Bombay High Court
Bhaji Va Fal Mutton, Chicken, Macchi, ... vs The State Of Maharashtra, Thr. ... on 6 October, 2021
Author: Anil S. Kilor
Bench: S.B. Shukre, Anil S. Kilor
1 W.P.No.3902.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 3902 OF 2021
Bhaji Va Fal Mutton, Chicken, Macchi, Chaha, Pan Che Vikreta Footpath Dukandar
Sanstha, Jaripatka Nagpur,
..VS..
The State of Maharashtra, through its Secretary, Urban Development Department,
Mantralaya, Mumbai and Anr.,
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri Mohd. Ateeque, Advocate for petitioner.
Ms. Mayuri Deshmukh, A.G.P. for respondent No.1.
Shri J. B. Kasat, Advocate for respondent No.2.
CORAM : SUNIL B. SHUKRE AND
ANIL S. KILOR, JJ.
DATED : 06.10.2021
1. Heard.
2. Learned counsel for the petitioner submits that the petitioner is a registered society of which the members are street vendors engaged in the occupation of selling of goods, commodities and articles on streets of Jaripatka, and these members have been divested of their right to earn their livelihood by street vending and that too, in violation of directions issued by the Hon'ble Supreme Court of India in the case of Maharashtra Ekta Hawkers Union and Anr., Vs. Municipal Corporation, Greater Mumbai and Ors., (2014) 1 SCC 490.
::: Uploaded on - 06/10/2021 ::: Downloaded on - 07/10/2021 07:57:40 ::: 2 W.P.No.3902.20213. Learned counsel for the petitioner further submits that the respondents have not conducted any survey of street vendors and have not cared to protect the street vendors, the members of the petitioner Society, against their illegal eviction from Jaripatka area and this was when the directions issued by this Court in Writ Petition No.1453 of 2021 were confined only to removal and eviction of the persons illegally carrying on their business in that area. He submits that the Town Vending Committee has not conducted any survey to identify the street vendors nor has taken any steps to protect the street vendors from their eviction as mandated under Section 3 of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (for short the "Act of 2014").
4. Ms. Mayuri Deshmukh, learned A.G.P. and Shri J. B. Kasat, learned counsel appear respectively for respondent No.1 and 2 by waiving notices.
5. Shri Kasat, learned counsel for the respondent No.2 submits that in a case like this, nothing can be done unless and until Town Vending Committee under Section 22 of the Act of 2014 is duly constituted and notified by the appropriate Government i.e. the State of Maharashtra. He further submits that a proposal in this regard, in terms of Rule 16(3) of the Maharashtra Street Vendors (Protection of Livelihood and Regulation of Street Vending) Rules, 2016 (for short the "Rules of ::: Uploaded on - 06/10/2021 ::: Downloaded on - 07/10/2021 07:57:40 ::: 3 W.P.No.3902.2021 2016"), has already been sent by the Nagpur Municipal Corporation to the State of Maharashtra for its approval and issuance of notification constituting the Town Vending Committee but, same is yet to be approved by the State of Maharashtra. He further submits that if necessary directions are issued to the State of Maharashtra, all problems relating to and arising out of street vending by the hawkers will be solved.
6. We are given to understand that a proposal sent in terms of rule 16(3) of the Rules of 2016 is pending with the State of Maharashtra i.e. respondent No.1 since January 2021. As of now, we are not aware of the reasons as to why no decision on this proposal has been taken but we find that decision must and ought to be taken in time indicated in Act of 2014.
7. Sections 3, 22 and 38 of the Act of 2014 are important from the view point of regulating the business of street vending, protection to be given to the identified street vendors and framing of scheme for regulating street vending, which also indicate the time frame within which the Act of 2014, must be implemented. These provisions are reproduced as under :-
"3. Survey of street vendors and protection from eviction or relocation.
(1) The Town Vending Committee shall, within such period and in such manner as may be specified in the scheme, conduct a survey of all ::: Uploaded on - 06/10/2021 ::: Downloaded on - 07/10/2021 07:57:40 ::: 4 W.P.No.3902.2021 existing street vendors, within the area under its jurisdiction, and subsequent survey shall be carried out at least once in every five years.
(2) The Town Vending Committee shall ensure that all existing street vendors, identified in the survey, are accommodated in the vending zones subject to a norm conforming to two and half per cent. of the population of the ward or zone or town or city, as the case may be, in accordance with the plan for street vending and the holding capacity of the vending zones.
(3) No street vendor shall be evicted or, as the case may be, relocated till the survey specified under sub-section (1) has been completed and the certificate of vending is issued to all street vendors.
