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Gujarat High Court
Judgename :B.K.MEHTA, G.T.NANAVATI
GULAMALI GULAMNABI SHAIKH - Appellant
Versus
MUNICIPAL COMMISSIONER - Respondent
S.C.A. 2584 of 1984
Decided On : 12/23/1985
Constitution of India , 1950 - Article 39 ,14 ,19 and 21 - Bombay Provincial Municipal Corporation Act ,1949 - Sections 63, 66 ,230 , 231 and 314 - Petitioners are filed by and themselves while remaining petitions have been filed by the Associations representing their members who are either Lariwalas or Gallawalas or Patharanawalas - They are either from the city - Gallawalas are persons who have put up Gallas i. e. cabins or stalls for selling their goods or articles. Lariwalas sell their goods or articles by keeping them in their laries i. e. hand-carts with four wheels - Patharnawalas sit on the ground and spread their goods or articles in their front for selling them - Except the petitioner in Special Civil Application No who has put up his Galla in a plot belonging - Petitions is that they are poor persons and earn their livelihood by selling petty articles useful to the general public - As they are poor they cannot afford to have shops and out of economic compulsion and/or necessity they are required to occupy parts of public streets or roads and mostly foot-paths only - They have to be in those localities and places where people are likely to collect or go for purchasing their requirements - For various reasons they cannot go on moving from place to place and they have to keep themselves stationary at fixed places - Respondent Corporations give them hawkers licences and therefore they are entitled to keep their Laries and Gallas stationary so long as they do not cause real and substantial encroachments or obstructions to pedestrians and vehicular traffic - It is also their case that the municipal and police authorities remove their Laries or Gallas together with their goods in an arbitrary manner and so long as suitable rules regulating their powers and prescribing reasonable procedure are framed their actions should be regarded as violative of Article 14 of the Constitution - It may be stated that some of the points taken by the hawkers of Ahmedabad have not been taken by the hawkers – Held, Municipal Corporation is not adequate and no proper steps are taken for implementing the same - Petitioners have made only general and vague allegations in this behalf and in view of has been stated in the reply affidavit Sled by respondent Corporation it is not possible for us to say that it has not taken any steps for implementing the said scheme. Surat Municipal Corporation has also framed a scheme pursuant to directions given by this Court in Special Civil Application No - But neither the Corporation nor the hawkers are sated with it Baroda Municipal Corporation has also taken some Steps but it cannot be said that it has framed a where such can be regarded as proper and adequate - Respondent Corporations are directed to evolve scheme with such modifications as may be necessary having regard to over-all local conditions in the area under the jurisdiction of respective respondent municipal corporation on the municipal of scheme as modified and approved by Supreme Court in Bombay Municipal Corporation (1985) 3 S. C. C. 528 - Respondent Corporations are directed to frame of the scheme within three months from dated of the receipt of writ from this Court and gradually implement the same within the time-limit that may be specified by Corporations - Petitioners shall be at liberty to move the respective Corporation for some interim protection till scheme is framed and implemented by the Corporation and Corporation shall decide applications on the merits of each case - It will be open to it to take any other action permissible under the law - Rule issued in the said petition is made absolute accordingly with no order as to cost - Learned Advocates for the petitioner make an oral application that operation of this order be stayed for a period of one week so as to enable petitioners to go to Supreme Court and obtain appropriate interim relies in the matter - There-fore direct that operation of this order be stayed for one week so as to enable petitioners to move Supreme Court for appropriate orders – Order accordingly.
( 1 ) THESE petitioners involve common questions of law and facts and were heard together at the request of the learned advocates for both the sides. They are disposed of by this common judgment.
( 2 ) SOME of these petitioners are filed by Lariwalas Gallawalas and Patharanawalas themselves; while remaining petitions have been filed by the Associations representing their members who are either Lariwalas or Gallawalas or Patharanawalas. They are either from the city of Ahmedabad or Baroda or Surat. Gallawalas are persons who have put up Gallas i. e. cabins or stalls for selling their goods or articles. Lariwalas sell their goods or articles by keeping them in their laries i. e. hand-carts with four wheels. Patharnawalas sit on the ground and spread their goods or articles in their front for selling them. All these Lariwalas Gallawalas and Patharnawalas (who will be hereafter collectively referred to as the hawkers for brevitys sake) except the petitioner in Special Civil Application No. 2194 of 1982 who has put up his Galla in a plot belonging to the Ahmedabad Municipal Corporation occupy parts of public streets or roads including foot-paths. The municipal and/or police authorities often remove their Laries and Gallas or Patharanas together with the goods or articles contained therein on the ground that they cause encroachments over public streets and obstructions to the pedestrians and vehicular traffic. The petitioners have therefore filed these petitions for a declaration that the respondents have no power or authority to remove and take away their Laries or Gallas or the goods and that Sections 230 and 231 of the Bombay Provincial Municipal Corporation Act 1949 (hereafter referred to as the B. P. M. C. Act) authorising the municipal officers to take such an action are violative of their fundamental right guaranteed by Article 19 (1) (g) of the Constitution. They have also prayed for a permanent injunction restraining the respondents from acting in that manner.
( 3 ) THE case of the petitioners as it appears from the petitions is that they are poor persons and earn their livelihood by selling petty articles useful to the general public. As they are poor they cannot afford to have shops; and out of economic compulsion and/or necessity they are required to occupy parts of public streets or roads and mostly foot-paths only. They have to be in those localities and places where people are likely to collect or go for purchasing their requirements. For various reasons they cannot go on moving from place to place and they have to keep themselves stationary at fixed places. Under these circumstances removal of their Laries Gallas or goods results into deprivation of their means of livelihood; and thus their fundamental rights guaranteed by Articles 19 (1) (g) and 21 of the Constitution are violated. It is also their case that it is an obligatory duty of the respondent Corporations to make reasonable and adequate positions for construction and maintenance of public markets. It is also the duty of the State to secure to its citizens right to an adequate means of livelihood. As the State and the respondent Corporations have failed to provide adequate market places they have no right or authority to remove their Gallas or Laries or goods and therefore they should be restrained from doing so till a reasonable and adequate provision is 619 made in that behalf. It is also their case that the respondent Corporations give them hawkers licences and therefore they are entitled to keep their Laries and Gallas stationary so long as they do not cause real and substantial encroachments or obstructions to the pedestrians and vehicular traffic. It is also their case that the municipal and police authorities remove their Laries or Gallas together with their goods in an arbitrary manner; and so long as suitable rules regulating their powers and prescribing reasonable procedure are framed their actions should be regarded as violative
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