the hawker the right to do
business at any particular place.
(8) The hawkers must extend full cooperation to the
municipal conservancy staff for cleaning the streets and
footpaths and also to the other municipal staff for
carrying on any municipal work. They must also
cooperate with the other government and public
agencies such as BEST Undertaking, Bombay
Telephones, BSES Ltd. etc. if they require to lay any
cable or any development work.
(9) No hawking would be permitted on any street which is
less than 8 metres in width. Further, the hawkers also
have to comply with the Development Control Rules,
thus, there can be no hawking in areas which are
exclusively residential and where trading and
commercial activity is prohibited. Thus hawking cannot
be permitted on roads and pavements which do not
have a shopping line.
(10) BMC shall grant licences which will have photos of the
hawkers on them. The licence must be displayed, at all
times, by the hawkers on their person by clipping it on
to their shirt or coat.
(11) Not more than one member of a family must be given a
licence to hawk. For this purpose BMC will have to
computerize its records.
(12) Vending of costly items e.g. electrical appliances, video
and audio tapes and cassettes, cameras, phones etc. is
to be prohibited. In the event of any hawker found to be
selling such items his licence must be cancelled
forthwith.
(13) In areas other than the non-hawking zones, licences
must be granted to the hawkers to do their business on
payment of the prescribed fee. The licences must be for
a period of 1 year. That will be without prejudice to the
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right of the Committee to extend the limits of the non-
hawking zones in the interests of public health,
sanitation, safety, public convenience and the like.
Hawking licences should not be refused in the hawking
zones except for good reasons. The discretion not to
grant a hawking licence in the hawking zone should be
exercised reasonably and in public interest.
(14) In future, before making any alteration in the scheme,
the Commissioner should place the matter before the
Committee who shall take a decision after considering
views of all concerned including the hawkers, the
Commissioner of Police and members of the public or an
association representing the public.
(15) It is expected that citizens and shopkeepers shall
participate in keeping non-hawking zones/areas free
from hawkers. They shall do so by bringing to the notice
of the ward officer concerned the presence of a hawker
in a non-hawking zone/area. The ward officer
concerned shall take immediate steps to remove such a
hawker. In case the ward officer takes no action, a
written complaint may be filed by the
citizen/shopkeeper to the Committee. The Committee
shall look into the complaint and if found correct, the
Committee will with the help of police remove the
hawker. The officer in charge of the police station
concerned is directed to give prompt and immediate
assistance to the Committee. In the event of the
Committee finding the complaint to be correct it shall so
record. On the Committee so recording an adverse
remark re failure to perform his duty will be entered in
the confidential record of the ward officer concerned. If
more than three such entries are found in the record of
an officer it would be a ground for withholding
promotion. If more than six such entries are found in
the records of an officer it shall be a ground for
termination of service. For the work of attending to such
complaints BMC shall pay to the Chairman a fixed
honorarium of Rs 10,000 p.m.
(16) The scheme framed by us will have a binding effect on
all concerned. Thus, apart from those to whom licences
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will now be issued, no other person/body will have any
right to squat or carry on any hawking or other business
on the roads/streets. We direct that BMC shall bring this
judgment to the notice of all courts in which matters are
now pending. We are quite sure that the court(s)
concerned shall then suitably vacate/modify its
injunction/stay order."
(emphasis added)
28. In paragraphs 16 of the said Judgment and order, the Apex
Court appointed a Committee consisting of a retired Judge of the
Bombay City Civil Court and other members. The Committee was
directed to make site visits and also hear all the parties concerned. The
Committee was directed to decide whether a particular road or street
should be a hawking zone or not. The Committee was also directed to
decide as to which hawkers can be accommodated in the hawkers'
zone. There is a further order passed by the Apex Court on 30 th July,
2004 in the same Civil Appeals. Paragraphs 7 and 8 of the said order are
material which read thus :-
"7. A fervent plea has been made to reconsider our order
qua the licensed hawkers. Having heard the parties at
great length, we feel that the decision on this aspect
needs to be considered only after the position regarding
total number of available sites becomes available. The
question whether the licensed hawkers who have been
operating for a long period of time must also stand in
line with the others is for the present left open. The
committees are directed to decide, on a priority basis,
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whether the licensed hawkers who are in non-hawking
zones can on a provisional basis and until further orders
be allowed to continue in those zones. If the committees
find that in a particular non-hawking zone the licensed
hawkers cannot be allowed to continue they will, for the
present, be shifted into a hawking zone. Clarified that
this arrangement is provisional and will not create any
right in the licensed hawkers. BMC to continue to accept
the licence fees from the licensed hawkers with a note
that the same will not in any manner confer any right,
title or interest in favour of the hawkers as the same is
subject to final orders of this Court.
8. We, however, modify our order dated 9-12-2003
[Maharashtra Ekta Hawkers Union vs. Municipal
Corpn., Greater Mumbai, (2004) 1 SCC 625] by
permitting handicapped persons who have been granted
licence for running PCOs/Aarey/Sarita stalls to continue
to run those stalls even in non-hawking zones. No
further or new licences to be granted to any other
person even a handicapped person in non-hawking
zones. We, however, clarify that a licence to run PCO
stalls would mean running a PCO stall. No other activity
can be carried out from a PCO stall. Similarly, even in
respect of other stalls, only the activity permitted by the
licence can be carried on."
