Court of India order for Hawkers on 9th December 2003
of the supreme court order.
COURT OF INDIA
- S.N. Variava, H.K. Sema, and JJ.
of India , Article 19(1)(g). [ Para ]
following Judgment of the Court was delivered on 9-12-2003.
Variava, J. - Leave granted in Special Leave Petitions.
All these Appeals are against the Judgments of the High Court dated
5th July 2000 and 3rd May 2001. The facts leading up to these Appeals
are that as far back in 1983 a number of Writ Petitions were filed
in this Court, by and on behalf of a large number of persons who
carried on hawking activities in Bombay. These Petitions came to
be disposed of by judgment of this Court in the case of Bombay
Hawkers' Union v. Bombay Municipal Corporation reported in (1985)
3 SCC 528. By this Judgment, it was held that the right to carry
on trade or business conferred by Article 19(1)(g) of the Constitution
of India is subject to the provisions of sub-clause (6) of Article
19 which provided that nothing in sub-clause (g) of Article 19(1)
would affect the operation of any existing law insofar as it imposed,
or prevented the State from making any law imposing, in the interests
of general public, reasonable restrictions on the exercise of the
right conferred by the said sub-clause. It was held that no one
had any right to do his or her trade or business so as to cause
nuisance, annoyance or inconvenience to the other members of the
public. It was held that public streets, by their very nomenclature
and definition, were meant for the use of the general public. It
was held that the public streets are not laid to facilitate the
carrying on of private trade or business. It was held that if hawkers
were to be conceded the right claimed by them they could hold the
society to ransom by squatting on the center of busy thoroughfares,
thereby paralyzing all civic life. It was recognized that in some
of the parts of the city the hawkers had made it impossible for
the pedestrians to walk on footpaths or even on the streets. This
Court then examined the scheme proposed by the Municipal Commissioner
and laid down certain modalities for hawking and non-hawking zones.
This Court also accepted the restrictions/conditions proposed by
the Municipal Commissioner, except for some changes. This Court
then directed the Municipal Commissioner to frame a final scheme
on the guidelines suggested by it.
The above-mentioned Judgment was delivered on 3rd July 1985. On
12th August 1986 Bombay Municipal Corporation (for short BMC) approved
some guidelines. It then constituted an Advisory Committee composed
of officials of the Corporation representatives of the Residents'
Association, NGO's, elected representatives of the Traffic Police
and representatives of the hawkers. A draft scheme was framed on
12th August 1996. Under the draft scheme 488 zones were shown as
hawking zones. Under the draft scheme 49,000 hawkers were to be
accommodated. Under the draft scheme 28 sites, in different wards,
were earmarked for construction of hawkers' plazas. Under the draft
scheme highways, arterial and trunk roads, foot over bridges, subways,
certain distance around railway stations, certain radius around
municipal markets, religious places, educational institutions, medical
institutions and large traffic junctions, were totally banned for
hawkers. BMC also got undertaken a survey by Tata Institute of Social
Sciences and Youth for Unity and Voluntary Action. This survey disclosed
that there were approximately 1,03,000 hawkers out of which 15,000
were licensed hawkers and approximately 22,000 were issued daily
receipts or `pautis' under a Scheme known as `Unauthorized Occupation
cum Refuse Removal Charges'.
A number of Writ Petitions came to be filed in the Bombay High Court
challenging various aspects of the Scheme. In these Writ Petitions
a number of interim Orders were passed. We are not really concerned
with those orders except that, on 30th November, 1988, a statement
was made on behalf of BMC that the scheme framed by them was only
a draft scheme and the BMC would consider representations from all
and would suitably modify the scheme. It must be mentioned that
in an affidavit filed by BMC it was disclosed that between August
1998 till April 1999, by issuance of `pautis' BMC had collected
BMC filed a modified scheme before the Court on 31st July 1999.
