{"id":174759,"date":"1985-07-03T00:00:00","date_gmt":"1985-07-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bombay-hawkers-union-and-ors-vs-bombay-municipal-corporation-and-on-3-july-1985"},"modified":"2015-11-01T18:36:20","modified_gmt":"2015-11-01T13:06:20","slug":"bombay-hawkers-union-and-ors-vs-bombay-municipal-corporation-and-on-3-july-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bombay-hawkers-union-and-ors-vs-bombay-municipal-corporation-and-on-3-july-1985","title":{"rendered":"Bombay Hawkers’ Union And Ors vs Bombay Municipal Corporation And … on 3 July, 1985"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bombay Hawkers’ Union And Ors vs Bombay Municipal Corporation And … on 3 July, 1985<\/div>\n
Equivalent citations: 1985 AIR 1206, \t\t 1985 SCR Supl. (1) 849<\/div>\n
Author: Y Chandrachud<\/div>\n
Bench: Chandrachud, Y.V. ((Cj)<\/div>\n
           PETITIONER:\nBOMBAY HAWKERS' UNION AND ORS.\n\n\tVs.\n\nRESPONDENT:\nBOMBAY MUNICIPAL CORPORATION AND ORS.\n\nDATE OF JUDGMENT03\/07\/1985\n\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nSEN, A.P. (J)\n\nCITATION:\n 1985 AIR 1206\t\t  1985 SCR  Supl. (1) 849\n 1985 SCC  (3) 528\t  1985 SCALE  (2)59\n CITATOR INFO :\n F\t    1989 SC  38\t (13,14)\n D\t    1989 SC1988\t (20)\n R\t    1992 SC1153\t (1)\n\n\nACT:\n     Bombay Municipal  Corporation Act,\t 1888 sections\t313,\n313-A, 314(3)  and 497,\t whether violative  of Article 19(1)\n(g) of the Constitution-Right to carry on trade, business or\ncalling by hawkers on footpaths and on public streets-Merits\nand feasibility\t of a scheme for the licensing of hawkers in\nGreater Bombay\tby creating  hawking zones  by the Municipal\nCommissioner.  dated  23  November,  1983-Modalities  to  be\nadopted for the purpose of hawking and non-hawking zones.\n\n\n\nHEADNOTE:\n     There are about 1,50,000 hawkers in the city of Bombay,\none sixth  of them  being women.  Broadly, there  are  three\ntypes of  hawkers-those who  have four-wheeled\tcarts, those\nsquat on  the streets  numbering about 1,20,000 and the rest\nwho have  stalls to  enable them  to stand  and\t sell  their\nwares. They  sell almost  everything  under  the  sun,\tfrom\nhairpins to hot food and vegetables to vides cassettes. They\nhawk their  wares standing  or squatting  on public streets,\nwhich constitutes  a serious impediment to the free movement\nof pedestrian  and vehicle a traffic. Some of the streets in\nBombay are  so incredibly  flooded with\t merchandise sold by\nhawkers that it is impossible for the pedestrians to walk on\nthose streets  The Bombay  Municipal  Corporation  has\tbeen\nmaking Herculean  efforts to  clear the streets of these and\nother obstructions  but, those efforts have met with intense\nopposition from several quarters.\n     The Bombay\t Hawker's Union,  a trade  which has a large\nnumber of  hawkers on its membership roll and which has been\nunsuccessfully negotiating  with the  Municipal\t authorities\nfor the\t creation  of  a  hawker's  zone  and  for  granting\nadequate number\t of licences  to hawkers  to enable  them to\ncarry on  their trade and business, along with petitioner No\n2  the\t President  of\t the  Bombay   Hawker's\t Union\t and\nincidentally a\tcorporator has challenged the Constitutional\nvalidity of  the provisions  of sections  313, 313-A, 314(3)\nand 497 of the Bombay Municipal Corporation Act, 1888 on the\nground that  they confer upon the respondents unguided power\nto refuse  to grant  or renew  licences for  hawking and  to\nremove\tthe  goods  without  affording\tto  the\t hawkers  an\nopportunity to\tbe heard. There writ petitions were filed by\nthose who  carry on  the business of hawking contending that\nthey have  a fundamental  right\t to  carry  on\ttheir  trade\nbusiness  or   calling.\t with\twhich  the  respondents\t are\nunlawfully interfering\tby arbitrarily\trefusing to grant or\nrenew licences\tfor hawking, which renders them liable to be\nremoved along  with their  goods, from\tplaces where they to\ntheir business.\n850\nDuring\tthe   pendency\tof   the  writ\t petition,  on\t the\nintervention  of   the\tCourt,\t the  Municipal\t Corporation\nformulated a  scheme for the licensing of hawkers in Greater\nBombay by  creating hawking  zones. Preferring to adopt \"non\nliquet\"\t as   to  the  validity\t of  the  challenge  by\t the\npetitioners to\tcertain provisions  of the  Bombay Municipal\nCorporation  Act,   the\t Court\tconsidered  the\t merits\t and\nfeasibility of\tthe scheme  and suggested  modalities to  be\nadopted by  the Corporation  in so  far as  hawking and non-\nhawking zones are concerned.