published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40757
1
REPORTABLE
IN THE SUPRME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos.4156-4157 of 2002
WITH
Civil Appeal Nos. 4161-4162 of 2002
AND
Civil Appeal Nos. 4175-4176 of 2002
AND
I.A.Nos.266-285, 288-289, 294-299, 304-309, 312-321 & 324-335
IN
Civil Appeal Nos.4156-4157 of 2002
AND
I.A.Nos.7-8 in Civil Appeal Nos. 4161-4162 of 2002
AND
I.A.Nos.16-17 in Civil Appeal Nos. 4175-4176 of 2002
Maharashtra Ekta Hawkers Union and another ... Appellants
Versus
Municipal Corporation, Greater Mumbai and others ... Respondents
O R D E R
G.S. SINGHVI, J.
1. A street vendor / hawker is a person who offers goods for sale to the
public at large without having a permanent structure / place for his
activities. Some street vendors / hawkers are stationary in the sense that
they occupy space on the pavements or other public / private places while
others are mobile in the sense that they move from place to place carrying
their wares on push carts or in baskets on their heads.
2. In last four decades, there has been manifold increase in the number
of street vendors / hawkers in all major cities in the country. One of the
many factors responsible for this phenomena is unabated growth of
population without corresponding increase in employment opportunities. The
other factor is the migration of rural population to the urban areas. A
large section of the rural population has been forced to leave their
habitat because of massive acquisition of land and substantial reduction in
the number of cottage industries, which offered source of livelihood to
many people in the rural areas and even those living in the peripheries of
the urban areas. In recent past, many lakh youngsters have moved from the
rural areas to the cities with the hope of getting permanent source of
livelihood but a substantial number of them have become street vendors /
hawkers because their expectations have been belied. One reason which has
contributed to this scenario is that unlike other sections of the urban
population, they neither have the capacity and strength to demand that the
Government should create jobs for them nor do they engage in begging,
stealing or extortion. They try to live with dignity and self-respect by
doing the work as street vendors / hawkers.
3. The importance of street vendors and hawkers can be measured from the
fact that millions of urban poor across the country procure their basic
necessities mainly from street vendors / hawkers because the goods, viz.,
cloths, hosiery items, plastic wares, household items, food items, etc.,
sold on pavements or through push carts, etc., are cheap. The lower income
groups also spend a large proportion of their income in purchasing goods
from street vendors / hawkers.
4. Unfortunately, the street vendors / hawkers have received raw
treatment from the State apparatus before and even after the independence.
They are a harassed lot and are constantly victimized by the officials of
the local authorities, the police, etc., who regularly target them for
extra income and treat them with extreme contempt. The goods and
belongings of the street vendors / hawkers are thrown to the ground and
destroyed at regular intervals if they are not able to meet the demands of
the officials. Perhaps these minions in the administration have not
understood meaning of the term “dignity” enshrined in the preamble of the
Constitution.
5. The constant threat faced by the street vendors / hawkers of losing
their source of livelihood has forced them to seek intervention of the
Courts across the country from time to time. In last 28 years, this Court
has struggled to find a workable solution of the problems of street vendors
/ hawkers on the one hand and other sections of society including residents
of the localities / places where street vendors / hawkers operate and
delivered several judgments including Bombay Hawkers’ Union vs. Bombay
Municipal Corporation (1985) 3 SCC 528, Sodan Singh vs. New Delhi Municipal
Committee (1989) 4 SCC 155, Maharashtra Ekta Hawkers Union vs. Municipal
Corporation, Greater Mumbai (2004) 1 SCC 625, Maharashtra Ekta Hawkers
Union vs. Municipal Corporation, Greater Mumbai (2009) 17 SCC 151,
Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater Mumbai
(2009) 17 SCC 231 (this order was passed on 30.07.2004 but was printed in
the journal only in 2009) and Gainda Ram vs. Municipal Corporation of Delhi
(2010) 10 SCC 715, but the situation has not changed in last four decades.
Rather, the problem has aggravated because of lackadaisical attitude of the
administration at various levels and the legislative instruments made many
decades ago have become totally ineffective.
6. In Sodan Singh vs. New Delhi Municipal Committee (supra), L.M.Sharma,
J., who authored the main judgment, referred to a number of precedents
including Saghir Ahmad vs. State of U.P. AIR 1954 SC 728 and observed.
“17. So far as right of a hawker to transact business while going from
place to place is concerned, it has been admittedly recognised 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 (1985) 3 SCC 528
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 paralysing 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
traders 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. An ordinary person,
not very affluent, while hurrying towards his home after day’s work
can pick up these articles without going out of his way to find a
regular market. If the circumstances are appropriate and a small
trader can do some business for personal gain on the pavement to the
advantage of the general public and without any discomfort or
annoyance to the others, we do not see any objection to his carrying
on the business. Appreciating this analogy the municipalities of
different cities and towns in the country have been allowing such
traders. The right to carry on trade or business mentioned in Article
19(1)(g) of the Constitution, on street pavements, if properly
regulated cannot be denied on the ground that the streets are meant
exclusively for passing or re-passing and for no other use. Proper
regulation is, however, a necessary condition as otherwise the very
object of laying out roads — to facilitate traffic — may be defeated.
Allowing the right to trade without appropriate control is likely to
lead to unhealthy competition and quarrel between traders and
travelling public and sometimes amongst the traders themselves
resulting in chaos. The right is subject to reasonable restrictions
under clause (6) or Article 19. If the matter is examined in its light
it will appear that the principle stated in Saghir Ahmad case (1955) 1
SCR 707:AIR 1954 SC 728 in connection with transport business applies
to the hawkers’ case also. The proposition that all public streets and
roads in India vest in the State but that the State holds them as
trustee on behalf of the public, and the members of the public are
entitled as beneficiaries to use them as a matter of right, and that
this right is limited only by the similar rights possessed by every
other citizen to use the pathways, and further that the State as
trustee is entitled to impose all necessary limitations on the
character and extent of the user, should be treated as of universal
application.”
(Emphasis supplied)
In his concurring opinion, Kuldip Singh, J. made the following
observations:
“33. In India there are large number of people who are engaged in the
business of “street trading”. There is hardly a household where
hawkers do not reach. The housewives wait for a vegetable vendor or a
fruit seller who conveniently delivers the daily needs at the
doorstep. The petitioners before us are street traders of Delhi and
New Delhi areas. Some of them have licences/Tehbazari from Municipal
Corporation of Delhi/New Delhi Municipal Committee but most of them
are squatters. There is practically no law regulating street trading
in Delhi/New Delhi. The skeletal provisions in the Delhi Municipal
Corporation Act, 1957 and the Punjab Municipal Act, 1911 can hardly
provide any regulatory measures to the enormous and complicated
problem of street trading in these areas.
35. Street trading being a fundamental right has to be made available
to the citizens subject to Article 19(6) of the Constitution. It is
within the domain of the State to make any law imposing reasonable,
restrictions in the interest of general public. This can be done by an
enactment on the same lines as in England or by any other law
permissible under Article 19(6) of the Constitution. In spite of
repeated suggestions by this Court nothing has been done in this
respect. Since a citizen has no right to choose a particular place in
any street for trading, it is for the State to designate the streets
and earmark the places from where street trading can be done. Inaction
on the part of the State would result in negating the fundamental
right of the citizens. It is expected that the State will do the
needful in this respect within a reasonable time failing which it
would be left to the courts to protect the rights of the citizens.”
7. In Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater
Mumbai (supra), which was decided on 9.12.2003, a two Judge Bench referred
to the judgments in Olga Tellis vs. Bombay Municipal Corporation (1985) 3
SCC 545, Sodan Singh vs. New Delhi Municipal Committee (supra), the
recommendations made by the Committee constituted pursuant to an earlier
judgment and observed:
“10. 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 Bombay Hawkers’ Union case (1985) 3 SCC 528. Those conditions
have become final and there is no changed circumstance which
necessitates any alteration.”
The Court then enumerated the following restrictions and conditions subject
to which the hawkers could do business in Mumbai:
“(1) An area of 1 m × 1 m on one side of the footpath wherever 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 only 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 sugarcane
vendors would require and may be permitted an area of more than 1 m ×
1 m but not more than 2 m × 1 m.
(2) 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
stalls.
(3) There should be no hawking 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. There should be no hawking on footbridges and overbridges.
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.
(4) The hawkers must not create any noise or play any instrument or
music for attracting the public or the customers.
(5) They can only sell cooked foods, cut fruits, juices and the like.
We are unable to accept the 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 Prevention of Food
Adulteration Act must be complied with.
(6) Hawking must be only between 7.00 a.m. and 10.00 p.m.
(7) Hawking will be on the basis of payment of a prescribed fee to be
fixed by BMC. However, the payment of prescribed fee shall not be
deemed to authorize the hawker to do his business beyond the
prescribed hours and would not confer on the hawker the right to do
business at any particular place.
(8) 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.
(9) No hawking would be permitted on any street which is less than 8
metres in width. Further, the hawkers also have to comply with the
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.
(10) BMC shall grant licences which will have photos of the hawkers on
them. The licence must be displayed, at all times, by the hawkers on
their person by clipping it on to their shirt or coat.
(11) 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.
(12) Vending of costly items e.g. electrical appliances, video and
audio tapes and cassettes, cameras, phones etc. is to be prohibited.
In the event of any hawker found to be selling such items his licence
must be cancelled forthwith.
(13) In areas other than the non-hawking zones, licences must be
granted to the hawkers to do their business on payment of the
prescribed fee. The licences 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 licences
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.
(14) 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.
(15) 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 ward officer concerned the presence
of a hawker in a non-hawking zone/area. The ward officer concerned
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 police station
concerned 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 ward officer concerned. If more than three
such entries are found in the record of an officer it would be a
ground for withholding promotion. If more than six 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 p.m.