By this modified scheme the number of hawking zones were brought
down from 488 to 377. The number of hawkers who could be now accommodated
were 38,000. The proposal for construction of hawking plazas, on
28th sites, stood deleted. On 1st March, 2000 the High Court constituted
a Committee composed of the Additional Municipal Commissioner in-charge
of the scheme, on K.D. kagtala, Advocate on behalf of the Bombay
Hawkers' Association, one V.R. Bhandare, Advocate for some of the
Residents' Associations and Smt. Neera Punj, Convenor, Citizens'
Forum for Protection of Public Places. This Committee heard and
considered representations from various persons. It then identified
areas/roads which could be hawking zones and which were to be non-hawking
zones. The Committee thereafter made its recommendations. Now the
hawking zones were reduced to 187. The High Court by the impugned
Judgment Dated 5th July, 2000 sanctioned the scheme with a few modifications
and adjourned the matter to enable BMC to consider the manner in
which it proposed to implement the scheme. The basic features of
the scheme as framed by the High Court are as under :
Hawkers cannot be allowed to have a fixed place of business or else
there would be no distinction left between hawkers and those ordinarily
understood as traders.
The exclusion, of arterial roads, pavements, carriage ways, approaches
to railway stations, places of worship and schools, as also roads
with less than 8.5 meters width, from areas which could be declared
as `hawking zones' was approved.
It was clarified that the Development Control Regulations for Mumbai
would also be applicable with the result that no trading or commercial
activities could be carried out in exclusively residential zones.
It was also held that no such activities could be carried on roads
and pavements which did not have a shopping line.
It was directed that 15,000 licensed hawkers found to be operating
in the city in 1997 would be permitted to carry on hawking and after
they were so accommodated, the others could be permitted to hawk
in the remaining areas of zones by the method of drawing lots. On
the drawing of lots, those selected would be considered for issuance
of license. Licensed hawkers would be permitted to ply their trade
in hawking zones. Unlicensed hawkers would not be permitted at all.
BMC's proposal to allow pitches of 1 m x 1 m space for hawking was
not allowed, on the ground that it would defeat the purpose of the
scheme and make the right to hawk a heritable for transferable right.
It was also not allowed as the number of hawkers would have to be
restricted keeping in mind the requirement to have smooth flow of
traffic and minimizing nuisance caused by hawkers.
BMC was called upon to consider making a rule whereby hawkers could
ply their trade on one side of the road on even days.
of solid food items was prohibited but sale of juices was permitted.
Vending of costly items such as electrical appliance, video and
audiotapes was not to be allowed. It was observed that ordinarily
hawkers are only supposed to deal with articles of immediate requirement
and/or `convenience shopping'.
Implementation of the scheme was to be on a `war footing'. Involvement
of public-spirited organizations and citizens was called for. It
was suggested that the pattern followed by the Civil Defence Organisation
under which wardens were appointed to take care of streets, lanes
and by lances in every ward be adopted.
Existing shopkeepers were also required to participate in keeping
non-hawking zones free from hawkers with the help of security or
A systematic phase-wise removal and demolition operation was suggested
in different parts of the city.
The Court disapproved of the idea of hawking plaza on the ground
that it automatically gave the shopkeepers heritable/transferable
in the space allotted to them and also because the Court felt that
the idea of hawking was lost if customer had to go to the plaza.
on 7th September 2000 the High Court permitted cooked food to be
sold by the hawkers.
Special Leave Petitions were then filed in this Court. While these
Special Leave Petitions were pending BMC moved the Bombay High Court
for certain modifications. The High Court, by its Order dated 22nd
November 2000 clarified that only small changes would be permissible.
BMC then filed on affidavit dated 31st January 2001 suggesting changes
in the light of representations received by it. On 3rd May 2001
the High Court rejected the proposed modifications on the ground
that the proposed modification in effect amounted to reframing the
The Scheme framed by the High Court is questioned before this Court.
It now becomes necessary to consider what was held by this Court
in the Bombay Hawkers' Unions' case (supra). In that case, the Municipal
Commissioner had suggested framing of a scheme on the following
per the provision of the section 61(o) of the Bombay Municipal Corporation
Act, the removal of obstruction and projections in or upon streets,
bridges and other public places is an obligatory duty of the Corporation.
