http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 20  

PETITIONER: SODAN SINGH ETC. ETC.

       Vs.

RESPONDENT: NEW DELHI MUNICIPAL COMMITTEE & ANR. ETC.

DATE OF JUDGMENT30/08/1989

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) VENKATARAMIAH, E.S. (CJ) NATRAJAN, S. (J) OJHA, N.D. (J) KULDIP SINGH (J)

CITATION:  1989 AIR 1988            1989 SCR  (3)1038  1989 SCC  (4) 155        JT 1989 (3)   553  1989 SCALE  (2)430  CITATOR INFO :  R          1992 SC1153  (1,3)

ACT:     Constitution  of India, 1950:  Article  19(1)(g)--Street trading-An age old vocation adopted by human beings to  earn living--No  justification  to deny citizens  right  to  earn livelihood    using    public   streets   for    trade    or business--Regulatory  measures and  reasonable  restrictions can be imposed.     Delhi   Municipal   Corporation   Act,   1957:    Street trading--Necessity  to provide  regulatory  measures--Empha- sised.     Punjab Municipal Act, 1911: Street trading--Necessity to provide regulatory measures--Emphasised.

HEADNOTE:     The  petitioners  in these special leave  petitions  and writ petitions claim the right to engage in trading business on the pavements of roads of the city of Delhi. The  special leave petitions are against the judgments of the Delhi  High Court dismissing their claim.     It  is contended on behalf of the petitioners  that  (i) they  were  allowed  by the respondents  to  transact  their business by occupying a particular area on the pavements  on payment  of certain charges described as Tehbazari  and  the refusal  by  the  municipal authorities to  permit  them  to continue with their trade is violative of their  fundamental right guaranteed under Article 19(1)(g) of the Constitution; and (ii) the petitioners are poor people and depend on their business for their livelihood and if they are not allowed to occupy some specific places demarcated on the pavements on a permanent  basis  for  conducting their  business  they  may starve  which  will lead to violation of  their  fundamental right under Article 21 of the Constitution.     The respondents, on the other hand, contend that  nobody has  got  a legal right to occupy exclusively  a  particular area  on the road-pavement for pursuing a  trading  business and  nobody can claim any fundamental right in  this  regard

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 20  

whatsoever. 1039     Disposing  of the petitions and remitting the  cases  to the appropriate Division Bench for final disposal in accord- ance with this judgment, this Court,     HELD: E.S. Venkataramiah, C J, S. Natarajan, L.M. Sharma and N.D. Ojha ,JJ.] Per L.M. Sharma, J.     (1)  A  member of the public is entitled  to  legitimate user  of the road other than actually passing or  re-passing through it, provided that he does not create an unreasonable obstruction  which  may inconvenience other  persons  having similar right to pass and does not make excessive use of the road to the prejudice of the others. Liberty of an individu- al  comes to an end where the liberty of another  commences. [1050C, A-B]     (2) What will constitute public nuisance and what can be included  in the legitimate user can be ascertained only  by taking into account all the relevant circumstances including the  size of the road, the amount of traffic and the  nature of  the  additional  use one wants to  make  of  the  public streets.  This has to be judged objectively and  here  comes the role of public authorities. [1051E]     (3) 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  for  no  other use. Proper regulation  is,  however,  a necessary  condition as otherwise the very object of  laying out roads--to facilitate traffic--may be defeated.  Allowing the right to trade without appropriate control is likely  to lead  to unhealthy competition and quarrel  between  traders and  traveling  public  and sometimes  amongst  the  traders themselves  resulting  in  chaos. The right  is  subject  to reasonable  restrictions  under clause (6)  of  Article  19. [1052C-D]     (4) The proposition that all public streets and roads in India  vest  in the State but that the State holds  them  as trustee  on  behalf  of the public and the  members  of  the public are entitled as beneficiaries to use them as a matter of right, and that this right is limited only by the similar rights possessed by every other citizens to use the pathways and further that the State as trustee is entitled to  impose all necessary limitations on the character and extent of the user,  should  be treated as of universal  application.  The provisions of the Municipal Acts should be 1040 construed  in  the light of the above proposition  and  they should receive a beneficent interpretation. [1052E-G]     M.A.  Pal Mohd. v. R.K. Sadarangani, A.I.R.  (1985)  Mad 23;  C.S.S. Motor Service v. Madras State, A.I.R. 1953  Mad. 279; Saghir Ahmad v. The State of U.P. & Ors., [1955] 1  SCR 707;  liarper v. G.N. Haden & Sons Ltd., [1933] 1  Ch.  298; Bombay Hawkers Union & Ors. v. Bombay Municipal  Corporation JUDGMENT:     (5)  The  petitioners do have the fundamental  right  to carry on a trade or business of their choice, but not to  do so  on  a particular place, as circumstances are  likely  to change  from time to time. But that does not mean  that  the licence has to be granted on a daily basis; that arrangement cannot  be convenient to anybody, except in special  circum- stances. [1053F, 1057F]     Fertilizer  Corporation Kamgar Union v. Union of  India, [1981] 2 SCR 52; K. Rajendran v. State of Tamil Nadu, [1982] 3 SCR 628, referred to.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 20  

   (6) Article 21 is not attracted in the case of trade  or business-either  big  or small. The right to  carry  on  any trade  or  business  and the concept of  life  and  personal liberty  within  Article 21 are too remote to  be  connected together. [1054G]     Olga  Tellis  & Ors.v. Bombay  Municipal  Corporation  & Ors., [1985] 3 SCC 545, distinguished.     (7)  The provisions of the Delhi  Municipal  Corporation Act, 1957, are clear and the Municipal Corporation of  Delhi has  full authority to permit hawkers and squatters  on  the side walks where they consider it practical and  convenient. [1052G-H]     (8) The provisions of the Punjab Municipal Act, 1911, as applicable  to  New  Delhi area, should  receive  a  liberal construction  so that the New Delhi Municipal Committee  may be in a position to exercise full authority to permit  hawk- ers and squatters on pavements in certain areas. [1053A-C] Pyarelal v. N.D.M.C., [1967] 3 SCR 747 overruled. (9) A scheme should be drawn up as soon as possible contain- ing 1041 detailed  necessary  provisions dealing  with  all  relevant aspects, and capable of solving the problems arising in  the situation in a fair and equitable manner. [1057B-C]     (10) The demand of the petitioners that hawkers must  be permitted on every road in the city cannot be allowed. If  a road  is not wide enough to conveniently manage the  traffic on  it, no hawking may be permitted at all, or may be  sanc- tioned  only once a week, say on Sundays when the rush  con- siderably thins out. Hawking may also be justifiably prohib- ited near hospitals or where necessity of security  measures so demands. There may still be other circumstances  justify- ing  refusal to permit any kind of business on a  particular road. [1057E]     (11) Some of the hawkers in big cities are selling  very costly  luxury articles including  sophisticated  electronic goods, sometimes imported or smuggled. The authorities  will be  fully  justified to deny to such hawkers  any  facility. They may frame rules in such manner that it may benefit only the poor hawkers incapable of investing a substantial amount for  starting the business. Attempt should be made  to  make the  scheme comprehensive, dealing with every  relevant  as- pect,  for example, the charges to be levied, the  procedure for grant and revocation of the licences, etc. [1057H-1058B] Per Kuldip Singh, J.     (1)  The  guarantee under Article  19(1)(g)  extends  to practice  any  profession, or to carry  on  any  occupation, trade  or business. The object of using four  analogous  and overlapping words in Article 19(1)(g) is to make the guaran- teed  right as comprehensive as possible to include all  the avenues  and modes through which a man may earn his  liveli- hood.  In a nut-shell the guarantee takes into its fold  any activity  carried on by a citizen of India to earn his  liv- ing. The activity must of course be legitimate and no  anti- social  like  gambling, trafficking in women and  the  like. [1058H-1059C]     (2) Once street-trading is accepted as legitimate trade, business  or  occupation it automatically comes  within  the protection guaranteed under Article 19(1)(g) of the  Consti- tution of India. [1062E]     (3)  Street  trading is an age-old vocation  adopted  by human beings to earn living. It is one of the  traditionally recognised business or trade in England. This is so in spite of the fact that there is a complete social security in that country and as such no compulsion on the citizens to be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 20  

