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PETITIONER: BOMBAY HAWKERS’ UNION AND ORS.

       Vs.

RESPONDENT: BOMBAY MUNICIPAL CORPORATION AND ORS.

DATE OF JUDGMENT03/07/1985

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) SEN, A.P. (J)

CITATION:  1985 AIR 1206            1985 SCR  Supl. (1) 849  1985 SCC  (3) 528        1985 SCALE  (2)59  CITATOR INFO :  F          1989 SC  38  (13,14)  D          1989 SC1988  (20)  R          1992 SC1153  (1)

ACT:      Bombay Municipal  Corporation Act,  1888 sections  313, 313-A, 314(3)  and 497,  whether violative  of Article 19(1) (g) of the Constitution-Right to carry on trade, business or calling by hawkers on footpaths and on public streets-Merits and feasibility  of a scheme for the licensing of hawkers in Greater Bombay  by creating  hawking zones  by the Municipal Commissioner.  dated  23  November,  1983-Modalities  to  be adopted for the purpose of hawking and non-hawking zones.

HEADNOTE:      There are about 1,50,000 hawkers in the city of Bombay, one sixth  of them  being women.  Broadly, there  are  three types of  hawkers-those who  have four-wheeled  carts, those squat on  the streets  numbering about 1,20,000 and the rest who have  stalls to  enable them  to stand  and  sell  their wares. They  sell almost  everything  under  the  sun,  from hairpins to hot food and vegetables to vides cassettes. They hawk their  wares standing  or squatting  on public streets, which constitutes  a serious impediment to the free movement of pedestrian  and vehicle a traffic. Some of the streets in Bombay are  so incredibly  flooded with  merchandise sold by hawkers that it is impossible for the pedestrians to walk on those streets  The Bombay  Municipal  Corporation  has  been making Herculean  efforts to  clear the streets of these and other obstructions  but, those efforts have met with intense opposition from several quarters.      The Bombay  Hawker’s Union,  a trade  which has a large number of  hawkers on its membership roll and which has been unsuccessfully negotiating  with the  Municipal  authorities for the  creation  of  a  hawker’s  zone  and  for  granting adequate number  of licences  to hawkers  to enable  them to carry on  their trade and business, along with petitioner No 2  the   President  of   the  Bombay   Hawker’s  Union   and incidentally a  corporator has challenged the Constitutional validity of  the provisions  of sections  313, 313-A, 314(3) and 497 of the Bombay Municipal Corporation Act, 1888 on the ground that  they confer upon the respondents unguided power

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to refuse  to grant  or renew  licences for  hawking and  to remove  the  goods  without  affording  to  the  hawkers  an opportunity to  be heard. There writ petitions were filed by those who  carry on  the business of hawking contending that they have  a fundamental  right  to  carry  on  their  trade business  or   calling.  with   which  the  respondents  are unlawfully interfering  by arbitrarily  refusing to grant or renew licences  for hawking, which renders them liable to be removed along  with their  goods, from  places where they to their business. 850 During  the   pendency  of   the  writ   petition,  on   the intervention  of   the  Court,   the  Municipal  Corporation formulated a  scheme for the licensing of hawkers in Greater Bombay by  creating hawking  zones. Preferring to adopt "non liquet"  as   to  the  validity  of  the  challenge  by  the petitioners to  certain provisions  of the  Bombay Municipal Corporation  Act,   the  Court  considered  the  merits  and feasibility of  the scheme  and suggested  modalities to  be adopted by  the Corporation  in so  far as  hawking and non- hawking zones are concerned.      Disposing off the writ petitions, the Court, ^      HELD: 1.1  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  (b) 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 subclause.  Here, the affidavits filed on behalf of the respondent in  unmistakable terms  show  that  the  impugned provisions of  the Bombay  Municipal Corporation  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 [855 C-D]      1.2 No  one has  any right  to do  his or  her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public streets, by their very nomenclature  and definition,  are meant for the use of the general  public. They  are not  laid to  facilitate  the carrying on of private trade or business. If hawkers were to be conceded  the right  claimed by them, they could hold the society to  ransom  by  squatting  on  the  centre  of  busy thoroughfares, thereby  paralysing all  civic life.  Indeed, that is  what some  of them  have done  in some parts of the city. They  have made  it impossible  for the pedestrians to walk on footpaths or even on the streets properly so called. [855 E-G]      2.1 As  to the  merits and  feasibility of  the  scheme formulated for the licensing of hawkers in Greater Bombay by creating  hawking   zones  formulated   by   the   Municipal Commissioner in  letter No.  MDG/2418 dated  30th September, 1983, and  in particular  the eight  conditions  subject  to which the  Commissioner proposes  to grant  licences to  the hawkers, no  exception can be taken to conditions (i), (ii), (iii), (iv) (vii) and (viii) except that conditions (ii) and (viii) require  a little  modification. The  first  part  of condition (ii) beginning with the words "they should not put up any  stall" and  ending with  the words  "nor should they hawk on  handcarts" may  stand. But, the second part of that condition should  not be  construed to mean that the hawkers will not be entitled even to protect their wares against the sun, rain,  wind and  so on,  by spreading  a cloth, plastic

