Mahankal Footpath Hawkers' Union, Ujjain and Others vs Municipal Corporation, Ujjain and Others

S.C. Sharma, J.—The petitioners before this Court are pavement dwellers (Footpath Hawkers) representing their cause through Mahankal Footpath Hawkers'' Union, have filed this present petition for issuance of an appropriate writ, order or direction restraining the authorities from dislodging the Hawkers and Vendors from their present place of business. It has been stated in the writ petition that the Hawkers/Vendors are carrying out their business activities in Freeganj, Purani Sabji Mandi, Amarsingh Marg, Ujjain, and they are providing vegetables and other goods at a cheaper rate to the local residents. Petitioners have further stated that in the Freeganj, Purani Sabji Mandi, Amarsingh Marg, Ujjain, there are about 400 Hawkers and Vendors and in the old township of Ujjain, there are about 5000 to 6000 Hawkers and Vendors. It has been further stated that Municipal Corporation, Ujjain, is earning about Rs. 1.80,000/- per month as tax from the Hawkers by charging Bhumi Shulk @ Rs. 10/- per day. The grievance of the petitioners is that the respondents are taking action to remove the Hawkers from the Freeganj, Purani Sabji Mandi, Amarsingh marg, Ujjain and other areas of Ujjain city and the action of the respondents is violative of Articles 14, 19(1)(g) and 21 of the Constitution of India. It has also been stated that a "National Policy on Urban Street Vendors 2009" has been framed in the year 2009 and as per the National Policy on the subject, vending zones are to be identified and the vendors are required to be provided space in the vending zone and restricted vending zone. Petitioners have further stated that the action of the respondents is in clear violation of the "National Policy on Urban Street Vendors 2009". Petitioners have also raised a ground that the respondents are duty bound to implement the guidelines issued by the Apex Court from time to time and they have relied upon the judgments delivered by the Apex Court in the cases of Gainda Ram and Others Vs. M.C.D. and Others, 5, Sodan Singh and Others Vs. New Delhi Municipal Committee and Others, and Olga Tellis and Others Vs. Bombay Municipal Corporation and Others,

A detailed and exhaustive reply has been filed on behalf of Municipal Corporation, Ujjain. It has been stated in the reply that Madhav Nagar, Freeganj, Ujjain is a densely populated locality of Ujjain township and the streets are overcrowded with vehicles. It has been further stated that earlier also the street was encroached by the vegetable vendors and the respondent Corporation provided an alternative place to the encroachers/street vendors to carry out their business activities. As many as 435 street vendors were transferred to New Sabji Mandi at Maksi Road, Ujjain. A list of vendors who have been transferred and provided space measuring 8 x 12.5 metres is also on record as Annexure R-1. The respondents have further stated that after rehabilitating the street vendors, efforts were made to ensure that no further encroachment takes place. Again the new vendors have started encroaching the public road which is resulting as an obstruction in free flow of traffic. The respondents have also stated that as per the provisions of Sections 322, 322-A, 323 and 366 of the M.P. Municipal Corporation Act, 1956, they are entitled to remove the encroachments and by removing the encroachers and they are not violating the constitutional rights guaranteed to the citizens of this country. It has also been stated that a survey was carried out by the Municipal Corporation in 2006 and now efforts are being made to provide alternative place of business to street hawkers and as many as 7 hawkers'' zone are being established by the Corporation to provide an alternative space. The respondent Corporation has prayed for dismissal of the writ petition.