\n     Disposing off the writ petitions, the Court,\n^\n     HELD: 1.1\tThe right  conferred by Article 19(1) (g) of\nthe Constitution  to carry  on\tany  trade  or\tbusiness  is\nsubject to  the provisions  of clause  (b) of  that Article,\nwhich provides\tthat nothing  in sub-clause  (g) of  Article\n19(1) shall  affect the\t operation of any existing law in so\nfar as it imposes, or prevents the State from making any law\nimposing. in the interests of the general public, reasonable\nrestrictions on\t the exercise  of the right conferred by the\nsaid subclause.\t Here, the affidavits filed on behalf of the\nrespondent in  unmistakable terms  show\t that  the  impugned\nprovisions of  the Bombay  Municipal Corporation  Act are in\nthe nature  of reasonable  restrictions, in the interests of\nthe general  public, on the exercise of the right of hawkers\nto carry on their trade or business [855 C-D]\n     1.2 No  one has  any right\t to do\this or\ther trade or\nbusiness so as to cause nuisance, annoyance or inconvenience\nto the other members of the public. Public streets, by their\nvery nomenclature  and definition,  are meant for the use of\nthe general  public. They  are not  laid to  facilitate\t the\ncarrying on of private trade or business. If hawkers were to\nbe conceded  the right\tclaimed by them, they could hold the\nsociety to  ransom  by\tsquatting  on  the  centre  of\tbusy\nthoroughfares, thereby\tparalysing all\tcivic life.  Indeed,\nthat is\t what some  of them  have done\tin some parts of the\ncity. They  have made  it impossible  for the pedestrians to\nwalk on footpaths or even on the streets properly so called.\n[855 E-G]\n     2.1 As  to the  merits and\t feasibility of\t the  scheme\nformulated for the licensing of hawkers in Greater Bombay by\ncreating  hawking   zones  formulated\tby   the   Municipal\nCommissioner in\t letter No.  MDG\/2418 dated  30th September,\n1983, and  in particular  the eight  conditions\t subject  to\nwhich the  Commissioner proposes  to grant  licences to\t the\nhawkers, no  exception can be taken to conditions (i), (ii),\n(iii), (iv) (vii) and (viii) except that conditions (ii) and\n(viii) require\ta little  modification. The  first  part  of\ncondition (ii) beginning with the words \"they should not put\nup any\tstall\" and  ending with\t the words  \"nor should they\nhawk on\t handcarts\" may\t stand. But, the second part of that\ncondition should  not be  construed to mean that the hawkers\nwill not be entitled even to protect their wares against the\nsun, rain,  wind and  so on,  by spreading  a cloth, plastic\nsheet, chaddar,\t tarpaulin etc. The object of that condition\nis to ensure that no construction is put up and no handcarts\nare used.  In so  far as  condition No. (viii) is concerned,\nall that  it should  be understood  to mean is that the fact\nthat a\tdaily fee is charged will not confer upon the hawker\nthe right to do his business at any particular place That is\nbecause, the  daily fee\t is a  kind of\tlicence\t fee  to  do\nbusinees it is not a fee charged for doing business\n851\nat any\tparticular place.  The Commissioner will, therefore,\nbe free\t to impose  conditions (i), (ii), (iii), (iv), (vii)\nand (viii)  while granting  licences to\t the hawkers  in the\nHawking Zones,\tafter making the necessary clarifications in\nconditions (ii) and (viii). [859 GH-H 860 A-C]\n     2.2 Condition (v) is an unreasonable restriction on the\nhawkers' right\tto carry  on their  trade or business. There\nare  several   working\tfamilies  in  Bombay,  belonging  to\ndifferent strata  of society,  which depend  upon  the\tfood\nsupplied by  hawkers. The hawkers cannot be denied the right\nto sell\t cooked food, cut fruits and the like. That will, of\ncourse, not confer upon them the licence to sell adulterated\nor unhygienic  food. They  shall have  to comply,  like\t any\nother  vendor\tof  food,   with  the\tMunicipal  licensing\nregulations and\t the provisions\t of the\t Prevention of\tFood\nAdulteration Act, 1954. [860 C-D]\n     2.3 The  hours of\tbusiness mentioned in condition (vi)\nshould be from 7 A.M. to P.M. instead of 7 A.M. to 9 P.M. In\ncities like Bombay, nights are quite young at 10 P.M.[860 D-\nE]\n     3. In  so far  as Hawking\tand  non-hawking  Zones\t are\nconcerned,  the\t Commissioner  should  adopt  the  following\nmodalities:-\n     (a) As  far as  possible, there  should be\t one Hawking\nZone for  every two  contiguous municipal  wards in  Greater\nBombay.