IMPORTANT POINT
Regarding the Hawkers problems in the city of Bombay, the Supreme Court has taken the view that the hawkers shall be permitted to do their business in the hawking zones to subject to restrictions/conditions as set out and the licensed workers are allowed to continue their business irrespective of draw of lots till the regulations are framed by the Government of Maharashtra.

Headnote:(i) Bombay Municipal Corporation Act, 1988—Sections 313, 313-A, 314(3) and 497—Constitution of India —Articles 19(1)(g), 19(6)—Hawkers problems in city of Bombay—Hawkers claiming right to carry on trade or business—Reasonable restrictions to be imposed—Status of Licensed Hawkers and Handicapped Hawkers—Scheme proposed by the Municipal Corporation—Certain modalities laid down for hawking and non-hawking zones—Committees set up by the Supreme Court have suggested some deletions/additions—This Court identified 187 roads plus 49 roads as hawking zones—Committees were to further consider whether hawking can be permitted on such road/street or not—Question whether licensed hawkers already operating in hawking zones could be allowed to continue irrespective of draw of lots had been kept open by this Court to be decided after the submission of the Committee’s Report—Suggestion made that hawkers already operating in hawking zones should be allowed to continue irrespective of draw of lots—Suggestion of the Committee to relax order of this Court dated 9-12-2003 to accommodate some more hawkers in regard to certain spots rejected—Bombay Municipal Corporation now to undertake immediate steps for making infrastructure available for Hawkers Plazas, as suggested by the Committees—Handicapped hawkers to be permitted to stalls of 1m x 2m as provided in their license.
       Held : This Court held that the right to carry on trade or business conferred by Article 19(1)(g) of the Constitution is subject to the provisions of clause (6) of Article 19 which provided that nothing in Sub-clause (g) of Article 19(1) would affect the operation of any existing law insofar as it imposed, or prevented the State from making any law imposing, in the interests of general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. It was held that no one had 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. It was pointed out that public streets, by their very nomenclature and definition, were meant for the use of the general public. It was further pointed out that the public streets are not laid to facilitate the carrying on of private trade or business. It was held that if hawkers were to be conceded the right claimed by them they could hold the society to ransom by squatting on the center of busy thoroughfares, thereby paralyzing all civic life. It was noticed that in some of the parts of the city the hawkers had made it impossible for the pedestrians to walk on footpaths or even on the streets. This Court then examined the scheme proposed by the Municipal Commissioner and laid down certain modalities for hawking and non-hawking zones. After accepting some restrictions/conditions proposed by the Municipal Commissioner, this Court suggested certain guidelines and directed the Municipal Commissioner to frame a final scheme. (Para 1)
       Although we have in principle approved 187 roads as hawking Zones, we have permitted the Committees to further consider whether hawking can be permitted on such road/street or not. In our view, therefore, the contention of the petitioners that the Committees had reduced the roads, which had been declared the hawking Zones by this Court, without any authority, must be rejected. In our view, the Committees had exercised their powers in consonance with the directions issued by this Court. The other contention that due to reduction/deletion of some roads, approved as hawking Zones by this Court, the hawkers have been deprived of their right to hawk on the streets declared as hawking Zones has also no substance.(Paras 15 and 16)
       Accordingly, we issue the following directions:
       (A)5555 licensed hawkers pertaining to PCOs/ Handicapped Persons’ Stalls, Cobbler Pitches, Cobbler Stalls and Aarey Sarita are allowed to continue their business irrespective of draw of lots till the regulations are framed by the Government of Maharashtra.
       (B)2083 licensed hawkers hawking in hawking Zones shall be allowed to continue the hawking irrespective of draw of lots till the regulations are framed by the Government of Maharashtra.
       (C)7521 licensed hawkers, who are in the non-hawking Zones, must be shifted to hawking Zones and allowed to continue hawking till the regulations are framed by the Government of Maharashtra.(Para 20)
       By our order dated 9.12.2003, in direction No. 1, we have allowed Aarey/Sarita stalls and sugar cane vendors who may require an area of more than 1m. x 1m. and accordingly permitted them to utilize the space of not more than 2m. x 1m. Accordingly, the applicants in these intervention applications are permitted to stalls of 1m. x 2m. as provided in their license. This permission, however, is subject to verifications by the Committee that the allottees have locomotor disability and they have to take the assistance of wheelchairs, crutches, Jaipur foot and other enabling aids of the like (which are non-foldable).(Para 31)
       (ii) Bombay Municipal Corporation Act, 1988—Sections 313, 313-A, 314(3) and 497—National Policy on Urban Street Vendors, 2004—State Government is initiating a process for implementation of National Policy by framing regulations—Regulations so framed by the State to be in consonance with the aims and objects of the Policy to render some sort of succour to the urban street vendors to eke out a living through hawking.
       Held : We also clarify that State Government shall frame regulations in order to solve the problem of hawkers independently without being influenced by any scheme framed by us or any direction issued by this Court in the interregnum. We further clarify that the schemes and directions issued by this Court are purely temporary in nature and subject to regulations framed by the State Government in terms of Section 10.1 of the National Policy on Urban Street Vendors. In other words, the schemes and directions issued by this Court shall be valid only till the regulations are framed and implemented.(Para 38)