1042 driven to street trading out of poverty or unemployment.  On the  other hand, abysmal poverty in India warrants  outright rejection of the argument that nobody has a right to  engage himself in ’street trading’. [1059D,1062A-B]     (4)  There is no justification to deny the  citizens  of their  right to earn livelihood by using the public  streets for the purpose of trade and business. [1063B]     Saghir  Ahmad v. The State of U.P. & Ors., [1955] 1  SCR 707;  Manjur Hasan v. Mohammed Zaman, 52 I.A. 61; Himat  Lal K. Shah v. Commissioner of Police Ahmedabad & Anr., [1973] 2 SCR 266, referred to.     (5)  Street trading being a fundamental right has to  be made  available to the citizens subject to Article 19(6)  of the  constitution. It is within the domain of the  State  to make any law imposing reasonable restrictions in the  inter- est  of general public. This can be done by an enactment  on the same lines as in England or by any other law permissible under Article 19(6) of the Constitution. [1064B]     Bombay Hawkers Union & Ors. v. Bombay Municipal Corpora- tion  &  Ors., [1985] 3 SCR 528;  Municipal  Corporation  of Delhi v. Gurnam Kaur, A.I.R. 1989 S.C. 38, referred to.     (6)  The  skeletal  provisions in  the  Delhi  Municipal Corporation Act, 1957 and the Punjab Municipal Act, 1911 can hardly  provide any regulatory measures to the enormous  and complicated  problems  of  street trading  in  these  areas. [1063D]

&     CIVIL  APPELLATE/ORIGINAL  JURISDICTION:  Special  Leave Petition (C) No. 15257 of 1987. etc. etc.     From the Judgment and Order dated 23.4.1987 of the Delhi High Court in CMP No. 268 of 1987.     V.M. Tarkunde, D.D. Thakur, Govinda Mukhoty, A.P. Singh, K.N. Rai, S. Balakrishnan, R.N. Keswani, R.F. Nariman,  P.H. Parekh,  D.Y. Chanderchud, J.P. Pathak, Shishir Sharma,  Ms. Gitanjali, Mrs. Biraj Tiwari, Ms. Sunita Sharma, N.K. Sahoo, Arun Jaitley, Ms. Bina Gupta, Ms. Madhu Khatri, L.K.  Gupta, R.C.  Kaushik, Rajiv Sharma, B.S. Bali, M.C.  Dhingra,  A.S. Bawa, V.K. Verma, Kirpal Singh, A.S. Pundir, S.  Srinivasan, Mrs. Sushadra, B.B. 1043 Tawakley,  S.K. Mehta, Dhruv Mehta, Atul Nanda, Ms.  Mridula Ray,  R.M. Tewari, Ms. Rani Jethmalani, Ajit Singh Bawa  and Vijay Verma for the Petitioners.     G. Ramaswamy, Additional Solicitor General, R.B.  Datar, O.P. Sharma, Dr. L.M. Singhvi, A.K. Sen, Ranjit Kumar,  R.C. Gubrele,  R.K.  Maheshwari, Mensoor Ali,  A.M.  Singhvi,  D. Bhandari, N. Waziri, Mrs. Madhu Bhandari, K.B. Rohtagi, S.K. Dhingra,  Baldev  Atreya, S.B. Saharya, V.B.  Saharya,  K.R. Gupta, R.K. Sharrna, Vimal Sharda, Vivek Sharda, Mrs. Nanita Shanaa,  Aruneshwar  Gupta, Inderbir Singh Alag  and  Sushil Kumar for the Respondents.     Mrs. Sushma Suri, B.B. Sawhney, P.K. Manohar, Mrs. Indra Sawhney,  Mrs.  Abha Jain, P.K. Jain,  S.S.  Hussain,  Amlan Ghosh,  Jitendra  Sharma,  R.D. Upadhyay,  Y.K.  Jain,  D.D. Shanaa,  Rajesh,  Naresh Kabkshi, Mrs.  Urmila  Kapur,  M.M. Kashyap,  Anis  Ahmad Khan, Manjeet Chawla, S.N.  Bhatt,  N. Ganpathy,  P. Parmeshwaran, A.S. Pundir,  Pandey  Associate, Arun K. Sinha, M.B. Lal, A.K. Sanghi and S.M. Ashri for  the appearing parties. The following Judgments of the Court were delivered:     SHARMA, J. The petitioners in all these cases claim  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 20  

right  to  engage in trading business on  the  pavements  of roads  of  the city of Delhi. They have asserted  that  they have  been pursuing their trade with the permission  of  the municipal authorities for some time, but recently there  has been  illegal interference by them. Some of the  petitioners have  moved this Court under Article 32 of the  Constitution and others impugn adverse judgments of the Delhi High  Court dismissing their claim.     2. As the petitioners have challenged the correctness of the  decision of a Division Bench of this Court in  Pyarelal v.  N.D.M.C and another, (1967) 3 SCR page 747, these  cases were placed for hearing before a larger Bench.     3.  The petitioners, in their applications  before  this Court,  have alleged that they were allowed by the  respond- ents  to transact their business by occupying  a  particular area  on  the pavements, on payment of certain  charges  de- scribed  as  Tehbazari. It is contended that  the  municipal authorities  by their refusal to permit the  petitioners  to continue  with their trade are violating  their  fundamental right  guaranteed under Article 19(1)(g) and 21 of the  Con- stitution. They have also 1044 complained  of mala fides, arbitrariness and  discriminatory conduct attracting Article 14 of the Constitution.     4. The respondents, besides denying the facts alleged by the petitioners, contended that nobody has got a legal right to  occupy exclusively a particular area on  the  road-pave- ments for pursuing a trading business, and nobody can  claim any fundamental right in this regard whatsoever. It has been strenuously  urged that the roads are meant for the  use  of general  public for passing and re-passing and they are  not laid to facilitate the carrying on of private business.     5.  The main argument on behalf of the  petitioners  was addressed by Mr. Tarkunde, who appeared for petitioner Sodan Singh in S.L.P. No. 15257 of 1987. Several learned advocates representing  the  other petitioners, besides  adopting  the main  argument,  made brief supplementary  submissions.  The place where petitioner Sodan Singh claims to have the  right to  squat  for  soiling ready-made garments  is  within  New Delhi. Several other petitioners have similar claims against the New Delhi Municipal Committee. The remaining petitioners allege that they have been pursuing their squatting business within Delhi, as defined in the Delhi Municipal  Corporation Act,  which  is  administered by  the  respondent  Municipal Corporation  of Delhi. Separate arguments have been made  on behalf of the New Delhi Municipal Committee and the  Munici- pal Corporation of Delhi.     6.  Mr. Tarkunde urged that petitioner Sodan Singh is  a poor hawker making his both ends meet by selling  ready-made garments  on an area of 8’ x 24’ near Electric Pole No.  12, Janpath  Lane, New Delhi as illustrated in the attached  map Annexure--’A’  to the petition. Earlier he was permitted  to hawk  from time to time by the respondent under licences  as per Annexure ’A-2’, but now the privilege is being denied to him  and his goods were removed forcibly from  the  pavement and  were later released only on payment of cost of  removal charges.  In  the counter affidavit of  the  respondent  the allegations  have  been denied and it has been  pointed  out that  the  photo copy of the licence Annexure  ’A-2’  itself shows that the petitioner was permitted to sell ’Channa’ and ’Moongphali’ on a ’Vehngi’ on and around Bus-stop No. 430 on Pt.  Pant  Marg; and he was at no point of time  allowed  to occupy a fixed place for carrying on business in  ready-made garments. We do not propose to go into the facts of this  or the other petitions and would leave the individual cases  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 20  

