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CASE NO.: Appeal (civil)  4156-4157 of 2002

PETITIONER: MAHARASHTRA EKTA HAWKWERS UNION & ANR

RESPONDENT: MUNICIPAL CORPORATION,GREATER MUMBAI & ORS

DATE OF JUDGMENT: 12/02/2007

BENCH: H.K. SEMA & B. SUDERSHAN REDDY

JUDGMENT: J U D G M E N T  

(With   appln.(s)   for   intervention   and   direction   and    permission to submit   additional documents and modification   of Court’s order dt. 9.12.03 and 30.7.04 and  condonation of  delay in filing affidavit and stay ) With Civil Appeal NO. 4158-4159 of 2002 (With  appln.   for    permission   to   file   addl. Affidavit on B/O Appellant),  

Civil   Appeal   NO.   4161-4162   of   2002   (with   appln.(s)    for   permission   to   file   addl. documents and directions),

Civil Appeal NO. 4163-4164 of 2002 (With appln(s) for  modification/clarification of order dated 9.12.2003),  

Civil Appeal NO. 4160 of 2002 (with appln. (s) for stay),

Civil Appeal NO. 4170-4171 of 2002,      

Civil Appeal NO. 4167-4169 of 2002 (With appln.(s) for  intervention(s) and direction(s),

Civil Appeal NO. 4165-4166 of 2002,

Civil Appeal NO. 4175-4176 of 2002 (With appln.(s) for  directions and permission to file rejoinder affidavit and  permission to file list of hawkers),

Civil Appeal NO. 4179-4180 of 2002 (With appln.(s) for  clarification/modification of Court’s order),

Civil Appeal NO. 4172-4174 of 2002 (With appln.(s) for  directions),

CONMT.PET.(C) NO. 195-196 of 2001 in C.A.No.4175- 4176/2002,

Civil Appeal NO. 4178 of 2002,

Civil Appeal NO. 4177 of 2002,

Civil Appeal NO. 9661 of 2003,

Civil Appeal NO. 9662 of 2003,

Civil Appeal NO. 9663-9666 of 2003,  

Civil Appeal NO. 9667 of 2003 (With appln.(s) for

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clarification/modification of Court’s order dt. 30.7.2004 and  intervention),

CONMT.PET.(C) NO. 456-458 of 2002 in C.A.No.4167- 4169/2002

CONMT.PET.(C) NO. 153-154 of 2005 in C.A.No.4156- 4157/2002,

W.P(C) NO. 17 of 2006 (with appln.(s) for ex-parte stay),   W.P(C) NO. 14 of 2006,

Contempt Petition(C)No.233-234/2005 in C.A.Nos.4156- 4157/2002

Contempt Petition(C)No.245-246/2005 in C.A.Nos.4156- 4157/2002

Contempt Petition(C)No.4-5/2006 in C.A.Nos.4156-4157/2002

Contempt Petition (C)No.140/2006 in C.A.No.4156-4157/2002

W.P.(C)No.335/2004 (with appln.(s) for directions and  permission to file affidavit),

W.P.(C)No.337/2004 (with appln.(s) for directions),

SEMA, J.  

       The Hawkers’ problems in the city of Bombay was first  dealt with by this Court in the case of Bombay Hawkers’  Union v. Bombay Municipal Corporation (1985) 3 SCC 528.  The argument that the hawkers have a fundamental right to  carry on their trade or business and that the respondents are  unlawfully interfering with that right by arbitrarily refusing to  grant or renew their licenses for hawking and that the writ  petitions for a declaration that the provisions of Sections 313,  313-A, 314(3) and 497 of the Bombay Municipal Corporation  Act, 1988 are void since they confer upon the respondents an  arbitrary and unguided power to refuse to grant or renew  licenses for hawking and to remove the goods without  affording to the hawkers an opportunity to be heard, was  repelled by this Court.  This Court held that the right to carry  on trade or business conferred by Article 19(1)(g) of the  Constitution is subject to the provisions of clause (6) of Article  19 which provided that nothing in Sub-clause (g) of Article  19(1) would affect the operation of any existing law insofar as  it imposed, or prevented the State from making any law  imposing, in the interests of general public, reasonable  restrictions on the exercise of the right conferred by the said  sub-clause. It was held that no one had 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. It was  pointed out that public streets, by their very nomenclature  and definition, were meant for the use of the general public. It  was further pointed out that the public streets are not laid to  facilitate the carrying on of private trade or business. It was  held that if hawkers were to be conceded the right claimed by  them they could hold the society to ransom by squatting on  the center of busy thoroughfares, thereby paralyzing all civic  life. It was noticed that in some of the parts of the city the  hawkers had made it impossible for the pedestrians to walk on