\n     (b) The Non-Hawking Zones may be fixed by the Municipal\nCommissioner in\t his discretion,  in consultation  with\t the\nBombay Municipal Corporation.\n     (c) In areas other than the Non-Hawking Zones, licences\nshould be  granted to  the hawkers  to do  their business on\npayment\t of   the  prescribed  fee.  That  will\t be  without\nprejudice to  the right\t of the\t Commissioner to  extend the\nlimits of  the non-Hawking  Zones in the interests of public\nhealth, sanitation, safety, public convenience and the like.\n     (d) Hawking  licences should  not\tbe  refused  in\t the\nHawking Zones except for good reasons. The discretion not to\ngrant a\t hawking licence  in the  Hawking  Zones  should  be\nexercised by  the  Commissioner\t reasonably  and  in  public\ninterest.\n     (e) In  future, before  making any\t alteration  in\t the\nscheme the  Commissioner should\t take  into  confidence\t all\npublic interests, including the hawkers, the Commissioner of\nPolice and representative associations of the public such as\nthe one\t which appeared before us. Hawkers have the right to\ndo their business, subject to reasonable restrictions in the\ninterests of  the general  public The Police Commissioner is\nin the\tbest position  to speak\t about\tthe  law  and  order\nproblem as  well as  the traffic  hazards created  by street\ntrading. The  general public  has a stake in showing how and\nwhy the hawking trade should\n852\nbe regulated.  The power  conferred upon the Commissioner by\nsection 313-A  of the Act to grant licences to hawkers is in\nthe nature  of a  discretion coupled  with a  duty.  It\t is,\ntherefore, essential that the said power should be exercised\nby  consulting\t all  concerned\t  interests  and  guided  by\nconsiderations of  what is  in the  interests of the general\npublic. The  scheme framed  by the  Commissioner will have a\nbinding effect on all concerned. [860 E-H,861A-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION  : Writ  Petitions Nos. 5602-5605
\nof 1983
\n     Under Article 32 of the Constitution of India
\n     Miss Indira  Jai Singh  and Miss Kamini Jaiswal for the
\nPetitioners.\n<\/p>\n
     K. K.  Singhvi, K.K. Venugopal, D.N. Mishra, Karadhkar,
\nM. N. Shroff, Ms. Manik Karanjawala and S. Manik Karanjawala
\nfor the Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     CHANDRACHUD, C J. These writ petitions are filed by and
\non behalf  of a\t large number  of hawkers  who carry  on the
\ntrade of  hawking their\t wares in  Greater Bombay. They sell
\nalmost everything  under the  sun, from hairpins to hot food
\nand vegetables\tto video  cassettes. They  hawk their  wares
\nstanding or squatting on public streets, which constitutes a
\nserious impediment  to the  free movement  of pedestrian and
\nvehicular  traffic.  Standing,\tof  course,  is\t safer\tthan
\nsquatting because,  it ensures easy mobility at the sight of
\nMunicipal or  police officers. Mobile hawkers decorated with
\na hundred  ball pens,  like war-medals,\t is quite  a  common
\nsight in  Bombay. Constraints  of modern  times have created
\ningenious methods  of trading. Some of the streets in Bombay
\nare so\tincredibly flooded  with merchandise sold by hawkers
\nthat it\t is impossible\tfor the pedestrians to walk on those
\nstreets. The  Bombay Municipal\tCorporation has\t been making
\nHerculean efforts  to clear  the streets  of these and other
\nobstructions  but,  those  efforts  have  met  with  intense
\nopposition from\t several quarters,  not\t unexpectedly,\teven
\nfrom those  who wield  considerable political  influence. In
\nthe ultimate  analysis, it  is the  ballot-box that matters.
\nThis tug-of-war\t or the\t game of  hide-and-seek between\t the
\nCorporation and\t the  hawkers  led  recently  to  a  serious
\nincident in  which an  officer of the Corporation engaged in
\nthe task of
\n853<\/span>
\ndemolishing unauthorised  constructions\t put  up  on  public
\nstreets, was shot at. He survived but, such is the magnitude
\nof the problem
\n     Petitioner 1  is the  Bombay Hawkers’  Union,  a  Trade
\nunion which  has a large number of hawkers on its membership
\nroll. It has been negotiating with the Municipal authorities
\nfor the\t creation  of  a  hawkers’  zone  and  for  granting
\nadequate number\t of licences  to hawkers  to enable  them to
\ncarry on their trade and business. There are about 1, 50,000
\nhawkers in  the city  of Bombay,  1\/6th of them being women.
