JUDGMENT
D.G. Deshpande, J.
1. Heard.
2. This is an appeal by the Hawkers Merchants Welfare Association (hereinafter referred to as the ‘plaintiffs’) against the Bombay Municipal Corporation. The appellants have challenged the impugned order in Notice of Motion No. 3210 of 1999 in L.C. Suit No. 3687 of 1999 dated 1.2.2000 by which the notice of motion of the plaintiffs was dismissed and ad interim granted on 5.7.1999 was vacated.
3. In the notice of motion plaintiffs had prayed “that pending the hearing and final disposal of the plaint, the defendants, their servants…be restrained by a temporary order and injunction from preventing the members of the 1st Plaintiff from hawking, interfering with the carrying on their respective business in any manner whatsoever at F-North Ward, Mumbai 400 022.” It is the case of the plaintiffs that they were carrying on their business on Flank Road since about 20 years before the filing of the suit and in any case Bombay Municipal Corporation has issued part is to the members of the plaintiffs from 1988 but Bombay Municipal Corporation issued notice under Section 314 of B.M.C. Act for summary removal within 24 hours of the shops and stalls of the plaintiffs members and therefore the suit was filed.
4. It was contended by the counsel for the plaintiffs/appellants that if notice under Section 314 of B.M.C. Act is given then as laid down by the Full Bench in Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. (1985) 3 SCC 545 : AIR 1986 SC 180 : 1985 Supp. (2) S.C.R. 57. It was obligatory on the Bombay Municipal Corporation to give hearing to the petitioners and then pass an order which was found fit in the circumstances. He also contended that if the members of the plaintiffs were allowed to carry on business for a considerable time, then there was no emergency to call upon the plaintiffs members to remove their articles within 24 hours, and therefore according to the counsel for the plaintiffs the notice was direct contradiction to the ratio laid down in Olga Tellis.
5. On the other hand it was contended by Mr. Reis that the ratio laid down in Olga Tellis would not be applicable to the plaintiffs because in Olga Tellis, the Supreme Court was concerned with the right of residence of the pavement dwellers whereas in the instant case it was the question of illegally carrying on business on pavements. Mr. Reis relied upon the judgment of the Supreme Court in Bombay Hawkers Union and Ors. v. Bombay Municipal Corporation and Ors. AIR 1985 SC 1206 : 1985 (3) SCC 528 : 1985 (2) Scale 59 : 1985 (2) C.C.C. 277. Mr. Reis contended that these judgments require the BMC to form a hawking and non-hawking zones for accommodating the hawkers and regulating or regularisation of their business places, business timings and other business conditions. The B.M.C. therefore sought the help of Tata Institute of Fundamental Research (T.I.F.R.) to collect necessary factual data for implementing the judgment of the Supreme Court in Bombay Hawkers Union, and the T.l.F.R. has reported now to the B.M.C. that there are about more than 2,50,000 hawkers in Bombay, out of which 50.000 are with licence and Ors. without licence. Mr. Reis pointed out that as per the aforesaid judgment of the Supreme Court those having licences are to be accommodated first and considering the area constraints of Bombay City, it will be difficult for the B.M.C. to accommodate even the 50,000 licensed hawkers in the hawking and non-hawking zones whatever may be and therefore according to him the question of accommodating those hawkers who do not have licence cannot arise at present and consequently no protection can be given to the non licensed hawkers. So far as the plaintiffs are concerned, Mr. Reis contended that the portion on Flank Road on which the members of the plaintiffs are carrying on business is in front of Shanmukhanand Hall which is anon hawking zone and even on that court plaintiffs cannot claim any protection from the Court. So far as pavtit issued by the BMC are concerned, Mr. Reis contended that the pavtis mean ‘refuge removal charges’ and they do not confer any right on the plaintiffs. Mr. Reis also relied upon certain unreported judgments on similar issues and contended that appeal was not liable to be admitted and the plaintiffs-appellants were not entitled for any stay.
6. The judgment in Olga Tellis was delivered by the Supreme Court on 10.7.1985 and judgment in Bombay Hawkers Union case was delivered on 3.7.1985. Olga Tellis judgment was delivered by the Full Bench and it was delivered by Chief Justice Chandrachud and in Bombay Hawkers Union case it was a Division Bench and the judgment was delivered by Chief Justice Chandrachud. It will be clear that both these judgments are delivered within a period of one week. In Olga Tellis case the Supreme Court was concerned with the right of pavement dwellers in Bombay. The opening words in the judgment are “These writ petitions portray the plight of lacs of persons who live on pavements and in slums in the city of Bombay.” Whereas Bombay Hawkers Union case was only relating to the rights of hawkers of pavements. Even while considering the right of pavement dwellers, it was observed by Chief Justice Chandrachud in para 43 of the judgment in Olga Tellis that footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out. It was also further observed that under Clause (1) of Section 61 of the B.M.C. Act the Corporation was under obligation to remove obstructions upon public streets and other public places.
7. It will be clear that Olga Tellis was only concerned with the right of residence on the pavements, whereas Bombay Hawkers Union case is wholly regarding the right of the hawkers to carry on their business on public streets.