(emphasis added)
29. Thereafter, there is a further Judgment and Order passed
by the Apex Court on 12th February, 2007. The Apex Court referred to
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the National Policy on Urban Street Vendors , 2009. It records that the
State Government has constituted a Committee for implementation of
the said policy . Under the further order dated 30 th November, 2010 the
Apex Court discontinued the three member Committee constituted
earlier and modified the directions issued under the order dated 9 th
December, 2003 in clause 15 of paragraph 14 thereof dealing with the
grievances about the hawkers, encroachers and unauthorised parking
by shop owners. Ultimately, the pending Appeals were disposed of by
the Judgment and Order dated 9 th September, 2013 by the Apex Court.
The Apex Court referred to Street Vendors (Protection of Livelihood and
Regulation of Street Vending) Bill, 2012 and observed that until the said
Bill becomes law, it will be appropriate to direct that the National Policy
on Urban Street Vendors, 2009 (for short "the Policy of 2009") shall be
implemented throughout the country. In paragraph 16 of the said
Judgment and Order, for facilitating the implementation of the Policy of
2009, various directions were issued. Paragraphs 16 and 17 of the said
decision read thus :-
"16. For facilitating implementation of the 2009 Policy, we
issue the following directions:
(i) Within one month from the date of receipt of copy of
this order, the Chief Secretaries of the State
Governments and Administrators of the Union
Territories shall issue necessary instructions/ directions
to the concerned department(s) to ensure that the Town
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Vending Committee is constituted at city /town level in
accordance with the provisions contained in the 2009
Policy. For the cities and towns having large municipal
areas, more than one Town Vending Committee may be
constituted.
(ii) Each Town Vending Committee shall consist of
representatives of various organizations and street
vendors / hawkers. 30% of the representatives from
the category of street vendors/hawkers shall be
women.
(iii) The representatives of various organizations and street
vendors/ hawkers shall be chosen by the Town
Vending Committee by adopting a fair and transparent
mechanism.
(iv) The task of constituting the Town Vending Committees
shall be completed within two months of the issue of
instructions by the Chief Secretaries of the State and
the Administrators of the Union Territories.
(v) The Town Vending Committees shall function
strictly in accordance with the 2009 Policy and the
decisions taken by it shall be notified in the print and
electronic media within next one week.
(vi) The Town Vending Committees shall be free to
divide the municipal areas in vending/hawking zones
and sub-zones and for this purpose they may take
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assistance of experts in the field. While undertaking
this exercise, the Town Vending Committees
constituted for the cities of Delhi and Mumbai shall
take into consideration the work already undertaken
by the municipal authorities in furtherance of the
directions given by this Court. The municipal
authorities shall also take action in terms of
Paragraph 4.2(b) and (c).
(vii) All street vendors/hawkers shall be registered in
accordance with paragraph 4.5.4 of the 2009 Policy.
Once registered, the street vendor/hawker, shall be
entitled to operate in the area specified by the Town
Vending Committee.
(viii) The process of registration must be completed by the
municipal authorities across the country within four
months of the receipt of the direction by the Chief
Secretaries of the States and Administrators of the
Union Territories.
(ix) The State Governments/Administration of the Union
Territories and municipal and local authorities shall
take all the steps necessary for achieving the
objectives set out in the 2009 Policy.
(x) The Town Vending Committee shall meet every month
and ensure implementation of the relevant provisions
of the 2009 Policy and, in particular, paragraph 4.5.1
(b) and (c).
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(xi) Physically challenged who were allowed to operate
PCO's in terms of the judgment reported in (2009)
17 SCC 231 shall be allowed to continue to run
their stalls and sell other goods because running
of PCOs. is no longer viable. Those who were
allowed to run Aarey/Sarita shall be allowed to
continue to operate their stalls.
(xii) The State Governments, the Administration of the
Union Territories and municipal authorities shall be free
to amend the legislative provisions and/or delegated
legislation to bring them in tune with the 2009
Policy. If there remains any conflict between the
2009 Policy and the municipal laws, insofar as they
relate to street vendors/hawkers, then the 2009 Policy
shall prevail.
(xiii) Henceforth, the parties shall be free to approach
the jurisdictional High Courts for redressal of their
grievance and the direction, if any, given by this
Court in the earlier judgments / orders shall not
impede disposal of the cases which may be filed by the
aggrieved parties.
(xiv) The Chief Justices of the High Courts are requested to
nominate a Bench to deal with the cases filed for
implementation of the 2009 Policy and disputes arising
out of its implementation. The concerned Bench shall
regularly monitor implementation of the 2009 Policy
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and the law which may be enacted by the Parliament.
(xv) All the existing street vendors/hawkers operating
across the country shall be allowed to operate
till the exercise of registration and creation of
vending / hawking zones is completed in terms of
the 2009 Policy. Once that exercise is completed,
they shall be entitled to operate only in accordance
with the orders/directions of the concerned
Town Vending Committee.
(xvi)
The provisions of the 2009 Policy and the directions
contained hereinabove shall apply to all the
municipal areas in the country.
17. The aforesaid directions shall remain operative
till an appropriate legislation is enacted by
Parliament or any other competent legislature and
is brought into force."
(Emphasis supplied)
THE PROVISIONS OF THE STREET VENDORS ACT AND
IMPACT THEREOF
30. We must note here that the provisions of the Street Vendors
Act were brought into force with effect from 1st May, 2014 under the
notification of the same date published in the Government of India
Gazette of the same date by the Ministry of Housing and Urban Poverty
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Alleviation of the Union of India. Therefore, in view of paragraph 17 of
the Judgment and Order of the Apex Court dated 9th September, 2013,
the directions issued in paragraph 16 thereof and even earlier directions
issued from time to time in the said case of Maharashtra Ekta Hawkers
Union ceased to apply from 1st May, 2014 and now what occupies the
field from the said date is the Street Vendors Act.
