Gainda Ram vs M. C. D. - 2010 Supreme(SC) 963

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(SC) 963

Supreme Court of India
THE HONOURABLE MR. JUSTICE G.S. SINGHVI & THE HONOURABLE MR. JUSTICE ASOK KUMAR GANGULY
Gainda Ram & Others
Versus
M.C.D & Others
W.P. (C) No.1699 of 1987 With I.A. Nos. 2 & 3 in I.A. No. 407 in W.P. (C) No. 1699 of 1987 I.A. Nos. 4 & 5 in I.A. No. 407 in W.P.(C) No. 1699 of 1987 I.A Nos. 6 in I.A. No. 407 in W.P. (C) No. 1699 of 1987 I.A Nos. 7 & 8 in I.A. No. 407 in W.P. (C) No. 1699 of 1987 W.P (C) No. 77 of 2010 I.A. Nos. 211, 212 & 213 in C.A. No. 560 of 1998
Decided On : 08-10-2010

Advocates Appeared: For the Appearing parties:Vijay Hansaria, L.N. Rao, Rakesh Kumar Khanna, Dr. Rashmi Khanna, T.S. Doabia, Sr. Advocates, N.K. Sahoo, H.A. Raichura, Ms. Rani Chhabra, P.I. Jose, Ms. Sneha Kalita, B.K. Mishra, Vivek Kandari, Anupam Mishra, Satyendra Kumar, Ms. Sunita Bhardwaj, Abhay Kumar, Ms. Madhusmita Singh, Tenzing Tsering, Nikhil Goel, Ms. Naveen Goel, A. Venayagam Balan, M.M. Kashyap, Mrs. Kavita Wadia, Surya Kant, Ms. Purnima Jauhari, Prashant Kumar, Ms. Sukhvinder Kaur, Shiv Kumar, Ms. Sunita Sharma, S.W.A. Qadri, Mukesh Verma, P.S. Tomar, Ms. Anil Katiyar, Mrs. Kiran Bhardwaj, Ms. Sushma Suri, M/s. Parekh & Co., Arvind Kr. Sharma, Saurabh Mishra, Goodwill Indeevar, S.C. Patel, Dinesh Kumar Garg, Suresh Chandra Tripathy, T.V. George, Ms. Indira Sawhney, Sanjiv Sen, Praveen Swarup, P. Parmeswaran, Ms. Anuja Chopra, Ms. Indira Unninayar, Prashant Narang, Sanjay Jain, Mrs. N. Annapoorni, Mrs. Gargi Khanna, Mrs. Anil Katiyar, M.P.S. Tomar and Mukesh Verma, Advocates.

Headnote:(a) Constitution of India – Article 19(1)(g) – Hawking on streets is a fundamental right – But subject to reasonable restrictions by law under Article 19(6). (Para 42, 45, 46)
       (1989) 4 SCC 155 – Relied upon
       (b) Constitution of India – Article 19(1)(g) and 19(6) – Fundamental right under Article 19(1)(g) are not absolute – They are subject to reasonable restriction under Article 19(6) – By law and not by executive instructions – Sections 225, 226, 330 and 369 (2) of NDMC Act putting some restrictions – NDMC framing a policy in 2004 and a scheme for vending by hawkers – While provisions of NDMC Act are law under Article 19(6), the 2004 policy and the scheme are not – Bye-laws made u/s 388(1)(D)(5) may have status of subordinate or delegated legislation – However no bye-laws yet made – National Policy on Urban Street Vendors, 2009 seeks to institutionalize a part of the urban street vending through legislation and requires municipal bodies to frame rules – National Capital Territory of Delhi Laws (Special Provisions) Second Act 2009 had provisions for street hawkers but it was applicable only till 2010 – Model Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2009 prima facie recognizes the rights of hawkers and vendors under Article 21 of the Constitution since it seeks to protect their livelihood – These are attempts to regulate the fundamental right of street hawking and street vending by law. (Para 54, 56, 59, 61, 62, 63, 64)
       AIR 1968 SC 133; (1981) 1 SCC 568; (1982) 2 SCC 273; (1985) (2) MCC 89: (1985) 3 SCC 528; (1985) 3 SCC 545; AIR 1954 SC 728; (1989) 1 SCC 101; (1993) 3 SCC 178; (1998) MCC 7: (1998) 2 SCC 727; AIR 1987 SC 748; AIR 1962 SC 1166; AIR 1963 SC 1295 – Referred
       Facts of the case:
       This case deals with the problem of street hawking in Delhi.
       Finding of the Court:
       It is difficult for Supreme Court to tackle this huge problem in the absence of a valid law. Till such time the grievances of the hawkers/vendors may be redressed by the internal dispute redressal mechanisms provided in the schemes.
       Result:
       Appeals disposed of.