be  dealt  with by the Division Bench in the  light  of  the general principle which will be discussed in this judgment. 1045     7. The Municipal Corporation of Delhi was established by a  notification  issued under s. 3 of  the  Delhi  Municipal Corporation  Act, 1957, and the provisions of that  Act  are relevant  for the majority of the present cases.  The  other cases  relate to the other areas forming part of  the  Union Territory of Delhi governed by the provisions of the  Punjab Municipal  Act, 1911. However, the main submissions  in  all these  cases  made on behalf of both sides  have  been  with respect to the general principles applicable in India  about the right to carry on business by squatting on pavements  of public streets.     8. Mr. Tarkunde contended that the petitioners are  poor people and depend on their business for their livelihood. If they  are  not  allowed to occupy some  specific  place  for conducting  their business, they may starve. This will  lead to violation of their fundamental right under Article 21  of the  Constitution.  Reliance was placed on the  decision  in Olga  Tellis and others v. Bombay Municipal Corporation  and others,  [1985] 3 SCC 545. The learned counsel further  said that  the  two respondents have been in  the  past  allowing squatter  traders on the pavements on payment  of  Tehbazari charges.  He drew our attention to the counter affidavit  of the  respondent in S.L.P. Nos. 4519-23 of 1986 at  page  146 where a resolution by the New Delhi Municipal Committee  has been mentioned in paragraph III. In the case of Delhi Munic- ipal  Corporation  also several documents have  been  relied upon for showing that specific areas have been allowed to be occupied  for the purpose of trading business from  time  to time. The learned counsel argued that since the two  munici- palities  have been settling specific areas for the  purpose of  squatting,  it  is not open to them  to  deny  squatting rights  to  the petitioners and other  persons  situated  in similar circumstances.     9.  In Pyare Lal etc. v. N.D.M.C., [1967] 3 SCR 747  the New  Delhi  Municipal Committee banned the  sale  of  cooked edibles  on public streets, and prevented  the  petitioners, licensed  vendors  of potato chops and other  edibles,  from continuing with their business. After unsuccessfully  moving the Punjab High Court, they came to this Court. The  appeals were dismissed holding that persons in India cannot claim  a lawful right to pursue street trading, and the N.D.M.C.  was perfectly  authorised  to  take steps under s.  173  of  the Punjab Municipal Act for stopping the business. It was  also observed  that the N.D.M.C. was not empowered under the  Act to  allow trade on public streets on a permanent  basis  and that  permission for sale of goods could be granted only  on special  occasions  on  temporary basis as in  the  case  of festivals etc. Reliance had been placed on behalf of the 1046 petitioners  on  certain passages from  Halsbury’s  Laws  of England,  which the Court distinguished on the  ground  that street trading was regulated by certain statutes in England, and  there were no such provisions applicable in  the  cases before  this  Court. The right to pursue street  trading  in India was thus negatived. Mr. Tarkunde contended that it  is not correct to deny the members of the public their right to engage in business on the public streets in the country.  He said  that this is one of the fundamental rights  guaranteed both,  under Article 19(1)(g) and Article 21.  According  to the  learned counsel, the practice of the street trading  is well  established for a considerable time in all  the  civi- lised  countries of the world including India,  England  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 20  

United  States of America. Refuting the suggestion  made  on behalf  of  the respondents that it was only  a  hawker  who sells his goods while moving from door to door and place  to place  who  is allowed on the public streets,  Mr.  Tarkunde referred to Halsbury’s Laws of England, Vol. 40,  paragraphs 431  to  446 under the heading ’Street  Trading  in  Greater London’.  It was suggested that the right of the members  of the  public  in this regard was rounded on  the  common  law right.  The  learned  counsel further relied  on  the  third paragraph  of s. 253 of the Chapter ’Highways, Streets,  and Bridges’  of 39 American Jurisprudence (2nd  Edition)  which reads as follows:               "A municipality’s power to regulate the use of               streets  for private gain is to  be  liberally               construed. The purpose of such regulations  is               to promote public safety, and not to  regulate               and control indirectly the user’s business  as               such. There is no authority in a  municipality               to  prohibit  the  use of the  street  by  any               citizen or corporation in the carrying on of a               legitimate  business, harmless in  itself  and               useful to the community, which is  independent               of  the  police power under  which  reasonable               regulations  in  the promotion of  the  public               order,   safety,  health,  and   welfare   are               proper."     10.  In his reply Mr. Singhvi, the learned  counsel  for N.D.M.C.  pointed out that the first two paragraphs  of  the aforementioned  s. 253 which are quoted’ below negative  the right asserted on behalf of the petitioners and paragraph  3 mentioned above has to be read in that light.               "S. 253. Business purposes:                         Individuals do not have the inherent               right to conduct their private business in the               streets, nor can they acquire a               1047               vested  right to use the streets for  carrying               on a commercial business. However, individuals               do  have the right to use the streets to  some               extent for the purpose of bartering or trading               with  each other, or for prosecuting  a  busi-               ness, trade, or calling, although they  cannot               legally carry on any part of their business in               the  public  streets to the annoyance  of  the               public,  or supply the deficiencies  in  their               own  premises  by monopolizing the  street  or               walk.                         The use of public streets as a place               for the prosecution of a private business  for               gain  is generally recognised as a special  or               extraordinary use which the controlling public               authority may prohibit or regulate as it deems               proper.  When a municipality does permit  pri-               vate individuals to have exclusive  possession               of  the street surface for a private  business               use, such permit is so unusual, and beyond the               ordinary authority and power of a  municipali-               ty, that it may not issue such a permit in the               absence of special enabling state legislation.               Assuming that such power exists, the  granting               of  permission to a private person to  so  use               the  streets is totally within the  discretion               of the municipality." The  learned counsel contended that the grant  of  exclusive right to occupy any part of the road amounts to the negation