31. Therefore, it will be necessary to make a reference to the
provisions of the Street Vendors Act. The definitions in clauses (l), (m)
and (n) of Section 2 are material which read thus :-
"(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, side walk, 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;
(m) "Town Vending Committee" means the body constituted
by the appropriate Government under Section 22;
(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
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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."
32. Sections 3 and 4 are also material which read thus :-
"3. Survey of street vendors and 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.
4. Issue of certificate of vending.--(1) Every street
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vendor, identified under the survey carried out under
sub-section (1) of Section 3, who has completed the age
of fourteen years or such age as may be prescribed by
the appropriate Government, shall be issued a
certificate of vending by the Town Vending Committee,
subject to such terms and conditions and within the
period specified in the scheme including the restrictions
specified in the plan for street vending:
Provided that a person, whether or not included
under the survey under sub-section (1) of Section 3,
who has been issued a certificate of vending before the
commencement of this Act, whether known as licence or
any other form of permission (whether as a stationary
vendor or a mobile vendor or under any other category)
shall be deemed to be a street vendor for that category
for the period for which he has been issued such
certificate of vending.
(2) Where, in the intervening period between two surveys,
any person seeks to vend, the Town Vending Committee
may grant a certificate of vending to such person,
subject to the scheme, the plan for street vending and
the holding capacity of the vending zones.
(3) Where the number of street vendors identified under
sub-section (1) or the number of persons seeking to
vend under sub-section (2) are more than the holding
capacity of the vending zone and exceeds the number of
persons to be accommodated in that vending zone, the
Town Vending Committee shall carry out a draw of lots
for issuing the certificate of vending for that vending
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zone and the remaining persons shall be accommodated
in any adjoining vending zone to avoid relocation."
33. The rights and obligations of the Street Vendors are
specified in Chapter III. Sections 12 to 16 forming part of Chapter III
read thus :-
"12. Rights of street vendor.--(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.
(2) Notwithstanding anything contained in sub-section
(1), where any area or space, as the case may be, has
been earmarked as no-vending zone, no street vendor
shall carry out any vending activities in that zone.
13. Right of street vendor for a new site or area on
relocation.--Every street vendor, who possesses 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. Duty of street vendors.--Where a street vendor
occupies space on a time sharing basis, he shall remove
his goods and wares every day at the end of the time-
sharing period allowed to him.
15. Maintenance of cleanliness and public hygiene.--
Every street vendor shall maintain cleanliness and
public hygiene in the vending zones and the adjoining
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areas.
16. Maintenance of civic amenities in vending zone in
good condition.--Every street vendor shall maintain
civic amenities and public property in the vending zone
in good condition and not damage or destroy or cause
any damage or destruction to the same."
34. Chapter IV deals with relocation and eviction of street
vendors. Section 18 thereof is relevant which reads thus :
"18. Relocation or eviction of street vendors.--(1) The
local authority may, on the recommendations of the
Town Vending Committee, declare a zone or part of it to
be a no-vending zone for any public purpose and
relocate the street vendors vending in that area, in such
manner as may be specified in the scheme.
(2) The local authority shall evict such street vendor whose
certificate of vending has been cancelled under Section
10 or who does not have a certificate of vending and
vends without such certificate, in such manner as may
be specified in the scheme.
(3) No street vendor shall be relocated or evicted by the
local authority from the place specified in the certificate
of vending unless he has been given thirty days' notice
for the same in such manner as may be specified in the
scheme.
(4) A street vendor shall be relocated or evicted by the local
authority physically in such manner as may be specified
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in the scheme only after he had failed to vacate the
place specified in the certificate of vending, after the
expiry of the period specified in the notice.
(5) Every street vendor who fails to relocate or vacate the
place specified in the certificate of vending, after the
expiry of the period specified in the notice, shall be
liable to pay for every day of such default, a penalty
which may extend up to two hundred and fifty rupees,
as may be determined by the local authority, but shall
not be more than the value of goods seized."
35. Chapter VII deals with the constitution and functions of
Town Vending Committee. Under Sub-section (1) of Section 22, it is an
obligation of the Appropriate Government to establish a Town Vending
Committee in each local authority. Clause (c) of Section 2 defines local
authority which includes a Municipal Corporation or a Municipal
Council or a Nagar Panchayat, by whatever name called, or the
Cantonment Board, as the case may be.
36. Section 26 forming part of Chapter VII is material which
reads thus :-
"26. Publication of street vendor's charter and data-base
and carrying out of social audit.--(1) Every Town
Vending Committee shall publish the street vendor's
charter specifying therein the time within which the
certificate of vending shall be issued to a street vendor
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and the time within which such certificate of vending
shall be renewed and other activities to be performed
within the time limit specified therein.
(2) Every Town Vending Committee shall maintain up to
date records of registered street vendors and street
vendors to whom certificate of vending has been issued
containing name of such street vendor, stall allotted to
him, nature of business carried out by him, category of
street vending and such other particulars which may be
relevant to the street vendors, in such manner as may be
prescribed.
(3) Every Town Vending Committee shall carry out social
audit of its activities under the Act or the rules or the
schemes made thereunder in such form and manner as
may be specified in the scheme."
37. Section 33 of the Street Vendors Act is also material which
gives overriding effect to the Act. Sections 36 and 38 are also material
which read thus :-
"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."
"36. Power to make rules.--(1) The appropriate
Government shall, within one year from the date of
commencement of this Act, by notification, make rules
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for carrying out the provisions of this Act.
