2004 Supreme(SC) 1562

2004(1) Supreme 107
SUPREME COURT OF INDIA
(From Bombay High Court)
S.N. Variava & H.K. Sema, JJ.
Maharashtra Ekta Hawkers Union and Anr. -Appellants
versus
Municipal Corporation, Greater Mumbai and Ors. -Respondents
Civil Appeal Nos. 4156-4157 of 2002
With
C.A. Nos. 4158-4159/2002, C.A. Nos. 4161-4162/2002, C.A. Nos. 4163-4164/2002, C.A. No. 4160/2002, C.A. Nos. 4170-4171/2002, C.A. Nos. 4167-4169/2002, C.P. Nos. 456-458/2002 in C.A. Nos. 4167-4169/2002, C.A. Nos. 4165-4166/2002, C.A. Nos. 4175-4176/2002, C.A. Nos. 4179-4180/2002, C.A. Nos. 4172-4174/2002, C.P. (C) Nos. 195-196/2002, C.A. No. 4178/2002, 4177/2002, C.A. No. 9662/2003 [(arising out of SLP (C) No. 23586/2003 CC 1790/2002 (CC 1790)], C.A. No. 9661/2003 [arising out of SLP (C) No. 23584/2003......CC 5664/2002 (CC 5664)], C.A. Nos. 9663-9666/2003 [arising out of SLP (C) Nos. 23992-23995/2002], and C.A. No. 9667/2003 [arising out of SLP (C) No. 454/2003)]
Decided on 9-12-2003
Counsel for the Parties :
For the Appearing Parties : Vijay Hansaria, V.N. Ganpule, Bhimrao Naik, J.F. Pochkhanawala and A.K. Panda, Sr. Advocates, Sushil Kumar Jain, H.D. Thanvi, Ms. Anjali Doshi, Ms. Ruchi, A.P. Dhamija, Anand Grover, S. Santanam Swaminadhan, Bharat Sangal, M.N. Shroff, Jayesh K.U., Sunil Kumar Jain, Shakil Ahmed Syed, Ashok Kumar Singh, Sushil Karanjkar, Venkateswara Rao Anumolu, Vimal Chandra S. Dave, Vijay Kumar, Colin Gonsalves, Ms. Aparna Bhat, Vipin M. Benjamin, P. Ramesh Kumar, Pallav Shishodia, D.N. Mishra, Hemant Sharma, Pradeep Kumar Bakshi, V. Ramasubramanian, Jamshed Mistry, Senthil Jagadeesan, S.S. Sinde, Mukesh K. Giri, Ms. Nandini Gore, Shri Narain Sandeep Narain, Ms. Anjali Jha, A.K. Raina and P. Parmeswaran, Ms. Rubi Singh Ahuja, Advocates.

IMPORTANT POINT
The hawkers have a right of trade and business under Article 19(1)(g) of the Constitution of India, subject to reasonable restrictions under Article 19(6) of the Constitution but there is no fundamental right under Article 21 to carry on any hawking business.

Headnote:Constitution of India-Articles 19(1)(g) and 19(6)-Hawkers right to carry on trade and business-Hawking activities in Mumbai-Scheme framed pursuant to judgment of the Supreme Court in Bombay Hawkers Union s case, (1985) 3 SCC 528-Scheme sanctioned by the Bombay High Court accommodating 22,000 hawkers-There were over 1,03,000 hawkers in City of Bombay-Out of this there were 15000 licenced hawkers and app. 22000 hawkers had been issued pautis (receipts) under a scheme initiated in 1988, known as unauthorised occupation cum Refuse Removal Charges -Bombay Municipal Corporation moved the High Court for certain modifications-Basic features of the Scheme appointing a Committee and laying down modalities for functioning of the committee-Restrictions/conditions on which hawkers shall do the business.