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sheet, chaddar,  tarpaulin etc. The object of that condition is to ensure that no construction is put up and no handcarts are used.  In so  far as  condition No. (viii) is concerned, all that  it should  be understood  to mean is that the fact that a  daily fee is charged will not confer upon the hawker the right to do his business at any particular place That is because, the  daily fee  is a  kind of  licence  fee  to  do businees it is not a fee charged for doing business 851 at any  particular place.  The Commissioner will, therefore, be free  to impose  conditions (i), (ii), (iii), (iv), (vii) and (viii)  while granting  licences to  the hawkers  in the Hawking Zones,  after making the necessary clarifications in conditions (ii) and (viii). [859 GH-H 860 A-C]      2.2 Condition (v) is an unreasonable restriction on the hawkers’ right  to carry  on their  trade or business. There are  several   working  families  in  Bombay,  belonging  to different strata  of society,  which depend  upon  the  food supplied by  hawkers. The hawkers cannot be denied the right to sell  cooked food, cut fruits and the like. That will, of course, not confer upon them the licence to sell adulterated or unhygienic  food. They  shall have  to comply,  like  any other  vendor   of  food,   with  the   Municipal  licensing regulations and  the provisions  of the  Prevention of  Food Adulteration Act, 1954. [860 C-D]      2.3 The  hours of  business mentioned in condition (vi) should be from 7 A.M. to P.M. instead of 7 A.M. to 9 P.M. In cities like Bombay, nights are quite young at 10 P.M.[860 D- E]      3. In  so far  as Hawking  and  non-hawking  Zones  are concerned,  the  Commissioner  should  adopt  the  following modalities:-      (a) As  far as  possible, there  should be  one Hawking Zone for  every two  contiguous municipal  wards in  Greater Bombay.      (b) The Non-Hawking Zones may be fixed by the Municipal Commissioner in  his discretion,  in consultation  with  the Bombay Municipal Corporation.      (c) In areas other than the Non-Hawking Zones, licences should be  granted to  the hawkers  to do  their business on payment  of   the  prescribed  fee.  That  will  be  without prejudice to  the right  of the  Commissioner to  extend the limits of  the non-Hawking  Zones in the interests of public health, sanitation, safety, public convenience and the like.      (d) Hawking  licences should  not  be  refused  in  the Hawking Zones except for good reasons. The discretion not to grant a  hawking licence  in the  Hawking  Zones  should  be exercised by  the  Commissioner  reasonably  and  in  public interest.      (e) In  future, before  making any  alteration  in  the scheme the  Commissioner should  take  into  confidence  all public interests, including the hawkers, the Commissioner of Police and representative associations of the public such as the one  which appeared before us. Hawkers have the right to do their business, subject to reasonable restrictions in the interests of  the general  public The Police Commissioner is in the  best position  to speak  about  the  law  and  order problem as  well as  the traffic  hazards created  by street trading. The  general public  has a stake in showing how and why the hawking trade should 852 be regulated.  The power  conferred upon the Commissioner by section 313-A  of the Act to grant licences to hawkers is in the nature  of a  discretion coupled  with a  duty.  It  is, therefore, essential that the said power should be exercised

