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IN THE HIGH COURT OF BOMBAY
S.C. DHARMADHIKARI, G.S. PATEL, JJ.
Venkat A. Bhasha Boina - Appellant
Versus
Mumbai Municipal Corporation - Respondent
Writ Petition (Lodging) No. 3962 of 2018
Decided On : 11-10-2019
MUNICIPAL CORPORATION OF GREATER MUMBAI - STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) ACT, 2014 - SECTION 3(3) - WRIT PETITION - ARTICLE 226 OF THE CONSTITUTION OF INDIA - BOMBAY MUNICIPAL CORPORATION ACT, 1888 - SECTION 314 - PUBLIC INTEREST - HAWKING ZONE - NO HAWKING ZONE - PUBLIC SAFETY - PUBLIC GOOD - RIGHT TO CARRY ON BUSINESS - ARTICLE 14 AND 21 OF THE CONSTITUTION OF INDIA - LARGER PUBLIC INTEREST - PLANNING AUTHORITY - ROAD WIDENING - RAILWAY STATION - EDUCATIONAL INSTITUTION - RELIGIOUS STRUCTURE - CONGESTED ROAD - BUS STOP - FOOTPATH - MARKET - PERSONAL HEARING - RELOCATION - ALTERNATE PREMISES - COMPENSATION - STALLS - SHOPS - LICENCE - SURVEY - PARLIAMENTARY STATUTE - JUDGMENTS AND ORDERS OF THIS COURT - DIRECTIONS - AFFIDAVITS - SKETCH MAP - PHOTOGRAPHS - COMMUNICATION - RIGHT TO INFORMATION ACT, 2005 - CIRCULAR - TAX ASSESSMENT BILLS - PUBLIC NUISANCE - OBSTRUCTION - INCONVENIENCE - HARASSMENT - HARSHNESS - HARDSHIP - WRIT JURISDICTION - PUBLIC BODY - OFFICIAL RECORDS - LARGER PUBLIC INTEREST - EQUITABLE AND DISCRETIONARY JURISDICTION - STAY OF ORDER.
Fact of the Case:
The petitioners, who are hawkers, challenged the action of the Mumbai Municipal Corporation (MMC) to remove their stalls from a busy road, claiming that the stalls were not causing any obstruction or inconvenience to the public. The MMC, on the other hand, contended that the stalls were located in a no-hawking zone and were causing obstruction to pedestrians and vehicular traffic. The MMC also stated that the petitioners had been offered alternate accommodation in a nearby market, but they had refused to accept it.
Finding of the Court:
The Court held that the MMC's action was justified as the stalls were located in a no-hawking zone and were causing obstruction to pedestrians and vehicular traffic. The Court also noted that the petitioners had been offered alternate accommodation in a nearby market, but they had refused to accept it. The Court further held that the petitioners' right to carry on business was not absolute and that it had to be balanced against the public interest. In this case, the public interest outweighed the petitioners' right to carry on business from the existing location.
Issues: 1. Whether the MMC's action to remove the petitioners' stalls was justified? 2. Whether the petitioners' right to carry on business was absolute? 3. Whether the public interest outweighed the petitioners' right to carry on business from the existing location?
Ratio Decidendi: 1. The MMC's action to remove the petitioners' stalls was justified as the stalls were located in a no-hawking zone and were causing obstruction to pedestrians and vehicular traffic. 2. The petitioners' right to carry on business was not absolute and that it had to be balanced against the public interest. 3. In this case, the public interest outweighed the petitioners' right to carry on business from the existing location.
Final Decision: The writ petition was dismissed.
JUDGMENT :
S.C. Dharmadhikari, J.
By this writ petition under Article 226 of the Constitution of India, the petitioners are challenging the action of the Mumbai Municipal Corporation.
2. The MMC has taken a firm stand that the stalls of certain vendors affecting the smooth flow of traffic at a busy road need to be removed.