(16) The scheme framed by us will have a binding effect on all
concerned. Thus, apart from those to whom licences 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 that BMC
shall bring this judgment to the notice of all courts in which matters
are now pending. We are quite sure that the court(s) concerned shall
then suitably vacate/modify its injunction/stay order.”
8. By an order dated 30.07.2004, which is reported in (2009) 17 SCC 231
(Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater Mumbai),
the Court modified order dated 09.12.2003 and permitted handicapped persons
who were granted licence for running PCOs/Aarey/Sarita stalls to continue
to run those stalls even in non-hawking zones with the rider that no
further or new licences be granted to any other person.
9. The matter did not stop there. The issue was again examined in the
judgment reported in (2009) 17 SCC 151 (Maharashtra Ekta Hawkers Union vs.
Municipal Corporation, Greater Mumbai). In that case, a two Judge Bench
took cognizance of National Policy on Urban Street Vendors, 2004 and
observed:
“41. After noticing the contents of the statements in the counter, we
are happy to note that the State Government is initiating a process
for implementation of National Policy on Urban Street Vendors by
framing regulations as envisaged in Section 10.1 of the National
Policy. We hope and trust that the State Government will pursue the
matter with right earnest and bring it to logical conclusion within
the time stipulated.
42. We clarify that the regulations so framed by the State would be in
consonance with the aims and objects of the National Policy to render
some sort of succour to the urban street vendors to eke out a living
through hawking.
43. We also clarify that the State Government shall frame regulations
in order to solve the problem of hawkers independently without being
influenced by any scheme framed by us or any direction issued by this
Court in the interregnum. We further clarify that the schemes and
directions issued by this Court are purely temporary in nature and
subject to regulations framed by the State Government in terms of
Section 10.1 of the National Policy on Urban Street Vendors. In other
words, the schemes and directions issued by this Court shall be valid
only till the regulations are framed and implemented.”
The two Judge Bench also restrained all other Courts from interpreting its
order or passing any order touching upon the subject matter dealt with by
this Court. Simultaneously, hearing of the writ petitions pending before
all the High Courts was stayed and it was ordained that if any
clarification / modification is required then the same must be obtained
from this Court.
10. In Gainda Ram vs. Municipal Corporation of Delhi (2010) 10 SCC 715,
the problem was considered in the context of Delhi. After taking
cognizance of the fact that various committees were set up by the
administration to solve the problem of street vendors / hawkers, the Bench
referred to the National Policy on Urban Street Vendors, 2009 (for short,
‘the 2009 Policy’), the Master Plan of Delhi, 2012, the Model Street
Vendors (Protection of Livelihood and Regulation of Street Vending) Bill,
2009 prepared by the Government of India, Ministry of Housing and Urban
Poverty Alleviation and observed:
“67. In the background of the provisions in the Bill and the 2009
Policy, it is clear that an attempt is made to regulate the
fundamental right of street hawking and street vending by law, since
it has been declared by this Court that the right to hawk on the
streets or right to carry on street vending is part of fundamental
right under Article 19(1)(g). However, till the law is made the
attempt made by NDMC and MCD to regulate this right by framing schemes
which are not statutory in nature is not exactly within the
contemplation of constitutional provisions discussed above. However,
such schemes have been regulated from time to time by this Court for
several years as pointed out above. Even, orders passed by this Court,
in trying to regulate such hawking and street vending, is not law
either. At the same time, there is no denying the fact that hawking
and street vending should be regulated by law. Such a law is
imminently necessary in public interest.”
The Court also referred to the mechanism established by the Municipal
Corporation of Delhi for redressing the grievance of the street
vendors/hawkers and issued the following directions:
“77. In view of such schemes, the hawkers, squatters and vendors must
abide by the dispute redressal mechanism mentioned above. There should
not be any direct approach to this Court by way of fresh petitions or
IAs, bypassing the dispute redressal mechanism provided in the
schemes.
78. However, before 30-6-2011, the appropriate Government is to enact
a law on the basis of the Bill mentioned above or on the basis of any
amendment thereof so that the hawkers may precisely know the contours
of their rights. This Court is giving this direction in exercise of
its jurisdiction to protect the fundamental rights of the citizens.
79. The hawkers’ and squatters’ or vendors’ right to carry on hawking
has been recognised as a fundamental right under Article 19(1)(g). At
the same time the right of the commuters to move freely and use the
roads without any impediment is also a fundamental right under Article
19(1)(d). These two apparently conflicting rights must be harmonised
and regulated by subjecting them to reasonable restrictions only under
a law. The question is, therefore, vitally important to a very large
section of people, mostly ordinary men and women. Such an issue cannot
be left to be decided by schemes and which are monitored by this Court
from time to time.”
11. When these appeals and applications were taken up for hearing, Shri
Prashant Bhushan, learned counsel representing some of the street vendors /
hawkers produced Twenty Third Report of the Standing Committee on Urban
Development (2012-2013) prepared in the context of the Street Vendors
(Protection of Livelihood and Regulation of Street Vending) Bill, 2012 and
submitted that till Parliament enacts appropriate legislation for
protecting the rights of the urban street vendors / hawkers, the Court may
ordain implementation of the 2009 Policy with liberty to the parties to
approach appropriate judicial forums for redressal of their grievance. They
and learned counsel representing the municipal bodies / authorities,
residents and others lamented that due to the restrictions imposed by this
Court, no other Court is entertaining the grievance made by the street
vendors / hawkers on the one hand and the residents of various colonies and
other people on the other hand and this is the reason why dozens of
interlocutory applications are being filed in this Court every year in the
decided matters. They suggested that the embargo placed by this Court on
the entertaining of writ petitions, etc., by the High Courts should be
lifted and a direction be given that till the enactment of appropriate
legislation by Parliament or any other competent legislature, the 2009
Policy should be implemented throughout the country. Shri Shyam Divan,
learned senior counsel, extensively referred to some of the precedents and
submitted that the Bombay High Court should be directed to specifically
deal with the issue related to establishment of hawking and non-hawking
zones so that the residents may not be adversely affected due to un-
regulated street vending and hawking activities in different parts of the
city of Mumbai.
12. Shri Pallav Shishodia, learned senior counsel appearing for the
Municipal Corporation of Greater Mumbai argued that the street vendors /
hawkers cannot be allowed to occupy public spaces at each and every place
and the scheme framed by the Corporation in compliance of the directions
given by this Court does not require any modification. Shri Vijay Hansaria,
Shri Anand Grover, learned Senior Advocates and Shri Sushil Kumar Jain and
other learned counsel emphasized that this Court should direct the
municipal authorities to accommodate all the street vendors / hawkers and
stop their harassment, exploitation and victimization by the State
agencies. Shri Prashant Bhushan emphasized that despite the directions
given by this Court from time to time, including the interim order passed
in relation to the street vendors / hawkers in Delhi, the concerned
authorities are not allowing them to conduct their activities. He further
argued that the street vendors / hawkers should be allowed to operate in
accordance with the provisions of 2009 Policy and the concerned authorities
should ensure that everybody is given licence for carrying out his / her
activity. Learned counsel for the parties also suggested that the
decision(s) of the Town Vending Committees should be published on regular
intervals in print and electronic media and the internet and the High
Courts should be asked to monitor implementation of various provisions of
the 2009 Policy.
13. At the conclusion of hearing, the Court had given time to the parties
to file written submissions / suggestions. On 7th August, 2013, Shri
Prashant Bhushan, learned counsel for the applicants in IA Nos. 322-323 of
2013 and 324-325 of 2013 filed written suggestions. On 8th August, 2013, a
written note was filed on behalf of Citizen Forum for Protection of Public
Spaces (CitiSpace), which was allowed to act as intervenor in the special
leave petitions filed by Maharashtra Ekta Hawkers Union.
14. We have considered the respective arguments / submissions. Learned
counsel for the parties are ad–idem that the orders passed by this Court
from time to time have not solved the problems of the street vendors /
hawkers and the residents of the cities of Delhi and Mumbai and almost
every year they have been seeking intervention of this Court by filing
interlocutory applications. The experience has, however, shown that it is
virtually impossible for this Court to monitor day to day implementation of
the provisions of different enactments and the directions contained in the
judgments noted hereinabove. Therefore, it will be appropriate to lift the
embargo placed on the entertaining of matters by the High Courts and we
order accordingly. Paragraph 45 of the judgment reported in (2009) 17 SCC
151 shall stand modified and the street vendors / hawkers, the residents
and others adversely affected by street vending / hawking shall henceforth
be entitled to invoke the jurisdiction of the concerned High Courts for
redressal of their grievance.
15. In Gainda Ram’s case (paragraph 78), this Court had directed that
appropriate Government should enact a law on or before 30th June, 2011.
Once the Street Vendors (Protection of Livelihood and Regulation of Street
Vending) Bill, 2012 becomes law, the livelihood of millions would be saved
and they will get protection against constant harassment and victimization
which has so far been an order of the day. However, till the needful is
done, it will be apposite for the Court to step in and direct that the 2009
Policy, of which the salient provisions are extracted below, should be
implemented throughout the country:
“1.8 A centre piece of this Policy is the role of Town Vending
Committee (henceforth referred to as TVC) to be constituted at
City/Town level. A TVC shall be coordinated by a convener who should
be nominated by the urban local body concerned. The Chairman of TVC
will be the Commissioner/Chief Executive Officer of the concerned
urban local body. The TVC will adopt a participatory approach and
supervise the entire process of planning, organisation and regulation
of street vending activities, thereby facilitating the implementation
of this Policy. Further, it will provide an institutional mechanism
for due appreciation of the ground realities and harnessing of local
knowledge for arriving at a consensus on critical issues of management
of street vending activities. The TVC may constitute, in collaboration
with the local authority, Ward Vending Committee to assist in the
discharge of its functions.