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by  consulting   all  concerned   interests  and  guided  by considerations of  what is  in the  interests of the general public. The  scheme framed  by the  Commissioner will have a binding effect on all concerned. [860 E-H,861A-D]

JUDGMENT:      ORIGINAL JURISDICTION  : Writ  Petitions Nos. 5602-5605 of 1983      Under Article 32 of the Constitution of India      Miss Indira  Jai Singh  and Miss Kamini Jaiswal for the Petitioners.      K. K.  Singhvi, K.K. Venugopal, D.N. Mishra, Karadhkar, M. N. Shroff, Ms. Manik Karanjawala and S. Manik Karanjawala for the Respondents.      The Judgment of the Court was delivered by      CHANDRACHUD, C J. These writ petitions are filed by and on behalf  of a  large number  of hawkers  who carry  on the trade of  hawking their  wares in  Greater Bombay. They sell almost everything  under the  sun, from hairpins to hot food and vegetables  to video  cassettes. They  hawk their  wares standing or squatting on public streets, which constitutes a serious impediment  to the  free movement  of pedestrian and vehicular  traffic.  Standing,  of  course,  is  safer  than squatting because,  it ensures easy mobility at the sight of Municipal or  police officers. Mobile hawkers decorated with a hundred  ball pens,  like war-medals,  is quite  a  common sight in  Bombay. Constraints  of modern  times have created ingenious methods  of trading. Some of the streets in Bombay are so  incredibly flooded  with merchandise sold by hawkers that it  is impossible  for the pedestrians to walk on those streets. The  Bombay Municipal  Corporation has  been making Herculean efforts  to clear  the streets  of these and other obstructions  but,  those  efforts  have  met  with  intense opposition from  several quarters,  not  unexpectedly,  even from those  who wield  considerable political  influence. In the ultimate  analysis, it  is the  ballot-box that matters. This tug-of-war  or the  game of  hide-and-seek between  the Corporation and  the  hawkers  led  recently  to  a  serious incident in  which an  officer of the Corporation engaged in the task of 853 demolishing unauthorised  constructions  put  up  on  public streets, was shot at. He survived but, such is the magnitude of the problem      Petitioner 1  is the  Bombay Hawkers’  Union,  a  Trade union which  has a large number of hawkers on its membership roll. It has been negotiating with the Municipal authorities for the  creation  of  a  hawkers’  zone  and  for  granting adequate number  of licences  to hawkers  to enable  them to carry on their trade and business. There are about 1, 50,000 hawkers in  the city  of Bombay,  1/6th of them being women. Broadly, there  are three  types of hawkers - those who have four-wheeled carts, those who squat on the streets and those who have stalls. The largest amongst these are the squatting hawkers who  number about  1,20,000.  Petitioner  2  is  the President of  the  Bombay  Hawkers’  Union  and  is  also  a Corporator.  The   other  three  petitioners  carry  on  the business of hawking.      Respondent 1  is the  Municipal Corporation  of Greater Bombay, respondent 2 is the State of Maharashtra, respondent 3 is  the Municipal  Commissioner, while respondent 4 is the Commissioner of police.      The contention  of the  petitioners is that they have a

