Hawkers Don't Have Absolute Right To Squat On Pavements And Footpaths; Public Interest Paramount: Bombay HC [Read Judgment]

Division bench of Justice SC Dharmadhikari and Justice GS Patel were hearing a writ petition filed by hawkers from Bhandup who were directed to vacate the stalls run by them within 15 days as they lie within 150 metres from Bhandup railway Station. The Assistant Commissioner in his order asked the petitioners to relocate to the shops allotted to them in the Municipal Market nearby.

Submissions

Senior Advocate MM Vashi appeared on behalf of the petitioners and Senior Advocate AY Sakhare for the Mumbai Municipal Corporation.

MM Vashi disputed Municipal Corporation's position that the stalls run by the petitioners were within the prohibited distance as an educational institution was also in the vicinity apart from the railway station.

Vashi contended that the stalls are not within 100 metres of the railway station and they may be in close proximity with an educational institution. Once Vashi placed a map of the said area on record and sought to rely on it, Court asked the Municipal Corporation to reply. Corporation's stand was firm, they reiterated stand that the stalls are within 100 metres of Bhandup railway station.

When the bench enquired from Vashi about the stalls allotted to petitioners in Municipal Market, he took instructions and stated that, not all the stalls suit the requirement of the petitioners and some of them are not sufficient for carrying on even a small business. The movement is not possible and without causing inconvenience to the stall holders and the customers, Vashi said.

During the hearing, Vashi also suggested that the civic body is in collusion with developer HDIL Limited, who constructed a Mall on the said road. He said that removing the petitioners from the stalls and shops will not make a difference as they not at all affecting the business of the Mall owner.

AY Sakhare strongly opposed Vashi's submissions and stated- Maintenance, upkeep and building, laying of public streets is a statutory exercise. It is not only passage but a smooth and safe one is thus the prime inbuilt consideration. If pedestrian and vehicular movement is not impossible but becomes unsafe because of the presence of stalls, structures of street vendors within a close range of railway station, religious or holy places and educational institutions, then, public safety demands that they be shifted or located elsewhere.

Judgment

Court examined the orders of the High Court in Shri Vile Parle Kelvani Mandal and others vs. Municipal Corporation of Greater Mumbai and others and Janhit Manch and others vs. Brihanmumbai Municipal Corporation and others –

"Nowhere have we found a finding or conclusion which prevents the Municipal Corporation from shifting or relocating the stall holders who are obstructing or prejudicially affecting pedestrian and vehicular movement on a busy and congested road leading to a railway station. More so, when the consistent policy is that, none should hawk within 100 metres of any place of worship, holy shrine, educational institutions and hospitals and within the periphery of 150 metres of any Municipal or other market or from any railway station."

Further, Court noted-

"No statute nor any Judgment can be read as recognising absolute, unconditional and unrestricted right to hawk on public street. By their very nature, public streets are meant for vehicular and pedestrian movements and rather they are dedicated to the use of public. They are the property of the public. They cannot be used nor occupied by anybody in a manner causing inconvenience to the members of the public.

They cannot say that they will erect structures or stalls on footpaths from where they will sell their goods and articles permanently. We wonder whether this stand will ever go down, leave alone accepted by a writ Court."

Dismissing the petition, Court observed-

"This is not a case of permanent dislocation and total loss of the source of livelihood. This is a case where premises on the pavement in very close proximity to educational institutions and railway station would have to be vacated and the business will now have to be carried on from elsewhere but within the same locality.

That is surely not how the writ jurisdiction is exercised nor it can be extended to perpetuate a wrong of the nature found in this petition. The request is therefore rejected."