Sabu vs Corporation Of Cochin
2021 Latest Caselaw 23309 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
  THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                       WP(C) NO. 17697 OF 2013
PETITIONER:

          SABU
          S/O.DAMU, KANNATTUNERTHU HOUSE, PANAVALLY, CHERTHALA
          TALUK, ALAPPUZHA DISTRICT.
          BY ADVS.
          SRI.KISHOR B.
          SRI.TOMS MATHEW


RESPONDENTS:

          CORPORATION OF COCHIN
          REPRESENTED BY COMMISSIONER, COCHIN CORPORATION,
          COCHIN.
          BY ADVS.
          SRI.C.N.PRABHAKARAN, STANDING COUNSEL




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.17697/2013                       2




                                         JUDGMENT

Dated this the 25th day of November, 2021

The writ petition is filed by the petitioner, who is apparently a street vendor,

seeking the following reliefs:

i. Direct the respondents not to evict the petitioner forcibly without providing suitable place to relocate his bunk.

ii. Issue a writ of mandamus or any other writ, order or direction to the respondent to formulate a scheme in line with the National Policy on Street Vendors 2009 for rehabilitation of the petitioner in case he is evicted from the present place for some reason and to implement the scheme.

Iii. Grant such other reliefs that may be prayed for which this Honourable Court deems fit and proper to grant in the facts and circumstances of the case.

2. According to the petitioner, he is a street vendor and as a means of

livelihood for the family, he is running a small bunk shop near the High Court and

he is vending coffee and snacks from the year 1998 onwards. While so, on 3 rd

July, 2013, Officials of the Corporation of Cochin visited the bunk, accompanied

with Policemen and demanded the petitioner to vacate the bunk forthwith and

threatened that if the petitioner does not vacate immediately, he will be forcibly

evicted from the premises in question. It is thus seeking the reliefs extracted

supra, the petitioner has approached this Court. Various contentions are raised

with respect to the entitlement of the petitioner to conduct the bunk shop,

relying upon Exhibit P1 National Policy available to a person, who is providing

livelihood to the members of the family and other contentions are also raised on

the basis of the provisions of Part III of the Constitution of India.

3. I have perused the pleadings and materials on record and heard

Sri.C.N.Prabhakarn, learned Standing Counsel appearing for the Corporation of

Cochin.

4. As I have pointed out above, the writ petition was preferred before this

Court in the year 2013 and this Court has passed an interim order staying

eviction of the petitioner from the bunk in question on 16.7.2013. The Street

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

came into force on and w.e.f. 5.3.2014. A 'street vendor' is defined under section

2(l) as follows:

"(l) "street vendor" means a person engaged in vending of articles, gods, 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 include hawker, peddler, squatter and all other synonymous terms which may be local or region specific; and the workds "street vending" with their grammatical variations and cognate expressions, shall be

construed accordingly."

5. Therefore, on a clear scrutiny of the said provision, it is clear that the

bunk shop conducted by the petitioner would also come under the provisions of

the Act, 2014. If that be so, sufficient safeguards and protection is provided to

street vendors in terms of sections 3, 4 & 5 of Act, 2014. For the sake of brevity

and convenience, the said provisions are extracted hereunder:

3. Survey of street vendor sand protection from eviction or

relocation.--(1) The Town Vending Committee shall, within such period

and in such manner as may be specified in the scheme, conduct a survey

of all existing street vendors, within the area under its jurisdiction, and

subsequent survey shall be carried out at least once in every five years. (2)

The Town Vending Committee shall ensure that all existing street vendors,

identified in the survey, are accommodated in the vending zones subject to

a norm conforming to two and half per cent. of the population of the ward

or zone or town or city, as the case may be, in accordance with the plan

for street vending and the holding capacity of the vending zones. (3) No

street vendor shall be evicted or, as the case may be, relocated till the

survey specified under sub-section (1) has been completed and the

certificate of vending is issued to all street vendors.

4. Issue of certificate of vending.--(1) Every street 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 zone and the remaining persons shall be

accommodated in any adjoining vending zone to avoid relocation.

5.Conditions for issue of certificate of vending.--(1) Every street

vendor shall give an undertaking to the Town Vending Committee prior to

the issue of a certificate of vending under section 4, that--

(a) he shall carry on the business of street vending himself or

through any of his family member;

(b) he has no other means of livelihood:

(c) he shall not transfer in any manner whatsoever, including rent,

the certificate of vending or the place specified therein to any other

person.

(2) Where a street vendor to whom a certificate of vending is issued dies

or suffers from any permanent disability or is ill, one of his family member

in following order of priority, may vend in his place, till the validity of the

certificate of vending--

(a) spouse of the street vendor;

(b) dependent child of the street vendor:

Provided that where a dispute arises as to who is entitled to vend in the

place of the vendor, the matter shall be decided by the committee under

section 20."

6. On a reading of the sub-section (3) to section 3, it is categoric and clear

that 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. Which thus means, the stay secured by

the petitioner in the writ petition would have to be continued, till a decision is

taken in any application submitted by the petitioner. The Town Vending

Committee is vested with ample powers under Act, 2014 to identify as to whether

the petitioner is entitled to get the benefits of Act, 2014 and for securing any

rehabilitation package.

7. Therefore, the writ petition is disposed of, leaving open the liberty of the

petitioner to submit suitable application in terms of Act, 2014 and if any such

application is received by the Corporation/Town Vending Committee within three

weeks from the date of receipt of a copy of this judgment, it shall be considered

in terms of law, as discussed above, at the earliest possible time and at any rate

within a further period of one month from the date of receipt of the application.

The parties will be guided by the orders passed by the Town Vending Committee

in terms of law and till such time, the interim order granted by this Court would

continue to be in force.

Sd/-

                                                         SHAJI P. CHALY,
smv                                                          JUDGE





                        APPENDIX OF WP(C) 17697/2013

PETITIONER EXHIBITS
                          EXHIBIT P1: COPY OF NATIONAL STREET VENDORS
                          POLICY 2009 OF THE GOVERNMENT OF INDIA.
                          EXHIBIT P2: COPY OF INTERIM ORDER IN
                          WPC.17062/2013 DTD.8.7.2013.