(2) In particular and without prejudice to the generality of
the foregoing power, such rules may provide for all or
any of the following matters, namely--
(a) the age for street vending under sub-section (1) of
Section 4;
(b) the form, period and manner of filing appeal with
the local authority under sub-section (1) of Section
11;
(c) the persons and the experience such person shall
have under sub-section (1) of Section 20;
(d) the form and the manner of making application
under sub-section (2) of Section 20;
(e) the manner of verification and enquiry on receipt
of grievance or dispute, the time within which and
the manner in which steps for redressal of
grievances and resolution of disputes may be taken
under sub-section (3) of Section 20;
(f) the form, the time within which and the manner in
which an appeal may be filed under sub-section (4)
of Section 20;
(g) the time within which and the manner in which an
appeal shall be disposed of under sub-section (5)
of Section 20;
(h) the term of, and the manner of constituting, the
Town Vending Committee under sub-section (1) of
Section 22;
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(i) the number of other members of the Town Vending
Committee under clause (b) of sub-section (2) of
Section 22;
(j) the manner of elections among street vendors
under clause (d) of sub-section (2) of Section 22;
(k) the allowances to Chairperson and members under
sub-section (3) of Section 22;
(l) the time and place for meeting, procedure for
transaction of business at meetings and functions
to be discharged by the Town Vending Committee
under Section 23;
(m) the manner and the purpose for which a person
may be associated under sub-section (1) of Section
24;
(n) the allowances to be paid to an associated person
under sub-section (2) of Section 24;
(o) the other employees of Town Vending Committee
under Section 25;
(p) the manner of maintaining up to date record of all
street vendors under sub-section (2) of Section 26;
(q) the returns to be furnished under Section 30;
(r) the manner of publishing summary of scheme
under sub-section (2) of Section 38.
(3) Every rule and scheme made by the Central
Government under this Act shall be laid, as soon as may
be after it is made, before each House of Parliament,
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while it is in session, for a total period of thirty days
which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the
session immediately following the session or the
successive sessions aforesaid, both Houses agree in
making any modification in the rule or scheme or both
Houses agree that the rule or scheme should not be
made, the rule or scheme shall thereafter have effect
only in such modified form or be of no effect, as the
case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of
anything previously done under that rule or scheme.
(4) Every rule or scheme made by the State Government
under this Act shall, as soon as may be after it is made,
be laid before each House of the State Legislature where
there are two Houses, and where there is one House of
the State Legislature, before that House."
"38. Scheme for street vendors.--(1) For the purposes of
this Act, the appropriate Government shall frame a
scheme, within six months from the date of
commencement of this Act, after due consultations with
the local authority and the Town Vending Committee,
by notification, which may specify all or any of the
matters provided in the Second Schedule.
(2) A summary of the scheme notified by the appropriate
Government under sub-section (1) shall be published by
the local authority in at least two local news papers in
such manner as may be prescribed."
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38. As it appears from Sub-section (1) of Section 36 the
Appropriate Government which is the State Government in the present
case was under an obligation to make Rules for carrying out the
provisions of the Street Vendors Act within a period of one year from 1 st
May, 2014. Clauses (h) and (i) of Sub-section (2) of Section 36 confer
rule making power on the Appropriate Government to provide for the
term and the manner of constituting the Town Vending Committees and
the number of other members of the Town Vending Committee as
provided in clause (d) of Sub-section (2) of Section 22. Hence, unless
the Rules are framed, the Town Vending Committees cannot be
constituted by the Appropriate Government. Section 38(1) enjoins the
Appropriate Government to frame a scheme within a period of six
months from the date of commencement of the Street Vendors Act
providing for all or any of the matters set out in the Second Schedule.
Perusal of the Second Schedule shows that the scheme should provide
for the manner of conducting survey, the period within which certificate
of vending shall be issued to the Street Vendors etc.
Section 21 is also material which reads thus :-
"21. Plan for street vending.--(1) Every local authority
shall, in consultation with the planning authority and on
the recommendations of the Town Vending Committee,
once in every five years, prepare a plan to promote the
vocation of street vendors covering the matters
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contained in the First Schedule.
(2) The plan for street vending prepared by the local
authority shall be submitted to the appropriate
Government for approval and that Government shall,
before notifying the plan, determine the norms
applicable to the street vendors."
39. Thus, every local authority is under an obligation to
prepare a plan to promote vocation of street vendors covering the
matters contained in the First Schedule. Clause (1) of First Schedule
contains mandatory requirements for the plan for street vending. First
Schedule reads thus :-
"(1) The plan for street vending shall,--
(a) ensure that all existing street vendors identified in
the survey, subject to a norm conforming to two
and half per cent of the population of the ward,
zone, town or city, as the case may be, are
accommodated in the plan for street vending;
(b) ensure the right of commuters to move freely and
use the roads without any impediment;
(c) ensure that the provision of space or area for street
vending is reasonable and consistent with existing
natural markets;
(d) take into account the civic facilities for appropriate
use of identified spaces or areas as vending zones;
(e) promote convenient, efficient and cost effective
distribution of goods and provision of services;
(f) such other matters as may be specified in the
scheme to give effect to the plan for street vending.
(2) The plan for street vending shall contain all of the
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following matters, namely--
(a) determination of spatial planning norms for street
vending;
(b) earmarking of space or area for vending zones;
(c) determination of vending zones as restriction-free-
vending zones, restricted vending zones and no-
vending zones;
(d) making of spatial plans conducive and adequate for
the prevalent number of street vendors in that city
or town and also for the future growth, by adopting
such norms as may be necessary;
(e) consequential changes needed in the existing
master plan, development plan, zonal plan, layout
plan and any other plan for accommodating street
vendors in the designated vending zones.