1.9 This Policy adopts the considered opinion that there should not
be any cut off date or limit imposed on the number of vendors who
should be permitted to vend in any city/town, subject to registration
of such vendors and regulation through the TVC. At any time, an urban
poor person can decide that he or she would like to go to a wholesale
market, purchase some items and sell these in vending zones during
permitted hours to make an honest living. The vendor may not be
subject to undue restrictions if he/she wishes to change the trade. In
order to make this conceptual right a practically feasible right, the
following would be necessary:
i) Vendor markets/outlets should be developed in which space could
be made available to hawkers/vendors on a time-sharing model on the
basis of a roster. Let us say that there are 500 such vending places
in about a 100 new vendors’ markets/push cart markets/motorized
vending outlets. Let us also assume that there are 5,000 vendors who
want to apply for a vending site on a time-sharing basis. Then by a
simple process of mathematical analysis, a certain number of days or
hours on particular days could be fixed for each vendor in a vending
place on a roster basis through the concerned TVC.
ii) In addition to vendors’ markets/outlets, it would be desirable
to promote week-end markets in public maidans, parade grounds or areas
meant for religious festivals. The week-end markets can be run on a
first-come-first-serve basis depending on the number of vending sites
that can be accommodated in the designated area and the number of
vendors seeking vending places. However, in order to be equitable, in
case there is a heavy demand from vendors the number of week-ends a
given vendor can be allocated a site on the first-come-first-serve
basis can be restricted to one or two in a month depending on demand.
iii) A registered vendor can be permitted to vend in designated
vending zones without restrictions, especially during non-rush hours.
Again in places like verandahs or parking lots in areas such as
central business districts, e.g. Connaught Place in New Delhi,
vendors’ markets can be organized after the closing of the regular
markets. Such markets, for example, can be run from 7.30 PM to 10.30
PM as night bazaars on a roster basis or a first-come-first-serve
basis, with suitable restrictions determined by the concerned TVC and
authorities.
iv) It is desirable that all City/Town Master Plans make specific
provisions for creating new vending markets at the time of
finalization/revision of Master Plans, Zonal Plans and Local Area
Plans. The space reserved in such plans should be commensurate with
the current number of vendors and their rate of growth on perspective
basis (say 10-20 years) based on rate of growth over a preceding 5-
year period.
This Policy attempts to address some of the above concerns, keeping
the interests of street vendors in view vis-à-vis conflicting public
interests.
3. Objectives
3.1 Overarching Objective
The overarching objective to be achieved through this Policy is:
To provide for and promote a supportive environment for the vast mass
of urban street vendors to carry out their vocation while at the same
time ensuring that their vending activities do not lead to
overcrowding and unsanitary conditions in public spaces and streets.
3.2 Specific Objectives
This Policy aims to develop a legal framework through a model law on
street vending which can be adopted by States/Union Territories with
suitable modifications to take into account their geographical/local
conditions. The specific objectives of this Policy are elaborated as
follows:
a) Legal Status:
To give street vendors a legal status by formulating an appropriate
law and thereby providing for legitimate vending/hawking zones in
city/town master or development plans including zonal, local and
layout plans and ensuring their enforcement;
b) Civic Facilities:
To provide civic facilities for appropriate use of identified spaces
as vending/hawking zones, vendors’ markets or vending areas in
accordance with city/town master plans including zonal, local and
layout plans;
c) Transparent Regulation:
To eschew imposing numerical limits on access to public spaces by
discretionary licenses, and instead moving to nominal fee-based
regulation of access, where previous occupancy of space by the street
vendors determines the allocation of space or creating new informal
sector markets where space access is on a temporary turn-by-turn
basis. All allotments of space, whether permanent or temporary should
be based on payment of a prescribed fee fixed by the local authority
on the recommendations of the Town Vending Committee to be constituted
under this Policy;
d) Organization of Vendors:
To promote, where necessary, organizations of street vendors e.g.
unions / co-operatives / associations and other forms of organizations
to facilitate their collective empowerment;
e) Participative Processes:
To set up participatory processes that involve firstly, local
authority, planning authority and police; secondly, associations of
street vendors; thirdly, resident welfare associations and fourthly,
other civil society organizations such as NGOs, representatives of
professional groups (such as lawyers, doctors, town planners,
architects etc.), representatives of trade and commerce,
representatives of scheduled banks and eminent citizens;
f) Self-Regulation:
To promote norms of civic discipline by institutionalizing mechanisms
of self-management and self-regulation in matters relating to hygiene,
including waste disposal etc. amongst street vendors both in the
individually allotted areas as well as vending zones/clusters with
collective responsibility for the entire vending zone/cluster; and
g) Promotional Measures:
To promote access of street vendors to such services as credit, skill
development, housing, social security and capacity building. For such
promotion, the services of Self Help Groups (SHGs)/Co-operatives/
Federations/Micro Finance Institutions (MFIs), Training Institutes
etc. should be encouraged.
4.2 Demarcation of Vending Zones
The demarcation of ‘Restriction-free Vending Zones’, ‘Restricted
Vending Zones’ and ‘No-vending Zones’ should be city/town specific. In
order to ensure that the city/town master/ development plans provide
for adequate space for street vendors to run their activities, the
following guidelines would need to be adhered to:
a) Spatial planning should take into account the natural propensity of
street vendors to locate in certain places at certain times in
response to the patterns of demand for their goods/services. For this
purpose, photographic digitalized surveys of street vendors and their
locations should be conducted by competent professional
institutions/agencies. This is to be sponsored by the concerned
Department of State Government/Urban Development Authority/Local
Authority.
b) Municipal Authorities should frame necessary rules for regulating
entry of street vendors on a time sharing basis in designated vending
zones keeping in view three broad categories - registered vendors who
have secured a license for a specified site/stall; registered street
vendors in a zone on a time sharing basis; and registered mobile
street vendors visiting one or the other vending zone;
c) Municipal Authorities should allocate sufficient space for
temporary ‘Vendors’ Markets’ (e.g. Weekly Haats, Rehri Markets, Night
Bazaars, Festival Bazaars, Food Streets/Street Food Marts etc.) whose
use at other times may be different (e.g. public park, exhibition
ground, parking lot etc.). These ‘Vendors Markets’ may be established
at suitable locations keeping in view demand for the wares/services of
street vendors. Timing restrictions on vending should be in accordance
with the need for ensuring non-congestion of public spaces/maintaining
public hygiene without being ad hoc, arbitrary or discriminatory.
Rationing of space should be resorted to if the number of street
vendors exceeds the number of spaces available. Attempts should also
be made to provide ample parking areas for mobile vendors for security
of their vehicles and wares at night on payment of suitable fees.
d) Mobile vending should be permitted in all areas even outside the
'Vendors Markets', unless designated as ‘No-vending Zone’ in the
zonal, local area or layout plans under the master/development plan of
each city/town. ‘Restricted Vending’ and ‘No Vending Zones’ may be
determined in a participatory manner. ‘Restricted Vending Zones’ may
be notified in terms of both location and time. Accordingly, a
particular location may be notified as 'No-vending Zone' only at
particular times of the day or days of the week. Locations should not
be designated as ‘No-vending Zones' without full justification; the
public benefits of declaring an area/spot as 'No-vending Zone' should
clearly outweigh the potential loss of livelihoods and non-
availability of 'affordable' and ‘convenient’ access of the general
public to street vendors.
e) With the growth of cities/towns in response to urbanization, the
statutory plans of every new area should have adequate provision for
‘Vending/hawking Zones’ and 'Vendors Markets.'
4.5.1 Town Vending Committee
a) Designation or demarcation of 'Restriction-free Vending Zones'/
'Restricted Vending Zones'/No-vending Zones' and Vendors’ Markets
should be carried out in a participatory manner by the Town Vending
Committee, to be established at town/city level. A TVC should consist
of the Municipal Commissioner/ Chief Executive Officer of the urban
local body as Chairperson and such number of members as may be
prescribed by the appropriate Government, representing firstly, local
authority; planning authority and police and such other interests as
it deems proper; secondly, associations of street vendors; thirdly,
resident welfare associations and Community Based Organisations
(CBOs); and fourthly, other civil society organizations such as NGOs,
representatives of professional groups (such as lawyers, doctors, town
planners, architects etc.), representatives of trade and commerce,
representatives of scheduled banks and eminent citizens. This Policy
suggests that the representatives of street vendors’ associations may
constitute forty per cent of the number of the members of the TVC and
the other three categories may be represented in equal proportion of
twenty per cent each. At least one third of the representatives of
categories of street vendors, resident welfare associations and other
civil society organizations should be women to provide a gender focus
in the TVC. Adequate/reasonable representation should also be provided
to the physically challenged in the TVC. The process for selection of
street vendors’ representatives should be based on the following
criteria:
• Participation in membership-based organisations; and
• Demonstration of financial accountability and civic discipline.
b) The TVC should ensure that the provision of space for vendors’
markets are pragmatic, consistent with formation of natural markets,
sufficient for existing demand for the street vendors’ goods and
services as well as likely increase in accordance with anticipated
population growth.
c) The TVC should monitor the provision of civic facilities and their
functioning in Vending Zones and Vendors’ Markets and bring
shortcomings, if any to the notice of the concerned authorities of the
urban local body. The TVC should also promote the organisation of
weekly markets, festival bazaars, night bazaars, vending festivals on
important holidays etc. as well as take up necessary improvement of
infrastructure facilities and municipal services with the urban local
body concerned.
4.5.2 The TVC shall perform the following functions:
a) Undertake periodic survey/census to assess the increase or decrease
in the number of street vendors in the city/town/wards/localities;
b) Register the street vendors and ensure the issuance of Identity
Cards to the street vendors after their preparation by the Municipal
Authority;
c) Monitor the civic facilities to be provided to the street vendors
in vending zones/vendors’ markets by the Municipal Authority;
d) Assess and determine maximum holding capacity of each vending zone;
e) Work out a non-discretionary system and based on the same, identify
areas for hawking with no restriction, areas with restriction with
regard to the dates, days and time, and, areas which would be marked
as 'No Vending Zones';
f) Set the terms and conditions for hawking and take corrective action
against defaulters;
g) Collect fees or other charges as authorized by the competent civic
authority;
h) Monitor to ensure that those allotted stalls/vending spots are
actually using them and take necessary action to ensure that these are
not rented out or sold to others;
i) Facilitate the organization of weekly markets, festival bazaars,
night bazaars, vending festivals such as food festivals to celebrate
important occasions/holidays including city/town formation days etc;
and
j) Ensure that the quality of products and services provided to the
public is as per standards of public health, hygiene and safety laid
down by the local authority.