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footpaths or even on the streets. This Court then examined the  scheme proposed by the Municipal Commissioner and laid  down certain modalities for hawking and non-hawking zones.   After accepting some restrictions/conditions proposed by the  Municipal Commissioner, this Court suggested certain  guidelines and directed the Municipal Commissioner to frame  a final scheme.  Pursuant to the aforesaid direction, Bombay Municipal  Corporation (for short ’BMC’) constituted an Advisory  Committee composed of officials of the Corporation,  representatives of the Residents’ Associations, NGO’s, elected  representatives of the Traffic Police and representatives of the  hawkers.        In the interregnum, the Advisory Committee  submitted a draft Scheme.  Many suggestions were made but  we are not concerned with the draft Scheme, proposals or  suggestions, in these proceedings.           Before this Court a strong reliance has also been placed  on behalf of the petitioners on the judgment in the case of  Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC  545.  It was submitted that the right to hawk was also a  fundamental right under Article 21 of the Constitution of  India.  This Court noticed that such an argument has been  negatived in the case of Sodan Singh and Ors. v. New Delhi  Municipal Committee and Ors. (1989) 4 SCC 155.  This  Court in Sodan Singh’s case (supra), while dealing with  hawkers in the city of Delhi held that the hawking on  roadsides fell within the expression "occupation, trade or  business" in Article 19 (1) (g) but that it was subject to  reasonable restrictions under Article 19(6) of the Constitution.  After noticing the 1985 and 1989 judgments of this  Court,  as referred to above, this Court in Maharashtra Ekta  Hawkers Union v. Municipal Corporation Greater Mumbai  (2004) 1 SCC 625  para 10 at page SCC 630 held: "10. The above authorities make it clear that the  hawkers have a right under Article 19(1)(g) of the  Constitution of India. This right however is subject  to reasonable restrictions under Article 19(6). Thus  hawking may not be permitted where e.g. due to  narrowness of road free flow of traffic or movement  of pedestrians is hindered or where for security  reasons an area is required to be kept free or near  hospitals, places of worship etc. There is no  fundamental right under Article 21 to carry on any  hawking business. There is also no right to do  hawking at any particular place. The authorities  also recognize the fact that if properly regulated the  small traders can considerably add to the  convenience and comfort of the general public, by  making available ordinary articles of everyday use  for a comparatively lesser price. The scheme must  keep in mind the above principles. So far as  Mumbai is concerned the scheme must comply with  the conditions laid down in the Bombay Hawkers  Union’s case. Those conditions have become final  and there is no changed circumstance which  necessitates any alteration."  

       We are pointing out the aforesaid finding of this Court as  many intervention applications have been filed, which we shall  be dealing with at an appropriate time, attempting to re-argue  the entire controversy which has been set at rest by this Court  in Maharashtra Ekta Hawkers Union v. Municipal  Corporation Greater Mumbai (2004) 1 SCC 625 (supra).         This Court, after noticing the draft Scheme prepared  pursuant to the judgment of this Court in Bombay Hawkers’

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Union’s case (supra), decided to constitute a Committee.  It  said in paragraph 12 SCC page 634 as under:  "12. We have, during the course of arguments, tried  to go through the scheme street by street. However  on a re-consideration it appears to us that this  Court is not really equipped to undergo this  exercise. In our view it would be preferable that this  Court approves the conditions of the scheme and  certain roads/streets on which hawking is to be  permitted. Then, as in Sodan Singh’s case, a  committee must be appointed and modalities laid  down under which the committee is to function. The  committee can hear interested parties and consider  their representations. The committee can decide  whether any particular road/street is to be declared  as a non-hawking zone. We therefore confine  ourselves to laying down the basic features of the  scheme, appointing a committee and laying down  the modalities for functioning of the committee."

       The other finding of this Court, which would be relevant  for our purpose is paragraph 13 page 634 SCC, which reads: "13. At this stage it must be mentioned that we had  by order dated 1st May 2003 permitted parties to  make suggestions as to which additional areas can  become hawking zones. A number of suggestions  had been made. We are told that BMC is agreeable  to include 51 more roads as hawking zones. We  have considered submissions of Mr. Divan on why  these additional roads should not be added to the  137 already approved by the Bombay High Court. In  our view 49 of these additional roads meet all the  criteria, set out hereafter, and can be included in  the hawking zones. Therefore to start with we  approve the 187 + 49 roads as hawking zones. The  roads we have excluded are Pandey Road in A Ward  and Deodhar Road in F/N ward as they appear to  be residential areas with no shopping line. We  further clarify that amongst these 49 roads there  are some roads e.g. Mahatma Gandhi Marg in A  Ward which are already included in the hawking  zones but on which BMC now proposes to  accommodate additional hawkers. Whilst doing so  BMC will ensure that there is no impediment or  hindrance to vehicular traffic or pedestrians. The  approval of these 49 roads is subject to  approval/NOC from the traffic police. It must also  be clarified that even though a road may be within a  hawking zone the restrictions, set out hereunder,  regarding distances from railway stations, hospitals,  educational institutions, places of worship etc. on  that road, if any, would continue to apply."