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fundamental right  to carry  on  their  trade,  business  or calling and  that the respondents are unlawfully interfering with that right. The petitioners complain that respondents 1 to 3  arbitrarily refuse  to grant  or  renew  licences  for hawking, which  renders the  hawkers liable  to  be  removed along with  their goods,  from places  where they  do  their business. By these writ petitions, the petitioners ask for a declaration that  the provisions of sections 313, 313-A, 314 (3) and  497 of  the Bombay  Municipal Corporation Act, 1888 are  void   since,  they  confer  upon  the  respondents  an arbitrary and  unguided power  to refuse  to grant  or renew licences  for  hawking  and  to  remove  the  goods  without affording to the hawkers an opportunity to be heard.      These writ petitions were heard from time to time when, several suggestions were made and possibilities explored for evolving a  satisfactory solution  to the  problems faced by both the  sides. It  was eventually decided and, a consensus emerged between  the parties that the Municipal Commissioner should frame a scheme for regulat- 854 ing the  grant of  licences  to  hawkers  and  for  creating hawkers’ zones  wherever necessary.  In  pursuance  of  this understanding,  several   meetings  were  held  between  the officers  of  the  Bombay  Municipal  Corporation  and,  the members of  the Hawkers’  Committee of  which the  Mayor  of Bombay was  the Chairman.  By this  letter dated May 6, 1983 the Municipal  Commissioner  proposed  a  scheme,  which  is annexed as  Exhibit I  to the  affidavit of  Digambar  Anant Padgaonkar, who  is the  Superintendent of  Licences in  the Municipal Corporation.  The Hawkers’ union showed hardly any response to  the proposed  scheme and  it took  no  decision thereon. When  these writ  petitions  come  up  for  hearing before this Court on August 5, 1983, the following order was passed:           "If the  members of  the Hawkers’ Committee do not      come to  any decision by consensus, the Commissioner of      Bombay Municipal  Corporation will  be free  to frame a      scheme. We  are informed  by Mr.  Singhvi that the next      meeting is  fixed on 12th August 1983. The scheme shall      be framed as expeditiously as possible thereafter." The meeting  was eventually  held on September 12, 1983 when the Hawkers’  Committee discussed  the proposals made by the Municipal Commissioner.  No agreement  could be  reached  in that   meeting   since,   the   Hawkers’   union   expressed reservations about some terms of the scheme.      In  defence   to  the   suggestions  of   the  Hawkers’ Committee, the  Municipal Commissioner  proposed a  modified scheme by  his letter dated September 30, 1983. The Hawkers’ Committee met under the chairmanship of the Mayor of Bombay, Shri Manmohan Singh Bedi, and recommended to the Corporation that the  Commissioner may  proceed  to  formulate  a  final scheme for regulating hawking, on the lines suggested by him in his  letter dated September 30 1983. The ’Fifth and Final Report’ of  the Hawkers’ Committee dated October 15, 1983 is Exhibit  III  to  the  letter  addressed  by  the  Municipal Commissioner to the Mayor of Bombay, which is at Exhibit I.      On November  23, 1983 an application for directions was filed by  the  petitioners,  asking  specifically  that  the Municipal Commissioner  be asked  to formulate  a scheme for the licensing  of hawkers  in  Greater  Bombay  by  creating hawking zones. That application 855 was heard  by us  along with  the writ  petitions, when  the parties argued  upon the  merits and  demerits of the scheme proposed by  the  Municipal  Commissioner.  After  we  heard