A detailed and exhaustive reply has also been filed on behalf of respondent No. 3-Collector, Ujjain and it has been stated that in pursuance to the "National Policy on Urban Street Vendors 2009", the State Government has formulated the Rules known as "Madhya Pradesh Path Par Vikray Karne Walon Ki Jivika Ka Sanrakshan Aur Vikray Ka Viniyaman Adhiniyam, 2011". The aforesaid Act have been enacted to protect the rights of street vendors and for regulating the activities of street vendors as per the provisions of the "Madhya Pradesh Path Par Vikray Karne Walon Ki Jivika Ka Sanrakshan Aur Vikray Ka Viniyaman Adhiniyam, 2011" and the Scheme "National Policy on Urban Street Vendors 2009" framed by the Government of India. The respondent-Collector has further stated that a Scheme has also been framed by the State Government known as "Mukhyamantri (Path Par Vikray Karne Wale) Shahari Garibon Ke Liye Kalyan Yojna, 2012" and the Scheme has been circulated by the State Government vide letter dated 4-2-2012. The Scheme has to be implemented in a phased manner and a time limit has also been prescribed under the Scheme. The Scheme provides for survey and identification of vendors and issuance of identity cards. After identification of the vendors, the ''Nagar Vikraya Samiti'' is required to provide space in vendors'' zone to the vendors, keeping in view the "Mukhyamantri (Path Par Vikray Karne Wale) Shahari Garibon Ke Liye Kalyan Yojna, 2012". The Nagar Vikraya Samiti includes representative of vendors and in pursuance to the provisions of the Madhya Pradesh Path Par Vikray Karne Walon Ki Jivika Ka Sanrakshan Aur Vikray Ka Viniyaman Adhiniyam, 2011 and the "Mukhyamantri (Path Par Vikray Karne Wale) Shahari Garibon Ke Liye Kalyan Yojna, 2012", a District Level Committee has been constituted comprising of Collector and various Government officials and two members of the society. The reply further reveals that appropriate action has been initiated by the Collector for implementation of the "Mukhyamantri (Path Par Vikray Karne Wale) Shahari Garibon Ke Liye Kalyan Yojna, 2012", in order to safeguard the interest of the vendors and to regulate their place of business and the action of the State Government is in consonance with the various provisions of the Constitution of India. The respondent Collector has further stated that the State Authorities, in order to provide an alternative space to the vendors to carry out their activities, are striving hard for implementation of the provisions of Madhya Pradesh Path Par Vikray Karne Walon Ki Jivika Ka Sanrakshan Aur Vikray Ka Viniyaman Adhiniyam, 2011 and the "Mukhyamantri (Path Par Vikray Karne Wale) Shahari Garibon Ke Liye Kalyan Yojna, 2012" and the process of identification is going on. The vendors will be relocated to the vending zone in a phased manner. The respondent Collector has prayed for dismissal of the writ petition.

An additional reply has also been filed by the Municipal Corporation on 4-4-12 and the additional reply reveals that till 31-3-12 the survey work in respect of street vendors has been completed and as many as 1860 street vendors have been identified the additional reply further reveals that proper notice was published in newspapers and after giving wide publicity, survey work has been concluded and a Committee is being constituted as per the provisions of Madhya Pradesh Path Par Vikray Karne Walon Ki Jivika Ka Sanrakshan Aur Vikray Ka Viniyaman Adhiniyam, 2011 and in case any person who is aggrieved in the matter of survey, meaning thereby, whose name docs not find place, shall certainly be free to approach the Committee for allotment of alternative space or for grant of permission to carry out his business in the hawkers'' zone/vending zone, established by the Corporation. Learned Counsel for the respondent Municipal Corporation has vehemently argued before this Court that on account of the present Public Interest Litigation, they are not able to finalise the Scheme and therefore, the writ petition be dismissed with liberty to the respondents to implement the provisions of "National Policy on Urban Street Vendors 2009" and the "Mukhyamantri (Path Par Vikray Karne Wale) Shahari Garibon Ke Liye Kalyan Yojna, 2012".

Heard learned Counsel for the parties at length and perused the record.

