Telangana High Court

Gaddam Rajamma vs The State Of Telangana on 18 October, 2021

Bench: K.Lakshman

   IN THE HIGH COURT FOR THE STATE OF TELANGANA
                              AT: HYDERABAD
                                   CORAM:

                * THE HON'BLE SRI JUSTICE K. LAKSHMAN

                    + WRIT PETITION No.23165 OF 2021

% Delivered on: 18-10-2021

Between:

# Smt. Gaddam Rajamma & Others                               .. Petitioners

                                       Vs.

$ The State of Telangana, rep by its Principal Secretary,
  Municipal Administration and Urban Development,
  Secretariat, Hyderabad & Others                           .. Respondents


! For Petitioners                        : Mr. T. Venkat Raj Goud

^ For Respondent Nos.1 & 2               : Govt. Pleader for MA & UD

 For Respondent No.3                     : Govt. Pleader for Revenue

 For Respondent No.4                     : Mr. N. Praveen Kumar,
                                           Learned Standing Counsel

< Gist                                   :


> Head Note                              :


? Cases Referred                         :

         1.   (2014) 1 SCC 490.
         2.    2021 (2) ALD 554 (AP)
         3.   (1997) 11 SCC 121
         4.   1986 AIR 180
         5.   2017 (6) BomCR 481.
                                      `

                                     2
                                                                           KL,J
                                                           W.P.No.23165 of 2021



              HON'BLE SRI JUSTICE K. LAKSHMAN

                 WRIT PETITION No.23165 OF 2021
ORDER:

Heard Mr. Venkat Raj Goud, learned counsel for the Petitioners,

learned Government Pleader for MA & UD appearing on behalf of

respondent Nos.1 and 2, learned Government Pleader for Revenue

appearing on behalf of respondent No.3 and Mr. N. Praveen Kumar,

learned Standing Counsel for respondent No.4

2. The present writ petition is filed by the Petitioners to declare

the action of the Respondent Nos. 3 and 4 in trying to dispossess the

Petitioners as illegal, arbitrary, against principles of natural justice and

contrary to the procedure laid down under the Street Vendors (Protection

of Livelihood and Regulation of Street Vending) Act, 2014, G.O. Ms.

No.11 (MA & UD) dated 05.01.2016 of Telangana Street Vending

Scheme, 2016 and G.O. Ms. No. 89 (MA & UD)dated 10.06.2020 of

Telangana Street Vendors (Protection of Livelihood and Regulation of

Street Vending) Rules, 2020, and for a consequential direction to

Respondent Nos. 3 and 4 not to dispossess the Petitioners from their

business premises and conduct an enquiry by considering their

representation dated 08.09.2021.

3. Facts of the Case:

i) The Petitioners claim to be the shop keepers of shops situated at

KarodGiri Naka Complex, Main Center, Nakrekal Municipality,

Nalgonda District. According to them, they and their family members `

KL,J W.P.No.23165 of 2021

are carrying out small street vending business since last 100 years by

erecting small shops and moving carts.

ii) The business premises of the Petitioners were burnt in the year

1990, due to a short circuit. Thereafter, in furtherance of a Government

plan, the Petitioners were asked to deposit Rs.38000/- for construction of

permanent shops. After the construction, vide Proc. No. B1/3736/93/pts

dated 25.06.1998, the said shops were allotted on lease to the Petitioners

for a period of 10 years i.e., up to 31.03.2008

iii) In the year 2008, the lease period expired, but based on

requests from the lessees a resolution was passed by Gram Panchayath,

Nakrekal on 30.06.2008 extending the lease for 10 years with an

enhancement of 30% in the rent. However, eviction order was issued on

23.01.2010 to the people including some of the Petitioners herein for

non-payment of rent. Subsequently, a public auction notice was also

published on 08.02.2010.

iv) The said eviction order and auction notice were challenged

before this court in W.P. No. 3086 of 2010. The writ petition was

disposed of vide order dated 16.03.2017 directing the authorities to

permit the continuation of lessees who have paid the rent till 31.12.2017.

Auction of lease hold was allowed and the Petitioners therein were

allowed to participate in the auction, provided they complied with all the

conditions. It is relevant to note that some of the Petitioners in the

present case were also the Petitioners in W.P. No. 3086 of 2010.