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counsel for  the respective  parties for  some time,  it was decided that  we will pass orders on the basis of the scheme framed by  the Commissioner  with such  modifications as  we consider proper and necessary.      In view  of the fact that we are primarily concerned to consider the merits an feasibility of the scheme proposed by the Municipal  Commissioner, it is necessary to consider the validity of the challenge made by the petitioners to certain provisions of  the  Bombay  Municipal  Corporation  Act.  We would, however,  like to  add that  there is no substance in that challenge  because, the  right conferred  by Article 19 (l) (g)  of the  Constitution  to  carry  on  any  trade  or business is  subject to the provisions of clause (b) of that Article, which  provides that  nothing in  sub-clause (g) of Article 19  (1) shall  affect the  operation of any existing law insofar 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  affidavits filed on behalf of  the respondents  show in  unmistakable terms that the impugned  provisions of the Bombay Municipal Corporation 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. No one has any  right to  do his  or her trade or business so as to cause nuisance,  annoyance or  inconvenience  to  the  other members  of  the  public.  Public  Streets,  by  their  very nomenclature and  definition, are  meant for  the use of the general public. They are not laid to facilitate the carrying on of  private trade  or business.  If hawkers  were  to  be conceded the  right claimed  by them,  they could  hold  the society to  ransom  by  squatting  on  the  centre  of  busy thoroughfares, thereby  paralysing all  civic life.  Indeed, that is  what some  of them  have done  in some parts of the city. They  have made  it impossible  for the pedestrians to walk on footpaths or even the streets properly so called.      In order  to give  the background and a full picture of the recommendations  made by  the Commissioner,  it would be desirable to  reproduce the letter of the Commissioner dated September 30,  1983 to  the Mayor  of Bombay,  who  was  the Chairman of  the Hawkers’  Committee. The Scheme proposed by the Commissioner from part of that letter. That letter reads as follows: 856  MDG/2418 30th September, 1983 To      The Mayor of Bombay &      Chairman, Hawkers’ Committee,      Corporation Hall,      Bombay-400001.           Sub:-Creation of Hawking Zones                in Greater Bombay.                    ......... Dear Sir,      Kindly refer  to my  letter No.  MDG/6638 dated 6th May 1983 on  the above mentioned subject, of which you were kind enough to  circulate copies  to the  members of the Hawkers’ Committee, and recall the subsequent discussions held in the meetings of  the said  Committee wherein,  inter  alia,  the proposals set out in that letter were discussed threadbare.      "During the  discussion, it  was pointed  out  by  some members, Shri  Dharap in particular, that if, as proposed in my aforesaid  letter (dated 6th May 1983), ’No Hawking Zones or Areas’ are identified and declared as such, an impression

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would  be   automatically   created   that   the   remaining Zones/areas/streets are  ’Hawking  Zones  or  Areas’,  where hawking would  be freely permissible. In this connection, as an analogy,  it was pointed out that when the police declare certain  areas  as  ’No  parking  Areas’,  it  automatically follows that  parking is permissible in the areas other than those declared  as ’No  parking Areas’. An apprehension was, therefore, voiced  that  identification  or  declaration  of certain zones  or areas  as ’No  Hawking Zones or Areas’ may give rise to rampant hawking activity in the remaining areas and a  demand for  issue of  licences freely  to hawkers who will mushroom  in those  areas. This  will, it  was  stated, defeat the  main purpose  viz. that  of proper regulation of hawkers and their activities. 857 I then clarified that it was never my intention that hawking should be  permitted freely  in areas  not  covered  by  ’No Hawking Zones/Areas’,  nor had  I intended  that  additional hawking licences  should  be  given  freely  to  hawkers  to operate in  such remaining areas. It was then decided in the meeting of  the Hawkers’  Committee held  on 13th  September 1983 that  I  should  resubmit  my  proposal  with  suitable clarifications/modifications so as not to leave any room for a wrong  impression that  hawking will  be permissible  in a free and  unchecked manner  in certain areas. Accordingly. I once again outline my proposal in the paragraphs below.      "As per  the provisions  of Section 61(o) of the Bombay Municipal Corporation  Act, the  removal of obstructions and projections in  or upon  streets, bridges  and other  public places is an obligatory duty of the Corporation. The hawkers together with  their stalls  or the  objects which they sell and  which   they  exhibit   in  the   stalls  or   on   the roads/pavements, constitute  an obstruction/projection in or upon streets  and other  public places.  Their  removal  is, therefore, an  obligatory duty  of the  Corporation.  Having regard to  our resources,  human, physical and financial, it is, however,  obvious that  we will  not be  able  to  fully discharge this  duty and remove the obstructions/projections caused by  hawkers on  every road,  lane or  pavement in the entire City  of Greater Bombay. We should, therefore, decide that within  the constraints  of  our  resources,  we  would concentrate on  the removal of such obstructions/projections on certain  streets and  public places where the pedestrians or  vehicular   traffic  is   most  intense  and  where  any obstruction/projection on  the street  or pavement is likely to cause  great harm  to public interest and cause nuisance. For  example,   the  roads  leading  from  suburban  Railway Stations to the residential areas in the Suburbs or roads in the Central Business District in South Bombay connecting the Suburban Railway  Stations with the offices and other places of work  as also certain arterial roads on which major goods and public  transport vehicles  move, could be considered as important roads  and pavements  where no  hawkers should  be allowed to do their business. No doubt, at present, on these roads/areas too,  there are  existing hawkers who were given licences  in   the  past   but  who  now  do  constitute  an obstruction to  the free  and safe  flow of  pedestrian  and vehicular traffic.  It will  be  possible  to  remove  these licensed hawkers by giving them alternative sites. 858      "Thus, having  regard to  the  resources  of  vehicles, staff etc.  at our  disposal, we could identify in each Ward the streets/areas  were  intensive  removal  action  against unauthorised  hawkers  should  be  taken.  This  shall  not, however, mean  that hawking  in other  areas will  be freely