In the present case, the petitioner-Union is representing the cause of hawkers and vendors and has filed the present petition for issuance of an appropriate writ, order or direction directing the respondent Authorities for not removing/ dispossessing the hawkers and vendors from their present place. It has also been prayed that they should not be dispossessed and their shifting should be regulated. It has also been prayed before this Court that the respondents be directed to implement the "National Policy on Urban Street Vendors 2009" as adopted by the Ministry of Housing & Urban Poverty Alleviation, Government of India, 2009. The petitioners have also prayed that a Town Vending Committee be constituted keeping in view the "National Policy on Urban Street Vendors 2009" and the vendors/hawkers be permitted to carry out their business and trade within the State of Madhya Pradesh and proper identity cards be issued to them. Other reliefs have also been prayed for safeguarding the interest of the hawkers/vendors.

The Law Commission, Government of India, has suo motu examined the problem pertaining to the plight of the slum and pavement dwellers facing the eviction at the hands of the local authorities in the year 1990 when approximately 3.5 crores of citizens of India were living in slums and on pavements of metropolitan cities. At that point of time, one out of every 25 citizens was so affected, the Law Commission taking into account the eviction of slum dwellers and the eviction of pavement dwellers/vendors, by the local authorities without affording them any alternative facility, has suo motu taken cognizance of the problem and in its 130th report of the Commission, captioned "Legislative Protection for Slum and Pavement Dwellers", introduced this humane concept in Indian jurisprudence. The Law Commission in Chapter I of the report has held as under:-

1.1. Harnessing the law for the poor-- a suo motu exercise-- Can the conscientious members of the community sleep in peace when millions of their brethren and sisters are denied the comfort of sleeping on the footpaths of the metropolises of India and that of living in conditions unfit even for mute animals in slums in the neighbourhood? The Law Commission having been entrusted under Item 1 (b) of its Term of Reference "To take all such measures as may be necessary to harness law and the legal process in the service of the poor" deems it to be its duty to address itself to this problem by undertaking the present exercise suo motu.

1.2. Scope and target-- This report therefore, deals with a problem, which has been prevalent for a long time in India, a problem, which at some stage or other, must be seriously tackled by the society, a problem which is not one for mere academic discussion but is seriously connected with basic needs of human beings. The problem is that of persons who are destined to spend their lives on pavements or slums in the cities. Should such persons be evicted from the places where they dwell, merely because, in the eye of law, their occupation of the premises is unauthorised? If the society permits such evictions, should it not provide a reasonably adequate alternative accommodation to them so that the right to live, guarantee by the Constitution, carries some meaning for them? This question has come up before the Courts in India more than once. Generally, while ad hoc relief has been given to these dwellers, it has not been possible so far to go into the heart of the matter. The Commission believes that the society must address itself directly to the questions posed above and consider the question of incorporating, in the statutory framework of India, a just and workable solutions within the limits of the Constitution. An endeavour has, therefore, been made herein to examine the legal contours of the problem, to draw attention to the existing provisions on the subject, to suggest a solution to the extent to which legislation on the subject is within the competence of Parliament and to make appropriate recommendations to relieve the distress of the suffering compatriots within the practical parameters of law.

1.3. Action by the local authorities-- Pavements and slums exists in big cities. Eviction of dwellers in these premises is normally ordered by local authorities, whether they are known by the name of the Municipal Corporation, Municipal Committee, Municipal Council, Cantonment or by any other names. In this report, we propose to confine ourselves to the eviction of such persons by the local authorities. So far as eviction by the State Government is concerned, generally it takes place under the Public Premises (Eviction of Unauthorised Occupants) Act, either as enacted by the Centre or as enacted (by whatever name) by the State. Eviction ordered under such a law mostly relates to individual premises over which the private person is alleged to have established unauthorised or illegal occupation and it does not raise questions of social justice of the dimensions that are met with where the actions of eviction is taken by the local authorities.

The Commission in the same report under Chapter IX has drawn its conclusion and certain recommendations have been made by the Commission:-

9.1. With nearly 3.5 crores of citizens of India living in sub-human condition in slums and on pavement of metropolitan cities of India, the rest of the members of the community cannot sleep in peace with an easy conscience. In any event the community cannot watch their plight nonchalantly when the slum and pavement dwellers are evicted by the local authorities without providing them any alternative facility even from these slums and pavements, so often, razing their huts to the ground with the help of bulldozers in the course of their slum removal operations.