\nBroadly, there\tare three  types of hawkers – those who have
\nfour-wheeled carts, those who squat on the streets and those
\nwho have stalls. The largest amongst these are the squatting
\nhawkers who  number about  1,20,000.  Petitioner  2  is\t the
\nPresident of  the  Bombay  Hawkers’  Union  and\t is  also  a
\nCorporator.  The   other  three\t petitioners  carry  on\t the
\nbusiness of hawking.\n<\/p>\n
     Respondent 1  is the  Municipal Corporation  of Greater
\nBombay, respondent 2 is the State of Maharashtra, respondent
\n3 is  the Municipal  Commissioner, while respondent 4 is the
\nCommissioner of police.\n<\/p>\n
     The contention  of the  petitioners is that they have a
\nfundamental right  to carry  on\t their\ttrade,\tbusiness  or
\ncalling and  that the respondents are unlawfully interfering
\nwith that right. The petitioners complain that respondents 1
\nto 3  arbitrarily refuse  to grant  or\trenew  licences\t for
\nhawking, which\trenders the  hawkers liable  to\t be  removed
\nalong with  their goods,  from places  where they  do  their
\nbusiness. By these writ petitions, the petitioners ask for a
\ndeclaration that  the provisions of sections 313, 313-A, 314
\n(3) and\t 497 of\t the Bombay  Municipal Corporation Act, 1888
\nare  void   since,  they  confer  upon\tthe  respondents  an
\narbitrary and  unguided power  to refuse  to grant  or renew
\nlicences  for  hawking\tand  to\t remove\t the  goods  without
\naffording to the hawkers an opportunity to be heard.\n<\/p>\n
     These writ petitions were heard from time to time when,
\nseveral suggestions were made and possibilities explored for
\nevolving a  satisfactory solution  to the  problems faced by
\nboth the  sides. It  was eventually decided and, a consensus
\nemerged between\t the parties that the Municipal Commissioner
\nshould frame a scheme for regulat-\n<\/p>\n
854<\/span><\/p>\n
ing the\t grant of  licences  to\t hawkers  and  for  creating
\nhawkers’ zones\twherever necessary.  In\t pursuance  of\tthis
\nunderstanding,\tseveral\t  meetings  were  held\tbetween\t the
\nofficers  of  the  Bombay  Municipal  Corporation  and,\t the
\nmembers of  the Hawkers’  Committee of\twhich the  Mayor  of
\nBombay was  the Chairman.  By this  letter dated May 6, 1983
\nthe Municipal  Commissioner  proposed  a  scheme,  which  is
\nannexed as  Exhibit I  to the  affidavit of  Digambar  Anant
\nPadgaonkar, who\t is the\t Superintendent of  Licences in\t the
\nMunicipal Corporation.\tThe Hawkers’ union showed hardly any
\nresponse to  the proposed  scheme and  it took\tno  decision
\nthereon. When  these writ  petitions  come  up\tfor  hearing
\nbefore this Court on August 5, 1983, the following order was
\npassed:\n<\/p>\n
\t  “If the  members of  the Hawkers’ Committee do not
\n     come to  any decision by consensus, the Commissioner of
\n     Bombay Municipal  Corporation will\t be free  to frame a
\n     scheme. We\t are informed  by Mr.  Singhvi that the next
\n     meeting is\t fixed on 12th August 1983. The scheme shall
\n     be framed as expeditiously as possible thereafter.”\n<\/p><\/blockquote>\n
The meeting  was eventually  held on September 12, 1983 when
\nthe Hawkers’  Committee discussed  the proposals made by the
\nMunicipal Commissioner.\t No agreement  could be\t reached  in
\nthat   meeting\t since,\t  the\tHawkers’   union   expressed
\nreservations about some terms of the scheme.\n<\/p>\n
     In\t defence   to  the   suggestions  of   the  Hawkers’
\nCommittee, the\tMunicipal Commissioner\tproposed a  modified
\nscheme by  his letter dated September 30, 1983. The Hawkers’
\nCommittee met under the chairmanship of the Mayor of Bombay,
\nShri Manmohan Singh Bedi, and recommended to the Corporation
\nthat the  Commissioner may  proceed  to\t formulate  a  final
\nscheme for regulating hawking, on the lines suggested by him
\nin his\tletter dated September 30 1983. The ‘Fifth and Final
\nReport’ of  the Hawkers’ Committee dated October 15, 1983 is
\nExhibit\t III  to  the  letter  addressed  by  the  Municipal
\nCommissioner to the Mayor of Bombay, which is at Exhibit I.\n<\/p>\n
     On November  23, 1983 an application for directions was
\nfiled by  the  petitioners,  asking  specifically  that\t the
\nMunicipal Commissioner\tbe asked  to formulate\ta scheme for
\nthe licensing  of hawkers  in  Greater\tBombay\tby  creating
\nhawking zones. That application
\n855<\/span>
\nwas heard  by us  along with  the writ\tpetitions, when\t the