       Ultimately, this Court took the view that the hawkers  shall be permitted to do their business subject to   restrictions/conditions, as set out in paragraph 14 page 635  SCC as under: "14. The restrictions/conditions on which the  hawkers shall do the business are:  (1) an area of 1 mtr x 1 mtr on one side of the  footpath wherever they exist or on an extreme side  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.  We further clarify that even where hawking is

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permitted, it can only be on one side of the footpath  or road and under no circumstances on both sides  of the footpaths or roads. We however clarify that  Aarey/Sarita stalls and sugar cane vendors would  require and may be permitted an area of more than  1 Mt. by 1 Mt. but not more than 2 Mt. by 1 Mt;  (2) Hawkers must not put up stalls or place any  tables, stand or such other thing or erect any type  of structure. They should also not use handcarts.  However they may protect their goods from the sun,  rain or wind. Obviously this condition would not  apply to Aarey/sarita stalls;  (3) There should be no hawking within 100 meters  from any place of worship, holy shrine, educational  institutions and hospitals or within 150 meters from  any municipal or other markets or from any railway  station. There should be no hawking on foot-bridges  and over-bridges. Further certain areas may be  required to be kept free of hawkers for security  reasons. However outside places of worship hawkers  can be permitted to sell items required by the  devotees for offering to the deity or for placing in the  place of worship e.g. flowers, sandalwood, candies,  agarbattis, coconuts etc.;  (4) The hawkers must not create any noise or play  any instrument or music for attracting the public or  the customers;  (5) They can only sell cooked foods, cut fruits juices  and the like. We are unable to accept submission  that cooking should be permitted. We direct that no  cooking of any nature whatsoever shall be  permitted. Even where cooked food or cut fruits or  the like are sold, the food must not be adulterated  or unhygienic. All municipal licensing regulations  and the provisions of the Prevention of Food  Adulteration Act must be complied with;  (6) Hawking must be only between 7.00 am and  10.00 pm;  (7) Hawking will be on the basis of payment of a  prescribed fee to be fixed by BMC. However the  payment of prescribed fee shall not be deemed to  authorize the hawker to do his business beyond  prescribed hours and would not confer on the  hawker the right to do business at any particular  place;  (8) The hawkers must extend full cooperation to the  municipal conservancy staff for cleaning the streets  and footpaths and also to the other municipal staff  for carrying on any municipal work. They must also  cooperate with the other government and public  agencies such as BEST undertaking, Bombay  Telephones, BSES Ltd. etc. if they require to lay any  cable or any development work.;  (9) No hawking would be permitted on any street  which is less than 8 meters in width. Further the  hawkers also have to comply with Development  Control Rules thus there can be no hawking in  areas which are exclusively residential and where  trading and commercial activity is prohibited. Thus  hawking cannot be permitted on roads and  pavements which do not have a shopping line.;  (10) BMC shall grant licences which will have  photos of the hawkers on them. The licence must be  displayed, at all times, by the hawkers on their  person by clipping it on to their shirt or coat;

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(11) Not more than one member of a family must be  given a licence to hawk. For this purpose BMC will  have to computerize its records; (12) Vending of costly items e.g. electrical  appliances, video and audio tapes and cassettes,  cameras, phones etc are to be prohibited. In the  event of any hawker found to be selling such items  his licence must be cancelled forthwith. (13) In areas other than the Non-Hawking Zones,  licences must be granted to the hawkers to do their  business on payment of the prescribed fee. The  licences must be for a period of 1 year. That will be  without prejudice to the right of the Committee to  extend the limits of the Non-Hawking Zones in the  interests of public health, sanitation, safety, public  convenience and the like. 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  reasonably and in public interest. (14) In future, before making any alteration in the  scheme, the Commissioner should place the matter  before the Committee who shall take a decision after  considering views of all concerned including the  hawkers, the Commissioner of Police and members  of the public or an association representing the  public. (15) It is expected that citizens and shopkeepers  shall participate in keeping non hawking  zones/areas free from hawkers. They shall do so by  bringing to the notice of the concerned ward officer  the presence of a hawker in a non hawking  zone/area. The concerned ward officer shall take  immediate steps to remove such a hawker. In case  the ward officer takes no action a written complaint  may be filed by the citizen/shopkeeper to the  Committee. The Committee shall look into the  complaint and if found correct the Committee will  with the help of police remove the hawker. The  officer in charge of the concerned police station is  directed to give prompt and immediate assistance to  the Committee. In the event of the Committee  finding the complaint to be correct it shall so record.  On the Committee so recording an adverse remark  re failure to perform his duty will be entered in the  confidential record of the concerned ward officer. If  more than three such entries are found in the  record of an officer it would be a ground for  withholding promotion. If more than 6 such entries  are found in the records of an officer it shall be a  ground for termination of service. For the work of  attending to such complaints BMC shall pay to the  Chairman a fixed honorarium of Rs. 10,000/- p.m.