8. When two cases of the Supreme Court are therefore distinguishable on facts and those two cases cover separate and specific arena, then Olga Tellis cannot be pressed into service by the appellants to their use or advantage and consequently the ratio laid down in Bombay Hawkers Union case has to be taken into consideration.
9. It is pertinent to note that in Olga Tellis case validity of Section 314 of the B.M.C. Act was challenged. The Supreme Court did not strike down the said section but laid down that the challenge was directed principally at the procedure prescribed by Section 314 of B.M.C. Act which provides by Clause (1) that the Commissioner may, without notice, take steps for the removal of encroachments in or upon any street, channel, drains etc. The Apex Court held that “the ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken.”
It is in this context, namely the right of pavement dwellers for residence being prime and only issue in Olga Tellis, the Apex Court held that no person has right to encroach, by erecting a structure or otherwise, on footpaths, pavements of any other place reserved or earmarked for public purpose; that the provision contained in Section 314 of the B.M.C. Act is not an unreasonable circumstances. So far as Section 314 is concerned, the Apex Court laid down that this section confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. But that discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable, Reading Section 314 as containing a command not to issue notice before the removal of an encroachment will make the law invalid.
10. It is pertinent to note that in Bombay Hawkers Union case also the petitioners has challenged the validity of Sections 313, 313A, 314(3) and 497 of the B.M.C. Act. However, the Apex Court after considering all the serious problems involved in the case held that there is no substance in that challenge because the right conferred by Article 19(1)(g) of the Constitution to carry on any trade or business is subject to the provisions of Clause (6) of that Article, which provides that nothing in Sub-clause (g) of Article 19(1) shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. The Court also held that the aforesaid provisions of the B.M.C. Act are in the nature of reasonable restrictions, in the interests of the general public, on the exercise of the right of hawkers to carry on their trade or business.
11. Further, in the Bombay Hawkers Union case the Supreme Court has found that only solution to the hawkers problem and the problems of the citizens and pedestrians etc. was to create hawking and non hawking zones in the city of Bombay and then after creation of these hawking and non hawking zones to allow hawkers to carry on their business on the strength of their licence. From the judgment it is clear that right to carry on business in hawking zone or non hawking zone was only of the persons having licence with them.
12. When it is a fact that city of Bombay has everything in abundance except “space” then restrictions are required to be imposed on the persons carrying on their business on streets or pavements. The only way to impose this restriction is to distinguish between those having licence and those having no licence. If what is stated by Mr. Reis is true that T.I.F.R. has in its survey reported that there are more than 2,50,000 hawkers in Bombay, out of which 50,000 or so are having licence, then the first problem will be of accommodating licenced hawkers and while doing so those doing their business without licence will have to wait in queue without claiming any right whatsoever, though they can, as laid down by the Bombay Hawkers Union case apply for issuance of licence as per conditions (c) and (d) of the said judgment in para 11. Therefore, if at all any right to carry on business on pavtis is recognised then it has to be subject to the formation of hawking and non hawking zones and also subject to possession of licence from the Bombay Municipal Corporation. Others having no licence cannot claim any right for inclusion in hawking or non hawking until and unless all those having licences are accommodated on the limited space available in Bombay.
13. Admittedly, the plaintiffs – appellants or its members have no licence. It may be that they are doing their business since long or since 1988 and that since 1988 they have got pavtis with them but those pavtis are only “refuge removal charges” and do not confer any right upon the members of the appellants to carry on business. Secondly, as pointed out by Mr. Reis the part of Flank Road where the members of the plaintiffs-appellants are doing their business is in front of Shanmukbanand Hall and since it is declared as non hawking zone, appellants have no right in that regard also.
14. If the Court accepts the case of the hawkers, those members of the plaintiffs – appellants who have no licence with them and even then grant injunction or ad interim orders, then in my opinion it will be against the judgment of the Supreme Court in Bombay Hawkers Union case. Because any such order will create obstacles in the way of the Corporation in implementing the judgment of the Supreme Court regarding creation of hawking and non hawking zone and accommodating licence holders.
15. Mr. Reis has also pointed out the following unreported judgments:
(1) Smt, Ranubai Madhav Naik and Ors. v. The Municipal Corporation of Greater Bombay and Anr. Writ Petition Lodging No. 1050/92.
(2) First Appeal Stamp No. 20083 of 1998 with Civil Application Stamp No. 20225 of 1998.
(3) Avinash Tambe and Ors. v. The Municipal Corporation of Greater Mumhai and Ors. Writ Petition No. 1722 of 1998.
(4) Appeal From Order No. 417 of 1999.
Therefore considering those judgments and considering the judgment of the Bombay Hawkers Union, it has to be held that there is no merit in this appeal and no interference is required in the impugned order. Hence, appeal dismissed @ C.A.Ad interim that was granted by the Trial Court stands vacated. Certified copy expedited.
After this order was pronounced, counsel for the appellants prayed for continuation of the ad interim injunction for a period of four weeks. Prayer was opposed by Mr. Reis, counsel for the respondents. Even otherwise from the findings given by me in this order, stay which has effect of creating obstructions in implementation of the judgment of the Supreme Court in Bombay Hawkers Union, should not be granted unless circumstances strongly call for the same. Hence, prayer for stay rejected.