4.5.4 Registration System for Street Vending
A system of registration of vendors/hawkers and non-discretionary
regulation of their access to public spaces in accordance with the
standards of planning and the nature of trade/service should be
adopted. This system is described in greater detail below.
a) Photo Census of Vendors:
The Municipal Authority, in consultation with the TVC should undertake
a comprehensive, digitalized photo census / survey / GIS Mapping of
the existing stationary vendors with the assistance of professional
organisations/experts for the purpose of granting them lease to vend
from specific places within the holding capacity of the vending zones
concerned.
b) Registration of Vendors:
The power to register vendors would be vested with the TVC. Only those
who give an undertaking that they will personally run the vending
stall/spot and have no other means of livelihood will be entitled for
registration. A person will be entitled to receive a registration
document for only one vending spot for him/her (and family). He/she
will not have the right to either rent or lease out or sell that spot
to another person.
c) New Entrants:
Those left out in the photo census or wishes to take up street vending
for the first time will also have a right to apply for registration as
vendors provided they give a statement on oath that they do not have
any other means of livelihood and will be personally operating from
the vending spot, with help from family members.
d) Identity Cards:
Upon registration, the concerned Municipal Authority would issue an
Identity Card with Vendor Code Number, Vendor Name, Category of Vendor
etc. in writing to the street vendor, through the TVC concerned
containing the following information:
(i) Vendor Code No.
(ii) Name, Address and photograph of the Vendor;
(iii) Name of any one Nominee from the family/and/or a family helper;
(iv) Nature of Business;
(v) Category (Stationary /Mobile); and
(vi) If Stationary, the Vending Location.
Children below 14 years would not be included in the Identity Card for
conduct of business.
e) Registration Fee:
All vendors in each city/town should be registered at a nominal fee to
be decided by the Municipal Authority concerned based on the photo
census or any other reliable means of identification such as the use
of biometric techniques.
f) Registration Process:
i) The registration process must be simple and expeditious. All
declarations, oath, etc. may be on the basis of self-declaration.
ii) There should preferably be no numerical restriction or quotas for
registration, or prior residential status requirements of any kind.
iii) Registration should be renewed after every three years. However,
a vendor who has rented out or sold his spot to another person will
not be entitled to seek re-registration.
iv) There may be a "on the spot" temporary registration process on
renewable basis, in order to allow the street vendors to immediately
start their earnings as the registration process and issue of I-card
etc. may take time.
5.1 If authorities come to the conclusion in any given instance that
genuine public obstruction of a street, side walk etc. is being caused
by street vending, there should be a mechanism of due notice to the
street vendors. The vendors should be informed/warned by way of notice
as the first step before starting the clearing up or relocation
process. In the second step, if the space is not cleared within the
notified time, a fine should be imposed. If the space is not cleared
even after the notice and imposition of fine, physical eviction may be
resorted to. In the case of vending in a 'No-vending Zone', a notice
of at least a few hours should be given to a street vendor in order to
enable him or her clear the space occupied. In case of relocation,
adequate compensation or reservation in allotment of new vending site
should be provided to the registered vendors.
5.2 With regard to confiscation of goods (which should happen only as
a last resort rather than routinely), the street vendors shall be
entitled to get their goods back within a reasonable time on payment
of prescribed fee, determined by TVC.
6.6 Allotment of Space/Stationary Stalls
Stationary vendors should be allowed space/stalls, whether open or
covered, on license basis after photo census/ survey and due enquiry
in this regard, initially for a period of 10 years with the provision
that only one extension of ten years shall be provided thereafter.
After 20 years, the vendor will be required to exit the stationary
stall (whether open or covered) as it is reasonably expected that the
licensee would have suitably enhanced his/her income, thereby making
the said stall available for being licensed to a person belonging to
the weaker sections of society. Wherever vending stall/vending space
is provided to a vendor on a lease basis for a certain number of
years, care should be taken that adequate reservation is made for the
SCs/STs in accordance with their share in the total population of the
city. Similarly, priority should be given to physically
challenged/disabled persons in the allocation of vending
stalls/vending spaces as vending space can be a useful medium for
rehabilitating physically challenged/disabled persons. Further, a
suitable monitoring system should be put in place by the TVC to ensure
that the licensees of the stationary stalls do not sell/ let out their
stalls.
6.7 Rehabilitation of Child Vendors
To prevent vending by children and seek their rehabilitation wherever
such practice exists, in conformity with the Child Labour (Prohibition
& Regulation) Act,1986, the State Government and Municipal Authorities
should undertake measures such as sending the children to regular or
bridge schools, imparting them skills training etc.
6.8 Promoting Vendors’ Organisations
To enable street vendors to access the benefits of social security
schemes and other promotional measures in an effective manner, it is
essential that the street vendors are assisted to form their own
organizations. The TVC should take steps to facilitate the formation
and smooth functioning of such organizations of street vendors. Trade
Unions and other Voluntary Organisations should play an active role
and help the street vendors to organise themselves by providing
counseling and guidance services wherever required.”
16. For facilitating implementation of the 2009 Policy, we issue the
following directions:
i) Within one month from the date of receipt of copy of this order,
the Chief Secretaries of the State Governments and
Administrators of the Union Territories shall issue necessary
instructions/directions to the concerned department(s) to ensure
that the Town Vending Committee is constituted at city / town
level in accordance with the provisions contained in the 2009
Policy. For the cities and towns having large municipal areas,
more than one Town Vending Committee may be constituted.
(ii) Each Town Vending Committee shall consist of representatives of
various organizations and street vendors / hawkers. 30% of the
representatives from the category of street vendors / hawkers
shall be women.
iii) The representatives of various organizations and street vendors
/ hawkers shall be chosen by the Town Vending Committee by
adopting a fair and transparent mechanism.
iv) The task of constituting the Town Vending Committees shall be
completed within two months of the issue of instructions by the
Chief Secretaries of the State and the Administrators of the
Union Territories.
v) The Town Vending Committees shall function strictly in
accordance with the 2009 Policy and the decisions taken by it
shall be notified in the print and electronic media within next
one week.
vi) The Town Vending Committees shall be free to divide the
municipal areas in vending / hawking zones and sub-zones and for
this purpose they may take assistance of experts in the field.
While undertaking this exercise, the Town Vending Committees
constituted for the cities of Delhi and Mumbai shall take into
consideration the work already undertaken by the municipal
authorities in furtherance of the directions given by this
Court. The municipal authorities shall also take action in
terms of Paragraph 4.2(b) and (c).
vii) All street vendors / hawkers shall be registered in accordance
with paragraph 4.5.4 of the 2009 Policy. Once registered, the
street vendor / hawker, shall be entitled to operate in the area
specified by the Town Vending Committee.
viii) The process of registration must be completed by the municipal
authorities across the country within four months of the receipt
of the direction by the Chief Secretaries of the States and
Administrators of the Union Territories.
ix) The State Governments / Administration of the Union Territories
and municipal and local authorities shall take all the steps
necessary for achieving the objectives set out in the 2009
Policy.
x) The Town Vending Committee shall meet every month and ensure
implementation of the relevant provisions of the 2009 Policy
and, in particular, paragraph 4.5.1 (b) and (c).
xi) Physically challenged who were allowed to operate PCO’s in terms
of the judgment reported in (2009) 17 SCC 231 shall be allowed
to continue to run their stalls and sell other goods because
running of PCOs. is no longer viable. Those who were allowed to
run Aarey/Sarita shall be allowed to continue to operate their
stalls.
xii) The State Governments, the Administration of the Union
Territories and municipal authorities shall be free to amend the
legislative provisions and/or delegated legislation to bring
them in tune with the 2009 Policy. If there remains any
conflict between the 2009 Policy and the municipal laws, insofar
as they relate to street vendors/hawkers, then the 2009 Policy
shall prevail.
xiii) Henceforth, the parties shall be free to approach the
jurisdictional High Courts for redressal of their grievance and
the direction, if any, given by this Court in the earlier
judgments / orders shall not impede disposal of the cases which
may be filed by the aggrieved parties.
xiv) The Chief Justices of the High Courts are requested to nominate
a Bench to deal with the cases filed for implementation of the
2009 Policy and disputes arising out of its implementation. The
concerned Bench shall regularly monitor implementation of the
2009 Policy and the law which may be enacted by the Parliament.
xv) All the existing street vendors / hawkers operating across the
country shall be allowed to operate till the exercise of
registration and creation of vending / hawking zones is
completed in terms of the 2009 Policy. Once that exercise is
completed, they shall be entitled to operate only in accordance
with the orders/directions of the concerned Town Vending
Committee.
xvi) The provisions of the 2009 Policy and the directions contained
hereinabove shall apply to all the municipal areas in the
country.
17. The aforesaid directions shall remain operative till an appropriate
legislation is enacted by Parliament or any other competent legislature and
is brought into force.
18. The parties, whose applications have remained pending before this
Court, shall be free to institute appropriate proceedings in the
jurisdictional High Court. If so advised, the aggrieved person shall be
free to file petition under Article 226 of the Constitution.
19. All the appeals and I.As are disposed of in the manner indicated
above.
20. The Registry is directed to send copies of this order to the Chief
Secretaries of all the States, Administrators of the Union Territories and
Registrar Generals / Registrars (Judicial) of all the High Courts, who
shall place the order before the Chief Justice for consideration and
necessary directions.
…………………………..J.
(G.S. SINGHVI)
………………………….J.
(V. GOPALA GOWDA)
New Delhi;
September 9, 2013.