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 20  

of the Common Law theory of dedication of a road for  public use.    11. Reference was also made on behalf of the  petitioners to  the  judgment  in M.A. Pal Mohd.  v.  R.K.  Sadarangani, A.I.R.  1985 Madras 23, wherein it was observed that  hawker trade so long as it is properly regulated by public authori- ties could never be a public nuisance; rather it serves  the convenience  of the public. and is found not only  in  India but also in other countries.     12.  The  question of applicability of the  English  and American  laws  on the present aspect was  considered  by  a Division  Bench  of the Madras High Court  in  C.S.S.  Motor Service  v.  Madras State, A.I.R. 1953 Madras  279  and  the decision was later approved by this Court in Saghir Ahmad v. The  State  of U.P. and others, [1955] 1 SCR  707.  After  a thorough consideration of the relevant materials Venkatarama Aiyar, J. who delivered the judgment pointed out some of the basic differences in the law of this country on the  present subject from the American and English laws, which render the American  decisions  inapplicable on  certain  aspects.  The right to carry on business, 1048 although recognised as one of the liberties protected by the American  Constitution, did not acquire the full  status  of the  freedoms expressly mentioned in the Constitution,  such as,  the freedom of speech, of person, and of religion;  and was viewed somewhat in the light of an interloper or parvenu among them. The freedoms expressly mentioned in the American Constitution occupy an exalted position which was denied  to the  unexpressed  freedoms including the right to  carry  on business. Under the Indian Constitution this right is one of the freedoms expressly protected under Article 19(1)(g)  and is  placed  on the same footing as freedom of  speech,  etc. Further only some trades could be carried on by the American citizens  as a matter of right and the others including  the transport business on public roads only if the State permit- ted. The learned Judge observed that this is called a  ’fra- nchise’ or a ’privilege’ and has an English origin. That  is not  the case in this country, inasmuch as Article  19(1)(g) does  not make any distinction from trade to trade.  So  far England  is  concerned,  the rights of  citizens  to  public pathways  originated  in feudal times when  the  lands  were owned  by  individuals. The public highways  generally  pass through these lands and since the citizens were using  these roads  the law inferred a dedication of the pathways by  the owners  for user by the public, but the extent of this  user was  limited to the passing and re-passing on the road.  The position in India has always remained somewhat different and has  been  summarized  in paragraph 24 of  the  judgment  of Venkatarama Aiyar J., in the following terms, which has been quoted with approval by this Court in Saghir Ahmad’s case.                         "The true position then is that  all               public streets and roads vest in the State but               that the State holds them as trustee on behalf               of  the public. The members of the public  are               entitled  as  beneficiaries to use them  as  a               matter of right and this right is limited only               by the similar rights possessed by every other               citizen  to  use the pathways.  The  State  as               trustees  on behalf of the public is  entitled               to impose all such limitations on the  charac-               ter and extent of the user as may be requisite               for protecting the rights of the public gener-               ally. Thus the nature of the road may be  such               that it may not be suitable for heavy  traffic

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 20  

             and  it will be within the competence  of  the               legislature to limit the use of the streets to               vehicles which do not exceed specified size or               weight. Such regulations have been held to  be               valid as within the police power of the  State               in  America. Vide ’Morris v. Budy’, [1927]  71               Law  Ed. 968, Sproles v. Bindford’, [1932]  76               Law  Ed.  1167, and--South Carolina  State  v.               Barnwell               1049               Bros.’[1938]  82  Law Ed. 734.  For  the  same               reason  the  State  might  even  prohibit  the               running  of  transport buses  and  lorries               on particular streets or roads if such running               would interfere with the rights of pedestrians               to pass and re-pass as it might if the  street               is  narrow  or conjested but subject  to  such               limitations the right of a citizen to carry on               business  in  transport  vehicles  on   public               pathways cannot be denied to him on the ground               that the State owns the highways."     13.  Mr.  Singhvi is correct in pointing  out  that  the passages of the American and English laws, as relied upon on behalf  of the petitioners, do not establish their right  to carry  on trading business on public streets, but  for  that reason  their claim cannot be rejected either. The  question requires  to  be examined further. The observations  in  the judgment  of Venkatarama Aiyer, J. quoted above prima  facie support  the petitioners. They received express approval  of this Court in Saghir Ahmad’s case, but there is an important distinction between those cases and the present matter which cannot  be ignored. In both the above cases the  petitioners were  claiming the right to ply transport vehicles for  hire on  public streets; in other words, they wanted to  use  the roads for transport, for which the roads were primarily laid out  and  while  so doing attempted to earn  money.  In  the present  cases  before us the petitioners  are  desirous  of conducting  their  trade business by sale of  goods  on  the roads  from stationary points; they do not want to make  use of the roads for movement of persons or goods. The  question is whether this makes a material difference.     14. The primary object of building roads is  undoubtedly to  facilitate people to travel from one point  to  another. Quoting several authorities Byron K. Elliott and William  F. Elliott  in their treatise on the Law of Roads  and  Streets have  defined  a street as a road or public way in  a  city, town or village. A way over land set apart for public travel in a town or city is a street, no matter by what name it may be  called. If a way is free to all people it is a  highway. P.  Duraiswami Aiyangar in his book dealing with the Law  of Municipal  Corporation  in  British India  (1914  Edn.)  has observed that the primary and paramount use of the street is public  travel  for man, beast and carriage  for  goods.  On behalf  of the respondents reliance has been placed  on  the oft-repeated  adage that public have a right of passing  and repassing through a street but have no right "to be on  it", which  Sri  Aiyangar also has mentioned at page 542  of  his book. Halsbury, relied upon by both sides, has stated  (Vol. 21 paragraph 107) that the right of 1050 the  public is a right to pass alone a highway for the  pur- pose of legitimate travel, not to be on it, except so far as the  public’s presence is attributable to a  reasonable  and proper  user of the highway as such. These  statements  cer- tainly  do not mean that a traveler has to be  in  perpetual

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 20  

motion  when he is in a public street. It may  be  essential for him to stop sometime for various reasons--he may have to alight  from a vehicle or pick up a friend, collect  certain articles  or unload goods or has to take some rest  after  a long and strenuous journey, What is, required of him is that he  should not create an unreasonable obstruction which  may inconvenience other persons having similar right to pass; he should  not make excessive use of the road to the  prejudice of  the  others. Liberty of an individual comes  to  an  end where  the liberty of another commences. Subject to this,  a member  of the public is entitled to legitimate user of  the road other than actually passing or re-passing through it.     15. It has been sometimes argued that since a person  is entitled  to the user of every part of a public  street,  he cannot  be  deprived of the use of any  portion  thereof  by putting  up  of  any obstruction. This  proposition  in  its extreme  form  cannot be accepted without subjecting  it  to several restrictions. A similar argument was pressed  before the Madras High Court in the case of M.A. Pal Mohd. v.  R.K. Sadarangani,  (supra) based on the provisions of the  Madras City  Municipal Corporation Act, 1919, and was  rightly  re- pelled  by  pointing  out that since the  pavement  is  also included  within  the expression ’street’, a member  of  the public relying upon the aforesaid proposition can insist  on his right to walk over a flower-bed or structure erected  by the public authorities for regulating traffic which will  be wholly unpractical. The authorities are duty bound to locate post boxes, fire hydrants with water tanks, milk booths, bus or jutka stands, rubbish bine etc., in appropriate places in a  public street and it would be preposterous to  hold  that this cannot be done as somebody may insist on keeping  every inch  of the street available for actual  passage.  Winfield and  Jolowicz  in their book on Tort (12th Edn.)  have  said that nuisance may be defined, with reference to highways, as any wrongful act or omission upon or near a highway, whereby the  public are prevented from freely, safely,  and  conven- iently  passing along the highway and that the law  requires of users of the highway a certain amount of "give and take". The case of Harper v. G.N. Maden and Sons, Limited, [1933] 1 Ch. 298 illustrates this point. The defendants there who had their  house abutting the road decided to add another  floor to  their  existing premises. Before  starting  construction they erected "scaffolding" resting On the footpath, and  put up a wooden hoarding 1051 next door to the plaintiff’s shop for the purpose of enclos- ing  a  space to be used, during the  alterations  to  their building,  for depositing bricks and other materials. In  an action  by  the plaintiff, for injunction and  damages,  the trial Judge held that although the scaffolding and  hoarding were reasonably necessary for the construction and they  did not  cause any greater obstruction or remain for any  longer period  than was reasonably necessary, the  obstruction  was illegal  and that the plaintiff was entitled to damages.  On appeal  the judgment Was reversed holding that the  obstruc- tion to the highway and to the enjoyment by the plaintiff of his  adjoining  premises being of  temporary  character  and being  reasonable  in quantum and in duration did  not  give rise to a legal remedy. It was very well said that:               "The  law relating to the user of highways  is               in  truth the law of give and take. Those  who               use  them  must in doing  so  have  reasonable               regard  to  the  convenience  and  comfort  of               others,  and  must  not  themselves  expect  a               degree of convenience and comfort only obtain-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 20  