9.2. The existing slum clearance legislation enacted by different States by and large focus on protection of tenants of privately owned uninhabitable chawls, owners where of are not interested even in maintaining the same in habitable conditions, inasmuch as these are liable to collapse and result in loss of life and/or are rendered unfit for human habitation on account of falling in disrepair and in order to remedy prevailing insanitary conditions giving rise to diseases and epidemics.

9.3. Presently, there exists no Legislation affording any protection to the slum and pavement dwellers in the event of their being evicted from these slums or pavement by the local authorities, apart from the fact that there is no social security scheme designed to rehabilitate them on their eviction. There is, therefore, a pressing need, in the light of constitutional values, humane considerations and as a matter of social justice, for inserting into our legal system a requirement by way of a Central Legislation to the effect that before slum dwellers are evicted by local authorities, it shall be the duty of the concerned local authority to provide alternative site, accommodation or facility to such evictees, and providing that the pavement dwellers are not disturbed unless it is inevitable to do so in the context of some emergent situation.

9.4. It will also be appropriate to provide that slum dwellers are not denied civic facilities such as water supply, street lighting, electricity etc., on the ground that they are in illegal occupation of the land on which the slums have come into existence.

The aforesaid report of the Law Commission though has extensively dealt with the problems of slum dwellers, however, it has also dealt with the problems, which were being faced by the pavement dwellers and street vendors/hawkers and they also fall under the same category.

The plight of the pavement dwellers/street vendors was also brought to the notice of the Apex Court in the case of Olga Tellis and others (supra), and in Paras 31, 37, 42, 45, 51 and 57 the Apex Court has held as under:-

The scope of the jurisdiction of this Court to deal with writ petitions under Article 32 of the Constitution was examined by a Special Bench of this Court in Ujjam Bai Vs. State of U.P.. That decision would show that, in three classes of cases, the question of enforcement of the fundamental rights would arise, namely, (1) where action is taken under a statute which is ultra vires the Constitution; (2) where the statute is intra vires but the action taken is without jurisdiction; and (3) an authority under an obligation to act judicially passes an order in violation of the principles of natural justice. These categories are, of course, not exhaustive. In Naresh Shridhar Mirajkar Vs. State of Maharashtra, a Special Bench of nine learned Judges of this Court held that, where the action taken against a citizen is procedurally ultra vires, the aggrieved party can move this Court under Article 32. The contention of the petitioners is that the procedure prescribed by Section 314 of the BMC Act being arbitrary and unfair, it is not "procedure established by law" within the meaning of Article 21 and, therefore, they cannot be deprived of their fundamental right to life by resorting to that procedure. The petitions are clearly maintainable under Article 32 of the Constitution.

Two conclusions emerge from this discussion: one, that the right to life, which is conferred by Article 21 includes the right to livelihood and two, that is established that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. But the Constitution does not put an absolute embargo on the deprivation of life or personal liberty. By Article 21, such deprivation has to be according to procedure established by law. In the instant case, the law which allows the deprivation of the right conferred by Article 21 is the Bombay Municipal Corporation Act, 1888, the relevant provisions of which are contained in Sections 312 (1), 313 (1) (a) and 314. These sections, which occur in Chapter XI entitled ''Regulation of Streets'' read thus:-

Prohibition of structures or fixtures which cause obstruction in streets.-- (1) No person shall, except with the permission of the Commissioner u/s 310 or 317, erect or set up any wall, fence, rail, post, step, booth or other structure or fixture in or upon any street or upon or over any open channel, drain, well or tank in any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy, any portion or such street, channel, drain, well or tank.

Prohibition of deposit, etc., of things in streets.-- (1) No person shall, except with the written permission of the Commissioner,-

(a) place or deposit upon any street or upon any open channel, drain or well in any streets (or in any public place) any stall, chair, bench, box, ladder, bale or other thing so as to form an obstruction thereto or encroachment thereon.