(16) The scheme framed by us will have a binding  effect on all concerned. Thus apart from those to  whom licenses will now be issued, no other  person/body will have any right to squat or carry on  any hawking or other business on the  roads/streets. We direct the BMC shall bring this  Judgment to the notice of all Courts in which  matters are now pending. We are quite sure that the  concerned Court/s shall then suitably  vacate/modify its injunction/stay order."

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       Finally, a Committee had been constituted by this Court  with certain directions in paragraph 16 page 638 SCC as  under: "16. We appoint a Committee consisting of a retired  Judge of the Bombay City Civil Court at Bombay (to  be nominated by the Chief Justice of Bombay High  Court), who shall be the Chairman of the  Committee, a senior officer of BMC (who shall be  nominated by the Municipal Commissioner) and a  senior police officer from the traffic department (who  shall be nominated by the Police Commissioner).  For the present the Officers will be deputed full time  to work on the Committee. BMC shall forthwith  make available to the Chairman and the Committee  all facilities like office space, secretarial staff etc.  BMC shall also make available to the Chairman a  chauffeur driven car which is to be used for this  work only. Any person or organization who feels,  that roads/streets apart from those designated as  non hawking zones are suitable for hawking, may  apply to this Committee, for having that road/street  designated as a hawking zone. Similarly any person  or organization who feels that any road/street  designated as hawking zone should be a non  hawking zone may apply to the Committee for  having that road/street designated as a non  hawking zone. The person or organization so  applying must deposit along with the application a  sum of Rs. 1500/- per road/street in respect of  which they want a decision. BMC shall add to that a  sum of Rs. 1500/- per road/street. The sum of Rs.  3000 per road/street shall be handed over to the  Chairman of the Committee as his honorarium. The  Committee shall then cause a notice to be placed in  the concerned ward office and in prominent places  on that road/street inviting objections/suggestions  in respect of that proposal. Undoubtedly the  Committee shall visit the road/street and also hear  all concerned parties including residents  associations, shop owners in that road/street etc.  The Committee shall then decide whether or not  such road/street should be a hawking zone or not.  The Committee will also decide how many hawkers  can be accommodated on that road/street if it is to  be a hawking zone. We clarify that merely because  in the scheme, as sanctioned, an area has been  shown as a hawking zone or a non hawking zone,  will not preclude the Committee from considering  whether hawking can be permitted on that  road/street. We have no doubt that the Committee  shall ensure that the above mentioned criteria are  fulfilled before a road/street is declared as a  hawking zone and that if all the criteria are met  then that road/street is not kept out of a hawking  zone. In the event of any difference between the  Committee members, the decision of the Chairman  of the Committee shall prevail. The decision of the  Committee shall be final and binding on all."

       By another order dated 30.7.2004, this Court, amongst  others, constituted two more Committees. This Court then  directed that the first Committee, which had been established  by order dated 9.12.2003 shall deal with Zones 1 & 2 and the  two Committees, constituted on that date, shall deal with  Zones 3 &4 and 5 & 6 respectively.  It was further clarified

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that all unauthorized hawkers and hawkers other than the  licensed hawkers may have to be, in a phased manner,  removed from non-hawking Zones.           This Court further passed the following order regarding  intervention applications:  "Before this Court a number of Associations are  appearing and are seeking to intervene.  Each such  Association shall file in this Court, and also give to  the Bombay Municipal Corporation, a list of all its  members with the address of each member.  The  Association and each such member shall file an  undertaking before this Court that they will  cooperate with the Bombay Municipal Corporation  in the implementation of the Scheme.  Any  Association or member who does not file list/  undertaking not to be considered for allotment of  space."

LICENSED HAWKERS         Regarding licensed hawkers, after hearing the parties at  length, we left it to be considered only after the position  regarding total number of available sites becomes available.   The question whether the licensed hawkers, who had been  operating for a long period of time must also stand in line with  others, was  also left open.   HANDICAPPED HAWKERS         With regard to handicapped hawkers, which was not  covered by our order dated 9.12.2003, was clarified in our  order dated 30.7.2004 as under:  "We, however, modify our order dated 9th December,  2003 by permitting handicapped persons who have  been granted license for running the  PCOs/Aarey/Sarita stalls to continue to run those  stalls even in non-hawking Zones.  No further or  new licenses to be granted to any other person even  a handicapped person in non-hawking zones.  We,  however, clarify that a license to run the PCO stalls  would mean running a PCO stall.  No other activity  can be carried out from the PCO stall.  Similarly,  even in respect of other stalls, only the activity  permitted by the license can be carried on."

