Uttarakhand High Court
Ms. Anjali Bhargawa vs State Of Uttarakhand And Others on 4 September, 2018
Author: Lok Pal Singh
Bench: Rajiv Sharma, Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (PIL) No. 151 of 2015
Ms. Anjali Bhargawa .... Petitioner
Versus
State of Uttarakhand and others .... Respondents
Mr. Gopal K. Verma, Advocate for the petitioner.
Mr. Anil Bisht, Standing Counsel for the State.
Mr. D.S. Patni, Advocate for the respondent no.3.
Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Manoj Sah, Advocate
for the respondent no. 4/applicant.
Dated: 4th September, 2018
Coram: Hon'ble Rajiv Sharma, A.C.J.
Hon'ble Lok Pal Singh, J.
Rajiv Sharma, ACJ (Oral) Recall Application (CLMA 11809/2018) Attention of this Court has been drawn to Byelaws No.29 under the caption "byelaws for the management of the flats". The case of the applicant is that Sri Ram Sevak Sabha was registered as a society. It is involved in charity purposes. The core issue involved in this application is whether the 'Nanda Devi fair' is to be organized by Sri Ram Sevak Sabha or Municipal Council, Nainital or the District Administration. The land is owned by the State but it is in possession of the Municipal Council, Nainital.
2. Learned Senior Counsel appearing on behalf of the applicant/respondent no.4 could not bring any law to the notice of this Court which authorizes 'Sri Ram Sevak Sabha' to hold Nanda Devi Fair in the 'Flats'. The only prerogative to hold the fair at flats is of the State Government. The Court is of the opinion that 2 the 'Flats' is a State largesse. The same should be distributed in a transparent and judicious manner. There are no express provisions under the byelaws authorizing 'Sri Ram Sevak Sabha' or any other agency for holding the 'Nanda Devi Fair'.
3. We, accordingly, direct the District Administration to give land of 'Flats' by inviting short term tenders. The highest bidders shall be allotted shops to sell their wares and other merchandise. However, we make it clear that while formulating the terms and conditions, the land shall be allotted to artisans and poorest of poor persons on very nominal rates.
4. However, the State Government is directed to ensure that the Municipal Council Nainital is compensated for the arrangement, it makes, in holding the fair.
5. The Executive Officer, Municipal Council, Nainital is directed to apprise the Court what steps have been taken to strengthen the drainage system to avoid flowing of water into the shops in 'Bhotia market'. It shall be open to the Nagar Palika to consult the experts from the Irrigation Department and Public Works Department.
6. During the course of hearing, Mr. Bhupesh Kandpal, Advocate submitted that poorest of poor people used to sell their products on the street between V.I.P. car parking and Gurudwara Sahib. However, they have been removed by the authorities. Mr. Bhupesh Kandpal, Advocate has also drawn the attention of this Court to the Street Vendors (Protection of Livelihood and Regulation of Street Vendors) Act 2014. According to this Act, it is mandatory for the 3 Municipal Council to frame the policy to relocate the vendors from their existing place and till then, to permit them to use the allotted space.
7. Their Lordships of Hon'ble Supreme Court has held in Olga Tellis & ors. Vs. Bombay Municipal Corporation and Ors, reported in 1986 AIR 180 have held that the right to life includes right to livelihood. Deprivation of right to livelihood except according to just and fair procedure by law can be challenged being violative of Article 21. Their Lordships have held as under: -
"33. Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21."
8. Accordingly, in the larger public interest and to safeguard the socio-economic rights of the poorest of poor, we permit the street vendors to display their merchandise/wares between 5-8 P.M. in Summers (15th March to 15th September) and 4-6 P.M. in Winters (16th September to 14th March), only on one side of the 4 pathway between the V.I.P. car parking to Gurudwara Sahib restricting the area to 4 feet X 6 feet.
9. It is made absolutely clear that the vendors shall maintain absolute hygiene and cleanliness on the areas allotted to them. The list of all these vendors shall be prepared and the space shall be allotted only to the already registered vendors. The permission shall be cancelled immediately, if the terms and conditions of allotment are not adhered to. It shall be the duty of the Executing Officer to ascertain the antecedents of all the vendors, as an interim measure.
10. The Collector Nainital, who is present in the Court, is directed to hold an enquiry, in the matter, as to under what circumstances the fully grown trees of maple species were removed from the upper Mall Road.
11. Application (CLMA 11809/18) stands disposed of accordingly.
12. List this matter tomorrow i.e. 05.09.2018.
(Lok Pal Singh, J.) (Rajiv Sharma, A.C.J.) 04.09.2018 Balwant