             able  by  disregarding that of  other  people.               They must expect to be obstructed  occasional-               ly. It is the price they pay for the privilege               of obstructing others."     As to what will constitute public nuisance and what  can be  included in the legitimate user can be ascertained  only by  taking into account all the relevant  circumstances  in- cluding the size of the road, the amount of traffic and  the nature of the additional use one wants to make of the public streets.  This has to be judged objectively and  here  comes the role of public authorities.     16.  So  far as right of a hawker to  transact  business while  going from place to place is concerned, it  has  been admittedly  recognised  for a long period. Of  course,  that also  is  subject to proper regulation in  the  interest  of general  convenience  of  the public  including  health  and security  considerations. What about the right to  squat  on the  road  side  for engaging in trading  business?  As  was stated  by this Court in Bombay Hawkers Union and others  v. Bombay  Municipal Corporation and others, [1985] 3 SCR  528, the public streets by their nomenclature and definition  are meant  for the use of the general public: they are not  laid to facilitate the carrying on of private business. If  hawk- ers  were  to be conceded the right claimed  by  them,  they could  hold the society to ransom by squatting on  the  busy thoroughfares,  thereby paralysing all civic life.  This  is one  side  of the picture. On the other  hand,  if  properly regulated  according to the exigency of  the  circumstances, the small 1052 traders  on the said walks can considerably add to the  com- fort and convenience of general public, by making  available ordinary  articles  of  every day use  for  a  comparatively lesser  price. An ordinary person, not very affluent,  while hurrying towards his home after day’s work can pick up these articles  without  going out of his way to  find  a  regular market.  If  the circumstances are appropriate and  a  small trader  can do some business for personal gain on the  pave- ment to the advantage of the general public and without  any discomfort  or  annoyance to the others, we do not  see  any objection to his carrying on the business. Appreciating this analogy the municipalities of different cities and towns  in the  country have been allowing such traders. 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 for no other  use. Proper  regulation  is, however, a  necessary  condition  as otherwise the very object of laying out roads-to  facilitate traffic--may be defeated. Allowing the right to trade  with- out  appropriate  control  is likely to  lead  to  unhealthy competition  and  quarrel  between  traders  and  travelling public and sometimes amongst the traders themselves  result- ing  in chaos. The right is subject to  reasonable  restric- tions  under  clause  (6) of Article 19. If  the  matter  is examined  in  this light it will appear that  the  principle stated  in Saghir Ahmad’s case in connection with  transport business applies to the hawkers’ case also. The  proposition that all public streets and roads in India vest in the State but  that the State holds them as trustee on behalf  of  the public, and the members of the public are entitled as  bene- ficiaries  to use them as a matter of right, and  that  this right  is  limited only by the similar fights  possessed  by every  other citizen to use the pathways, and  further  that the  State  as trustee is entitled to impose  all  necessary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 20  

limitations on the character and extent of the user,  should be treated as of universal application.     17.  The  provisions  of the Municipal  Acts  should  be construed in the light of the above proposition. In case  of ambiguity, they should receive a beneficial  interpretation, which  may enable the municipalities to  liberally  exercise their authority both, in granting permission to  individuals for making other uses of the pavements, and, for removal  of any encroachment which may, in their opinion, be  constitut- ing  undesirable obstruction to the travelling  public.  The provisions of the Delhi Municipal Corporation Act, 1957, are clear  and  nobody  disputes before us  that  the  Municipal Corporation  of Delhi has full authority to  permit  hawkers and  squatters  on  the side walks where  they  consider  it practical and convenient. In so far the Punjab Municipal Act 1911 1053 applying  to  the  New Delhi area is  concerned,  the  Bench constituted by three learned Judges observed in Pyare  Lal’s case [1967] 3 SCR 747 that the provisions did not  authorise the  municipality  to  permit stalls to be  set  up  in  the streets except temporarily on special occasions, like festi- vals, etc. and that the permission to the petitioner in that case  had  been wrongly granted initially. We do  not  agree with  these  observations, although it appears that  in  the light of the other circumstances, indicated in the judgment, the  decision was a correct one. The provisions of both  ss. 173 and 188 should receive liberal construction, so that the New Delhi Municipal Committee may be in a position to  exer- cise  full  authority. Indeed some of the documents  on  the records  before us indicate that the Committee had  been  in the past actually permitting hawkers and squatters on  pave- ments in certain areas.     18.  The  controversy  in the  present  cases,  however, cannot  be settled by what has been said earlier. The  claim of the petitioners before us is much higher. They assert the right  to occupy specific places on road pavements  alleging that they have been so doing in the past. As has been stated earlier,  the facts have been disputed and individual  cases will  be considered separately in the light of  the  present judgment.  The argument, however, which has been pressed  on behalf of the petitioners is that they have their  fundamen- tal rights guaranteed by Articles 19 and 21 of the Constitu- tion  to occupy specific places demarcated on the  pavements on  a permanent basis for running their business. We do  not think there is any question of application of Article 21 and we  will be briefly indicating our reasons therefore  later. But can there be at all a fundamental right of a citizen  to occupy a particular place on the pavement where he can squat and  engage  in trading business? We have no  hesitation  in answering the issue against the petitioners. The petitioners do  have the fundamental right to carry on a trade or  busi- ness  of  their  choice, but not to do so  on  a  particular place.  The position can be appreciated better in the  light of  two  decisions of this Court in  Fertilizer  Corporation Kamgar  Union  v. Union of India, [1981] 2 SCR  52,  and  K. Rajendran v. State of Tamil Nadu, [1982] 3 SCR 628.     19.  In the Fertilizer Corporation case the  workmen  of the  respondent Corporation challenged the legality  of  the sale  of certain plants and equipments of the Sindri  Ferti- lizer  Factory inter alia on the ground that a large  number of workers would be retrenched as a result of the sale. They argued that the sale would deprive them of their fundamental right under Article 19(1)(g) to carry on their occupation as industrial  workers.  A Bench of five Judges of  this  Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 20  

