Andhra Pradesh High Court - Amravati
The Guntur Footpath And Thopudu ... vs The State Of Ap on 16 February, 2021
1
*HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ WRIT PETITION No.3865 of 2020
% 16th February, 2021
# The Guntur Footpath
&ThopuduVeedhiballuChiruvyaparulaSnagha
m, Guntur rep. by its President,
SattenaplliNarasimharao, S/o Yedukondalu,
Hindu, aged about 38 years, R/o 10/3,
Arundalpet, Guntur.
... Petitioner
AND
$ The State of A.P. rep. by its Principal
Secretary, Municipal Administration
and Urban Develpments, Secretariat,
Velagapudi, Amaravati and five
others.
... Respondents.
! Counsel for the Petitioners : Sri Raja Reddy Koneti
^ Counsel for the 1st respondent : Government Pleader for
Municipal Administration
^ Counsel for the 2nd to 4th respondents: Sri M. Manohar Reddy
Standing counsel for GMC
^ Counsel for the 5th& 6th respondents: Government Pleader for Home
< Gist:
> Head Note:
? Cases referred:
1) C.A.Nos.4156-4157 of 2002 Supreme Court of India
2) AIR 1954 SC 728
2
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.3865 of 2020
ORDER:
The traditional dispute between the right to carry on the trade to earn livelihood; and the reasonability of the actions of the State in restraining trade is once again raised in this Writ Petition.
The rights of the "street vendors" have received the consideration of the highest courts of the land. As rightly submitted the Hon'ble Supreme Court of India itself in Maharashtra Ekta Hawkers Union and Another v Municipal Corporation, Greater Mumbai and Others 1 , which is filed as a material paper held that for the last 28 years the Hon'ble Supreme Court of India has struggled to find a workable solution to the problems of street vendors and other sections of society. The Hon'ble Supreme Court of India took into consideration their conditions of life;their contribution to the economy, to the general public etc., and granted them certain reliefs in the form of directions. Then anAct called "The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (in short "the Act 7 of 2014") has come into force. Despite this Act 7 of 2014 and its stipulations, the complaint made in this writ is that the street vendors are being treated with scant respect and are being unreasonably evicted.
1 C.A.Nos.4156-4157 of 2002 Supreme Court of India 3 The petitioners before this Court are "The Guntur Footpath &ThopudiVeedhiballuChiruvyaparulaSangham", (The Guntur Footpath, Push Carts, Hawkers Association). The petitioner society is espousing the cause of its members, who according to the writ affidavit,were unceremoniously evicted from a vending area in the market, where they are vending the fruits. The City Planner along with the officials of the Municipal Corporation and the Station House Officer accompanied by the members of the Police force have unceremoniously thrown away the fruits etc., that are being traded by the vendors. The contention of the learnedcounsel for the petitioner is that the statutory rights which are given to them under the Act 7 of 2014have been totally neglected / violated and that despite having valid licenses; without following the stipulated due process of law the members of the petitioner Association have been forcibly evicted from their legitimate place of business. Learned counsel points out that the rights of the street vendors have been receiving attention of the Hon'ble Supreme Court of India since decades. He points out that in Saghir Ahmad v State of U.P. 2 ,the importance of the street vendor in our economy has been judicially recognized. It is also pointed out by the learned counsel that right to carry on a trade or the business can also be regulated but he points out that in a series of other judgments, the Hon'ble Supreme Court of India has taken a 2 AIR 1954 SC 728 4 compassionate view and allowed the street vendors to eke out their livelihood subject to certain restrictions. The importance of the street vendors and their contribution to the economy and to the general public has been recognized by the highest Courts according to Sri RajareddyKoneti learned counsel for the petitioner. He argues that since there was no law in place, the Hon'ble Supreme Court of India decided that the policy that was existing as in 2009 was directed to be adopted as the rules and regulations and the law governing the subject. Relying upon the judgment of the Hon'ble Supreme Court of India in Maharashtra Ekta Hawkers Union case, learned counsel explained the history and also the regulations in this area of trade and pointed out that like in any trade, subject to reasonable restrictions, street vendors were allowed to carry on their trade. Coming to the provisions of the Act 7 of 2014, learned counsel argues that every street vendor has a right to conduct his business as per the law. He draws the attention of this Court to the procedure prescribed for the relocation and eviction of the street vendors. He argues that even if the present vendors do not have a valid trade licenses or certificatesthey have to be given a 30 days notice for eviction. If after the expiry of the 30 days period the vendor is not relocated or evicted then he could be shifted. The learned counsel thus submits that a special procedure has beengiveninthis Central Enactment for the purpose of 5 evicting the vendors. He also relies upon Section 33 of the Act which is as follows:
"33. Act to have overriding effect - the provisions of this Act shall have effect notwithstanding anything inconsistent therein contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
Therefore, the contentions of the learned counsel for the petitioner are that the members of the petitioner Association have valid licenses; that they are eligible to continue their trade in terms of the said licenses and that they cannot be suddenly evicted. By relying upon Section 33 of the Act 7 of 2014 he submits that this provision of this Act will have an overriding effect over the local Municipal laws. Learned counsel for the petitioner ultimately relies upon Section 27 of the Act 7 of 2014 and argues that the harassment of street vendors, which has been going on for generations, has been addressed by including the subject section which prevents the harassment by police or by any other authorities. Therefore, learned counsel Sri Raja Reddy argues that the actions of the respondents in this case are totally contrary to the law.