Power to remove without notice anything erected, deposited or hawked in contravention of Section 312, 313 or 313-A.-- The Commissioner may, without notice, cause to be removed-

(a) any wall, fence, rail, post, step, booth or other structure or fixture which shall be erected or set up in or upon any street, or upon or over any open channel, drain, well or tank contrary to the provisions of sub-section (I) of Section 312, after the same comes into force in the city or in the suburbs, after the date of the coming into force of the Bombay Municipal (Extension of Limits) Act, 1950 or in the extended suburbs after the date of the coming into force of the Bombay Municipal Further Extension of Limits and Schedule BBA (Amendment) Act, 1956;

(b) any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, attached, or suspended in, upon from or to any place in contravention of sub-section (1) of Section 313;

(c) any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of Section 313-A and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale.

By Section 3 (w), "street" includes a causeway, footway, passage, etc., over which the public have a right of passage or access.

Having given our anxious and solicitous consideration to this question, we are of the opinion that the procedure prescribed by Section 314 of the Bombay Municipal Corporation Act for 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. There is no static measure of reasonableness which can be applied to all situations alike. Indeed, the question "Is this procedure reasonable ?" implies and postulates the inquiry as to whether the procedure prescribed is reasonable in the circumstances of the case. In Francis Coralie Mullin, Bhagwati, J., said at p. 524: (SCC p. 615, Para 4)

...It is for the Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise.

It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule ("Hear the other side") could be presumed to have been intended.

Section 314 is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being hear as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden, being upon those who affirm their existence.

Normally, we would have directed the Municipal Commissioner to afford an opportunity to the petitioners to show why the encroachments committed by them on pavements or footpaths should not be removed. But, the opportunity which was denied by the Commissioner was granted by us in an ample measure, both sides having made their contentions elaborately on facts as well as on law. Having considered those contentions, we are of the opinion that the Commissioner was justified in directing the removal of the encroachments committed by the petitioners on pavements, footpaths or accessory roads. As observed in S.L. Kapoor, ".........where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs". Indeed, in that case, the court did not set aside the order of supersession in view of the factual position stated by it. But, though we do not see any justification for asking the Commissioner to hear the petitioners, we propose to pass an order which, we believe, he would or should have passed, had he granted a hearing to them and heard what we did. We are of the opinion that the petitioners should not be evicted from the pavements, footpaths or accessory roads until one month after the conclusion of the current monsoon season, that is to say, until October 31, 1985. In the meanwhile, as explained later, steps may be taken to offer alternative pitches to the pavement dwellers who were or who happened to be censused in 1976. The offer of alternative pitches to such pavement dwellers should be made good in the spirit in which it was made, though we do not propose to make it a condition precedent to the removal of the encroachments committed by them.

To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or earmarked for a public purpose like, for example, a garden or a playground; that the provision contained in Section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; and that, the Kamraj Nagar Basti is situated on an accessory road leading to the Western Express Highway. We have referred to the assurances given by the State Government in its pleadings here, which, we repeat, must be made good. Stated briefly, pavement dwellers who were censured or who happened to be censused in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at Malavani or, at such other convenient place as the Government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their resettlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for a public purpose, in which case, alternate sites or accommodation will be provided to them; the "Low Income Scheme Shelter Programme" which is proposed to be undertaken with the aid of the World Bank will be pursued earnestly; and, the "Slum Upgradation Programme (SUP)" under which basic amenities are to be given to slum dwellers will be implemented without delay. In order to minimise the hardship involved in any eviction, we direct that the slums, wherever situated, will not be removed until one month after the end of the current monsoon season, that is, until October 31, 1985 and, thereafter, only in accordance with this judgment. If any slum is required to be removed before that date, parties may apply to this Court. Pavement dwellers, whether censused or uncensused, will not be removed until the same date, viz., October 31, 1985.

The Apex Court in the aforesaid case directed the Bombay Municipal Corporation to implement Slum Upgradation Programme without delay and to provide alternative accommodation to slum dwellers.