The hawkers together with their stalls or the objects which they
sell and which they exhibit in the stalls or on the roads/pavements
constitute an obstruction/projection in or upon streets and other
public places. Their removal is therefore, an obligatory duty of
the Corporation. Having regard to our resources human, physical
and financial, it is, however, obvious that we will not be able
to fully discharge this duty and remove the obstruction/s projections
caused by hawkers on every road, lane or pavement in the entire
City of the Greater Bombay. We should, therefore, decide that within
the constraints of our resources, we would concentrate on removal
of such obstructions/projections on certain streets and public places
where the pedestrians or vehicular traffic is most intense and where
any obstruction/projection on the street or pavement is likely to
cause great harms to public interest and cause nuisance. For example,
the roads leading from suburban railway stations to the residential
areas in the suburbs or the roads in the Central Business District
in South Bombay connecting the suburban railway station with the
offices and other places of the work as also certain arterial roads
on which major goods and public transport vehicles move, could be
considered as important roads and pavements where no hawkers should
be allowed to do their business. No doubt, at present, on these
roads/areas too, there are existing hawkers who were given licenses
in the past but who now do constitute an obstruction to the free
and safe flow of the pedestrian and vehicular traffic. It will be
possible to remove these licensed hawkers by giving them alternative
having regard to the resources of vehicles, staff etc. at our disposal,
we could identify in each Ward the streets/areas where intensive
removal action against unauthorised hawkers should be taken. This
shall not, however, mean that hawking in other areas will be freely
permitted. In areas other than the areas identified from time to
time, having regard to the resources available and the dynamic situation,
for intensive removal action, if hawkers do their hawking business
without seriously affecting the vehicular had/or pedestrian traffic
or causing nuisance they may be tolerated by sufferance and a daily
fee at the rate of Rs. 3 per day from a male hawker and at the rate
of Re 1 per day from a female hawker may be recovered without prejudice
to our right to remove them should the dynamic situation and the
changed circumstances so demand in future. It should be made explicitly
clear at the back of the receipt given for the fees recovered that
the collection of the fee shall not be deem to confer any right
whatsoever on the hawker concerned to do his/her hawking business
at the site concerned.
following restrictions/conditions shall be imposed on such hawkers:
They should do their hawking business only on an area of 1 Mt. x
1 Mt. on the footpath wherever it exists or on the extreme sides
of the carriageway, in such a manner that the vehicular and pedestrian
tariff is not obstructed and access to shops and residences is not
They should not put up any stall or place any table, stand or such
other thing or erect any type of structure whatsoever on the pitch
on which they are conducting their hawking business nor should they
hawk, on handcarts. They should also not put up any cloth, plastic
sheets, chaddar, tarpaulin etc. as shelter.
They should not hawk within 100 meters from any place of worship,
holy shrine, educational institution and general hospital and within
the periphery of 150 meters from any municipal or other market.
They should not create any noise for attracting the public/customers.
They should not hawk any cooked food articles, cut fruits etc.
They should do their hawking business only between 7 a.m. and 9
p.m. on the day on which the prescribed daily fee is removed. In
other words, payment of the prescribed daily fee shall not be deemed
to authorise them to do their hawking business beyond the aforesaid
They should extend full co-operation to Municipal conservancy staff
for cleaning the streets and footpaths and also to other Municipal
staff for carrying out any Municipal work. They should also co-operate
with the other Government and public agencies such as the B.E.S.T.
Undertaking Bombay Telephones B.S.E.S. Ltd. etc. for laying cables
or for doing any repair/development work.
Recovery of prescribed daily fee shall not bestow on them any right
whatsoever over the space used by them for hawking on the day on
the which the fee is recovered."
Court held that one exception could be taken to conditions (i),
(ii), (iii), (iv), (vii), (viii). This Court also held that in condition
(ii) the words "they should not put up any stall or place any
table, stand or such other thing or erect any type of structure
whatsoever on the pitch on which they are conducting their hawking
business nor should they hawk on handcarts." may stand. This
Court further clarified that the condition that "they should
also not put up any cloth, plastic sheet, chaddar, tarpaulin etc.
as shelter" should not be construed to mean that the hawkers
are not entitled to protect their wares against the sun, rain or
wind. This Court clarified that the object of Condition (ii) was
only to ensure that no construction was put up and no handcarts
were used. This Court also clarified that so far as Condition (viii)
was concerned the fact that daily fees were charged would to confer
upon the hawkers the right to do business on any particular place.