rejected the 1054 plea  holding  that  Article 19(1)(g) confers  a  broad  and general  right which is available to all persons to do  work of  a particular kind and of their choice, but it  does  not confer  the  right to hold a particular job or to  occupy  a particular  post  of  one’s choice. The right  to  pursue  a calling  or to carry on an occupation is not the same  thing as  the right to work in a particular post. If  the  workers were  retrenched consequent upon and on account of the  sale it would be open to them to pursue their rights and remedies under  the labour laws. But the closure of an  establishment in  which a workman for the time being was employed did  not by  itself  infringe his fundamental right to  carry  on  an occupation  which  is guaranteed by Article  19(1)(g).  "The choice  and  freedom of the workers to  work  as  industrial workers  is  not affected by the sale. The sale may  at  the highest  affect  their locum, but it does not  affect  their locus,  to  work  as industrial worker"  This  decision  was followed in K. Rajendran v. State of Tamil Nadu, which arose out of a policy decision taken by the State of Tamil Nadu to abolish  all  the posts of part-time  Village  Officers.  An Ordinance  was  promulgated for this purpose and  was  later replaced  by an Act. Rejecting the appeal of the  appellants this Court held that the impugned Act did not violate  Arti- cle  19(1)(g) as it did not affect the right of  the  incum- bents  of posts to carry on any occupation of their  choice, even  though  they may not be able to stick on to  the  post which they were holding. The ratio of these decisions  apply with  full  force to the cases where the right to  pursue  a trade or business is involved. If the opposite view is taken and the plea of the petitioners is allowed a chaotic  situa- tion  may follow. They may be entitled to insist  that  they would carry on their business anywhere they like, either  on the roads or in the government schools or hospitals or other public buildings. They may like to enter the class-rooms  or the  patient  wards or any public office  to  advance  their prospects. As was observed in the Bombay Hawkers case [1985] 3 SCC 528, they can hold the society to ransom by  squatting on the busy thoroughfare, thereby paralysing all civic life.     20. We do not find any merit in the argument rounded  on Article 21 of the Constitution. In our opinion Article 21 is not attracted in a case of trade or business--either big  or small.  The right to carry on any trade or business and  the concept  of life and personal liberty within Article 21  are too remote to be connected together. The case of Olga Tellis and  others  v.  Bombay Municipal  Corporation  and  others, [1985]  3  SCC  545, heavily relied upon on  behalf  of  the petitioners, is clearly distinguishable. The petitioners  in that  case  were very poor persons who  had  made  pavements their  homes  existing in the midst of  filth  and  squalor, which had to be seen to be believed. Rabid dogs in search of 1055 stinking  meat and cats in search of hungry rats  kept  them company.  They  cooked and slept where they  cased,  for  no conveniences were available to them. Their daughters, coming of age, bathed under the nosy gaze of passers-by,  unmindful of  the feminine sense of bashfulness. They had to  stay  on the pavements, so that they could get odd jobs in the  city. It  was not a case .of a business of selling articles  after investing some capital, howsoever meagre. It is  significant to note that the judgment in Bombay Hawkers Union and others v.  Bombay  Municipal Corporation and Others, [1985]  3  SCR 528,  and that in Olga Telils were delivered within a  week, both  by  Y.V.  Chandrachud, C.J. and some  of  the  counsel

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 20  

appearing  m two cases were common, and that  while  dealing with the rights of the squatting hawkers in the former  case the learned Chief Justice confined the consideration of  the right  under Article 19(1)(g) of the Constitution.  Besides, the Court in the Olga Tellis affirmed the validity of s. 314 of the Bombay Municipal Corporation Act on the ground that               "Removal of encroachments on the footpaths  or               pavements over which the public has the  right               of  passage or access, cannot be  regarded  as               unreasonable, unfair or unjust." In this connection the Court further proceeded to say,               "Footpaths or pavements are public  properties               which are intended to serve the convenience of               the  general  public. They are  not  laid  for               private  use and indeed, their use for a  pri-               vate  purpose frustrates the very  object  for               which  they  are carved out from  portions  of               public streets. The main reason for laying out               pavements  is to ensure that  the  pedestrians               are able to go about their daily affairs  with               a  reasonable measure of safety and  security.               That facility, which has matured into a  right               of the pedestrians, cannot be set at naught by               allowing  encroachments  to  be  made  on  the               pavements. There is no substance in the  argu-               ment  advanced  on behalf of  the  petitioners               that the claim of the pavement dwellers to put               up constructions on pavements and that of  the               pedestrians  to make use of the pavements               for  passing repassing, are  competing  claims               and that the former should be preferred to the               latter. No one has the right to make use of  a               public property for a private purpose  without               the requisite authorisation and, therefore, it               is  erroneous  to contend  that  the  pavement               dwellers have the               1056               right to encroach upon pavements by construct-               ing  dwellings  thereon.  Public  streets,  of               which  pavements  form a part,  are  primarily               dedicated for the purpose of passage and, even               the pedestrians have but the limited right  of               using pavements for the purpose of passing and               repassing. So long as a person does not trans-               gress the limited purpose for which the  pave-               ments are made, his use thereof is  legitimate               and  lawful. But, if a person puts any  public               property to a use for which it is not intended               and is not authorised to use it, he becomes  a               trespasser. The common example which is  cited               in  some of the English cases (see, for  exam-               ple, Hicknan v. Maisey, ) is that if a person,               while  using a highway for passage, sits  down               for a time to rest himself by the side of  the               road, he does not commit a trespass. But, if a               person  puts  up a dwelling on  the  pavement,               whatever  may  be  the  economic   compulsions               behind  such an act, his user of the  pavement               would become unauthorised." It  is also worth noting that assurances had been  given  on behalf  of the State Government in its pleading before  this Court which was repeatedly mentioned in the judgment.     21. On behalf of some of the petitioners it was contend- ed that in view of the inclusion of the word "socialist"  in the  Preamble  of  the Constitution by  the  42nd  Amendment

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 20  

greater  concern must be shown to improve the  condition  of the poor population in the country, and every effort  should be  made to allow them as much benefit as may  be  possible. There cannot be any quarrel with this proposition, but  that by itself cannot remedy all the problems arising from pover- ty. Even the Constitution as it stood originally was commit- ted  to economic justice and welfare of the needy.  But  for that  reason either then or now the other provisions of  the Constitution  and the laws cannot be ignored. It is,  there- fore, not possible to interpret the decision in Olga  Tellis in  the manner to interpret the decision in Olga  Tellis  in the manner suggested on behalf of the petitioners to bolster their case with the aid of Article 21.     22. During his argument Mr. Tarkunde fairly stated  that the  Municipal  Committee may be entitled  to  regulate  the squatting  business of the petitioners, but they  must  make detailed schemes in this regard. A serious concern was shown in the argument of the other learned advocates also alleging that corruption at large scale was 1057 rampant and huge amounts of money were being realised  ille- gally by some of the servants of the Municipalities from the poor hawkers. No rules have been framed with respect to  the choice of the persons, the area to be allowed to them or the rate of Tehbazari charges. The permission to squat was being granted  on  daily basis or for very short  periods  to  the great  inconvenience  to the hawkers and  no  machinery  was available to hear their grievances. A draft scheme has  been prepared  and  filed  on behalf of the  petitioners  with  a suggestion that the respondents may be directed to adopt it. On  behalf  of the respondents it was  said  that  statutory provisions are already there in this regard, but they had to concede  that they are too sketchy and incapable of  meeting the  need.  We are, in the circumstances, of the  view  that detailed  necessary  provisions, dealing with  all  relevant aspects, and capable of solving the problems arising in  the situation  in a fair and equitable manner, should  be  made; and, the respondents should proceed as soon as may be possi- ble.  They will be well advised to consider the  suggestions of the petitioners while finalising the schemes. Due  regard to the requirements of the relevant laws, e.g., Delhi Police Act,  1978  and  the Delhi Control of  Vehicular  and  other Traffic  on Roads and Streets Regulation, 1980 will have  to be given.     23. We would, however, make’it clear that the demand  of the petitioners that the hawkers must be permitted on  every road  in the city cannot be allowed. If a road is  not  wide enough to conveniently manage the traffic on it, no  hawking may  be permitted at all, or may be sanctioned only  once  a week,  say on Sundays when the rush considerably thins  out. Hawking may also be justifiably prohibited near hospitals or where  necessity of security measures so demands. There  may still  be other circumstances justifying refusal  to  permit any  kind  of business on a particular road. The  demand  on behalf  of  the petitioners that permission to  squat  on  a particular place must be on a permanent basis also has to be rejected as circumstances are likely to change from time  to time.  But  this does not mean that the licence  has  to  be granted  on  the  daily basis; that  arrangement  cannot  be convenient to anybody, except in special circumstances.     24.  The  authorities, while adopting a  scheme,  should also  consider  the  question as to which  portions  of  the pavements should be left free for pedestrians and the number of  the squatters to be allowed on a particular road.  There should be rational basis for the choice of the licensees.  A