In reply to this Sri Naresh Kumar, representing learned standing counsel for the 2nd respondent Sri M. Manohar Reddy argues with considerable force that the members of the petitionerare not entitled to any relief. According to the learned standing counsel the street vendors' policy has been brought into existence in the Municipal Corporation of 6 Guntur. The Guntur City has been divided into red zone, green zone and amber zone. In the red zone it is submitted that no business can be carried on at all. It is mentioned that the members of the petitioner have encroached upon the road and are selling the fruits in the red zone area. It is a very heavily populated area with buildings and with heavy traffic. Therefore, learned standing counsel argues that in order to facilitate the free flow of traffic and to lessen the inconvenience to the general public, the petitioner's members were directed to vacate the area. It is also mentioned that the pushcarts were on the road margins and in the just before the entrance of the Lalapet fruit market. Therefore, learned standing counsel argues that the action taken by the respondent-corporation is correct. He also questions the locus of the petitioner's association to file the Writ Petition since according to him the action was taken against the individual members and not for the Association.
In rejoinder Sri Raja Reddy Koneti argues by relying on the Memo filed by him with USR No.40850-2020 to argue that the Lalapet area is not mentioned either in the red zone or in the amber zone. The classification of three zones is mentioned in this document, which is signed by the Commissioner, Guntur Municipal Corporation, who has also filed the counter affidavit as per him. According to the learned counsel for the petitioner since Lalapet Bazar is not mentioned in these zones and so the contention of the learned 7 standing counsel is not correct. Apart from that he argues that the provisions of the Act have not been followed either in letter or in spirit.
This Court after considering the submissions made notices that there is no dispute about the fact that the Act 7 of 2014 applies to the facts and circumstances of the case. That the street vendors are being regulated is also admitted in the counter affidavit. The question that falls for consideration is whether the action taken in this case is correct or not.
In the opinion of this Court the following definitions, which are found under Section 2 (1) of the Act 7 of 2014 are important:-
"Section 2 (1) (l) street vendor means a person engaged in vending of articles, goods, wares, food items or merchandise of everyday use or offering services to the general public, in a street, lane, sidewalk, footpath, pavement, public park or any other public place or private area, from a temporary built up structure or by moving from place to place and includes hawker, peddler, squatter and all other synonymous terms which may be local or region specific; and the words street vending with their grammatical variations and cognate expressions, shall be construed accordingly; (Emphasis supplied) Section 2(1) (d) mobile vendors means street vendors who carry out vending activities in designated area by moving from one place to another place vending their goods and services;
Section 2(1) (k) stationary vendors means street vendors who carry out vending activities on regular basis at a specific location;
Section 2(1) (e) natural market means a market where sellers and buyers have traditionally congregated for the sale and purchase of products or services and has been 8 determine das such by the local authority on the recommendations of the Town Vending Committee; Section 2(1) (n) vending zone means an area or a place or a location designated as such by the local authority, on the recommendations of the Town Vending Committee, for the specific use by street vendors for street vending and includes footpath, side walk, pavement, embankment, portions of a street, waiting area for public or any such place considered suitable for vending activities and providing services to the general public." (Emphasis supplied).