The matter of the pavement hawkers also came up before the Apex Court in the case of Sodan Singh and others (supra), and the Apex Court in Paras 14, 18, 19, 20, 22, 23, 24 and 25 has held as under:-

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 Corporations 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 re-passing through a street but have no right "to be on it", which Shri Aiyangar also has mentioned at p. 542 of his book. Halsbury, relied upon by both sides, has stated (Vol. 21 Para 107) that the right of the public is a right to pass along a highway for the purpose 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 certainly do not mean that a traveller has to be in perpetual motion when he is in a public street. It may be essential for him to stop some time for various reasons-- he may have to alight from a vehicle or pick up a friend, collect certain articles or unload goods or have 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.

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, he constituting undesirable obstruction to the traveling 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 sidewalks where they consider it practical and convenient. Insofar as the Punjab Municipal Act, 1911 applying to the New Delhi area is concerned, the Bench constituted by three learned Judges observed in Pyare Lal Case, that the provisions did not authorise the municipality to permit stalls to be set up in the streets except temporarily on special occasions, like festivals 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 Sections 173 and 188 should receive liberal construction, so that the New Delhi Municipal Committee may be in a position to exercise 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 pavements in certain areas.

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 fundamental rights guaranteed by Articles 19 and 21 of the Constitution 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 therefor 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 business 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 Vs. Union of India and K. Rajendran Vs. State of T.N.

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 Fertilizer 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 rejected the 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 workers." (SCC p. 576, Para 14). This decision was followed in K. Rajendran Vs. State of T.N., 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 Article 19(1) (g) as it did not affect the right of the incumbents of posts to carry on any occupation of their choice, even though they may not be able to stick on to the posts 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 situation 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 classrooms or the patient wards or any public office to advance their prospects. As was observed in the Bombay Hawkers'' case, they cannot hold the society to ransom by squatting on the busy thoroughfare, thereby paralysing all civic life.

On behalf of some of the petitioners, it was contended that in view of the inclusion of the word "socialist" in the Preamble of the Constitution by the 42nd Amendment greater concern must be shown to improve the condition of the poor population in the country, and every efforts 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 poverty. Even the Constitution as it stood originally was committed to economic justice and welfare of the needy. But for that reason either then or now the other provision of the Constitution and the laws cannot be ignored. It is, therefore, not possible to interpret the decision in Olga Tellis, in the manner suggested on behalf of the petitioner to bolster their case with the aid of Article 21.

During his argument, Mr. Tarkunde fairly staled 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 rampant and huge amounts to money were being realised illegally 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 possible. 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 Road and Streets Regulations, 1980 will have to be given.

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.

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 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 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 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 licenses, etc.

The problems of street vendors were looked into by the Apex Court and it was held that right to carry on trade or business mentioned in Article 19 (1) (g) of the Constitution of India, on street pavement, if properly regulated, cannot be denied on the ground that the streets are meant exclusively for passing of vehicles and repassing of vehicles and for no other use. It is noteworthy to mention that pursuant to the judgment delivered in the case of Sodan Singh (supra), the matter was placed before the National Commission for enterprises in the unorganised sector and based upon the report submitted by the Commission, a policy was framed known as, "National Policy on Urban Street Vendors 2009" by the Government of India. The policy provides for rehabilitating the hawkers/street vendors and also for constitution of a Town Vending Committee. Para 8 of the Policy reads as under:-

Monitoring & Review:

Monitoring of street bending activities, action plans and promotional measures for street vendors in accordance with this policy will be carried on at the following levels:-

(A) Town Vending Committee:

As elaborated earlier, the TVC will be responsible for monitoring the implementation of this policy at the city/town/ward/locality levels.