It was clarified that the fee was a kind of license fee to do business
and it was not a fee charged for doing business at any particular
place. This Court further held that the condition (v) was a unreasonable
restrictions. This Court saw no reasons why the hawkers should not
be allowed to sell cooked food, cut fruits and the like. This Court
clarified that it did not mean that adulterated or unhygienic food
could be sold. This Court held that hawkers had to comply with the
Municipal licensing regulations and the provisions of the Prevention
of Food Adulteration Act, 1954. This Court lastly extended the business
hours from 7 a.m. to 10 p.m. This Court then laid down following
"(a) As far as possible, there should be one Hawking Zone for
every two contiguous Municipal Wards in Greater Bombay.
The Non-Hawking Zones maybe fixed by the Municipal Commissioner
in his discretion, in consultation with the Bombay Municipal Corporation.
In areas other than the Non-Hawking Zones, licenses should be granted
to the hawkers to do their business on payment of the prescribed
fee. That will be without prejudice to the right of the Commissioner
to extend the limits of the Non-Hawking Zones in the interests of
public health, sanitation, safety, public convenience and the like.
Hawking licenses should not be refused in the Hawking Zones except
for good reasons. The discretion not to grant a hawking license
in the Hawking Zone should be exercised by the Commissioner reasonably
and in public interest.
In future, before making any alteration in the scheme, the Commissioner
should take into confidence all public interests, including the
hawkers, the Commissioner of Police and representative associations
for the public such as the one which appeared before us. Hawkers
have the right to do their business, subject to reasonable restrictions
in the interest of the general public. The Police Commissioner is
in the best position to speak about the law and order problem as
well as the traffic hazards created by street trading. The general
public has a stake in showing how and why the hawking trade should
be regulated. The power conferred upon the Commissioner by Section
313-A of the Act to grant licenses to hawkers is in the nature of
a discretion coupled with a duty. It is therefore essential that
the said power should be exercised by consulting all concerned interests
and guided by considerations of what is in the interests of the
general public. The scheme framed by the Commissioner will have
a binding effect on all concerned. The scheme shall be framed, as
far as possible, before October 31, 1985."
It must be mentioned that this Judgment was delivered by Chief Justice
Chandrachud (as he then was). Immediately thereafter a Constitution
Bench of this Court, headed by Chief Justice Chandrachud, (as he
then was) delivered a Judgment in the case of Olqa Tellis and
others v. Bombay Municipal Corporation and others reported in
1985(3) SCC 545. This case dealt with the right of pavement dwellers
in Bombay. On behalf of the hawkers strong reliance was placed on
various observations made in this Judgment. It was submitted that
this case showed that the right to hawk was also a fundamental right
under Article 21 of the Constitution of India. However such an argument
has been negative by this Court in the case of Sodan Singh and
others v. New Delhi Municipal Committee and others reported
in 1989 (4) SCC 155. This case dealt with hawkers in the city of
Delhi. It was held that the hawking o roadsides fell within the
expression "occupation, trade or business" in Article
19 (1) (g) but that it was subject to reasonable restrictions under
Article 19(6) of the Constitution of India. It was held that this
right was specifically for poor hawkers and not for sellers of luxury
items or goods. It was further held that hawkers had no right to
occupy any particular place on the pavement nor could they assert
right to occupy permanently specific places demarcated on the pavement.
It was held that the Municipality had a right to regulate such businesses
and the Municipality was directed to frame rules and schemes regarding
street trading. It was also recognized that hawking could be totally
prohibited in certain areas. The Court negative an argument, based
on Olga Tells's case, that the hawkers had a fundamental right under
Article 21. It was held that the right to carry on trade or business
was not covered by Article 21 and the hawkers could claim no right
under Article 21. It was inter-alias held as follows: -
far as right of a hawker to transact business while going from place
to place is concerned, it has been admittedly recognized 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
roadside for engaging in trading business? As was stated by this
Court in Bombay Hawkers' Union v. Bombay Municipal Corporation
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 hawkers were to be conceded
the right claimed by them, they could hold the society to ransom
by squatting on the busy thoroughfares, thereby paralyzing 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
trader on the sidewalks can considerably add to the comfort and
convenience of general public, by making available ordinary articles
of everyday use for a comparatively lesser price."