Pursuant to our order aforesaid, the three Committees,  constituted by us, have submitted their reports, after hearing  the parties and receiving objections, if any, as directed.  The  Committees suggested some deletions/additions, which are to  be considered by this Court.   That is how the matter is placed  before us once again for issuing further appropriate directions.  The principal contention of all the counsel is that this  Court identified 187 roads plus 49 roads as hawking Zones.   However, the Committees had upset the approval of this  Court, which is not permissible.   To answer this question, we need to harmonize our  directions in paragraphs 13 and 16 of our judgment of  9.12.2003.   In paragraph 13 of our judgment, we have  approved 187 plus 49 roads as hawking Zones.  We, however,  clarified that so far as 49 roads are concerned, the same are  subject to the approval/NOC from the Traffic Police.  We also  clarified that even though a road may be within a hawking  Zone the restrictions regarding distances from railway  stations, hospitals, educational institutions, places of worship  etc. on that road, if any, would continue to apply.  We further  clarified in paragraph 16 of our order that merely because in  the scheme, as sanctioned, an area has been shown as a  hawking zone or a non hawking zone, will not preclude the

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Committee from considering whether hawking can be  permitted on that road/street. Reading paragraphs 13 and 16 of our order conjointly,  would clearly show that although we have in principle  approved 187 roads as hawking Zones, we have permitted the  Committees to further consider whether hawking can be  permitted on such road/street or not.  In our view, therefore,  the contention of the petitioners that the Committees had  reduced the roads, which had been declared the hawking  Zones by this Court, without any authority, must be rejected.   In our view, the Committees had exercised their powers in  consonance with the directions issued by this Court.   The other contention that due to reduction/deletion of  some roads, approved as hawking Zones by this Court, the  hawkers have been deprived of their right to hawk on the  streets declared as hawking Zones has also no substance.   This contention also deserves to be rejected outright.   The statements showing number of Hawking Zone Roads  and available pitches thereat recommended by all the Three  Members’ Committees are as follows:  

"Annexure - VIII Statement showing Number of Hawking Zone Roads and  available pitches thereat recommended by all the Three Members  Committees

City  Committee Eastern Subs  Committee Western Subs  Committee

No.of  Rds. No.of  pitches No. of  Rds. No. of  pitches  No. of  Rds.  No. of  pitches Hawking Zones out of  196 Roads approved By  Hon’ble Supreme Court   

57 4088 59 7658 80 7255 Less Roads deleted by  Committee 06 205 12 454 80 7255 Rds. Remained out of 196

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Roads 61 3885 47 7204 - - Plus After considering  suggestion & objections  newly added roads &  pitches 44 2275 50 8288 56 2670 Plus Hawking Plaza  (K/W) - - - - 01 226 Actual available Roads  for Hawking zones &  number of pitches  available 95 6138 97 15492 56 2896

Summary Statement showing total number of available Hawking  Zone Roads & Pitches as recommended by all the Three Members  Committees.

Sl.No. Committee Roads Pitches Hawking  Plaza Pitches Total A B C D E F G (D+F) 1 City 95   6138 - - 6138 2

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Eastern 97 15492 - - 15492 3 Western 56   2670 1 226 2896

248 24300 1 226 24526

       Out of 248 roads, recommended as hawking Zones by the  Committees, 27 roads fall within 100/150 mtrs. from the  places of worship and educational institutes.  The suggestion  of the Committees to modify and relax direction No. 3 of this  Court is rejected.  Such suggestion cannot be accepted  because this has been the consistent view even in 1985 case,  which has been adopted by this Court.  Therefore, the 27  roads, identified and suggested by the Committees and  included in total roads of 248, have to be deducted.  Therefore,  the total roads as hawking Zones shall remain only at 221.    Out of 24,300 pitches, 2429 pitches have to be excluded.   Then it comes to 21871 plus 1853 plus 226 pitches.  The total  final figure comes to 23,950 pitches.           The break-up figures shown in the recommendations of  the Committees show that there are in total 15,159 existing  licensed hawkers in the city of Bombay.  Out of these 5555  licensed hawkers are pertaining to PCOs/ Handicapped  Persons’ Stalls, Cobbler Pitches, Cobbler Stalls and Aarey  Sarita, which had been permitted by this Court in our order  dated 9.12.2003 and 30.7.2004.  From the remaining 9604  licensed hawkers, 2083 are in hawking Zones and 7521 are in  non-hawking Zones.   STATUS OF LICENSED HAWKERS         The question whether licensed hawkers already operating  in hawking Zones should be allowed to continue irrespective of  draw of lots had been kept open by this Court to be decided  after the submission of the Committees’ Report.  The  Committees recommended that it would not be advisable for  the licensed hawkers who are hawking for the last so many  years to stand in a queue for the draw of lots alongwith  unlicensed hawkers.  Mr. G.E. Vahanvati, learned Solicitor  General appearing for B.M.C. has no objection if the licensed  hawkers, already operating in hawking Zones, should be  allowed to continue irrespective of draw of lots.  We accept the  suggestion of the Committees.  Accordingly, we issue the  following directions:  (A)     5555 licensed hawkers pertaining to PCOs/  Handicapped Persons’ Stalls, Cobbler Pitches, Cobbler  Stalls and Aarey Sarita are allowed to continue their  business irrespective of draw of lots till the regulations  are framed by the Government of Maharashtra. (B)     2083 licensed hawkers hawking in hawking Zones shall  be allowed to continue the hawking irrespective of draw  of lots till the regulations are framed by the Government

