Not Unsympathetic To Vendors Plight But Price Can't Be State's Infra: Rajasthan HC Slams Govt For Not Preventing Encroachment Upon Public Ways

Taking note of the excessive encroachments upon public ways and streets in the state disrupting the traffic, Rajasthan High Court has criticised the state machinery for turning a blind eye towards this pressing issue and took suo moto cognisance of the matter.

The single judge bench of Justice Sameer Jain opined that encroachment by hawkers and vendors is equivalent to a 'public nuisance', affecting the heritage and beauty of cities that have a rich history. The court went on to clarify that it is not unsympathetic towards the plight of poor hawkers. However, encroachment for one's own benefit cannot be permitted at the cost of state infrastructure set up for public movement, the court laid down in clear terms.

“…The presumable and prima facie hand-in-glove approach of the State machinery has permitted hawkers, kiosk users and street vendors to broaden their entrepreneurial scope and set-up businesses on the streets, which per se, is grossly illegal and against the goals of good governance, which the State seeks to achieve…”, the bench sitting at Jaipur came down heavily on the state for its painstakingly callous approach.

Justice Sameer Jain also pointed out that such deliberate ignorance of enforcement authorities has resulted in the undesirable scenario of 'increased traffic congestions and the consequent deterioration of the quality of life of the citizens of the State'.

“…If the infrastructure set up for the public is grossly misused, where would the pedestrians walk?”, the court raised a question, dissatisfied with the lackadaisical attitude of police departments and Municipalities in the state. Before placing the matter before the Chief Justice for the constitution of an appropriate bench, Justice Jain also reminded the authorities that they are obligated to provide the first right of passage on public pathways and streets to pedestrians, instead of hawkers/vendors, as held in various apex court pronouncements.

The bench sitting at Jaipur also added that the rights of kiosk users, vendors and hawkers are not absolute which is why the state is empowered under Sections 133 of Cr.P.C and 283 of IPC to take action against public nuisance in a public place.

The court also took note of the articles that appeared in the daily of 'Rajasthan Pathrika' depicting the impediments created by mercenaries to public movement in Jaipur. The court has appointed Advocate Shovit Jhajharia as amicus curaie in the matter. The single-judge bench also underscored that suo moto cognisance is taken for the removal of encroachments from all districts falling under the court's jurisdiction.

Police Commissioner, Municipal Corporation Commissioner, DCP (Traffic) along with Additional Advocate General Bhuvnesh Sharma marked their presence before the court before making submissions in the matter. A few members of the Bar submitted that even the High Court premises are not free from the ramifications of encroachment.

During the proceedings, the Police Commissioner and DCP admitted the existence of the problem and promised the court that an effective encroachment removal drive can be made possible within 10 days. This undertaking was acknowledged by the court in the order.

“…respondents noted above, are directed to put forward the action report qua the removal of illegal encroachments from the roads/public ways. The Principal Secretary-UDH [Urban Development & Housing] to also file an appropriate affidavit before this Court qua the removal of encroachments in the other districts after considering the action plan/report furnished by all the concerned Commissioners as referenced above”, the court stipulated.

Thereafter, the Chairman of the Bar Association, Advocate Prahlad Sharma, submitted a list of advocates segregated in an area-wise manner who may be up to the task of assisting the police machinery as volunteers in the encroachment removal drive. This list was also taken as a part of the record by the High Court.

While taking suo moto cognisance, the court also iterated that it had given elaborate directions to tackle encroachments in Gulab Kothari v. State of Rajasthan and Ors. (2017). The High Court had then issued directions to JDA and state authorities to make sure that there are comprehensive master development plans of towns and cities for solving the issue of encroachments. This judgment, along with other apex court and high court decisions were disregarded by the state machinery, the court further observed.

“…encroachment upon public ways and streets, including the most prominent free-ways in the city of Jaipur by street vendors, hawkers and kiosks, has presumably skipped the attention of the public bodies/administration, including the enforcement authority i.e. police, so much so, that the said encroachments have effectively made a mockery of the public infrastructure…”, the court had made stringent remarks in the order initially.

Case Title: Suo Moto v. State of Rajasthan & Ors.

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