(3) Declaration of no-vending zone shall be carried out by
the plan for street vending, subject to the following
principles, namely--
(a) any existing market, or a natural market as identified
under the survey shall not be declared as a no-
vending zone;
(b) declaration of no-vending zone shall be done in a
manner which displaces the minimum percentage of
street vendors;
(c) overcrowding of any place shall not be a basis for
declaring any area as a no-vending zone provided
that restrictions may be placed on issuing certificate
of vending in such areas to persons not identified as
street vendors in the survey;
(d) sanitary concerns shall not be the basis for declaring
any area as a no-vending zone unless such concerns
can be solely attributed to street vendors and cannot
be resolved through appropriate civic action by the
local authority;
(e) till such time as the survey has not been carried out
and the plan for street vending has not been
formulated, no zone shall be declared as a no-
vending zone."
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40. Sub-clause (e) of clause 3 of First Schedule clearly
mandates that till such time the survey has not been carried out and the
plan for street vending has not been formulated, no zone shall be
declared as no-vending zone.
41. From the perusal of the provisions of the Street Vendors Act
and considering the Scheme thereof it appears to be a complete Code
which makes provisions for determining the rights and liabilities of
Street Vendors within the meaning of clause (l) of Section 2.
42. After having perused the provisions of the Street Vendors
Act, the mandatory steps which are required to be taken thereunder
can be summarized as under :-
A] The Scheme for street vendors was required to be
framed by the State Government in accordance with
section 38 within a period of six months from 1 st May,
2014. The said scheme as specified in the Second
Schedule must provide for the manner of conducting
survey, the period within which certificates of vending
shall be issued to the street vendors identified under the
survey and the terms and conditions thereof. The scheme
must also provide for the manner of evicting street
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vendor, the procedure to be followed for evicting street
vendor, form and manner of carrying out social audit as
well as the provision for relocation of the street vendors
carrying on business in non-vending zones in the
vending zones.
B] Within one year from 1st May, 2014, the Rules were
required to be framed in accordance with Sub-section
(1) of Section 36.
C]
After the Rules are made, under Sub-section (1) of
Section 22, the Appropriate Government is required to
constitute Town Vending Committees in each local
authority.
D] As per Sub-section (1) of Section 3 Town Vending
Committee is under an obligation to conduct a survey of
existing street vendors within the area of its jurisdiction.
The survey is required to be carried out within such a
period and in such a manner as may be provided in the
scheme framed under Section 38.
E] After the survey is carried out, it is the obligation of the
Town Vending Committee to ensure that all the existing
street vendors identified in the survey are
accommodated in vending zones.
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F] Every street vendor identified in the survey carried out in
accordance with Sub-Section (1) of Section 3 is required
to be issued a certificate of vending by the Town Vending
Committee, subject to such terms and conditions and
within the period specified in the scheme including the
plan for street vending. A person whether or not
included in the survey under Sub-section (1) of Section 3
who has been issued a certificate of vending before the
commencement of the Street Vendors Act, whether
known as license or any other form of permission shall
be deemed to be a street vendor for that category for the
period for which he has been issued such certificate of
vending.
G] On the basis of the recommendations of the Town
Vending Committee, every local authority is under an
obligation to prepare a plan for street vending once in
every five years which is required to be approved by the
Appropriate Government.
43. Unfortunately, if the State Government is lagging far
behind as far as the implementation of the Street Vendors Act is
concerned. The letter dated 4 th August, 2014 placed on record by the
learned AGP addressed by the Joint Secretary of the Urban
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Development Department shows that neither the scheme for street
vendors as contemplated by Sub-section (1) of Section 38 has been
formulated nor the Rules have been framed under Sub-section (1) of
Section 36. The time for framing the scheme contemplated by Section
38 expired on 31st October, 2014 and the time provided in Sub-section
(1) of Section 36 for framing the Rules expired on 31 st April, 2014.
Thus, both the mandatory provisions have not been complied with by
the State Government within the time specified therein. As the Rules
have not been framed, Town Vending Committees have not been been
appointed. As Town Vending Committees have not been appointed,
plan for street vending in terms of Sub-section (1) of Section 21 has not
been prepared. As the Town Vending Committees have not been
appointed, a survey under Sub-section (1) of Section 3 cannot be
carried out and consequently certificates of vending cannot be issued.
Therefore, in view of Sub-section (3) of Section 3, no existing street
vendor as on 1st May 2014 can be evicted or relocated. However, those
Street Vendors who have illegally started operating after 1 st May, 2014
are not protected by Sub-Section (3) of Section 3 and such Street
Vendors will have to be evicted. The existing Street vendors cannot be
evicted or relocated till the survey is carried out in accordance with
Sub-section (1) of Section 3 and the certificates of vending are issued in
terms of Sub-section (1) of Section 4. Considering the fact that the
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object of the Street Vendors Act is to protect the Urban Street Vendors,
Sub-section (3) of Section 3 will have to be held as mandatory.
44. We have already made a reference to the definition of
"street vendor" in clause (l) of Section 2. "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, side walk, footpath, pavement or any other public
place. Such a street vendor can operate from a temporary built up
structure or by moving from place to place. Clause (l) of Section 2
clarifies that street vendor includes hawker, peddler, squatter and all
other synonymous terms which may be local or region specific. There
are two categories of persons who can be included in the category of
street vendors. One category is of persons engaged in vending of
articles, goods, wares, food items or merchandise of everyday use.
Second category of persons is offering services to the general public
such as running telephone booths.