Thereafter this Court passed various orders accepting/modifying
recommendations of the Committee appointed to consider to whom licenses
were to be granted, how licenses were to be granted and the places
where hawking could be permitted.
The above authorities make it clear that the hawkers have a right
under Article 19(1)(g) of the Constitution of India. This right
however is subject to reasonable restrictions under Article 19(6).
Thus hawking may not be permitted where e.g. due to narrowness of
road free flow of traffic or movement of pedestrians is hindered
or where for security reasons an area is required to be kept free
or near hospitals, places of worship etc. There is no fundamental
right under Article 21 to carry on any hawking business. There is
also no right to do hawking at any particular place. The authorities
also recognize the fact that if properly regulated the small traders
can considerably add to the convenience and comfort of the general
public, by making available ordinary articles of everyday use for
a comparatively lesser price. The scheme must keep in mind the above
principles. So far as Mumbai is concerned the scheme must comply
with the conditions laid down in the Bombay Hawkers Unions' case.
Those conditions have become final and there is no changed circumstance,
which necessitates any alteration.
As has already been mentioned hereinabove a draft scheme was prepared
pursuant to the Judgment of this Court in the Bombay Hawkers Union's
case. In the initial scheme the number of hawking zones were shown
as 488, they were then brought down to 377 and ultimately have been
reduced to 187 as per the scheme framed by the Bombay High Court.
Under the Scheme sanctioned by the Bombay High Court only 22,000
hawkers can be accommodated. Even as per the survey carried out
by BMC there were over 1,03,000 hawkers in the city of Bombay. Out
of this there were 15000 licensed hawkers and app. 22000 hawkers
who had been issued pautis (receipts) under a scheme initiated in
1988 and known as `unauthorised Occupation cum Refuse Removal Charges'.
As it has already been held that the hawkers have a fundamental
right under article 19(1)(g) it would not be correct to unreasonably
restrict such a right, except under circumstances set out in the
guidelines laid down by this Court in the Bombay Hawkers Unions'
case and other reasonable restrictions set out hereafter. In our
view the correct approach should be to ascertain/earmark areas where,
as per the guidelines, hawking cannot be permitted. Thereafter all
other areas/streets must be hawking zones.
We have, during the course of arguments, tried to go through the
scheme street by street. However on a re-consideration it appears
to us that this Court is not really equipped to undergo this exercise.
In our view it would be preferable that this Court approve the conditions
of the scheme and certain roads/streets on which hawking is to be
permitted. Then, as in Sodan Singh's case, a committee must be appointed
and modalities laid down under which the committee is to function.
The committee can hear interested parties and consider their representation.
The committee can decide whether any particular road/street is to
be declared as a non-hawking zone. We therefore confine ourselves
to laying down the basic features of the scheme, appointing a committee
and laying down the modalities for functioning of the committee.
At this stage is must be mentioned that we had by order dated 1st
May 2003 permitted parties to make suggestions as of which additional
areas can become hawking zones. A number of suggestions had been
made. We are told the BMC is agreeable to include 51 more roads
as hawking zones. We have considered submissions of Mr. Divan on
why these additional roads should not be added to the 187 already
approved by the Bombay High Court. In our view 49 of these additional
roads meet all the criteria, set out hereafter, and can be included
in the hawking zones. Therefore to start with we approve the 187
+ 49 roads as hawking zones. The roads we have excluded are Pandey
Road in A Ward and Deodhar Road in F/N ward, as they appear to be
residential areas with no shopping line. We further clarify that
amongst these 49 roads there are some roads e.g. Mahatma Gandhi
Marg in A Ward which are already included in the hawking zones but
on which BMC now proposes to accommodate additional hawkers. Whilst
doing so BMC will ensure that there is no impediment or hindrance
to vehicular traffic or pedestrians. The approval of these 49 roads
is subject to approval/NOC from the traffic police. It must also
be clarified that even though a road may be within a hawking zone
the restrictions, set out hereunder, regarding distances from railway
stations, hospitals, educational institutions, places of worship
etc. on the road, if any, would continue to apply.