\nparties argued\tupon the  merits and  demerits of the scheme
\nproposed by  the  Municipal  Commissioner.  After  we  heard
\ncounsel for  the respective  parties for  some time,  it was
\ndecided that  we will pass orders on the basis of the scheme
\nframed by  the Commissioner  with such\tmodifications as  we
\nconsider proper and necessary.\n<\/p>\n
     In view  of the fact that we are primarily concerned to
\nconsider the merits an feasibility of the scheme proposed by
\nthe Municipal  Commissioner, it is necessary to consider the
\nvalidity of the challenge made by the petitioners to certain
\nprovisions of  the  Bombay  Municipal  Corporation  Act.  We
\nwould, however,\t like to  add that  there is no substance in
\nthat challenge\tbecause, the  right conferred  by Article 19\n<\/p>\n
(l) (g)\t of the\t Constitution  to  carry  on  any  trade  or
\nbusiness is  subject to the provisions of clause (b) of that
\nArticle, which\tprovides that  nothing in  sub-clause (g) of
\nArticle 19  (1) shall  affect the  operation of any existing
\nlaw insofar as it imposes, or prevents the State from making
\nany law\t imposing, in  the interests  of the general public,
\nreasonable  restrictions   on  the  exercise  of  the  right
\nconferred by  the said\tsub-clause. The\t affidavits filed on
\nbehalf of  the respondents  show in  unmistakable terms that
\nthe impugned  provisions of the Bombay Municipal Corporation
\nAct are\t in the\t nature of  reasonable restrictions,  in the
\ninterests of  the general  public, on  the exercise  of\t the
\nright of hawkers to carry on their trade or business. No one
\nhas any\t right to  do his  or her trade or business so as to
\ncause nuisance,\t annoyance or  inconvenience  to  the  other
\nmembers\t of  the  public.  Public  Streets,  by\t their\tvery
\nnomenclature and  definition, are  meant for  the use of the
\ngeneral public. They are not laid to facilitate the carrying
\non of  private trade  or business.  If hawkers\twere  to  be
\nconceded the  right claimed  by them,  they could  hold\t the
\nsociety to  ransom  by\tsquatting  on  the  centre  of\tbusy
\nthoroughfares, thereby\tparalysing all\tcivic life.  Indeed,
\nthat is\t what some  of them  have done\tin some parts of the
\ncity. They  have made  it impossible  for the pedestrians to
\nwalk on footpaths or even the streets properly so called.\n<\/p>\n
     In order  to give\tthe background and a full picture of
\nthe recommendations  made by  the Commissioner,\t it would be
\ndesirable to  reproduce the letter of the Commissioner dated
\nSeptember 30,  1983 to\tthe Mayor  of Bombay,  who  was\t the
\nChairman of  the Hawkers’  Committee. The Scheme proposed by
\nthe Commissioner from part of that letter. That letter reads
\nas follows:\n<\/p>\n
856<\/span><\/p>\n
 MDG\/2418 30th
\nSeptember, 1983
\nTo
\n     The Mayor of Bombay &
\n     Chairman, Hawkers’ Committee,
\n     Corporation Hall,
\n     Bombay-400001.\n<\/p>\n
\t  Sub:-Creation of Hawking Zones
\n\t       in Greater Bombay.\n<\/p>\n
\t\t   ………\n<\/p>\n
Dear Sir,
\n     Kindly refer  to my  letter No.  MDG\/6638 dated 6th May
\n1983 on\t the above mentioned subject, of which you were kind
\nenough to  circulate copies  to the  members of the Hawkers’
\nCommittee, and recall the subsequent discussions held in the
\nmeetings of  the said  Committee wherein,  inter  alia,\t the
\nproposals set out in that letter were discussed threadbare.\n<\/p>\n
     “During the  discussion, it  was pointed  out  by\tsome
\nmembers, Shri  Dharap in particular, that if, as proposed in
\nmy aforesaid  letter (dated 6th May 1983), ‘No Hawking Zones
\nor Areas’ are identified and declared as such, an impression
\nwould  be   automatically   created   that   the   remaining
\nZones\/areas\/streets are\t ‘Hawking  Zones  or  Areas’,  where
\nhawking would  be freely permissible. In this connection, as
\nan analogy,  it was pointed out that when the police declare
\ncertain\t areas\tas  ‘No\t parking  Areas’,  it  automatically
\nfollows that  parking is permissible in the areas other than
\nthose declared\tas ‘No\tparking Areas’. An apprehension was,
\ntherefore, voiced  that\t identification\t or  declaration  of
\ncertain zones  or areas\t as ‘No\t Hawking Zones or Areas’ may
\ngive rise to rampant hawking activity in the remaining areas
\nand a  demand for  issue of  licences freely  to hawkers who
\nwill mushroom  in those\t areas. This  will, it\twas  stated,
