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High Court Of Calcutta
BHAGAWATI PRASAD BANERJEE, VIDYA NAND
SOUTH CALCUTTA HAWKERS ASSOCIATION - Appellant
Versus
GOVERNMENT OF WEST BENGAL - Respondent
F. M. A. T. 4119 Of 1996
Decided On : 12/20/1996
HAWKER'S RIGHT TO TRADE - PUBLIC PROPERTY - SECTION 372 OF THE CALCUTTA MUNICIPAL CORPORATION ACT - ARTICLE 19 (1) (G) OF THE CONSTITUTION OF INDIA - ARTICLE 19 (6) OF THE CONSTITUTION OF INDIA - URBAN LAND CEILING ACT - CALCUTTA MUNICIPAL CORPORATION ACT, 1980: - Hawkers have no right to construct or build any structure on the pavement and/or on the roads. - Stalls and structures which have been constructed should be removed after giving 24 hours notice to the stall holders. - Hawkers have fundamental right to carry on trade or business of their choice but not to do so on a particular spot or place. - Municipality as a trustee on behalf of the public is entitled to impose limitations on the character and extent of the user. - Public has a right to pass along the highway for legitimate travel and should not create unreasonable obstruction. - Right to carry on trade or business on street pavements, if properly regulated, cannot be denied. - State and Municipality should designate streets and earmark places for street trading. - State should take steps to prevent movement of people from rural to urban areas. - State should formulate schemes for rehabilitation of hawkers. - List of hawkers evicted or to be evicted should be prepared and hanged in a conspicuous place. - State Government may set up a committee to prepare and finalize the list of hawkers.
Fact of the Case:
Hawkers in Calcutta had been allowed to squat and make unauthorized constructions on footpaths and roads. A writ petition was filed by some hawkers claiming rights to trade and make temporary sheds on pavements. The High Court held that hawkers have no right to squat and make temporary sheds on pavements or streets. The Supreme Court also held that hawkers have no fundamental right to carry on trade on a particular spot or place. The State Government and Municipal authorities took steps to evict hawkers from footpaths and roads.
Finding of the Court:
The Court held that hawkers have no right to construct or build any structure on the pavement and/or on the roads. Stalls and structures which have been constructed should be removed after giving 24 hours notice to the stall holders. Hawkers have fundamental right to carry on trade or business of their choice but not to do so on a particular spot or place. Municipality as a trustee on behalf of the public is entitled to impose limitations on the character and extent of the user. Public has a right to pass along the highway for legitimate travel and should not create unreasonable obstruction. Right to carry on trade or business on street pavements, if properly regulated, cannot be denied. State and Municipality should designate streets and earmark places for street trading. State should take steps to prevent movement of people from rural to urban areas. State should formulate schemes for rehabilitation of hawkers. List of hawkers evicted or to be evicted should be prepared and hanged in a conspicuous place. State Government may set up a committee to prepare and finalize the list of hawkers.
Issues: 1. Whether hawkers have a right to construct or build any structure on the pavement and/or on the roads? 2. Whether hawkers have fundamental right to carry on trade or business of their choice on a particular spot or place? 3. Whether municipality as a trustee on behalf of the public is entitled to impose limitations on the character and extent of the user? 4. Whether public has a right to pass along the highway for legitimate travel and should not create unreasonable obstruction? 5. Whether right to carry on trade or business on street pavements, if properly regulated, can be denied? 6. Whether State and Municipality should designate streets and earmark places for street trading? 7. Whether State should take steps to prevent movement of people from rural to urban areas? 8. Whether State should formulate schemes for rehabilitation of hawkers? 9. Whether list of hawkers evicted or to be evicted should be prepared and hanged in a conspicuous place? 10. Whether State Government may set up a committee to prepare and finalize the list of hawkers?