The restrictions/conditions on which the hawkers shall do the business
an area of 1 mtr x 1 mtr on one side of the footpath where ever
they exist or on an extreme side of the carriageway, in such a manner
that the vehicular and pedestrian traffic is not obstructed and
access to shops and residences is not blocked. We further clarify
that even where hawking is permitted, it can be on one side of the
footpath or road and under no circumstances on both sides of the
footpaths or roads. We however clarify that Aarey/Sarita stalls
and sugar cane vendors would require and may be permitted an area
of more than 1 Mt. by 1 Mt. but not more than 2 Mt. by 1 Mt;
Hawkers must not put up stalls or place any tables, stand or such
other thing or erect any type of structure. They should also not
use handcarts. However they may protect their goods from the sun,
rain or wind. Obviously this condition would not apply to Aarey/sarita
There should be no hawking within 100 meters from any place of worship,
holy shire, educational institutions and hospitals or within 150
meters from any municipal or other markets or from any railway station.
There should be no hawking on footbridges and over-bridges. Further
certain areas may be required to be kept free of hawkers for security
reasons. However outside places of worship hawkers can be permitted
to sell items required by the devotees for offering to the deity
or for placing in the place of worship e.g. flowers, sandalwood,
candles, agarbattis, coconuts etc.;
The hawkers must not create any noise or play any instrument or
music for attracting the public or the customers;
They can only sell cooked foods, cut fruits juices and the like.
We are unable to accept submission that cooking should be permitted.
We direct that no cooking of any nature whatsoever shall be permitted.
Even where cooked food or cut fruits or the like are sold, the food
must not be adulterated or unhygienic. All municipal licensing regulations
and the provisions of the Preventions of Food Adulteration Act must
be complied with;
Hawking must be only between 7.00 am an d10.00 pm;
Hawking will be on the basis of payment of a prescribed fee to be
fixed by BMC. However the payment of prescribed fee shall to be
deemed to authorize the hawker to do his business beyond prescribed
hours and would confer on the hawker the right to do business at
any particular place;
The hawkers must extend full cooperation to the municipal conservancy
staff for cleaning the streets and footpaths and also to the other
municipal staff for carrying on any municipal work. They must also
cooperate with the other government and public agencies such as
BEST undertaking; Bombay Telephones, BSES Ltd. etc. if they require
to lay any cable or any development work.
No hawking would be permitted on any street, which is less than
8 meters in width. Further the hawkers also have to comply with
Development Control Rules thus there can be no hawking in areas
which are exclusively residential and where trading and commercial
activity is prohibited. Thus hawking cannot be permitted on roads
and pavements, which do not have a shopping line.
BMC shall grant licenses, which will have photos of the hawkers
on them. The licenses must be displayed, at all times, by the hawkers
on their person by clipping it on to their shirt or coat;
Not more than one member of a family must be given a licence to
hawk. For this purpose BMC will have to computerize its records;
Vending of costly items e.g. electrical appliances, video and audio
tapes and cassettes, cameras, phones etc are to be prohibited. In
the event of any hawker found to be selling such items his licence
must be cancelled forthwith.
In areas other than the Non-Hawking Zones, licenses must be granted
to the hawkers to do their business on payment of the prescribed
fee. The licenses must be for a period of 1 year. That will be without
prejudice to the right of the Committee to extend the limits of
the Non-Hawking Zones in the interests of public health, sanitation,
safety, public convenience and the like. Hawking licenses should
not be refused in the Hawking Zones except for good reasons. The
discretion not to grant a hawking licence in the Hawking Zone should
be exercised reasonably and in public interest.
In future, before making any alteration in the scheme, the Commissioner
should place the matter before the Committee who shall take a decision
after considering views of all concerned including the hawkers,
the Commissioner of Police and members of the public or an association
representing the public.