-----------------------
27
1
REPORTABLE
IN THE SUPRME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos.4156-4157 of 2002
WITH
Civil Appeal Nos. 4161-4162 of 2002
AND
Civil Appeal Nos. 4175-4176 of 2002
AND
I.A.Nos.266-285, 288-289, 294-299, 304-309, 312-321 & 324-335
IN
Civil Appeal Nos.4156-4157 of 2002
AND
I.A.Nos.7-8 in Civil Appeal Nos. 4161-4162 of 2002
AND
I.A.Nos.16-17 in Civil Appeal Nos. 4175-4176 of 2002
Maharashtra Ekta Hawkers Union and another ... Appellants
Versus
Municipal Corporation, Greater Mumbai and others ... Respondents
O R D E R
G.S. SINGHVI, J.
1. A street vendor / hawker is a person who offers goods for sale to the
public at large without having a permanent structure / place for his
activities. Some street vendors / hawkers are stationary in the sense that
they occupy space on the pavements or other public / private places while
others are mobile in the sense that they move from place to place carrying
their wares on push carts or in baskets on their heads.
2. In last four decades, there has been manifold increase in the number
of street vendors / hawkers in all major cities in the country. One of the
many factors responsible for this phenomena is unabated growth of
population without corresponding increase in employment opportunities. The
other factor is the migration of rural population to the urban areas. A
large section of the rural population has been forced to leave their
habitat because of massive acquisition of land and substantial reduction in
the number of cottage industries, which offered source of livelihood to
many people in the rural areas and even those living in the peripheries of
the urban areas. In recent past, many lakh youngsters have moved from the
rural areas to the cities with the hope of getting permanent source of
livelihood but a substantial number of them have become street vendors /
hawkers because their expectations have been belied. One reason which has
contributed to this scenario is that unlike other sections of the urban
population, they neither have the capacity and strength to demand that the
Government should create jobs for them nor do they engage in begging,
stealing or extortion. They try to live with dignity and self-respect by
doing the work as street vendors / hawkers.
3. The importance of street vendors and hawkers can be measured from the
fact that millions of urban poor across the country procure their basic
necessities mainly from street vendors / hawkers because the goods, viz.,
cloths, hosiery items, plastic wares, household items, food items, etc.,
sold on pavements or through push carts, etc., are cheap. The lower income
groups also spend a large proportion of their income in purchasing goods
from street vendors / hawkers.
4. Unfortunately, the street vendors / hawkers have received raw
treatment from the State apparatus before and even after the independence.
They are a harassed lot and are constantly victimized by the officials of
the local authorities, the police, etc., who regularly target them for
extra income and treat them with extreme contempt. The goods and
belongings of the street vendors / hawkers are thrown to the ground and
destroyed at regular intervals if they are not able to meet the demands of
the officials. Perhaps these minions in the administration have not
understood meaning of the term “dignity” enshrined in the preamble of the
Constitution.
5. The constant threat faced by the street vendors / hawkers of losing
their source of livelihood has forced them to seek intervention of the
Courts across the country from time to time. In last 28 years, this Court
has struggled to find a workable solution of the problems of street vendors
/ hawkers on the one hand and other sections of society including residents
of the localities / places where street vendors / hawkers operate and
delivered several judgments including Bombay Hawkers’ Union vs. Bombay
Municipal Corporation (1985) 3 SCC 528, Sodan Singh vs. New Delhi Municipal
Committee (1989) 4 SCC 155, Maharashtra Ekta Hawkers Union vs. Municipal
Corporation, Greater Mumbai (2004) 1 SCC 625, Maharashtra Ekta Hawkers
Union vs. Municipal Corporation, Greater Mumbai (2009) 17 SCC 151,
Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater Mumbai
(2009) 17 SCC 231 (this order was passed on 30.07.2004 but was printed in
the journal only in 2009) and Gainda Ram vs. Municipal Corporation of Delhi
(2010) 10 SCC 715, but the situation has not changed in last four decades.
Rather, the problem has aggravated because of lackadaisical attitude of the
administration at various levels and the legislative instruments made many
decades ago have become totally ineffective.
6. In Sodan Singh vs. New Delhi Municipal Committee (supra), L.M.Sharma,
J., who authored the main judgment, referred to a number of precedents
including Saghir Ahmad vs. State of U.P. AIR 1954 SC 728 and observed.
“17. So far as right of a hawker to transact business while going from
place to place is concerned, it has been admittedly recognised 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 (1985) 3 SCC 528
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 paralysing 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
traders 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. An ordinary person,
not very affluent, while hurrying towards his home after day’s work
can pick up these articles without going out of his way to find a
regular market. If the circumstances are appropriate and a small
trader can do some business for personal gain on the pavement to the
advantage of the general public and without any discomfort or
annoyance to the others, we do not see any objection to his carrying
on the business. Appreciating this analogy the municipalities of
different cities and towns in the country have been allowing such
traders. The right to carry on trade or business mentioned in Article
19(1)(g) of the Constitution, on street pavements, if properly
regulated cannot be denied on the ground that the streets are meant
exclusively for passing or re-passing and for no other use. Proper
regulation is, however, a necessary condition as otherwise the very
object of laying out roads — to facilitate traffic — may be defeated.
Allowing the right to trade without appropriate control is likely to
lead to unhealthy competition and quarrel between traders and
travelling public and sometimes amongst the traders themselves
resulting in chaos. The right is subject to reasonable restrictions
under clause (6) or Article 19. If the matter is examined in its light
it will appear that the principle stated in Saghir Ahmad case (1955) 1
SCR 707:AIR 1954 SC 728 in connection with transport business applies
to the hawkers’ case also. The proposition that all public streets and
roads in India vest in the State but that the State holds them as
trustee on behalf of the public, and the members of the public are
entitled as beneficiaries to use them as a matter of right, and that
this right is limited only by the similar rights possessed by every
other citizen to use the pathways, and further that the State as
trustee is entitled to impose all necessary limitations on the
character and extent of the user, should be treated as of universal
application.”
(Emphasis supplied)
In his concurring opinion, Kuldip Singh, J. made the following
observations:
“33. In India there are large number of people who are engaged in the
business of “street trading”. There is hardly a household where
hawkers do not reach. The housewives wait for a vegetable vendor or a
fruit seller who conveniently delivers the daily needs at the
doorstep. The petitioners before us are street traders of Delhi and
New Delhi areas. Some of them have licences/Tehbazari from Municipal
Corporation of Delhi/New Delhi Municipal Committee but most of them
are squatters. There is practically no law regulating street trading
in Delhi/New Delhi. The skeletal provisions in the Delhi Municipal
Corporation Act, 1957 and the Punjab Municipal Act, 1911 can hardly
provide any regulatory measures to the enormous and complicated
problem of street trading in these areas.
35. Street trading being a fundamental right has to be made available
to the citizens subject to Article 19(6) of the Constitution. It is
within the domain of the State to make any law imposing reasonable,
restrictions in the interest of general public. This can be done by an
enactment on the same lines as in England or by any other law
permissible under Article 19(6) of the Constitution. In spite of
repeated suggestions by this Court nothing has been done in this
respect. Since a citizen has no right to choose a particular place in
any street for trading, it is for the State to designate the streets
and earmark the places from where street trading can be done. Inaction
on the part of the State would result in negating the fundamental
right of the citizens. It is expected that the State will do the
needful in this respect within a reasonable time failing which it
would be left to the courts to protect the rights of the citizens.”
7. In Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater
Mumbai (supra), which was decided on 9.12.2003, a two Judge Bench referred
to the judgments in Olga Tellis vs. Bombay Municipal Corporation (1985) 3
SCC 545, Sodan Singh vs. New Delhi Municipal Committee (supra), the
recommendations made by the Committee constituted pursuant to an earlier
judgment and observed:
“10. 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 Bombay Hawkers’ Union case (1985) 3 SCC 528. Those conditions
have become final and there is no changed circumstance which
necessitates any alteration.”
The Court then enumerated the following restrictions and conditions subject
to which the hawkers could do business in Mumbai:
“(1) An area of 1 m × 1 m on one side of the footpath wherever 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 only 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 sugarcane
vendors would require and may be permitted an area of more than 1 m ×
1 m but not more than 2 m × 1 m.
(2) 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
stalls.
(3) There should be no hawking 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. There should be no hawking on footbridges and overbridges.
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.
(4) The hawkers must not create any noise or play any instrument or
music for attracting the public or the customers.
(5) They can only sell cooked foods, cut fruits, juices and the like.
We are unable to accept the 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 Prevention of Food
Adulteration Act must be complied with.
(6) Hawking must be only between 7.00 a.m. and 10.00 p.m.
(7) Hawking will be on the basis of payment of a prescribed fee to be
fixed by BMC. However, the payment of prescribed fee shall not be
deemed to authorize the hawker to do his business beyond the
prescribed hours and would not confer on the hawker the right to do
business at any particular place.
(8) 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.
(9) No hawking would be permitted on any street which is less than 8
metres in width. Further, the hawkers also have to comply with the
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.
(10) BMC shall grant licences which will have photos of the hawkers on
them. The licence must be displayed, at all times, by the hawkers on
their person by clipping it on to their shirt or coat.
(11) 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.
(12) Vending of costly items e.g. electrical appliances, video and
audio tapes and cassettes, cameras, phones etc. is to be prohibited.
In the event of any hawker found to be selling such items his licence
must be cancelled forthwith.
(13) In areas other than the non-hawking zones, licences must be
granted to the hawkers to do their business on payment of the
prescribed fee. The licences 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 licences
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.
(14) 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.
(15) 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 ward officer concerned the presence
of a hawker in a non-hawking zone/area. The ward officer concerned
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 police station
concerned 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 ward officer concerned. If more than three
such entries are found in the record of an officer it would be a
ground for withholding promotion. If more than six 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 p.m.