JUDGMENT

Sema, J.—The Hawkers’ problems in the city of Bombay was first dealt with by this Court in the case of Bombay Hawkers’ Union v. Bombay Municipal Corporation (1985) 3 SCC 528. The argument that the hawkers have a fundamental right to carry on their trade or business and that the respondents are unlawfully interfering with that right by arbitrarily refusing to grant or renew their licenses for hawking and that the writ petitions for a declaration that the provisions of Sections 313, 313-A, 314(3) and 497 of the Bombay Municipal Corporation Act, 1988 are void since they confer upon the respondents an arbitrary and unguided power to refuse to grant or renew licenses for hawking and to remove the goods without affording to the hawkers an opportunity to be heard, was repelled by this Court. This Court held that the right to carry on trade or business conferred by Article 19(1)(g) of the Constitution is subject to the provisions of clause (6) of Article 19 which provided that nothing in Sub-clause (g) of Article 19(1) would affect the operation of any existing law insofar as it imposed, or prevented the State from making any law imposing, in the interests of general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. It was held that no one had 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. It was pointed out that public streets, by their very nomenclature and definition, were meant for the use of the general public. It was further pointed out that the public streets are not laid to facilitate the carrying on of private trade or business. It was held that if hawkers were to be conceded the right claimed by them they could hold the society to ransom by squatting on the center of busy thoroughfares, thereby paralyzing all civic life. It was noticed that in some of the parts of the city the hawkers had made it impossible for the pedestrians to walk on footpaths or even on the streets. This Court then examined the scheme proposed by the Municipal Commissioner and laid down certain modalities for hawking and non-hawking zones. After accepting some restrictions/conditions proposed by the Municipal Commissioner, this Court suggested certain guidelines and directed the Municipal Commissioner to frame a final scheme.

2. Pursuant to the aforesaid direction, Bombay Municipal Corporation (for short ‘BMC’) constituted an Advisory Committee composed of officials of the Corporation, representatives of the Residents’ Associations, NGO’s, elected representatives of the Traffic Police and representatives of the hawkers. In the interregnum, the Advisory Committee submitted a draft Scheme. Many suggestions were made but we are not concerned with the draft Scheme, proposals or suggestions, in these proceedings.

3. Before this Court a strong reliance has also been placed on behalf of the petitioners on the judgment in the case of Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545. It was submitted that the right to hawk was also a fundamental right under Article 21 of the Constitution of India. This Court noticed that such an argument has been negatived in the case of Sodan Singh and Ors. v. New Delhi Municipal Committee and Ors. (1989) 4 SCC 155. This Court in Sodan Singh’s case (supra), while dealing with hawkers in the city of Delhi held that the hawking on roadsides fell within the expression “occupation, trade or business” in Article 19 (1) (g) but that it was subject to reasonable restrictions under Article 19(6) of the Constitution.

4. After noticing the 1985 and 1989 judgments of this Court, as referred to above, this Court in Maharashtra Ekta Hawkers Union v. Municipal Corporation Greater Mumbai (2004) 1 SCC 625 para 10 at page SCC 630 held:

“10. The above authorities make it clear that the hawkers have a right under Article 19(1)(g) of the Constitution of India. This right however is subject to re

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2007 Supreme(SC) 1530

Cases Referred (4)