Pushpendra Kumar & Others vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Dr. Kartikey Hari Gupta, learned counsel for the appellants-writ petitioners, Mr. Pradeep Joshi, learned Standing Counsel for the State Government, Mr. D.S. Patni, learned Senior Counsel for the Nagar Palika Parishad, Nainital and, with their consent, the Special Appeals are disposed of at the stage of admission.

The appellants-writ petitioners invoked the jurisdiction of this Court filing several Writ Petitions seeking a writ of mandamus directing the respondents to permit them to carry on vending in the Pant Park area, Mallital till the Town Vending Zone was finalized by the respondents as per the mandate of Section 3 of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (for short the "2014 Act") and Rule 6(2) of the Uttarakhand Town Vendors (Protection of Livelihood and Regulation of Street Vending) Rules, 2016 (for short the "2016 Rules"); a writ of mandamus directing the respondents to form a Town Vending Committee in terms of Section 22 of the 2014 Act and Rule 12 of the 2016 Rules; and a writ of mandamus directing the respondents to form a Town Vending Zone consisting of the area from VIP Parking till Gurudwara in Pant Park Area, Mallital.

The appellants-writ petitioners claim that, like other street vendors who were granted permission to sell their wares in terms of the order passed by a Division Bench of this Court in Writ Petition (PIL) No. 151 of 2015 dated 04.09.2018 (as clarified by order dated 08.10.2018), they were also selling their wares in the road between the VIP Car Parking to Gurudwara Sahib; and even without complying with the provisions of the 2014 Act and the 2016 Rules, they alone are being prevented from selling their wares at the said place.

In the orders under appeal dated 17.06.2019, the learned Single Judge took note of the appellants-writ petitioners' contention that there was still some space left in the Pant Park area, and in some other places in Nainital, where the appellants-writ petitioners could be provided similar space. He, thereafter, observed that these facts could not be looked into at this stage as it was for the State Authorities and the Nagar Palika Parishad, Nainital to examine these facts based on various considerations, including the need to settle the street vendors. Taking note of the fact that some of the vendors had already been given such rights in the present available space in Nainital, the learned Single Judge gave liberty to the appellants-writ petitioners to make a representation before the respondent-authorities in this regard, which was directed to be considered in accordance with law.

Dr. Kartikey Hari Gupta, learned counsel for the appellants-writ petitioners, would draw our attention to several provisions of the 2014 Act and the 2016 Rules to submit that, even without a Town Vending Committee being constituted in terms of the 2014 Act, the officials of the Nagar Palika Parishad, Nainital had unilaterally picked and chosen a few of the street vendors for being granted permission to sell their wares in the very same area; such an exercise could only have been undertaken by a duly constituted Town Vending Committee; the protection conferred on street vendors under the Act and the Rules are sought to be taken away by the respondent-authorities; and the learned Single Judge had erred in relegating the appellants-writ petitioners to make a representation to the very same authorities who lacked jurisdiction, under the provisions of the 2014 Act and the 2016 Rules, to take a decision in this regard.

Section 2(l) of the 2014 Act defines a "street vendor" in extremely wide terms. Section 2(m) of the 2014 Act defines "Town Vending Committee" to mean the body constituted by the appropriate Government under Section 22 of the 2014 Act. Section 22 enables the appropriate Government, by Rules made in this behalf, to provide for the terms and manner of constituting a Town Vending Committee in each local authority. Section 22(2) of the 2014 Act stipulates that each Town Vending Committee shall consist of the persons named in clauses (a) to (d) thereunder. Clause (c) of Section 22(2) of the 2014 Act requires certain members to be nominated to represent the non-governmental organisations and the community based organisations. Under clause (d) of Section 22(2) the Town Vending Committee should also include certain members representing the street vendors, which is to be not less than forty per cent of those elected by the street vendors themselves in such manner as may be prescribed. It is evident, therefore, that the Town Vending Committee is to consist not only of officials, but also of representatives of non-governmental organisations besides representatives of the street vendors themselves.

Section 3(1) of the 2014 Act requires the Town Vending Committee, within such period and in such manner as may be specified in the scheme, to conduct a survey of all existing street vendors within the area under its jurisdiction, and to carry out subsequent surveys at least once in every five years. Section 3(3) of the 2014 Act stipulates that no street vendor shall be evicted or, as the case may be, relocated till the survey specified under sub-section (1) has been completed; and the certificate of vending is issued to all street vendors.

The submission, urged on behalf of the appellants-writ petitioners, in short, is that the exercise of survey could only have been undertaken by a Town Vending Committee duly constituted in terms of Section 22 of the 2014 Act; and, since such a Town Vending Committee has not even been constituted, the survey undertaken earlier by the officials of the Nagar Palika Parishad, Nainital is contrary to the provisions of the 2014 Act and the 2016 Rules made thereunder.

The aforesaid contention, urged on behalf of the appellants-writ petitioners, can only be examined after the respondents file their counter affidavit(s) in the writ petition. Since this contention, that there is no duly constituted Town Vending Committee in existence, goes to the very root of the matter, we consider it appropriate to set-aside the orders under appeal and restore all the Writ Petitions to file. All the Writ Petitions are, accordingly, restored to file.

Mr. Pradeep Joshi, learned Standing Counsel appearing on behalf of the State Government-respondents 1, 3 and 4 and Mr. D.S. Patni, learned Senior Counsel appearing on behalf of the Nagar Palika Parishad, Nainital seek three weeks' time to file their respective counter affidavits in the Writ Petitions.

It is open to Dr. Kartikey Hari Gupta, learned counsel for the appellants-writ petitioners, to request the learned Single Judge to take up the Writ Petitions for admission/hearing, and grant of interim relief, any day after three weeks from today.

All the Special Appeals are, accordingly, disposed of. No costs.