(16) The scheme framed by us will have a binding effect on all
concerned. Thus, apart from those to whom licences 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 that BMC
shall bring this judgment to the notice of all courts in which matters
are now pending. We are quite sure that the court(s) concerned shall
then suitably vacate/modify its injunction/stay order.”
8. By an order dated 30.07.2004, which is reported in (2009) 17 SCC 231
(Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater Mumbai),
the Court modified order dated 09.12.2003 and permitted handicapped persons
who were granted licence for running PCOs/Aarey/Sarita stalls to continue
to run those stalls even in non-hawking zones with the rider that no
further or new licences be granted to any other person.
9. The matter did not stop there. The issue was again examined in the
judgment reported in (2009) 17 SCC 151 (Maharashtra Ekta Hawkers Union vs.
Municipal Corporation, Greater Mumbai). In that case, a two Judge Bench
took cognizance of National Policy on Urban Street Vendors, 2004 and
observed:
“41. After noticing the contents of the statements in the counter, we
are happy to note that the State Government is initiating a process
for implementation of National Policy on Urban Street Vendors by
framing regulations as envisaged in Section 10.1 of the National
Policy. We hope and trust that the State Government will pursue the
matter with right earnest and bring it to logical conclusion within
the time stipulated.
42. We clarify that the regulations so framed by the State would be in
consonance with the aims and objects of the National Policy to render
some sort of succour to the urban street vendors to eke out a living
through hawking.
43. We also clarify that the State Government shall frame regulations
in order to solve the problem of hawkers independently without being
influenced by any scheme framed by us or any direction issued by this
Court in the interregnum. We further clarify that the schemes and
directions issued by this Court are purely temporary in nature and
subject to regulations framed by the State Government in terms of
Section 10.1 of the National Policy on Urban Street Vendors. In other
words, the schemes and directions issued by this Court shall be valid
only till the regulations are framed and implemented.”
The two Judge Bench also restrained all other Courts from interpreting its
order or passing any order touching upon the subject matter dealt with by
this Court. Simultaneously, hearing of the writ petitions pending before
all the High Courts was stayed and it was ordained that if any
clarification / modification is required then the same must be obtained
from this Court.
10. In Gainda Ram vs. Municipal Corporation of Delhi (2010) 10 SCC 715,
the problem was considered in the context of Delhi. After taking
cognizance of the fact that various committees were set up by the
administration to solve the problem of street vendors / hawkers, the Bench
referred to the National Policy on Urban Street Vendors, 2009 (for short,
‘the 2009 Policy’), the Master Plan of Delhi, 2012, the Model Street
Vendors (Protection of Livelihood and Regulation of Street Vending) Bill,
2009 prepared by the Government of India, Ministry of Housing and Urban
Poverty Alleviation and observed:
“67. In the background of the provisions in the Bill and the 2009
Policy, it is clear that an attempt is made to regulate the
fundamental right of street hawking and street vending by law, since
it has been declared by this Court that the right to hawk on the
streets or right to carry on street vending is part of fundamental
right under Article 19(1)(g). However, till the law is made the
attempt made by NDMC and MCD to regulate this right by framing schemes
which are not statutory in nature is not exactly within the
contemplation of constitutional provisions discussed above. However,
such schemes have been regulated from time to time by this Court for
several years as pointed out above. Even, orders passed by this Court,
in trying to regulate such hawking and street vending, is not law
either. At the same time, there is no denying the fact that hawking
and street vending should be regulated by law. Such a law is
imminently necessary in public interest.”
The Court also referred to the mechanism established by the Municipal
Corporation of Delhi for redressing the grievance of the street
vendors/hawkers and issued the following directions:
“77. In view of such schemes, the hawkers, squatters and vendors must
abide by the dispute redressal mechanism mentioned above. There should
not be any direct approach to this Court by way of fresh petitions or
IAs, bypassing the dispute redressal mechanism provided in the
schemes.
78. However, before 30-6-2011, the appropriate Government is to enact
a law on the basis of the Bill mentioned above or on the basis of any
amendment thereof so that the hawkers may precisely know the contours
of their rights. This Court is giving this direction in exercise of
its jurisdiction to protect the fundamental rights of the citizens.
79. The hawkers’ and squatters’ or vendors’ right to carry on hawking
has been recognised as a fundamental right under Article 19(1)(g). At
the same time the right of the commuters to move freely and use the
roads without any impediment is also a fundamental right under Article
19(1)(d). These two apparently conflicting rights must be harmonised
and regulated by subjecting them to reasonable restrictions only under
a law. The question is, therefore, vitally important to a very large
section of people, mostly ordinary men and women. Such an issue cannot
be left to be decided by schemes and which are monitored by this Court
from time to time.”
11. When these appeals and applications were taken up for hearing, Shri
Prashant Bhushan, learned counsel representing some of the street vendors /
hawkers produced Twenty Third Report of the Standing Committee on Urban
Development (2012-2013) prepared in the context of the Street Vendors
(Protection of Livelihood and Regulation of Street Vending) Bill, 2012 and
submitted that till Parliament enacts appropriate legislation for
protecting the rights of the urban street vendors / hawkers, the Court may
ordain implementation of the 2009 Policy with liberty to the parties to
approach appropriate judicial forums for redressal of their grievance. They
and learned counsel representing the municipal bodies / authorities,
residents and others lamented that due to the restrictions imposed by this
Court, no other Court is entertaining the grievance made by the street
vendors / hawkers on the one hand and the residents of various colonies and
other people on the other hand and this is the reason why dozens of
interlocutory applications are being filed in this Court every year in the
decided matters. They suggested that the embargo placed by this Court on
the entertaining of writ petitions, etc., by the High Courts should be
lifted and a direction be given that till the enactment of appropriate
legislation by Parliament or any other competent legislature, the 2009
Policy should be implemented throughout the country. Shri Shyam Divan,
learned senior counsel, extensively referred to some of the precedents and
submitted that the Bombay High Court should be directed to specifically
deal with the issue related to establishment of hawking and non-hawking
zones so that the residents may not be adversely affected due to un-
regulated street vending and hawking activities in different parts of the
city of Mumbai.
12. Shri Pallav Shishodia, learned senior counsel appearing for the
Municipal Corporation of Greater Mumbai argued that the street vendors /
hawkers cannot be allowed to occupy public spaces at each and every place
and the scheme framed by the Corporation in compliance of the directions
given by this Court does not require any modification. Shri Vijay Hansaria,
Shri Anand Grover, learned Senior Advocates and Shri Sushil Kumar Jain and
other learned counsel emphasized that this Court should direct the
municipal authorities to accommodate all the street vendors / hawkers and
stop their harassment, exploitation and victimization by the State
agencies. Shri Prashant Bhushan emphasized that despite the directions
given by this Court from time to time, including the interim order passed
in relation to the street vendors / hawkers in Delhi, the concerned
authorities are not allowing them to conduct their activities. He further
argued that the street vendors / hawkers should be allowed to operate in
accordance with the provisions of 2009 Policy and the concerned authorities
should ensure that everybody is given licence for carrying out his / her
activity. Learned counsel for the parties also suggested that the
decision(s) of the Town Vending Committees should be published on regular
intervals in print and electronic media and the internet and the High
Courts should be asked to monitor implementation of various provisions of
the 2009 Policy.
13. At the conclusion of hearing, the Court had given time to the parties
to file written submissions / suggestions. On 7th August, 2013, Shri
Prashant Bhushan, learned counsel for the applicants in IA Nos. 322-323 of
2013 and 324-325 of 2013 filed written suggestions. On 8th August, 2013, a
written note was filed on behalf of Citizen Forum for Protection of Public
Spaces (CitiSpace), which was allowed to act as intervenor in the special
leave petitions filed by Maharashtra Ekta Hawkers Union.
14. We have considered the respective arguments / submissions. Learned
counsel for the parties are ad–idem that the orders passed by this Court
from time to time have not solved the problems of the street vendors /
hawkers and the residents of the cities of Delhi and Mumbai and almost
every year they have been seeking intervention of this Court by filing
interlocutory applications. The experience has, however, shown that it is
virtually impossible for this Court to monitor day to day implementation of
the provisions of different enactments and the directions contained in the
judgments noted hereinabove. Therefore, it will be appropriate to lift the
embargo placed on the entertaining of matters by the High Courts and we
order accordingly. Paragraph 45 of the judgment reported in (2009) 17 SCC
151 shall stand modified and the street vendors / hawkers, the residents
and others adversely affected by street vending / hawking shall henceforth
be entitled to invoke the jurisdiction of the concerned High Courts for
redressal of their grievance.
15. In Gainda Ram’s case (paragraph 78), this Court had directed that
appropriate Government should enact a law on or before 30th June, 2011.
Once the Street Vendors (Protection of Livelihood and Regulation of Street
Vending) Bill, 2012 becomes law, the livelihood of millions would be saved
and they will get protection against constant harassment and victimization
which has so far been an order of the day. However, till the needful is
done, it will be apposite for the Court to step in and direct that the 2009
Policy, of which the salient provisions are extracted below, should be
implemented throughout the country:
“1.8 A centre piece of this Policy is the role of Town Vending
Committee (henceforth referred to as TVC) to be constituted at
City/Town level. A TVC shall be coordinated by a convener who should
be nominated by the urban local body concerned. The Chairman of TVC
will be the Commissioner/Chief Executive Officer of the concerned
urban local body. The TVC will adopt a participatory approach and
supervise the entire process of planning, organisation and regulation
of street vending activities, thereby facilitating the implementation
of this Policy. Further, it will provide an institutional mechanism
for due appreciation of the ground realities and harnessing of local
knowledge for arriving at a consensus on critical issues of management
of street vending activities. The TVC may constitute, in collaboration
with the local authority, Ward Vending Committee to assist in the
discharge of its functions.