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of Maharashtra.  (C)     7521 licensed hawkers, who are in the non-hawking  Zones, must be shifted to hawking Zones and allowed to  continue hawking till the regulations are framed by the  Government of Maharashtra.   We have noticed that total pitches now available in the  hawking Zones are (23950 minus 15159) = 8791.  For these  8791, there shall be draw of lots.   Each Committee shall print a format for draw of lots.   Amongst others, the application form for draw of lots shall  contain the following information:  i)      Every applicant shall affix his/her latest passport  size phot on the application form; ii)     Fathers’ name/ Name of the spouse, if married  and address; iii)    Ward No., whether his/her name appears in the  Electoral Roll as a Voter, Sl. No. in the Voter’s List  etc. ; iv)     An undertaking that he/she has not applied in  any other ward/zone other than the ward/zone  applied; v)      Must undertake that the information furnished, if  found false, fabricated or if any fraud is played,  he/she will be disqualified, even subsequent to  the draw of lots.  In other words, the application  shall be treated as null and void;  vi)     Each Zone shall constitute a Screening  Committee and the Screening Committee, after  properly scrutinizing each and every applicant,  shall fix the date for draw of lots; vii)    The Screening Committees are entitled to  devise  their own modalities in order to ensure that no  applicant/family secures more than one pitch.  The Committee (Zone 1 & II) in the Report dated  20.1.2005 pointed out certain difficulties in effectively  implementing the hawking and non-hawking Scheme, as  framed by this Court.  The Committee pointed out the  problems of unauthorized parking of vehicles/ lorries/  tempos/ two wheelers etc. by the shopkeepers and customers.   In paragraph 37(vii), the Committee pointed out as under:  "37(vii) The problem of unauthorized parking of  vehicles/ lorries/ tempos/ two wheelers etc. is the  case of much greater nuisance for vehicular as well  as pedestrian traffic as compared with the problem  of unauthorized hawking.  At the time of the visit of  the Committee in C-Ward, it was found that from  Princess street junction upto Abdul Rehman Street,  major portion of the road was blocked by  unauthorized parking.  On enquiry I was told that  the unauthorized parking is on account of parking  of vehicles of shopkeepers of the said road or their  customers or visitors.  Not only that, but the  shopkeepers have allowed unauthorized parking for  themselves and their customers near their shops  and they have also extended the area of their shops  in front of the shops and in some cases by keeping  temporary stalls or stools for exhibiting their goods.   Such was the position in practically all Wards."

The same was reiterated again by the Report of the  Committee dated 29.3.2005 as under:  "In order to effectively implement hawking/non- hawking zone scheme it is also desirable that  necessary direction may also be given regarding  unauthorized parking and unauthorized extension

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of their shops by several shopkeepers as stated in  detail in para 37(vii) on page 28 of my earlier  report."

       Our orders dated 9.12.2003 and 30.7.2004 make it  abundantly clear that all concerned shall abide our directions.   This would mean including shopkeepers, house owners and  vehicle owners.  We make it clear that if there is any  obstruction by any authority including the shopkeepers, house  owners and customers and if any extension of shop is made or  if there is any unauthorized parking by the shopkeepers,  which hampers or creates any impediment for effectively  implementing our directions in hawking and non-hawking  zones, the Committees shall immediately report to the  concerned authorities, and such authority shall immediately  remove/demolish such extended area of shops or  unauthorized parking which hampers or creates impediment  for effectively implementing the directions of this Court.           The suggestion of the Committee to relax the order of this  Court dated 9.12.2003 to accommodate some more hawkers in  regard to  certain spots in Zone-I and II as done in the case of  Dadasaheb Phalke Road where distance to be left from Dadar  Station (East) was only 25 meters instead of 100/150 meters  is rejected.   HAWKERS’ PLAZA         In our order dated 9.12.2003, we noticed as under:  "It will be open for BMC to set up hawking plazas.   However, when BMC sets up a hawking plaza the  allotment of 1m x 1m pitches in those hawking  plazas must be made on the above terms and  conditions \005\005"