22. Town Vending Committee.
(1) The appropriate Government may, by rules made in this behalf, provide for the term and the manner of constituting a Town Vending Committee in each local authority:
PROVIDED that the appropriate Government may, if considers necessary, provide for constitution of more than one Town Vending Committee, or a Town Vending Committee for each zone or ward, in each local authority.
(2) Each Town Vending Committee shall consist of :--::: Uploaded on - 06/10/2021 ::: Downloaded on - 07/10/2021 07:57:40 ::: 5 W.P.No.3902.2021
(a) Municipal Commissioner or Chief Executive Officer, as the case may be, who shall be the Chairperson; and
(b) such number of other members as may be prescribed, to be nominated by the appropriate Government, representing the local authority, medical officer of the local authority, the planning authority, traffic police, police, association of street vendors, market associations, traders associations, non-governmental organisations, community based organisations, resident welfare associations, banks and such other interests as it deems proper;
(c) the number of members nominated to represent the non-governmental organisations and the community based organisations shall not be less than ten per cent.;
(d) the number of members representing the street vendors shall not be less than forty per cent. who shall be elected by the street vendors themselves in such manner as may be prescribed:
PROVIDED that one-third of members representing the street vendors shall be from amongst women vendors:
PROVIDED FURTHER that due
representation shall be given to the
Scheduled Castes, the Scheduled Tribes, ::: Uploaded on - 06/10/2021 ::: Downloaded on - 07/10/2021 07:57:40 ::: 6 W.P.No.3902.2021 Other Backward Classes, minorities and persons with disabilities from amongst the members representing street vendors.
(3) The Chairperson and the members nominated under sub-section (2) shall receive such allowances as may be prescribed by the appropriate Government.
38. Scheme for street vendors.
(1) For the purposes of this Act, the appropriate Government shall frame a scheme, [within six months from the date of coming into force of the rules framed under Section 36], after due consultations with the local authority and the Town Vending Committee, by notification, which may specify all or any of the matters provided in the Second Schedule.
(2) A summary of the scheme notified by the appropriate Government under sub-section (1) shall be published by the local authority in at least two local newspapers in such manner as may be prescribed."
8. It would be clear from the above referred provisions that unless and until the Town Vending Committee is constituted and duly notified, it would not be possible for the State as well as local Authorities to effectively implement the provisions of Act of 2014 and the mandate of law is that they are implemented as soon as possible and in any case within six months from the date of coming into force of the Rules framed under ::: Uploaded on - 06/10/2021 ::: Downloaded on - 07/10/2021 07:57:40 ::: 7 W.P.No.3902.2021 Section 36 of the Act of 2014. That would mean that the whole process starting from appointment of a Town Vending Committee to framing of the Scheme must be completed in six months from effective date of the Rules framed under Section 36 of the Act of 2014.
9. It is not in dispute that the Rules of 2016 have been framed under Section 36 of the Act of 2014 and they have come into force w.e.f. 03 rd August, 2016. If the mandate of Section 38 is considered, it would not require much effort to say that the appropriate Government i.e. State Government ought to have completed the whole process including constitution of Town Vending Committee and framing of the scheme latest by 02nd February, 2017. But, the scheme is yet to see the light of the day. Even the proposal sent by respondent No.2 to respondent No.1 for constitution of the Town Vending Committee in terms of Section 22 of the Act of 2014 is awaiting its approval from the State Government. This is quite disappointing.
10. We must note here that owing to inaction of the State Authorities in duly constituting a Town Vending Committee, poor hawkers and street vendors are suffering to no end and as a result, their fundamental right to livelihood as declared by the Apex Court in the case of Maharashtra Ekta Hawkers Union(supra) is being violated.
::: Uploaded on - 06/10/2021 ::: Downloaded on - 07/10/2021 07:57:40 ::: 8 W.P.No.3902.202111. We therefore, find that the issue raised in this petition requires consideration by this Court.
12. Issue notice for final disposal at admission stage to the respondents, returnable on 27.10.2021.
13. Ms Mayuri Deshmukh, learned A.G.P. waives service of notice for respondent No.1 and Shri J. B. Kasat, learned counsel waives service of notice for respondent No.2.
14. Meanwhile, we direct respondent No.1 to take appropriate decision on the proposal sent by respondent No.2 regarding constitution and notification of the Town Vending Committee.
15. Copy of the order be furnished to the learned A.G.P. with a request to immediately forward the same to respondent No.1 for necessary action.
JUDGE JUDGE
Kirtak
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