2015 Supreme(Bom) 1866

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & REVATI MOHITE DERE, JJ.
Vile Parle Kelvani Mandal and Ors. - Petitioners
Versus
Municipal Corporation of Greater Mumbai and Ors. - Respondents
Writ Petition No.224 of 2011 & Public Interest Litigation No.36 of 2010
Decided On : 23-10-2015

The Street Vendors Act overrides the Court orders in operation as on 1st May 2014, and street vendors who are cooking or preparing food items in a street, lane, side walk, footpath, pavement, public park or any other public place or private area either from a temporary built structure or by moving from place to place are not covered by the definition of street vendor under the Street Vendors Act.

Headnote:

The Court held that the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (the Street Vendors Act) overrides the Court orders in operation as on 1st May 2014. The Court also held that street vendors who are cooking or preparing food items in a street, lane, side walk, footpath, pavement, public park or any other public place or private area either from a temporary built structure or by moving from place to place are not covered by the definition of street vendor under the Street Vendors Act and consequently such a vendor shall not be entitled to protection under Subsection (3) of Section 3 so long as he is indulging in cooking or preparation of food items.

Fact of the Case:

PIL No.36 of 2010 and Writ Petition No.224 of 2011 were filed raising concerns regarding the failure of the Mumbai Municipal Corporation to take action against illegal hawking. The Petitioners in PIL No.36 of 2010 sought the removal of stalls and various other reliefs, while the Petitioners in Writ Petition No.224 of 2011 sought a direction to the Municipal Corporation to remove stalls put up by hawkers and to restrain the Municipal Corporation from granting any license/ permission to the hawkers to put up stalls and carry out business on the footpath of the said road.

Finding of the Court:

The Court held that the Street Vendors Act overrides the Court orders in operation as on 1st May 2014. The Court also held that street vendors who are cooking or preparing food items in a street, lane, side walk, footpath, pavement, public park or any other public place or private area either from a temporary built structure or by moving from place to place are not covered by the definition of street vendor under the Street Vendors Act and consequently such a vendor shall not be entitled to protection under Subsection (3) of Section 3 so long as he is indulging in cooking or preparation of food items.

Issues: 1. Whether the Street Vendors Act overrides the Court orders in operation as on 1st May 2014? 2. Whether street vendors who are cooking or preparing food items in a street, lane, side walk, footpath, pavement, public park or any other public place or private area either from a temporary built structure or by moving from place to place are covered by the definition of street vendor under the Street Vendors Act?

Ratio Decidendi: 1. The Court held that the Street Vendors Act overrides the Court orders in operation as on 1st May 2014, as per Section 33 of the Act, which 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. 2. The Court held that street vendors who are cooking or preparing food items in a street, lane, side walk, footpath, pavement, public park or any other public place or private area either from a temporary built structure or by moving from place to place are not covered by the definition of street vendor under the Street Vendors Act, as per clause (l) of Section 2 of the Act, which defines street vendor as 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.

Final Decision: The Court disposed of the Petitions by passing the following order: (i) The Court held that with effect from 1st 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 1st 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 Subsection (3) of Section 3 thereof. (ii) The Court directed 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 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. (iii) The Court directed 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 Subsection (1) of Section 38 of the Street Vendors Act; (b) Framing of the Rules in accordance with Section 36 of the Street Vendors Act; (c) Constitution of Town Vending Committees in each local authority; (iv) The Court directed 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 constituted for the said local authority. (v) The Court directed the Mumbai Municipal Corporation to take steps for implementation of order dated 21st January, 2002 in Writ Petition No.1799 of 2001 immediately on expiry of a period of two months from today. (vi) The Court directed the Registrar (Judicial) to communicate the direction to dispose of the suits listed in paragraph 51 above pending in the City Civil Court at Dindoshi as expeditiously as possible and in any event within a period of one year from to the concerned Court.