It is expected that citizens and shopkeepers shall participate in
keeping non-hawking zones/areas free from hawkers. They shall do
so by bringing to the notice of the concerned ward officer the presence
of a hawker in a non-hawking zone/area. The concerned ward officer
shall take immediate steps to remove such a hawker. In case the
ward officer takes no action a written complaint may be filed by
the citizen/shopkeeper to the Committee. The Committee shall look
into the complaint and if found correct the Committee will with
the help of police remove the hawker. The officer in charge of the
concerned police station is directed to give prompt and immediate
assistance to the Committee. In the event of the Committee finding
the complaint to be correct it shall so record. On the Committee
so recording an adverse remark re failure to perform his duty will
be entered in the confidential record of the concerned ward officer.
If more than three such entries are found in the record of an officer
it would be a ground for withholding promotion. It more than 6 such
entries are found in the records of an officer it shall be a ground
for termination of service. For the work of attending to such complaints
BMC shall pay to the Chairman a fixed honorarium of Rs. 10,000/-
The scheme framed by us will have a binding effect on all concerned.
Thus apart from those to whom licenses will now be issued, no other
person/body will have any right to squat or carry on any hawking
or other business on the roads/streets. We direct the BMC shall
bring this Judgment to the notice of all Courts in which matters
are now pending. We are quite sure that the concerned Court/s shall
then suitably vacate/modify its injunction/stay order.
We do not approve of the principle that all major, trunk and arterial
roads should automatically be excluded from hawking zones. The committee
will also be entitled to examine, on receipt of a proposal whether
hawking can be permitted on such roads. If without too much hindrance
to vehicular and pedestrian traffic hawking can be permitted, it
must be so permitted. For example, we see no reason why hawking
should not be permitted on J. Tata Road or Barrister Rajni Patel
Marg in A Ward. Of course hawking cannot be permitted on these roads
in the vicinity of Sachinvalaya and Vidhan Bhavan. The Committee
will consider whether some portion of these roads can be declared
as a hawking zone. We also do not approve of the findings of the
Bombay High Court that hawking plazas are not to be permitted. It
will be open for the BMC to set up hawking plazas. However when
BMC sets up a hawking plaza the allotment of 1 Mt. x 1 Mt. pitches
in those hawking plazas must be made on the above terms and conditions
including no fixed site, timing from 7 a.m. to 10 p.m. etc. and
only by issuing advertisements in three local newspapers, one in
Marathi, one in Hindi and one in English. Out of the applications
received the allotment must be by draw of lots by the Chairman of
the Committee. Even in hawking plazas the licence should to exceed
one year. We were informed during hearing that at Andheri, BMC has
entered into an arrangement with some of the hawkers and allotted
them a place. In our view, such allotment was entirely unjustified
as inasmuch as it was against the Judgment of the Bombay High Court
and such allotment was made without making any advertisements or
inviting applications from all concerned. We see no substance in
the argument that this allotment was not as a hawking plaza and
that therefore the Bombay High Court Judgment did not apply to it.
If the allotment is not by way of hawking plaza, BMC could not have,
as its whims and fancies, allotted only to a particular body of
hawkers. It then necessarily had to first advertise and invite applications
and allot only by draw of lots. As in Court it was fairly admitted
that BMC had committed a mistake and will rectify it, we do not
pass any orders in respect thereof.
We appoint a Committee consisting of a retired Judge of the Bombay
City Civil Court at Bombay (to be nominated by the Chief Justice
of Bombay High Court), who shall be the Chairman of the Committee,
a senior officer of BMC (who shall be nominated by the Municipal
Commissioner) and a senior police officer from the traffic department
(who shall be nominated by the Police Commissioner). For the present
the Officers will be deputed full time to work on the Committee.