KL,J W.P.No.23165 of 2021

v) Therefore, as the second lease period expired on 31.03.2018,

the Respondent Nos. 3 and 4were trying to dispossess the Petitioners. In

this regard, a representation dated 08.09.2021 was submitted to

Respondent No. 3 to conduct an enquiry and allot the shops to the

Petitioners.

vi) The Petitioners claiming right over the shops have been

vacated from their respective shops by Respondent Nos. 3 and 4 on

09.09.2021. A resolution was passed on 18.09.2021 by Nakrekal

Municipal Council to auction 38 shops.

vii) Hence, the Petitioners have filed the present writ petition

claiming protection under the Street Vendors (Protection of Livelihood

and Regulation of Street Vending) Act, 2014 (hereinafter 'the Act,

2014').

4. Contentions of the Petitioners

i) Petitioners signed the lease agreements in the year 1998 without

knowing its contents. It was only in 2008 when the lease deed

expired that the Petitioners came to know about the contents of the

lease deed.

ii) Several representations were made to the authorities to allot the

shops on permanent basis to the Petitioners at a normal cost.

iii) The Petitioners are street vendors. The Supreme Court in

Maharashtra Ekta Hawkers Union v. Municipal Corporation, `

KL,J W.P.No.23165 of 2021

Greater Mumbai1 and the Andhra Pradesh High Court in Guntur

Footpath &Thopudu Veedhiballu Chiruvyaparula Sangham, Guntur

v. State of Andhra Pradesh2 have held that street vendors shall be

allowed to carry on business and cannot be evicted till the

hawking/vending zones are created. Under the Act, 2014 street vendors

have a right to carry on business, until and unless a particular area has

been declared a 'no vending zone'.

iv) The action of the authorities should be in accordance with the

procedure established by law which should be just, fair and reasonable.

Reliance was placed on Ahmedabad Municipal Corporation v. Nawab

Khan Gulab Khan3 and Olga Tellis v. Bombay Municipal

Corporation4.

v) The action of the respondents in interfering and trying to

dispossess the Petitioners without considering the representation dated

08.09.2021 is illegal and is contrary to the Act, 2014, Rules 2020, and

Apex Court judgments.

i) Petitioners do not fall within the definition of 'street vendor'

under the Act, 2014, G.O. Ms. No. 11 (MA & UD) dated 05.01.2016 of

Telangana Street Vending Scheme, 2016 and G.O. Ms. No. 89 (MA &

. (2014) 1 SCC 490

. 2021 (2) ALD 554 (AP)

. (1997) 11 SCC 121

. 1986 AIR 180 `

KL,J W.P.No.23165 of 2021

UD) dated 10.06.2020 of Telangana Street Vendors (Protection of

Livelihood and Regulation of Street Vending) Rules, 2020.

ii) The Petitioners are only lessees and cannot claim protection

under the Act, 2014.

iii) Most of the Petitioners have sub-leased the shops to third

parties and are collecting huge rents. Only 9 actual lease holders in shop

nos. 1, 3, 4, 5, 7, 8, 10, 12 and 13 are doing business, the remaining shops

are sub-leased.

iv) The shops claimed by Petitioners were already vacated on

09.09.2021. On 18.09.2021 a resolution was passed to auction the shops.

v) With the above said submissions, respondent Nos.3 and 4

sought to dismiss the writ petition.

6. Analysis and findings of the Court:

i) The Petitioners claim to be 'street vendors' and according to

them they cannot be dispossessed unless a survey is conducted and

vending zones are created under the Section 3 of the 2014, Act. On the

other hand, Respondent Nos. 3 and 4 contend that Petitioners were only

lessees and their lease deeds have expired. They cannot claim now that

they are street vendors.

ii) Therefore, the question before the court is whether the

Petitioners fall within the definition of 'street vendors' under the Act,

2014, Telangana Street Vending Scheme, 2016 and Telangana Street

Vendors Rules, 2020.