\ndefeat the  main purpose  viz. that  of proper regulation of
\nhawkers and their activities.\n<\/p>\n
857<\/span><\/p>\n
I then clarified that it was never my intention that hawking
\nshould be  permitted freely  in areas  not  covered  by\t ‘No
\nHawking Zones\/Areas’,  nor had\tI intended  that  additional
\nhawking licences  should  be  given  freely  to\t hawkers  to
\noperate in  such remaining areas. It was then decided in the
\nmeeting of  the Hawkers’  Committee held  on 13th  September
\n1983 that  I  should  resubmit\tmy  proposal  with  suitable
\nclarifications\/modifications so as not to leave any room for
\na wrong\t impression that  hawking will\tbe permissible\tin a
\nfree and  unchecked manner  in certain areas. Accordingly. I
\nonce again outline my proposal in the paragraphs below.\n<\/p>\n
     “As per  the provisions  of Section 61(o) of the Bombay
\nMunicipal Corporation  Act, the\t removal of obstructions and
\nprojections in\tor upon\t streets, bridges  and other  public
\nplaces is an obligatory duty of the Corporation. The hawkers
\ntogether with  their stalls  or the  objects which they sell
\nand  which   they  exhibit   in\t the   stalls  or   on\t the
\nroads\/pavements, constitute  an obstruction\/projection in or
\nupon streets  and other\t public places.\t Their\tremoval\t is,
\ntherefore, an  obligatory duty\tof the\tCorporation.  Having
\nregard to  our resources,  human, physical and financial, it
\nis, however,  obvious that  we will  not be  able  to  fully
\ndischarge this\tduty and remove the obstructions\/projections
\ncaused by  hawkers on  every road,  lane or  pavement in the
\nentire City  of Greater Bombay. We should, therefore, decide
\nthat within  the constraints  of  our  resources,  we  would
\nconcentrate on\tthe removal of such obstructions\/projections
\non certain  streets and\t public places where the pedestrians
\nor  vehicular\ttraffic\t is   most  intense  and  where\t any
\nobstruction\/projection on  the street  or pavement is likely
\nto cause  great harm  to public interest and cause nuisance.
\nFor  example,\tthe  roads  leading  from  suburban  Railway
\nStations to the residential areas in the Suburbs or roads in
\nthe Central Business District in South Bombay connecting the
\nSuburban Railway  Stations with the offices and other places
\nof work\t as also certain arterial roads on which major goods
\nand public  transport vehicles\tmove, could be considered as
\nimportant roads\t and pavements\twhere no  hawkers should  be
\nallowed to do their business. No doubt, at present, on these
\nroads\/areas too,  there are  existing hawkers who were given
\nlicences  in   the  past   but\twho  now  do  constitute  an
\nobstruction to\tthe free  and safe  flow of  pedestrian\t and
\nvehicular traffic.  It will  be\t possible  to  remove  these
\nlicensed hawkers by giving them alternative sites.\n<\/p>\n
858<\/span><\/p>\n
     “Thus, having  regard to  the  resources  of  vehicles,
\nstaff etc.  at our  disposal, we could identify in each Ward
\nthe streets\/areas  were\t intensive  removal  action  against
\nunauthorised  hawkers  should  be  taken.  This\t shall\tnot,
\nhowever, mean  that hawking  in other  areas will  be freely
\npermitted. In  areas other  than the  areas identified\tfrom
\ntime to\t time, having  regard to the resources available and
\nthe dynamic  situation, for  intensive\tremoval\t action,  if
\nhawkers\t do   their  hawking   business\t without   seriously
\naffecting the vehicular and or pedestrian traffic or causing
\nnuisance, they\tmay be\ttolerated by  sufference and a daily
\nfee at\tthe rate  of Rs. 3 par day from a male hawker and at
\nthe rate  of Rs.  1 per\t day from  a female  hawker  may  be
\nrecovered, without  prejudice to  our right  to remove\tthem
\nshould the  dynamic situation  and the changed circumstances
\nso demand  in future.  It should be made explicitly clear at
\nthe back  of the  receipt given\t for the fees recovered that
\nthe collection\tof the fee shall not be deemed to confer any
\nright whatsoever  on the  hawker  concerned  to\t do  his\/her
\nhawking business at the site concerned.\n<\/p>\n
     “The following restrictions\/conditione shall be imposed
\non such hawkers:-\n<\/p>\n
     (i) They  should do  their hawking\t business only on an
\narea of\t 1 Mt. x 1 Mt. on the footpath wherever it exists or
\non the\textreme sides  of the carriage way, in such a manner
\nthat the  vehicular and pedestrian traffic is not obstructed