45. The question is what is the meaning of vending. This is in
the context of the fact that the person engaged in vending of food items
also becomes a street vendor. We have perused the dictionary meaning
of the word vending in various dictionaries. In the Oxford English
dictionary, the meaning of the verb "vend" is to offer small items for
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sale. In Merriam Webster dictionary, the meaning of the verb "vend" is
to sell especially as a hawker or peddler. The meaning of the word
"vending" in Cambridge dictionary is the selling of goods. Thus, the
vending contemplates sale. By no stretch of imagination, the vending of
food items will include preparation and/or cooking of food items. In
our opinion a person who cooks or prepares food in the stall and sells it
is not included in the definition of street vendor as the definition
includes a person who is engaged in vending of articles, food items or a
person who is offering services to general public. In fact all the
directions issued by the Apex Court which we have considered earlier,
provide that a hawker is not entitled to cook food at the place of
hawking and sell it there. Thus, a street vendor can sell only ready food
items, but he is not entitled to cook or make food items at the place of
vending. Cooking of food by a street vendor at the place of vending is
not at all contemplated by the Street Vendors Act. Thus, those Street
Vendors who are cooking food at the place of vending will not be
covered by the definition of the Street Vendors under the Street Vendors
Act. Hence, such vendors are not entitled to the protection under the
Street Vendors Act.
46. For preparation and cooking of food items for sale, licenses
are required under various statutes. Therefore, persons engaged in
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cooking and/or preparation of food items in a street, lane, side walk,
footpath, pavement or any other public place either from a temporary
built structure or by moving from place to place have not been included
in the definition of Street Vendor under clause (l) of Section 2 and
therefore, such person is not protected under the Street Vendors Act.
Only those vendors who are otherwise covered by the definition of
Street Vendors who are only selling ready food items will be protected
under the Sub-section (3) of Section 3 and Sub-section (l) of Section 12
of the Street Vendors Act. However, if the persons who are cooking or
preparing food are otherwise holding licenses required by various
statutes and are otherwise lawfully carrying out business will be
protected provided their structures are lawful. But they will not be
protected under the Street Vendors Act unless and until they give up the
activity of cooking. Therefore, action will have to be initiated against
the Street Vendors who are cooking food at the place of vending.
WHETHER THE PROVISIONS OF THE STREET VENDORS
ACT OVERRIDE THE COURT ORDERS IN OPERATION AS
ON 1ST MAY, 2014
47. Now, we turn to the argument canvassed in Writ Petition
No.224 of 2011 based on the direction contained in the order of the
Apex Court dated 9th December, 2003 which lays down that hawking is
not permitted from any place of educational institutions or hospitals or
place of worship within a distance of 100 meters. The contention is that
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as the said direction has not been disturbed while passing final
Judgment and Order dated 9th December, 2013, no hawking can be
permitted within the said prohibited distance of 100 meters. All the
orders which were passed from time to time in Civil Appeal Nos.4156-
4157 of 2002 merged into final Judgment and Order dated 9th
September, 2013. Paragraph 17 of the final Judgment and Order dated
9th September, 2013 specifically provides that the directions contained
in the said Judgment and Order shall remain operative only till the
appropriate legislation is enacted by the competent legislature and is
brought into force. Accordingly, the Street Vendors Act has been
brought into force with effect from 1 st May, 2014. Therefore, the
directions issued under the order dated 9 th September, 2013 including
the directions issued from time to time during the pendency of the
Appeals are not operative with effect from 1 st May, 2014. Therefore, we
are unable to accept the contention that the condition imposed by the
directions contained in clause 3 of paragraph 14 of the order dated 9 th
December, 2003 continues to operate after the Street Vendors Act came
into force. While implementing the provisions of the Street Vendors Act
by prescribing no-vending zones such restrictions such as ban on
vending within a distance of an educational institution etc. can be
always imposed. All the existing street vendors who are covered by the
definition under clause (l) of Section 2 of the Street Vendors Act are
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entitled to protection under Sub-section (3) of Section 3 with effect
from 1st May, 2014.
48. Another issue canvassed is regarding the enforceability of
order dated 21st January, 2002 in Writ Petition No.1799 of 2001 which
we have already quoted. We must make a reference to communication
dated 18th June, 2000 issued by the Mumbai Municipal Corporation to
the Secretary of the first Petitioner in Writ Petition No.224 of 2011. The
said communication reads thus :-
"To,
The Secretary,
Shri Vile Parle Kelvani Mandal,
Shri Bhaidas Manganlal Sabhagriha Bldg.,
N.S. Road No.1, J.V.P.D. Scheme,
Vile Parle (W),
Mumbai - 56.
Sub: Beautification of footpath by upper 3½ width and
storm water drain as per the Area Plan along
with Mithibai N.M.A.J. College of Commerce
VIDCO S.B.M. Polyclinic and D.J. Road, Sanghvi
College and Engineering on Irla Society Road,
Bhaktivedanta Swami V.L. Mehta Road, Vile Parle
(W).
--------------------
Sir,
With reference to your letter dated 16 th June,
2000 in connection with the above mentioned subject. I
am pleased to inform you that there is no objection to
beauty the footpath and S W Drain in front of the above
said Colleges of Shri Vile Parle (W) Kelvani Mandal
subject to the following terms and conditions excluding
3 stalls to whom NOC's has been issued by M.C.G.M.
1. That you shall pay Re.1/- as compensation per annum
and Re.2/- as a Security Deposit.
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2. That you shall not utilize the portion of footpath S.W.
Drain beautified for the purpose of canvassing your
trade of business for advertisement. However, you may
provide titles bearing your trade on mono letters of
standard size.