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permitted. In  areas other  than the  areas identified  from time to  time, having  regard to the resources available and the dynamic  situation, for  intensive  removal  action,  if hawkers  do   their  hawking   business  without   seriously affecting the vehicular and or pedestrian traffic or causing nuisance, they  may be  tolerated by  sufference and a daily fee at  the rate  of Rs. 3 par day from a male hawker and at the rate  of Rs.  1 per  day from  a female  hawker  may  be recovered, without  prejudice to  our right  to remove  them should the  dynamic situation  and the changed circumstances so demand  in future.  It should be made explicitly clear at the back  of the  receipt given  for the fees recovered that the collection  of the fee shall not be deemed to confer any right whatsoever  on the  hawker  concerned  to  do  his/her hawking business at the site concerned.      "The following restrictions/conditione shall be imposed on such hawkers:-      (i) They  should do  their hawking  business only on an area of  1 Mt. x 1 Mt. on the footpath wherever it exists or on the  extreme sides  of the carriage way, in such a manner that the  vehicular and pedestrian traffic is not obstructed and access to shops and residences is not blocked.      (ii) They  should not  put up  any stall  or place  any table, stand  or such  other thing  or  erect  any  type  of structure  whatsoever   on  the  pitch  on  which  they  are conducting their  hawking business  nor should  they hawk on handcarts. They  should also  not put  up any cloth, plastic sheet, chaddar, tarpaulin etc. as shelter.      (iii) They  should not  hawk within 100 metres from any place of  worship; holy  shrine, educational institution and general hospital and within the periphery of 150 metres from any Municipal or other market.      (iv) They  should not  create any  noise for attracting the public/customers. 859      (v) They  should not hawk any cooked food articles, cut fruits etc.      (vi) They should do their hawking business only between 7-00 A.M.  and 9-00  P.M. on the day on which the prescribed daily fee  is recovered.  In other  words,  payment  of  the prescribed daily  fee shall  not be deemed to authorise them to do their hawking business beyond the aforesaid hours.      (vii) They should extend full co-operation to Municipal conservancy staff for cleaning the streets and footpaths and also to other Municipal staff for carrying out any Municipal work. They  should also co-operate with other Government and public agencies  such as  the B.E.S.T.  Undertaking,  Bombay Telephones, B.S  E.S. Ltd.,  etc. for  laying cables  or for doing any repair/development work.      (viii) Recovery  of  prescribed  daily  fee  shall  not bestow on  them any  right whatsoever over the space used by them for hawking on the day on which the fee is recovered.      "I would request you to immediately circulate copies of this letter to all the members of the Hawkers’ Committee and to convene  a meeting  of the  Committee very  urgently  for consideration of the proposals set out herein.                                            Yours faithfully,                                        Sd/-(D.M. Sukthankar)                                    Municipal Commissioner."      We  have  considered  carefully  the  eight  conditions mentioned above,  subject to which the Commissioner proposes to grant  licences the hawkers. No exception can be taken to conditions (i),  (ii), (iii),  (iv), (vii) and (viii) except that  conditions   (ii)  and   (viii)   require   a   little clarification. The  first part  of condition  (ii) beginning