KL,J W.P.No.23165 of 2021

iii) Before deciding the issue involved, it is apt to mention the

object of the 2014, Act, which is as under:

"Street vendors constitute an important segment of the urban population. Street vendors are those who are unable to get regular jobs in the remunerative formal sector on account of their low level of education and skills. They earn their livelihood through their own meagre financial resources and sweat equity. Street vending provides a source of self-employment, and thus acts as a measure of urban poverty alleviation without major Government intervention. Street vending also acts as an instrument to provide affordable as well as convenient services to a majority of urban population and has a prominent place in the urban supply chain and are an integral part of the economic growth process within urban areas.

Given the pace of urbanisation and the opportunities presented through the development of urban areas, the growth of street vendors is likely to have an upward trend. It is vital that these vendors are enabled to pursue their livelihoods in a congenial and harassment free atmosphere.

Considering the significant contribution made by street vendors to the urban society as a whole, more specifically to the comparatively poorer sections, and to enable them to earn a livelihood through creation of good working conditions, without causing obstruction to the public, the Government of India brought out revised National Policy on Urban Street Vendors, 2009 which aims at securing right of the citizens to have adequate means of livelihood as enshrined in Articles 14, 19(1)(g), 38(2), 39(a), 39(b) and 41 of the Constitution and fostering a congenial environment for the urban street vendors to carry out their activities, without harassment from any quarter. It also aims at providing a mechanism for regulation of street vending activities to avoid congestion on sidewalks and to ensure free flow of traffic on roads by a legislative framework to enable street vendors to pursue a honest living without harassment.

Thus, a proposed Bill is aimed at protecting the livelihood rights and social security of street vendors and regulation of urban street vending in the country and ensuring uniformity in the legal framework for street vending across States and Union territories. The proposed Street Vendors (Protection of Livelihood and Regulation of `

KL,J W.P.No.23165 of 2021

Street Vending) Bill, 2012, inter alia, seeks to provide for the following, namely:--

(a) compulsory registration of every person intending to carry out street vending activities;

(b) issue of a certificate of vending and identity cards to street vendors;

(c) certain rights of street vendors;

(d) certain duties of the street vendors;

(e) constitution of Town Vending Committee in each local authority with minimum forty per cent representation of street vendors, out of which one-third shall be women vendors and reasonable representation of the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, minorities and persons with disabilities;

(f) making of a plan for street vending once in every five years;

(g) framing of a scheme relating to street vending by the appropriate Government;

(h) redressal of grievances and resolution of disputes of street vendors;

(i) promotional measures for making available credit, insurance and other welfare schemes of social security for the street vendors;

(j) street vendors not to be prevented by any person or police or any other authority from exercising their right to vend when carrying on street vending in accordance with the terms and conditions of certificate of vending."

Finally, the Street Vendors (Protection of Livelihood and Regulation of

Street Vending) Act, 2014, was enacted and it came into force w.e.f.

effect 05.03.2014.

KL,J W.P.No.23165 of 2021

iv) The Bombay High Court in Azad Hawkers Union v. Union

of India5 has aptly referred to the object and scheme of the Act, 2014 as

follows-

"50. As has been rightly argued on behalf of the Petitioners that the said Act has been enacted with an object to enable the street vendors to earn a livelihood through creation of good working conditions as enshrined in Articles 14, 19(1)(g), 38(2), 39(a), 39(b) and 41 of the Constitution and fostering a congenial environment for the urban street vendors to carry out their activities without harassment from any quarter. At the same time, the Act also recognizes right of street vendors, without causing obstruction to the public. It also aims at providing a mechanism for regulation of street vending activities to avoid congestion on sidewalks and to ensure free flow of traffic on roads by a legislative framework, to enable street vendors to pursue a honest living without harassment."

v) Therefore, the Act was brought in, to protect the street

vendors and give them an opportunity to earn their own livelihood.

The Act, 2014 aims to protect street vendors who do their business

on streets by vending small goods. These vendors are solely

dependent on such business and are to be allotted space for conduct

of such business.

. 2017 (6) BomCR 481.