Judgment :-

Ganguly, J.

Hawking on the streets of Delhi, whose municipal limits have expanded over the years, has been the subject matter of several proceedings in this Court, Initially in the early sixties, this problem surfaced when this Court, hearing an appeal from a decision dated 4th August, 1966 of the Punjab High Court, Circuit Bench at Delhi, dealt with this question in some detail in the case of Pyare Lal Vs. New Delhi Municipal Committee and another [AIR 1968 SC 133]. In Pyare Lal (supra), sale of cooked food on public streets which was creating the problems of unhygienic conditions came up before this Court in the context of a resolution of the New Delhi Municipal Committee stopping such sale. A three-Judge Bench of this Court held that no person carrying on the aforesaid business of selling cooked food has any fundamental right to carry on street vending particularly in a manner which creates unsanitary and unhygienic conditions in the neighbourhood.

2. However, the controversy did not rest there, nor did the problem of hawking come to an end in view of Pyare Lal's Judgment.

3. Several cases were filed thereafter in different Courts and ultimately the leading decision was rendered in the case of Sodan Singh and others Vs. New Delhi Municipal Committee and others [(1989) 4 SCC 155] by a Constitution Bench of this Court.

4. In Sodan Singh (supra) the petitioners, as hawkers, were carrying on business by squatting on the pavements of Delhi and New Delhi and those squatters alleged that they were allowed by the Municipality to carry on such business on payment of charges described as Tehbazari. As the Municipal Authority subsequently refused to permit them to continue their business, that action of the municipality according to those petitioners, interfered with their fundamental right to carry on business under Articles 19 (1) (g) and 21 of the Constitution of India. The correctness of the decision in Pyare Lal (supra) was also doubted. As such the matter was placed before the Constitution Bench.

5. In Sodan Singh (supra) there was a paradigm shift by this Court on the interpretation of fundamental right of a hawker or a squatter under Article 19 (1) (g) to carry on business. Various judgment of this Court were considered and in paragraph 18 (at page 169 of SCC) Justice Sharma (as His Lordship then was) delivering the majority judgment expressly held by referring to Payre Lal (supra) that, "we do not agree with these observations." However, His Lordship was quick to add that in the facts considered in Pyare Lal (supra) the decision was correct.

6. In our judgment, the decision in Pyare Lal (Supra) was thus distinguished and confined to the facts of that case.

7. However, this Court in Sodan Singh (supra) took a very broad view of a citizens right under Article 19 (1) (g) following its decision in the case of Fertilizer Corporation Kamgar Union (Regd.) Sindri & others vs. Union of India and others [(1981) 1 SCC 568] and also the decision of this Court in K. Rajendran & others vs. State of Tamil Nadu & others [(1982) 2 SCC 273] and the decision of this Court in Bombay Hawkers' Union & others versus Bombay Municipal Corporation & others [(1985) (2) MCC 89]: (1985) 3 SCC 528 and the Constitution Bench decision of this Court in the case of Olga Tellis & ors. vs. Bombay Municipal Corporation & others [(1985) 3 SCC 545].

8. This Court in Sodan Singh (supra) came to the conclusion that the hawkers and squatters have a fundamental right to carry on business on the public street, but the same should be regulated. It was further held by Justice Sharma (as His Lordship then was) that the right of a hawker to transact business, while going from place to place, is recognized in India for a long period. Of course such right is subject to regulation since public streets demand its use by the public and the streets are meant to facilitate some citizens to carry on any private business. However, such right of hawking for carrying on business

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2010 Supreme(SC) 963

Cases Referred (13)