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with the words "They should not put up any stall" and ending with the  words "nor  should they  hawk  on  handcarts"  may stand. But,  the second part of that condition should not be construed to mean that the hawkers will not be entitled even to protect their wares against 860 the sun, rain, wind and so on, by spreading a cloth, plastic sheet, chaddar,  tarpaulin etc. The object of that condition is to ensure that no construction is put up and no handcarts are used.  In so  far as  condition No. (viii) is concerned, all that  it should  be understood  to mean is that the fact that a  daily fee is charged will not confer upon the Hawker the right  to do  his business at any particular place. That is because,  the daily  fee is  a kind  of license fee to do business; it  is not a fee charged for doing business at any particular place.  The Commissioner will, therefore, be free to impose  conditions (i),  (ii),  (iii),  (iv),  (vii)  and (viii) while granting licenses to the hawkers in the Hawking Zones,  after   making  the   necessary  clarifications   in conditions (ii) and (viii). Condition (v) is an unreasonable restriction on the hawkers’ right to carry on their trade or business and  must be  dropped. There  are  several  working families  in   Bombay,  belonging  to  different  strata  of society, which  depend upon the food supplied by hawkers. We do not  see any  valid reason  why  hawkers  should  not  be allowed to  sell cooked  food, cut  fruits and the like That will, of  course, not  confer upon  them the licence to sell adulterated or  unhygienic food  They shall  have to comply, like any  other vendor of food, with the Municipal licensing regulations and  the provisions  of the  Prevention of  Food Adulteration  Act,   1954.  Lastly  the  hours  of  business mentioned in Condition (vi) should be from 7 A.M. to 10 P.M. instead of  7 A.M.  to 9  P.M, In cities like Bombay, nights are quite young at 10 p.m.      In  so   far  as  Hawking  and  Non-Hawking  Zones  are concerned,  the  Commissioner  should  adopt  the  following modalities:      (a) As  far as  possible, there  should be  one Hawking Zone for  every who  contiguous municipal  wards in  Greater Bombay.      (b) The Non-Hawking Zones may be fixed by the Municipal Commissioner in  his discretion,  in consultation  with  the Bombay Municipal Corporation.      (c) In areas other than the Non-Hawking Zones, licenses should be  granted to  the hawkers  to do  their business on payment  of   the  prescribed  fee.  That  will  be  without prejudice to  the right  of the  Commissioner to  extend the limits of  the Non-Hawking  Zones in the interests of public health, sanitation, safety, public convenience and the like. 861      (d) Hawking  licences should  not  be  refused  in  the Hawking   Zones except  for good reasons. The discretion not to grant  a hawking  licence in  the Hawking  Zone should be exercised by  the  Commissioner  reasonably  and  in  public interest.      (e) In  future, before  making any  alteration  in  the Scheme, the  Commissioner should  take into  confidence  all public interests, including the hawkers, the Commissioner of Police and representative associations of the public such as the one  which appeared before us. Hawkers have the right to do their business, subject to reasonable restrictions in the interests of  the general public. The Police Commissioner is in the  best position  to speak  about  the  law  and  order problem as  well as  the traffic  hazards created  by street trading. The  general public  has a stake in showing how and

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why  the  hawking  trade  should  be  regulated.  The  power conferred upon  the Commissioner by section 313-A of the Act to  grant  licences  to  hawkers  is  in  the  nature  of  a discretion coupled  with a  duty. It  is therefore essential that the  said power  should be  exercised by consulting all concerned interests  and guided by considerations of what is in the interests of the general public. The scheme framed by the  Commissioner   will  have   a  binding  effect  on  all concerned.      In  the   result,  we   direct   that   the   Municipal Commissioner will  proceed to  frame the final Scheme on the lines suggested  above, as  expeditiously as possible. There will be no order as to costs. S.R.      Petitions disposed off. 862