3. That you shall hereby agree that the said footpath S.W.
Drain shall be made available for exclusion use of the
pedestrians traffic.
4. That no hawkers on payment, dwelling shall be allowed
to utilize this part of footpath/storm water drain.
5. That you shall beautify the footpath by using 2 ½ width
x W.W. Drain at your own cost by Flower beds as per
this office plan attached.
6. That you shall reinstate the footpath/ S.W.D. to the
original condition in case of any public utility dig up
the above portion of footpath for doing any
underground work.
7. That you shall submit undertaking on Rs.20/- Stamp
Paper per proforma attached.
8. The above permission is granted upto one year on
yearly renewal basis.
9. That you shall clean the storm water drain before
starting the work of beautification, and to maintain
regularly."
49. For enforcing the permission granted under the said
communication dated 18th June, 2000 that Writ Petition No.1799 of
2001 was filed by the first Petitioner in Writ Petition No.224 of 2011.
The direction of this Court under order dated 21 st January, 2002 to the
Respondents including the Mumbai Municipal Corporation is to remove
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hawkers on the footpaths near the premises of the first Petitioner's
educational institutions. The said order is in respect of the
beautification of the footpath which was permitted under
communication dated 18th June, 2000. The question is whether effect
can be given to the said order of this Court in the light of the provisions
of the Street Vendors Act.
50. Section 33 gives overriding effect to the provisions of the
Street Vendors Act over the provisions of any other law for the time
being in force or any other instrument having effect by virtue of any
other law. However, Section 33 does not override the orders of the
Court which were passed earlier and therefore, the said orders can be
implemented notwithstanding the applicability of the Act. Therefore,
order dated 21st January, 2002 passed in Writ Petition No.1799 of 2001
can be always implemented subject to prohibitory orders passed by the
City Civil Court or any other Court of law. The said order has become
final as even the vendors who are fully aware of the order have not
challenged the same.
51. We have perused the photographs on record in both the
Petitions. From the photographs we find substance in the submissions of
the Petitioners that in many stalls, food is being cooked and some of the
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stalls have been virtually converted into eateries. Therefore, there is
merit in the contention that such illegal activities are leading to traffic
congestion and are causing inconvenience to the local residents. Some
of these stalls have been protected during the pendency of following
Suits in the City Civil Court :-
1. L.C. Suit No.2418 of 2002
2. L.C. Suit No.2472 of 2011
3. L.C. Suit No.2473 of 2011
4. L.C. Suit No.2462 of 2011
5. L.C. Suit No.2463 of 2011
6. L.C. Suit No.2471 of 2011
7. L.C. Suit No.1924 of 2012
8. L.C. Suit No.1420 of 2008
9. L.C. Suit No.666 of 2011
10. L.C. Suit No.2461 of 2011
52. In ordinary course, this Court is very slow in passing orders
directing the Courts under the superintendence this Court to decide the
matters within a time-bound limit. However, considering the gravity of
situation, we propose to direct the concerned Courts to dispose of the
Suit within a time-bound frame. Moreover, the traffic police will have to
ensure that due to indiscriminate parking of vehicles by the customers
of the stalls on the Gulmohar road and nearby streets,traffic congestion
is not created.
53. As stated earlier, there is a complete failure on the part of
the State Government to implement the provisions of the Street Vendors
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Act. We, therefore, propose to direct the State Government to come out
with the outer limit within which compliance will be made. Similarly,
the Mumbai Municipal Corporation will have to come out with the
statement regarding the outer limit within which a plan for street
vending in terms of Sub-section (1) of Section 21 shall be prepared
from the date on which Town Vending Committee is established for the
said Corporation.
54.
We have already held that persons who are cooking/
making food items in a street, lane, side walk, footpath, pavement or
any other public place or private area either from a temporary built up
structure or by moving from place to place, are not covered by the
definition of "street vendor" under the Street Vendors Act. If such
persons are carrying out business of making/preparing food items and
selling, it is obvious that they are creating health hazards to the citizens.
Immediate action of evicting the persons who are carrying out such
illegal acts of cooking and making food will have to be initiated by the
Mumbai Municipal Corporation in accordance with law. As persons who
are cooking or making food are not covered by the definition of street
vendor, the protection under the Street Vendors Act is not available to
such persons. After giving a notice, those Street Vendors who do not
stop activity of cooking/ making food items at the place of their
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business within specified time can be evicted by the Municipal
Corporation by demolition of their stalls. Those street vendors who are
cooking food are causing health hazards to the citizens. They create dirt
and nuisance. However, if the persons who are cooking or preparing
food are otherwise holding licenses required by various statutes and are
otherwise lawfully carrying out business will be protected provided
their structures are lawful.
55.
There is a merit in the contention of the second Petitioner
in PIL No.36 of 2010 that whenever an action is proposed to be taken
against illegal vendors or illegal structures, it is necessary for the
Municipal Corporation to file caveats in all concerned Courts and to
further ensure that such legal proceedings are promptly and properly
contested. The Municipal Corporation may consider establishing a
tracking system of all such litigations dealing with illegal structures.
55A. Before we part with the judgment, we must quote what
the Apex Court held in paragraph 8 of its decision in the case of
Bombay Hawker's Union:
" .....the right conferred by Article 19(1)(g) of the
Constitution to carry on any trade or business is subject
to the provisions of clause (6) of that article, which
provides that nothing in sub-clause (g) of Article 19(1)
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shall effect the operation of any existing law insofar as it
imposes, or prevents the State from making any law
imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right
conferred by the said sub-clause. The affidavits filed on
behalf of the respondents show in unmistakable terms
that the impugned provisions of the Bombay Municipal
Corporation Act are in the nature of reasonable
restrictions, in the interests of the general public, on the
exercise of the right of hawkers to carry on their trade or
business. No one has 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.