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 20  

policy  decision should be taken in regard to  the  articles which should be permitted to be sold on the pavements. It is common  knowledge  (as was taken note of in  Bombay  Hawkers case) that some 1058 of the hawkers in big cities are selling very costly  luxury articles including sophisticated electronic goods, sometimes imported  or smuggled. The authorities will be fully  justi- fied  to deny to such hawkers any facility. They  may  frame rules  in  such a manner that it may benefit only  the  poor hawkers  incapable  of investing a  substantial  amount  for starting  the business. Attempt should be made to  make  the scheme  comprehensive, dealing with every  relevant  aspect, for  example,  the charges to be levied, the  procedure  for grant and revocation of the licences, et cetera.     25.  We  as a Court in a welfare State  do  realise  the hardship to which many of the petitioners may be exposed  if they  are prevented from carrying on the business. The  only solution  for  this is the adoption of the  policy  of  full employment, which even according to leading economists  like Keynes will alleviate the problems of the unemployed to some extent.  But as students of economics we also  realise  that every human activity has the ’optimum point’ beyond which it becomes  wholly  unproductive. It is for the  Government  to take  reasonable  steps to prevent movement of  people  from rural areas to urban areas. That can be done by the develop- ment of urban centers in rural areas removed from each other at  least  by one hundred miles. This is more  a  matter  of executive  policy than for judicial fiat. We hope and  trust that in administering the laws in force the authorities will keep in view humane considerations. With these  observations we  dispose of these petitions and remit them to the  appro- priate Division Bench for final disposal in accordance  with this judgment.     KULDIP  SINGH,  J. I have read the erudite  judgment  of L.M.  Sharma, J, wherein it has been held that street  trad- ing,  whether as an itinerant vendor/hawker or from  a  sta- tionary position/receptacle/ kiosk/foot-path, is a fundamen- tal right guaranteed under Article 19(1)(g) of the Constitu- tion  of India. The said right is obviously subject to  rea- sonable  restrictions  imposed by the  State  under  Article 19(6)  of  the Constitution. It has further been  held  that there  is  no  fundamental right of a citizen  to  occupy  a particular  place in any street for the purpose of  engaging himself in ’street trading.’ I respectfully agree with these findings  arrived at by Sharma, J. I may, however,  add  few words to support these findings.     The guarantee under Article 19(1)(g) extends to practice any  profession,  or to carry on any  occupation,  trade  or business.  ’Profession’ means an occupation carried on by  a person by virtue of his personal and specialised  qualifica- tions, training or skill. The word 1059 ’ocCupation’  has a wide meaning such as any  regular  work, profession, job, principal activity, employment, business or a calling in which an individual is engaged. ’Trade’ in  its wider sense includes any bargain or sale, any occupation  or business carried on for subsistence or profit, it is an  act of buying and selling of goods and services. It may  inclUde any business carried on with a view to profit whether manual or  mercantile.  ’Business’ is a very wide  term  and  would include  anything  which occupies the  time,  attention  and labour of a man for the purpose of profit. It may include in its form trade, profession, industrial and commercial opera- tions,  purchase and sale of goods, and would  include  any-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 20  

thing which is an occupation as distinguished from pleasure. The object of using four analogous and overlapping words  in Article 19(l)(g) is to make the guaranteed right as  compre- hensive  as  possible to include all the avenues  and  modes through which a man may earn his livelihood. In a  nut-shell the  guarantee takes into fold any activity carried on by  a citizen  of India to earn his living. The activity  must  of course  be  legitimate and not  anti-social  like  gambling, trafficking in women and the like.     Street  trading is an age-old vocation adopted by  human beings to earn living. In the olden days the venue of  trad- ing and business has always been the public streets but,  in the course of time fairs, markets, bazars and more  recently big shopping complexes and fashionable plazas have come  up. In  spite of this evolution in business and  trade  patterns the  ’street trading’ is accepted as one of  the  legitimate modes of earning livelihood even in the most affluent  coun- tries  of  the world. In England ’street trading’  has  been regulated by various Acts of Parliament. Paras 425 to 448 of Halsbury’s  Laws of England, Fourth edition, Volume 40  deal with  this  subject.  Paras 427 to 430  pertain  to  ’street trading’  in  districts as regulated by  the  provisions  of Local Government (Miscellaneous Provisions) Act, 1982. Paras 427 and 428 are reproduced as under:               "427--  Adoption  of street trading  code  and               designation of streets. A district council may               resolve  that  the street trading code  is  to               apply to its district as from a specified day.                         Where  it  has done so,  it  may  by               resolution  designate any street in  its  dis-               trict as a ’prohibited street’ in which street               trading  is prohibited, a ’licence street’  in               which  steet trading is prohibited  without  a               licence granted by the district council, or  a               ’consent  street’ in which street  trading  is               prohibited without its consent."               1060 "428.--Street trading licences. Application for the grant or renewal of a street trading licence under the street trading code  may  be made by any person aged seventeen or  over  in writing to the district council. The council is under a duty to  grant the application unless it considers that it  ought to be refused on one or more of the following grounds: (1)  that  there is not enough space for  the  applicant  to trade without causing undue interference or inconvenience to street users; (2)  that  there are already enough traders trading  in  the street from shops or otherwise in the particular goods; (3)  that the applicant desires to trade on fewer  than  the minimum number of days resolved on by the council; (4)  that  by reason of some conviction or otherwise  he  is unsuitable; (5)  that he has been licensed by the council but  has  per- sistently refused or neglected to pay its fees or charges; (6) that he has been granted a street trading consent by the council but has refused or neglected to pay its fees; (7)  that he has without reasonable excuse failed  to  avail himself to a reasonable extent of a previous licence.           The licence specifies the street in which, days on which and times between which, and describes the articles in which,  the  licence holder is permitted to trade,  and  may contain such subsidiary terms as the council thinks reasona- ble.  Unless previously revoked or surrendered,  it  remains valid  for twelve months or such period as is  specified  in it,  although  if the council resolves that  the  street  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 20  