(B) Chief Executive Officer/Commissioner of Municipal Authority:

The Executive Officer/Commissioner of each Municipal Authority shall maintain a register containing ward-wise list of registered street vendors (stationary/mobile) exhibited in Municipal website. The Municipal Authority, would continuously monitor the function and activities of the TVC and ward vending committees (wherever set up) and shall send an annual report on the same to the Street Nodal Officer and Secretary of the concerned Department of the State Government containing the following details:-

(i) Number of vending zones/vendors markets ear marked/ developed;

(ii) Number of registered street vendors;

(iii) Revenue Collected;

(iv) Expenditure incurred;

(v) Promotional and other measures undertaken;

(vi) Complaints registered and redressed; and

(vii) Any other matter as prescribed by the State Nodal Officer/ Concerned Department of the State Government.

(C) State/UT Nodal Officer:

The Secretary of the concerned Department or State UT Nodal Officer designated shall send an annual report to the Ministry of Housing and Urban Poverty Alleviation in the Central Government containing relevant statistics on street vendors for cities/towns number of vending zones ear marked/developed, number of registered street vendors, number provided with vending spaces, details of TVC and conditions of street vendors in the State.

Thus, a Scheme was framed by the Government of India for rehabilitating the vendors and in Delhi, Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2009, was enacted. The aforesaid ordinance was subjected to judicial scrutiny before the Apex Court in the case of Gainda Ram and others Vs. Municipal Corporation of Delhi and others (supra), and the Apex Court in Paras 6, 45, 46, 47 and 67 has held as under:-

However, this Court in Sodan Singh took a very broad view of a citizen''s, right under Article 19 (1) (g) following its decisions in Fertilizer Corpn. Kamgar Union Vs. Union of India and also the decision of this Court in K. Rajendran Vs. State of T.N. and the decision of this Court in Bombay Hawkers'' Union Vs. Bombay Municipal Corpn. and the Constitution Bench decision of this Court in Olga Tellis Vs. Bombay Municipal Corpn. This Court in Sodan Singh, came to the conclusion that the hawkers and squatters have a fundamental right to carry on business on the public streets, but the same should be regulated.

It has been held by the Constitution Bench of this Court in Sodan Singh that right to hawk on the streets of Delhi in a fundamental right under Article 19 (1) (g) of the Constitution but such right is not absolute and is subject to reasonable restrictions under Article 19 (6) of the Constitution.

On a perusal of the aforesaid Constitutional provision, it is clear that the rights under Article 19(1) (g) can only be controlled by law as contemplated in Article 19 (6). Such law can impose reasonable restrictions. The relevant constitutional provisions are set out:-

19.(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to,-

(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

On an analysis of the provisions under Article 19 (6), it is clear that the provisions under Article 19 (6) are broadly in two parts. The first part authorises that nothing in sub-clause (g) of Article 19 (1) shall affect the operation of existing law insofar as it imposes reasonable restrictions, in the interest of general public, on rights conferred by Article 19(1) (g). The second part is that nothing contained in Article 19 (1) (g) shall prevent the State from making any law imposing, in the interest of general public, reasonable restrictions on the exercise of rights conferred by Article 19(1) (g). Here we are not concerned with clauses (i) and (ii) of Article 19 (6).

In the background of the provisions in the Bill and the 2009 Policy, it is clear that an attempt is made to regulate the fundamental right of street hawking and street vending by law, since it has been declared by this Court that the right to hawk on the streets or right to carry on street vending is part of fundamental right under Article 19 (1) (g). However, till the law is made the attempt made by NDMC and MCD to regulate this right by framing schemes which are not statutory in nature is not exactly within the contemplation of constitutional provisions discussed above. However, such schemes have been regulated from time to time by this Court for several years as pointed out above. Even, orders passed by this Court, in trying to regulate such hawking and street vending, is not law either. At this same time, there is no denying the fact that hawking and street vending should be regulated by law. Such a law is imminently necessary in public interest.

It was held by the Apex Court that reasonable restrictions can be imposed on a citizen''s fundamental right to carry on hawking under Article 19(1) (g) of the Constitution of India. It was also observed that hawking and street vending should be regulated by law.