3. A detailed order has been passed, copy of which is at page 162 (Exhibit Q-1) of the paper-book, invoking Section 314 of The Mumbai Municipal Corporation Act, 1888 ("MMC Act"). This order reads as under:-
"MUNICIPAL CORPORATION OF GREATER MUMBAI
No.ACS/OD/536/LICENCE dtd. 14.11.2018
Office of Assistant Commissioner
S Ward Licence Department,
Room No.301, 3rd Floor,
S Ward Office Building,
L.B.S. Road, Near Mangatram
Petrol Pump, Bhandup (west),
Mumbai - 400 078.
To,
Mr. Ramchandra Tukaram Waghmare
Squatter, Stall Licence No.795303331
Sant Shiromani Namdeo Maharaj Marg,
i.e. Station Road, Bhandup (west),
Mumbai - 400 078.
Sub: Hearing arranged as per Hon'ble High Court Bombay's orders in Writ Petition No.3149/2018 dt. 05-10-2018
Ref: (1) Allotments Letter U/No.AC/MKT/-/ AEM dt. - issued by A.C. (Market) of M.C.G.M. or JPD/R&R/MUIP/43 dt. 25.01.2008 issued by M.M.R.D.A.
(2) Letter for third hearing U/No.ACS/ OD/170/Lic. dt. 28.08.2018
Hon'ble High Court Bombay in writ petition no.3149/2018 on 05.10.2018 has passed an order to issue fresh notice for hearing accordingly a fresh notice is issued under no.ACS/OD/430/Licence dt. 16.10.2018 with the directions issued by the division bench of Hon'ble High Court Bombay (Coram: B.R. Gavai and M.S. Karnik JJ.) in writ petition no.652 of 2017. Reply to the said notice is filed through M/s. M.P. Vashi and Associates to the said fresh notice on 29.10.2018.
As per Hon'ble High Court order passed on 05.10.2018 and direction given by the Hon'ble Court a hearing was arranged before Asst. Commissioner 'S' Ward on 02.11.2018 when Advocate Mr. Makarand M. Kale representative of M/s. M.P. Vashi and Associate is present and submitted grievance as under that:-
(1) under what provision of law and Act the notice was issued has not been mentioned in the said notice. Further if it has issued under section 314 of M.M.C. ACT 1888 the same can be issued by Municipal Commissioner only.
(2) The Licencee were issued licence under section 313 of said Municipal Act and paying rent for the same.
(3) Copy of judgment of Writ Petition No.224 of 2011 is attached from page 13 to 38 of representation submitted at the time of hearing and as per point no.1 of said order, licencee is protected and shall not be evicted and relocated.
(4) Please refer Page 39 of written submission which is the starting of copy of judgment of Azad Hawkers Union and other, the relevant point is at para 46 in view of judgment of division bench of this court in Vile Parle Kelvani Mandal (Supra), all such vendors existing on 01.05.2014, are entitled to protection against eviction.
(5) Please refer Page 80 of written submission which is the copy of order of judgment of Azads Hawkers Union and others point no.XII operative Para, State that - no hawking would be permitted within 100 Meters from any place of Worship, Holy Shine, Educational Institutions and Hospitals or within 150 Meters from any Municipal or other Markets or from any Railway Station. However, no survey is conducted regarding verifying the distance in respect of Restricted Zone.
(6) Please consider the point of various Judgment Page 82, 87, 93 Para II of written submission.
(7) Please refer Page 96 of written submission where in it is stated that - Advocate Mr Makarand Kale was present for hearing on 27.09.2016 but concern officer was not available to take hearing.
(8) Copy of photograph of one of the gala's is attached at page 99 of written submission which clearly shows that the structure is not suitable for carrying on the business smoothly.
(9) As per statement para 5 licensee stall falls in Hawking Zone hence the notice given is bad and illegal. Further "The protection of Livelihood and Re
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