designated  a  prohibited street the licence  ceases  to  be valid  when the resolution takes affect. The council may  at any  time revoke a licence on grounds similar to heads  (1), (4),  (5) and (7) above, and the licence holder may  at  any time surrender his licence to the council. On receiving an application for the grant or renewal of a 1061               licence, the council must within a  reasonable               time either grant the licence as applied  for,               or serve on the applicant a notice specifying,               with  its grounds, its proposal to refuse  the               application,  to grant a licence on  different               principal terms, to grant a licence limited to               a  particular place in a street, to  vary  the               principal  terms or to revoke a  licence,  and               stating  that within seven days  of  receiving               the notice the applicant may by written notice               require the council to give him the opportuni-               ty of making representations. In this case the               council  may  not determine the  matter  until               either the applicant has made representations,               or  the time for doing so has elapsed, or  the               applicant  has failed to make the  representa-               tions  which he required the council to  allow               him to make.                        A person aggrieved by certain  refus-               als or decisions of a council may appeal to  a               magistrates’ court, and appeal from the magis-               trates’ decision lies to the Crown Court.  The               council must give effect to the court’s  deci-               sion.                        If  a licence holder applies for  the               renewal  of a licence before it  expires,  the               old licence remains valid until a new  licence               is granted or during the time for appealing or               whilst  an  appeal  is pending,  and  where  a               council decides to vary the principal terms of               a  licence or to revoke it, the  variation  or               revocation  does  not take effect  during  the               time  for  appealing or whilst  an  appeal  is               pending.                        A  licence holder may employ  assist-               ance  without  any further licence  being  re-               quired."     Paras  431 to 448 relate to ’street trading’ in  Greater London  and  in the city of London. London  Country  Council (General  Powers)  Act,  1947 and City  of  London  (Various Powers) Act, 1965 provide for designation of streets by  the London Borough Council in respect of which applications  for grant  of ’street trading’ licences are  entertained.  There are  provisions for the registration of street traders.  The procedure,  for grant of Annual licences and the grounds  on which  such  licences may be refused,  has  been  laid-down. There is a complete code, in the shape of various  statutes, which regulates the business of ’street trading’ in England. Trading in the streets of London from a stationary  position is a common sight. Even in the famous Oxford street which is always over-crowded, there are kiosks, receptacles and 1062 stalls  at every street-junction from where fruits,  confec- tionary,  soft  drinks, souvenirs,  newspapers  and  various other articles are sold. ’Street trading’ is thus one of the traditionally recognised business or trade in England.  This is  so in spite of the fact that there is a complete  social security  in that country and as such no compulsion  on  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 20  

citizens  to be driven to street trading out of  poverty  or unemployment.  On  the other hand abysmal poverty  in  India warrants outright rejection of the argument that nobody  has a  right  to engage himself in ’street  trading’.  "Justice, social, economic and political" and "citizens, men and women equally, have the right to an adequate means to  livelihood" which the Constitution of India promises is still a distinct dream.  This Court, in various judgments, has  reminded  the Government  of its constitutional obligations to  ameliorate the  lot  of  the  poor in  India.  Nothing  much  has  been achieved.  An alarming percentage of population in India  is still  living  below  poverty-line. There  are  millions  of registered unemployed. The Government, in spite of constitu- tional  mandate is unable to provide them  with  employment. But when, by gathering meagre resources, they try to  employ themselves  as  hawkers or street-traders,  they  cannot  be stopped  on the pretext that they have no right, rather  the Government should render all help to rehabilitate them.    Mr.  Tarkunde  contended  that  street-trading,  being  a common  law right, has to be treated as a fundamental  right under  Article 19(l)(g) of the Constitution of India. It  is not  necessary to examine the matter from this aspect.  Once street-trading is accepted as legitimate trade, business  or occupation  it  automatically comes  within  the  protection guaranteed  under  Article 19(1)(g) of the  Constitution  of India. There is no dispute that public streets are primarily to  be used by the public generally as pathways for  passing and  repassing  but there are other ancillary  purposes  for which the public streets can be used as of right. In  Manzur Hasan  v. Muhammed Zaman, 52 I.A. 61 the Privy Council  held as under:               "In  India,  there  is a right  to  conduct  a               religious   processionwith   its   appropriate               observances through a public street so that it               does  not interfere with the ordinary  use  of               the  street  by  the public,  and  subject  to               lawful directions by the magistrates. A  civil               suit for a declaration lies against those  who               interfere  with a religious procession or  its               appropriate observance." In  Saghir Ahmed v. The State of U. P. and others, [1955]  1 S.C.R. 1063 707, this Court held that a business of transporting passen- gers with the aid of vehicles was a trade or business and as such was guaranteed under Article 19(1)(g) of the  Constitu- tion  of  India.  In Himat Lal K. Shah  v.  Commissioner  of Police,  Ahmedabad  and another, [1973] 2 S.C.R.  266,  this Court  held that right to hold a public meeting on a  public street is a fundamental right under Article 19(1)(a) and (b) of  the Constitution of India and the same cannot  be  arbi- trarily  denied. There is thus no justification to deny  the citizens  of  their right to earn livelihood  by  using  the public streets for the purpose of trade and business.     In  India there are large number of people who  are  en- gaged in the business of ’street trading’. There is hardly a household  where hawkers do not reach. The house-wives  wait for  a vegetable vendor or a fruit seller  who  conveniently delivers  the daily-needs at the door-step. The  petitioners before  us are street-traders of Delhi and New Delhi  areas. Some of them have licences/Tehbazari from Municipal Corpora- tion of Delhi/New Delhi Municipal Committee but most of them are squatters. There is practically no law regulating street trading  in Delhi/New Delhi. The skeletal provisions in  the Delhi Municipal Corporation Act, 1957 and the Punjab Munici-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 20  

pal Act, 1911 can hardly provide any regulatory measures  to the  enormous and complicated problem of street  trading  in these areas.     In Bombay Hawkers’ Union and others v. Bombay  Municipal Corporation  and  others,  [1985] 3 S.C.C.  525  this  Court suggested  that  schemes be framed to regulate  the  hawking business by creating hawking and non-hawking zones. Again in Municipal  Corporation of Delhi v. Gumam Kaur,  A.I.R.  1989 S.C. 38 this Court observed as under:               "  ......  We feel that the Municipal Corpora-               tion  authorities  in  consultation  with  the               Delhi  Development Authority should  endeavour               to  find a solution on the lines as  suggested               in  Bombay  Hawkers’ Union  i.e.  by  creating               Hawking and Non-Hawking Zones and shifting the               pavement  squatters to Areas other  than  Non-               Hawking  Zones. The authorities in devising  a               scheme must endeavour to achieve a twin object               viz., to preserve and maintain the beauty  and               the  grandeur of this great historic  city  of               Delhi  from  an aesthetic point  of  view,  by               reducing congestion on the public streets  and               removing  all  encroachments which  cause  ob-               structions  to the free flow of traffic,  and-               rehabilitate those unfortunate persons who  by               force or circumstances,               1064               are  made  to ply their trade or  business  on               pavements or public streets."     Street Trading being a fundamental right has to be  made available  to the citizens subject to Article 19(6)  of  the Constitution.  It is within the domain of the State to  make any law imposing reasonable restrictions in the interest  of general public. This can be done by an enactment on the same lines  as in England or by any other law  permissible  under Article  19(6)  of the Constitution. In  spite  of  repeated suggestions  by  this Court nothing has been  done  in  this respect. Since a citizen has no right to choose a particular place  in  any street for trading, it is for  the  State  to designate  the  streets and earmark the  places  from  where street  trading  can be done. In-action on the part  of  the State would result in negating the fundamental right of  the citizens. It is expected that the State will do the  needful in  this respect within a reasonable time failing  which  it would  be  left to the courts to protect the rights  of  the citizens. R.S.S.                                      Petitions   dis- posed of. 1065