The State of Madhya Pradesh has also enacted Madhya Pradesh Path Par Vikray Karne Walon Ki Jivika Ka Sanrakshan Aur Vikray Ka Viniyaman Adhiniyam, 2011 and based upon the "National Policy on Urban Street Vendors 2009", a Town lending Committee also finds place under the Adhiniyam of 2011.

The Ujjain Municipal Corporation, keeping in view the "National Policy on Urban Street Vendors 2009" and Madhya Pradesh Path Par Vikray Karne Walon Ki Jivika Ka Sanrakshan Aur Vikray Ka Viniyaman Adhiniyam, 2011, has framed a time bound schedule for rehabilitating the street hawkers and vendors specially keeping in view the fact that a Mela is organised in Ujjain known as ''Simhastha Mela'' and the obstructions on the roads of Ujjain are to be removed for permitting free flow of traffic. Not only this, a Scheme known as "Mukhyamantri (Path Par Vikray Karne Wale) Shahari Garibon Ke Liye Kalyan Yojna 2012" has also been introduced and the entire survey work of the street vendors/beneficiary under the Scheme has been completed on 31-3-12. A list of 1860 beneficiaries has been prepared and objections have also been invited from public at large in the matter. It has also been brought to the notice of this Court that in case any person is aggrieved and whose name does not find place in the list is again free to approach the Committee/Authorities. A list of vendors has also been brought on record and the authorities are shifting the vendors to various vending zones in the township of Ujjain.

Ms. N. Geeta, IAS, Collector, Ujjain, as well as Mr. M.C. Choudhary, Commissioner, Municipal Corporation, Ujjain, who were present at the time of final hearing, have drawn attention of this Court towards the Scheme framed by the State Government and the manner and method it is being implemented in the township of Ujjain. It has also been assured before this Court by the learned Collector and the Commissioner that they are taking action in the matter strictly in consonance with the policy issued by the Government of India, i.e., "National Policy on Urban Street Vendors 2009"; read with the provisions of the Madhya Pradesh Path Par Vikray Karne Walon Ki Jivika Ka Sanrakshan Aur Vikray Ka Viniyaman Adhiniyam, 2011; and, with the provisions of "Mukhyamantri (Path Par Vikray Karne Wale) Shahari Garibon Ke Liye Kalyan Yojna 2012".

This Court has minutely gone through the various documents filed along with the return and the same establishes that in a phase manner, the street vendors/hawkers are being allotted space at other places and the streets which have become bottleneck are being feed from encroachers/street hawkers in order to have free flow of traffic and to avoid stampede during the ''Simhastha Mela''. The work of allotting land/alternative place is being carried out in a very systematic manner, as explained before this Court by the learned District Magistrate and therefore, this Court does not find any reason to interfere with the process which has been initiated by the respondents in translocating the street hawkers/vendors to various vending zones ear marked for them. Resultantly, as the action of the respondents is in consonance with the "National Policy on Urban Street Vendors 2009"; read with the "Mukhyamantri (Path Par Vikray Karne Wale) Shahari Garibon Ke Liye Kalyan Yojna 2012" and also in consonance with the Madhya Pradesh Path Par Vikray Karne Walon Ki Jivika Ka Sanrakshan Aur Vikray Ka Viniyaman Adhiniyam, 2011, no further orders are required in the present writ petition and the same is disposed of accordingly. However, this Court hopes and trusts that the authorities will strictly adhere to the provisions of the "National Policy on Urban Street Vendors 2009" and the provisions of Madhya Pradesh Path Par Vikray Karne Walon Ki Jivika Ka Sanrakshan Aur Vikray Ka Viniyaman Adhiniyam, 2011 framed by the State Government while providing alternative place to the street vendors to carry out their livelihood as every citizen of this country is having constitutional right under Article 19 (1) (g) to carry out business/profession of his choice, subject to reasonable restrictions, as held by the Apex Court in the case of Gainda Ram and Others Vs. M.C.D. and Others, The writ petition is accordingly disposed of. No order as to costs.