Pursuant to our order, the Committees examined the  following areas for Hawkers’ Plazas: "1. Plot No. T/4 on Lokmanya Tilak Road, Borivali  (W). 2. Hawkers Plaza at Navrang Garden now known as  Ganpatrao Ambre Maharaj Udyan in K/West on J.P.  Road, Andheri(W).  3. Sainath Road, Malad(W) near subway.  4. Andheri Palika Bazaar Hawkers’ Plaza (Below  Gokhale Flyover Bridge) at Andheri(W)."

After examining the areas, the Committees have made  certain recommendations, which are accepted.  B.M.C. now to  undertake immediate steps for making infrastructure  available, as suggested by the Committees.   INTERVENTION APPLICATIONS         Many Intervention Applications have been filed.  The  counsel for the respective applicants made an attempt to  argue on such intervention applications.  This Court on  30.7.2004 clarified that each such association shall file in this  Court, and also furnish to the Bombay Municipal Corporation,  a list of all its members with the address of each member.  The  Associations and each such member were required to file an  undertaking before this Court to the effect that they will  cooperate with the Bombay Municipal Corporation in the  implementation of the Scheme.  This Court further said that  any Association or member who does not file list/ undertaking  not to be considered for allotment of space.           None of the applicants satisfied and fulfilled the  conditions inasmuch as no such undertaking has been filed  before this Court, nor any list of members has been filed in  this Court, as directed.  All such intervention applications,  which had not fulfilled the conditions/criteria, as set out by

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this Court are accordingly dismissed.   HANDICAPPED HAWKERS I.A.Nos.28,29/04,78,100-101,158,159/05and 200, 201/06         These intervention applications have been filed by the  handicapped hawkers.  They have filed an undertaking before  this Court.  This Court on 30.7.2004 passed the following  order:  "We, however, modify our order dated 9th December,  2003 by permitting handicapped persons who have  been granted license for running the  PCOs/Aarey/Sarita stalls to continue to run those  stalls even in non-hawking Zones.  No further or  new licenses to be granted to any other person even  a handicapped person in non-hawking zones.  We,  however, clarify that a license to run the PCO stalls  would mean running a PCO stall.  No other activity  can be carried out from the PCO stall.  Similarly,  even in respect of other stalls, only the activity  permitted by the license can be carried on."

       The grievance of the applicants is that despite their  having licenses of 1m x 2 m. stalls, notices have been issued  by the Corporation to the disabled licensed stall holders to  reduce the size of stall to 1m x 1m.  It is stated that the license  for running stalls of 1m x 2m had been issued to them  because many of them have locomotor disability.  They have to  take the assistance of wheelchairs, crutches, Jaipur foot and  other enabling aids of the like (which are non-foldable) and  consequently, they need ample space within their booths to  accommodate these compensatory aid devices.  The applicants  have also annexed a specimen of the license issued to them,  which is 1m x 2m.           By our order dated 9.12.2003, in direction No. 1, we have  allowed Aarey/Sarita stalls and sugar cane vendors who may   require an area of more than 1m. x 1m. and accordingly  permitted them to utilize the space of not more than 2m. x 1m.     Accordingly, the applicants in these intervention applications  are permitted to stalls of 1m. x 2m. as provided in their  license.  This permission, however, is subject to verifications  by the Committee that the allottees have locomotor disability  and they have to take the assistance of wheelchairs, crutches,  Jaipur foot and other enabling aids of the like (which are non- foldable).

NATIONAL POLICY ON URBAN STREET VENDORS         National Policy on Urban Street Vendors has been framed  as far back as in 2004.  Its Introduction reads:         "Introduction         Street vending as a profession has been in  existence in India since time immemorial.  However,  their number has increased manifold in the recent  years.  According to one study Mumbai has the  largest number of street vendors numbering around  250,000, while Delhi has around 200,000.  Calcutta  has more than 150,000 street vendors and  Ahmedabad has around 100,000.  Women  constitute a large number of street vendors in  almost every city.  Some studies estimate that street  vendors constitute approximately 2% of the  population of a metropolis.  The total number of  street vendors in the country is estimated at around  1 crore.  Urban vending is not only a source of  employment but provide ’affordable’ services to the  majority of urban population.  The role played by  the hawkers in the economy as also in the society

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needs to be given due credit but they are considered  as unlawful entities and are subjected to  continuous harassment by Police and civic  authorities.  This is reported to be continuing even  after the ruling of the Supreme Court that "if  properly regulated according to the exigency of the  circumstances, the small traders on the side walks  can considerably add to the comfort and  convenience of the general public, by making  available ordinary articles of everyday use for a  comparatively lesser price.  An ordinary person, not  very affluent, while hurrying towards his home after  a day’s work can pick up these articles without  going out of his way to find a regular market.  The  right to carry on trade or business mentioned in  Article 19(1)(g) of the Constitution, on street  pavements, if properly regulated cannot be denied  on the ground that the streets are meant exclusively  for passing or re-passing and no other use."