\nand access to shops and residences is not blocked.\n<\/p>\n
     (ii) They\tshould not  put up  any stall  or place\t any
\ntable, stand  or such  other thing  or\terect  any  type  of
\nstructure  whatsoever\ton  the\t pitch\ton  which  they\t are
\nconducting their  hawking business  nor should\tthey hawk on
\nhandcarts. They\t should also  not put  up any cloth, plastic
\nsheet, chaddar, tarpaulin etc. as shelter.\n<\/p>\n
     (iii) They\t should not  hawk within 100 metres from any
\nplace of  worship; holy\t shrine, educational institution and
\ngeneral hospital and within the periphery of 150 metres from
\nany Municipal or other market.\n<\/p>\n
     (iv) They\tshould not  create any\tnoise for attracting
\nthe public\/customers.\n<\/p>\n
859<\/span><\/p>\n
     (v) They  should not hawk any cooked food articles, cut
\nfruits etc.\n<\/p>\n
     (vi) They should do their hawking business only between
\n7-00 A.M.  and 9-00  P.M. on the day on which the prescribed
\ndaily fee  is recovered.  In other  words,  payment  of\t the
\nprescribed daily  fee shall  not be deemed to authorise them
\nto do their hawking business beyond the aforesaid hours.\n<\/p>\n
     (vii) They should extend full co-operation to Municipal
\nconservancy staff for cleaning the streets and footpaths and
\nalso to other Municipal staff for carrying out any Municipal
\nwork. They  should also co-operate with other Government and
\npublic agencies\t such as  the B.E.S.T.\tUndertaking,  Bombay
\nTelephones, B.S\t E.S. Ltd.,  etc. for  laying cables  or for
\ndoing any repair\/development work.\n<\/p>\n
     (viii) Recovery  of  prescribed  daily  fee  shall\t not
\nbestow on  them any  right whatsoever over the space used by
\nthem for hawking on the day on which the fee is recovered.\n<\/p>\n
     “I would request you to immediately circulate copies of
\nthis letter to all the members of the Hawkers’ Committee and
\nto convene  a meeting  of the  Committee very  urgently\t for
\nconsideration of the proposals set out herein.\n<\/p>\n
\t\t\t\t\t   Yours faithfully,
\n\t\t\t\t       Sd\/-(D.M. Sukthankar)
\n\t\t\t\t   Municipal Commissioner.”\n<\/p>\n
     We\t have  considered  carefully  the  eight  conditions
\nmentioned above,  subject to which the Commissioner proposes
\nto grant  licences the hawkers. No exception can be taken to
\nconditions (i),\t (ii), (iii),  (iv), (vii) and (viii) except
\nthat  conditions   (ii)\t and   (viii)\trequire\t  a   little
\nclarification. The  first part\tof condition  (ii) beginning
\nwith the words “They should not put up any stall” and ending
\nwith the  words “nor  should they  hawk\t on  handcarts”\t may
\nstand. But,  the second part of that condition should not be
\nconstrued to mean that the hawkers will not be entitled even
\nto protect their wares against
\n860<\/span>
\nthe sun, rain, wind and so on, by spreading a cloth, plastic
\nsheet, chaddar,\t tarpaulin etc. The object of that condition
\nis to ensure that no construction is put up and no handcarts
\nare used.  In so  far as  condition No. (viii) is concerned,
\nall that  it should  be understood  to mean is that the fact
\nthat a\tdaily fee is charged will not confer upon the Hawker
\nthe right  to do  his business at any particular place. That
\nis because,  the daily\tfee is\ta kind\tof license fee to do
\nbusiness; it  is not a fee charged for doing business at any
\nparticular place.  The Commissioner will, therefore, be free
\nto impose  conditions (i),  (ii),  (iii),  (iv),  (vii)\t and\n<\/p>\n
(viii) while granting licenses to the hawkers in the Hawking
\nZones,\tafter\tmaking\tthe   necessary\t clarifications\t  in
\nconditions (ii) and (viii). Condition (v) is an unreasonable
\nrestriction on the hawkers’ right to carry on their trade or
\nbusiness and  must be  dropped. There  are  several  working
\nfamilies  in   Bombay,\tbelonging  to  different  strata  of
\nsociety, which\tdepend upon the food supplied by hawkers. We
\ndo not\tsee any\t valid reason  why  hawkers  should  not  be
\nallowed to  sell cooked\t food, cut  fruits and the like That
\nwill, of  course, not  confer upon  them the licence to sell
\nadulterated or\tunhygienic food\t They shall  have to comply,
\nlike any  other vendor of food, with the Municipal licensing
\nregulations and\t the provisions\t of the\t Prevention of\tFood
\nAdulteration  Act,   1954.  Lastly  the\t hours\tof  business
\nmentioned in Condition (vi) should be from 7 A.M. to 10 P.M.