KL,J W.P.No.23165 of 2021

vi) To decide the issue at hand, it is essential to discuss the

definition of a street vendor.

vii) Section - 2 (l) defines the term 'street vendor', which is

as follows-

" "street vendor" means a person engaged in vending of articles, goods, wares, food items or merchandise of everyday use or offering services to the general public, in a street, lane, sidewalk, footpath, pavement, public park or any other public place or private area, from a temporary built up structure or by moving from place to place and includes hawker, peddler, squatter and all other synonymous terms which may be local or region specific; and the words "street vending" with their grammatical variations and cognate expressions, shall be construed accordingly;"

viii) The definition of the term 'street vendor' is very wide as it

includes vending goods or offering services of everyday use. It includes

hawker, peddler, squatter and all other synonymous terms. However, the

essential requirement of being a street vendor is to carry on business

from a temporary built-up structure or by moving from place to place.

ix) Now coming to the facts of the case, the Petitioners are lessees

and they cannot claim to be street vendors. The lease deed of Petitioner

No. 22 filed with the writ petition clearly mentions that the Petitioner is a

lessee, lease period is 10 years and has to vacate the leased shop after 10

years. Further, the order of the Collector issued vide Roc. No. 771/08-

B3(Pts.) dated 18.12.2008, which extended the lease period from `

KL,J W.P.No.23165 of 2021

31.03.2008 to 31.03.2018, also mentions that the shops were leased out

and were to be vacated after the expiry of 10 years.

x) It is relevant to note that some of the petitioners herein filed

W.P. No.3086 of 2010 challenging the proceedings dated 09.12.2009,

eviction order dated 23.01.2010, public auction notice dated 05.02.2010

published on 08.02.2010. In the said writ petition, the petitioners

claimed that they are lessees relying upon the resolution of the then Gram

Panchayath, Nakrekal (presently Nakrekal Municipality) dated

30.06.2008 where-under it was resolved to extend the lease of the shops

in favour of the petitioners for a further period of 10 years with

enhancement of rent by 30% on the existing rent.

xi) It was also referred in the order dated 16.03.2017 passed in

W.P. No.3086 of 2010, with regard to the details of rent being paid by

the petitioners during the pendency of the writ petition and that they are

entitled for renewal for another 10 years in view of the resolution passed

by the Gram Panchayath. The said writ petition was disposed of with the

following directions:

"(a) The petitioners, who have complied with the condition of paying the difference of rent, are allowed to continue to remain as lessees of the 1st respondent till 31-12-2017 and continue to pay the enhanced rent.

(b) The petitioners, who have complied with the condition dated 07-03-2017 and are interested in availing the time granted by this order, are directed to file an affidavit before the 1st respondent-Gram Panchayat by enclosing a copy of this order, within two weeks from today.

`

KL,J W.P.No.23165 of 2021

(c) The 1st respondent is directed to conduct auction of leasehold rights of shops in terms of Sub-Rule 10 of Rule 6 of G.O.Ms.No.496, Panchayat Raj, dated 11-06-1966.

(d) The petitioners, who complied with all the conditions, can be permitted to participate in the auction held by the 1st respondent and if petitioners are successful bidders, the 1st respondent allows such successful bidders to continue to do business in the same premises.

(e) Either the condition of paying the rent is not complied with or the affidavit as directed by this Court is not filed, to the extent of such petitioners, the interim order shall stand vacated.

(f) The writ petition is filed by 31 petitioners. Petitioner Nos.1 to 15, 18, 19, 22 to 27 and 31 (24 persons) have complied with the condition and petitioner Nos.16, 17, 20, 21, 28, 29 and 30 (7 persons) have not complied with the condition. Therefore, the interim order granted in favour of petitioner Nos.16, 17, 20, 21, 28, 29 and 30 is vacated and the 1st respondent is given liberty to vacate and take possession from petitioner Nos.16, 17, 20, 21, 28, 29 and 30."

xii) Now, the Petitioners cannot contend that they did not know

the contents of the lease agreement and that they are street vendors.

They never raised any objections before this Court in W.P. No. 3086 of

2010. Instead of raising objections, a request was made to extend the

lease period for 10 years.

xiii) Therefore, the Petitioners were lessees whose lease got

expired in 2018. The relief under the Act, 2014 is an afterthought of the

Petitioners to continue the lease.

KL,J W.P.No.23165 of 2021

7. CONCLUSION:

i) The definition of 'street vendors' clearly mentions that they

have to carry on business from a temporary built-up structure. In the