Public streets, by their very nomenclature and
definition, are meant for the use of the general
public. They are not laid to facilitate the carrying on
of private trade or business. If hawkers were to be
conceded the right claimed by them, they could hold
the society to ransom by squatting on the centre of
busy thoroughfares, thereby paralysing all civic life.
Indeed, that is what some of them have done in some
parts of the city. They have made it impossible for the
pedestrians to walk on footpaths or even on the
streets properly so called."
(emphasis added)
56. Hence, we dispose of the Petitions by passing the following
order :-
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ORDER
(i) We hold that with effect from 1 st May, 2014 the
directions issued by the Apex Court from time to time
in Civil Appeal Nos.4156-4157 of 2002 (Maharashtra
Ekta Hawkers Union and others vs. Municipal
Corporation of Greater Mumbai and others) shall
cease to apply and all existing street vendors as on 1 st
May, 2014 who are covered by the definition of
clause (l) of Section 2 of the Street Vendors Act are
entitled to protection against eviction and relocation
as provided under Sub-section (3) of Section 3
thereof. No Street Vendors who were carrying on
business as on 1st May, 2014 and who are covered by
the definition of Street Vendor under clause (l) of
Section 2 shall be evicted or relocated by the Mumbai
Municipal Corporation till the survey as specified
under Sub-Section (1) of Section 3 of the Street
vendors Act is carried out and the certificates of
vending are issued to all Street Vendors in accordance
with Sub-section (1) of Section 4 by the Town
Vending Committee. This protection is applicable only
to those Street Vendors who were carrying on
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business as on 1st May 2014;
(ii) Those Street Vendors who have started street vending
after the said date shall be evicted by the Mumbai
Municipal Corporation in accordance with law. The
action of eviction shall be initiated as expeditiously as
possible;
(iii) We declare that a Street Vendor who is engaged in
cooking or preparation of food items in a street, lane,
side walk, footpath, pavement, public park or any
other public place or private place either from a
temporary built structure or by moving from place to
place is not covered by the definition of street vendor
under clause (l) of Section 2 of the Street Vendors Act
and consequently such a vendor shall not be entitled
to protection under Sub-section (3) of Section 3 so
long as he is indulging in cooking or preparation of
food items;
(iv) We, therefore, direct the Mumbai Municipal
Corporation to initiate action of eviction in
accordance with law against Street Vendors who are
engaged in preparation/cooking of food items in
street, lane, side walk, footpath, pavement, public
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park or any other public place or private area either
from a temporary built structure or by moving from
place to place and who do not stop cooking or
making food within the time specified in a notice
served to them. Action of eviction shall be initiated by
the Mumbai Municipal Corporation after following
due process of law against such Street Vendors
immediately on expiry of a period of two months
from today;
(v) We direct the Municipal Corporation to ensure that
when such action of eviction is proposed, caveats
shall be filed in appropriate Courts and the Municipal
Corporation shall take prompt steps to contest the
proceeding if filed for challenging the action of
eviction. We direct the Municipal Corporation to
create a tracking system for all such litigations so
that the same are promptly attended to;
(vi) We direct the Traffic Police to take necessary action in
accordance with law for preventing indiscriminate
parking of vehicles by the customers of the stalls on
the said Gulmohar road and nearby streets. Sufficient
Traffic Police shall be deployed on the said roads
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during the rush hours;
(vii) We direct the Principal Secretary of the Urban
Development Department of the State Government to
file affidavit setting out the outer limit within which
the following actions shall be completed by the State
Government :-
(a) Formulation of the scheme for street vendors
under Sub-section (1) of Section 38 of the Street
Vendors Act;
(b) Framing of the Rules in accordance with
Section 36 of the Street Vendors Act; and
(c) Constitution of Town Vending Committees in
each local authority;
(viii) The aforesaid affidavit shall be filed within a period
of one month from today. Before setting out the outer
limit, the State Government shall make a note that
the time provided to the State Government under the
Street Vendors Act has expired long back;
(ix) We direct the Mumbai Municipal Corporation to file
an affidavit setting out the outer limit within which
the plan for street vending shall be prepared from the
date on which the Town Vending Committee is
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constituted for the said local authority. Such affidavit
shall be filed within the period of six weeks from
today. The compliance affidavit reporting compliance
with the directions issued in terms of clauses (ii) and
(iv) shall be filed on or before 31st January, 2016;
(x) For considering the compliance affidavits to be filed
by the State Government and the Municipal
Corporation, the Petition shall be listed on 21 st
December, 2015;
(xi) We direct the Mumbai Municipal Corporation to take
steps for implementation of order dated 21 st January,
2002 in Writ Petition No.1799 of 2001 immediately
on expiry of a period of two months from today.
Affidavit of compliance on this aspect shall be filed
on or before 31st January, 2016;
(xii) The suits listed in paragraph 51 above pending in the
City Civil Court at Dindoshi shall be disposed of as
expeditiously as possible and in any event within a
period of one year from. This direction be
communicated by the Registrar (Judicial-I) to
concerned Court;
(xiii) Rule issued in the above Petitions is made partly
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absolute on above terms. There will be no order as to
costs;
(xiv) All Chamber Summons and Notice of Motion, if any,
are disposed of accordingly.
( REVATI MOHITE DERE, J) ( A.S. OKA, J )
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