Ratio Decidendi: The Court relied on the following principles: - Hawkers have no right to construct or build any structure on the pavement and/or on the roads. - Stalls and structures which have been constructed should be removed after giving 24 hours notice to the stall holders. - Hawkers have fundamental right to carry on trade or business of their choice but not to do so on a particular spot or place. - Municipality as a trustee on behalf of the public is entitled to impose limitations on the character and extent of the user. - Public has a right to pass along the highway for legitimate travel and should not create unreasonable obstruction. - Right to carry on trade or business on street pavements, if properly regulated, cannot be denied. - State and Municipality should designate streets and earmark places for street trading. - State should take steps to prevent movement of people from rural to urban areas. - State should formulate schemes for rehabilitation of hawkers. - List of hawkers evicted or to be evicted should be prepared and hanged in a conspicuous place. - State Government may set up a committee to prepare and finalize the list of hawkers.
Final Decision: The Court disposed of the application for stay and the appeal treating the same as on day's list.
( 1 ) THIS is an appeal along with an application for stay and/or interim order against the judgment and order dated 3rd December, 1996 passed by the learned trial Judge in C. O. No. 18375 (W) of 1996 by the writ petitioners/appellants, whose writ petition was rejected summarily as similar writ petition has been disposed of by another learned single Judge of this Court in respect of writ petition filed by some other hawkers' Association which was disposed of by V. K. Gupta, J. of this Hon'ble Court.
( 2 ) THE facts are not in dispute that the City of Calcutta for several years, the State Government and the Municipal authorities have allowed hawkers not only to squat, but also to make unauthorised and illegal construction on the footpath and roads in gross violation of all Rules and Regulations and that several Hawkers Unions have been formed under the umbrella of some political parties to protect rights and interests of those hawkers. In 1985 a writ petition was filed by some of the hawkers in Howrah Station area claiming rights that not only they have squatted but to make temporary sheds and structures on the pavements as because they were apprehending threats against them and moved a writ petition which was disposed of by one of us (B. P. Banerjee, J.) in Gopal Basak v. State of West Bengal, reported in AIR 1986 Cal 182. In that case the contentions of the hawkers were that they have right to carry on trade of hawker in the manner they are doing. Considering the meaning of the word 'hawker' in the dictionary and considering the legal aspect of the matter it was held that the hawkers have no right to squat and to make temporary sheds on the pavements and/or on streets even though they were granted by licence by the Municipal authority to peddle the goods standing on the side of the road in the gutter. It was observed in that case that it was a duty of the Municipal authority not to allow such illegal and unauthorised construction on public roads which are property of public in respect of which the Municipality was a trustee. It was also observed that the paramount consideration of Municipal authorities is to see the public have fare access and public hygiene and public safety are maintained, but unfortunately in spite of the said judgment though passed sitting singly by one of us, the hawkers in the City of Calcutta and Howrah were allowed to occupy footpath and roads in a large number and brought about a situation which the Government and the Municipal authority found alarming and consequently it appears that 10 years after the judgment of this Court the State Government and the Municipal authorities had taken up a job of cleaning the footpath with the help of the police and Municipal employees and with buldozer to remove the unauthorised construction and to make the city free of hawkers 6 after the decision was delivered in Gopal Basak v. State of West Bengal, reported in AIR 1986 Cal 182, in which the judgment delivered in 2nd April, 1985. The Supreme Court had occasion to consider the question of encroachment of footpaths by pavement dwellers in Olga Tellis v. Municipal Corporation of Greater Bombay, AIR 1986 SC 180. Thereafter several judgments were pronounced by the Supreme Court on this aspect of the matter.
( 3 ) IN this appeal Mr. Ajit Kumar Panja, learned counsel, appearing on behalf of the petitioners/appellants submitted that for the purpose of tackling the problem of unauthorities occupation of public land and thoroughfares by hawkers, the West Bengal State Assembly (Ninth Legislative Assembly) constituted a committee of petitions (sic ). Such committee was constituted in accordance with the provisions of rule of Chapter XXV of the Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly. The said committee was constituted with 15 members from all political parties and the committee after consideration of the matter and after examination of several
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