       Section 10 of the Policy deals with the role of the State  Governments.  Section 10.1 provides that the State  Governments should ensure that institutional arrangements,  legislative frameworks and other necessary actions achieve  conformity with the National Policy for Street Vendors.  At the  time of hearing of these petitions, it had been brought to our  notice by Mr. Raghupati, learned counsel for the State  that a  Committee has been constituted by the State of Maharashtra  to go into the whole gamut of the issues and necessary  regulations will be framed by the State.  We insisted that the  Government should file an affidavit explaining their position  and the time framework within which regulations can be  framed.   Pursuant to our direction, a counter affidavit of Dr.  Jairaj Phatak, Principal Secretary, Urban Development  Department, Government of Maharashtra has been filed.  It is  stated that to implement the national policy on urban street  vendors in the State the matter was thoroughly discussed in  the meeting held on 29.11.2005.  It is stated that to implement  the National Policy on urban street vendors a Committee has  been constituted with the following persons:  1. Principal Secretary II,                              :       Chairman     Urban Development Department,     Mantralya, Mumbai.  

2. Principal Secretary, Home (Special)  :       Member     Mantralya, Mumbai.  

3. Municipal Commissioner,                      :       Member     Brihanmumbai Mahanagarpalika,     Mumbai.  

4. Police Commissioner, Mumbai          :       Member

5. Commissioner & Director of                   :       Member     Municipal Administration,      Worli, Mumbai.  

6.  Municipal Commissioner,                     :       Member      Thane Municipal Corporation, Thane

7.  Municipal Commissioner,                     :       Member      Nagpur Municipal Corporation, Nagpur

8.  Municipal Commissioner,                     :       Member

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    Pune Municipal Corporation, Pune.  

9.  Shri M.K. Puradupadhye,                     :  Member Secretary     Deputy Secretary, (UD-20)     Urban Development Department,     Mantralaya, Mumbai.   

       It is also stated that the first meeting of the Committee  was held on 5th September, 2006 and various issues about the  street hawkers were discussed.  A decision was also taken in  the said meeting to inform all the Municipal Corporations/  Councils about the said Committee and a copy of the National  Policy on Urban Street Vendors was also circulated.  It is  stated that the next meeting has been fixed towards the  middle of February, 2007.          Finally, it is stated in the affidavit that the issue requires  survey and study of the various urban areas falling within the  jurisdiction of various Municipal Corporations / Councils and,  therefore, the State Government requires some time to frame  the regulations for implementing the National Policy on Urban  Street Vendors.  It is stated that the State Government would  be able to decide on the feasibility of the implementation by  May, 2007.           After noticing the contents of the statements in the  counter, we are happy to note that the State Government is  initiating a process for implementation of National Policy on  Urban Street Vendors by framing regulations as envisaged in  Section 10.1 of the National Policy.  We hope and trust that  the State Government will pursue the matter with right  earnest and bring it to logical conclusion within the time  stipulated.           We clarify that the regulations so framed by the State  would be in consonance with the aims and objects of the  National Policy to render some sort of succour to the urban  street vendors to eke out a living through hawking.          We also clarify that State Government shall frame  regulations in order to solve the problem of hawkers  independently without being influenced by any scheme framed  by us or any direction issued by this Court in the  interregnum.  We further clarify that the schemes and  directions issued by this Court are purely temporary in nature  and subject to regulations framed by the State Government in  terms of Section 10.1 of the National Policy on Urban Street  Vendors.  In other words, the schemes and directions issued  by this Court shall be valid only till the regulations are framed  and implemented.   All the Writ petitions, Contempt petitions except  Contempt petition No. 140 of 2006 are accordingly dismissed.   Issue notice in Contempt Petition No. 140 of 2006, returnable  within six weeks.           We would like to reiterate that no other Court shall  interpret the order of this Court or pass any order touching  upon the subject matter dealt with by this Court concerning  the issues in  hand.   Any writ petition pending in any High  Court on the same subject shall remain stayed.  If any  clarifications/ modifications are required, the same must be  obtained from this Court.           List the matter for further orders after six months.