No Hawking Within 100 M Of Places For Worship, Hospitals, Educational Institutions & Within 150 M Of Markets, Railway Stations: Bombay HC [Read Judgment]

Reiterating the view taken by the Supreme Court in Maharashtra Ekta Hawkers Union vs MCGM in 2004, the Bombay High Court has held that no hawking would be permitted within 100 metres from any place of worship, holy shrine, educational institutions and hospitals or within 150 metres from any municipal or other markets or from any railway station.

In light of the Elphinstone Stampede that led to the death of 23 people, the court also said that no hawking would be permitted on footbridges and overbridges.

The bench of Justice BR Gavai and Justice MS Karnik passed the 118-page judgment on Wednesday after hearing submissions from all parties.

Seniors advocates BA Desai, Gayatri Singh, MM Vashi appeared for the petitioners, while senior advocate AY Sakhare appeared for Municipal Corporation of Greater Mumbai (MCGM) and Advocate General AA Kumbhakoni appeared for the state.

Case Background

Several petitions were tagged together in this matter and all of them essentially sought all civic bodies and municipal corporations in Maharashtra to be restrained from taking any coercive action against street vendors/hawkers.

The petitioners have challenged Rule 15 framed under the said Rules and the Government Resolution dated January 9, 2017, which has issued directions for appointment of the first Town Vending Committee (TVC) without representation to vendors and, thereafter, election of representatives for existing street vendors.

It was argued on behalf of the petitioners that various judgments of the apex court have recognized rights of street vendors to be a right to life emanating from Article 21 of the Constitution of India. Senior Counsel BA Desai submitted that a perusal of the Statement of Objects and Reasons of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, itself would reveal that it has been enacted to recognise rights of street vendors as a source of self-employment.

Desai submitted that right to street vending serves two purposes, firstly it provides self-employment to vast majority of unemployed people and it enables majority of population to buy goods at affordable prices at convenient vending places. He submitted that the said Act has been enacted so as to give effect to the National Policy of Urban Street Vendors, 2009, which aims at securing right of the citizens to have adequate means of livelihood as enshrined in Articles 14, 19(1)(g), 38(2), 39(a), 39(b) and 41 of the Constitution.

Whereas MCGM counsel AY Sakhare submitted that as per directions of the apex court in the Ekta Hawkers case, the TVC was formed under the chairmanship of the MCGM Commissioner with 30 members. Out of these, 12 were representatives of various associations of hawkers/vendors, 11 were official members  representing the Corporation, MMRDA, police authorities, railways etc and rest were representatives of   Residents Welfare Association, NGOs, lawyers, town planners, retail traders welfare association, banks etc.

In the meetings held thereafter, it was resolved that 241 teams will be formed to conduct a survey of street vendors. In the survey, it was found that the total number of applications that were issued for registration were 1,28,443, out of which 99,435 applicants were found to be eligible.

Observations and Final judgment

The high court observed that the Supreme Court has been hearing cases on similar issues since 1983 and has held that the very purpose of the Act is to recognise rights of the vendors to do vending business without any harassment from any quarter and also to regulate the hawking, so that no inconvenience is caused to the citizens.

The court also noted that right from its first judgment in Bombay Hawkers Union & Ors vs Bombay Municipal Corporation and Ors, the apex court has consistently recognized the concept of hawking zones and non­-hawking zones. Not only that, in the 2009 Ekta judgment, the apex court had clearly specified that total roads as hawking zone shall remain only 221.

“We are therefore of the considered view that insofar as area coming under the jurisdiction of MCGM is concerned, till new vending and non-vending zones are earmarked and notified by local authorities, in consultation with the duly constituted TVCs, the hawking activity can be continued, only in areas which are identified as hawking zones, as approved by the Apex Court and, in no case, such activity can be permitted in non-hawking zone,” the court said.

It sought to balance the rights of street vendors to conduct their business on the streets with the rights of pedestrians to walk on footpaths and rejected the argument that after the enactment of the said Act, concept of non-hawking zones did not exist. The court then referred to the Elphinstone stampede and said:

“It will not be out of place to mention a recent unfortunate incident, which has occurred in the City of Mumbai on a narrow foot over bridge. On account of mad rush of the passengers, there was commotion on the bridge, which led to loss of 22 precious human lives. The presence of the large number of hawkers on the foot over bridge is said to be one of the major contributing factor in the said mishap.”

Thus, following directions were passed:

i)  The complete survey of all street vendors in the state would be conducted by TVCs formed in consonance of 2009 policy that came as per directions of the Supreme Court.

ii)   GR dated January 9, 2017, has been quashed and set aside, but challenge to the validity of Rule 15 has been rejected.

iii)  Till vending and non­-vending zones are duly notified in accordance with the said Act, the hawking activities would be permitted only on roads which have been approved as hawking zones in 2009 Ekta judgment of the apex court.

iv)    It is further directed that in view of the directions issued by the Supreme Court in 2004 Ekta judgment, which is duly reiterated in the 2009 Ekta judgment, no hawking would be permitted within 100 metres from any place of worship, holy shrine, educational institutions and hospitals or within 150 metres from any municipal or other markets or from any railway station.   It is also directed that no hawking would be permitted on footbridges and overbridges.