1.9 This Policy adopts the considered opinion that there should not
be any cut off date or limit imposed on the number of vendors who
should be permitted to vend in any city/town, subject to registration
of such vendors and regulation through the TVC. At any time, an urban
poor person can decide that he or she would like to go to a wholesale
market, purchase some items and sell these in vending zones during
permitted hours to make an honest living. The vendor may not be
subject to undue restrictions if he/she wishes to change the trade. In
order to make this conceptual right a practically feasible right, the
following would be necessary:
i) Vendor markets/outlets should be developed in which space could
be made available to hawkers/vendors on a time-sharing model on the
basis of a roster. Let us say that there are 500 such vending places
in about a 100 new vendors’ markets/push cart markets/motorized
vending outlets. Let us also assume that there are 5,000 vendors who
want to apply for a vending site on a time-sharing basis. Then by a
simple process of mathematical analysis, a certain number of days or
hours on particular days could be fixed for each vendor in a vending
place on a roster basis through the concerned TVC.
ii) In addition to vendors’ markets/outlets, it would be desirable
to promote week-end markets in public maidans, parade grounds or areas
meant for religious festivals. The week-end markets can be run on a
first-come-first-serve basis depending on the number of vending sites
that can be accommodated in the designated area and the number of
vendors seeking vending places. However, in order to be equitable, in
case there is a heavy demand from vendors the number of week-ends a
given vendor can be allocated a site on the first-come-first-serve
basis can be restricted to one or two in a month depending on demand.
iii) A registered vendor can be permitted to vend in designated
vending zones without restrictions, especially during non-rush hours.
Again in places like verandahs or parking lots in areas such as
central business districts, e.g. Connaught Place in New Delhi,
vendors’ markets can be organized after the closing of the regular
markets. Such markets, for example, can be run from 7.30 PM to 10.30
PM as night bazaars on a roster basis or a first-come-first-serve
basis, with suitable restrictions determined by the concerned TVC and
authorities.
iv) It is desirable that all City/Town Master Plans make specific
provisions for creating new vending markets at the time of
finalization/revision of Master Plans, Zonal Plans and Local Area
Plans. The space reserved in such plans should be commensurate with
the current number of vendors and their rate of growth on perspective
basis (say 10-20 years) based on rate of growth over a preceding 5-
year period.
This Policy attempts to address some of the above concerns, keeping
the interests of street vendors in view vis-à-vis conflicting public
interests.
3. Objectives
3.1 Overarching Objective
The overarching objective to be achieved through this Policy is:
To provide for and promote a supportive environment for the vast mass
of urban street vendors to carry out their vocation while at the same
time ensuring that their vending activities do not lead to
overcrowding and unsanitary conditions in public spaces and streets.
3.2 Specific Objectives
This Policy aims to develop a legal framework through a model law on
street vending which can be adopted by States/Union Territories with
suitable modifications to take into account their geographical/local
conditions. The specific objectives of this Policy are elaborated as
follows:
a) Legal Status:
To give street vendors a legal status by formulating an appropriate
law and thereby providing for legitimate vending/hawking zones in
city/town master or development plans including zonal, local and
layout plans and ensuring their enforcement;
b) Civic Facilities:
To provide civic facilities for appropriate use of identified spaces
as vending/hawking zones, vendors’ markets or vending areas in
accordance with city/town master plans including zonal, local and
layout plans;
c) Transparent Regulation:
To eschew imposing numerical limits on access to public spaces by
discretionary licenses, and instead moving to nominal fee-based
regulation of access, where previous occupancy of space by the street
vendors determines the allocation of space or creating new informal
sector markets where space access is on a temporary turn-by-turn
basis. All allotments of space, whether permanent or temporary should
be based on payment of a prescribed fee fixed by the local authority
on the recommendations of the Town Vending Committee to be constituted
under this Policy;
d) Organization of Vendors:
To promote, where necessary, organizations of street vendors e.g.
unions / co-operatives / associations and other forms of organizations
to facilitate their collective empowerment;
e) Participative Processes:
To set up participatory processes that involve firstly, local
authority, planning authority and police; secondly, associations of
street vendors; thirdly, resident welfare associations and fourthly,
other civil society organizations such as NGOs, representatives of
professional groups (such as lawyers, doctors, town planners,
architects etc.), representatives of trade and commerce,
representatives of scheduled banks and eminent citizens;
f) Self-Regulation:
To promote norms of civic discipline by institutionalizing mechanisms
of self-management and self-regulation in matters relating to hygiene,
including waste disposal etc. amongst street vendors both in the
individually allotted areas as well as vending zones/clusters with
collective responsibility for the entire vending zone/cluster; and
g) Promotional Measures:
To promote access of street vendors to such services as credit, skill
development, housing, social security and capacity building. For such
promotion, the services of Self Help Groups (SHGs)/Co-operatives/
Federations/Micro Finance Institutions (MFIs), Training Institutes
etc. should be encouraged.
4.2 Demarcation of Vending Zones
The demarcation of ‘Restriction-free Vending Zones’, ‘Restricted
Vending Zones’ and ‘No-vending Zones’ should be city/town specific. In
order to ensure that the city/town master/ development plans provide
for adequate space for street vendors to run their activities, the
following guidelines would need to be adhered to:
a) Spatial planning should take into account the natural propensity of
street vendors to locate in certain places at certain times in
response to the patterns of demand for their goods/services. For this
purpose, photographic digitalized surveys of street vendors and their
locations should be conducted by competent professional
institutions/agencies. This is to be sponsored by the concerned
Department of State Government/Urban Development Authority/Local
Authority.
b) Municipal Authorities should frame necessary rules for regulating
entry of street vendors on a time sharing basis in designated vending
zones keeping in view three broad categories - registered vendors who
have secured a license for a specified site/stall; registered street
vendors in a zone on a time sharing basis; and registered mobile
street vendors visiting one or the other vending zone;
c) Municipal Authorities should allocate sufficient space for
temporary ‘Vendors’ Markets’ (e.g. Weekly Haats, Rehri Markets, Night
Bazaars, Festival Bazaars, Food Streets/Street Food Marts etc.) whose
use at other times may be different (e.g. public park, exhibition
ground, parking lot etc.). These ‘Vendors Markets’ may be established
at suitable locations keeping in view demand for the wares/services of
street vendors. Timing restrictions on vending should be in accordance
with the need for ensuring non-congestion of public spaces/maintaining
public hygiene without being ad hoc, arbitrary or discriminatory.
Rationing of space should be resorted to if the number of street
vendors exceeds the number of spaces available. Attempts should also
be made to provide ample parking areas for mobile vendors for security
of their vehicles and wares at night on payment of suitable fees.
d) Mobile vending should be permitted in all areas even outside the
'Vendors Markets', unless designated as ‘No-vending Zone’ in the
zonal, local area or layout plans under the master/development plan of
each city/town. ‘Restricted Vending’ and ‘No Vending Zones’ may be
determined in a participatory manner. ‘Restricted Vending Zones’ may
be notified in terms of both location and time. Accordingly, a
particular location may be notified as 'No-vending Zone' only at
particular times of the day or days of the week. Locations should not
be designated as ‘No-vending Zones' without full justification; the
public benefits of declaring an area/spot as 'No-vending Zone' should
clearly outweigh the potential loss of livelihoods and non-
availability of 'affordable' and ‘convenient’ access of the general
public to street vendors.
e) With the growth of cities/towns in response to urbanization, the
statutory plans of every new area should have adequate provision for
‘Vending/hawking Zones’ and 'Vendors Markets.'
4.5.1 Town Vending Committee
a) Designation or demarcation of 'Restriction-free Vending Zones'/
'Restricted Vending Zones'/No-vending Zones' and Vendors’ Markets
should be carried out in a participatory manner by the Town Vending
Committee, to be established at town/city level. A TVC should consist
of the Municipal Commissioner/ Chief Executive Officer of the urban
local body as Chairperson and such number of members as may be
prescribed by the appropriate Government, representing firstly, local
authority; planning authority and police and such other interests as
it deems proper; secondly, associations of street vendors; thirdly,
resident welfare associations and Community Based Organisations
(CBOs); and fourthly, other civil society organizations such as NGOs,
representatives of professional groups (such as lawyers, doctors, town
planners, architects etc.), representatives of trade and commerce,
representatives of scheduled banks and eminent citizens. This Policy
suggests that the representatives of street vendors’ associations may
constitute forty per cent of the number of the members of the TVC and
the other three categories may be represented in equal proportion of
twenty per cent each. At least one third of the representatives of
categories of street vendors, resident welfare associations and other
civil society organizations should be women to provide a gender focus
in the TVC. Adequate/reasonable representation should also be provided
to the physically challenged in the TVC. The process for selection of
street vendors’ representatives should be based on the following
criteria:
• Participation in membership-based organisations; and
• Demonstration of financial accountability and civic discipline.
b) The TVC should ensure that the provision of space for vendors’
markets are pragmatic, consistent with formation of natural markets,
sufficient for existing demand for the street vendors’ goods and
services as well as likely increase in accordance with anticipated
population growth.
c) The TVC should monitor the provision of civic facilities and their
functioning in Vending Zones and Vendors’ Markets and bring
shortcomings, if any to the notice of the concerned authorities of the
urban local body. The TVC should also promote the organisation of
weekly markets, festival bazaars, night bazaars, vending festivals on
important holidays etc. as well as take up necessary improvement of
infrastructure facilities and municipal services with the urban local
body concerned.
4.5.2 The TVC shall perform the following functions:
a) Undertake periodic survey/census to assess the increase or decrease
in the number of street vendors in the city/town/wards/localities;
b) Register the street vendors and ensure the issuance of Identity
Cards to the street vendors after their preparation by the Municipal
Authority;
c) Monitor the civic facilities to be provided to the street vendors
in vending zones/vendors’ markets by the Municipal Authority;
d) Assess and determine maximum holding capacity of each vending zone;
e) Work out a non-discretionary system and based on the same, identify
areas for hawking with no restriction, areas with restriction with
regard to the dates, days and time, and, areas which would be marked
as 'No Vending Zones';
f) Set the terms and conditions for hawking and take corrective action
against defaulters;
g) Collect fees or other charges as authorized by the competent civic
authority;
h) Monitor to ensure that those allotted stalls/vending spots are
actually using them and take necessary action to ensure that these are
not rented out or sold to others;
i) Facilitate the organization of weekly markets, festival bazaars,
night bazaars, vending festivals such as food festivals to celebrate
important occasions/holidays including city/town formation days etc;
and
j) Ensure that the quality of products and services provided to the
public is as per standards of public health, hygiene and safety laid
down by the local authority.