       Held : The hawkers have a right under Article 19(1)(g) of the Constitution of India. This right however is subject to reasonable restrictions under Article 19(6). Thus hawking may not be permitted where e.g. due to narrowness of road free flow of traffic or movement of pedestrians is hindered or where for security reasons an area is required to be kept free or near hospitals, places of worship etc. There is no fundamental right under Article 21 to carry on any hawking business. There is also no right to do hawking at any particular place. The authorities also recognize the fact that if properly regulated the small traders can considerably add to the convenience and comfort of the general public, by making available ordinary articles of everyday use for a comparatively lesser price. The scheme must keep in mind the above principles. So far as Mumbai is concerned the scheme must comply with the conditions laid down the Bombay Hawkers Union s case. Those conditions have become final and there is no changed circumstance which necessitates any alteration. As has already been mentioned hereinabove a draft scheme was prepared pursuant to the Judgment of this Court in the Bombay Hawkers Union s case. In the initial scheme the number of hawking zones were shown as 488, they were then brought down to 377 and utimately have been reduced to 187 as per the scheme framed by the Bombay High Court. Under the Scheme sanctioned by the Bombay High Court only 22,000 hawkers can be accommodated. Even as per the survey carried out by BMC there were over 1,03,000 hawkers in the city of Bombay. Out of this there were 15000 licenced hawkers and app. 22000 hawkers who had been issued pautis (receipts) under a scheme initiated in 1988 and known as unauthorised Occupation cum Refuse Removal Charges . As it has already been held that the hawkers have a fundamental right under Article 19(1)(g) it would not be correct to unreasonably restrict such a right, except under circumstances set out in the guidelines laid down by this Court in the Bombay Hawkers Unions case and other reasonable restrictions set out hereafter. In our view the correct approach should be to ascertain/earmark areas where, as per the guidelines, hawking cannot be permitted. Thereafter all other areas/steets must be hawking zones. (Paras 10 and 11)

       We are told that BMC is agreeable to include 51 more roads as hawking zones. We have considered submissions of Mr. Divan on why these additional roads should not be added to the 187 already approved by the Bombay High Court. In our view 49 of these additional roads meet all the criteria, set out hereafter, and can be included in the hawking zones. Therefore to start with we approve the 187 + 49 roads as hawking zones. The roads we have excluded are Pandey Road in A Ward and Deodhar Road in F/N ward as they appear to be residential areas with no shopping line. We further clarify that amongst these 49 roads there are some roads e.g. Mahatma Gandhi Marg in A Ward which are already included in the hawking zones but on which BMC now proposes to accommodate additional hawkers. Whilst doing so BMC will ensure that there is no impediment or hindrance to vehicular traffic or pedestrians. The approval of these 49 roads is subject to approval/NOC from the traffic police. It must also be clarified that even though a road may be within a hawking zone the restrictions, set out hereunder, regarding distances from railway stations, hospitals, educational institutions, places of worship etc. on that road, if any, would continue to apply. The restrictions/conditions on which the hawkers shall do the business are:

        (1) an area of 1 mtr x 1 mtr on one side of the footpath wherever they exist or on an extreme side 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. 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 on both sides of the footpaths or roads. We however clarify that Aarey/Sarita stalls and sugar cane vendors would require and may be permitted an area of more than 1 Mt. by 1 Mt. but not more than 2 Mt. by 1 Mt;

        (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/sarita stalls;

        (3) There should be no hawking within 100 meters from any place of worship, holy shrine, educational institutions and hospitals or within 150 meters from any municipal or other markets or from any railway station. There should be no hawking on foot-bridges and over-bridges. 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 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 am and 10.00 pm;

        (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 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 meters in width. Further the hawkers also have to comply with 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 are 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 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 concerned ward officer the presence of a hawker in a non hawking zone/area. The concerned ward officer 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 concerned police station 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 concerned ward officer. 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 6 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 licenses 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 the BMC shall bring this Judgment to the notice of all Courts in which matters are now pending. We are quite sure that the concerned Court/s shall then suitably vacate/modify its injunction/stay order. (Paras 13 & 14)