BMC shall forthwith make available to the Chairman and the Committee
all facilities like office space, secretarial staff etc. BMC shall
also make available to the Chairman a chauffeur driven car, which
is to be used for this work only. Any person or organization who
feels, that roads/streets apart from those designed as non hawking
zones are suitable for hawking, may apply to this Committee, for
having that road/street designated as a hawking zone. Similarly
any person or organization that feels that any road/street designated
as hawking zone should be a non hawking zone may apply to the Committee
for having that road/street designated as anon hawking zone. The
person or organization so applying must deposit along with the application
a sum of Rs. 1500/- per road/street in respect of which they want
a decision. BMC shall add to that a sum of Rs. 1500/- per road/street.
The sum of Rs. 3000 per road/street shall be handed over to the
Chairman of the Committee as his honorarium. The Committee shall
then cause a notice to be placed in the concerned ward office and
in prominent places on that road/street inviting objections/suggestions
in respect of that proposal. Undoubtedly the Committee shall visit
the road/street and also hear all concerned parties including residents
associations, shop owners in that road/street etc. The Committee
shall then decide whether or not such road/street should be a hawking
zone or not. The Committee will also decide how many hawkers can
be accommodated on that road/street if it is to be a hawking zone.
We clarify that merely because in the scheme, as sanctioned, an
area has been shown, as a hawking zone or a non-hawking zone, will
not preclude the Committee from considering whether hawking can
be permitted on that road/street. We have no doubt that the Committee
shall ensure that the above mentioned criteria are fulfilled before
a road/street is declared as a hawking zone and that if all the
criteria are met then that road/street is to kept out of a hawking
zone. In the event of any difference between the Committee members,
the decision of the Chairman of the Committee shall prevail. The
decision of the Committee shall be final and binding on all.
At one stage it was submitted that BMC would not have funds to meet
the payments suggested by us. We see no substance in this submission.
As set out hereinabove, between August 1998 and April 1999 BMC had
collected Rs. 2,70,14,162/- from licence fees and by issuance of
`Pauties'. Now that they can charge licence fees, a large amount
is going to be collected by them. BMC shall keep apart, from the
licence fees collected, sums necessary for expending monies under
We clarify that the scheme framed above and the guidelines are not
applicable to hawkers who do not sit in any one place but who travel
from place to place carrying their wares with them. However, even
such hawkers shall require to obtain a licence on payment of prescribed
fees and display that licence on their shirt/coat at all times.
Such hawkers will be allowed even in residential areas and areas
where there are no shopping lines. They shall not sell costly items
and will only vend articles of immediate requirement i.e. articles
of convenience shopping. They shall not hawk within 100 meters of
any place of worship, holy shrine, educational institutions or hospital
or within 150 meters of any municipal or other markets or from any
By Judgment dated 3rd May 2001 certain suggestions regarding cobblers
have been accepted by the Bombay High Court. We confirm that finding
of the Bombay High Court, but clarify that the existing cobblers
pitches in non-hawking zones can be continues. However no further
pitches can be added in non-hawking zones.
BMC shall now give wide publicity in the city of Mumbai and invite
applications for allocation of licenses. Each application must state
the area, where a pitch is sought and the type of items proposed
to be sold. Each applicant can give a choice of not more than 3
locations indicating his 1st, 2nd, and 3rd choice. All applications
will then be categorized road/street wise. If the number of applicants,
for a road/street, do not exceed the number of hawkers who can be
accommodated on that road/street, then licenses will be issued to
them on receipt of requisite licence fee. If the number of applicants
are more than the number of places available then those applications
will be placed before the Committee. The Chairman of the Committee
shall then allot licenses on basis of a draw of lots by him. Those
who do not get a licence will be placed on a waiting list. As and
when any other road/street gets declared as a Hawking Zone, lots
will be drawn form the wait list and places allotted.
realize that it will take some time for the above exercise to be
completed. We hope that the above exercise shall be completed within
6 months from today. In the meantime licenses may be issued and
hawkers may be located in zones already approved by us by a draw
of lots as indicated above. We now adjourn these matters to 23rd
July 2004. On that date BMC will inform us, on affidavit, how many
more roads/streets have been declared as hawking zones and how many
licenses have already been issued and how many more hawkers are
likely to be accommodated. BMC will also inform us how many and
where they intend to locate hawking plazas and by what date they
hope to set them up.