4.5.4 Registration System for Street Vending
A system of registration of vendors/hawkers and non-discretionary
regulation of their access to public spaces in accordance with the
standards of planning and the nature of trade/service should be
adopted. This system is described in greater detail below.
a) Photo Census of Vendors:
The Municipal Authority, in consultation with the TVC should undertake
a comprehensive, digitalized photo census / survey / GIS Mapping of
the existing stationary vendors with the assistance of professional
organisations/experts for the purpose of granting them lease to vend
from specific places within the holding capacity of the vending zones
concerned.
b) Registration of Vendors:
The power to register vendors would be vested with the TVC. Only those
who give an undertaking that they will personally run the vending
stall/spot and have no other means of livelihood will be entitled for
registration. A person will be entitled to receive a registration
document for only one vending spot for him/her (and family). He/she
will not have the right to either rent or lease out or sell that spot
to another person.
c) New Entrants:
Those left out in the photo census or wishes to take up street vending
for the first time will also have a right to apply for registration as
vendors provided they give a statement on oath that they do not have
any other means of livelihood and will be personally operating from
the vending spot, with help from family members.
d) Identity Cards:
Upon registration, the concerned Municipal Authority would issue an
Identity Card with Vendor Code Number, Vendor Name, Category of Vendor
etc. in writing to the street vendor, through the TVC concerned
containing the following information:
(i) Vendor Code No.
(ii) Name, Address and photograph of the Vendor;
(iii) Name of any one Nominee from the family/and/or a family helper;
(iv) Nature of Business;
(v) Category (Stationary /Mobile); and
(vi) If Stationary, the Vending Location.
Children below 14 years would not be included in the Identity Card for
conduct of business.
e) Registration Fee:
All vendors in each city/town should be registered at a nominal fee to
be decided by the Municipal Authority concerned based on the photo
census or any other reliable means of identification such as the use
of biometric techniques.
f) Registration Process:
i) The registration process must be simple and expeditious. All
declarations, oath, etc. may be on the basis of self-declaration.
ii) There should preferably be no numerical restriction or quotas for
registration, or prior residential status requirements of any kind.
iii) Registration should be renewed after every three years. However,
a vendor who has rented out or sold his spot to another person will
not be entitled to seek re-registration.
iv) There may be a "on the spot" temporary registration process on
renewable basis, in order to allow the street vendors to immediately
start their earnings as the registration process and issue of I-card
etc. may take time.
5.1 If authorities come to the conclusion in any given instance that
genuine public obstruction of a street, side walk etc. is being caused
by street vending, there should be a mechanism of due notice to the
street vendors. The vendors should be informed/warned by way of notice
as the first step before starting the clearing up or relocation
process. In the second step, if the space is not cleared within the
notified time, a fine should be imposed. If the space is not cleared
even after the notice and imposition of fine, physical eviction may be
resorted to. In the case of vending in a 'No-vending Zone', a notice
of at least a few hours should be given to a street vendor in order to
enable him or her clear the space occupied. In case of relocation,
adequate compensation or reservation in allotment of new vending site
should be provided to the registered vendors.
5.2 With regard to confiscation of goods (which should happen only as
a last resort rather than routinely), the street vendors shall be
entitled to get their goods back within a reasonable time on payment
of prescribed fee, determined by TVC.
6.6 Allotment of Space/Stationary Stalls
Stationary vendors should be allowed space/stalls, whether open or
covered, on license basis after photo census/ survey and due enquiry
in this regard, initially for a period of 10 years with the provision
that only one extension of ten years shall be provided thereafter.
After 20 years, the vendor will be required to exit the stationary
stall (whether open or covered) as it is reasonably expected that the
licensee would have suitably enhanced his/her income, thereby making
the said stall available for being licensed to a person belonging to
the weaker sections of society. Wherever vending stall/vending space
is provided to a vendor on a lease basis for a certain number of
years, care should be taken that adequate reservation is made for the
SCs/STs in accordance with their share in the total population of the
city. Similarly, priority should be given to physically
challenged/disabled persons in the allocation of vending
stalls/vending spaces as vending space can be a useful medium for
rehabilitating physically challenged/disabled persons. Further, a
suitable monitoring system should be put in place by the TVC to ensure
that the licensees of the stationary stalls do not sell/ let out their
stalls.
6.7 Rehabilitation of Child Vendors
To prevent vending by children and seek their rehabilitation wherever
such practice exists, in conformity with the Child Labour (Prohibition
& Regulation) Act,1986, the State Government and Municipal Authorities
should undertake measures such as sending the children to regular or
bridge schools, imparting them skills training etc.
6.8 Promoting Vendors’ Organisations
To enable street vendors to access the benefits of social security
schemes and other promotional measures in an effective manner, it is
essential that the street vendors are assisted to form their own
organizations. The TVC should take steps to facilitate the formation
and smooth functioning of such organizations of street vendors. Trade
Unions and other Voluntary Organisations should play an active role
and help the street vendors to organise themselves by providing
counseling and guidance services wherever required.”
16. For facilitating implementation of the 2009 Policy, we issue the
following directions:
i) Within one month from the date of receipt of copy of this order,
the Chief Secretaries of the State Governments and
Administrators of the Union Territories shall issue necessary
instructions/directions to the concerned department(s) to ensure
that the Town Vending Committee is constituted at city / town
level in accordance with the provisions contained in the 2009
Policy. For the cities and towns having large municipal areas,
more than one Town Vending Committee may be constituted.
(ii) Each Town Vending Committee shall consist of representatives of
various organizations and street vendors / hawkers. 30% of the
representatives from the category of street vendors / hawkers
shall be women.
iii) The representatives of various organizations and street vendors
/ hawkers shall be chosen by the Town Vending Committee by
adopting a fair and transparent mechanism.
iv) The task of constituting the Town Vending Committees shall be
completed within two months of the issue of instructions by the
Chief Secretaries of the State and the Administrators of the
Union Territories.
v) The Town Vending Committees shall function strictly in
accordance with the 2009 Policy and the decisions taken by it
shall be notified in the print and electronic media within next
one week.
vi) The Town Vending Committees shall be free to divide the
municipal areas in vending / hawking zones and sub-zones and for
this purpose they may take assistance of experts in the field.
While undertaking this exercise, the Town Vending Committees
constituted for the cities of Delhi and Mumbai shall take into
consideration the work already undertaken by the municipal
authorities in furtherance of the directions given by this
Court. The municipal authorities shall also take action in
terms of Paragraph 4.2(b) and (c).
vii) All street vendors / hawkers shall be registered in accordance
with paragraph 4.5.4 of the 2009 Policy. Once registered, the
street vendor / hawker, shall be entitled to operate in the area
specified by the Town Vending Committee.
viii) The process of registration must be completed by the municipal
authorities across the country within four months of the receipt
of the direction by the Chief Secretaries of the States and
Administrators of the Union Territories.
ix) The State Governments / Administration of the Union Territories
and municipal and local authorities shall take all the steps
necessary for achieving the objectives set out in the 2009
Policy.
x) The Town Vending Committee shall meet every month and ensure
implementation of the relevant provisions of the 2009 Policy
and, in particular, paragraph 4.5.1 (b) and (c).
xi) Physically challenged who were allowed to operate PCO’s in terms
of the judgment reported in (2009) 17 SCC 231 shall be allowed
to continue to run their stalls and sell other goods because
running of PCOs. is no longer viable. Those who were allowed to
run Aarey/Sarita shall be allowed to continue to operate their
stalls.
xii) The State Governments, the Administration of the Union
Territories and municipal authorities shall be free to amend the
legislative provisions and/or delegated legislation to bring
them in tune with the 2009 Policy. If there remains any
conflict between the 2009 Policy and the municipal laws, insofar
as they relate to street vendors/hawkers, then the 2009 Policy
shall prevail.
xiii) Henceforth, the parties shall be free to approach the
jurisdictional High Courts for redressal of their grievance and
the direction, if any, given by this Court in the earlier
judgments / orders shall not impede disposal of the cases which
may be filed by the aggrieved parties.
xiv) The Chief Justices of the High Courts are requested to nominate
a Bench to deal with the cases filed for implementation of the
2009 Policy and disputes arising out of its implementation. The
concerned Bench shall regularly monitor implementation of the
2009 Policy and the law which may be enacted by the Parliament.
xv) All the existing street vendors / hawkers operating across the
country shall be allowed to operate till the exercise of
registration and creation of vending / hawking zones is
completed in terms of the 2009 Policy. Once that exercise is
completed, they shall be entitled to operate only in accordance
with the orders/directions of the concerned Town Vending
Committee.
xvi) The provisions of the 2009 Policy and the directions contained
hereinabove shall apply to all the municipal areas in the
country.
17. The aforesaid directions shall remain operative till an appropriate
legislation is enacted by Parliament or any other competent legislature and
is brought into force.
18. The parties, whose applications have remained pending before this
Court, shall be free to institute appropriate proceedings in the
jurisdictional High Court. If so advised, the aggrieved person shall be
free to file petition under Article 226 of the Constitution.
19. All the appeals and I.As are disposed of in the manner indicated
above.
20. The Registry is directed to send copies of this order to the Chief
Secretaries of all the States, Administrators of the Union Territories and
Registrar Generals / Registrars (Judicial) of all the High Courts, who
shall place the order before the Chief Justice for consideration and
necessary directions.
…………………………..J.
(G.S. SINGHVI)
………………………….J.
(V. GOPALA GOWDA)
New Delhi;
September 9, 2013.
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