The above definitions make it clear that street vendors can carry on business in a street, lane, site walk, footpath, pavement etc. The vending zone also includes a footpath, side walk, pavement, embankment, portion of street also. In addition, natural market means and includes the market where sellers and buyers have traditionally congregated. Therefore, merely on the ground that the petitioners have allegedly encroached into the road or carried on business on a road margin is not by itself a ground to throw them out of their business. Section 12 (1) of the Act 7 of 2014 gives a right to every street vendor to carry on his business in accordance with law. They also have a duty to maintain cleanliness, hygiene under Section 15 of the Act 7 of 2014 and to maintain civil amenities in vending zone under section 16 of the Act. If in the opinion of the respondent-Corporation the street vendors are to be relocated and are to be stopped from conducting their business, they will have to follow the procedure stipulated under Section 18 of the Act 7 of 2014, 9 which mandates that the vendor should be given a 30 daysnotice for relocation or eviction. The procedure is very clearly stipulated under Section 18 of the Act 7 of 2014. The plan to promote street vending should be prepared in line with Section 21 of the Act 7 of 2014 and it should be revised for every five years. In preparing the plan under Section 21of the Act 7 of 2014 the local authority shall keep into consideration what is stipulated in the first schedule of the Act, including the right of the commuters and the public to use the said area. Therefore, it is clear that the plan should consider the rights of the petitioners and other street vendors and also the rights of the commuters and the general public to move freely in the areas. Specific areas should be earmarked for vending. The mere fact that there is overcrowding or there are sanitary concerns in the existing market shall not be a ground to evict the hawker / vendor. Similarly, any existing market or natural market cannot be declared as no vending zone. Therefore, this Court is of the opinion that while the intention of the respondents may be laudable, the manner in which they have exercised their power is questionable.
As rightly mentioned by the learned counsel for the petitioner Section 33 of the Act 7 of 2014 states that the provisions of this Act shall have effect notwithstanding anything inconsistent in any other law. Similarly, Section 27 of the Act 7 of 2014 also starts with a non obstante clause 10 and states that no street vendor shall be harassed by the police or other authorities.
It is hoped that all the provisions of this Act would be kept in mind by the respondents and other civic authorities before taking action against the street vendors. This Court is not holding that the street vendors have an absolute right to carry on their business in a place of their choice. No right is absolute and it is always subject to reasonable restrictions. In the case on hand the Act 7 of 2014, which is a special enactment dealing with the rights of the street vendors provides the methodology for regulating the business being carried on. Even if this Section 33 of the Act 7 of 2014 is ignored still in view of the fact that as this Act 7 of 2014 is a special law, it will prevail over the provisions of the Hyderabad Municipal Corporation Act as applicable to the city of Guntur or any other Corporation. The maxim generaliaspecialibus non-derogant or the special law prevails over the general law is squarely applicable to this case. The procedure prescribed under this Act alone has to be strictly followed in case the Corporation wishes to take action against the street vendors.
Factually also this Court agrees with the learned counsel for the petitioner that this particular market at Lalapet is not declared as a 'non-vending zone'. It does not find place either in the red zone or in the amber zone. The mere fact that the petitioners were conducting business on 11 the road margins is not by itself a ground to forcibly evict them. The definitions of "vending zone" includes a foot path, side walk, pavement, embankment etc. Therefore, unless and until the area has been declared as a no vending zone in terms of Section 21 of the Act 7 of 2014 and first schedule etc., and the other provisions are complied with the petitioner's members have a right to carry on their business. Terms and conditions of their licenses should also specify this. It is hoped that the plan for street vending under Section 21 of the Act 7 of 2014 read with the First Schedule will be carefully prepared balancing the needs of the vendors,the general public / commuters, right to use roads free flow of traffic etc.In the facts of this case that the petitioners have made out a case for interference. This Court also holds that the Association has the right to espouse the cause of its members.
Accordingly, the Writ Petition is allowed and there shall be a mandamus against the respondents not to interfere with the business of the persons in Lalapet Fruit market etc., except in accordance with the provisions of the Act 7 of 2014. It is hoped that the anguish expressed by the Hon'ble Supreme Court of India in the Maharashtra Ekta Hawkers Union case that for almost three decades (by then) the highest Court is trying to find a practical solution will be addressed by the Civil officials by implementing the Act 7 of 2014 in its true, letter and spirit. So that the conflicting 12 interests of the street vendors and the general public / public authorities are truly balanced. There shall be no order as to costs.
Consequently, the Miscellaneous Applications pending, if any, in these Writ Petitions shall stand closed.
__________________________ D.V.S.S.SOMAYAJULU, J Date:16.02.2021.
Note: LR copy to be marked.
B/o Ssv