\ninstead of  7 A.M.  to 9  P.M, In cities like Bombay, nights
\nare quite young at 10 p.m.
\n     In\t so   far  as  Hawking\tand  Non-Hawking  Zones\t are
\nconcerned,  the\t Commissioner  should  adopt  the  following
\nmodalities:\n<\/p>\n
     (a) As  far as  possible, there  should be\t one Hawking
\nZone for  every who  contiguous municipal  wards in  Greater
\nBombay.\n<\/p>\n
     (b) The Non-Hawking Zones may be fixed by the Municipal
\nCommissioner in\t his discretion,  in consultation  with\t the
\nBombay Municipal Corporation.\n<\/p>\n
     (c) In areas other than the Non-Hawking Zones, licenses
\nshould be  granted to  the hawkers  to do  their business on
\npayment\t of   the  prescribed  fee.  That  will\t be  without
\nprejudice to  the right\t of the\t Commissioner to  extend the
\nlimits of  the Non-Hawking  Zones in the interests of public
\nhealth, sanitation, safety, public convenience and the like.\n<\/p>\n
861<\/span><\/p>\n
     (d) Hawking  licences should  not\tbe  refused  in\t the
\nHawking\t  Zones except\tfor good reasons. The discretion not
\nto grant  a hawking  licence in\t the Hawking  Zone should be
\nexercised by  the  Commissioner\t reasonably  and  in  public
\ninterest.\n<\/p>\n
     (e) In  future, before  making any\t alteration  in\t the
\nScheme, the  Commissioner should  take into  confidence\t all
\npublic interests, including the hawkers, the Commissioner of
\nPolice and representative associations of the public such as
\nthe one\t which appeared before us. Hawkers have the right to
\ndo their business, subject to reasonable restrictions in the
\ninterests of  the general public. The Police Commissioner is
\nin the\tbest position  to speak\t about\tthe  law  and  order
\nproblem as  well as  the traffic  hazards created  by street
\ntrading. The  general public  has a stake in showing how and
\nwhy  the  hawking  trade  should  be  regulated.  The  power
\nconferred upon\tthe Commissioner by section 313-A of the Act
\nto  grant  licences  to\t hawkers  is  in  the  nature  of  a
\ndiscretion coupled  with a  duty. It  is therefore essential
\nthat the  said power  should be\t exercised by consulting all
\nconcerned interests  and guided by considerations of what is
\nin the interests of the general public. The scheme framed by
\nthe  Commissioner   will  have\t a  binding  effect  on\t all
\nconcerned.\n<\/p>\n
     In\t the   result,\twe   direct   that   the   Municipal
\nCommissioner will  proceed to  frame the final Scheme on the
\nlines suggested\t above, as  expeditiously as possible. There
\nwill be no order as to costs.\n<\/p>\n
S.R.\t  Petitions disposed off.\n<\/p>\n
862<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bombay Hawkers’ Union And Ors vs Bombay Municipal Corporation And … on 3 July, 1985 Equivalent citations: 1985 AIR 1206, 1985 SCR Supl. (1) 849 Author: Y Chandrachud Bench: Chandrachud, Y.V. ((Cj) PETITIONER: BOMBAY HAWKERS’ UNION AND ORS. Vs. RESPONDENT: BOMBAY MUNICIPAL CORPORATION AND ORS. DATE OF JUDGMENT03\/07\/1985 BENCH: CHANDRACHUD, Y.V. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-174759","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBombay Hawkers' Union And Ors vs Bombay Municipal Corporation And ... on 3 July, 1985 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bombay-hawkers-union-and-ors-vs-bombay-municipal-corporation-and-on-3-july-1985\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bombay Hawkers' Union And Ors vs Bombay Municipal Corporation And ... on 3 July, 1985 - 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